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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-29] British Columbia. Supreme Court May 29, 1990

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 27622  Submissions by Mr. Goldie  1 Vancouver, B.C.  2 May 29, 1990  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 29th day of May, 1990.  Delgamuukw  6 versus Her Majesty The Queen at bar, my lord.  7 THE COURT:  Thank you.  Mr. Goldie.  8 MR. GOLDIE:  My lord.  May I request, my lord, that subject to  9 the court's convenience and the convenience of my  10 friends that we sit on Thursday night as well?  11 THE COURT:  I can't, Mr. Goldie, I'm sorry.  I have an  12 engagement that has been outstanding for many, many  13 months that I can't avoid.  14 MR. GOLDIE:  Well, we will consult our calendar.  15 THE COURT:  All right.  16 MR. GOLDIE:  And come back again.  17 THE COURT:  Have I reminded counsel that I could be available a  18 week from Friday?  19 MR. GOLDIE:  Yes.  2 0 THE COURT:  All right.  You have that in mind.  21 MR. GOLDIE:  And we are counting on that.  22 THE COURT:  Yes.  All right.  23 MR. GOLDIE:  My lord, at the adjournment yesterday I was in  24 section 5 of part VII, page 2.  2 5 THE COURT:  Yes.  26 MR. GOLDIE:  And I had drawn your lordship's attention to the  27 state of warfare in the Washington and Oregon treaties  28 and the contrast between that and the situation in  29 Vancouver Island.  And in paragraph 4 on page 2 I mark  30 the opening of the gold rush in British Columbia, or  31 what became British Columbia.  32 THE COURT:  Where are you again?  33 MR. GOLDIE:  Page 2, my lord.  34 THE COURT:  Of your argument?  35 MR. GOLDIE:  Yes.  3 6 THE COURT:  Yes.  37 MR. GOLDIE:  And I say the discovery of gold in British  38 territory in the Mainland was seen by Douglas to be  39 productive of future difficulty.  The document under  40 tab 5-4 is his dispatch of the 29th of December, 1857.  41 And he notes that in paragraph 1 that he had written:  42  43 "...on the 15th of July, 1857 concerning the  44 Gold fields in the interior of the Continent  45 north of the 49th parallel of latitude, which  46 for the sake of brevity,  I will hereafter  47 speak of as the "Couteau Mines" (so after named 27623  Submissions by Mr. Goldie  1 after the Tribe of Indians who inhabit the  2 country."  3  4 Now, as far as I can make out, my lord, the  5 Couteau Mines, that territory is south of the Thompson  6 River between Lytton and Kamloops, but I don't have  7 any great confidence in that.  That's a deduction from  8 a variety of sources of information.  9  10 He says:  11  12 "I have received further intelligence from my  13 correspondents in that quarter.  14 2.  It appears from their reports that the  15 auriferous character of the country is becoming  16 daily more developed through the exertions of  17 the native Indian Tribes who have tasted the  18 sweets of gold finding, are devoting much of  19 their time and attention to that pursuit."  20  21 And then paragraph 5:  22  23 "The reputed wealth of the "Couteau Mines" is  24 causing much excitement among the population of  25 the United States Territories of Washington and  26 Oregon, and I have no doubt that a great number  27 of people from those Territories will be  28 attracted thither with the return of the fine  29 weather in spring.  30 6.  In that case difficulties between the  31 natives and whites will be of frequent  32 occurrence and unless some measures of  33 prevention are taken the country will soon  34 become the scene of lawlessness mis-rule.  35 7.  In my letter of the 15th of July, I took  36 the liberty of suggesting the appointment of an  37 Officer invested with authority to protect the  38 natives from violence and generally as far as  39 possible to maintain the peace of the country.  40 8.  Presuming that you will approve of that  41 suggestion I have as a preparatory step,  42 towards the proposed measures for the  43 preservation of peace and order this day,  44 issued a proclamation declaring the rights of  45 the crown in respect to gold found in its  46 natural place of deposit within the limits of  47 Fraser's River and Thompson's River Districts, 27624  Submissions by Mr. Goldie  1 within which are situated the "Couteau Mines",  2 and forbidding all persons to dig or disturb  3 the soil in search of Gold until authorized on  4 that behalf by Her Majesty's Colonial  5 Government."  6  7 And then he encloses a copy of the proclamation and  8 the regulations.  And in paragraph 11 he says:  9  10 "As it is particularily desirable to place a  11 legal check on the movements of American  12 citizens and to prevent them from entering the  13 British Territory either for Mining or other  14 purposes, I propose having the Proclamation and  15 the License regulations now issued, published  16 in the Oregon and Washington Territory weekly  17 Journals, so that the laws regulating and  18 legalizing the search for gold may be generally  19 known, and that American citizens may not have  20 the excuse of ignorance to plead in extenuation  21 of breaches of the law.  22 12.  My authority for issuing that  23 Proclamation, seeing that it refers to certain  24 Districts of Continental America, which are not  25 strictly speaking within the Jurisdiction of  26 this Government may perhaps be called in  27 question, but I trust that the motives which  28 have influenced me on this occasion, and the  29 fact of my being invested with the  30 authorityover the premises of the Hudson's Bay  31 Company and the only authority commissioned by  32 Her Majesty within reach will plead my excuse.  33 Moreover should Her Majesty's Government not  34 deem it advisable to enforce the rights of the  35 Crown as set forth in the Proclamation, it may  36 be allowed to fall to the ground, and to become  37 a mere dead letter."  38  39 And then he says:  40  41 "If you think it expedient that I should visit  42 the "Couteau Mines" in the course of the coming  43 spring or summer..."  44  45 And then the minutes of the Colonial Office -- well,  46 first the Proclamation is one that I had previously  47 read to your lordship.  And it does just about what 27625  Submissions by Mr. Goldie  1 the governor describes.  Then the minutes in the  2 Colonial Office, Mr. Merivale's —  3 THE COURT:  The Proclamation was issued, was it?  4 MR. GOLDIE:  It was issued.  But it was totally without  5 authority.  6 THE COURT:  Oh, yes.  7 MR. GOLDIE:  And it was dated, I think, the 31st of December,  8 1857 and warned all people that the gold was the  9 property of the Crown.  Mr. Blackwood, minute to Mr.  10 Merivale said:  11  12 "The Gov. has shaped his proceedings according  13 to the instructions concerning licences, et  14 cetera, which Sir J. Pakington gave him in '52,  15 when gold was discovered on Queen Charlotte's  16 Island.  