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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-10] British Columbia. Supreme Court Apr 10, 1990

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 2407?  Proceedings  1 APRIL 10, 1990  2 SMITHERS, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 10th day of April, 1990.  In the matter  6 of Delgamuukw versus Her Majesty the Queen at bar, my  7 lord.  8 THE COURT:  Mr. Rush.  9 MR. RUSH: Yes, my lord, before Mr. Jackson commences the  10 argument, I wanted to make reference to certain  11 volumes that I made submissions to you on yesterday.  12 THE COURT:  Yes.  13 MR. RUSH: We tendered as part of the authorities.  14 THE COURT:  I'm sorry, Mr. Rush, I don't have the outline of the  15 plaintiffs' argument.  Do I need them for --  16 MR. RUSH: For the purposes of what I am about to say, no, you  17 don't.  18 THE COURT:  Well, go ahead please.  19 MR. RUSH:  I tendered four volumes of a supplemental second  20 series of authorities yesterday.  21 THE COURT:  Yes.  22 MR. RUSH: And I made passing reference to them, but I wanted to  23 come back to them briefly and mainly to the index, my  24 lord.  You needn't refer to the volumes.  There are  25 four additional volumes, and they contain additional  26 cases, and --  27 THE COURT:  I'm sorry, is this what you call your second series?  28 MR. RUSH: Yes, that's right.  What I wanted to advise you of, is  29 that during the course of the argument, which I  30 addressed to Your Lordship on Friday of last week, at  31 that time I made reference to a number of authorities,  32 including, for example, the case of Sammut and  33 Strickland.  I made reference to Treatise by Chitty, a  34 treaty on the laws of the prerogatives of the Crown.  35 I made reference, for example, to an article by Barry  36 Dale Keith and so on.  And what I wanted to advise  37 Your Lordship is that at that time I didn't have those  38 authorities, but I now have them, and they are in the  39 second series.  4 0 THE COURT:  All right.  41 MR. RUSH: And so that the references that I drew Your Lordship's  42 attention to at that time, they are now contained  43 within the second series.  And I believe that we have  44 all of the additional authorities as well as the page  45 references.  And there were some statutes as well to  46 which I drew Your Lordship's attention, and they too  47 are contained in the statute volume of this second 24079  Submissions by Mr. Jackson  1 series.  So I should advise Your Lordship as well,  2 that I think there were one or two authorities to  3 which I drew Your Lordship's attention, in particular  4 the -- I think it was the Roberts-Wray authority, and  5 there were certain pages that were not -- that I  6 didn't have at that time.  I now have them, and I will  7 pass them up to the Registrar for insertion in the  8 first series.  9 THE COURT: Yes.  Now, are those -- that second series, how many  10 volumes were there?  11 MR. RUSH: There are four.  12 THE COURT:  And can they conveniently be given the Roman numeral  13 numbers in succession to the first series?  14 MR. RUSH: And they have been given those numbers.  They are  15 actually Roman XVIII, XVIIII, XX and XXI.  16 THE COURT:  All right.  Thank you.  17 MR. RUSH: Thank you, my lord.  18 THE COURT:  Mr. Jackson, I have been given a very inviting pile  19 of outline here, a meager 486 pages -- oh, it starts  20 at 311.  Do they belong in any particular volume?  21 MR. JACKSON:  They should fit conveniently, my lord, in the end  22 of the binder you presently have been using.  23 THE COURT: In volume 2.  I think they will.  I think if you  24 don't mind, I will just take it -- take a moment and  25 see if I can successfully insert them.  26 MR. JACKSON:  My lord, the last page of the material Mr. Rush  27 dealt with yesterday ended at page 305.  28 THE COURT:  That's correct, yes.  29 MR. JACKSON:  Then there is a long very pregnant pause to 311,  30 at which point the materials I'll be addressing pick  31 up.  32 THE COURT: Thank you.  Mr. Justice Wood said to a jury one time,  33 after hearing Mr. Ken Young for four days, he thought  34 the best thing the jury should have is a moment of  35 silence.  Maybe a few pages wouldn't be such a bad  36 thing.  I'm not sure I am going to succeed in that.  37 All right.  Thank you, Mr. Jackson.  Starting at 310,  38 is it?  3 9 MR. JACKSON:  311.  40 THE COURT:  I have it, thank you.  41 MR. JACKSON:  My lord, you will recall last week when I first  42 addressed Your Lordship, I started in 1492 with the  43 first voyage of Christopher Columbus.  By the end of  44 today I hope to have reached 1990, in terms of this  45 sketch of the way in which fundamental principles or  46 fundamental process of treaty making has been a legal  47 paradigm for the accommodation of the relationships 24080  Submissions by Mr. Jackson  1 between aboriginal peoples and the Crown.  2 The point at which I am going to start is the  3 point at which Mr. Rush finished yesterday.  Having  4 given Your Lordship the benefits of our submissions on  5 the scope, interpretation of the Royal Proclamation, I  6 wish you to go back for a moment and to see the way in  7 which the Royal Proclamation was implemented initially  8 in the years after 1763, and then through into what is  9 now Canadian territories.  10 And starting at page 311.  11 It is our submission that the central importance  12 of the principle of consent and treaty making in the  13 determination of Indian-Crown relations with respect  14 to territorial issues is evidenced by the Crown's  15 conduct in the post-Proclamation period.  At the same  16 time as the Lords of Trade were asked to prepare the  17 Royal Proclamation, they had also been requested to  18 consider and prepare a general plan, upon which His  19 Majesty's subjects are to carry on a free trade with  20 all the Indians of North America.  21 And Mr. Rush has already made submissions in  22 relation to the plan, and it's referenced to Indians  23 with whom they are connected.  24 The plan dealt with many matters other than those  25 connected with fur trade, particularly matters arising  26 from the Royal Proclamation dealing with the boundary  27 to be established between colonial settlements and the  28 Indian territory.  29 And Your Lordship may recall that John Pownall in  30 his sketch had anticipated that the boundary along the  31 Appalachians was not intended to be an inflexible one,  32 but would be modified to take into account both the  33 pattern of English settlement and also Indian claims  34 to territories east of the line.  35 In furtherance this policy, the 42nd clause of the  36 plan had the following provision:  37  38 "The proper measures be taken with consent and  39 concurrence of the Indians to ascertain and  40 define the precise and exact boundary and  41 limits of the lands which it may be proper to  42 reserve to them and where no settlement  43 whatsoever shall be allowed."  44  45 Although this plan was never submitted to  46 Parliament, the extent to which Clause 42 was acted  47 upon is revealed in the series of treaties which were 24081  Submissions by Mr. Jackson  1 negotiated by the Indian superintendents with various  2 Indian Nations for the specific purpose of negotiating  3 the boundary contemplated by the Proclamation.  That  4 is the boundary between colonial settlements and the  5 Indian country.  6 And at the bottom of page 312 I refer to a report  7 of the Lords of Trade dated March the 7th, 1768:  8  9 "In a plan for the management of Indian Affairs  10 prepared by this Board in 1764, the fixing a  11 boundary between the settlements of your  12 Majesty's subjects and the Indian country was  13 proposed to be established by compact with the  14 Indians ..."  15  16 And I emphasize those words, my lord.  And you  17 will see over on page 313 that with their report the  18 Lords of Trade enclosed a number of treaties which  19 were in fact the best evidence of the implementation  20 of the consentual negotiation of the Proclamation  21 Line.  22 And you will see that there is a treaty with the  23 Cherokee Nation.  It's a treaty to which I will come  24 back to when I deal with the seminal Cherokee cases  25 cited by Chief Justice Marshall in the 1830's.  26 And on page 314 another treaty with the Creek  27 Nation, the Treaty of Picolata.  28 And Your Lordship should be reminded of a point  29 Mr. Rush made yesterday in relation to these  30 particular treaties.  They were the subject of express  31 comment by Mr. Justice Baldwin in the Mitchell case,  32 one of the Marshall cases decided in 1835, and I would  33 refer your lordship back to page 301 of the materials,  34 where you will see at the bottom of the page Mr.  35 Justice Baldwin in characterizing these treaties  36 stated:  37  38 "By thus holding treaties with these Indians  39 accepting of cessions from them with  40 reservations and establishing boundaries with  41 them, the King waived all rights accruing by  42 conquest or cession and thus most solemnly  43 acknowledged that the Indians had rights of  44 property which they could cede or reserve."  45  46 And of course Mr. Rush referred Your Lordship to  47 the Mitchell case as being judicial -- a judicial 24082  Submissions by Mr. Jackson  1 affirmation that the Proclamation in itself affirmed  2 and guaranteed proprietary interests.  3 Page 315, my lord.  The report of the Board of  4 Trade also sheds significant light on that aspect of  5 the Royal Proclamation which was designed to affirm  6 imperial control of Indian policy, particularly in  7 relation to land issues.  As I submitted last week,  8 this was the progressive thrust of imperial  9 initiatives following Hendrick, the Iroquois chief's  10 threatened termination of the Covenant Chain as a  11 result of the lack of response of New York to Indian  12 complaints about encroachments on their lands in the  13 1750's.  14 The Lords of Trade in addressing the issue of the  15 importance of imperial authority stated:  16  17 "The giving all possible redress to the  18 complaints of the Indians in respect to  19 encroachments on their lands, and a steady and  20 uniform attention to a faithful execution to  21 whatever shall be agreed upon for that salutary  22 purpose, is a consideration of very great  23 importance.  It is a service of a general  24 nature in which Your Majesty's interest as Lord  25 of the Soil of all ungranted lands which the  26 Indians may be inclined to give up, is deeply  27 and immediately concerned, and with which the  28 general security of Your Majesty's possessions  29 there is in some measure connected; it is an  30 object comprehensive of the variety of cases,  31 to which the separate authority and  32 jurisdiction of the respective colonies is not  33 competent, and it depends upon negotiation,  34 which has always been carried on between  35 Indians and officers acting under your  36 Majesty's immediate authority, and has  37 reference to matters, which the Indians would  38 not submit to the discussion of particular  39 colonies."  40  41 And I draw Your Lordship's attention to that  42 passage, because in our submission it is further  43 evidence of the point which Mr. Rush made that the  44 Royal Proclamation in addressing issues of high  45 national importance directed to the guarantee of  46 Indian lands and entitlements was a Proclamation of a  47 higher order.  And Mr. Rush addressed you on that 24083  Submissions by Mr. Jackson  1 matter.  This statement by representatives of the  2 Crown in 1768 we submit is further confirmation of  3 that.  4 It is also, of course, the basis upon which the  5 Americans themselves pass the Trade and  6 Non-Intercourse Act again to centre the -- in a  7 unified way the determination of the rights of  8 aboriginal peoples and their relationships to the  9 Atlantic states.  10 And furthermore we say, and this is a point which  11 we will come back, the sentiments on policy expressed  12 in that statement by the Lords of Trade also explains  13 the constitutional arrangements in Canada almost 100  14 years later in terms of the vesting of exclusive  15 authority in relation to Indians and land reserves for  16 Indians in the federal government under Section 9124.  17 THE COURT:  Mr. Jackson, I don't know if you can respond to  18 this, but perhaps your greater reading than mine can  19 be something I can take advantage of.  I am always  20 troubled when I read these things where people sitting  21 in comfortable houses write high flown phrases, and I  22 wonder if they really represent what's happening in  23 the field.  And I don't know if there is any  24 literature on this question.  It seems to me that  25 there is a lot of, for want of a better term, a lot of  26 triple talk going on here on both sides.  For example,  27 your submission the other day suggested very clearly  28 that Chief Hendrick really wrote off the Covenant  29 Chain at Fort George, yet almost immediately  30 thereafter he's attending another meeting a year  31 later.  We have the Lords of the Trade and Secretaries  32 of State writing nice phrases about all these things,  33 and I wonder if it is really representative of what's  34 happening on the frontier.  35 MR. JACKSON:  Your question is a perceptive one, my lord.  And  36 one of the things I sought to do last week in bringing  37 to your attention Dr. Hurley's work, was that he  38 indeed sought to go behind diplomatic assertions  39 traded between the English and the French vis-a-vis  40 their respective rights over the Iroquois, and he  41 sought to look at what in fact was happening on the  42 ground, the extent to which diplomatic assertions were  43 simply that, rhetoric sounding and fury, but  44 signifying very little else.  45 And Your Lordship may also recall when I referred  46 you to the formulations of the British in 1632, when  47 they captured the Dutch ship and they said, "You have 24084  Submissions by Mr. Jackson  1 no right to trade in New England", and how that in  2 fact was an assertion which was based upon the fact  3 the Indians have no rights to give to the Dutch.  4 Immediately thereafter the English made treaties with  5 the very same Indians to acquire rights.  6 I also made the point that in the Nootka sound  7 controversy 150 years later, where certainly the  8 purposes -- the British used the very same arguments  9 which the Dutch had sought to use against them.  10 And we are not asserting these propositions simply as  11 diplomatic assertions.  We are seeking to show, and I  12 will endeavour to do that immediately, my lord, the  13 extent to which these assertions by the Crown  14 corresponded to the reality on the frontier.  15 THE COURT:  You say they do?  16 MR. JACKSON:  They do sometimes, but I think Your Lordship is  17 correct to subject to some close scrutiny.  18 We also say, my lord, however, that the assertions  19 by the Crown may be evidence or they may not be  20 evidence of what we say the fundamental principles  21 are.  And whatever the Crown might say, my lord, if it  22 is not consistent with this fundamental principle in  23 the same way as the practice of the Crown, if it is  24 not consistent with those fundamental principles, may  25 in fact be the subject of characterization as a legal  26 activity.  The practise of the Crown does -- is not,  27 in our submission, the touchstone of the legitimacy  28 and legal validity of what the Crown does.  And so we  29 are seeking to provide Your Lordship a conjunction of  30 statements of what we say are high principle, and a  31 record of action by the Crown which we say is  32 consistent with that, and reflective of those high  33 principles.  34 In particular in regard to your point about  35 Hendricks, I would just revisit that for a moment.  36 Hendricks, as Your Lordship remembers, walks out of  37 the Treaty of Albany, having been flung down the  38 gauntlet, as it were, indicating to the colonial  39 authorities that the Covenant Chain was indeed broken.  40 That was contingent very much upon the British  41 colonial authorities giving Hendricks in the Six  42 Nations the kind of assurances to which they have  43 journeyed to Albany to receive.  That is guarantees  44 that the British would in fact do something about  45 encroachments on their lands, and that that guarantee  46 reflected in actual action, rather than vague  47 promises, was the condition qua known of continuing of 24085  Submissions by Mr. Jackson  1 a renewal of the Covenant Chain.  2 And Your Lordship will recall that in the years  3 after 1753 immediately, it was because of that spectre  4 of the Iroquois breach that the colonial authorities  5 in London did in fact take action, that they did in  6 fact send instructions to the colonial governors, and  7 that marked the beginning of the period in which the  8 British authorities, the Imperial authorities made it  9 very clear that they would respect the land rights of  10 the Indian people, and that in fact is what culminated  11 in the Royal Proclamation.  12 And so, my lord, when I read to you the statements  13 of the Lord of Trade in 1768, I am reading not the  14 diplomatic assertions of armchair diplomats sitting in  15 Whilehall, I am reading to you statements which  16 reflect a considered, consistent and persistent theme  17 of imperial law and practise, which goes back to the  18 decades before the Royal Proclamation.  19 And what I am doing is to show how in fact that  20 consistent, persistent and principled application of  21 the law characterized the actions of the Crown in the  22 period after the Royal Proclamation.  23 THE COURT:  Did you say that Hendrick said that the Covenant  24 Chain was broken at Fort George or at Albany?  25 MR. JACKSON:  I think it was Fort George, my lord.  Yes.  26 THE COURT: I think so too.  I just wasn't sure.  All right.  27 Thank you.  I have always been suspicious of staff.  I  28 think they snow management on a regular basis in just  2 9 about every endeavour I have ever been involved in,  30 and I have that distinct flavor of something like that  31 happening here.  In any event, whatever Hendrick said  32 at Fort George didn't mean that the Covenant Chain was  33 broken.  He said it was, but it turned out later that  34 it wasn't, I gather.  35 MR. JACKSON:  In the next treaty thereafter, as I recall, my  36 lord, the Iroquois having been given the guarantees  37 which they were not given by the colonial authorities  38 renewed the Covenant Chain.  39 THE COURT:  Yes, all right.  Thank you.  You're back on page  40 315?  41 MR. JACKSON:  Yes, my lord.  We say at the top of page 316, my  42 lord, that the Royal Proclamation makes no provisions  43 regarding the exercise of jurisdiction within the  44 Indian country beyond declaring the area a free trade  45 zone and authorizing the removal by the military of  46 fugitives from justice who flee into the Indian  47 country.  Neither the Proclamation nor any of the 24086  Submissions by Mr. Jackson  1 preceding preparatory material sought to change the  2 existing state of affairs whereby the jurisdiction of  3 each Indian nation within its territory to determine  4 its own affairs in accordance with its own laws was  5 respected, subject to the terms of any particular  6 treaties with the Crown.  Nothing in the Proclamation  7 suggests any intention to trench upon this internal  8 self-government of the Indian Nations.  9 My lord, the treaty making referred to by the  10 Lords of Trade in their 1868 report furnishes what we  11 say is evidence of the continuing rights of internal  12 self-government of the Indian Nations.  The first  13 negotiations of the Proclamation Line, dividing the  14 Indian country from the English settlements, took  15 place in the southern colonies and were formalized in  16 the Congress of Augusta in November, 1763, which was  17 attended by the Governors of Georgia, North and South  18 Carolina and Virginia, together with the  19 Superintendent of Southern Indian affairs, John  20 Stuart.  And Your Lordship will recall Sir William  21 Johnson's counterpart.  The resulting treaty reached  22 at the Congress of Augusta, in addition to confirming  23 the Proclamation Line, dealt with a number of other  24 agenda items, and in particular, my lord, if you turn  25 to page 317, the very bottom of the page, you will see  26 I refer to Article 3 of the Treaty of Augusta, which  27 contains explicit recognition of the continuing  28 jurisdiction of the Indian Nations in matters of  29 internal self-government.  And I set out there the  30 relevant part of Article 3.  31  32 "The English governors and superintendent engage  33 for themselves in their successors, as far as  34 they can, that they will always give due  35 attention to the interests of the Indians and  36 will be ready, on all occasions, to do them  37 full and ample justice.  And the several Indian  38 parties do expressly promise and engage for  39 themselves severally and for their several  40 nation and tribes pursuant to the full right  41 of power which they have so to do, that they  42 will in all cases and upon all occasions do  43 full and ample justice to the English."  44  45 In effect, my lord, a clause of reciprocal  46 recognition, almost full faith and credit to each  47 other's justice systems.  And the treaty goes on and 24087  Submissions by Mr. Jackson  1 has a particular article which defines the  2 Proclamation's Line, and seats certain lands on the --  3 on each side of the line.  4 The task of settling the Proclamation Line fell  5 principally to the two Indian superintendents.  The  6 treaty negotiation conducted by Sir William Johnson in  7 the north and John Stuart in the south in the  8 post-Proclamation period provide what we say is  9 compelling evidence of the central importance of  10 Indian consent as a prerequisite to the acquisition by  11 the Crown of rights over lands within the  12 proprietorship of the Indian Nations.  13 And I want to refer your lordship here to a number  14 of treaties in particular which speak to your  15 lordship's observation, is this assertion by the Lord  16 of Trade, how does it correspond to the realities on  17 the ground in North America?  18 And going to the realities on the ground in North  19 America, in the north Sir William Johnson, in November  20 1768, at a congress held at Fort Stanwix, with the Six  21 Nations and their tributaries, negotiated a northern  22 boundary line which involved large cessions by the  23 Indian Nations of lands to the west of the Appalachian  24 which were within the boundaries of Pennsylvania and  25 Virginia, while at the same time other lands east of  26 the Appalachians were retained.  27 And this is a very good example, my lord, of how  28 that line was negotiated.  There were certain lands  29 which the Iroquois and other nations wished to retain  30 east of the line, there were lands which the English  31 wished to have west of the line, and so the line was  32 negotiated, as it were, as a shake down the core of  33 the Appalachians, taking into account the respective  34 interests of Indian Nations on the one hand and the  35 British colonies on the other.  36 The principle reason why the British had requested  37 the cession from the Indians west of the line was the  38 advancing agricultural frontier, particularly in  39 Pennsylvania.  And I refer there to Kenneth Narvey's  40 article to which Mr. Rush has already referred you,  41 which in a very painstaking way goes through all the  42 treaties negotiated in this period to show how the  43 Proclamation Line was negotiated by consent by compact  44 with the Indians in accordance with what we say are  45 the fundamental principles embodied in the  46 Proclamation.  47 MR. WILLMS:  My lord, I note in all those there is an exhibit 240?  Submissions by Mr. Jackson  1 reference there, and the exhibit is for identification  2 only.  It's not -- 35 as a full exhibit.  It's just  3 for identification.  4 THE COURT:  All right.  5 MR. JACKSON:  My lord, that exhibit is a law review article in  6 the Saskatchewan law review.  7 The language of the Fort Stanwix Treaty is  8 significant, we say, in terms of the legal  9 characterization.  10 THE COURT:  It's quite a recent article, is it not?  11 MR. JACKSON:  Yes, my lord.  12 THE COURT:  Two years ago.  13 MR. JACKSON:  No, I think it's longer than that.  I seem to  14 first remember reading it with some horror when I saw  15 its length in the mid-seventies.  16 THE COURT:  That long ago.  17 MR. WILLMS:  1974, my lord.  18 THE COURT:  1974, and there is another one more recent, probably  19 just as long.  20 MR. JACKSON:  And we say the language is significant in terms of  21 how the rights of the Iroquois were characterized, and  22 you will see, in terms of the portion which I have  23 emphasized from the recital in the treaty, the  24 treaties are -- the Indians are stated to be the true  25 and absolute proprietors of the lands.  So the  26 Indians' interest was seen by the Crown officials as  27 being one of proprietorship.  28 And I have also set out at the bottom of page 319  29 over to page 320, and if Your Lordship just looks at  30 again the material which I have emphasized on page  31 319, you will see that this is the language.  And I  32 say this at page 320, this is the language of the  33 English common law conveyancer, and we say that this  34 treaty has a clear historical line of continuity with  35 the treaties I talked about last week, my lord, the  36 earliest treaties in North America where again I took  37 Your Lordship to the particular terms of the treaty  38 and showed how they were the words of conveyances.  39 They were the words of lawyers who were seeking to  40 infuse with legality these documents.  And we say that  41 the Treaty of Fort Stanwix is part and parcel of that  42 line of documents which we say bespeak legal  43 recognition of legal rights of aboriginal peoples to  44 their territories.  45 At page 320, the last paragraph.  Shortly before  46 Sir William Johnson met with the Six Nations at Fort  47 Stanwix, his counterpart, John Stuart, met with 24089  Submissions by Mr. Jackson  1 representatives of the Cherokee Nation at the Congress  2 of Hard Labor in South Carolina to settle the boundary  3 line as it pertained to the Cherokee Nation.  Stuart  4 had negotiated in 1766 and '67 a number of cessions  5 relating to the boundary, and the purpose of the  6 Treaty of Hard Labor was to ratify those treaties and  7 to negotiate further modifications to the Proclamation  8 Line.  Article 1 sets out the details of the boundary  9 line.  I want to refer Your Lordship, however,  10 particularly to article 2, and I would ask Your  11 Lordship to look at the Exhibit 1244, tab 72.  12 THE COURT:  Yes, I have it.  Thank you.  13 MR. JACKSON:  If Your Lordship would go to page 329, which is  14 several pages in.  And you will see in the middle of  15 page 329 article second.  16 THE COURT:  Yes.  17 MR. JACKSON:  I have set article second out in the body of the  18 text.  19 THE COURT:  Yes.  20 MR. JACKSON:  And what it says, my lord:  21  22 "And it is further agreed upon and stipulated by  23 the contracting parties, that no alteration  24 whatsoever shall hence forward be made in the  25 boundary lines, above recited, and now solemnly  26 agreed upon, ratified and confirmed as  27 aforesaid, except such as may hereafter be  28 found expedient and necessary for the mutual  29 interests of both parties, and which alteration  30 shall be made with the full consent of the  31 superintendent, or such other person or persons  32 as shall be authorized by His Majesty's, as  33 well as with the consent and Approbation of the  34 Cherokee Nation of Indians, at a congress or  35 public meeting of Indians to be held for said  36 purpose, and not in any other manner."  37  38 Now, My Lord, we say that Article 2, at the bottom  39 of page 321, Article 2 of the Treaty of Hard Labor is  40 a restatement of two of the fundamental principles  41 which we assert governs as a matter of law the  42 relationship between Indian Nations and the Crown  43 regarding the acquisition by the Crown of proprietary  44 rights in Indian lands.  And they are that such rights  45 can only be acquired with the consent of the Indian  46 Nations, and that the consent must be given in a  47 public treaty making forum.  And of course those are 24090  Submissions by Mr. Jackson  1 embodied in the Royal Proclamation.  2 At page 322 we document how a point of some  3 controversy arose out of the two treaties negotiated  4 at Fort Stanwix and Hard Labor, and the problem was  5 that the lands which had been ceded by the Six Nations  6 at Fort Stanwix were lands which were claimed by the  7 Cherokees and which had been guaranteed or affirmed to  8 them by the Treaty of Hard Labor.  So the treaties, as  9 it were, dealt with the same lands, but in different  10 ways.  And Virginia was particularly concerned about  11 this conflict, because a number of settlements had  12 been established within the areas retained by the  13 Cherokees.  And accordingly the Governor of Virginia  14 pressed John Stuart to amend the Treaty of Hard Labor  15 by shifting the boundary line to the west, in order to  16 include Virginia's settlements.  17 And, my lord, I want to bring your attention to  18 what then ensued.  Again what happened on the ground  19 rather than what happened in Whitehall.  20 In October 1770 Stuart met with about 1,000  21 Cherokees at Lochaber in South Carolina and negotiated  22 a new boundary.  And in his speech to the assembled  23 Cherokees he made it clear what was the reasons for  24 the renegotiation.  And referring to the Treaty of  25 Hard Labor he said:  26  27 "I was then in hopes that we would have no  28 further occasion to meet and talk about lands,  29 but it appeared that by said Line, the lands  30 upon which a great number of families are  31 settled between the Great Kanhaway and Holstons  32 River which would have been cut-off from the  33 province of Virginia and determined to belong  34 to the Cherokees ... the line I am directed to  35 propose will cover the inhabitants and prevent  36 their ruin by securing to them their  37 possessions while it will not deprive you of  38 one foot of your hunting ground for you know  39 you never hunted in the ground, that is  40 proposed to be given up to His Majesty by this  41 line.  It is not His Majesty's intention that  42 you should injure yourselves by giving up your  43 hunting grounds ..."  44  45 And accordingly the Cherokees were prepared to  46 accommodate the British, and therefore on October the  47 20th, 1770, by the Treaty of Lochaber, the Cherokee 24091  Submissions by Mr. Jackson  1 ceded additional lands and agreed to redefine the  2 boundary line between the province of North Carolina  3 and the Cherokee hunting grounds.  And of significance  4 the Treaty of Lochaber provided for its further  5 amendment in the exact same terms as the original  6 Treaty of Hard Labor.  That is, the treaty could not  7 be amended in any other manner than in accordance with  8 the consent of the Crown's representatives, and that  9 of the Cherokee Nation in public council assembled.  10 Now, my lord, I want to, in the next section of  11 the material, deal with the recognition of the  12 pre-existing rights of the aboriginal peoples in what  13 is Canadian territories.  Initially from the period  14 1763 to Confederation, and then in a later section,  15 which I will get to later today, in the period from  16 Confederation to the present time.  17 Now, before I start this, my lord, I wanted to  18 make the point that the province in its submissions  19 says that the history of the Indian peoples in the  20 American colonies prior to the American revolution  21 provides no or little evidence of the policy of the  22 Crown in what is now Canada.  And they say that it is  23 misleading to focus, as the plaintiffs have, to this  24 point on the experience on the application of what we  25 say are fundamental principles in the original  26 colonies.  And they further say that if you look at  27 what happened in Canada, Your Lordship will conclude  28 that the acknowledgement of aboriginal title was a  29 matter of grace on the part of the Crown.  30 Now, we will, of course, have submissions to make,  31 and we already made submissions on the general  32 characterization of the provinces, that aboriginal  33 title exists, is created, is extinguished at the  34 pleasure of the Crown.  And it will be an important  35 theme.  The rejection of that proposition will be an  36 important requirement of our submissions, but what the  37 material will now turn to, my lord, is the addressing  38 of the application on the ground of what we say are  39 the fundamental principles to what is clearly Canadian  40 territory.  And we will endeavour to demonstrate that  41 far from being misleading, the evidence of what  42 happened in the colonies pre-American Revolution is  43 part of a continuous theme in Canadian territories.  44 That is not to say that there are not exceptions.  45 One of the hallmarks, I suppose of every  46 fundamental principle, is there are some exceptions.  47 Certainly the hallmark of many of our legal 24092  Submissions by Mr. Jackson  1 principles.  But we will in fact seek to address those  2 exceptions, and we will suggest to Your Lordship that  3 those are not demonstrations of the lack of principle  4 in law, they are rather demonstrations of abberations  5 which are not precedent upon which this court should  6 render judgment.  