I think myself that the Hudson's Bay  17 Company, who are at present the beneficiaries  18 under the license should be requested to  19 provide the necessary funds for the appointment  20 of the proposed Officer, and that steps should  21 be taken forthwith for that purpose."  22  23 And, my lord, the background of that is that the  24 Hudson's Bay Company had exclusive trading privileges  25 in the Mainland west of the Rocky Mountains.  Mr.  26 Merivale's minute to Lord Carnarvon states:  27  28 "I cannot find the "Couteau River" on the maps,  29 but presume it from the description to be  30 between Fraser and Thompson's rivers.  31 Gov. Douglas deserves in my opinion much credit  32 for acting - as he always has done - with  33 promptitude and intelligence in the line  34 pointed out to him by the home government, and  35 making light of difficulties instead of  36 creating them, in a position by no means clear  37 and with very little assistance of any kind.  38 But I must refer to a former minute of  39 8657.  There is no legal authority in North  40 Western America, except, for certain purposes,  41 the Courts of justice in Canada."  42  43 My lord, that refers to the acts of 1803 and 1821.  44 And continuing:  45  4 6 "The Hudson's Bay Company have under Act of  47 Parliament a license for exclusive trade with 27626  Submissions by Mr. Goldie  1 the Indians in that territory until May 1859,  2 but they have no authority whatever.  Gov.  3 Douglas (a servant of the Company) has no  4 authority from the Crown beyond Vancouver's  5 Island "and it's dependencies" whatever that  6 may mean.  His proclamation I take therefore to  7 be wholly without legal force, until adopted by  8 the Crown (which I apprehend it should be).  9 It is competent for the Crown,  10 notwithstanding the Existing license, to erect  11 at any time a portion of the N.W. Territory  12 into a colony, and to abolish the exclusive  13 trade within the colony so erected."  14  15  16 THE COURT:  What is the source of the statement that "Hudson's  17 Bay Company has a license for exclusive trade with the  18 Indians on the Mainland"?  19 MR. GOLDIE:  In the Act of 1821 a provision was made for the  20 grant of an exclusive trading license.  After the  21 merger of the Northwest company and the Hudson's Bay  22 Company such a license was granted.  23 THE COURT:  Sorry, was that territory defined?  24 MR. GOLDIE:  Yes.  It was the -- I was going to say it was the  25 mainland west of the Rockies and north of the 49th  26 parallel.  27 THE COURT:  Would it have been north of the 49th parallel in  28 1941?  29 MR. GOLDIE:  It was still an open question.  Well, I think the  30 license may have not specified the 49th parallel.  But  31 what it did -- what the fact did do was that the  32 license did not derogate from any rights of American  33 citizens under the conventions then in force.  Because  34 there was the convention of 1818 which provided for a  35 common use.  36 THE COURT:  Joint use?  37 MR. GOLDIE:  Joint use, yes.  38 THE COURT:  I am troubled by this date that exclusive license  39 expiring in May 1859 was the -- this was there a term  40 on that 1821 grant?  41 MR. GOLDIE:  Yes.  I forget when the license was issued, but I  42 think it was a term around 21 years.  It was  43 renewable.  But the other feature of it was --  44 THE COURT:  But 20 years would only take it to 1842.  Yes, 1842.  45 I think it was renewed.  46 MR. GOLDIE:  It may have been renewed, my lord.  I can check on  47 that. 27627  Submissions by Mr. Goldie  1 THE COURT:  I would be glad to know that.  2 MR. GOLDIE:  The other feature of it was that if, in the  3 meantime, the Crown decided to erect a colony that  4 would -- that it could do so notwithstanding the  5 license.  And that's what Merivale is referring to  6 there.  He says:  7  8 "It is competent for the Crown, notwithstanding  9 the Existing license, to erect at any time any  10 portion of the N.W. Territory into a colony,  11 and to abolish the exclusive trade within the  12 colony so erected."  13  14 Then there is a discussion of what was the options  15 that might be open.  Then Carnarvon's minute of March  16 5th midway about a third of the way down the next  17 page, my lord, under "C March 5"?  18 THE COURT:  Yes.  19 MR. GOLDIE:  There is the letter C.  And this is Carnarvon's  2 0 minute.  21  22 "Gov. Douglas's conduct should be approved.  23 But several questions arise as to the future.  24 If we erect into colony a tract now in the  25 hands of the Hudson's Bay Company by giving  26 Governor Douglas a commission over it, do we  27 thereby necessarily put an end to the license  28 for exclusive trade?  Or can the two co-exist  29 for a time?  30 Except in case of necessity, I should be  31 reluctant to deal with the license question (I  32 mean the H.B.C. monopoly) except as a whole."  33  34 And so on.  And then he refers it back to Merivale.  35 And then Merivale has the further minute.  36  37 "My own opinion is that under the existing  38 license the Crown might constitute, legally, a  39 Colony in Northwestern America, within the  40 "licensed" territory, and yet not give the  41 colonists the right of trading with the Indians  42 during the continuance of such license.  But I  43 would submit that this would practically be an  44 impossible course.  Colonists could not be  45 freely offered land at the fixed terms of  46 purchase (which is essential to the modern ways  47 of colonization) and at the same time 2762?  Submissions by Mr. Goldie  1 restricted from trading with Indians on their  2 own soil; which would nevertheless be a  3 necessary restriction if the license monopoly  4 is to be maintained in its integrity.  No  5 attempt was made to maintain the monopoly in  6 Vancouver Island.  I mean in point of law,  7 though practically the Company retains it to a  8 considerable extent.  See Mr. Cooper's  9 evidence."  10  11 My lord, that is a reference to the evidence given  12 by Mr. Cooper who had been a settler on Vancouver  13 Island and a select committee of the House of Commons  14 on the Hudson's Bay stewardship of its holdings in  15 North America in 1857 which was, of course, very  16 current at the time.  And Merivale continues:  17  18 "The license so clearly contemplates that the  19 exclusive trade should be abolished wherever a  20 colony is constituted, that I cannot think  21 there would be any claim for compensation.  22 I would observe in addition that the Act 1  23 & 2George 4. c. 66 makes provisions for the  24 appointment of Magistrates & administration of  25 justice throughout the Northwestern Territory.  26 So that, strictly speaking, we possess probably  27 the machinery for keeping things in order, if  28 the gold discovery on Fraser's River should be  29 realized, until May 1859, without creating a  30 Colony."  31  32 Now that's a reference to the Act of 1821.  And then  33 there is a discussion that a commission of Lieutenant  34 Governor should be issued to Douglas.  And then there  35 is Merivale's minute on the:  36  37 "Draft warrant appointing Douglas to be  38 Lieutenant Governor of His Majesty's  39 Territories and Possessions in North America  40 which are bounded on the North by the 54th  41 Degree of North latitude, on the East by the  42 Rocky Mountains and on the South by the 49th  43 Degree of North latitude.  44 This warrant I think will do:  But it will  45 require to be carefully explained to the  46 Governor, and to the Hudson's Bay Company also:  47 & I think considering the peculiarity of the 27629  Submissions by Mr. Goldie  1 case, it may well be as well to have the  Law  2 Adviser's concurrence."  3  4 And then the minute of Lord Stanly:  5  6 "I think so."  7  8 And the Colonial Office to the Attorney General, this  9 is the 22nd of April, 1858, asking that they "peruse  10 and settle" the annexed draft Warrant, with  11 explanation.  And then the Minute on above:  12  13 "It is very irregular that we cannot find any  14 authentic information whether there are any  15 magistrates appointed by the Crown in the  16 licensed territory.  Mr. Ellice in his evidence  17 says there are.  Mr. Ellice was a member of  18 parliament who is also connected to the  19 Hudson's Bay Company and who gave evidence of  20 the select committee's hearings.  Mr. Barr the  21 Company's legal adviser assured me there are  22 not.  It would be important to ascertain the  23 fact.  And I think the new Lieutenant Governor  24 should also have a Commission as such  25 Magistrate."  26  27 In point of fact as far as we know, my lord, there was  28 the Commission issued in 1837 in which Douglas, Ogden,  2 9 Simpson and two others were named.  And that  30 Commission was issued by the Governor of Upper Canada  31 under the 1821 Act.  So that was the background that  32 was developing in the spring of 1858.  And I note that  33 as of February 1, 1858 the Imperial Government was not  34 creating -- were not contemplating creation of a  35 colony in the Mainland.  And that's evidence from Mr.  36 Labouchere's dispatch of the 1st of February, 1858,  37 which is under tab 5-4 the last document.  And he says  38 about -- well, just by the side line there, my lord,  39 about halfway down the page.  And this dispatch was  40 elicited or came about because an apprehended  41 incursion of Mormons who were fleeing the United  42 States.  But halfway down the page Labouchere states,  43 and I quote:  44  45 "Her Majesty's Government are not prepared at  46 present to exercise the right reserved to them  47 and the Company's license so forming a Colony 27630  Submissions by Mr. Goldie  1 in these parts.  Least of all would they  2 exercise that right in favour of refugees who  3 have defied both the Authorities of their  4 Country and the usage of Christian and  5 Civilized life.  6 No rights of occupation whatever are  7 therefore to be granted to them."  8  9 And then he differentiates that from the situation if  10 they seek to settle on Vancouver's Island.  11 THE COURT:  I don't see that, Mr. Goldie.  12 MR. GOLDIE:  Is your Lordship looking at the dispatch of  13 February 1, '58?  14 THE COURT:  February '58?  15 MR. GOLDIE:  Yes.  It is the last document under the separator  16 sheet of tab 5-4.  17 THE COURT:  Oh, yes, I'm sorry.  18 MR. GOLDIE:  And the part I was reading from —  19 THE COURT:  Yes.  I found it, thank you.  20 MR. GOLDIE:  And I should read the previous paragraph because  21 because it makes reference to Indian tribes.  I quote.  22  23 "Should they apply for admission to occupy any  24 portion of the North Western Territory  25 peacefully and as a community or in scattered  26 communities: you will remember that the soil of  27 this territory belongs to the Crown subject  28 only to such rights as may be recognized in the  29 Indian tribes (who are not authorized to part  30 with the soil without permission of the Crown)  31 and to the trading rights of the Company."  32  33 And then the section that I read:  34  35 "Her Majesty's Government are not prepared at  36 present to exercise the --"  37  38 THE COURT:  Is he talking there about — he is talking about  39 Mormons, is he?  40 MR. GOLDIE:  Yes, he is.  41 THE COURT:  Yes.  42 MR. GOLDIE:  The dispatch, Douglas's dispatch of April 8, 1858  43 contained his report that the natives who had entered  44 into the business of gold mining energetically had  45 discovered gold on the Fraser and the Colonial Office  46 noted the difficulty of making the natives understand  47 the Crown's interests therein. 27631  Submissions by Mr. Goldie  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  And the reference is paragraph 7, my lord.  "In addition to the diggings before known on  Thompson's River and its tributary streams, a  valuable deposit has been recently found by the  natives on a bank of Fraser's River about 5  miles beyond its confluence with the Thompson,  and gold in small quantities has been found in  the possession of the natives as far as the  Great Falls of Fraser's River, about eighty  miles above the Forks."  THE COURT:  That would be the forks of the Thompson, is it?  MR. GOLDIE:  It doesn't -- I would have said about 80 miles  below the forks.  THE COURT:  Yes.  MR. GOLDIE:  Be that as it may, it is clear that what he is  talking about is on the Fraser River which is --  THE COURT:  The great falls could only be Hell's Gate?  MR. GOLDIE:  I am assuming it could only be Hell's Gate.  THE COURT:  All right.  MR. GOLDIE:  There is a minute of Mr. Blackwood referring to:  "...for the natives, whose country we choose to  take possession of, have a good right to dig  for gold; & I suppose it will be difficult to  make them understand the right of the Crown to  minerals in a Country which they regard as  their own."  THE COURT:  Where is that?  MR. GOLDIE:  This is a minute on page 2.  Mr. Blackwood, my  lord, was --  THE COURT:  Oh, yes, I see it.  MR. GOLDIE:  He sort of had the North American desk at the  Colonial Office.  And he reported to Mr. Merivale.  Merivale's minute to Lord Carnarvon is at the bottom  of the page.  "Difficulties arising out of such circumstances  as these grow so rapidly, that I really think  the attention of Government ought at once to be  called to the subject.  The Governor asks for instructions, & requires  them.  He was told to issue a proclamation  requiring gold licences to be taken out, which  was done.  This proclamation is disregarded, as 27632  Submissions by Mr. Goldie  1 was of course to be expected when the  2 excitement increased, there being no force on  3 the spot & no semblance of British Government.  