7 So, my lord, with that preface I would turn to the  8 material at page 323.  9 The common law principles of recognition of  10 aboriginal rights reflected in the Royal Proclamation  11 of 1763 provided the legal framework in the post-1763  12 period within which the Crown negotiated for the  13 acquisition of lands in Canada in possession of the  14 aboriginal peoples which was required for settlement  15 and development.  This framework was applied in what  16 is now Ontario, and as colonial expansion pushed  17 westwards, in what is now Manitoba, Saskatchewan,  18 Alberta and in parts of British Columbia and the  19 Northwest Territories.  Most recently, this framework  20 has been applied in northern Quebec, the Yukon and  21 parts of the Northwest Territories not hitherto  22 covered by the Treaties of Cession.  The unifying  23 principle, we say, in this acquisition of aboriginal  24 rights has been the principle of Indian consent, and  25 the unifying process has been one in which that  26 consent is expressed through treaties or land claims  27 agreements.  28 And I would turn first, my lord, to the old  29 Province of Quebec.  30 In the period after 1763, the government of the  31 Province of Quebec made clear its resolve to enforce  32 the provisions of the Royal Proclamation both within  33 the boundaries of the province, which themselves were  34 relatively circumscribed, and in the Indian country as  35 well.  And you will recall, my lord, that Mr. Rush has  36 made submissions that the land purchase provisions of  37 paragraph 4 of the Proclamation applied both within  38 the old colonies and as well, of course, within the  39 defined Indian country.  40 The instructions given to Governor James Murray in  41 1763 are significant evidence in relation to the  42 extent to which the Proclamation was to apply in its  43 fullness within Quebec.  And I would refer you, in  44 particular, to paragraph 61 and 62.  61 requires  45 Governor Murray to inform himself with the greatest  46 exactness of the number, nature and disposition of the  47 several bodies or tribes of Indians, of the manner of 24093  Submissions by Mr. Jackson  1 their lives, and we emphasize this, and the rules and  2 constitutions by which they are governed or regulated.  3 And you are upon no account to molest or disturb them  4 in the possession of such parts of the said province,  5 as they at present occupy or possess.  6 And article 62 goes on to recite the Proclamation.  7  8 "Whereas we have by our Proclamation, the 7th  9 day of October strictly forbid on pain of our  10 displeasure all our subjects from making any  11 purchases or settlements whatever or taking  12 possession of any of the lands reserved to the  13 several nations of Indians, with whom we are  14 connected, and who live under our protection,  15 without our special leave for that purpose  16 first obtained."  17  18 We say these instructions are important, not only  19 because they demonstrate a recognition by the Crown of  20 the pre-existing rights of the aboriginal peoples to  21 ownership of traditional lands, but also, as can be  22 seen from the passage which I have underlined, also  23 because they acknowledge as pre-existing the internal  24 governments of the Indian Nations.  And in that sense  25 we have some continuity on the ground between the  26 provisions of the Treaty of Augusta, which I read to  27 Your Lordship, and the Canadian territories of Quebec.  28 The relationship between the pre-existing  29 proprietary rights of the Indian Nations in lands  30 which they had not ceded to the Crown and the Crown's  31 dominion can be seen from applications made for land  32 grants by settlers in Quebec.  And as an example, we  33 cite the executive council of the province, with  34 Lieutenant-Governor Guy Carleton presiding, its  35 hearing of a petition of a certain Marie Joseph  36 Phillipot for a grant of 20,000 acres of land, which  37 His Majesty in council had already authorized to be  38 taken up in such part of the said province as the said  39 Joseph Phillipot shall choose, not already granted or  40 surveyed to others.  And Monsieur Phillipot wanted the  41 lands to be assigned at Restigouche on the eastern  42 border of Quebec.  And the Committee's opinion, as  43 stated by Chief Justice William Hey, was to this  44 effect:  45  46 "The lands so prayed to be assigned are, or are  47 claimed to be the property of the Indians, and 24094  Submissions by Mr. Jackson  1 as such by His Majesty's express command as set  2 forth in his Proclamation in 1763, not within  3 their power to grant."  4  5 And I ask Your Lordship to pay particular  6 attention to the words emphasized.  7 The extent to which legal protection was to be  8 given to Indian territorial rights is further  9 illustrated by other events in Quebec in the period  10 1766 to 1767.  Prior to the Conquest, the French  11 authorities, with the consent of the Indians, had  12 established a number of trading posts known as the  13 King's domain along the north shore of the St.  14 Lawrence River, and had leased trading rights to  15 individuals.  And this practise had been continued by  16 the British.  A number of Quebec merchants, however,  17 interpreting the Royal Proclamation stipulation of  18 free trade with the Indians as a challenge to such  19 leases, set up their own posts in the King's domain,  20 which was now in the province of Quebec.  21 And the -- over at page 327, my lord.  Again the  22 executive council having considered this matter came  23 to the following decision:  24  25 "Ordered that if Mr. Allsop ..."  26  27 Was one of the traders.  28  29 "... or any other person erect buildings upon  30 the lands reserved to the savages in this  31 province by His Majesty's Proclamation, they  32 shall be prosecuted with the utmost rigour of  33 the law."  34  35 We have already discussed that the prohibition on  36 making grants, purchases or settlements in the Indian  37 country was not absolute but was qualified by the  38 phrase "without our especial leave and licence for  39 that purpose first obtained".  And a contemporary  40 example from this period illustrates the circumstances  41 under which the King would grant his especial leave  42 and licence, and provides further evidence of the  43 crucial significance of Indian consent.  The fact that  44 the example involves resource development makes this  45 example of particular importance because, as we will  46 demonstrate this later today, much of the subsequent  47 treaty making in Canada has been seen as a legal 24095  Submissions by Mr. Jackson  1 prerequisite to both the renewable and non-renewable  2 resource development.  3 So, we say, my lord, this early example in  4 Canadian territories in itself is a pre-figuration of  5 the treaty making which took place after  6 Confederation.  7 I should advise Your Lordship, Mr. Rush has  8 already dealt with this matter in another context, and  9 I will be going over it again with a rather different  10 focus.  I would, however, refer Your Lordship to where  11 Mr. Rush dealt with it in his previous materials.  It  12 is at pages 187 to 189, and I should also advise Your  13 Lordship that at pages 187 to 189 the documents which  14 are common documents to the ones I am referring to in  15 the matter I am now going to address, at page 187 to  16 page 189 of the exhibit is mismarked.  It says Exhibit  17 1027.  The exhibit reference should be 1029.  18 THE COURT:  That's at page 187?  19 MR. JACKSON:  187 to 189.  A series of exhibit references which  20 should all be 1029.  And when Your Lordship gets our  21 disk, that change will have been made on the disk.  22 THE COURT:  All right.  Thank you.  23 MR. JACKSON:  And the episode, my lord, was initiated in 1768  24 when the Crown had received a petition from certain  25 individuals praying a grant under certain conditions  26 of all copper mines in the country circumjacent to  27 Lake Superior.  And I should say Mr. Rush had referred  28 to this material to show that trading companies,  29 chartered companies were subject to the terms of the  30 Proclamation.  31 The Board of Trade to whom the petition was  32 referred, and at the top of page 328, my lord,  33 reported to His Majesty that all reasonable  34 encouragement should be given to the discovery and  35 working of such mines, as copper is an article of  36 great importance to the manufacture and commerce of  37 Great Britain.  However, because the system adopted by  38 Your Majesty's Proclamation does preclude all  39 establishments in the interior country adjacent to the  40 Great Lakes, their lordship's recommended that no  41 action be taken until both the Commander-in-Chief in  42 North America and Superintendent had reported by what  43 means the Indians might be induced to consent to such  44 establishments.  45 And General Gage and Superintendent William  46 Johnson, while agreeing with the mining proposal,  47 stressed that no project shall be undertaken until, in 24096  Submissions by Mr. Jackson  1 General Gage's words:  2  3 "The Indians are fully apprised of everything  4 that is intended to be done, and that they  5 shall give their free and full consent thereto  6 ..."  7  8 And on page 329, my lord, we recite how in fact  9 the chartered company or its representatives on behalf  10 of the mining adventurers secured the consent to the  11 proposed operations of several of the Indian Nations  12 concerned.  And this agreement was confirmed by other  13 chiefs from Lake Superior.  14 And furthermore, we recite how the necessity for  15 and the form of any such consent was specifically set  16 out in the terms of the Royal Charter to the mining  17 adventurers.  And there is the citation there that the  18 beneficiaries of this charter are to take and purchase  19 from the Indians or other natives of the said  20 countries all such lands, islands and places as are or  21 shall be necessary to work and carry on such mines.  22 My lord, I want to emphasize here again the  23 continuity between this and what we say happened in  24 the original colonies prior to the revolution.  25 Because we say they bespeak a common policy, a common  26 reflection of fundamental principles which ripened  27 into a common law rule, which we will be dealing with  28 when we get to the Marshall decisions.  And if Your  29 Lordship will recall, last week when I was dealing  30 with the patents granted by the Earl of Sterling to  31 early colonists on Long Island, eastern Long Island,  32 those, even though they weren't dealing with copper  33 mines, but the patents granted by the Earl of Sterling  34 to English colonists were and required them to  35 purchase from the Indians lands required for  36 settlement.  And so far from there being  37 discontinuity, far from there being the American  38 experience, which Your Lordship can put to one side as  39 a historical interest, which is the province's  40 position and our position, which is that there is a  41 continuous theme here reflecting fundamental  42 principles.  This -- what otherwise would be a small  43 incident in the interior of Canada, we say reflects a  44 reflection on the ground of a very large principle.  45 At the bottom of page 329 the Crown also received  46 petitions for its especial leave and licence to settle  47 at military posts in the interior country.  In 1767, 24097  Submissions by Mr. Jackson  1 Lieutenant George McDougall asked for a grant of Hog  2 Island, which was situated in the Detroit River  3 opposite the military garrison.  And as with the  4 mining grant, the Board of Trade advised His Majesty  5 of the major impediment of such disposal.  6 And at page 330 it follows that no absolute grants  7 of the same can be made consistently with the terms  8 and reservations of the said Proclamation.  9 But the commissioners advised that for a number of  10 reasons Lieutenant McDougall's proposal to grow  11 provisions for the garrison at Detroit was one that  12 should be encouraged.  And accordingly His Majesty and  13 council directed the Commander-in-Chief to allow the  14 petitioner a temporary occupation.  15 Now, the way in which this directive was  16 interpreted on the ground by the Commander-in-Chief  17 can be seen in the order which General Gage gave to  18 Captain Turnbull, the Post Commandment.  "As Mr.  19 McDougall's occupying these lands depends upon the  20 sufferige of the Indians who have claims thereto".  21 You will recall, my lord, the province's position,  22 Indian rights exist at the sufferance of the Crown.  23 Here is a Crown official describing a character of the  24 relationship between the rights of the Crown and the  25 rights of the Indians as Mr. McDougall's occupying  26 these lands depends upon the "sufferige of the Indians  27 who have claims thereto".  "It will be necessary that  28 these Indians should...publicly signify to you or  29 rather give a written acknowledge of their consenting  30 to the cession of these lands in favour of Mr.  31 McDougall."  32 And, my lord, you might note that this particular  33 transaction was the subject of specific comment by Mr.  34 Justice Gwynne in St. Catherine's Milling case.  35 Again, as evidencing to His Lordship the fact that the  36 Proclamation and its principles were applied  37 vigorously and rigerously within the old province of  38 Quebec.  39 And accordingly an indenture was made in Detroit  40 on May the 5th, 1769 between Captain Turnbull and  41 certain chiefs of the Ottawa and Chippewa Nations who  42 signed for themselves and by the consent of the whole  43 of the said nation of Indians.  44 THE COURT:  My trouble with that, Mr. Jackson, looks to me like  45 they are just getting around to the prohibition for  46 which you contend by calling a grant a temporary  47 occupation and telling them to go ahead anyway. 2409?  Submissions by Mr. Jackson  1 MR. JACKSON:  Well, my lord, the temporary occupation is on  2 conditions that --  3 THE COURT: How long did it last, I wonder?  4 MR. JACKSON:  Well, let's see.  The document was signed in 1769,  5 and it seems that this occupation began in 1768.  So  6 it was a relatively short temporary occupation prior  7 to the consent being granted.  8 The bottom of page 331, my lord.  9 While within the Indian territory settlement was  10 in exceptional cases permitted with His Majesty's  11 leave and licence, and subject to obtaining the  12 consent of the Indians, without that permission  13 private purchases were null and void.  And this point  14 was made very clear by General Gage in 1771 in  15 relation to a number of individuals who were claiming  16 lands on both sides of the Detroit River by the  17 military posts on the basis of grants from past French  18 and British commanders.  General Gage advised the  19 military commander at Detroit:  20  21 "That the King has not invested any person  22 whatever with the power of granting lands in  23 America, except to his governors within the  24 limits of their respective provinces; and under  25 certain forms and restrictions, and where any  26 purchase is made of the Indians though within  27 the limits of the provinces, they are not  28 valid, unless permission is given so to do, and  29 purchase is made in the presence of the  30 governor."  31  32 And I would turn, my lord, to page 333 for some  33 further evidence of the way in which Crown  34 representatives sought to ensure respect for the  35 integrity of Indian lands and for the provisions of  36 the Royal Proclamation.  And this is in the form of  37 a -- the action of Frederick Haldimand, who was  38 General Gage's successor, who being apprised of the  39 fact that various individuals purchased lands in the  40 territories of the Illinois Indian nation, issued a  41 further Proclamation in 1774 which, after repeating  42 the provisions of the original Proclamation stated  43 that "all purchases made of the Indians of any part of  44 the lands reserved to them by the said Royal  45 Proclamation will be considered as void and  46 fraudulent, and no one will be permitted to establish  47 themselves there unless the said lands are purchased 24099  Submissions by Mr. Jackson  1 in the manner prescribed in the aforesaid  2 Proclamation."  3 Mr. Rush has previously recited to Your Lordship  4 how the Quebec Act in 1774 shifted the boundaries of  5 Quebec westward to the Mississippi, and how pursuant  6 to Royal instructions civil government was introduced  7 into the territory.  Whereas hence before the  8 administration of justice within the territory had  9 been left under a general mandate of the governor of  10 the forces, the armed forces, General Gage.  11 We say, my lord, at the bottom of page 334 that  12 these provisions establishing civil government within  13 the new expanded Province of Quebec, that from  14 contemporary documents it is apparent that the  15 provisions of the civil government in the expanded  16 territory were intended to be for whites and not  17 Indians.  Thus, in September 1774 Thomas Gage, the  18 Commander-in-Chief, replied to a query from Sir  19 William Johnson's successor Guy Johnson about the  20 application of the Act to Indians.  He said:  21  22 "I imagine there must be some mistake in what  23 you mention respecting the Indians of Canada  24 being subject for the future in all things to  25 the law of England, Indians are commonly left  26 to their own useages and customs in most  27 things, perhaps they may have been informed  28 that in case of murder or robbery they would be  29 tried agreeable to English law.  You will know  30 before this reaches you, that the French laws  31 in most instances are to have force in Canada,  32 but I don't imagine the Indians are much  33 interested in this matter."  34  35 It was the view of Quebec government officials  36 that, within the new portions of the province of  37 Quebec, the land purchase provisions of the Royal  38 Proclamation of 1763 still applied.  And Mr. Rush in  39 his submissions to you has already addressed the  40 opinion of the Court of Appeal of Ontario in the Bear  41 Island case, and we have taken the position that to  42 the extent the Ontario Court of Appeal expressed the  43 opinion without reasons, that the land purchase  44 provisions of the procedural provisions of paragraph  45 4, a requirement that Indian lands be acquired only in  46 public council with the Indians, their opinion that  47 that was repealed by the Quebec Act is in fact per 24100  Submissions by Mr. Jackson  1 incuriam, and it is not something which Your Lordship  2 should follow.  3 We make the further submission at the bottom of  4 page 335 that an analysis of contemporary documents  5 shows that while the Proclamation was amended so far  6 as Quebec was concerned to the extent that it provided  7 for the exercise of several jurisdictions within those  8 areas which hitherto had been part of the Indian  9 reserve, it did not alter the application of the legal  10 requirement for the purchase of lands still in the  11 possession of the Indians in accordance with the  12 Proclamation's protocol of treaty making.  And the  13 plaintiffs' submissions on this matter are supported  14 by the detailed and extensive analysis of Mr. Justice  15 Gwynne in St. Catherine's Milling.  16 As an example of such contemporary documents, in  17 August 1778 Frederick Haldimand, by then Governor of  18 Quebec, criticized the Lieutenant-Governor and  19 Superintendent of Detroit, one of the areas brought  20 within the Province of Quebec by the 1774 legislation,  21 for allowing settlers who were fleeing the  22 revolutionary war, to take up lands at the post.  23 Haldimand stated that grants of lands cannot be made,  24 but in a regular manner through the governor general.  25 And we go on to give some indication of what the  26 regular manner contemplated in that response was.  27 And this is Mr. Hamilton's response:  28  29 "I am to observe to your Excellency I have never  30 taken upon me to grant lands at this place, on  31 the contrary, I convened the principle  32 inhabitants, and the chiefs of the neighbouring  33 nation, read to them the Proclamation relative  34 to purchases from the Indians and told them  35 that no deeds should be considered valid until  36 passed by the authority of the chief governor,  37 registered at Quebec and entered at the office  38 in this place, further that they should be  39 drawn out fair on parchment, and publicly  40 witnessed by the chiefs of the respective  41 nations."  42  43 And the application of the land provision is also  44 clearly seen in purchases of Indian lands made in 1780  45 and 1781.  Thus in July 1780 Governor Haldimand  46 directed Colonel Guy Johnson of the Indian department  47 to purchase for the King, upon the most advantageous 24101  Submissions by Mr. Jackson  1 terms in your power to obtain, the tract of land  2 belonging to the Messessaugas opposite Fort Niagara.  3 Stated reasons for the purchase was, among other  4 things, to provide for the better accommodations and  5 support of His Majesty's loyal subjects who, drawn  6 from their homes, take refuge at Niagara.  7 The fort itself was situated on the west side of  8 the Niagara River, in what is now New York state, on  9 grounds purchased in 1764 from the Seneca Indians.  10 The deed which Colonel Johnson obtained from the  11 Mississaga and Chippeweigh Indians on May 9th, 1781  12 was designed to make and perfect the earlier cession,  13 these particular Indian Nations not having taken part  14 in it, as well as to acquire the additional lands  15 required by Haldimand.  16 And on page 338.  In forwarding the cession to  17 Governor Haldimand, Colonel Johnson stated that it was  18 made out in the usual form.  And in fact the form,  19 which is that of a contract for the sale of land, is  20 taken from the Treaty of Fort Stanwix of 1768, and  21 like that earlier treaty, this deed was executed in  22 accordance with the Royal Proclamation of 1763.  Thus,  23 the meeting was public and the agreement was made by  24 various Sachems and Chiefs of the Chippewa and  25 Mississagas inhabiting at or near Wegh-queta at the  26 head of Lake Ontario in the vicinity of Niagara on  27 behalf of ourselves and all our people here convened  28 by Colonel Guy Johnson.  The cession was made to the  29 Crown, and the deed is in standard conveyancing terms  30 as Your Lordship saw in the Fort Stanwix's deed.  31 On May the 22nd, 1784, the Crown obtained a  32 further cession, which included most of the Niagara  33 Peninsula - from other sub-groups of the Missisaga  34 Nation.  In this deed certain "Sachems War Chiefs and  35 Principal Women of the Mississaga Indian Nation"  36 agreed to "grant, bargain, sell, alien, release and  37 confirm under His ..."  38 THE COURT: That should be "unto", shouldn't it, instead of  39 "under", or is it "under"?  40 MR. JACKSON:  We'll have to check the original, my lord, but  41 Your Lordship is probably right.  42 THE COURT:  Could be either.  43 MR. JACKSON:  We'll check that and advise Your Lordship  44 accordingly.  45 We say that this deed also bears close scrutiny  46 because in it there is a clear characterization again  47 of the nature of the Mississagas' interest in the 24102  Submissions by Mr. Jackson  1 lands they are ceding.  2 And you will see at page 338 and 339 the nature of  3 that interest is the true, lawful and rightful owners  4 of the lands.  So again we have language executed,  5 drafted by the British which reflects a legal  6 characterization, and with which describes the Indian  7 interest in what are unambiguously legal  8 characteristics.  9 As Mr. Morrison testified before Your Lordship,  10 the treaty council leading up to execution of this  11 deed with the Mississagas was attended not only by the  12 Mississagas themselves, but also by the chiefs of the  13 Six Nations.  And the treaty council was executed, was  14 conducted in accordance with the same protocol as  15 characterized pre-Proclamation Covenant Chain  16 treaties.  And the reason for the attendance of the  17 Six Nations was one to which we will return.  It was  18 in fact to obtain a cession from the Mississagas to  19 the Crown of lands which in turn were granted to the  20 Six Nations as their new homelands within Canada  21 following their becoming refugees from the United  22 States as a result of the American Revolution.  And we  23 will be coming back to that shortly.  24 We say at the bottom of page 339 that the  25 requirement of Indian consent at every stage of  26 European penetration into the province of Quebec's  27 immediate hinterland is further demonstrated by the  28 instructions given by Lieutenant Governor Henry  29 Hamilton, to the Deputy-Survey -- that should be  30 Surveyor General John Collins to survey the  31 communication between the Bay of Quinte and Lake Huron  32 by way of Lake Simcoe in 1785.  Collins was directed  33 to determine the Indian tribes on the communication,  34 their numbers, disposition, as well as what tract of  35 land it may be necessary to purchase and at what rate.  36 Collins met with the Mississaga at Lake Simcoe and  37 according to the minutes of that conference it was  38 unanimously agreed:  39  40 "That the King shall have a right to make roads  41 through the Missisaga country, that the  42 navigation of the rivers and lakes shall be  43 open and free for all his vessels and those of  44 his subjects ..."  45  4 6 And as Mr. Morrison gave evidence from the  47 analysis of contemporary documents, this purchase 24103  Submissions by Mr. Jackson  1 required two agreements.  The first is embodied in the  2 indenture and is identical in wording to the Niagara  3 purchase of 1784.  4 Of some significance, my lord, a crucial part of  5 this document, the delineation of the proposed  6 boundaries was not filled in, and this omission caused  7 the government of Upper Canada considerable anxiety a  8 decade later.  9 And on January -- in January of 1794 Lord  10 Dorchester declared the deed of 1787 of no validity.  11 Although he stated that no fraud was intended, it was,  12 however, an omission which will set aside the whole  13 transaction and throw us entirely upon the good faith  14 of the Indians for just so much lands as they are  15 willing to allow.  16 And accordingly, in 1806, a further indenture was  17 signed by the chiefs, warriors and people of the  18 Mississauga Nation, which recited that the previous  19 deed was defective and imperfect and confirmed the  20 previous cession in what has become known to history  21 as the Toronto purchase.  22 My lord, I would like you to look at these  23 documents.  They are to be found in Exhibit 1207, my  24 lord.  Is a selection of treaties made between the  25 British Crown and Indian Nations in what is now  26 Canada.  From 1779 down to 1870.  And the particular  27 treaty we are talking about can be found in tab 5.  28 And if Your Lordship has tab 5 on page 32 under the  29 heading number 13.  3 0    THE COURT:  Yes.  31 MR. JACKSON:  You will see that the indenture -- of course this  32 has been typed up from the original handwritten  33 document.  You will see that if you go over to page  34 33, in the second blank:  35  36 "All that tract or parcel of land laying and  37 being,"  38  39 And then there is a blank.  40  41 "Together with the woods, ways, paths ..."  42  43 What was not put in there was the description of  44 the land.  And it was this lack of a description of  45 the territory which Lord Dorchester drew attention,  4 6 and which led to the further deed.  And the further  47 treaty or deed is set out at page 34.  And you will 24104  Submissions by Mr. Jackson  1 see it's a full version and it has a proper  2 description of the territory to be ceded.  3 THE COURT:  Where is that?  4 MR. JACKSON:  This is at page 34 to 35.  5 THE COURT:  Yes.  6 MR. JACKSON:  Which is the 1806 so-called Toronto purchase.  7 THE COURT:  Yes.  8 MR. JACKSON:  And Your Lordship will note the third paragraph of  9 the deed, which begins "and whereas in pursuance of  10 that agreement".  11 THE COURT:  Yes.  12 MR. JACKSON:  At the very end of the recital says "which said  13 instrument", this is the earlier, "did not ascertain  14 or describe that parcel of land meant and intended to  15 be conveyed thereby and was and is in other respects  16 defective and imperfect."  And it was to rectify and  17 redress that legal imperfection.  18 THE COURT:  And then the next paragraph there is a metes and  19 bounds description?  2 0 MR. JACKSON:  That's right, my lord.  21 THE COURT:  Yes.  This is not for the City of Toronto.  22 MR. JACKSON:  It's around Lake Ontario, my lord, but I don't —  23 THE COURT:  I thought it said Lake Simcoe.  It was Quinte Bay  24 and Lake Huron by way of Lake Simcoe.  So it's --  25 MR. JACKSON:  Some distance from Toronto.  26 THE COURT:  I don't know how far that would be.  300 miles from  27 present Toronto?  200?  Ms. Koenigsberg would know.  28 MS. KOENIGSBERG:  Simcoe isn't 200 miles, probably within 100  2 9 miles.  30 THE COURT:  100 miles.  All right.  Its been called the Toronto  31 purchase.  32 MR. JACKSON:  Its been called the Toronto purchase.  33 THE COURT:  All right.  I think we are almost halfway through  34 the adjournment we are going to take -- halfway  35 through the morning, so we'll adjourn now please.  36 THE REGISTRAR:  Order in court.  Court stands adjourned for a  37 short recess.  38 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  39 I HEREBY CERTIFY THE FOREGOING TO BE  40 A TRUE AND ACCURATE TRANSCRIPT OF THE  41 PROCEEDINGS HEREIN TO THE BEST OF MY  42 SKILL AND ABILITY.  43  4 4    4 5 LORI OXLEY  4 6 OFFICIAL REPORTER  47 UNITED REPORTING SERVICE LTD. 24105  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED AT 11:15 a.m. PURSUANT TO AN  2 ADJOURNMENT)  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Jackson.  6 MR. JACKSON:  Thank you, my lord.  Before we took the break, we  7 were dealing with the 1086 Perfection of the 1787 Deed  8 and there were several comments I wish to make  9 regarding that deed, my lord.  And at page 341 in the  10 last paragraph we say that the process of perfecting  11 the previous Deed because of legal irregularities is  12 one which parallels the process which we have already  13 documented in the early days of colonial settlement on  14 the Eastern Seaboard in the 17th century.  There is a  15 process which speaks clearly and unequivocally to the  16 legal significance of Indian consent to the  17 acquisition by the Crown of Indian lands.  18 And again, my lord, I point to the continuity  19 between free revolutionary American experience in  20 British colonies and the post-Proclamation experience  21 in British Canadian colonies.  22 The comments of Lord Dorchester, which I have  23 previously recited and I would take your lordship back  24 to them at page 341, where Lord Dorchester, in  25 expressing his concerns about the effects about the  26 imperfection of the 1787 cession said that this was an  27 omission which will set aside the whole transaction  28 and throw us entirely upon the good faith of the  29 Indians for just so much lands as they are willing to  30 allow.  And I would like your lordship to raise the  31 question in your mind of how that can be squared with  32 the characterization of aboriginal rights of Indian  33 peoples as being dependent upon the good will of the  34 sovereign.  The extent to which Lord Dorchester  35 understood the effects of the Proclamation as being  36 ones which -- where they were not complied with in pit  37 and substance the Crown did not acquire title to those  38 lands such as to permit it to make grants and to  39 proceed with settlement.  Lord Dorchester saw that  40 cession in perfect form as a condition, a legal  41 condition precedent to the acquisition by the Crown of  42 rights, not at the pleasure of the Crown.  43 THE COURT:  All right.  Well, you have asked me a question and  44 with typical lawyer-like skepticism for which we are  45 so famous.  Let me ask you whether these were lands  46 which were occupied by the Indians as a building site  47 or were they hunting lands? 24106  Submissions by Mr. Jackson  1 MR. JACKSON:  It is my understanding, my lord, that these were  2 hunting lands.  3 THE COURT:  That seems to me that that might on some view of the  4 evidence make a difference.  Unlike the land alongside  5 the Detroit, this isn't the same category of a  6 well-known waterway I wouldn't think though, but I  7 don't know that.  But you understand these are hunting  8 lands.  9 MR. JACKSON:  I understand in terms of the area ceded, my lord,  10 that they would have included hunting lands although  11 they may include other lands.  We can endeavour to  12 make some further inquiries on that but it would be  13 our submission that nothing would turn on the  14 difference in terms of the necessity for the Crown to  15 obtain Indian consent to develop or settle those  16 lands.  17 THE COURT:  Well, there are so many things to inquire about, Mr.  18 Jackson, I will leave it with you.  19 MR. JACKSON:  I think not in terms of your lordship having to  20 direct immediate scrutiny to the question but as a  21 question to which I will return on more than one  22 occasion.  2 3 THE COURT:  Thank you.  24 MR. JACKSON:  And in fact the next occasion, my lord, is  25 immediately.  26 THE COURT:  Usually is.  27 MR. JACKSON:  And I refer your lordship to the statements made  28 by Mr. Justice Steele, in the Bear Island case  29 wherein, referring to the treaty-making during this  30 very period, he characterized it as matters of policy  31 and not of law.  