4 I suppose that on the whole the best direction  5 will be, to let things take their course as  6 regards the licences & the gold digging, but to  7 prevent, if he can, & if he cannot, immediately  8 report upon, any proceedings inconsistent with  9 the assertion of British dominion in the  10 territory?  In the meantime you are aware of  11 the difficulty which prevents his being armed  12 with a Lieutenant Governor commission."  13  14 My lord, I don't know what the difficulty was.  I  15 assume it was a legal one because the warrant was  16 referred to the law advisors.  And the archives are  17 bare of the advice given.  18 Then Carvarvon's comment:  19  20 "This describes a dangerous state of things -  21 which it is clear cannot long last.  The next  22 mail leaves on the 16th and it ought to take  23 out instructions to the Governor but those  24 instructions must depend upon the course which  25 is adopted with reference to the Law opinion  26 which passed me yesterday."  27  2 8 And then Lord Stanley's comment:  29  30 "I must leave this to Mr. Merivale's judgment,  31 being unable to deal with it now, and an early  32 answer being required.  The most essential part  33 is to see if the Lieutenant Governor's  34 Commission cannot be granted, the present legal  35 obstacles notwithstanding."  36  37 Turning back to paragraph 6 of my summary.  At  38 this point it may be convenient to comment on  39 Douglas's knowledge of the Mainland Indians.  Since  40 about 1824 he had been engaged in the fur trade west  41 of the Rocky Mountains.  He entered the north country  42 as a clerk in that year and in his early postings he  43 came into contact with the inhabitants of an area  44 claimed by the present Plaintiffs - Fort Connolly on  45 Bear Lake.  He also served at Fort St. James, Stuart  46 Lake Fort and Fort McLeod until about 1830.  He was  47 then posted to Fort Vancouver.  For some 30 years 27633  Submissions by Mr. Goldie  1 until he severed his connections with the Hudson's Bay  2 Company in 1858 he occupied positions of  3 responsibility in respect of the whole of the maritime  4 and interior trade of the Hudson's Bay Company.  5  6 It appears that from 1843 he, with Ogden and Work,  7 formed the board of management for the entire fur  8 trade of the area west of the Rocky Mountains from  9 south of the Columbia to north of the present Claim  10 Area.  Throughout this area the Company moved furs and  11 goods on a regular basis.  In my submission, no one  12 was better equipped to deal with what happened in 1858  13 than Douglas having regard to his knowledge of the  14 geography of the country and its Indian inhabitants;  15 his close interest in the events in the adjacent  16 American Territories and his understanding of the  17 results which would follow from an influx of miners,  18 principally from the United States.  For these and  19 other things he was praised by a former Colonial  20 secretary in Parliament on July 8, 1858.  21  22 My lord, I should expand upon my comment.  His  23 understanding of the results which would follow from  24 an influx of miners principally from the United  25 States.  I am referring there to the experience of the  26 Hudson's Bay Company in the Oregon territory.  27 Following the Lewis and Clark expedition, settlers  28 came in, and, relatively speaking, a short time the  29 affect of it was the Oregon boundary treaty which  30 displaced the Hudson's Bay Company from a portion of  31 its fur trade area that had been doing business in for  32 almost 50 years.  And certainly if there was an influx  33 of American miners and if there was trouble with  34 Indians it was well within the bounds of expectation  35 that the American army would follow.  And there were  36 people of one political stripe in the United States  37 who had fought an election on the slogan "54 40 or  38 fight".  So Douglas ways aware of these things.  39  40 Now, the tribute that was paid by the Parliament  41 is under tab 5-6.  And this is Mr. Labouchere who had  42 been the Colonial Secretary in the early part of 1858.  43 And then there was a change of administration.  But he  44 was speaking on the bill in the summer of what became  45 the Act of 1858 in the summer of -- the debates in  46 July of 1858.  47 THE COURT:  That is to establish the colony? 27634  Submissions by Mr. Goldie  1 MR. GOLDIE:  Yes.  2 THE COURT:  Of British Columbia?  3 MR. GOLDIE:  Yes.  And he opened his speech by saying, and this  4 is at the top of page 1107, the left-hand column.  And  5 this is on second reading.  6  7 "Mr. Labouchere said, he thought there could be  8 no difference of opinion in that House as to  9 the propriety of taking steps to meet the wants  10 which this Bill was intended to supply, and to  11 establish a settled form of government in that  12 part of British North America in which  13 circumstances were directing the steps of large  14 bodies of men.  While he held the seals of the  15 Colonial Office he received information of the  16 probability of considerable gold discoveries  17 being made, but he thought it was premature to  18 incur expense in taking steps to found a new  19 settlement until those discoveries should have  20 been confirmed.  The information, which had  21 been received since, showed that there was now  22 a stream of adventurers setting in towards that  23 part of the world, and therefore it was  24 indispensable that some steps should be taken  25 to establish a settled form of law."  26  27 And then he goes -- the next reference I wish to make  28 is in the upper right-hand column, beginning with line  29 3.  30  31 "It was a remarkable fact, that, while on the  32 northern side of the frontier, in the British  33 possessions, there was perfect harmony and  34 order between the white and the red men, there  35 had been on the other side of the frontier  36 scenes of carnage and bloodshed which had  37 generated a deadly hostility on the part of the  38 Indians towards the Americans.  Governor  39 Douglas, in the papers before the House, had  40 referred to the feeling as likely to create  41 difficulty.  Under those circumstances he  42 thought the House would agree that it was most  43 important there should be a strong Executive to  44 control the Indians and to prevent the white  45 settlers from molesting them.  The right hon.  46 gentlement had adverted to the soil and climate  47 of the country, excellence of which it was 27635  Submissions by Mr. Goldie  1 impossible to deny, and he (Mr. Labouchere)  2 believed that in the course of time Vancouver's  3 Island and the adjacent territories were  4 destined to be the homes, of large,  5 industrious, and flourishing population."  6  7 And then dropping down about eight lines or so:  8  9 "He could not conclude without paying a humble  10 tribute to the excellent qualities of Governor  11 Douglas.  