And his lordship said:  32  33 "There was a great deal of evidence introduced  34 relating to the Crown's policy of enforcement  35 of the Royal Proclamation in the early years  36 after the proclamation.  This evidence shows  37 that the Crown had a policy of leaning over  38 backwards to accommodate the Indians so as to  39 prevent any misunderstandings.  For example,  40 with respect to the treaties in the Niagara  41 Peninsula and south-western Ontario, where  42 errors in description were found, the Crown  43 went back and made a new treaty.  I am of the  44 opinion that this was done primarily because  45 the Crown did not want to have another Pontiac  46 rebellion on its hands, and therefore it was  47 prudent policy to act in this manner." 24107  Submissions by Mr. Jackson  1  2 Now, my lord, we say that Mr. Steele is wrong.  We  3 say that his attempted recharacterization of the  4 Crown's lawful obligations to acquire Indian lands by  5 consent as merely prudent policy is wrong in law and  6 is controverted by the evidence which has been placed  7 before this Court.  And I ask your lordship again to  8 question why, if this was mere policy, would a further  9 deed be made in the specific ways in which it was, if  10 it is mere policy?  If it's mere --  11 THE COURT:  You say it was done because the previous one was  12 null and void?  13 MR. JACKSON:  We say it was done because the previous one was  14 null and void and as a matter -- as a legal  15 requirement to perfect the Crown's title the further  16 deed was done.  If it was policy, if it was mere  17 prudence, the Indians believed they had sold the land  18 already.  Why was it necessary to go back and to get a  19 perfect form document unless, unless that was the  20 route of the Crown's title, unless that was the  21 document needed as a matter of law for the Crown to  22 show it had acquired the lands in accordance with what  23 we say are fundamental principles in accordance with  24 the Royal Proclamation?  It bespeaks legality, it is  25 infused with the language of the law.  We say that Mr.  26 Justice Steele, in characterizing this as mere matters  27 of policy, is simply wrong.  It is wrong as a matter  28 of a historical record and we will say that it's wrong  29 as a matter of characterizing the nature of the  30 Crown's obligations.  31 THE COURT:  Of course even then the deed could have been  32 rectified.  33 MR. JACKSON:  The deed could have been rectified.  34 THE COURT:  By the omission — by filling in the omitted  35 description if the evidence was available.  36 MR. JACKSON:  The Crown — my point, my lord, is I think the  37 extent that this was policy, one would have thought  38 the Crown would have resorted to the least legalistic  39 methods of perfecting to the extent that it is law.  40 One would suspect they did exactly the way they did  41 which was to go to the most legalistic way out of  42 abundant caution to ensure that the Crown had the  43 right as a matter of law to these lands, and this  44 again is the situation which we say was reflected in  45 the early colonial period.  You may recall, my lord, I  46 gave your lordship one example of where a settler had  47 acquired land; dispute arose as to whether or not the 2410?  Submissions by Mr. Jackson  1 particular Indian settler had title and there was an  2 inquiry as to whether or not the title was split, and  3 the document recited very carefully the chain of  4 title.  And I say to your lordship it reminded me of  5 when I was doing my articles in a solicitor's firm and  6 the way in which we had -- and the old English system  7 traced the route of title and something thankfully  8 people don't have to do in British Columbia anymore.  9 This document I would submit is meant to be part of  10 the tracing of that route of title.  It is not a  11 matter of policy, it is a matter of law.  12 THE COURT:  This reminds me of a mortgage, million dollar  13 mortgage without a charging section that I recall in  14 time had to be rectified.  Some embarrassment of some  15 lawyers but it was straightened out.  16 MR. WILLMS:  My lord, it should be noted the quote doesn't end  17 on 341 where my friend ends it.  It does carry on.  18 There should be three dots there.  19 THE COURT:  Mr. Justice Steele's?  20 MR. WILLMS:  No, at 341, the quote from Lord Dorchester after  21 the word "allow", there should be three dots because  22 there is something that follows which may answer some  23 of my friend's questions.  24 THE COURT:  Well, look forward to hearing you from about that,  25 Mr. Willms.  26 MR. JACKSON:  My lord, at page 343, Mr. Morrison, in his  27 evidence, referred to a number of other exchanges and  28 transactions which provide further evidentiary support  29 for the Crown's recognition of the pre-existing rights  30 of Indian Nations and the need for strict adherence to  31 the legal procedures for the acquisition of these  32 lands for settlement and development.  And the bottom  33 of page 343, we recite the documentary record of the  34 Land Committees of the Executive Council of the  35 Province of Quebec 1788 also reveal applications by  36 Loyalist soldiers for grants of lands still in the  37 possession of the Indians.  The prayers or the  38 grants -- the prayers of the grants were founded on a  39 presumption the Government will shortly purchase that  40 tract and distribute it among the loyalists.  41 And in relation to one such petition, the  42 committee stated:  The petitioner states that the land  43 he applies for is the Indian property.  The Committee  44 cannot recommend a grant of lands which do not  45 appertain to the Crown.  46 The last Indian purchase made by the Crown before  47 the division of the Province of Quebec took place in 24109  Submissions by Mr. Jackson  1 1790.  In April of the previous year, Lord Dorchester  2 appointed a Board for receiving applications for  3 grants of parcels of the waste lands of the Crown in  4 the district of Hesse, which encompassed that part of  5 the province west of Long Point on Lake Erie,  6 including the old French enclave at Detroit.  The  7 board, having received various petitions or grants,  8 advised the Governor:  9  10 "They cannot comply with the general scope of  11 those Instructions by reason that in their  12 competence, the Crown is actually possessed of  13 no waste Lands free from claims of Indians or  14 others and to state their opinion that a  15 purchase be made as soon as may be from the  16 Indians of the Lands from Long Point in Lake  17 Erie to Lake Huron, suggesting as the Grounds  18 of such opinion the uniform reserve of His  19 Majesty in Council not to grant any waste  20 Lands within the Province without a previous  21 treaty with the Natives as proprietors of the  22 Soil..."  23  24 And page 345, following the Land Board's advice, the  25 treaty was indeed made.  By its terms, the principal  26 Village and War Chiefs of the Ottawa, Chippewa,  27 Pottawatomy and Huron Indian Nations of Detroit sold  28 to His Majesty by and with the consent of the whole of  29 the said Nation of a defined area.  And the bottom of  30 that paragraph, my lord, among its various  31 stipulations, the deed states that the said Nations  32 ... have put His said Majesty in full possession and  33 seizin by allowing houses to be built upon the  34 Premises.  And that again is a document which was not  35 only put in evidence in this case, it is a document  36 which is relied upon by Mr. Justice Gwynne, in the  37 judgment of St. Catherine's Milling.  38 In August of 1791, the same month as the Province  39 of Quebec was divided into Upper and Lower Canada,  40 Lord Dorchester addressed an assembly of the  41 Confederated Indian Nations of the Ottawas, Chippewas,  42 Pottowatomy, Huron, Shawnee, Delaware and the Six  43 Nations in Quebec.  And this is a very important  44 speech, my lord, and in the course of it, Lord  45 Dorchester directed himself to the recent war with the  46 United States and the rumours that had circulated  47 among the Indian Nations regarding the effect of the 24110  Submissions by Mr. Jackson  1 outcome of the war on their territories.  Lord  2 Dorchester, in addressing the assembled Indians said:  3  4 "You have told me there were people who say,  5 that the King, Your Father, when he paid peace  6 with the United States, gave away your lands to  7 them.  8 Brothers,  9 I cannot think that the Government of the  10 United States would hold that language; it must  11 come from ill-informed individuals; you know  12 well, that no man can give, what is not his  13 own.  14 When the King made peace and gave independence  15 to the United States, he made a treaty in which  16 we marked out a line between them and him; this  17 implies no more than that beyond this line he  18 would not extend his interference...  19 The King's rights with respect to your  20 territory were against the Nations of Europe;  21 these he resigned to the States.  But the King  22 never had any rights against you but to such  23 parts of the Country as had been fairly ceded  24 by yourselves with your own free consent by  25 Public convention and sale.  How then can it  26 be said that he gave away your lands?  27  28 Now, my lord, it is our submission that Lord  29 Dorchester was an honourable man.  He was not only an  30 honourable man, in this statement he also demonstrated  31 that he had a sound grasp of the common law.  We say  32 that within that statement is an affirmation of what  33 we say are the fundamental principles of the common  34 law.  He goes on:  35  36 "So careful was the King of your interests, so  37 fully sensible of your rights, that he would  38 not suffer even his own people to buy your  39 lands without being sure of your free consent  40 and of ample justice being done you.  He  41 therefore ordered his Superintendent General,  42 Sir William Johnson, the father of your friend,  43 to be present at all treaties between you and  44 his colonial Government to see that you were  45 fairly dealt with; bargains with private  46 individuals were forbid, and considered as  47 void." 24111  Submissions by Mr. Jackson  1  2 And we say this is again an authoritative assertion by  3 a representative of the Crown of the position  4 governing relationships between Indian Nations and the  5 Crown.  We say, my lord, that it is particular  6 authority because it is mirrored in turn by similar  7 assertions made by American commissioners much -- at  8 much the same time.  9 Page 347.  The legal proposition that the  10 assertion of sovereignty by a European power did not  11 negate the pre-existing proprietary interests of the  12 indigenous population and the treaties between  13 European nations regarding territory in North America  14 did not derogate from the rights of the Indian Nations  15 was also affirmed in a speech of the Commissioners of  16 the United States made in 1793 on the American side of  17 the Detroit River by the Commissioners of the United  18 States.  These Commissioners addressed the same  19 assembly of the Confederated Indian Nations who had  20 been addressed by Lord Dorchester.  They dealt with  21 similar concerns of the Indian Nations regarding the  22 effect of Anglo-American negotiations on their  23 territories and confirmed Lord Dorchester's  24 interpretation that the Treaty of Versailles only  25 dealt with the rights of the European nations as  26 between themselves.  Referring to the King's rights,  27 the Commissioners stated:  28  29 "...As he had not purchased the Country of you,  30 of course he could not give it away.  He only  31 relinquished to the United States his claim to  32 it.  That claim was founded on a right acquired  33 by treaty, with other White Nations to exclude  34 them from purchasing or settling in any part of  35 your country; and it is a right which the King  36 granted to the United States.  Before that  37 grant, the King alone had a right to purchase  38 of the Indian Nations any of the lands between  39 the Great Lakes, the Ohio and the Mississippi  40 ... and the King by the Treaty of Peace, having  41 granted this right to the United States, they  42 alone had now the right of purchasing.  So that  43 now, neither the King nor any of his People  44 have any right to interfere with the United  45 States in respect to any part of those lands.  46 Your brothers, the English, know this to be  47 true; and it agrees with the declaration of 24112  Submissions by Mr. Jackson  1 Lord Dorchester, to your deputies at Quebec two  2 years ago."  3  4 At page 348, my lord, the Commissioners, at the end of  5 their speech, speaking on behalf of the President of  6 the United States, restated what they understood to be  7 the legal rights of the Indian Nations and the claims  8 of the Crown and the United States.  9  10 "We now concede this great point; we by the  11 express authority of the President of the  12 United States, acknowledge the property or  13 right of soil, of the great Country above  14 described, to be in the Indian Nations so long  15 as they desire, to occupy the same.  We only  16 claim particular tracts in it, as before  17 mentioned, and the right granted by the King,  18 as above stated, and which is well known to  19 the English and Americans, and called the  20 right of pre-emption, or the right of  21 purchasing of the Indian Nations disposed to  22 sell their lands, to the exclusion of all  23 other White People whatever."  24  25 Now, the significance of that passage, my lord, is  26 that those very propositions are the propositions  27 which Chief Justice Marshall in a series of case  28 decided in the 1820s and '30s, stated to be the  29 fundamental principles of the common law; that the  30 assertion of sovereignty by European nation only gives  31 right of pre-emption against other European nations,  32 it is a right to purchase of the Indian Nations those  33 lands they are disposed to sell.  And of course, my  34 lord, that is also the fundamental propositions which  35 we say is reflected in the Royal Proclamation.  And so  36 on both sides of the border, on the American side and  37 on the British side, we have ringing declarations of  38 the rights of the Indians enunciated by  39 representatives of the Crown which reflect what was  40 happening on the ground but, more important, which  41 reflect what we say are the fundamental principles  42 which had been evolving and which had by this time  43 ripened into rules of the common law.  And the  44 symmetry, my lord, of the principles is not  45 happenstance, it is a symmetry which reflects the fact  4 6 that they are common principles emerging from a common  47 heritage.  And as Chief Justice Marshall says in 24113  Submissions by Mr. Jackson  1 Worcester v. Georgia and as Mr. Justice Gwynne  2 re-affirms in his judgment in the St. Catherine's  3 Milling case, those principles were a common set of  4 principles in both American and the British colonies.  5 My lord, for your note, at the first quote from the  6 American Commissioners, which is not referenced, the  7 top of page 348, that is at page 408 of Exhibit 1029  8 tab 24.  9 THE COURT:  Yes, that's mentioned here.  10 MR. JACKSON:  That's for the second quote, my lord.  If you go  11 to the very top of the page 348, that should be page  12 408, and the second quote is 408 to 409.  13 THE COURT:  Thank you.  14 MR. JACKSON:  I want to turn now, my lord, to the experience in  15 Upper Canada.  And at page 348, we say that in 1791  16 the Province of Quebec was divided into two separate  17 provinces.  In the 1791 Constitution Act, in providing  18 the 10,000 or so Loyalist settlers of Western Quebec  19 now Upper Canada, with among other things, an elected  20 Assembly and English property laws, did not affect the  21 manner in which the lands were to be acquired for  22 settlement.  The lands in possession of the Indians  23 had to be purchased from them in accordance with the  24 principle of consent is clear from the despatch from  25 the Lieutenant-Governor of Upper Canada, John Simcoe,  26 to the Secretary of State for the Home Office.  Simcoe  27 was anxious for the Secretary's directions, it appears  28 to me to be of infinite importance to the Prosperity  29 of colony of Upper Canada to purchase a tract of Land  30 from the Indians of which I shall subjoin a more  31 particular description.  And that tract, which lay on  32 Lake Huron, is marked on a map which Simcoe included  33 in his despatch, which he described in the following  34 terms:  35  36 "I do myself the Honour of enclosing to you a  37 Sketch of part of Upper Canada by which you  38 will see where the Indian Title is extinct by  39 British purchases and where it exists in its  40 original possessors...."  41  42 At the bottom of the page:  On the map itself, the --  43 and that is page 118 to 119 of Exhibit 1029-25, my  44 lord.  On the map itself, the lands purchased from the  45 Indians represent the various tracts acquired by the  46 Crown between 1783 and 1790; the Indian lands covered  47 the rest of that part of Upper Canada shown on the 24114  Submissions by Mr. Jackson  1 map, basically up to the North Shore of Lake Huron.  2 And we say that when Governor Simcoe wrote of  3 preserving unceded Indians lands from encroachment, he  4 had in mind the provisions of the Royal Proclamation.  5 And we cite there the response which the  6 Surveyor-General of Upper Canada made, Joseph Brant,  7 who applied for certain grants on Burlington Bay and  8 was informed that those lands are not purchased from  9 the Mississauga Nation, and that the King's  10 Proclamation in 1763 totally prohibits any of His  11 Majesty's Subjects from settling on Indian Lands, and  12 that correspondence was previously referred to by Mr.  13 Rush at page 277 of his submissions earlier in the  14 volume you have before you, my lord.  15 The area in which Captain Brant had unsuccessfully  16 sought a land grant, Burlington Bay, was also an area  17 in which there was a series of contested claims to  18 lands, the resolution of which illustrates the effect  19 of a Crown grant of unsurrendered Indian lands.  In  20 1784, the lands around Burlington Bay, along with most  21 of the Niagara Peninsula, had, as we have already  22 seen, been purchased by the Crown from the Mississauga  23 Indians.  By 1792, most of the lake front areas had  24 been surveyed and lots granted to Loyalist settlers by  25 the Land Board by the District of Nassau.  But as lots  26 near Burlington Bay were parcelled out, it became  27 clear that the description of the lands surrendered in  28 1784 was erroneous and that lands which had been  29 granted were not included within the original cession.  30 And therefore in December 1792, Governor Simcoe  31 obtained a fresh deed from the Mississaugas which  32 explained and confirmed the original cession and  33 established a line drawn northwest from the outlet of  34 Burlington Bay for a distance of 50 miles as the  35 eastern boundary.  An issue arose as to the legal  36 status of the lands already granted in the areas not  37 included in the original 1784 Deed of Cession.  And at  38 the bottom of the page, my lord, I go on to recite how  39 that issue is resolved.  40 The acting Surveyor-General addressed this issue  41 of the validity of grants made in the disputed area  42 and expressed the following opinion:  43  44 "A short time after the purchase was extended to  45 a northwest line from the outlet of Burlington  46 Bay, His Excellency the Lieutenant-Governor  47 directed information to be given to the 24115  Submissions by Mr. Jackson  1 Gentlemen claiming Lands on the North side of  2 the said Bay, saying he had not the least  3 objection to their having these lands, but they  4 must petition the Council for their Grants, as  5 they could not hold them by any former  6 assignments made by the Land Board for that  7 place, they being illegal when given owing to a  8 mistake in the original deed."  9  10 In other words, these were applications for lands  11 which were not included in the original deed.  And  12 therefore the land grant, in making grants, had no  13 jurisdiction to do so.  14 In October of 1796, the Joneses, Augustus and  15 Ebeneezer, petitioned the Executive Council for  16 confirmation after their original assignments from the  17 Land Board of Nassau.  The same lands had been the  18 subject of a further grant in June of 1794 to the  19 McDonells.  The Executive Council ruled in favour of  20 the earlier grant on the following ground:  21  22 Reference being had to the Surveyor-General's  23 Report by which it appears that the lot ...  24 originally granted to the Jones's ... falls  25 within the land allowed by the Messessagues to  26 have been purchased from them in 1784, and  27 consequently within the jurisdiction of the  28 Land Board.  29  30 In other words, this was a grant which was within the  31 original cession and therefore this was a valid prior  32 grant which took precedence.  33 But in other cases in which there was a dispute  34 between those claiming under a grant between 1784 and  35 1792, and those claiming under a post-1792 grant, the  36 Council ruled in favour of the later grantee on the  37 basis that the former could not receive a valid title  38 from the Crown, the lands at the time not being within  39 the jurisdiction of the Land Board, because they were  40 not included in the original cession of 1784.  41 Now, my lord, again is this consistent with Mr.  42 Steele's characterization all this was a mere matter  43 of policy?  This has nothing to do with legal  44 recognition of land rights, this meticulous attention  45 to the legal niceties and technicalities of the  46 validities of the routes of title derived from Indian  47 deeds.  We say again it bespeaks only an infusion of 24116  Submissions by Mr. Jackson  1 legal recognition of pre-existing legal rights.  2 In December 1794, Lord Dorchester issued  3 additional instructions to the Superintendent General,  4 Sir John Johnson, which elaborated in considerable  5 detail on the purchase procedure set out in the Royal  6 Proclamation.  These additional instructions were  7 necessitated by some examples we have already  8 documented of sloppy drafting of some of the earlier  9 deeds.  For example, the so-called Toronto purchase.  10 Lord Dorchester, in a letter to the Secretary of  11 State, noted that these new instructions were also  12 necessary because of the dissatisfaction of the  13 Indians with regard to persons who had taken  14 possession of lands which were still claimed by them.  15 Lord Dorchester indicated that these new instructions  16 would require officers of the Crown:  17  18 To attend all such purchases to see that all  19 the principal Chiefs are present, and the  20 bargain made with persons duly authorized on  21 the part of the provincial government, the  22 whole to be conducted with the ancient  23 solemnity as practised by the late Sir William  24 Johnson and according to the King's  25 instructions.  26  27 And those articles, my lord, are set out at page 353  28 and page 354.  I would refer you specifically to  29 Article III and IV at page 354.  Article III says:  30  31 "All purchases are to be made in Public Council  32 with great solemnity and ceremony, according to  33 the ancient usages and customs of the Indians.  34 The Principal Chiefs and Leading Men of the  35 Nation or Nations to whom the Lands belong,  36 being first assembled.  37  38 After explaining to the Indians the nature and  39 extent of the bargain, the situation and bounds  40 of the Land and price to be paid, regular Deeds  41 of Conveyance, original, duplicate and  42 triplicate are to be executed in Public Council  43 by the Principal Indian Chiefs and Leading Men  44 on the one part, and the Superintendent-General  45 of the Indian Department..."  46  47 Again, my lord, the reference to duplicate, triplicate 24117  Submissions by Mr. Jackson  1 deeds is, we submit, a reference not to policy but to  2 legal requirements.  We say that these regulations  3 were not limited to Upper Canada.  At the time of  4 their issuance in 1794, Lord Dorchester was not only  5 governor of Upper and Lower Canada, but also  6 Commander-in-Chief of His Majesty's forces and  7 Governor of New Brunswick and Nova Scotia.  We will be  8 addressing separately at a later point today the  9 colonial record in the Atlantic Provinces.  10 Article II of these instructions is expressed in  11 broad terms, not limited to any particular province.  12 It requires that:  13  14 "When Indian Territory shall be wanted by any of  15 the King's Provinces..."  16  17 My lord, over to page 355.  18 The legal conclusion that Indian lands not  19 purchased in accordance with the Royal Proclamation of  20 1763, as affirmed by the Dorchester Instructions of  21 1794, were not within the category of waste lands of  22 the Crown open to grant is supported in minutes of the  23 Executive Council of Upper Canada, 1798.  In the  24 course of the report which he presented to Mr.  25 President Russell, John Elmsley, the Chief Justice of  26 Upper Canada, urged, on behalf of the other Council  27 members:  28  29 "The propriety of making an extensive addition  30 to the waste lands of the Crown by purchase  31 from the Indians, before any steps are taken  32 for carrying the plan into execution."  33  34 And Chief Justice Elmsley was anxious to promote such  35 purchases before the Indians found out how much their  36 lands were actually worth and urged that the  37 promulgation of the plan be suspended until we make a  38 purchase sufficiently large to secure to us the means  39 for extending the population and increasing the  40 strength of the province.  41 My lord, with all respect to Chief Justice  42 Elmsley, that comment doesn't seem to be entirely  43 consistent with the honour of the Crown but it is  44 nevertheless consistent with the legal recognition by  45 the Crown of the need for Indian purchases before  46 settlement can proceed.  47 Page 356.  Mr. President Russell, in his reply to 2411?  Submissions by Mr. Jackson  1 the Report of Council, concurred with the idea of  2 suspending the proposed plan until the government had  3 obtained a sufficient stock of land by additional  4 purchases from the Indians to enable us to proceed.  5 He stated that he would request the Governor General  6 to give directions to the proper officers for treating  7 with the Indian proprietors for an immediate purchase  8 from them to the extent of about 20 townships.  In the  9 meantime, the acting Surveyor-General was ordered to  10 prepare for the Council's information a report of the  11 ungranted lands in this province.  12 As Mr. Morrison testified, although the  13 Surveyor-General's report cannot be found in the  14 Archives, some sense of its contents can be gleaned  15 from a map of Upper Canada prepared by the  16 Surveyor-General, published in 1800.  17 The various surveyed townships are shown, among  18 them the Shawnee Township and at Township of London  19 covering those lands acquired from the Chippewas in  20 1796.  On the map a huge tract of land north of Lake  21 Simcoe, extending to what is now northeastern Ontario  22 is identified as Chippewa Hunting Territory.  23 What that suggests, my lord, to me in relation to  24 your previous question is that some of those earlier  25 cessions were for townships and some of them obviously  26 were for hunting territories.  So the cessions I think  27 were a combination of both types of Indian lands.  28 A final piece of evidence demonstrating the Crown  29 officials did not understand unceded Indian lands to  30 be within the jurisdiction of the province to grant is  31 a Report of the Vacant Lands in Upper Canada prepared  32 by the Surveyor-General in 1815.  The Surveyor-General  33 had been requested to report upon all such vacant  34 lands of the Crown in this province as may be most  35 eligibly selected and divided for grants of land to  36 military settlers at the close of the 1812 War with  37 the United States and to industrious families  38 emmigrating from Europe.  39 Annexed to that report is a sketch of the province  40 showing the situation of the Districts with their  41 respective townships, and by a line coloured brown,  42 note the limits of the Indian cessions to the Crown,  43 so far as they are known to this office.  A perusal of  44 the sketch shows that all of the townships, as well as  45 the additional vacant lands eligible for grant, fall  46 within the limits of the Indian cessions to the Crown.  47 The Surveyor-General, having set out the 24119  Submissions by Mr. Jackson  1 categories of land which are available for grant,  2 because they had been the subject of Indian cessions,  3 then addressed himself to certain tracts of lands yet  4 in possession of the Native Indians and unconceded,  5 but which from their contiguity to our former  6 possession, may be considered as desirable  7 acquisitions for future extensive settlements.  8 In identifying these lands, he refers to them as  9 lands of which the Indian rights have not been  10 extinguished.  11 We say, my lord, that Lord Dorchester's additional  12 instructions in 1794 confirmed the legal principle and  13 process mandated for the acquisition of Indian lands,  14 Indian consent expressed through treaty.  That  15 principle and process remained fundamental in the  16 future development of what is now Ontario.  At each  17 stage of the advance of the settlement frontier, the  18 lands required for settlement were purchased from the  19 Indian Nations through the treaty process.  And I have  20 referred your lordship already to Exhibit 1207 which  21 sets out the major treaties in this period.  22 The implementation of the principles of process  23 embodied in the Royal Proclamation and the extent to  24 which it was applied with the advance of westward  25 settlement is summarized in the Report of the Royal  26 Commission appointed by the Government of the Province  27 of Canada to inquire into the Affairs of the Indians  2 8 in Canada.  29 And the commissioners, in referring to the Royal  30 Proclamation of 1763, stated:  31  32 "The subsequent Proclamation of His Majesty  33 George III, issued in 1763, furnished them (the  34 Indian Nations) with a fresh guarantee for the  35 possession of their hunting grounds and the  36 protection of the Crown.  This document, the  37 Indians look upon as their Charter.  They have  38 preserved a copy of it, to the present time,  39 and have referred to it on several occasions in  40 their representations to the Government."  41  42 The Committee summarized this period from 1763 to  43 1845:  44  45 "Since 1763 the Government adhering to the Royal  46 Proclamation of that year, have not considered  47 themselves entitled to dispossess the Indians 24120  Submissions by Mr. Jackson  1 of their lands, without entering into an  2 agreement with them, and rendering them some  3 compensation.  For a considerable time after  4 the conquest of Canada, the whole of the  5 western part of the Upper Province, with the  6 exception of a few military posts on the  7 frontier, and a great extent of the eastern  8 part, was in their occupation.  As the  9 settlement of the country advanced, and the  10 land was required for new occupants, or the  11 predatory and revengeful habits of the Indians  12 rendered their removal desirable, the British  13 Government made successive agreements with them  14 for the surrender of portion of their lands."  15  16 I will conclude this review of the prospective  17 application of the Proclamation by reference to the  18 Crown's dealings with the Six Nations of Iroquois  19 Confederacy in the post-Proclamation period.  We have  20 already addressed parts of that history culminating in  21 the Treaty of Fort Stanwix in 1768 and the fixing of  22 the Proclamation Line, but it is also necessary to  23 consider subsequent developments in the years after  24 the American Revolution.  At the outbreak of the  25 American Revolution in 1775, the Six Nations were  26 unable to reach a consensus about the role they should  27 play.  Some of the Mohawks and Senecas and a majority  28 of the Oneidas either maintained a neutral posture or  29 campaigned actively alongside the Americans.  However,  30 many other members of the Confederacy eventually  31 allied themselves to the British cause, upon giving  32 the assurances by the Governors of Quebec, Sir  33 Carleton and later Sir Frederick Haldimand, that their  34 rights and property in western New York would be fully  35 restored after the War.  36 When hostilities terminated, those members of the  37 Six Nations who had honoured their alliance with Great  38 Britain were anxious to have their lands and rights  39 restored.  To their great dismay, they discovered that  40 the Treaty of Versailles in 1783, which brought the  41 war to its conclusion, made no mention of the rights  42 of the Indians.  Joseph Brant, a leading Mohawk Chief  43 who had been educated at white schools and had  44 received a commission in the British army in 1783,  45 made known the Iroquois concerns in a speech addressed  46 to Governor Haldimand.  In that speech, Joseph Brant  47 traced the historical origins of the Iroquois' 24121  Submissions by Mr. Jackson  1 alliance with the British in the Covenant Chain and he  2 described the Royal Proclamation as the culmination of  3 that process in ways which parallel the ways in which  4 the plaintiffs have urged upon your lordship that the  5 Royal Proclamation is the culmination and confirmation  6 of a pre-existing process and reflects fundamental  7 principles.  Joseph Brant said:  8  9 "Brother, we, the Mohawks, were the first Indian  10 Nation that took you by the hand like friends  11 and brothers, and invited you to live amongst  12 us, treating you with kindness upon wore  13 debarkation in small parties.  The Oneidas, our  14 neighbours, who are equally well-disposed  15 towards  you and as a mark of our sincerity and  16 love towards you we fastened your ship to a  17 great mountain at Onondaga, the Center of our  18 Confederacy, the rest of the Five Nations  19 approving of it.  We were then a great people,  20 conquering all Indian Nations around about us,  21 and you in a manner but a handful, after which  22 you increased by degrees and we continued your  23 friends and allies, joining you from time to  24 time against your enemies, sacrificing numbers  25 of our people and leaving their bones scattered  26 in your enemies country.  At last we assisted  27 you in conquering all Canada, and then again,  28 for joining you so firmly and faithfully, you  29 renewed your assurances of protecting and  30 defending ourselves, lands and possessions  31 against any encroachment whatsoever, procuring  32 for us the enjoyment of fair and plentiful  33 trade of your people, and sat contented under  34 the shade of the Tree of Peace, tasting the  35 favour and friendship of a great Nation bound  36 to us by Treaty, and able to protect us against  37 all the world."  38  39 And, my lord, your lordship will see in that  40 description the language, the metaphor, and the  41 discourse of Chief Cansatago (ph.) addressing the  42 British at the Congress of Lancaster in 1774.  43 Brant then reviewed the post-Proclamation period  44 and the establishment of the Proclamation boundary  45 between white settlements and at Iroquois hunting  46 territories.  47 24122  Submissions by Mr. Jackson  1 "Wherefor, we on our side have maintained an  2 uninterrupted attachment towards you, in  3 confidence and expectation of a Reciprocity,  4 and to establish a Perpetual Friendship and  5 Alliance between us, of which we can give you  6 several instances, to wit, when a few years  7 after the Conquest of Canada, your people in  8 this country thought themselves confined on  9 account of their numbers with regard to a  10 Scarcity of Land, we were applied to for giving  11 up some of ours, and fix a Line or mark between  12 them and Us.  We considered upon it, and  13 relinquished a great Territory to the King for  14 the use of his Subjects, for a Trifling  15 consideration, merely as a Confirmation of said  16 Act and as a proof of our sincere regard  17 towards them.  This happened so late as the  18 year 1768 at Fort Stanwix..."  19  20 Brant requested clarification of Haldimand as to  21 whether the Six Nations were included in the Treaty of  22 Peace with the Americans as faithful allies and  23 whether their ancient lands were to be secured to  24 them.  In the following months, Brant pressed the  25 British for lands on the Canadian side of the border  26 for those members of the Six Nations who chose not to  27 return to their home lands on the American side.  28 Brant sought a large grant from the Valley of the  29 Grand.  Bottom of the page, my lord.  Haldimand,  30 responding to that request, instructed the Lieutenant  31 Colonel Butler to purchase the lands required from the  32 Mississauga Indians.  33 The point here, my lord, is the Iroquois come to  34 Canada leaving their home lands, they request lands in  35 Canada.  Those lands are lands which are within the  36 proprietorship of the Mississauga Indians.  The Crown  37 arranges for a cession from the Mississauga to the  38 Crown in order to make a grant to the Six Nations.  39 On May 22, 1784, at a meeting held in Niagara,  40 attended by the Six Nations, the -- that's congress we  41 previously referred to, the Mississauga announced  42 their willingness to transfer the sought after  43 territory to the Six Nations and an indenture was  44 drawn up in accordance with the provisions of the  45 Royal Proclamation whereby the chiefs of the  46 Mississauga ceded to the Crown the designated lands.  47 And then, my lord -- 24123  Submissions by Mr. Jackson  1 MR. WILLMS:  My lord, the references on these three pages to  2 Johnson are all references to an exhibit that's only  3 been marked for identification.  It doesn't say that  4 when this all starts on page 360, but it's Johnson,  5 the Valley of the Six Nations, Exhibit 1249-11 and our  6 note is that all of Volume 1249 has only been marked  7 for identification.  8 THE COURT:  What was the reference 1249?  9 MR. JACKSON:  11, my lord, it is at page 360 of the text.  10 THE COURT:  Yes.  All right, thank you.  11 MR. JACKSON:  In October 1784, my lord — I should tell you that  12 reference, my lord, Johnson in the Valley of the Six  13 Nations is a standard historical text which brings  14 together all of the relevant historical documents  15 relating to this particular period, but my friend is  16 correct, it has only been marked for identification at  17 this point.  18 In October 1784, having obtained a cession from  19 the Mississaugas.  Governor Haldimand, by a  20 Proclamation, formally granted the Grand River tract  21 to the Six Nations and the terms of the grant are set  22 out at page 363.  And it is important to realize, my  23 lord, that these are not lands held by the Iroquois by  24 virtue of aboriginal title.  These are lands which are  25 granted to them which were originally lands held by  26 aboriginal title by the Mississaugas, so the Six  27 Nations in terms of their lands within Canada are the  28 recipients of a Crown grant.  29 This original tract granted to the Iroquois  30 encompass some 57,000 acres.  By 1795, close to 2,000  31 of the Iroquois had settled in small tribal villages  32 along the shores of the Grand River.  33 THE COURT:  Does anybody know where the Grand River is?  34 MR. JACKSON:  Southwestern Ontario, my lord.  35 THE COURT:  Thank you.  36 MR. JACKSON:  I am advised by my friend, Mr. Rush, that it runs  37 through Kitchener and Waterloo.  3 8 THE COURT:  Thank you.  39 MR. JACKSON:  The Haldimand grant soon posed problems for  40 colonial authorities in that not only were the exact  41 boundaries ill-defined but Brant viewed the grant as  42 entitling the Six Nations to alienate the land to  43 third parties.  When John Simcoe arrived in Upper  44 Canada in 1792, as its first Lieutenant-Governor, he  45 was faced with a problem of defining the exact  46 boundaries of the Grand River reserve and this was  47 done in a new surrender with the Mississaugas.  And 24124  Submissions by Mr. Jackson  1 Simcoe, in turn, regranted the lands to the Six  2 Nations.  So you had the Haldimand original grant and  3 the Simcoe regrant in 1793.  4 At the bottom of page 364, Brant, in selling and  5 leasing portions of the 1784 grant, had taken the  6 position that the grant constituted the creation of an  7 estate in fee simple for the Indians and that  8 therefore they were fully entitled to dispose of it as  9 they saw fit.  The sale of Indian lands to third  10 parties without going through the process of surrender  11 to the Crown was contrary to the provisions of the  12 Royal Proclamation and Simcoe's regrant of 1793 sought  13 to re-assert the principles and process of the  14 Proclamation.  And thus, it says:  15  16 It is our Royal will and pleasure that no  17 transfer, alienation, conveyance, sale, gift,  18 et cetera shall at any time be given -- made or  19 given of the said district or territory ... by  20 any of the said Chiefs, Warriors ... but that  21 any such transfer shall be null and void and of  22 no effect whatever ... provided that if at any  23 time the said Chiefs should be inclined to  24 dispose of and surrender their use of interest  25 in the said District ... the same shall be  26 purchased for Us at some public meeting or  27 assembly of the chiefs to be holden for the  28 purpose of the governor.  29  30 In other words, the land was granted to the Six  31 Nations on condition that the provisions of the Royal  32 Proclamation be adhered to and, if the Six Nations  33 wished to transfer any rights to third parties, they  34 had to do so by surrendering the land back to the  35 Crown and the Crown would then authorize the sale.  36 And the Simcoe Patent tracks the language of the Royal  37 Proclamation.  38 Despite these provisions, however, Joseph Brant  39 continued to sell and lease Indian lands to white  40 settlers in order to provide the Iroquois treasury  41 with additional sources of income to supplement the  42 hunting and agricultural economy.  What followed, my  43 lord, was a series of validations by the Crown of  44 these grants which were made in violation of the  45 Proclamation.  46 At page 366.  Problems continued to arise in  47 relation to the Grand River reserve; for example, in 24125  Submissions by Mr. Jackson  1 1819 the Six Nations took issue with certain grants  2 made to settlers in relation to land which they  3 claimed to be within the limits of their reserve.  The  4 Six Nations complained to the Imperial Government that  5 these lands were within the original Haldimand grant.  6 The reply of Lord Bathurst was to the effect that the  7 lands in dispute were not within the reserve because  8 at the time of the grant these lands had not been  9 purchased from the Indians and therefore were not  10 within the Crown's power to grant to the Six Nations.  11 Lord Bathurst said:  12  13 "It is evident from the Proclamation (the  14 Haldimand Proclamation of October 1784) that  15 the land which General Haldimand intended to  16 assign to the Indian Nations, was that which  17 the colonial government had a few months before  18 purchased from other Indian Nations resident in  19 the Province of Canada; and that whatever  20 disposition he may be presumed to have had to  21 confer advantages on the Five Nations by giving  22 them lands belonging to His Majesty, he could  23 not intend (for he had not the power) to make  24 over any Indian Lands to which His Majesty had  25 not then acquired a title.  The description  26 therefore of the Land which is given in the  27 close of the Proclamation must be taken with  28 reference to what the King had at the time a  29 power to grant."  30  31 And this response we say, my lord, parallels the  32 position taken by the District Land Boards and the  33 Executive Council in relation to the disputed lands --  34 disputed titles on the Burlington Bay which had also  35 been the subject of purchases from the Mississaugas.  36 Although the surrender to the Crown in 1798 of  37 lands which had been previously sold to private  38 individuals had been intended to bring an end to the  39 private sale of reserve lands, these continued to be  40 made and it was not until 1835 that many of these  41 titles were confirmed by the government.  And we say  42 in relation to this period, my lord, the bottom of  43 page 367, that, in relation to these lands, the Crown  44 acted throughout in accordance with the conditions set  45 out in the Royal Proclamation of 1763, first requiring  46 the surrender of lands to the Crown and then granting  47 them to the private parties who had bought them from 24126  Submissions by Mr. Jackson  1 the Indians.  A final surrender of land from the Grand  2 River reserve was made to the Crown in 1841, as a  3 result of which the Six Nations retained some 20,000  4 acres, and that reflects, my lord, the present  5 reserves of the Six Nations within Canada.  6 Now, I wish to turn now to the period from 1850 to  7 1867, in what is the combined province of Canada.  In  8 Upper Canada, treaty making continued to be the  9 exclusive means by which the Crown acquired Indian  10 lands required for settlement and development.  11 However, whereas most treaties prior to 1850 were for  12 relatively small areas of land, the post-1850 treaties  13 dealt with considerably larger areas.  The Robinson  14 treaties of 1850 are of especial legal significance in  15 the -- they refer to as the Robinson Treaties, my  16 lord, because of the commissioner who negotiated them.  17 The Robinson Treaties of 1850 are of especial legal  18 significance in the pre-Confederation era insofar as  19 they provided precedents for the so-called numbered  20 treaties negotiated in western Canada, the Northwest  21 Territories and northern Ontario in the  22 post-Confederation period.  In 1846, after the  23 discovery of minerals along the north shores of Lakes  24 Huron and Superior, the Ojibway Indians petitioned the  25 Governor of Canada, asking that no mining development  26 take place until after suitable arrangements had been  27 made with them.  As a result, the government of the  28 late Province of Canada, deemed it desirable, to  29 extinguish the Indian title, and in order to that end,  30 in the year 1850, entrusted the duty to the late  31 Honourable William B. Robinson who discharged his  32 duties with great tact and judgment, and succeeding in  33 making two treaties, which were the forerunners of the  34 future treaties and shaped their course.  35 My lord, that quote comes from a publication by  36 Alexander Morris, who in fact negotiated the first  37 numbered treaties and who in 1880 put together a  38 volume entitled "The Treaties of Canada with the  39 Indians" which describes the treaty-making in Canada  40 including the numbered treaties in which he  41 participated and the Robinson Treaties, and that is  42 Exhibit 1246-1 which I believe again is an Exhibit for  43 Identification.  It's not.  Oh, that's out of an  44 abundance of caution.  It is an exhibit.  I will at  45 some point be taking you to that exhibit, my lord, but  46 I think that can wait until after the lunch break.  47 The Robinson Superior Treaty and the Robinson 24127  Submissions by Mr. Jackson  1 Huron Treaty were both negotiated at an open and  2 public meeting in accordance with the principles and  3 the fundamental principles set out in the Royal  4 Proclamation.  Under the terms of the treaties that  5 were exempted from the cessions to the Crown a number  6 of specified reserves to be held and occupied by the  7 said chiefs and their tribes in common for the purpose  8 of residence and cultivation.  And the treaties  9 provided for annuities to be paid to each member of  10 the tribe with the Chiefs and principal men receiving  11 greater amounts.  A special feature of the Robinson  12 Treaties was the adjustment of a claim made by the  13 Indians to be paid by the amount received by the  14 Government for the sale of mining locations.  This was  15 arranged by the Treaty Commissioner who agreed to pay  16 the Indians the sum of L4,000 and an annuity of about  17 LI,000.  A final provision in the Treaty guaranteed to  18 the Indians the full and free privilege to hunt over  19 the territory now ceded by them, and to fish in the  20 waters thereof, as they have heretofore been in the  21 habit of doing, saving and excepting such portions of  22 the said territory as may from time to time be sold or  23 leased to individuals or -- of individuals and  24 occupied by them with the consent of the provincial  25 government.  And, my lord, you may recall when I dealt  26 with some of the early treaties in the 17th century on  27 the Eastern Seaboard, I draw your Lordship's attention  28 to the reservations in those treaties of the right to  29 hunt and fish over unoccupied Crown lands and I  30 suggested that they reflected forward to Canadian  31 treaties negotiated in the 19th century and the  32 Robinson Treaties provide that link and continuity as  33 do the numbered treaties to those early treaties  34 negotiated considerable distance in time and place  35 from these Canadian treaties.  And I would draw your  36 attention, in particular, my lord, to the Robinson  37 Treaties, that there was special arrangements made in  38 relation to the value of the territories ceded by  39 reference to their mineral rights.  When we come back  40 to address the test for aboriginal title in the  41 content of aboriginal rights, we will be urging upon  42 your lordship a view of aboriginal rights which is not  43 frozen in time to a particular economic use or benefit  44 to be derived from the territory.  And the earlier  45 reference to mining concessions in these treaties we  46 say reflects an understanding by the Crown that  47 aboriginal rights includes rights to minerals and 2412?  Submissions by Mr. Jackson  1 resources regardless of whether those are rights,  2 which at the time of the cession, were ones which the  3 Indians were making beneficial use after in terms of  4 available technology or available market conditions.  5 That's a point to which I will be coming back later,  6 my lord.  7 THE COURT:  Do I understand the Superior and the Huron Treaties  8 were assigned two days apart from this note at the  9 bottom of page 369?  10 MR. JACKSON:  Yes, my lord.  11 THE COURT:  All right, thank you.  12 MR. JACKSON:  I believe they were.  Page 370.  13 Some years after the completion of the Robinson  14 Treaties, the Government of the old Province of Canada  15 deemed it desirable to effect a treaty with the  16 Indians dealing upon the Great Manitoulin Island.  17 That must be "living upon".  18 THE COURT:  "Dwelling" probably.  19 MR. JACKSON:  "Dwelling" perhaps ... upon the Great Manitoulin  20 Island in Lake Huron, as a complement to the former  21 treaties, with the object of rendering available for  22 settlement the large tract of good land upon the  23 Island.  24 The treaty negotiations were conducted on behalf  25 of the Crown by William McDougall, then  26 Superintendent-General of Indian Affairs.  The Indians  27 of Manitoulin Island were summoned to a public meeting  28 and the Treaty Commissioner explained the wishes of  29 the government in regard to the settlement of the  30 island and proposed the terms for the treaty as  31 specified in the Order of Council authorizing  32 negotiations.  33 As appears from the Treaty Commissioner's Report  34 to the Governor-General, the Indians initially  35 rejected the terms offered them.  As a result of  36 further deliberations, it became apparent to the  37 Treaty Commissioner that the Indians living on the  38 east of the island were unwilling to consent to the  39 cession and as a result, the Treaty Commissioner  40 determined to modify the propositions of the  41 Government, so as to meet in some degree the  42 objections from that quarter.  43 In the event the treaty embraced a cession of only  44 those parts of Manitoulin Island which the Indians  45 were prepared to cede.  46 The treaty negotiations for the cession of  47 Manitoulin Island, we say, provide evidentiary support 24129  Submissions by Mr. Jackson  1 for the proposition that Indian consent was viewed by  2 the Crown as a legal prerequisite to the acquisition  3 of Indian lands for settlement and that the Crown did  4 not claim or exercise a right of expropriation in  5 regard to the Indian lands.  6 And, my lord, when we come to St. Catherine  7 Milling I will ask you to reflect back on this treaty  8 in looking at the way in which Chancellor Boyd  9 characterized these treaties as does Mr. Justice  10 Steele that they were mere policy.  The Crown could  11 have proceeded to settle without regard to a treaty  12 and these treaties do not bespeak any recognition of  13 legal rights on behalf of the Indian peoples.  14 My lord, I now wish to turn to "Treaty Making In  15 The Post-Confederation Period", initially in the  16 period 1867 to 1923.  And as of course your lordship  17 is aware, pursuant to the British North America Act,  18 the Constitution Act 1867, jurisdiction over lands  19 "Indians and Lands Reserved for the Indians" was  20 allocated to the Federal Government.  We say that this  21 constitutional arrangement was a continuation of the  22 principle of central control over Indian affairs which  23 was designed to ensure the discharge of the Crown's  24 protectorate role in safeguarding Indian interests  25 against the competing interests of the local colonial  26 and now provincial settler population.  As we have  27 previously submitted, it was this policy which led to  28 the Imperial government taking charge of Indian  29 Affairs following the breaking of the Covenant Chain  30 in 1753, and it was this policy of Imperial protection  31 which received its fullest expression in the Royal  32 Proclamation of 1763.  33 THE COURT:  I am not sure that I understand that reference to  34 1753.  35 MR. JACKSON:  1753, my lord, was the point we referred to before  36 when Hendrix went to --  37 THE COURT:  Fort George.  38 MR. JACKSON:  Fort George and announced the breach of the  39 Covenant Chain following which the Imperial government  40 issued instructions to the colonial governments.  41 THE COURT:  You are taking his threat as a breach.  42 MR. JACKSON:  Yes, my lord.  43 THE COURT:  Yes, all right.  44 MR. JACKSON:  Perhaps we should say the threatened breach of the  45 Covenant Chain, my lord.  4 6 THE COURT:  Yes.  47 MR. JACKSON:  The continuity of this organizing principle for 24130  Submissions by Mr. Jackson  1 the administration of Indian Affairs is reflected in  2 the Address of the House of Commons to the King, in  3 1834, which states:  4  5 "That His Majesty's faithful Commons in  6 Parliament assembled, are deeply impressed with  7 the duty of acting upon the principles of  8 justice and humanity in the intercourse and  9 relations of this country with the native  10 inhabitants of its colonial settlements, of  11 affording them protection in the enjoyment of  12 their civil rights, and of imparting to them  13 that degree of civilization, and that religion,  14 with which Providence has blessed this nation,  15 and humbly prays that His Majesty will take  16 such measures, and give such directions to the  17 governors and officers of His Majesty's  18 colonies, settlements and plantations, as shall  19 secure to the natives the due observance of  20 justice and the protection of their rights..."  21  22 This address, my lord, is one of the sources cited  23 in the Report of the Select Committee on Aborigines  24 which was laid before the Houses of Parliament in 1837  25 which endorsed the importance of maintaining and  26 affirming the central responsibility for the  27 administration of Indian affairs.  28 And, my lord, just to reflect back on my comments  29 earlier this morning.  The 1768 Report by the Lords of  30 Trade is part of these chain of official recognition  31 that Indian administration, the recognition of Indian  32 rights is a matter of high public importance which  33 should remain with a central authority rather than  34 being diffused amongst colonial governments.  That  35 very point, my lord, is one which is made by Mr.  36 Justice Idington in his judgment in Attorney General  37 of Ontario against Attorney General of Canada, where  38 His Lordship explored some of the reasons for  39 assigning to the Federal Government a centralized and  40 uniformed jurisdiction over Indians and their lands.  41 His lordship said:  42  43 "The case as it presents itself to my mind is  44 that the Dominion was assigned by ... the high,  45 honourable, and onerous duties of the guardians  46 of the many races of Indians then within or  47 that might at any future time fall within the 24131  Submissions by Mr. Jackson  1 borders of Canada."  2  3 The prospective application, my lord, of the  4 B.N.A. Act, we say, is one which also characterizes  5 the prospective application of the Royal Proclamation:  6  7 "...that these duties were to be discharged as  8 occasion called for, having in mind always the  9 peace, order and good government of Canada..."  10  11 And later down, my lord:  12  13 "...these high duties of national importance  14 they were discharged all the better by being  15 freed from the trammels of being confined  16 within the narrow views that the provincial  17 range of vision might have restricted action  18 to, in the needs and wishes of the single  19 province were to be considered, or even the  20 dominant factor used as a guide, perhaps to the  21 detriment of national interests."  22  23 And of course we say that that also furthers and  24 buttresses our argument of the Royal Proclamation is  25 to be viewed as a Proclamation of a higher order as  26 reflecting matters of national concern to the Imperial  2 7 Crown.  28 Between 1871 and 1921, the federal government  29 negotiated what are referred to as the Numbered  30 Treaties.  They are referred to simply because they  31 have a reference number 1, number 2, number 3, it is  32 not a terribly imaginative way of referencing the  33 treaties.  34 THE COURT:  It's not bad.  35 MR. JACKSON:  It is simple, my lord, and perhaps it has  36 something to commend it.  37 THE COURT:  Any order at all is better than none I suppose.  38 MR. JACKSON:  These treaties were made with the Indian Nations  39 in the northern and western parts of Canada.  And in  40 1923 a further series of treaties were negotiated to  41 deal with the last large areas of unceded land in  42 southern Ontario.  We say that in negotiating and  43 concluding these treaties, the federal government  44 re-affirmed fundamental principles and policies  45 governinging Indian Crown relationships in recognizing  46 that there was a legal obligation on the Crown to  47 obtain, through the treaty protocol, Indian consent 24132  Submissions by Mr. Jackson  1 for the settlement and development of lands in the  2 possession of the Indians.  The continuity of this  3 policy, we say, is accurately summarized in the  4 following passage taking from Mr. Harper's "Canada's  5 Indian Administration:  the Treaty system:  6  7 "The policy followed by Canada in the North-West  8 was a continuation of that which had governed  9 the relations between the Whites and the  10 Indians since the days of Sir William Johnson.  11 Western Indian history was merely the  12 application of these well-founded principles to  13 a new problem, the acknowledgement of the  14 Indian title, and the formal negotiation for  15 the surrender of the same."  16  17 Now, my lord, perhaps I could just go for a few  18 more minutes to get to the point where I would start  19 with the first numbered treaty.  20 THE COURT:  I think you should finish the next paragraph.  I  21 think madam reporter has had a long morning.  22 MR. JACKSON:  Okay, as your lordship wishes.  It may be then I  23 should finish at this point because the next section  24 would take five minutes.  25 THE COURT:  Before we go, is there a list of the identification  26 of the 11 numbered treaties somewhere?  I am sure  27 there is.  28 MR. JACKSON:  Yes, my lord, there is.  29 THE COURT:  Perhaps that could be given an indication where it  3 0 is sometime.  31 MR. JACKSON:  Yes.  32 THE COURT:  All right.  Two o'clock.  Thank you.  33 THE REGISTRAR:  Order in court.  Court stands adjourned until  34 two o'clock.  35  36 (PROCEEDINGS ADJOURNED AT 12:30 p.m.)  37  38 I hereby certify the foregoing to be  39 a true and accurate transcript of the  40 proceedings herein, transcribed to  41 the best of my skill and ability  42  43  44  45  46 TANNIS DEFOE, Official Reporter  47 United Reporting Service Ltd. h2 24133  Submissions by Mr. Jackson  1 Submissions by Mr. Jackson  2 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  3  4 THE REGISTRAR: Order in court.  5 THE COURT:  Mr. Jackson.  6 MR. JACKSON:  Yes, my lord.  My lord, there was just one point  7 arising from before the lunch that I would refer your  8 lordship to, and your lordship doesn't have to get the  9 exhibit, but it's Exhibit 1256, tab 35, and that is an  10 opinion, my lord, of the solicitor to the Department  11 of Indian Affairs addressed to the crown and land  12 department which form the basis of a report to the  13 executive council of Canada that was signed by John A.  14 MacDonald which expresses the opinion that the  15 Proclamation applied to lands within what was then  16 Canada and had the effect of avoiding any grants made  17 in disregard of the Proclamation's terms.  18 THE COURT:  Where should it most conveniently be inserted into  19 your outline, please?  20 MR. JACKSON:  Perhaps I could advise you of that at the break,  21 my lord.  22 THE COURT:  Yes.  23 MR. JACKSON:  I was at page 374 —  2 4 THE COURT: Yes.  25 MR. JACKSON:  — my lord, and I had just quoted from Mr.  26 Harper's  statement that the application of the  27 Proclamation and the treaty making in Canada in the  28 years after Confederation were part of a continuous  29 process of treaty making in accordance with the  30 principles of acknowledgement of the Indian title and  31 obtaining the surrender thereof through a process of  32 consent.  33 I want now to turn to the first days of  34 Confederation, and I make the point that further  35 Imperial and constitutional affirmation was given to  36 the continuing legal obligation of the federal  37 government to negotiate with Indian nations for the  38 acquisition of their lands required for settlement.  39 And I refer to Rupert's Land Act 1868, whereunder  40 the Imperial Parliament enabled Her Majesty to accept  41 a surrender, upon terms, of the lands, privileges, and  42 rights of the Hudson's Bay Company.  Section 5 of that  43 Act gave the crown power, by Order-in-Council, to  44 declare that Rupert's Land be admitted as part of the  45 Dominion of Canada.  Section 146 of the Constitution  46 Act 1867 had also allowed for the admission of  47 Rupert's Land into the Union, stating that: 24134  Submissions by Mr. Jackson  1  2 "And the provisions of any Order-in-Council in  3 that behalf shall have effect as if they had  4 been enacted by the Parliament of the United  5 Kingdom of Great Britain..."  6  7 On November 19th, 1869, the Hudson's Bay Company,  8 by deed, surrendered all its rights to the crown and  9 by Imperial Order-in-Council it was ordered that  10 Rupert's Land was to become part of Canada:  11  12 "...upon the following terms and conditions,  13 being the terms and conditions still remaining  14 to be performed of those embodied in the said  15 second Address of the Parliament of Canada, and  16 approved by Her Majesty as aforesaid."  17  18 And section 14 of that document says:  19  20 "Any claims of Indians to compensation for lands  21 required for purposes of settlement shall be  22 disposed of by the Canadian Government in  23 communication with the Imperial government;"  24  25 My lord, the Order-in-Council had been preceded by  26 two Addresses presented to Her Majesty, and the first  27 Address prayed for the transfer of Rupert's Land to  28 Canada, and stated:  29  30 "...that, upon the transference of the  31 territories in question to the Canadian  32 Government, the claims of the Indian tribes to  33 compensation for lands required for purposes of  34 settlement will be considered and settled in  35 conformity with the equitable principles which  36 have uniformly governed the British crown in  37 its dealings with the aborigines."  38  39 In both the resolutions and the second Address,  40 the Senate and House of Commons approved the terms of  41 the agreement between the government of Canada and the  42 Hudson's Bay Company relating to the transfer.  Among  43 those provisions it was repeated that:  44  45 "It is understood that any claims of Indians to  46 compensation for lands required for purposes of  47 settlement shall be disposed of by the Canadian 24135  Submissions by Mr. Jackson  1 Government in communication with the Imperial  2 government."  3  4 My lord, all these documents are set out in Native  5 Rights in Canada, Cumming and Mickenberg, and they  6 also are extensively referred to in the provincial  7 defendant's argument.  8 We say, my lord, that this affirmation of the  9 rights of the Indians to their lands and the  10 obligation to negotiate the cession of those lands is  11 of special significance insofar as it is incorporated  12 in the Imperial Order-in-Council which is expressly  13 stated to have the same effect as if it had been  14 enacted by the Parliament of Great Britain.  And that  15 was the conclusion drawn by Mr. Justice Morrow in the  16 Paulette case.  17 My lord, at page 377 --  18 THE COURT:  But, Mr. Jackson, if, assuming for the purposes of  19 the debate, that Canada had always dealt with Indians  20 in what might be described as --  21 MR. JACKSON:  The equitable principles.  22 THE COURT:  -- the equitable principles, and then Canada in its  23 wisdom decided that any particular case it was going  24 to deal with it differently, would you say that Canada  25 could not do that?  Let's put it at its highest, and  26 say that it's done by an act of Parliament.  27 MR. JACKSON:  My lord, we say that to the extent that the  28 Proclamation is applicable within Canadian  29 territories, then that could not be interfered with by  30 an act of the Canadian Parliament, only could it be  31 interfered with by an act of the Imperial Parliament.  32 THE COURT:  You're talking about pre-1982?  33 MR. JACKSON: Or actually pre-statute of West Minister.  34 THE COURT:  All right, statute of Westminster.  35 MR. JACKSON:  And that position is in fact affirmed, we say, in  36 the Constitution Act of 1982.  37 THE COURT:  So you say that the -- you really say then that the  38 Royal Proclamation takes precedence over the B.N.A.  39 Act up to 1932.  40 MR. JACKSON:  No, my lord, in some ways we say that the Royal  41 Proclamation is read into the B.N.A. Act.  42 THE COURT: Well, you can read it in or describe it any way you  43 want, but in the specific case I mentioned --  44 MR. JACKSON:  Yes, my lord, we do say that —  45 THE COURT:  Canada couldn't do that.  46 MR. JACKSON:  -- Canada could not abrogate the provisions of the  47 Royal Proclamation. 