Throughout that correspondence which  12 he had had with that gentleman he had been much  13 struck with his good sense, ability, and  14 sagacity, and he could not but think of having  15 such a public servant to watch over our  16 interests in Vancouver's Island."  17  18 The one other point I wish to make, my lord, in  19 expansion of the submission on paragraph 6 is that the  2 0 trade of the Hudson's Bay Company was throughout the  21 interior of British Columbia at that time.  That is to  22 say furs were traded from as far north as Fort  23 Connolly to as far south as Fort Vancouver beyond  24 those points in both cases.  The furs were moved by  25 interior means for the most part across the mountains  26 both the north and the south.  The mountains being the  27 Rocky Mountains.  So that there -- the Hudson's Bay  28 Company servants were very familiar with the Indians  29 of British Columbia.  And Douglas was one of those who  30 had the greatest knowledge.  31  32 Now, my lord, I pass to section 5(a), Aboriginal  33 Interests in the Colonial Period 1858 to 1871.  And  34 the heading is "Creation and Character of the Colony".  35 The "Blue Books" consisting of four volumes and the  36 whole referred to as "Papers Relative to the Affairs  37 of British Columbia" laid before both Houses of  38 Parliament demonstrate how quickly the emergency arose  39 as well as the isolation of Douglas.  This collection  40 consists of tabs 1 to 4 in Exhibit 1142.  And I read a  41 good section of them in as -- when they were marked.  42  43 Paragraph 2 of Douglas's dispatch of April 6, 1858  44 was recognized in London as describing a dangerous  45 state of affairs.  A sense of crisis took hold in  46 June, and by July 9, 1858 an Act to provide for the  47 government of British Columbia had been given third 27636  Submissions by Mr. Goldie  1 reading in the House of Commons.  The reference, my  2 lord, under tab 5a-2 is to Douglas's dispatch of the  3 6th of April, 1858.  And I have already referred to  4 that, my lord, and to Carnarvon's minute on the last  5 page of the dispatch as describing a dangerous state  6 of things.  7  8 The 1858 Act was considered necessary in order to  9 give Douglas, as the intended governor of the new  10 Colony, full and extraordinary powers.  It was the  11 opinion of the law officers that the Crown, in the  12 exercise of its prerogative, could erect a Colony only  13 if a provision was made for an elected assembly and a  14 nominated council.  That emerges from Hansard.  And  15 this is from the speech of the Colonial Secretary of  16 the time, Sir Edward Bulwer Lytton who introduced the  17 bill.  And my first reference is to page 1101 -- the  18 left-hand column which is page 1101.  And he describes  19 what has happened and what he has done.  And in about  20 the last 12 lines he says, after requesting the  21 admiralty to take steps:  22  23 "...my next care is to bring in this Bill which  24 is intended to establish lawful authority and  25 order.  Now, Sir, the Crown, of itself, could,  26 if it thought proper, make a colony of this  27 district.  But the law officers decided, in the  28 case of Vancouver's Island that no Legislature  29 can be established by the Crown, except an  30 elective assembly and a nominative council;  31 and, considering the very imperfect elements  32 for such a constitution at such a moment,  33 considering the ordinary character of  34 gold-diggers, considering that our information  35 as yet is really so scanty that we are at a  36 loss to constitute even a council of the most  37 limited number, I think that most honourable  38 Gentlemen would agree that it would not be fair  39 to the grand principle of free institutions to  40 risk at once the experiment of self-government  41 among settlers so wild, so miscellaneous,  42 perhaps so transitory, and in a form of society  43 so crude."  44  45 And dropping down to the next side line, the sentence  46 beginning:  47 27637  Submissions by Mr. Goldie  1 "And, therefore, here the immediate object is  2 to establish temporary law and order amidst a  3 motley inundation of immigrant diggers, of  4 whose antecedents we are wholly ignorant,and of  5 whom are perhaps few, if any, have any  6 intention to become resident colonists and  7 British subjects.  But, where you cannot at  8 once establish self-government, all sound  9 political thinkers, all friends to that  10 responsibility which is the element of freedom,  11 will perhaps agree that the next best thing is  12 to establish a Government, which shall have as  13 few checks as possible on its responsible  14 functions, which shall possess unhampered what  15 powers we can give it, to secure the respect  16 for recognized authority; which shall be  17 clearly for a limited time, and with the avowed  18 and unmistakable intention of yielding its sway  19 at the earliest possible period to those free  20 institutions for which it prepares the way."  21  22 That's the background to the passage of the Act of  23 1858 which was to give Douglas the extraordinary  24 powers with which he was invested.  25  26 In my summary, I say Bulwer Lytton, the Colonial  27 Secretary, explained the point to Douglas in his  28 dispatch of July 16, 1858:  29  30 "... a Bill is in progress through Parliament  31 to get rid of certain legal obstacles which  32 interpose to prevent the Crown from  33 constituting a Government suited to the  34 exigencies of so peculiar a case..."  35  36 Now, your lordship will see that the extent of the  37 prerogative which could be utilized for the purpose of  38 setting up a colony was considered to be so limited  39 that the final authority, namely an act of parliament,  40 would have to be utilized.  41  42 Now, I say the chief peculiarity of the case was  43 the fact that a majority of miners were not British  44 subjects and were not likely to provide a stable  45 legislature or suitable material for a nominated  46 council.  Douglas was accordingly given complete power  47 to legislate as well as to administer - at least until 2763?  Submissions by Mr. Goldie  1 1862 and in fact until June 11, 1863.  The amplitude  2 of his powers was noted in the Deadman's Island case,  3 my lord.  On appeal, Hunter, C.J., referred to Douglas  4 as:  5  6 "... in reality a Viceroy, with practically  7 unlimited powers, except as to specified  8 topics..."  9  10 Mr. Justice Drake said, after referring to the  11 Governor's very exceptional powers, that:  12  13 "He ruled the Colony autocratically, ..."  14  15 Now, my lord, in my submission that word  16 "autocratic" which is repeated by Lord Dunedin in the  17 next extract is in terms meant to refer to authority  18 which is invested in the individual rather than to the  19 way in which he uses it.  20  21 Lord Dunedin said:  22  23 "...  As to his powers, it may at once be said  24 they were absolutely autocratic; he represented  25 the Crown in every particular, and was, in  26 fact, the law.  