24136  Submissions by Mr. Jackson  1 THE COURT:  Yes.  All right.  Thank you.  2 MR. JACKSON:  My lord, at page 377 we say that the further  3 acknowledgement of the legal rights of the aboriginal  4 peoples is found in the Manitoba Act of 1870.  Section  5 31 provided for the granting of 1.4 million acres of  6 land to the Metis towards the extinguishment of the  7 rights of the Metis which they had by virtue of their  8 Indian ancestry. The recital to section 31 provides:  9  10 "And whereas, it is expedient, towards the  11 extinguishment of the Indian Title to the  12 lands, in the Province, to appropriate a  13 portion of such ungranted lands..."  14  15 And it goes on.  After the transfer of Rupert's  16 Land, the federal government enacted, in 1872, the  17 Dominion Lands Act, the first federal statute to deal  18 with the sale and disposition of federal crown lands.  19 And it provided:  20  21 "None of the provisions of this Act respecting  22 the settlement of agricultural lands, or the  23 lease of timber lands, or the purchase and sale  24 of mineral lands, shall be held to apply to  25 territory the Indian title to which shall not  26 at that time have been extinguished."  27  28 And, my lord, with reference to your most recent  29 question, that we say is some considerable evidence  30 that the Parliament of Canada itself understood that  31 its power to deal with Indian lands was, as it were,  32 constitutionally inhibited.  33 And we say that, summarizing the various documents  34 surrounding the admission or the addition of Rupert's  35 Land to the territories of Canada, these documents  36 alongside with the Dominion Lands Act had been  37 summarized by Mr. Justice Berger, as he then was, in  38 this way:  39  40 "All of these instruments acknowledge the rights  41 of the native people.  They illustrate that the  42 recognition of aboriginal title was deeply  43 embedded in both the policy and the law of the  44 new nation."  45  46 And that is from Mr. Justice Berger, as he then  47 was, in his report of the Mackenzie Valley pipeline 24137  Submissions by Mr. Jackson  1 inquiry in 1977.  2 And now I'm going to turn, my lord, to the --  3 again the application on the ground of these  4 principles in the prairie provinces, what are now the  5 prairie provinces, and I will deal first of all with  6 treaties 1 to 7 negotiated between 1871 and 1876.  7 The Indian nations were fully alive to the  8 necessity for a mutual accommodation of their and the  9 crown's interests.  This was made manifest in  10 exchanges soon after the transfer of the Hudson Bay  11 territories.  12  13 "In 1870 it had been deemed necessary to  14 despatch two agents to inform the Indians of  15 the Government's intention to send troops to  16 Red River, and to arrange with them a right of  17 way through their country.  At a pow-wow with  18 Colonel Wolseley at Fort Frances, the Indian  19 chief, Crooked Neck, refused to accept the  20 presents offered him, gaudy red shirts, coats  21 and caps, and declared 'Am I a pike to be  22 caught with such a bait as that?  Shall I sell  23 my land for a bit of red cloth?  We will let  24 the pale-faces pass through our country, but we  25 will sell them none of our land, nor have any  26 of them to live amongst us.' Other bands  27 expressed similar views.  'We believe what you  28 tell us when you say that, in your land, the  29 Indians have always been treated with clemency  30 and justice... but do not bring settlers and  31 surveyors amongst us, to measure and occupy  32 our lands, until a clear understanding has  33 been arrived at, as to what our relations are  34 to be in the time to come."  35  36 Beginning in 1871, the federal government,  37 pursuant to its legal obligations, initiated treaty  38 making with Indian nations in the newly acquired  39 territories.  And the following review of treaties 1  40 to 7 we say demonstrates the continuity of the crown's  41 recognition of its lawful obligations to obtain Indian  42 consent through the treaty process for the acquisition  43 of western lands needed for settlement and  44 development.  45 Treaties 1 and 2 were negotiated in 1871 with the  46 Indians of Manitoba.  The Chippawas in 1870, concerned  47 about the influx of settlers, petitioned the 2413?  Submissions by Mr. Jackson  1 Lieutenant-Governor to commence treaty negotiations  2 and Mr. W.M. Simpson was appointed treaty  3 commissioner.  Simpson, in July 1871, met with  4 approximately 1,000 Indians to negotiate the first  5 post-Confederation treaty at Lower Fort Garry.  The  6 negotiations were conducted with the chiefs and  7 principal spokespersons for the Indians.  The treaty  8 negotiations lasted eight days and the treaty, in its  9 general contours, followed the precedent of the  10 Robinson treaties "its principal features being the  11 relinquishment to Her Majesty of the Indian title",  12 the reserving of tracts of lands for the Indians,  13 sufficient to furnish 160 acres of land to each family  14 of five, providing for the maintenance of schools, the  15 prohibition of the sale of intoxicating liquors on the  16 reserves, and an initial payment of $3 per person and  17 a yearly annuity of $15 per family.  18 At the beginning of the negotiations of treaty  19 number 1, my lord, Lieutenant-Governor Morris, in  20 addressing the Indians, stated:  21  22 "Your Great Mother, the Queen, wishes to do  23 justice to all her children alike...But the  24 Queen, though she may think it good for you to  25 adopt civilized habits, has no idea of  26 compelling you to do so.  This she leaves to  27 your choice, and you need not live like the  28 whiteman unless you can be persuaded to do so  29 of your own free will."  30  31 This is of some significance, my lord, in that it  32 supports an interpretation of the treaty that, one  33 which we will come back in dealing with the issue of  34 Indian jurisdiction, an interpretation of the treaty  35 that the crown did not purport to interfere with the  36 internal self-government of the Indians in the  37 negotiation of these treaties.  38 At page 380 and 381, my lord, I make reference to  39 the so-called outside promises in the context of these  40 treaty negotiations.  The Indians negotiated for and  41 were offered by the treaty commissioners certain  42 additional provisions not in the text of the treaty.  43 These were not followed through by the government.  44 There was protest by the Indians.  At page 381 I make  45 the point that these outside promises, which were at  46 the time of the treaty reduced in writing in a  47 memorandum by the commissioners, were by 24139  Submissions by Mr. Jackson  1 Order-in-Council made part of the original text of  2 treaty number 1.  3 Treaty number 2 at the bottom of page 381 was  4 negotiated at Manitoba Post on August the 21st and was  5 in the same terms as treaty number 1.  The continuity  6 with the treaty protocol mandated by the Royal  7 Proclamation and the explicit recognition of the  8 necessity for Indian consent is evident from the first  9 recital in these treaties, a recital which appears  10 with small variations in all of the numbered treaties.  11 And at page 382 I set out the nature of that  12 recital, and you'll note, my lord, the passage  13 underlined:  14  15 "that it is the desire of Her Majesty to open up  16 to settlement and immigration a tract of  17 country bounded and described as hereinafter  18 mentioned, and to obtain the consent thereto of  19 her Indian subjects inhabiting the said tract."  20  21 And the last paragraph, my lord, you'll see,  22 again, the treaty Proclamation protocol:  23  24 "And whereas the Indians of the said tract, duly  25 convened in Council as aforesaid, and being  26 requested by Her Majesty's said Commissioner to  27 name certain Chiefs and Headmen who should be  28 authorized on their behalf to conduct such  29 negotiations..."  30  31 The explicit recognition of consent in the public  32 treaty making council process.  33 And I've given you there, my lord, the relevant  34 citations to the similar recital in all of the other  35 treaties from 1 to 7.  36 In 1873 --  37 THE COURT:  These are references to a book by Morris are they?  38 MR. JACKSON:  This is the reference to Exhibit 1246.  39 THE COURT:  All right.  40 MR. JACKSON:  Tab 1, which is the Morris text.  41 THE COURT:  Thank you.  42 MR. JACKSON:  In 1873, treaty number 3 was concluded with the  43 Saulteaux nation.  It is oftentimes referred to as the  44 North-West Angle treaty because the area ceded by the  45 Indians ran from the watershed of Lake Superior to the  46 North-West Angle of the Lake of the Woods.  47 And I will be spending some time on treaty number 24140  Submissions by Mr. Jackson  1 3, my lord, because treaty number 3 constitutes the  2 factual matrix of the St. Catherine's Milling case.  3 It was treaty number 3 which was the subject matter,  4 as it were, of the St. Catherine's Milling case, and  5 the issue there was who benefited from the cession by  6 the Saulteaux nation to the crown, whether it was the  7 federal crown or the provincial crown.  And so  8 understanding the process and the principles which can  9 be found in treaty number 3, we say, will assist your  10 lordship in interpreting and responding to our  11 submissions on the nature of the findings in St.  12 Catherine's Milling.  13 Treaty number 3, it had been the federal  14 government's intention that treaty number 3 would have  15 been the first treaty negotiated since the area lay on  16 the route west known as the "the Dawson route".  The  17 treaty was also "to enable the government to throw  18 open for settlement any portion of the land which  19 might be susceptible of improvement and profitable  20 occupation."  And, again, those are the words of the  21 treaty commissioner Alexander Morris.  22 As I say, it had been the government's intention  23 to commence treaty making with the Saulteaux, but the  24 commissioners appointed to negotiate the treaty, at  25 the top of page 383, when they met with the Saulteaux  26 in 1871 and 1872, found that the Saulteaux were not  27 prepared to accept the government's terms.  Finally,  28 in September 1873 "after protracted and difficult  29 negotiations (the government) succeeded in effecting a  30 treaty with them."  31 For most of the numbered treaties we do not have  32 the benefit of a detailed documentary record of the  33 conduct of the negotiations, unlike that which exists  34 for the Covenant Chain Treaty Councils of the 18th  35 century.  There was no Benjamin Franklin, as it were,  36 of the Canadian west, to write down and to publish the  37 text of these events.  However, in the case of treaty  38 number 3, we do have, in addition to the report of one  39 of the treaty commissioners, Alexander Morris himself,  40 a more detailed report of the various speeches made  41 during the course of treaty negotiations.  42 And these contemporary reports give a sense of the  43 treaty protocol and the nature of the negotiations.  44 And again, my lord, I'm seeking to make a connection  45 of historical and legal continuity between the  46 experience in the eighteenth century and experience in  47 Canada in the nineteenth century. 24141  Submissions by Mr. Jackson  1 THE COURT:  Excuse me, Mr. Jackson, I think that I should  2 recognize the presence in court here of Mr. Gordon  3 Hanson, I think, it's hard to see from here, a very  4 distinguished member of the Legislature for Victoria,  5 and I believe the opposition critic on Indian and  6 Aboriginal Affairs.  Welcome to our courts, Mr.  7 Hanson.  Mr. Jackson.  8 MR. JACKSON: Thank you, my lord.  9 Taking this then from contemporary reports, my  10 lord, of the negotiation of treaty number 3, we find  11 that some 800 Indians representing the 11 bands which  12 made up the Saulteaux nation were in attendance at  13 Fort Garry, the site designed for the treaty  14 negotiations -- the site designated for the treaty  15 negotiations.  After the arrival of the treaty  16 commissioners the Indians performed a dance in honour  17 of Alexander Morris -- in addition to being the treaty  18 commissioner he was also the Lieutenant-Governor of  19 Manitoba -- and presented to him the pipe of peace, a  20 ceremony which your lordship will recall was also part  21 of the Covenant Chain protocol.  The treaty  22 negotiations did not start for several days because  23 "the Chiefs were not ready to treat - they had  24 business of their own to transact, which must be  25 disposed of before they could see the Governor".  It  26 appears from the contemporary account that it had been  27 some years since the Saulteaux nation had had a  28 general council involving all bands and there was  29 initial difficulty in agreeing upon who should be the  30 principal chiefs with whom the governor should  31 negotiate.  32 When negotiations did start on October the 1st,  33 Indian negotiators indicated that they were not  34 prepared to treat in relation to the land unless the  35 government settled with them in relation to what they  36 asserted were unfulfilled promises arising from  37 government activities in completing the Dawson route,  38 in particular, that they had not been paid for the  39 wood used in building the steamers nor for the use of  40 the waterway.  Commissioner Morris, in response to  41 this proposition, stated.  Wood and water were the  42 gift of the Great Spirit, and were made alike for the  43 good of both the white man and red man.  44 The Indian spokesman responded that he was  45 determined not to go on with the treaty negotiations  46 until the issue was disposed of, asserting that:  47 24142  Submissions by Mr. Jackson  1 "What was said about the trees and rivers was  2 quite true, but it was the Indians' country,  3 not the white man's."  4  5 The Indians, however, were prepared to have the  6 treaty commissioners outline the treaty propositions.  7 Commissioner Morris, in introducing the proposed  8 treaty terms, stated:  9  10 "I told you I was to make the treaty on the part  11 of our Great Mother, the Queen, and I feel it  12 will be for your good and your children...1  13 want to settle all matters, both of the past  14 and the present, so that the white and the red  15 man will always be friends.  I will give you  16 lands for farms, and also reserves for your own  17 use.  I have authority to make reserves such as  18 I have described, not exceeding in all a square  19 mile for every family of five or thereabouts.  20 It may be a long time before the other lands  21 are wanted, and in the meantime you will be  22 permitted to fish and hunt over them.  I will  23 also establish schools whenever any band asks  24 for them, so that your children may have the  25 learning of the white man.  I will also give  26 you a sum of money for yourselves and every one  27 of your wives and children for this year. I  28 will give you $10 per head of the population  29 and for every other year, $5 a head.  But to  30 the chief men, not exceeding two to each band,  31 we will give $20 a year forever.  I will give  32 to each of you this year a present of goods and  33 provisions to take you home, and I am sure you  34 will be satisfied."  35  36 When proceedings were resumed the following day --  37 and in this regard, my lord, you will recall in the  38 Covenant Chain proceedings the Iroquois were always  39 careful to deliberate overnight before responding to  40 the statements made by the British colonial  41 spokespersons. When proceedings were resumed the  42 following day, the chief of Fort Francis,  43 Ma-we-do-pe-nais, addressed the treaty commissioners  44 in this way:  45  46 "What we have heard yesterday, and as you  47 represented yourself, you said the Queen sent 24143  Submissions by Mr. Jackson  1 you here, the way we understand you as a  2 representative of the Queen.  All this is our  3 property where you have come.  We have  4 understood you yesterday that Her Majesty has  5 given you the same power and authority as she  6 has, to act in this business; you said the  7 Queen gave you her goodness, her charitableness  8 in your hands.  This is what we think, that  9 Great Spirit has planted us on this ground  10 where we are as you were where you came from.  11 We think where we are is our property.  I will  12 tell you what he said to us when he planted us  13 here; the rules that we should follow, us  14 Indians, he has given us rules that we should  15 follow to govern us rightly."  16  17 And it is our submission, my lord, and we don't  18 know of any lawyers or missionaries lurking in the  19 bushes to put these words into the minds and hearts of  20 the Saulteaux nation, it is our submission that the  21 statement of Chief Ma-we-do-pe-nais in asserting the  22 Saulteaux nation's rights of ownership and  23 jurisdiction, is done so in terms which are linked to  24 the statement of Chief Canassatego at the Treaty of  25 Lancaster in 1744, and we say it is linked to the  26 statements of the hereditary chiefs of the Gitksan and  27 Wet'suwet'en in 1987 and 1990.  28 The Saulteaux, in arguing for better terms, were  29 aware that gold had been discovered in parts of their  30 country.  Thus, in proposing that the compensation  31 should be greater than the amounts initially offered  32 by a sum amounting to $125,000 per annum, one of the  33 spokesmen reminded the commissioners:  34  35 "The sound of the rustling of the gold is under  36 my feet where I stand; we have a rich country;  37 it is the great spirit who gave us this; where  38 we stand upon is the Indian's property and  39 belongs to them...  40 It was your charitableness that you spoke of  41 yesterday - Her Majesty's charitableness that  42 was given you.  It is our chiefs, our young  43 men, our children, and great grandchildren and  44 those that are to be born, that I represent  45 here, and it is for them I ask for terms.  The  46 white man has robbed us of our riches, and we  47 don't wish to give them up again without 24144  Submissions by Mr. Jackson  1 getting something in their place."  2  3 THE COURT:  What do you understand he was referring to there,  4 the wood and the water?  5 MR. JACKSON:  Yes, my lord, I think that must be the reference.  6 THE COURT:  All right.  Thank you.  I suppose there might have  7 been something else.  8 MR. JACKSON:  I wasn't able to glean anything from the -- as I  9 said, the treaty account is a much compressed  10 version --  11 THE COURT:  Yes.  12 MR. JACKSON:  — of what we have for the Covenant Chain  13 treaties.  14 THE COURT:  Yes.  15 MR. JACKSON:  The Indians willingness to reach an accommodation  16 with the government by sharing their resources was  17 conditioned not only upon appropriate financial  18 considerations but also upon economic assistance in  19 the development of new opportunities to supplement the  20 traditional economy.  And this perspective of mutual  21 accommodation and the sharing of resources which the  22 Indian people brought to the treaty making process is  23 well reflected in the speech of the chief of Lac  24 Seule:  25  26 "We are the first that were planted here; we  27 would ask you to assist us with every kind of  28 implement to use for our benefit, to enable us  29 to perform our work; a little of everything and  30 money.  We would borrow your cattle; we ask you  31 this for our support; I will find whereon to  32 feed them.  The waters out of which you  33 sometimes take food for yourselves, we will  34 lend you in return. ...If you give what I ask,  35 the time may come when I will ask you to lend  36 me one of your daughters and one of your sons  37 to live with us; and in return I will lend you  38 one of my daughters and one of my sons for you  39 to teach what is good, and after they have  40 learned, to teach us."  41  42 The commissioners, in responding to the counter  43 proposals of the Indians, characterized their role as  44 representatives of the crown in this way:  45  46 "I wish you to understand we do not come here as  47 traders, but as representing the Crown, and to 24145  Submissions by Mr. Jackson  1 do what we believe is just and right.  We have  2 asked in that spirit and I hope you will meet  3 me in that spirit and shake hands with me today  4 and make a treaty forever."  5  6 Now, the commissioners, in terms of the monetary  7 consideration, said that they were not authorized nor  8 could they pay the large amount required, but they  9 were prepared to increase the per capita share to be  10 signed on the signing of the -- to be paid on the  11 signing of the treaties.  12 And at page 388 I set out some of the further  13 negotiations which were undertaken.  At the bottom of  14 the page, my lord, half-way down that paragraph.  15 The Indians also brought up issues relating to future  16 developments.  Thus, with some prescience, although it  17 would not have been a lasting privilege, as it turns  18 out they asked for free passage for Indian people on  19 the forthcoming railway and they raised their concern  20 about the effect of white settlement on the fishery  21 resource, requesting that the river should be left as  22 it was.  On both these issues --  23 THE COURT:  I'm sorry, what year are we in, 1882?  2 4    MR. JACKSON:  No, we're in 1873.  25 THE COURT:  Oh, a long way from the railroad.  All right.  It  26 had of course been promised.  27 MR. JACKSON:  I think the Indians were well informed, my lord,  28 of the government's intentions with the railway.  2 9    THE COURT:  All right.  30 MR. JACKSON:  On both these issues the commissioners said that  31 they were not able to make any promises for the  32 future.  33 During the course of the negotiations it appeared  34 that there was some disagreement between different  35 bands on the advisability of accepting the proposed  36 treaty.  Commissioner Morris indicated that he would  37 sign the -- while he would sign the treaty with those  38 bands who were prepared to do so, his principal  39 purpose was to "treat with them as a nation and not as  40 separate bands"  41 And eventually the Saulteaux nation was able to  42 arrive at a consensus and the treaty was duly  43 concluded after four days of negotiations,  44 negotiations which Commissioner Morris described  45 himself in his report to Government House as "a very  46 difficult and trying one".  47 At the conclusion of the negotiations, Chief 24146  Submissions by Mr. Jackson  1 Ma-we-do-pe-nais made a final address, and what he  2 said to Commissioner Morris was:  3  4 "Now you see me stand before you all; what has  5 been here today has been done openly before the  6 Great Spirit, and before the Nation, and I hope  7 that I may never hear anyone say that this  8 Treaty has been done secretly."  9  10 You'll recall, my lord, Canassatego once  11 castigating the Delawares for daring to treat with  12 colonial representatives in the dark.  13  14 "And now, in closing as council, I take off my  15 glove, and giving you my hand, I deliver over  16 my birth-right and lands; and in taking your  17 hand, I hold fast all the promises you have  18 made, and I hope they will last as long as the  19 sun goes round and the water flows, as you have  20 said."  21  22 And Commissioner Morris, taking Chief  23 Ma-we-do-pe-nais' hand stated:  24  25 "I accept your hand and with it the lands, and  26 will keep all my promises, in the firm belief  27 that the treaty now to be signed will bind the  28 red man and the white together as friends  29 forever."  30  31 And we say, my lord, of passing interest, treaty 3  32 concluded with an exchange in many ways resembling the  33 exchange a century before at the Treaty of Lancaster  34 between the Six Nations and the British regarding the  35 differences between French and British glasses.  It  36 had been the practice at treaty making to provide the  37 chiefs and headmen with medals.  One of the Saulteaux  38 chiefs in referring to this practice made the  39 following pointed observations to the treaty  40 commissioners:  41  42 "I will now show you a medal that was given to  43 those who made a treaty at Red River by the  44 Commissioner.  He said it was silver, but I do  45 not think it is.  I should be ashamed to carry  46 it on my breast over my heart.  I think it  47 would disgrace the Queen, my mother, to wear 24147  Submissions by Mr. Jackson  1 her image on so base a metal as this."  2  3 And the commentator notes:  4  5 "Here the chief held up the medal and struck it  6 with the back of his knife.  The result was  7 anything but the 'true ring' and made every man  8 ashamed of the petty meanness that had been  9 practiced."  10  11 The chief continued:  12  13 "Let the medals you give us be of silver -  14 medals that shall be worthy of the high  15 position our Mother the Queen occupies."  16  17 My lord, the area ceded by treaty number 3 was  18 some 55,000 square miles.  Treaty number 4, commonly  19 referred to as the Qu'appelle treaty, having been  20 negotiated and signed at Qu'appelle Lakes the year  21 later in 1874, involved an area of some 75,000 square  22 miles of what is now Manitoba and Saskatchewan.  23 THE COURT:  Going back to treaty 3, are those annual stipends  24 still paid?  2 5    MR. JACKSON:  Yes, my lord.  26 THE COURT:  They haven't been at present value been paid off?  27 MR. JACKSON:  No, there was no inflation clause and they are  28 still paid at the same rate as of 1873.  2 9    THE COURT:  Thank you.  30 MR. JACKSON:  Treaty number 5, also referred to as the Winnipeg  31 treaty, was signed initially at Lake Winnipeg with the  32 Saulteaux and the Swampy Cree Indians and resulted in  33 an even larger cession of some 100,000 square miles.  34 And I refer your lordship on page 391 to the  35 rationale, or in his own terms, the necessity for the  36 treaty as it was articulated by William Morris:  37  38 "The lake..."  39  40 That is Lake Winnipeg.  41  42 "...is a large and valuable sheet of water,  43 being some 300 miles long.  The Red River flows  44 into it and the Nelson River flows from it into  45 Hudson's Bay.  Steam navigation has been  46 successfully established by the Hudson's Bay  47 Company on Lake Winnipeg.  A tramway of five 24148  Submissions by Mr. Jackson  1 miles in length was being built by them to  2 avoid the Grand Rapids and connect that  3 navigation with steamers on the river  4 Saskatchewan.  On the west side of the lake, a  5 settlement of Icelandic immigrants had been  6 founded, and some other localities were  7 admirably adapted for settlement.  Moreover,  8 until the construction of the Pacific Railway  9 west of the City of Winnipeg, the lake and  10 Saskatchewan River are destined to become the  11 principal thoroughfare of communication between  12 Manitoba and the fertile prairies in the  13 west...For these and other reasons, the  14 Minister of the Interior reported 'that it was  15 essential that the Indian title to all the  16 territory in the vicinity of the lake should  17 be extinguished so that settlers and traders  18 might have undisturbed access to its waters,  19 shores, islands, inlets and tributary streams."  20  21 And, again, we say, my lord, that that bespeaks a  22 recognition by the crown of the legal requirement for  23 the extinguishment of Indian title before settlement  24 and development can proceed.  25 THE COURT:  Do you know the date of treaty 5?  26 MR. JACKSON:  Yes, my lord, treaty 5 was signed in 1875 I  27 believe.  2 8    THE COURT:  Thank you.  29    MR. JACKSON:  I'll look that up for you, my lord, at the break.  3 0    THE COURT:  Thank you.  31 MR. JACKSON:  And I say somewhat elliptically, my lord, one year  32 after the signing of treaty number 5, which I think  33 will be 1876, treaty number 6 was concluded at Fort  34 Carlton and Fort Pitt, and these cessions emblazed  35 some 120,000 square miles inhabited by the Cree and  36 Assiniboine Indians.  As William Morris notes in his  37 summary of the negotiation of treaty number 6 "The  38 Crees had, very early after the annexation of the  39 North-west Territories to Canada, desired a treaty of  40 alliance with the government".  41 And the reasons for the Crees' desire, my lord, is  42 set out at the bottom of page 392.  The Cree nation's  43 desire to enter into a treaty with Canada was  44 heightened by the fact that in 1870 they had been  45 struck with a smallpox epidemic and this, coupled with  46 the diminution of the buffalo, their principal source  47 of meat, and the subsequent starvation that ensued, 24149  Submissions by Mr. Jackson  1 caused them to look to Canada for much needed economic  2 assistance.  Alexander Morris, who was appointed  3 lieutenant-governor in December 1872, had urged Ottawa  4 to open negotiations with the Cree, but it was not  5 until the Cree stopped geological survey crews in the  6 summer of 1875 and also halted construction of the  7 telegraph line, that instructions were finally sent to  8 Morris to enter into treaty with the Cree.  9 And I note there, my lord, just by way of  10 reference back, that in 1752, a hundred and twenty  11 years before this, it was the stopping of surveyors in  12 the valley of the Ohio that had led to renegotiations  13 and the Treaty of Logstown.  And I would refer your  14 lordship to Volume 1 of our materials at tab 2, page  15 121.  16 Based therefore on a mutual and reciprocal need  17 and desire for treaty making, in 1875 Alexander Morris  18 sent out the Reverend George McDougall to give advance  19 notice to the Cree of the government's intentions to  20 open treaty negotiations with them the following year.  21 McDougall informed Morris that both the Cree and the  22 Assiniboines with whom he met were united on two  23 points, the first of which was:  24  25 "That they would not receive any presents from  26 Government until a definite time for treaty was  27 stated.  28  29 2.  Though they deplored the necessity of  30 resorting to extreme measures, yet they were  31 unanimous in their determination to oppose the  32 running of lines, or the making of roads  33 through their country, until a settlement  34 between the government and them had been  35 effected."  36  37 Commissioner Morris and two other Commissioners  38 first met with the Cree at Fort Garry.  The account of  39 the treaty negotiations recorded by the secretary to  40 the commission gives a clear indication of the extent  41 to which the Indian protocol was part and parcel of  42 the negotiating process, just as it had been in the  43 Covenant Chain treaty making era the century before:  44  45 "The Cree Indians ... had selected a site about a  46 mile and a half from the Hudson's Bay Fort.  47 There were about 250 lodges, containing over 24150  Submissions by Mr. Jackson  1 2,000 souls.  The Governor's tent was pitched  2 on a piece of rising ground about 400 yards  3 from the Indian camp, and immediately facing  4 it."  5  6 And the next page, my lord:  7  8 "In about half an hour they were ready to  9 advance and meet the Governor; this they did in  10 a large semi-circle; in their front were about  11 20 braves on horseback, galloping about in  12 circles, shouting, singing and going through  13 various picturesque performances.  The  14 semi-circle steadily advanced within 50 yards  15 of the Governor's tent, when a halt was made  16 and further peculiar ceremonies commenced, the  17 most remarkable of which was the 'dance of the  18 stem'.  This was commenced by the Chiefs,  19 Medicine Men, Councillors, singers and drum  20 beaters, coming a little to the front and  21 seating themselves on blankets and robes spread  22 for them. The bearer of the stem,  23 Wah-wee-kah-nich-kah-oh-tah-mah-hote, the man  24 you strike on the back, carrying in his hand a  25 large and gorgeously adorned pipe stem, walking  26 slowly along the semi-circle, and advancing to  27 the front, raised the stem to the heavens, then  28 slowly turned to the north, the south, the east  29 and the west, presenting the stem at each  30 point; returning to the seated group he handed  31 the stem to one of the young men, who commenced  32 a low chant, at the same time performing a  33 ceremonial dance accompanied by the drums and  34 singing of the men and women in the  35 background."  36  37 And I should just perhaps pause there for a  38 moment, my lord.  This version of this ceremony was  39 performed most recently in May last year to judges of  40 the Western Judicial Council at their annual meeting  41 at Cecil Green Park in Vancouver as a demonstration of  42 the protocol which the Indians observed in a meeting  43 between their people and others with whom they --  44 others whom they hold in high respect.  There was no  45 horses, but the nature of the ceremony was one which  46 is directly referable to the ceremony performed at the  47 negotiations of treaty number 6. 24151  Submissions by Mr. Jackson  1  2 "This was all repeated by another of the young  3 men, after which the horseman again commenced  4 galloping in circles, the whole body slowly  5 advancing.  As they approached his tent, the  6 Governor, accompanied by the Honourable W.J.  7 Christie and the Honourable Jas McKay,  8 Commissioners, went forward to meet them and to  9 receive the stem carried by its bearer.  It was  10 presented first to the Governor, who in  11 accordance with their customs, stroked it  12 several times, then passed it to the  13 Commissioners who repeated the ceremony."  