At the same time careful  27 dispatches were sent to him by the Colonial  28 Minister of the day laying down in explicit  29 terms the methods of administration which it  30 was desired he should follow."  31  32 As to his power to create reserves Lord Dunedin  33 stated that Douglas, in reserving land, might be  34 acting with a view to various objects:  35  36 "He was there with autocratic power to act in  37 the interests alike of the Imperial Government  38 and of the nascent colony."  39  40 And under tab 1, starting with page 1, will be found  41 the 1858 Act, Douglas' Commission and the Royal  42 Instructions and the Order in Council of September 2,  43 1858 empowering him to make laws.  44 THE COURT:  These blue books is something that came by me for  45 the purpose of being marked, were they?  46 MR. GOLDIE:  Beg your pardon, my lord?  47 THE COURT:  These blue books were something that came by as 27639  Submissions by Mr. Goldie  1 Exhibit 1142 and were marked for that purpose?  2 MR. GOLDIE:  Yes.  They were.  If your Lordship would look under  3 tab 5a-3, they were published according to the  4 requirement of the Act of 1858 and there were four  5 parts.  The Act itself required certain important  6 dispatches relating to government to be laid before  7 parliament.  And they were as published were covered  8 in the -- published with a blue cover.  And in the  9 wording of the day, they were called the blue books.  10 That's the way they are referred to in the Deadman's  11 Island case.  12 THE COURT:  Do they have blue covers in my set?  13 MR. GOLDIE:  No, they don't.  They are all photographed.  14 THE COURT:  All right.  15 MR. GOLDIE:  And the blue comes through as white.  16 THE COURT:  All right.  17 MR. GOLDIE:  But I have used those words because when your  18 lordship reads the judgments in the Deadman's Island  19 case you will find that reference the blue books.  2 0 THE COURT:  All right.  21 MR. GOLDIE:  Now, if I could turn to under tab 5a-6.  The first  22 blue book or the first set of materials which was laid  23 before parliament under the heading "Papers Relating  24 to British Columbia" set out the copy of the Act  25 itself.  If your lordship will look at section 2  26 because this is the primary provision.  27  28 "It shall be lawful for Her Majesty, by any  29 Order or Orders to be by Her from time to time  30 made, with the advice of Her Privy Council, to  31 make, ordain and establish, and (subject to  32 such conditions or restrictions as to her shall  33 seem meet) to authorize and empower such  34 officer as She may from time to time appoint as  35 Governor of British Columbia to make provision  36 for the administration of justice therein, and  37 generally to make, ordain, and establish all  38 such laws, institutions, and ordinances, as may  39 be necessary for the peace, order and good  40 government of Her Majesty's subjects and others  41 therein."  42  43 Now, it is difficult to make any comment on that  44 other than to emphasize the obvious which is that the  45 Queen in Council was authorized to appoint an officer  46 as governor who would have powers of legislation and  47 for peace, order and good government which are words 27640  Submissions by Mr. Goldie  1 of the Viadus Tymphor (phon).  2  3 And then it goes on:  4  5 "...that all such Orders in Council, and all  6 laws and ordinances so to be made as aforesaid,  7 shall be laid before both Houses of Parliament  8 as soon as conveniently may be after the making  9 and enactment thereof respectively."  10  11 Now, that is a provision which is as unusual as  12 the provision allowing the governor to be his own  13 legislature.  In paragraph 7, I say in Calder Mr.  14 Justice Hall at Supreme Court Reports, page 408, after  15 referring to Douglas' Commission and the Royal  16 Instructions, identifies a portion of Lytton's  17 dispatch to Douglas of July 31, 1858 as "Further  18 Instructions".  If by "Further" his Lordship meant  19 subsequent in time to the Royal Instructions he was in  20 error.  The latter were issued and dated September 2,  21 1858 and superseded the former.  See paragraph 4 of  22 the July 31st dispatch.  23  24 And I have under Tab 1 the reference to the  25 Supreme Court Report which follows a reference to  26 Douglas' Commission.  And his lordship reads an  27 extract under the heading "Further Instructions"  28 including one dated July 31, 1858.  And the reference  29 to the full dispatch of July 31st is under the blue  30 separator sheet.  And this is from the "Papers  31 Relating to British Columbia".  And it is clear in my  32 submission, my lord, that this dispatch was written  33 firstly to tell Douglas that he, Bulwer Lytton, would  34 shortly be sending him a copy of the Act passed by the  35 Imperial Parliament authorizing the establishment of a  36 regular government in territory west of the Rocky  37 Mountains.  But he was using the mail that was going  38 out to transmit to Douglas certain of his views.  39  40 And I say if one refers to paragraph 4 it is clear  41 that the Royal Instructions already be those which are  42 to guide him.  I say in paragraph 4, or I read from  43 paragraph 4:  44  45 "In conclusion, I wish to impress upon you the  46 necessity of seeking, by all legitimate means,  47 to secure the confidence and good-will of the 27641  Submissions by Mr. Goldie  1 immigrants, and to exhibit no jealousy whatever  2 of Americans or other foreigners who may enter  3 the country.  You will remember that this  4 Colony is destined for free institutions at the  5 earliest moment.  In the meanwhile it will be  6 advisable for you to ascertain what Americans  7 resorting to the diggings enjoy the most  8 influence and popular esteem, and you should  9 open with them a frank and friendly  10 comminication as to the best means of  11 preserving order, and securing the interests  12 and peace of the Colony.  It may be deserving  13 your consideration whether there may not be  14 found already amonst the immigrants, both  15 British and foreign, some persons whom you  16 could immediately form into a Council of  17 Advise; men, whom, if an Elective Council were  18 ultimately established in the Colony, the  19 immigrants themselves would be likely to elect,  2 0 and who might be able to render you valuable  21 assistance until the machinery of Government  22 were perfected, and you were in possession of  23 the instructions which the Queen shall be  24 pleased to issue for your guidance."  25  26 So in my submission it is clear that the  27 instructions of July 31st were not the primary  28 instructions.  And I say, referring to paragraph 7 of  29 the summary, fourth line from the bottom, it appears  30 that the paragraph quoted in Calder, comes from  31 Exhibit 11 in the Calder case.  