14  15 And this is Morris' statement, my lord:  16  17 "The significance of this ceremony is that the  18 Governor and Commissioners accepted the  19 friendship of the tribe."  20  21 My lord at page 395, Commissioner Morris in his  22 first address to the Indians, emphasized the public  23 nature of the treaty process.  24  25 "What I say and what you say, and what we do, is  26 done openly before the whole people."  27  28 It is clear from the treaty negotiations that a  29 principal concern of the Indian negotiators was to  30 secure the means for their economic survival in light  31 of the depletion of the animal resources and they were  32 anxious to know what economic assistance the Governor  33 could offer.  Commissioner Morris, for his part, was  34 also acutely aware of the difficult circumstances  35 facing the Indians on the prairies and in his speeches  36 to the Indians made it clear that the government  37 assistance which was being offered to develop an  38 agricultural-based economy was not intended to  39 interfere with the Indians' hunting economy.  The  40 following passages reflect the supplementary rather  41 than replacement theme of the government's treaty  42 proposals.  43  44 "Understand me, I do not want to interfere with  45 your hunting and fishing.  I want you to pursue  46 it through the country, as you have heretofore  47 done; but I would like your children to be able 24152  Submissions by Mr. Jackson  1 to find food for themselves and their children  2 that come after them.  Sometimes when you go to  3 hunt you can leave your wives and children at  4 home to take care of your gardens...  5  6 What I have offered does not take away your  7 living, you will have it then as you have now,  8 and what I offer now is put on top of it..."  9  10 And Morris shared with the Indians his vision of  11 their future in the context of what the plaintiffs'  12 witness, Dr. Richard Daly, referred to as the mixed  13 economy.  14  15 "I see the Queen's Councillors taking the Indian  16 by the hand saying we are brothers, we will  17 lift you up, we will teach you, if you will  18 learn the cunning of the white man.  All along  19 that road I see Indians gathering, I see  20 gardens growing and houses building; I see them  21 receiving money from the Queen's Commissioners  22 to purchase clothing for their children; at the  23 same time, I see them enjoying their hunting  24 and fishing as before, I seem them retaining  25 their old mode of living with the Queen's gift  26 in addition."  27  28 It is readily apparent that the Queen's  29 councillors, in 1876, envisaged the development of a  30 mixed economy and a process of cultural accommodation  31 taking place within the framework of treaty rights and  32 the protectorate responsibility of the crown.  It is,  33 my lord, surely ironic that 100 years later one of the  34 Queen's counsels, Mr. Macaulay, in advancing the  35 position of the federal crown, points to this cultural  36 accommodation and the plaintiffs' participation in the  37 mixed economy as evidence of the abandonment of their  38 rights.  It is the plaintiffs' submission, however,  39 that this is more than ironic.  It is submitted that  40 it demonstrates the extent to which the federal  41 crown's position in this case is not only legally  42 flawed, but also derogates from the honour of the  4 3 crown.  44 My lord, at page 397 —  45 THE COURT:  Are you talking about, when you say one of the  46 Queen's counsels, Mr. Macaulay, in advancing the  47 position of the federal crown?  Are you talking about 24153  Submissions by Mr. Jackson  1 Mr. Macaulay in this case or are you talking about --  2 MR. JACKSON:  No, Mr. Macaulay in this case.  3 THE COURT:  I don't think you spelled his name right.  4 MR. JACKSON:  I beg his pardon.  It's a typographical error.  5 The sentiment, however, remains.  6 THE COURT:  Distinguished counsel appeared at the Privy Council  7 and said to be talking nonsense.  That was read  8 yesterday.  9 MR. JACKSON:  And of course, my lord, the reference there I was  10 making wasn't intended to be elliptical, was to the  11 federal government's position of abandonment,  12 extinguishment, whereby, as we understand it, they say  13 that the plaintiffs, by participating in a modern  14 economic society and taking some of the benefits of  15 that society, have given up their rights because they  16 have not maintained in its pristine quality the  17 economic modes of their predecessors.  That was a  18 position which clearly the Queen's councillors in the  19 mid-nineteenth century envisaged as being exactly the  20 accommodation which would take place and which would  21 in fact be guaranteed by the treaty rights.  22 At page 397 and 398 I give some detailings of  23 further negotiations of treaty number 6, and at 398 I  24 conclude at the top of the page.  On August the 26th,  25 1875, after six days of negotiations, treaty 6 was  26 signed.  27 THE COURT: Treaty 5 was in 1874?  28 MR. JACKSON:  So treaty number 5 was in 1874, my lord.  I'm  29 having as much difficulty with the dates as I did with  30 the location of Toronto, my lord.  31 THE COURT:  It's not easy.  32 MR. JACKSON:  My friend Mr. Rush will put the record right.  33 At page 399 we say that by 1875 treaties had now  34 been negotiated for lands extending from Lake Superior  35 to the slopes of the Rocky Mountains, encompassing the  36 whole of the prairie region except for what is now  37 southern Alberta.  In 1876, treaty number 7 was  38 negotiated with the Blackfoot, Blood, Peigan, Sarcee,  39 and Stony Indian nations for lands lying west of the  40 Cypress Hills (the border of treaty number 4) and east  41 of the Rocky Mountains and south of Red River (the  42 boundary of treaty number 6), an area encompassing  43 some 50,000 square miles.  44 Alexander Morris had strongly recommended to the  45 government in Ottawa, following the conclusion of his  46 negotiation of treaty number 6, that similar  47 negotiations should be entered into with the Blackfoot 24154  Submissions by Mr. Jackson  1 who had a reputation as bold warriors and who had  2 close relationships with the Sioux Indian nation who  3 were involved in warfare with the United States  4 cavalry.  Unlike the Saulteaux, Cree and Prairie  5 Assiniboine, the Indian nations of southern Alberta  6 were not on the main travel route through the  7 north-west and they had remained largely outside the  8 major British fur trade network. Their relative  9 isolation has been broken, however, by the American  10 traders from the south.  The decade prior to the  11 signing of treaty number 7 had caused unprecedented  12 problems for the Blackfoot.  The major item in the  13 American buffalo robe trade was whiskey and its  14 introduction had had a demoralizing effect amongst the  15 Blackfoot.  Then, in 1870, smallpox swept across the  16 prairies taking a terrible toll.  The combined effect  17 of epidemics, alcohol abuse and the undermining of  18 their hunting economy through the wholesale slaughter  19 of the buffalo by American hunters had major impacts  20 upon Blackfoot society.  The arrival of the north-west  21 mounted police into the region in 1874 had effectively  22 stopped the whiskey trade, but following the mounted  23 police came the first white settlers.  Furthermore, in  24 1876, the Blackfoot food supply was further threatened  25 by the arrival on the edge of their territory of 5,000  26 Sioux Indians refugees from the wars with the United  27 States.  Thus, both from the Blackfoot's recent  28 experience and the government's interest in opening up  29 the region for white settlement, treaty negotiations  30 were a priority.  31 At page 401 I note, my lord, that Morris, although  32 he'd urged the signing of this treaty, was not to  33 preside over its negotiation.  He was elevated and  34 while he remained lieutenant-governor of Manitoba and  35 of Keewatin, David Laird, the former minister of the  36 interior, was appointed governor of the territories  37 and also Indian commissioner.  It was to Laird that  38 the task of negotiating treaty 7 therefore fell.  39 And my lord, David Laird was referred to in my  40 friend's opening at last Monday for his ringing  41 statement and contemplation of British Columbia in not  42 recognizing the legitimate rights of the Indians west  43 of the Rockies.  Mr. Laird's statement will be  44 referred to later on in Mr. Rush's further  45 submissions.  46 Another commissioner who was appointed for the  47 negotiation of treaty number 7 was James McCleod, a 24155  Submissions by Mr. Jackson  1 commissioner of the north-west mounted police, who, by  2 virtue of his ridding the country of the American  3 whiskey traders, was held in high regard by the Indian  4 people and had received from them the name of  5 Stamixotokon, an honorific title much like the titles  6 which the Six Nations had accorded representatives of  7 the colonial governments in the 18th century.  8 You'll recall, my lord, the Six Nations referred  9 to the governor the propriety of Pennsylvania, William  10 Penn, as owners.  11 The treaty negotiations took place at Blackfoot  12 Crossing on the Bow River, one of the principal  13 camping grounds of the Blackfoot nation.  The  14 seriousness with which the treaty negotiations were  15 approached by both the crown representatives and the  16 Indian nations concerned is reflected in the following  17 contemporary account from the Toronto Globe, the  18 predecessor in history, if not in title, of the Globe  19 and Mail.  20  21 "On Wednesday, the commissioners met the chiefs  22 at the great council house.  A guard of honour  23 of 50 mounted men accompanied them, commanded  24 by Major Irvine.  The police band received  25 them, and at one o'clock the guns fired a  26 salute as the governor and colonel McCleod,  27 took their seats. There were present at the  28 opening of the treaty a number of ladies and  29 gentlemen who had come long distances to  30 witness this novel spectacle (including) the  31 whole white population of Fort McCleod."  32  33 You will recall, my lord, the similar spectacles  34 in great town council hall of Philadelphia.  I'm not  35 suggesting that Fort McCleod was the western  36 equivalent to Philadelphia, but we have a similar  37 recognition of the importance of this event.  38 THE COURT:  I don't know, I've been in Philadelphia and I'm not  39 sure you're right on that.  4 0    MR. JACKSON:  41  42 "Nearly all of the chiefs and minor chiefs of  43 the Blackfeet, Blood, Peigan, Stony, and Sarcee  44 tribes were seated directly in front of the  45 council house and forming a semi-circle of  46 about one third of a mile beyond the chiefs,  47 about 4,000 men, women and children were 24156  Submissions by Mr. Jackson  1 squatted on the grass, watching with keen  2 interest the commencement of the proceedings."  3  4 Commissioner Laird, in addressing the assembled  5 Indian nations, adopted the discourse which had been  6 used by Governor Morris in the earlier treaties, and  7 referring directly to the problems facing the  8 Blackfoot, he said in that passage cited at page 402:  9  10 "In a very few years the buffalo will probably  11 be all destroyed, and for this reason the Queen  12 wishes to help you to live in the future in  13 some other way.  She wishes you to allow her  14 white children to come and live on your land  15 and raise cattle, and should you agree to this  16 she will assist you to raise cattle and grain,  17 and thus give you the means of living when the  18 buffalo are no more."  19  20 The proposed treaty terms, which were accepted by  21 the Indian representatives, were basically similar to  22 those in the previous treaties with some modifications  23 to the provisions dealing with agricultural aid.  24 Thus, the terms directed to the Blackfoot and Blood,  25 emphasized cattle rearing, whereas the Stony Indians  26 were expected to take up the cultivation of field  27 crops.  28 After Crowfoot, the principal chief of the  29 Blackfoot, indicated his willingness to sign the  30 treaty on behalf of his people, the other chiefs  31 signified their concurrence.  And I've cited at page  32 403 the address of Colonel McCleod, one of the treaty  33 commissioners, former commissioner of north-west  34 place, and we cite it for the significance and the  35 light which it throws on the principles upon which the  36 treaty negotiations were based.  37 Colonel McCleod in addressing the assembled chiefs  38 said:  39  40 "The chiefs all here know what I said to them  41 three years ago, when the police first came to  42 the country - that nothing would be taken away  43 from them without their own consent.  You all  44 see today that what I told you then was  45 true...You say that I have always kept my  46 promises.  As surely as my past promises have  47 been kept, so surely shall those made by the 24157  Submissions by Mr. Jackson  1 commissioners be carried out in the future.  If  2 they were broken, I would be ashamed to meet  3 you or to look you in the face; but every  4 promise will be solemnly fulfilled as certainly  5 as the sun now shines down upon us from the  6 heavens.  I shall always remember the kind  7 manner in which you have today spoken of me."  8  9 The preceding review, my lord, of treaties 1 to 7  10 based upon the documentary record compiled by crown  11 officials and white observers, demonstrates the  12 continuity of the crown's recognition of its lawful  13 obligations to obtain Indian consent through the  14 treaty process for the acquisition of western lands  15 needed for settlement and development.  In the past  16 decade, research has been undertaken on behalf of the  17 various Indian nations who participated in this period  18 of treaty making to gather the Indian oral history  19 surrounding treaty making.  The research done by the  20 Saskatchewan and Alberta Indian nations suggests that  21 these post-Confederation treaties were viewed by the  22 Indian nations involved as establishing a compact to  23 deal with issues of territorial and political  24 integrity within the framework of a protectorate  25 relationship with the crown.  To the Indian nations,  26 in the context of negotiations in which their tribal  27 governments negotiated with the government of the  28 Queen, the recognition of the chiefs by the treaty  29 commissioners, as reflected in such protocol as the  30 investing of the chiefs with medals and uniforms,  31 affirmed the authority of these tribal governments.  32 Thus, in Commissioner Laird's official report on  33 treaty 7, he states:  34  35 "After their names were called over, I gave the  36 head chiefs of the Blackfeet, Blood, Peigans,  37 and Sarcees, their flags and uniforms, and  38 invested them with their medals.  While I was  39 shaking hands with them, acknowledging their  40 chiefs in the name of the great Mother, the  41 band played 'God save the Queen.'"  42  43 THE COURT:  Is it convenient to take the afternoon adjournment?  44 MR. JACKSON:  That would be an appropriate time, my lord.  45 THE REGISTRAR:  Order in court.  Court stands adjourned for a  46 short recess.  47 2415?  Submissions by Mr. Jackson  1  2  3  4  5  6 (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)  7  8 I hereby certify the foregoing to be  9 a true and accurate transcript of the  10 proceedings herein transcribed to the  11 best of my skill and ability.  12  13    14 Tanita S. French  15 Official Reporter  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 24159  Submissions by Mr. Jackson  1 THE REGISTRAR:  Order in court.  2 THE COURT:  Mr. Jackson.  3 MR. JACKSON:  As I understand, Your Lordship has been acquainted  4 with the bad news that we will be going on late  5 tonight.  6 THE COURT:  Well, not really.  7 MR. JACKSON:  Subject to Your Lordship's wishes, I would propose  8 to go until 5:00.  9 THE COURT:  Yes, that's —  10 MR. JACKSON:  Take a break — I spoke to Madam Reporter, and she  11 said we should break at 4:15 for a short time.  12 THE COURT: Yes, we'll do that.  13 MR. JACKSON:  Top of page 405, my lord.  And I was very briefly  14 reviewing the Indian oral history relating to the  15 negotiations of these -- of this series of treaties,  16 and according to that, the Indian Nations view  17 themselves as having created an ongoing relationship  18 with the Crown with respect to social and economic  19 development in exchange for lands surrendered.  The  20 Indian Nations do not view themselves as having given  21 up their jurisdiction over their people and those  22 resources upon which their livelihoods depended.  The  23 Indian Nation, in agreeing to the annuity provisions,  24 established a political protocol for the annual review  25 of the implementation of the treaty promises.  26 In this way the oral history shows that the  27 principles embodied in the post-Proclamation treaties  28 are consistent with those embodied in the treaties  29 concluded with the Six Nations and the Crown a century  30 before.  But while there is a clear line of continuity  31 in the principles and processes underlying the  32 Covenant Chain and Post-Confederation treaty making,  33 what had changed in the intervening centuries had been  34 the balance of power between the Indian Nations and  35 the Crown and the actual condition of the Indians.  36 More specifically, as we have shown, the Indians of  37 the prairies were facing increased white settlement,  38 devastating epidemics, the influx of whiskey traders  39 into the northwest, and the disappearance of the  40 buffalo.  This is reflected in the different ways in  41 which the protectorate role of the Crown is embodied  42 in the Post-Confederation treaties.  It is not  43 confined to preserving the Indian Nations territorial  44 and political integrity within the unceded lands, but  45 also extends to the protection of the traditional  46 Indian economy and assistance in the development of  47 new forms of Indian economic self-sufficiency. 24160  Submissions by Mr. Jackson  1 The Indian oral history has also revealed very  2 significant differences between the text of the  3 treaties negotiated in the 1870's and the Indian  4 understanding.  The most --  5 THE COURT:  I'm sorry, Mr. Jackson, I am not following this.  6 What is the significance of the oral history in this  7 connection?  There is a written history, and is there  8 a difference?  9 MR. JACKSON:  Well, my lord, the difference is what I am just  10 getting to.  11 THE COURT: All right.  12 MR. JACKSON:  In the sense -- and as I will point out, this is  13 not an issue before Your Lordship as to the  14 difference.  There is a point of significance we say  15 in terms of the nature of the Indian rights which were  16 the subject of treaty making.  And very briefly at  17 page 406 and 407 I have indicated the main elements of  18 the difference, in terms of the extent of the rights  19 ceded.  20 At the bottom of page 406 the oral history which  21 has been assembled in relation to Treaties 4 and 6 has  22 revealed that the elders believed that their ancestors  23 understood the treaty as providing for a limited  24 surrender or sharing of territorial rights.  The  25 anticipated white settlement was agricultural.  26 And over on page 407, the elders' understanding is  27 that the cession did not extend to resources not  28 necessary for agriculture but vital to the Indian  2 9 economy.  30 And you will see at the bottom of page 407, my  31 lord, I make the point that the issue of the  32 differences between the written text of the treaties  33 and the Indians' understanding of them, according to  34 the oral traditions is not an issue before this court.  35 And as Your Lordship has observed, there was a common  36 understanding, and that common understanding of both  37 the Crown and the Indian Nation was that Indian  38 consent was a necessary prerequisite to the  39 acquisition by the Crown of rights to settle and  40 develop Indian territory.  41 And that is the principle reason and purpose for  42 which this evidence is submitted and why these  43 submissions, we say, are relevant to understanding  44 what the fundamental principles governing Indian Crown  45 relationships are.  46 The relevance of the distinctive Indian  47 understanding of the limited nature of the cession and 24161  Submissions by Mr. Jackson  1 the retention of their rights to self-government is  2 that, we say, is that it is a historical link with the  3 treaty making in the 17th and 18th centuries, and  4 explains why Indian Nations in a contemporary 20th  5 century context forcibly argue that the entrenchment  6 of their existing treaty rights in Section 35 gives  7 constitutional recognition to Indian self-government  8 within the context of Canadian confederation and  9 Indian ownership and jurisdiction of the lands and  10 resources essential to Indian economic  11 self-determination.  12 And we will be coming back to that point, my lord,  13 when we deal with Section 35, and also when we deal  14 with the issue of whether or not these treaties  15 constitute a recognition of Indian jurisdiction.  16 I want to turn now, my lord, to Treaties 8 to 11,  17 negotiated in 1899 to 1921.  And as Your Lordship will  18 observe, there was a 22 year hiatus between Treaty no.  19 7, the last of what we may call the settlement  20 treaties, treaties essentially designed to open up  21 territory for agricultural settlements, and Treaty no.  22 8 of the first of what can best be described as the  23 northern resource development treaties.  24 And Treaty 8 is, of course, of particular  25 relevance in this case, because it is the only one of  26 the numbered treaties which covers part of British  27 Columbia.  When Treaties 1 to 7 were signed in the  28 1870's, the Canadian government knew little about the  29 land lying to the north of the fertile belt or about  30 the native people of the region.  However, in the  31 years after 1876 the government became increasingly  32 aware of the potential for settlement of the area, its  33 natural resources and the situation of the Indian  34 Nation inhabiting the region.  Missionaries in  35 particular petitioned the government to sign a treaty  36 to alleviate the economic hardships facing some of the  37 Indians.  The government of the day, however, held to  38 the view that the making of a treaty may be postponed  39 for some years, or until there is a likelihood of the  40 country being requested for settlement purposes.  41 It was not, however, settlement possibilities, but the  42 anticipated wealth of the natural resources of the  43 north which fueled further initiatives for treaty  44 making.  45 As early as 1793, Alexander MacKenzie had  46 mentioned in his journals that tar and oil could be  47 found oozing from the banks of the Athabasca. 24162  Submissions by Mr. Jackson  1 However, it was not until the late 1870's and the late  2 1880's that government geologists and geographers  3 began to take serious notice.  In 1888, the government  4 surveyors reported that there was oil in the MacKenzie  5 Valley.  6 By 1891, page 410, there was sufficient importance  7 attached to the mineral wealth of the north that  8 serious plans were made for signing a treaty with the  9 Indians in the summer of 1892.  The Privy Council  10 report authorizing the treaty clearly indicated that  11 the government's primary motivation was to extinguish  12 the Indian title prior to the development of mineral  13 resources and the construction of railways.  14 THE COURT:  That refers to the Canadian Privy Council?  15 MR. JACKSON:  Yes, my lord.  16 THE COURT:  Yes, thank you.  17 MR. JACKSON:  18  19 "On a report dated 7 January, 1791, from the  20 Superintendent of General Indian Affairs,  21 stating that the discovery of the district  22 Athabasca and in the McKenzie River country,  23 that immense quantities of petroleum exist  24 within certain areas of these regions, as well  25 as the belief that other minerals and  26 substances of economic value such as sulpher  27 and salt are to be found therein, the  28 development of which may add materially to the  29 public wealth, and the further consideration  30 that several railway projects, in connection  31 with this portion of the dominion, may be given  32 effect to at no such remote date...appear to  33 render it advisable that a treaty or treaties  34 should be made with the Indians who claim these  35 regions as their hunting grounds, with a view  36 to the extinguishment of the Indian title in  37 such portions of the same, as it may be  38 considered in the interest of the public to  39 open up for settlement.  The minister, after  40 fully considering the matter, recommends that  41 negotiation for a treaty be opened up during  42 the ensuing season."  43  44 My lord, again you can see the continuity here  45 between the Robinson treaties, where the treaties were  46 initiated as a result of discovery of mineral wealth  47 around Lake Huron, and this initiation of treaty 24163  Submissions by Mr. Jackson  1 making in 1891.  2 THE COURT: This date in the first line of that passage must be  3 1891.  4 MR. JACKSON:  Should be 1891, my lord.  5 THE COURT: Thank you.  6 MR. JACKSON:  As it turned out, my lord, while this was meant to  7 initiate treaty making, no such treaty negotiations  8 were opened up in 1892.  The reasons have to do with  9 political instability followed by the death of Prime  10 Minister MacDonald, and we aren't terribly concerned  11 with those facts.  12 Paradoxically, it was the discovery of gold in the  13 Klondyke in 1896 which eventually precipitated the  14 negotiation of Treaty No. 8.  The entry of large  15 numbers of white prospectors, mainly Americans, into  16 the MacKenzie Valley on their way to the Yukon gold  17 fields and the problems this posed for peaceful  18 relationships with the native people of the area led  19 to renewed calls for a treaty.  In 1897 a report from  20 the Northwest Mounted Police referred to the intrusive  21 effects of white trappers, and that the Indians felt  22 it unjust the people who are not owners of the country  23 are allowed to rob them of their living.  24 In June of 1898, some 500 Indians from the Fort  25 St. John region of British Columbia asserted their  26 territorial rights by refusing to allow police and  27 miners to pass through the area until a treaty was  28 signed.  They protested that some of their horses had  29 been shot, and that the influx of so many men would  30 drive away fur-bearing animals.  31 And I set out at the top of page 412 a report from  32 Charles Mair, who accompanied the so-called half-breed  33 commission, which went with the treaty commissioners  34 for Treaty No. 8, a document which gave the holder the  35 right to take up an acreage, which was the way in  36 which the Metis were dealt with as part of the  37 negotiation of Treaty No. 8.  And Charles Mair notes  38 the congenital attempt, being his rights displayed by  39 the -- those on their way to making fame and fortune  40 in the Klondyke.  He says:  41  42 "An outcry arose in consequence, which  43 inevitably would have led to reprisals and  44 bloodshed had not the government stepped in and  45 forestalled further trouble by a prompt  46 recognition of the natives' title."  47 24164  Submissions by Mr. Jackson  1 Aside from conflicts between miners enroute to the  2 Yukon and the Indian people, the government was also  3 concerned that the gold rush would open other areas of  4 the north to both mining and agriculture.  In 1980,  5 the Deputy Minister of Indian Affairs gave this  6 detailed explanation.  7 THE COURT:  I'm sorry, in 1900.  8 MR. JACKSON:  In 1900 the Deputy Minister of Indian Affairs gave  9 this detailed explanation of why negotiations for  10 Treaty 8 were initiated:  11  12 "Although there was no immediate prospect of any  13 such invasion by settlement as threatened the  14 fertile belt in Manitoba and the Northwest  15 Territories and dictated the formation of  16 treaties with the original owners of the soil,  17 nonetheless, occasional squatters had found  18 their way at any rate into the Peace River  19 district.  20 While under ordinary circumstances, the  21 prospect of any considerable influx might have  22 remained indefinitely remote, the discovery of  23 gold in the Klondyke region quickly changed the  24 aspect of the situation.  Parties of white men  25 in quest of a road to the gold fields began to  26 traverse the country, and there was not only  27 the possibility ahead of such travel being  28 greatly increased, but that the district itself  29 would soon become the feed of prospectors who  30 might at any time make some discovery which  31 would be followed by a rush of miners to the  32 spot.  In any case, the knowledge of the  33 country obtained and diffused, if only by  34 people passing through it, could hardly fail to  35 attract attention to it as a field for  36 settlement.  For the successful pursuance of  37 that human and generous policy which has always  38 characterized the dominion in its dealings with  39 the aboriginal inhabitants, it is of vital  40 importance to gain their confidence at the  41 outset, for the Indian character is such that,  42 if suspicion or distrust once be aroused, the  43 task of eradication is extremely difficult.  44 For these reasons it was considered that the  45 time was right for entering into treaty  46 relations with the Indians of the district, and  47 so setting at rest the feeling of uneasiness 24165  Submissions by Mr. Jackson  1 which was beginning to take hold of them, and  2 laying the foundation for permanent, friendly  3 and profitable relations between the races."  4  5 And "permanent, friendly and profitable relations  6 between the relations", my lord, was meant to be  7 underlined.  8 We say, my lord, that the contemporaneous evidence  9 surrounding the negotiation of Treaty 8 leaves little  10 doubt that the foundation for permanent, friendly and  11 profitable relationships between the races lay in a  12 compact, whereby the Indians would guarantee innocent  13 passage for whites in exchange for the Crown's  14 guarantee of non-interference with the Indians'  15 traditional economy and political autonomy.  Although  16 Treaty 8 was conceived in part by the government of  17 Canada as one of peace and friendship, its actual  18 text, like that of its predecessors, contains the  19 standard clause whereby the Indian Nations cede all of  20 their legal interests in the lands comprised within  21 the treaty area.  The text also contains that the by  22 now familiar provisions regarding payment of  23 annuities, provision of educational assistance and the  24 supply of agricultural implements and supplies --  25 MR. WILLMS:  My lord, my friend read "the contemporaneous  26 evidence", and I don't know what evidence at trial.  27 Maybe that's not what he means by evidence at trial by  28 "contemporaneous evidence".  I don't recall any  29 evidence that supports those propositions.  If my  30 friend knows of some he hasn't cited --  31 MR. JACKSON:  I wasn't referring to evidence given in this  32 trial, my lord.  I was referring to the evidence which  33 we say is contained in the various treaties, which is  34 contained in the decision of Paulette surrounding the  35 negotiation of Treaty No. 8 was that reference, not to  36 any specific evidence which has been led in this  37 trial.  38 THE COURT:  You are talking about learning.  39 MR. JACKSON:  Learning, my lord.  And we say, my lord, over at  40 page 414, and this is what I am referring to by what I  41 may -- there characterizes contemporaneous evidence.  42 At page 414 we say despite the explicit text of  43 Treaty 8, which as I say contains the standard clause  44 of the number of treaties whereby the Indians cede,  45 release, yield up their rights, the documenatary  46 record of the negotiation of the treaty and the Indian  47 oral history is to the effect that the Indian people 24166  Submissions by Mr. Jackson  1 did not see the treaty as a surrender of their  2 aboriginal rights.  Rather they considered it as a  3 treaty of peace and friendship.  4 And Mr. Justice Berger in his report on MacKenzie  5 Valley Pipeline Inquiry, made note of the fact that  6 many of the witnesses that gave evidence before him  7 record the words that Chief Drygeese spoke when Treaty  8 8 was signed at Fort Resolution in the dying days of  9 the 19th century.  Drygeese said:  10  11 "If it is going to change, if you want to change  12 our lives, then it is no use taking treaty,  13 because without treaty we are making a living  14 for ourselves and our families ... I would like  15 a written promise from you to prove you are not  16 taking our land away from us ... there will be  17 no closed season on our lands.  There will be  18 nothing said about the land ... my people will  19 continue to live as they were before and no  20 white man will change that ... you will in the  21 future want us to live like white man does and  22 we do not want that ... the people are happy as  23 they are.  If you try to change their ways of  24 life by treaty, you will destroy their  25 happiness.  There will be a bitter struggle  26 between your people and my people."  27  28 And at page 415 I set out a similar concern  29 expressed during the treaty negotiations at Lesser  30 Slave Lake.  31 At page 416, my lord, the treaty commissions  32 themselves in their report to the government on the  33 negotiation of Treaty 8 commented on the pervasiveness  34 of the Indian concerns that their way of life not be  35 interfered with, and the promises which they had to  36 give in order to assure the signing of the treaty.  37  38  39 "Our chief difficulty was that the apprehension  40 that the hunting and fishing privileges were to  41 be curtailed.  The provision in the treaty  42 under which ammunition and twine is to be  43 furnished went far in the direction of quieting  44 the fears of the Indians, for they admitted  45 that it would be unreasonable to furnish the  46 means of hunting and fishing if laws were to be  47 enacted which would make hunting and fishing so 24167  Submissions by Mr. Jackson  1 restricted as to render it impossible to make a  2 livelihood by such pursuits.  But over and  3 above the provision, we had to solemnly assure  4 them that only such laws as to hunting and  5 fishing as were in the interest of the Indians  6 and were found necessary in order to protect  7 the fish and fur-bearing animals would be made,  8 and that they would be as free to hunt and fish  9 after the treaty as they would be if they never  10 entered into it ... the Indians were generally  11 averse to being placed on reserves.  It would  12 have been impossible to have made a treaty if  13 we had not assured them that there was no  14 intention of confining them to reserves.  We  15 had to very clearly explain to them that the  16 provisions for reserves and allotments of land  17 were made for their protection, and to secure  18 to them in perpetuity a fair portion of the  19 land ceded, in the event of settlement  2 0 advancing."  21  22 And, my lord, when we deal with the reserve  23 question in the context of British Columbia, we will  24 be addressing this issue of the extent to which  25 promises and guarantees of reserves were seen by  26 Indians in British Columbia outside of the treaty in  27 context as being a recognition of the full extent of  28 their rights to lands, or whether those reserves were  29 granted with the knowledge and assurances that this  30 did not foreclose claims and rights to areas outside  31 of the reserves.  32 Treaty 8 was first signed by Indians within  33 British Columbia in 1900 in Fort St. John.  However,  34 for many years a number of Indian bands within the  35 territorial limits of Treaty 8 resisted the idea of  36 signing treaty.  Thus, a report of the inspector for  37 Treaty No. 8, in 1903, noted in relation to one such  38 group:  39  40 "The Indians at this place are very independent  41 and cannot be persuaded to take treaty.  Only a  42 few families joined.  The Indians there said  43 they did not want to take treaty, as they had  44 no trouble in making their own living.  One  45 very intelligent Indian told me that when he  46 was old and could not work, he would then ask  47 the government for assistance, but until then 2416?  Submissions by Mr. Jackson  1 he thought it was wrong for him to take  2 assistance when he did not really require it."  3  4 And I note at the bottom of page 417 and the top  5 of page 418 that it was some years before other  6 Indians were brought into the legal purview of Treaty  7 No. 8 in British Columbia.  8 At page 418 the boundaries of Treaty 8 were drawn  9 to include the areas likely to be opened up by miners  10 or settlers, and did not include the area inhabited by  11 the Indians north of Great Slave Lake, even though the  12 Indians in that area were in fact related very much to  13 Indians south of the lake.  14 In the words of the Indian commissioner Amedee  15 Forget.  16  17 "That territory so far as it is at present known  18 is of no particular value and they very rarely  19 come into contact with whites."  20  21 That official position, my lord, was maintained  22 that there was no need to negotiate a treaty with the  23 Indians north of Great Slave Lake until a dramatic  24 moment in 1920.  Page 419 you will note that dramatic  2 5 moment as the moment when the imperial oil company  26 struck oil on the MacKenzie River below Fort Norman.  27 And the government quickly moved to ensure that these  28 oil rich lands would be legally open for industrial  29 development and free of any Indian proprietary  30 interest.  The dominion surveyor wrote:  31  32 "The recent discovery of oil at Norman Wells  33 have been made on lands virtually belonging to  34 those tribes of non-treaty Indians.  Until  35 treaty has been made with them, the right of  36 the mining lands and Yukon branch to dispose of  37 these oil resources is open to debate."  38  39 And, my lord, the significance of this, we say, is  40 that the delay of signing Treaty no. 11, there were  41 humanitarian reasons for negotiating the treaty  42 before, in terms of peaceful relationships with the  43 Indians.  They were in considerable dire strait, as  44 reported by the Bishop of the Northwest Territories.  45 The Crown, however, determined that only when the  46 lands were -- it was necessary as it were to remove  47 the legal impediment to resource development, that 24169  Submissions by Mr. Jackson  1 treaty negotiations were opened up to remove that  2 impediment and as it were to remove any legal cloud on  3 the title of the Crown to develop those resources.  We  4 say that is highly significant evidence that it was a  5 legal entitlement, aboriginal title was recognized and  6 that treaty making was the appropriate way in which  7 aboriginal title was extinguished in order to free the  8 Crown's rights to develop resources.  And the  9 negotiation of Treaty 11, if not an example of the  10 honour of the Crown in responding to Indian needs,  11 certainly reflects the continuity of the principle  12 that an extinguishment of their rights is necessary  13 before lands can be developed by the Crown.  14 And page 419 at the bottom of the page I set out  15 the negotiations of Treaty no. 11.  It was negotiated  16 in a remarkable short space of time following upon the  17 discovery of oil on the MacKenzie River, and I make  18 the point that as in the case of Treaty No. 8, the  19 Dene, the Indians of the Northwest Territories,  20 maintain that as they understand the treaty  21 negotiations, despite its very explicit text, they  22 ceded all their rights subject to certain guarantees  23 in relation to hunting and trapping, that the treaty  24 was one of peace and friendship, and that they did not  25 surrender either their right to self-government, nor  26 did they surrender the rights to territories upon  27 which their traditional economy is based.  28 And because, I say, my lord, at page 420 of the  29 relative proximity of time in Treaty no. 11, it's  30 1921, we have in fact an oral history of this treaty  31 which has been documented.  And it has been documented  32 in it two ways.  One through evidence which was  33 presented during the course of the hearings before Mr.  34 Justice Morrow in the Paulette decision in 1974 in  35 which Mr. Justice Morrow journeyed to a number of the  36 villages in which --  37 THE COURT:  Mr. Jackson, I can understand why you want me to  38 hear about these treaties and the economic  39 circumstances surrounding them, but I am a little  40 troubled about oral testimony that contradict the  41 terms of the treaties and how that can possibly be  42 relevant to this case.  43 MR. JACKSON:  Well, my lord, the only point I wish to make in  44 relation to Treaties 8 and 11 is that the negotiation  45 of those treaties, as it's reflected in the oral  46 evidence, reflects an Indian understanding that those  47 treaties did not amount to a surrender of their rights 24170  Submissions by Mr. Jackson  1 to self-government.  2 THE COURT:  Well, I can understand that being litigated someday,  3 but I am completely unable to understand how it can  4 have any relationship to this case.  5 MR. JACKSON:  My lord, I don't — I don't rely upon that  6 evidence for more than the proposition which I have  7 just asserted, that the treaty making of Treaty 8 and  8 11 --  9 THE COURT:  Recognized a legal obligation?  10 MR. JACKSON:  Yes, my lord.  11 THE COURT:  I have that point.  12 MR. JACKSON:  I can move -- and in terms of the litigation, the  13 Paulette decision, of course, was a case in which the  14 question of Treaty 8 extinguish the aboriginal title  15 of the Indians was before the Court at an  16 interlocutary stage for the purpose of determining  17 whether or not a caveat could be issued against those  18 lands on the basis that the Dene had unextinguished  19 aboriginal title, and that the treaty was not legally  20 effective to extinguish that title for a variety of  21 reasons, one of which that there was not a consensus  22 ad item, and that's where the oral history came in, my  23 lord.  And in that case Mr. Justice Morrow came to the  24 conclusion that based upon the oral history there was  25 a serious issue to be tried, as it were, and that on  26 that basis a caveat could be issued.  27 On that point, as I note at 422, the Northwest  28 Territories Court of Appeal and the Supreme Court of  29 Canada took the position not dealing with the issue of  30 treaty rights at all that a caveat could not be issued  31 against unregistered Crown lands.  32 At page 422, my lord, I deal with two other  33 treaties which were negotiated as part of the numbered  34 treaties.  Chronologically they were negotiated in the  35 years between Treaty 8 and 11.  Treaty no. 10 was  36 negotiated in 1906 and 1907 with the Chippewa and Cree  37 of Northern Saskatchewan, and dealings with part of  38 northeast Alberta, and northern -- and northern  39 Saskatchewan and part of northeast Alberta, and Treaty  40 no. 9, which is sometimes referred to as the James Bay  41 Treaty, was signed with the Ojibway and Cree of  42 Northern Ontario in 1905.  43 And you will see, my lord, that we say that the  44 negotiation of Treaty no. 9, as with the other  45 treaties we have considered, was undertaken with a  46 view to extinguish the Indian title in order to enable  47 development to proceed in northern Ontario.  And the 24171  Submissions by Mr. Jackson  1 letter of transmission from the treaty commissioners  2 to the Superintendent General of Indian Affairs is  3 quite explicit:  4  5 "Increasing settlement, activity in mining and  6 railway construction in that large section of  7 the Province of Ontario... render it advisable  8 to extinguish the Indian title."  9  10 At page 423, my lord, we note that Treaties 9 and  11 10 follow the standard model of the other numbered  12 treaties, save and except for the fact that one of the  13 three treaty commissioners for Treaty no. 9 was  14 selected by the provincial government.  Like the other  15 treaties, Treaty 9 was drafted by the federal  16 government.  Ontario took part in negotiations only at  17 the very end.  The reason for Ontario's presence,  18 again takes us back to the Privy Council decision in  19 St. Catherine's Milling.  For present purposes of  20 understanding Ontario's involvement in Treaty no. 9,  21 it's sufficient to note that following confederation a  22 dispute arose between the Dominion Government and the  23 government of Ontario over the provincial boundaries.  24 Ontario claimed that its western limit extends to the  25 Lake of the Woods, and its northern boundary to the  26 Albany River, and this territory was awarded to  27 Ontario in 1884 as a result of the decision of the  28 judicial council in another case.  The Dominion,  29 however, still claimed the natural resources of the  30 disputed lands by virtue of Treaty no. 3, and granted  31 a licence to St. Catherine's Milling.  And litigation  32 ensued, the legal effect of which was determined that  33 the benefits of Treaty no. 3 enured to Ontario.  34 Ontario continued to dispute the status of reserve  35 lands granted to the Indians by the Dominion Treaty  36 Commissioners in Treaty no. 3.  And to resolve this  37 outstanding dispute, in 1894 both the federal  38 government and Ontario government signed an agreement  39 clarifying the question of Treaty 3 reserves.  And  40 under that agreement it was provided that any future  41 treaties with the Indians in respect of territory in  42 Ontario, they should require the concurrence of the  43 government of Ontario.  And was also a provision that  44 one member of any treaty commission should be  45 nominated and should represent Ontario.  46 At page 424, 425, my lord, I have set out in  47 summary form the judgment of the provincial court in 24172  Submissions by Mr. Jackson  1 Crown against Batisse, where the learned Judge  2 Bernstein rejected Ontario's argument that by virtue  3 of this federal provincial agreement, Ontario, as it  4 were, gained a legal footing in Treaty no. 9, and that  5 by virtue of Ontario's participation in the treaty, it  6 gained the right to regulate Indian hunting rights.  7 That argument was rejected.  8 At page 425 and 426 and 427 I note that there was  9 several other treaties, which although not part of the  10 numbered treaties, were negotiated in 1923 to complete  11 the extinguishment of Indian title in the last large  12 areas of unceded land in southern Ontario.  And Your  13 Lordship will observe that it appeared that there were  14 certain areas in southern Ontario which were claimed  15 by the Chippewas, which had never been the subject of  16 a valid treaty, and as a result of a Royal Commission  17 looking into the matter, it was recommended that  18 further treaties be made with these Indian Nations in  19 order to quiet or perfect the Crown's title to those  20 lands.  And those treaties were negotiated in 1923.  21 And what we say at page 427 is that these treaties  22 in 1923, like their predecessors, reflect the  23 continuity of the acknowledgement and recognition by  24 the Crown of its legal obligation to obtain a  25 surrender to the treaty process of the legal interest  26 of the aboriginal peoples in their territories prior  27 to the opening up of that territory for settlements  28 and agricultural or industrial development.  29 No more numbered treaties were signed, my lord,  30 after Treaty no. 11 in 1921, although over the years  31 there had been significant adhesions and extensions of  32 the existing treaties.  I noted that, for example,  33 Treaty No. 8, even though it was signed initially in  34 1900, as the treaty commissioners would go and journey  35 through the areas on their annual treaty making  36 journeys, Indians would be brought into the treaty who  37 were not present in previous years, and therefore  38 there were a series of adhesions over the years in  39 B.C., and there were adhesions to the other numbered  40 treaties down to as late as 1956 for adhesions to  41 Treaty no. 6.  42 THE COURT:  Did British Columbia join Treaty 8?  43 MR. JACKSON:  British Columbia was not a participant to Treaty  44 No. 8.  The question of British Columbia's involvement  45 in recognition of in relationship to Treaty no. 8 is  46 the subject, my lord, both of specific submissions by  47 my friends, and Mr. Rush will in fact also be dealing 24173  Submissions by Mr. Jackson  1 with that issue.  2 THE COURT:  Yes, all right.  3 MR. JACKSON:  It is our position, my lord, that British Columbia  4 agreed to and accepted the terms of Treaty No. 8.  5 MR. JACKSON:  I want now, my lord, to turn to the last section,  6 and it is for the period 1975 to 1990, which I have  7 termed "Modern Treaty Making".  8 My lord, the over 300 year history of treaty  9 making with Indian Nations experienced a hiatus in the  10 years following the signing of Treaty no. 11 in 1921  11 and the last southern Ontario treaties in 1922.  The  12 period after 1925 was also one in which, as we shall  13 show later in our submissions, after a century during  14 which the courts regularly were required to address  15 issues of aboriginal rights, the concept of aboriginal  16 rights itself went into legal partial eclipse.  In  17 part, the relative lack of judicial consideration and  18 development of aboriginal rights during this period  19 can be explained by an amendment to the Indian Act  20 passed in 1927 which prohibited Indian people from  21 either raising money for the advancement of a land  22 claim or prosecuting claims to land.  This provision  23 remained in force until a major revision of the  24 Indian Act in 1951.  25 During the 1950's and 60's a number of proposals  26 were made for the establishment of an Indian claims  27 commission to deal with both issues arising from  28 treaty and aboriginal rights claims paralleling the  29 Indian claims commission which had been established in  30 the United States.  31 And tomorrow or the next day, my lord, I think it  32 will be late tomorrow at the earliest, I will be  33 addressing the Indian claims process in the United  34 States, and it was the initiatives were based upon  35 that model.  36 However, in 1969 the post-war momentum behind the  37 resolution of claims based on aboriginal rights was  38 halted with the statement of the government of Canada  39 on Indian policy, the so-called 1969 white paper which  40 called for a dramatic shift in the historical  41 relationship between aboriginal peoples and the  42 Canadian government.  Although the government  43 indicated that it would be prepared to resolve lawful  44 obligations, such as improper administration of Indian  45 funds and breach of treaty rights, including failure  46 to set aside reserves as promised in treaties, it did  47 not regard claims based on aboriginal rights as an 24174  Submissions by Mr. Jackson  1 important element of the proposed new policy.  And  2 that policy essentially called for the termination of  3 the special rights and status of aboriginal peoples  4 within Canadian society.  The destiny of Canada's  5 aboriginal peoples was to be no more and no less  6 than equal access to the ordinary rights and  7 opportunities of other Canadians.  8 And, my lord, at page 429 I have set out a speech  9 made by the again Prime Minister of Canada, Pierre  10 Elliot Trudeau, in August of 1969, which sets out the  11 government of Canada's position as of that point.  And  12 I would just refer Your Lordship to several pages.  13 Before I start, my lord, I believe your lordship's  14 copy of this text is missing page 430 and 431.  Is  15 that —  16 THE COURT:  I have 430.  I have them.  17 MR. JACKSON:  There are new 430 or 431.  These pages — I am the  18 least conversant on our legal team with computers --  19 and as these pages when they got reformated  20 disappeared, reappeared in a revised version, and I  21 have an almost correct version here.  There are still  22 a couple of lines missing, which I will have to take  23 Your Lordship to, but if you can substitute these  24 pages for the ones you had, and tomorrow I will give  25 you a revised page 431.  I apologize for this, my  26 lord.  27 THE COURT:  You mean you are going to change 431 again?  28 MR. JACKSON:  431, when we get to the end of 431, my lord, there  29 is several lines which are missing.  30 THE COURT: I see.  All right.  31 MR. JACKSON:  But, in 1969 Mr. Trudeau, and I am going to the  32 bottom of the page, four lines up where he says:  33  34 "One of the things the Indian bands often refer  35 to are their aboriginal rights.  And in our  36 policy the way we propose it, we say we won't  37 recognize aboriginal rights.  We will recognize  38 treaty rights, we will recognize forms of  39 contract which have been made with the Indian  40 people by the Crown, and we will try to bridge  41 justice in that area.  And this will mean that  42 perhaps the treaties shouldn't go on forever.  43 It's inconceivable, I think, that in a given  44 society one section of society have a treaty  45 with the other section of society.  We must be  46 all equal under the laws, and we must not sign  47 treaties amongst ourselves, and many of these 24175  Submissions by Mr. Jackson  1 treaties indeed would have less and less  2 significance in the future anyhow."  3  4 Then a few lines down, my lord.  5 THE COURT:  This is just Mr. Trudeau talking making a speech,  6 isn't it?  7 MR. JACKSON:  This is Mr. Trudeau making a speech, my lord, in  8 relation to a government policy.  9 THE COURT:  That's surely not of any evidentiary value.  10 MR. JACKSON:  My lord, we say it's not.  My purpose in citing it  11 is to help Your Lordship tract through the various  12 shifts in government policy in this period, not in and  13 of themselves that they are significant.  Government  14 policy, we say, is not necessary evidence, nor  15 sufficient evidence of lawful obligations, but we are  16 tracting through in a very brief way government policy  17 against what we say is a continuing process of treaty  18 making.  19 THE COURT:  I just don't think I can give any legal effect to  20 something the prime minister makes in a speech.  He  21 may well -- he was the prime minister, but that's not  22 how legal rights are decided.  23 MR. JACKSON: No, my lord, and as you will very shortly see, Mr.  24 Trudeau having given his opinion, and I take Your  25 Lordship's point, that it is his opinion, that opinion  26 was very quickly changed precisely because of a legal  27 adjudication in the form of the Calder case having in  28 1969 taken the case that Indians had no rights.  2 9 THE COURT: Well, go ahead.  30 MR. JACKSON:  And the point I am seeking to get to is that in  31 1973, following the decision of the Supreme Court of  32 Canada in Calder, where six judges of the Supreme  33 Court who dealt with the merits in our submission took  34 the position that aboriginal rights did indeed exist  35 in law.  They split on the question of whether in  36 British Columbia those rights continued to exist, and  37 of course that is the precise issue before Your  38 Lordship, but the judges of the Supreme Court having  39 taken the position that there was in fact a wealth and  40 depth of juris prudence on the issue of aboriginal  41 rights, the government in 1973 issued a new policy  42 position in which it acknowledged a continuing  43 obligation on the part of the government to negotiate  44 treaties or land claim settlements.  And my point in  45 referring to this is only, my lord, because it is this  46 new policy statement in 1973 which marks the beginning  47 of what I say is the modern era of treaty making.  And 24176  Submissions by Mr. Jackson  1 I don't cite the policy for anything more than that,  2 my lord, and I don't ask Your Lordship to take  3 judicial notice or to use the policy in any way in the  4 adjudication of the rights of the plaintiffs.  5 MR. WILLMS:  My lord, I am concerned about the references to  6 policy to this extent.  My friend seems to say that  7 they finally got the policy in accordance with the  8 legal rights, which is an invitation for us to look  9 through other policy statements to show that it was  10 just good grace.  None of this was put in evidence.  11 My friend should say that it's political, and that  12 he's not relying on it, as Your Lordship, I think,  13 indicated, or he should say what the purpose of it is,  14 and what the legal effect is, so that we can deal with  15 it if need be.  16 THE COURT:  Well, I am not going to stop you, Mr. Jackson, but I  17 have a lot of sympathy with what your friend has said.  18 I can understand all sorts of the comments that you  19 have read to me, because they provide the factual  20 other opinions for executive action creating legal  21 rights, but the politicians have their place of  22 ventilation and we have ours, and I really have  23 difficulty seeing how I can give any legal effect to  24 any of this.  I think we are far enough along here  25 that I am not going to stop you.  26 I do say that in defence of my reporters, that you  27 are wearing them out at a very rapid rate, and I hope  28 you won't read anything that doesn't need to be read.  29 If you want my undertaking, I will certainly read it.  30 I haven't got to it yet, but I will read it.  But I  31 don't think I see much point to reading it out loud,  32 but I will leave that in your hands to do as you think  33 you have to do.  34 MR. JACKSON:  My lord, I will — I intended to summarize this  35 part of the material in any event, and just addressing  36 myself to my friend's comments, we are not suggesting  37 here that the government's statements at this point,  38 recent statements, are the litmus test of whether Your  39 Lordship should acknowledge the plaintiffs have  40 aboriginal rights or their extent.  In the same way,  41 my lord, in reading to you the statements of Crown  42 officials in the 19th century, I was not suggesting to  43 you here is a statement by a Crown official, that's  44 the law.  45 THE COURT:  No, I understand that.  46 MR. JACKSON:  I was reading those statements, my lord, to the  47 extent they reflect what we say are fundamental 24177  Submissions by Mr. Jackson  1 principles which have grown and ripened off into the  2 rules of the common law and to that extent are  3 reflective of it.  And in addressing the shift in  4 government policy in recent years in Canada, it was  5 meant to show why in fact treaty making has been  6 ushered in its most recent modern format.  It is our  7 point, my lord, that these recent treaties, the modern  8 land claims agreement, are in fact part of the  9 historical continuity of treaty making in Canada, but  10 these modern treaties are very much reflective and  11 responsive to the recognition of the fundamental  12 principles which we say govern Crown Indian  13 relationships, and to that extent are part of the  14 corpus of material which shows that the principles of  15 consent are essential to the development and  16 settlement of territories originally within the  17 proprietorship of Indian Nations.  18 And, my lord, at the bottom of page 431 I note  19 that since the policy statement of the federal  20 government in 1973 there had been a series of what we  21 refer to as modern land claims agreements.  And the  22 ones which are in the text are the James Bay and  23 northern Quebec agreement, the northeastearn Quebec  24 agreement in 1978, the Inuvialuit Final Agreement in  25 1983.  And the other agreements which have been left  26 off Your Lordship's copy are the Dene, D-E-N-E, Metis,  27 M-E-T-I-S, comprehensive land claim agreement in  28 principle in May of 1988, and the council for Yukon  29 Indians' comprehensive land claims agreement in  30 principle in May of 1989.  31 And what we say, my lord, is that the entrenchment  32 of aboriginal -- and then at page 432 continues as it  33 is, my lord.  The entrenchment of aboriginal and  34 treaty rights in the Constitution Act of 1982 in fact  35 is the best reflection of the continuity of what we  36 say are fundamental principles, and the continuity in  37 the treaty making process between the modern land  38 claims agreements and the earlier treaties is  39 recognized in specifically in the constitution  40 amendment Proclamation of 1983, which provides that  41 treaty rights include rights which -- that now exist  42 by way of land claims agreements or may be so  43 acquired.  44 In other words, the constitution now recognizes,  45 my lord, modern land claims agreements as treaties.  46 And that's why we say these modern land claims  47 agreements are part of the historical chain of 2417?  Submissions by Mr. Jackson  1 recognition.  2 And at page 432 through to pages 466 what I have  3 done, my lord, is to set out in a very abbreviated  4 form the main contours of these modern land claims  5 agreements.  And I don't intend to take Your Lordship  6 through them, but Your Lordship will see that they  7 bear upon many of the principle themes of the original  8 numbered treaties.  They, however, are negotiated with  9 the benefit of hindsight.  They are negotiated with  10 the benefit of the way in which broadly based promises  11 in the numbered treaties were to the Indian conception  12 of the matter not implemented.  How in fact promises  13 of economic assistance were not in fact sufficient to  14 the purpose.  How evidence of protection of hunting  15 rights were not in fact the measure of Indian claims.  16 And these modern agreements seek both by virtue of  17 their complexity and their sophistication to work out  18 an economic and social accommodation, an accomodation  19 of the legal rights of the aboriginal peoples, and an  20 accommodation to the interests of the Crown in the  21 context of a modern complex industrial society.  22 And it is our submission, my lord, that modern  23 treaty making is in fact the principle vehicle for the  24 accommodation of aboriginal peoples and Crown's  25 interests in the same way as it was in the 17th  26 century, in the same way as it was in the 18th  27 century, in the same way as it was in the 19th  28 century.  And we say that these modern land claim  29 agreements give Your Lordship a sense of the way in  30 which that accommodation is worked out.  They deal  31 with joint management processes for Fisheries, for  32 enviromental protection, for hunting regimes.  They  33 give up certain rights on the part of the aboriginal  34 people, certain rights are maintained, and they are  35 the working through of treaty making as we say in the  36 context of a modern complex society.  37 And I would, however, ask Your Lordship to read  38 those sections.  I won't in fact be going through them  39 in any more detail.  It this would be a convenient  40 time to take a short break, and I can finish probably  41 within half an hour.  42 THE COURT:  Yes.  All right.  We'll take the next adjournment,  43 thank you.  44  45  46  47 24179  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 24180  Proceedings  1  2 (PROCEEDINGS RESUMED PURSUANT TO A BRIEF ADJOURNMENT)  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Jackson.  6 MR. JACKSON:  My lord, the only further comment I wish to make  7 about the Modern Land Claims Agreements and, as I  8 said, I will leave it for your lordship in your own  9 reading, is to note the fact that the areas which are  10 covered by the Modern Land Claims Agreement, the James  11 Bay Agreement of 1975 covers some 400,000 square miles  12 of northern Quebec.  The Inuvialuit Final Agreement of  13 1983 covers the western Arctic around the Mackenzie  14 Delta.  The Dene/Metis Agreement in principle covers  15 the area which was originally the subject of Treaties  16 8 and 11 and therefore covers some approximately  17 450,000 square miles of the western Arctic.  The Yukon  18 Agreement, and I understand the final Yukon Agreement  19 is in the process of being initialled, will cover the  20 whole of the Yukon Territory, and an agreement in  21 principle has now been signed between the Inuit of the  22 eastern Arctic and the Government of Canada.  And so  23 the Modern Land Claim period is of significance not  24 only because of the way in which it reflects how  25 treaty-making has taken on a great deal of  26 sophistication in the context of the modern industrial  27 society, but also the areas which it now covers brings  28 within the pale of treaty-making most of Canada.  29 And with that, my lord, I want to turn to page  30 466.  Before I do and before I forget again, I just  31 want, my lord, to return to the matter which I raised  32 after lunch at the Bernard opinion.  That should go  33 into your material, my lord, by way of a note at page  34 371.  You will see that there is a natural break at  35 371 beginning with "Treaty-Making in the  36 post-Confederation Period", immediately before that,  37 and the exhibit reference, my lord, is 1256.  38 THE COURT:  This would be in the space immediately above  39 "Treaty-making"?  4 0 MR. JACKSON:  Yes, my lord.  41 THE COURT:  Yes.  Exhibit?  42 MR. JACKSON:  1256-11 tab 35.  43 THE COURT:  And that is the legal opinion of who, please?  44 MR. JACKSON:  Hewitt Bernard, solicitor for the Department of  45 Indian Affairs.  4 6 THE COURT: And the date?  47 MR. JACKSON:  1866. 24181  Submissions by Mr. Jackson  1 THE COURT:  Thank you.  2 MR. JACKSON:  466, my lord.  3 The two principal areas which still remain outside  4 the pale of land acquisition treaties are British  5 Columbia and the Atlantic Provinces.  And as we will  6 be demonstrating in British Columbia, the rights of  7 aboriginal peoples were recognized by the colonial  8 authorities in the colony's early development and land  9 acquisition treaties were negotiated in the 1850s.  10 And also, as we have just considered, part of the  11 northeast of the province in the Peace River District  12 is within the boundaries of Treaty 8.  In the case of  13 the Atlantic provinces, while the first recorded  14 treaties in what is now Canadian territory were made  15 with the aboriginal peoples of the Maritimes they  16 dealt principally with the question of political  17 relationships rather than land rights.  We say, my  18 lord, that a review of treaty-making in the Atlantic  19 provinces and the subsequent historical development of  20 Indian policy in these provinces is relevant to the  21 issues in this case insofar as the position taken by  22 colonial officials in those provinces in many ways  23 parallels that taken by colonial officials in British  24 Columbia in the post Governor Douglas era.  And a  25 further and perhaps more important reason for its  26 relevance is that some Canadian judges have taken the  27 position that the lack of land acquisition treaties in  28 the Maritimes is evidence that treaty-making was a  29 matter of policy and not law.  And this argument is  30 reduced I think to its baldest form in the judgment of  31 Mr. Justice Steele in Bear Island and I have cited  32 there from his lordship's judgment where he says:  33  34 "It is also clear that, where there was no  35 concern about Indian insurrection, the Crown  36 did not enter into treaties and paid no  37 attention to any aboriginal rights...  