The index of the Case  32 on Appeal in Calder and the Exhibit 11 in Calder are  33 under tab 6 of 1142.  And, my lord, that is under the  34 next separator sheet is the index of the Case on  35 Appeal in the Supreme Court of Canada.  And the item  36 number 11, extracts from Papers Relating to Indian  37 Land Question, 1850 to 1875, from that document  38 follows the next sheet British Columbia papers  39 connected with the Indian land question.  And at page  40 12 is the extract from the -- from the dispatch.  And  41 it is the only paragraph which has been extracted,  42 quoted by Mr. Justice Hall.  Now, my lord, the  43 document containing or the document known as papers  44 connected with the Indian land question is Exhibit  45 1182 in these proceedings and that's what we have  46 called the yellow book.  It does not purport to be a  47 complete reprint of the dispatches which were being 27642  Submissions by Mr. Goldie  1  2  3  4  THE  COURT:  5  MR.  GOLDIE  6  7  8  9  10  1  11  12  THE  COURT:  13  MR.  GOLDIE  14  THE  COURT:  15  MR.  GOLDIE  16  17  18  19  1  20  1  21  22  THE  COURT:  23  MR.  GOLDIE  24  25  THE  COURT:  26  MR.  GOLDIE  27  THE  COURT:  28  MR.  GOLDIE  29  THE  COURT:  30  MR.  GOLDIE  31  32  33  34  THE  COURT:  35  MR.  GOLDIE  36  THE  COURT:  37  MR.  GOLDIE  38  39  40  THE  COURT:  41  MR.  GOLDIE  42  THE  COURT:  43  MR.  GOLDIE  44  45  46  THE  COURT:  47  MR.  GOLDIE  exchanged in 1858 to 1862.  There has been filed a  facsimile of the yellow book.  And, fortunately, it is  the colour of --  What is the yellow book?  :  It is a collection of documents published by the  British Columbia government in 1875.  And it was --  consists of miscellaneous instructions, some exhibits,  some dispatches.  And it was published in order to put  before the public the British Columbia side of a  dispute between itself and the dominion primarily over  the size of reserves.  Where does it appear in your text, or does it?  :  It is in paragraph 7.  Yes.  :  I put it this way, it appears that the paragraph  quoted in Calder, comes from Exhibit 11 in the Calder  case.  Now, that is seen at page 12 under the  separator sheet which begins with the heading British  Columbia Papers Connected with the Indian Land  Question 1850 to 1875.  Does your Lordship have that  title page?  I'm not sure .  :  It is under tab 5a-7.  It is page 13 in the  sequence under it the tab.  Page 13?  :  Yes.  In 7?  :  5a-7.  Yes.  All right.  So this is the yellow book?  :  That is the yellow book.  I am going to ask the  registrar to hand up to you our copy of the exhibit.  And you can see that it is the facsimile of the pages  is that which is before the court.  What year was it published?  :  It was published in 1875, most of it.  Yes.  :  And then right at the end of it there is a part  that was published in 1876.  But as I say, it contains  a collection as stated running from 1850 to 1875.  Yes.  All right.  :  And at page 12 --  It would include some of these dispatches?  :  It includes some of these dispatches.  And in the  case of the July 31st dispatch it includes only one  paragraph.  Yes.  All right, sir.  :  I say that this single paragraph quoted by Mr. 27643  Submissions by Mr. Goldie  1 Justice Hall must be read in context, that is to say  2 the context of the whole dispatch, with a special  3 regard to the reference to the Royal Instructions  4 which are to come as well as in its proper chronology.  5 In paragraph 8 of my summary, the further  6 characterization of this dispatch by Mr. Justice Hall  7 at Supreme Court reports at page 413 as a "letter of  8 instruction" is not supported by the full collection  9 of dispatches.  The July 31st letter was followed by  10 more definite instructions on August 14, 1858.  And  11 that I say is Exhibit 1142, tab 1, page 47, not page  12 14.  13  14 My lord, I say more definite because the Colonial  15 Secretary is responding to a series of dispatches from  16 Douglas which are noted in the margin of the dispatch  17 of August 14th at page 47.  18 THE COURT:  August 14th dispatch, is that papers relating to  19 British Columbia?  20 MR. GOLDIE:  Yes.  21 THE COURT:  Is that?  22 MR. GOLDIE:  1142.  23 THE COURT:  That's the yellow book?  24 MR. GOLDIE:  No.  This is now we go to the blue book.  25 THE COURT:  All right.  Yes, all right.  26 MR. GOLDIE:  And Lytton starts out by stating, and I say -- I  27 note, my lord, that this dispatch of August 14th was  28 received by Douglas some eleven days after he received  29 the July 31st dispatch.  And I note, my lord, that the  30 August 14th dispatch is, as I have stated, written in  31 the knowledge of what is contained in a number of  32 dispatches from Douglas and what he has been doing.  I  33 say, furthermore, Douglas' reply to the July 31st  34 dispatch makes no reference to cession of land  35 treaties or to title.  And that reference, my lord, --  36 there isn't a separator sheet.  But it is page 4 of  37 the documents under tab 5a-8.  And this is the  38 acknowledgment of the July 31st dispatch.  He says:  39  40 "I have the honour to acknowledge the receipt  41 of your Despatch No. 6 of the 31st of July  42 last, communicating the views which you  43 entertain upon various topics of importance  44 bearing upon the present situation of affairs  45 and the establishment of regular Government in  46 British Columbia."  47 27644  Submissions by Mr. Goldie  1 And then he goes through a number of items.  And in  2 the last paragraph, I'm sorry, in the last page,  3 paragraph 16, he says, and I quote:  4  5 "I shall not fail to give the fullest scope to  6 your humane consideration for the improvement  7 of the native Indian tribes, and shall take  8 care that all their civil and agrarian rights  9 be protected.  I have in fact already taken  10 measures, as far as possible, to prevent  11 collisions between those tribes and the whites,  12 and have impressed upon the miners the great  13 fact that the law will protect the Indian  14 equally with the white man, and regard him in  15 all respectsas a fellow subject.  That  16 principle being admitted will go far towards  17 the well-being of the Indian tribes, and  18 securing the peace of the country."  19  20 My lord, I want to now turn back to the dispatch of  21 July 31st because it is relied upon both by Mr.  22 Justice Hall by my friends as indicating an  23 acknowledgment of Indian title.  And I say there is no  24 such thing.  And they rely -- they rely upon the  25 reference to bargains or treaties with the natives.  26 And the text that Mr. Justice Hall referred to is the  27 paragraph which is extracted from the yellow book.  28 And the text of the judgment is under 5a-7.  It is the  29 second page, 409 of the Supreme Court Reports, and I  30 quote:  31  32 "I have to enjoin upon you to consider the best  33 and most humane means of dealing with the  34 Native Indians.  