In other  38 words, wherever the Crown felt that it could  39 defend its white citizens, it did not provide  40 for treaties with the Indians."  41  42 My lord, the Provincial Defendant in its  43 submission appears to us adopts Mr. Justice Steele's  44 position and in characterizing aboriginal rights as  45 rights which are created and which depend upon the  46 good will of the sovereign, adopts Mr. Justice  47 Steele's position and in its defence it points to the 24182  Submissions by Mr. Jackson  1 historical experience in Nova Scotia and the absence  2 of land cession treaties as being the best evidence  3 that in fact treaty-making was a matter of policy, not  4 a matter of legal obligation.  And it points to the  5 Maritimes in particular to show that the nature of  6 aboriginal rights, whether arising under the  7 Proclamation or arising as a matter of common law, are  8 personal not propriety interests and are dependent  9 upon the good will of the sovereign and, furthermore,  10 it adopts as we understand it the argument of the  11 Attorney General, the province of Ontario in Bear  12 Island that, where the province grants or makes grants  13 to lands to the extent that those grants conflict with  14 the occupation of Indian peoples, those grants are a  15 revocation of the rights of the aboriginal people  16 because they in effect demonstrate that the pleasure  17 of the Crown has been exercised in a way inconsistent  18 with those continuing rights.  19 And so, my lord, a review of Nova Scotia and New  20 Brunswick we say is important in order for your  21 lordship to resolve that matter, and of course in no  22 way am I seeking to pre-empt my friends.  It was an  23 argument which, even before we had their position, was  24 one which we saw was one which other judges had  25 identified for that particular proposition.  And it is  26 therefore, my lord, that's the reason why we say we  27 have to look at Nova Scotia.  28 It is our submission, though, before I actually  29 deal with the history and I set it out at page 467,  30 that, as in British Columbia, the later policies in  31 Nova Scotia and New Brunswick placed in the context of  32 the legal and historical matrix of relationships  33 between aboriginal peoples and the Crown, as revealed,  34 my lord, by this long historical review I have engaged  35 upon from the 17th century to the 20th century, placed  36 in that legal and historical matrix are the experience  37 in the Maritimes, are illegal abberations rather than  38 precedents upon which a principled determination of  39 the recognition and content of aboriginal rights is to  40 be reached by this court.  41 Your lordship asks what happened on the ground.  42 This is what happened on the ground in Nova Scotia,  43 New Brunswick, my lord.  44 Although the British Crown asserted claims over  45 most of the Maritime region of Canada as early as 1620  46 in the New England Charter, until 1713 with the Treaty  47 of Utrecht the region had, with some interruptions, 24183  Submissions by Mr. Jackson  1 been under French hegemony.  The Micmacs were the  2 first aboriginal peoples to come into contact with  3 Europeans and by the time the British arrived in their  4 lands they had 200 years of experience behind them in  5 dealing with the French.  The Micmacs occupied a  6 territory of 50,000 square miles covering, in present  7 day terms, all of Nova Scotia and Prince Edward  8 Island, most of New Brunswick and the southern Gaspe  9 peninsula of the Province of Quebec.  The first  10 Europeans the Micmacs came into contact with were the  11 fishermen, many of whom, but by no means all, were  12 from France.  Trade with the coastal Indians was as  13 old as the North Atlantic Fishery and its beginning  14 cannot be placed more precisely than at some time in  15 the first quarter of the 16th century.  The Micmacs  16 incorporated the seasonal arrival of the fishermen  17 into their annual economic cycle and the French trade  18 harmonized with Micmac life insofar as it required  19 nothing new of the people who already hunted and  20 traded through the medium of gift exchange.  And my  21 sources for much of this, my lord, are work by  22 Professor Upton called "Micmacs and Colonists,  23 Indian-White Relations in the Maritimes" which have  24 become the standard historical text in the field.  25 It's part of Exhibit 1249 tab 15.  It's a work also  26 which has been cited by the courts of Nova Scotia in a  27 number of decisions dealing with the issue of Micmac  28 rights.  29 My lord, at the bottom of page 468.  Various  30 attempts by the French at colonization started in the  31 17th century but the European population was sparse  32 such as when Acadia passed into English control in  33 1713 there were just over, under the Treaty of  34 Utrecht, 1,500 Acadians with roots going back from two  35 to four generations.  The French, when they took  36 possession of Acadia, did so under what is called the  37 seigneurial system.  The King owned the lands and  38 could theoretically dispose of it at will.  Although  39 no treaty for the cession of lands was made by the  40 French with the Micmacs, as Professor Upton points  41 out, this in large measure can be explained by the  42 fact that the Acadian settlers themselves scarcely  43 intruded into Micmac territory.  As he describes it:  44  45 "Farming on title flats..."  46  47 That should be tidal flats: 24184  Submissions by Mr. Jackson  1  2 "...that were diked to permit cultivation, they  3 were adding new land rather than destroying old  4 hunting grounds.  As far as the Acadians were  5 concerned there could be no question of  6 dominating the Micmacs and bending them to  7 their will.  Mere survival dictated that they  8 live in harmony with the natives.  The King of  9 France might claim ownership of all the land,  10 but the realities of life made the claim  11 meaningless."  12  13 And then I describe how, under the Treaty of Utrecht,  14 the French ceded their rights to Acadia to the British  15 Crown.  And thereafter, the English sought, through  16 the use of commissioners to obtain oaths of allegiance  17 from the Micmacs and that they would trade only with  18 the British.  Upton describes the response of the  19 native chiefs at the bottom of page 468, 469, and I  20 refer your lordship to that.  I won't read it.  What  21 it reflects, however, is a refusal by the Micmacs to  22 accept English claims to the lands.  Hostilities  23 ensued over a number of years which culminated in  24 19 -- in 1725 in a series of treaties which were  25 signed between the Micmacs, both Nova Scotia and of  26 Massachussetts with the British, and at 471, I have  27 set out the relevant text of those treaties.  The  28 second one, half-way down the page, has specific  29 reference to Nova Scotia, and the chiefs undertake in  30 the Peace Treaty that the Indian shall not "molest any  31 of His Majesty's subjects ... in their settlements  32 already made or lawfully to be made".  The Indians  33 further promised to release English prisoners and for  34 any "robbery or outrage committed by any of the  35 Indians" the tribe or tribes to which they belonged  36 undertook to give satisfaction and restitution to the  37 parties injured.  And in case of any dispute, the  38 Indians promise that no private revenge shall be taken  39 but application would be made for redress according to  40 His Majesty's laws.  41 Page 472, my lord.  We say that apart from  42 providing evidence as to the consensual nature of the  43 relationship between the Maritime Indian Nations and  44 the Crown, the 1725 treaties and their ratification in  45 1726 are significant insofar as they demonstrate that  46 the Indians were to be dealt with as an organized body  47 of people, with their own leaders and with their 24185  Submissions by Mr. Jackson  1 distinctive internal systems of government.  And we  2 point out the comparison between the way the Micmacs  3 were dealt with as a national body compared to the way  4 in which Acadians were dealt with in terms of their  5 individual personal responsibility.  And we say that  6 by necessary implication, in relation to those treaty  7 provisions for the resolution of certain conflicts  8 according to English law, disputes between and within  9 Indian Nations were left to be resolved according to  10 the Indian's own legal principles and process.  And  11 page 473, my lord, I draw a comparison between the  12 treaties of Peace between the Micmacs and the colonial  13 authorities and the treaties entered into with the  14 Powhatan Confederacy in Virginia in the 17th century.  15 And, my lord, there is a reference there at the top of  16 page 473 to pages 44-7.  That in fact should be  17 volume 1, tab 2, pages 62 to 63.  18 THE COURT:  Volume 1 of what?  19 MR. JACKSON:  Of the plaintiff's submissions.  20 THE COURT:  Oh, I see, of the submissions.  21 MR. JACKSON:  And you will note also, my lord, that a review of  22 the provisions of some of these treaties is contained  23 in the judgment of Chief Justice MacKeigan in the  24 Isaac case.  25 The treaties, however, did not bring about their  26 desired end and hostilities continued.  There was a  27 formal declaration of war issued by the Micmacs, and I  28 have set out the position of the Micmacs in 1744, the  29 bottom of page 473.  30 At page 475 -- I am sorry, page 474, these hostilities  31 continued until 1752, when a further treaty or a  32 renewal of the treaty was signed under the heading of  33 "Treaty or Articles of Peace and Friendship Renewed",  34 renewed for 1725 and 1726 articles.  And that treaty,  35 my lord, which has been the subject of judicial  36 comment in the Supreme Court of Canada decision in  37 Simon, a case to which we will be referring in another  38 context, that provision contained a specific guarantee  39 that the Micmacs "shall not be hindered from, but have  40 free liberty from hunting and fishing as usual".  The  41 treaty as I have said of 1752 was the subject of  42 comment by Chief Justice Dickson in Simon, and at page  43 475, I have set out his lordship's comments about the  44 treaty.  45  46 The treaty was entered into for the benefit of  47 both the British Crown and the Micmac people, 24186  Submissions by Mr. Jackson  1 to maintain peace and order as well as to  2 recognize and confirm the existing hunting and  3 fishing rights of the Micmac.  In my opinion,  4 both the Governor and the Micmac entered into  5 the treaty with the intention of creating  6 mutually binding obligations which would be  7 solumnly respected.  It also provided a  8 mechanism for dispute resolution.  The Micmac  9 Chief and the three other Micmac signatories,  10 would have possessed full capacity to enter  11 into a binding treaty on behalf of the Micmac.  12 Governor Hopson was the delegate and legal  13 representative of His Majesty the King.  It is  14 fair to assume that the Micmac would have  15 believed that Governor Hopson, acting on behalf  16 of His Majesty the King, had the necessary  17 authority to enter into a valid treaty with  18 them.  I would hold that the Treaty of 1752 was  19 validly created by competent parties."  20  21 Your lordship may recall that when I started my  22 submissions last week I referred to the comments in  23 the Syliboy, S-y-1-i-b-o-y, case in which the learned  24 judge in that case had referred to this treaty as  25 being one without legal significance because it was  26 signed by a handful of Indians who didn't have any  27 legal capacity to enter into treaties.  This was the  28 treaty about which he was referring.  It is held in a  29 place of great honour by the Micmacs, and at page 475,  30 I informed your lordship it is in the Micmac language  31 referred to as "In the King's House Compact".  The  32 nature of this treaty, my lord, and the manner in  33 which the Micmacs saw the protectorate role of the  34 Crown as being expressed through the treaty is set out  35 at page 476, and this is a submission, my lord, taken  36 from the proceedings of the Royal Commission of the  37 Donald Marshall Jr. Inquiry, a submission made by the  38 Micmacs in which they sought to describe using the  39 words -- language of Lieutenant-Governor Jonathan  40 Belcher what they saw the treaties doing.  41  42 "...President of His Majesty's Council and  43 Commander in Chief of the Province stated that  44 Treaties created a legal 'wall' and 'Hedge'  45 between the Mikmaq and the British settlers.  46 Belcher promised the Grand counsel members that  47 accession to the Compact on the wide and 24187  Submissions by Mr. Jackson  1 fruitful Field of English liberties.  He  2 explained to the assembled leaders from all the  3 seven districts of the Mikmaq Nation that their  4 burying of the Hatchets was a sign of putting  5 them in full possession of English protection  6 and liberty.  The Field of English liberties,  7 Chief Justice Belcher assured them, would be  8 free from the baneful weeds of Fraud and  9 Subtility.  The laws, he continued, clearly  10 stating the Crown's intent to create legally  11 binding rights, will be like a great Hedge  12 about your rights and liberties..."  13  14 THE COURT:  "Properties".  15 MR. JACKSON:  16  17 "...your rights and properties - if any break  18 this Hedge and hurt or injure you, the heavy  19 weight of the Law will fall upon them and  20 furnish their disobedience."  21  22 MR. WILLMS:  Perhaps my friend could say where we could find  23 that in any of the documents that he's provided.  24 MR. JACKSON:  My lord, my friend has already notified me that  25 two of the references in previous sections which were  26 intended to be in the series 2 of our materials are  27 not there.  This was another document which was to be  28 included in series 2.  We will in fact be  29 supplementing series 2, my lord, and this will be one  30 of the documents which we will provide my friend.  31 THE COURT:  It is from the Royal Commission Report, is it?  32 MR. JACKSON:  Yes, my lord.  And I have given the reference to  33 the Royal Commission Report.  At page 477, my lord, I  34 note that the 1761 Royal Instructions be issued to the  35 governors of various provinces, were also addressed to  36 the Governor of Nova Scotia.  And on page 477 I set  37 out the actions of Lieutenant Governor Belcher  38 pursuant to those Royal Instructions.  39 At page 478, the bottom paragraph, we say, that  40 the pressure on Indian lands from settlers and  41 developers on the lands of the Six Nations, which were  42 the principal reason for the 1761 Royal Instructions,  43 was not anything like so intense in Nova Scotia in the  44 decades following the Halifax Treaties.  As Upton has  45 described, land came third in importance after the  46 religious assistance of the French priests and the  47 economic support provided by the English. 241?  Submissions by Mr. Jackson  1 Page 479, this was to change dramatically,  2 however, at the conclusion of the American  3 Revolutionary War when Nova Scotia was inundated with  4 Loyalist refugees from New York.  Nova Scotia's  5 population tripled to 42,000 within one year.  As  6 Upton describes "In all the flood of correspondence  7 concerning the details of that great migration, there  8 is not one word about the Indians who would be  9 dispossessed by the new settlers".  10 The spread of British settlement quickly led to  11 the division of Acadia into separate political units.  12 Nova Scotia was partitioned in 1784 with the mainland  13 side of Bay of Fundy becoming the colony of New  14 Brunswick.  15 The dispossession of the Micmacs took place very  16 rapidly after the arrival of Loyalist refugee settlers  17 in Nova Scotia.  18  19 "The Micmacs were still largely dependent on the  20 produce of salt and fresh water, and both they  21 and the whites prized the same areas, namely  22 coastline and river frontage.  Whites quickly  23 disrupted the pattern of life since they  24 preferred to settle the easily accessible  25 places first:  the coast for the fisheries and  26 the river valleys, not only for the best soil  27 and fisheries, but also for the potential of  28 water-powered soil sawmills.  The indented  29 coastline and numerous rivers of the province  30 ensured that this white settlement intruded  31 almost simultaneously into every part of the  32 land, and as a result the Indian, in moving  33 from forest to river to coast, inevitably  34 encountered the newcomers."  35  36 Professor Upton has described the extent of the  37 disregard of the territorial rights of the Micmacs.  38  39 "The spread of settlement showed that the  40 Indians were accorded no rights to the land but  41 that they were expected to follow the white  42 man's practice for petitioning for grants.  43 However, such grants as were made the Indians  44 were in the form of licences of occupation  45 during pleasure...  Licences were issued to  46 eight groups for land along..."  47 24189  Submissions by Mr. Jackson  1 And then there is a number of references.  2  3 "With this much done, there was no longer any  4 need for a Superintendent of Indian Affairs,  5 and abolition of the office was recommended by  6 Nova Scotia's London agent early in 1784.  The  7 office lapsed, the few grants that had been  8 made went unsurveyed, and no new petitions were  9 forthcoming.  There was no cause for alarm; the  10 Micmacs might be displeased with the loss of  11 their land, but, as one contemporary author  12 pointed out, their weakness, added to their  13 prudence, will certainly prevent them from  14 making any disturbances."  15  16 Lieutenant Governor Lord Dalhousie made the first  17 full scale attempt to face the government's  18 responsibilities to the Micmacs.  Despairing of any  19 intitiative from the Assembly, he took the matter up  20 in Council and proposed the establishment of a reserve  21 in each county, not to exceed 1,000 acres, to be held  22 in trust for those Indians who were disposed to  23 settle.  The lands were a mixture of new and old  24 allocations, and no money was provided for the costs  25 of a proper survey.  Descriptions were of little value  26 either as a legal defense against encroachment or as a  27 guide to what was in fact set aside for the Indians.  28 Upton described the obstacles facing Lord Dalhousie:  29  30 "One major obstacle to any attempt at settlement  31 was the fact that whites never allowed an  32 Indian land claim to stand in their way.  They  33 were accustomed to squatting where they pleased  34 on Crown lands and making their peace with the  35 authorities sooner or, preferably, later.  They  36 saw no reason to treat Indian lands any  37 differently and assumed the government would  38 take an equally indulgent view of their  39 presence on them.  Generally speaking, the  40 squatters were right.  It was very easy for a  41 white official to see the virtuous hard work of  42 a squatter with a large family to support, less  43 easy to remember that those who had been  44 dispossessed had some claims on colonial  45 justice. ...  There were ways of expelling  46 unwanted Indians.  In a contest over river  47 frontage, for example, a basic white tactic was 24190  Submissions by Mr. Jackson  1 to net all the fish at the mouth of the river  2 so that the fishermen upstream got none.  The  3 Indian response to these harassments was almost  4 inevitably to move to a less desirable  5 location, without offering any resistance  6 beyond a petition to the government drawn by a  7 local sympathizer."  8  9 In 1834 the British House of Commons began extensive  10 inquiries into the condition of aboriginal peoples  11 throughout the Empire.  Previously, my lord, I quoted  12 an extract from the House of Commons, a report urging  13 the central administration of Indian Affairs to  14 protect Indians from local settler sentiment.  The  15 Government of Nova Scotia ignored a request to provide  16 information.  The wall of colonial indifference was  17 finally broken through by a petition from a Micmac  18 chief direct to Queen Victoria.  The chief wrote:  19  20 "I am the Chief of my people, the Micmac Tribe  21 of Indians in your Province of Nova Scotia and  22 I was recognized and declared to be the Chief  23 by our good friend Sir John Sherbrooke in the  24 White Man's fashion 25 years ago.  I cannot  25 cross the great Lake to talk to you for my  26 Canoe is too small, and I am old and weak.  I  27 cannot look upon you for my eyes not see so  28 far.  You cannot hear my voice across the Great  29 Water.  I therefore send this Wampum and Paper  30 talk to tell the Queen I am in trouble.  My  31 people are in trouble. ...  My people are poor.  32 No hunting Grounds - No Beaver - No Otter ...  33 All these Woods once ours.  Our Fathers  34 possessed them all.  Now we cannot cut a tree  35 to warm our Wigwams in winter unless the white  36 man please. ...  White Man has taken all that  37 was ours. ...  Let us not perish."  38  39 The Imperial authorities responded to the appeal.  40 Nova Scotia's new Lieutenant Governor, Lord Falkland,  41 commissioned Joseph Howe to develop an Indian policy.  42 The policy developed by Howe and reflected in 1842  43 legislation was based upon the idea of settling the  44 Indians on reserves, to act against squatters and  45 through the office of an Indian Commissioner to  46 consult with the Chiefs to encourage settlement and  47 arrange for the admission of Indians to local schools. 24191  Submissions by Mr. Jackson  1 Howe was appointed the first Indian Commissioner.  His  2 first report struck a sombre note.  The report is  3 summarized by Chief Justice MacKeigan in the Isaac  4 case in the following way:  5  6 "His first Report spoke eloquently of the  7 neglected condition of the Micmacs.  He found  8 not more than 1300, of whom 500 lived in Cape  9 Breton, a drastic decrease since 1798.  He  10 inspected most reserves and found the land  11 'sterile and comparatively useless'.  In this  12 and his 1844 Report, he gave many instances of  13 extreme poverty and of reserve land being taken  14 by white trespassers."  15  16 Howe's efforts to encourage settlement met with  17 failure not only because the reserves were generally  18 of such poor quality but because farming throughout  19 Nova Scotia was destroyed by widespread potato blight  20 for three seasons from 1846 to 1848.  Although it  21 affected whites and Indians alike, the accompanying  22 diseases ravaged the natives most severely.  23 Chief Justice MacKeigan, in Isaac recited a later  24 Report by Indian Commissioner Crawley in 1849 which is  25 testimony to the limited protection Indian rights  26 received in Nova Scotia:  27  28 "Under the present circumstances no adequate  29 protection can be obtained for the Indian  30 property.  It would be in vain to seek a  31 verdict against any jury in this island,  32 against the trespassers on the reserves:  nor,  33 perhaps, would a member of the Bar be found  34 willingly and effectually to advocate the  35 cause of the Indians, in as much as he would  36 thereby injure his own prospects, by damaging  37 his own popularity."  38  39 Dispossessed of all but the remnants of their land  40 and debilitated by illness, the Micmac population  41 continued to decline in the early 1850s.  Response of  42 the colonial government is reflected in the 1854  43 Report of the new Indian Commissioner, William  44 Chearnley, whose knowledge of the Indians, Upton tells  45 us, came from the contacts he had made while big game  4 6 hunting.  47 24192  Submissions by Mr. Jackson  1 "The Indians, he stated in his first Report,  2 would always be unwilling to work and settle;  3 their reserves were mostly barren and those  4 parts that were not had already been taken by  5 whites.  Since the Micmacs were 'fast passing  6 away' he proposed to ease their last days by  7 supplying them with blankets and great coats,  8 and, if any money was left over from the annual  9 grant, a few seed potatoes.  Any additional  10 funds should come from the sale of such of  11 their lands as squatters possessed."  12  13 In 1859, as if to add insult to injury,  14 legislation was passed that allowed squatters to buy  15 their legally obtained holdings -- that should be  16 illegally obtained holdings on Indian reserves.  Thus,  17 instead of expelling the squatters as the 1762 Belcher  18 Proclamation and the 1763 Royal Proclamation required,  19 the Province of Nova Scotia in 1859 sought to deprive  20 the Micmacs of their rights to parts of their reserves  21 by entering into a compromise with white squatters who  22 had violated those rights.  23 The position of the Micmacs in Nova Scotia -- in  24 New Brunswick was, if anything, worse than Nova  25 Scotia.  Initially, as in Nova Scotia, reserves were  26 granted to Indians upon petition through the device of  27 a licence of occupation but also as in Nova Scotia,  28 the integrity of these reserves was undermined by  29 squatters.  30 Beginning in the 1840s, some reform minded  31 politicians sought to consolidate Indian possession of  32 their reserves and encourage agricultural development.  33 However, legislation was which was introduced in 1844  34 was designed to dispossess the Indians even of their  35 reserves.  36 The preamble (of the Act) noted that the reserves  37 greatly:  38  39 "...retarted the settlement of the province and  40 yet were of no use to the Indians."  41  42 My lord, I would refer you by way of advance  43 notice to statements made by Joseph Trutch, and  44 actions of Joseph Trutch in the years after Governor  45 Douglas' retirement where he also took the position  46 that the reserves granted by Douglas to the Indians  47 were too large, retarted the progress of settlement in 24193  Submissions by Mr. Jackson  1 the province and were of no use to the Indians, and he  2 unilaterally revised those reserves.  3 My friend, Mr. Rush, will be referring to that in  4 greater detail at a later point.  The legislation  5 preamble noted further:  6  7 "To turn these reserves into an asset, it will  8 be necessary to survey them definitively and  9 distinguish between the quantities of land they  10 contained and then, under Commissioners  11 appointed by the Act, to sell or lease at  12 auction whatever tracts were thought fit to be  13 offered.  Resulting funds would be used for the  14 exclusive benefit of the Indians, for the  15 relief of the aged and infirm, and for the  16 provision of seed and agricultural implements."  17  18 The progressive dispossession of the Micmacs in  19 New Brunswick was described in this way in 1847:  20  21 "The first step was a joint occupation of the  22 country by the Indians and British settlers:  23 the second was assigning to the Indians certain  24 districts of counties, within which they were  25 not to be disturbed, the next, confining each  26 Tribe to a certain tract or portion of land  27 called a reserve and finally, reducing those  28 reserves by degrees until in 1842 only one-half  29 remained  ... and to conclude by selling all  30 that remains  ... without any provision for  31 their (the Indians) future welfare."  32  33 Professor Upton has himself summarized the Micmac  34 experience in New Brunswick:  35  36 "Everything considered, it is remarkable that  37 the Native peoples of New Brunswick survived at  38 all.  Completely on their own, they had been  39 totally neglected for years, and when a policy  40 was finally instituted, its aim was to  41 dispossess them of their reserve lands in the  42 name of progress and to free the white tax  43 payer from the costs of relief.  This policy  44 ... could have led to the total disappearance  45 of the reserves in a very few years and the  46 expulsion of the surviving Indians into white  47 society without a shred of support.  That this 24194  Submissions by Mr. Jackson  1 did not happen was no fault of the colonial or  2 Imperial government.  New Brunswick was not  3 very attractive as an agricultural society, and  4 the Indians' lands, marginal at best, were not  5 required by whites for their family farms.  But  6 the New Brunswick pattern, had it been applied  7 in Canada, would have proved to be one for the  8 'final solution' of the Indian problem."  9  10 The Micmacs did not "pass away" as William  11 Chearnley had confidently predicted in 1854 but  12 continued to seek recognition of their aboriginal  13 rights.  In 1977, they presented their comprehensive  14 claims to the Minister of Indian Affairs.  It is also  15 not without significance that the Micmacs, as at first  16 aboriginal peoples who encountered Europeans and who  17 have arguably been the subject of some of the most  18 oppressive colonial policies directed to their  19 dispossession, have been the most vigorous in  20 asserting in the international form that, under  21 relevant international covenants and as a matter of  22 international law, they have rights to  23 self-determination, rights which they view as having  24 been confirmed in their original treaties of peace and  25 friendship with the British.  And the issue of  26 international law, my lord, is one to which we will  27 return.  28 My lord, it is our submission that this court  29 should explicitly and emphatically reject the  30 Province's argument that the Nova Scotia and New  31 Brunswick experience are precedents supporting the  32 theory that aboriginal rights exist only as a matter  33 of sovereign grace.  It is our submission, my lord,  34 that, in the historical context of Nova Scotia and New  35 Brunswick, this means that aboriginal rights can be  36 respected or disregarded at the government's whim  37 dependent on the relative strengths of the Indians and  38 the degree of intolerance, greed, and racism of the  39 colonists.  It is the plaintiff's submission that this  40 is a principle not of law but of naked power.  41 My lord, at the beginning of my submissions, I  42 referred your lordship --  43 THE COURT:  Are you almost finished?  44 MR. JACKSON:  I am almost finished.  45 THE COURT:  I think we are abusing our reporters today.  46 MR. JACKSON:  I will be one more minute.  Madam reporter can  47 hold for one more minute. 24195  Submissions by Mr. Jackson  1 MR. WILLMS:  I do want to rise to say that my friend  2 mischaracterized the Province's position.  I don't  3 want to take up any time, that will come clear in our  4 argument, but that's a mischaracterization of the  5 Province's position.  6 THE COURT:  All right.  7 MR. JACKSON:  My lord, I referred your lordship to the Therens  8 decision and the statement by the Supreme Court of  9 Canada that the purpose of the charter, and I said in  10 my opening submissions, the purpose of the common law  11 is the unremitting protection of human rights.  The  12 position as I understand it of the Province, and I  13 have endeavoured to be faithful to it, is far from  14 being an unremitting protection of aboriginal human  15 rights; is a dismal justification for the unremitting  16 violation.  17 And, my lord, the final point I would make is  18 again by reference to what the Lieutenant Governor of  19 Nova Scotia said in 1753, he said the Micmacs -- that  20 the law would be a hedge around their rights and  21 properties, it would be a wall for their protection  22 and security.  And, my lord, in the context of the  23 Micmacs and in the context specifically of Donald  24 Marshall, that wall and that security has become the  25 wall of the prison and, my lord, we say that this  26 court should look to the experience of Indian  27 dispossession in Nova Scotia and New Brunswick as  28 evidence to show that far from aboriginal rights  29 existing at the pleasure of the sovereign aboriginal  30 rights arise and are protected by virtue of  31 fundamental principles of the common law and not the  32 whim of the sovereign.  And my apologies for taking us  33 to this late hour, my lord, but those are my  34 submissions for the day.  35 THE COURT:  Thank you.  I think that I should take up with  36 counsel whether there is a real need to have a  37 transcript of today's proceedings tomorrow morning.  38 Is there really a need for such a --  39 MR. JACKSON:  Not from our point of view, my lord.  40 MR. WILLMS:  Well, it depends on the timing, my lord.  The  41 reason is this:  If the transcript is relatively  42 recent, then all counsel involved can be kept up to  43 date on the --  44 THE COURT:  Well, we can't keep up to date the way we are going,  45 can't physically be done.  The reporters are here  46 until eleven o'clock every night, and we have had an  47 enormous amount of words today, too many now.  This 24196  Submissions by Mr. Jackson  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  doesn't need to be reported, Madam Reporter.  You can  take a break.  (DISCUSSION RE:  TRANSCRIPTS)  THE COURT:  Well, I am going to take it up with the reporters  but I can take it that it is not necessary that they  have -- that you have a transcript by tomorrow.  MR. WILLMS:  Not by ten o'clock tomorrow.  THE COURT:  Ms. Koenigsberg?  MS. KOENIGSBERG:  No.  We have no need for a daily transcript.  THE COURT:  We will take this matter up again tomorrow and we'll  start at ten in the morning.  THE REGISTRAR:  Order in court.  Court stands adjourned until  ten o'clock tomorrow.  (PROCEEDINGS ADJOURNED AT 5:07 p.m.  AT 10:00 a.m.)  TO APRIL 11, 1990,  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein, transcribed to  the best of my skill and ability.  TANNIS DEFOE, Official Reporter  United Reporting Service Ltd.

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