The feelings of this country  35 would be strongly opposed to the adoption of  36 any arbitrary or oppressive measures towards  37 them.  At this distance, and with the imperfect  38 means of knowledge which I possess, I am  39 reluctant to offer, as yet, any suggestion as  40 to the prevention of affrays between the  41 Indians and the immigrants.  This question is  42 of so local a character that it must be solved  43 by your knowledge and experience, and I commit  44 it to you, in the full persuasion that you will  45 pay every regard to the interests of the  46 Natives which an enlightened humanity can  47 suggest.  Let me not omit to observe, that it 27645  Submissions by Mr. Goldie  1 should be an invariable condition, in all  2 bargains or treaties with the Natives for the  3 cession of lands possessed by them, that  4 subsistence should be supplied to them in some  5 other shape, and above all, that it is the  6 earnest desire of Her Majesty's Government that  7 your early attention should be given to the  8 best means of diffusing the blessings of the  9 Christian Religion and of Civilization among  10 the Natives."  11  12 Now, my lord, the statements which my friends rely  13 upon is the sentence containing the words "it should  14 be an invariable condition on all bargains and  15 treaties," et cetera.  Now, I will be submitting that  16 it is clear that the lands in question are those upon  17 which they depend for subsistence because Bulwer  18 Lytton says that the conditions should be that  19 subsistence should be supplied to them in some other  20 shape.  Now, when Douglas responded to that, he made  21 no reference whatsoever to treaties.  But what he did  22 say --  23 THE COURT:  And where is this reply again?  24 MR. GOLDIE:  The reply, my lord, is under tab —  25 THE COURT:  5a-8 or 9?  26 MR. GOLDIE:  It is 8, I'm sorry.  And it is the last two pages  27 under that tab.  I'm sorry, the last three pages.  It  28 is his dispatch of October 11th acknowledging the July  29 31st one.  and when he came to reply, he first made  30 reference to the humane consideration for the  31 improvement.  And then he said:  32  33 "And shall take care that all their civil and  34 agrarian rights be protected."  35  36 And then he goes on to say:  37  38 "I have in fact already taken measures, as far  39 as possible, to prevent collisions between  40 those tribes and the whites, and have impressed  41 upon the miners the great fact that the law  42 will protect the Indian equally with the white  43 man, and regard him in all respects as a fellow  44 subject."  45  46 So in my submission, Douglas clearly was identifying  47 the exhortation of the secretary as relating to the 27646  Submissions by Mr. Goldie  1 taking of lands for which -- in respect of which they  2 depended for subsistence.  And I set forward that  3 argument, my lord, in paragraph 8 of my summary  4 beginning about the seventh or eighth line.  I say,  5 furthermore, Douglas' replied to the July 31st  6 dispatch makes no reference to cession of land or land  7 treaties or to title.  It is apparent that Douglas, in  8 stating that he would take care that "... all their  9 civil and agrarian rights be protected..." was  10 proceeding on the premise that if the Indians were  11 protected they would have no need of the subsistence  12 spoken of by Lytton with the qualifing words "in some  13 other shape...".  The exchange is intelligible only if  14 it is understood to mean that both Lytton and Douglas  15 were referring to the situation that would arise if  16 the Indians were deprived of their cultivated lands.  17 There is, in my submission, my lord, no acknowledgment  18 or recognition of an Indian right to ownership and  19 jurisdiction over the lands of British Columbia.  20 THE COURT:  Mr. Goldie, some time ago both during evidence and  21 in your submission you read me some statements by  22 Douglas where he referred to the problems south of the  23 49th parallel.  24 MR. GOLDIE:  Yes.  25 THE COURT:  Did they come before this or after this?  26 MR. GOLDIE:  They are coming in this sequence now.  27 THE COURT:  All right.  You thank you.  28 MR. GOLDIE:  Now, my lord, the next section deals briefly with  29 Douglas' commission and instructions.  And I have  30 referred briefly to the Act of 1858.  And I am going  31 to enlarge upon that a bit more.  Paragraph 9 I say,  32 although the new colony was created because of the  33 influx of gold miners it was deemed by Parliament to  34 be a settled colony and the object of its creation was  35 further settlement.  And that is evidence from the  36 preamble to which I referred your lordship when I was  37 discussing the question of the difference between  38 settled and conquered colonies.  And I emphasize in  39 this particular context this sentence:  40  41 "Where as diverse of Her Majesty's subjects  42 and others have by the license and consent of her  43 majesty resorted and settled on certain wild  44 and unoccupied territories in the northwest coast  45 of North America."  46  47 And then the creation of a further settlement: 27647  Submissions by Mr. Goldie  1  2 It is desirable to make some temporary  3 provision with the civil Government until  4 permanent settlements shall be thereupon  5 established and the number of colonists  6 increased."  7  8 It was declared to be in the preamble "wild and  9 unoccupied territories".  And I will refer briefly to  10 the legal effect of this again.  11  12 Now, in contrast with the situation in New Zealand  13 there is no mention in Douglas' Commission or  14 Instructions of how land it to be taken up by settlers  15 where native title existed.  The Commission and the  16 Royal Instructions are silent with respect to Indians  17 while making provision for settlement - a condition  18 inconsistent with the recognition to that point of any  19 proprietary or other interest of the Indians.  20  21 The machinery of government was deliberately  22 designed to provide for the immediate implementation  23 of the Governor's initiatives in the face of the  24 extraordinary situation confronting him.  This  25 included delay in the introduction of responsible  26 self-government in a settled colony.  And then I  27 say --  28 THE COURT:  I'm sorry, Mr. Goldie.  I have paragraph 11 that  29 you've been reading there I think.  30 MR. GOLDIE:  Yes.  31 THE COURT:  It only has -- wait a minute.  I have two pages of  32 the same thing, that's the problem.  No.  That doesn't  33 do it, unless it is somewhere else.  I have two page  34 6's and no page 7.  Miss Tompson has handed me a page  35 7 that I don't have which seems to follow the tract of  36 page 6.  37 MR. GOLDIE:  Yes, that's correct.  Does that start with the  38 words "the Governor's initiatives"?  3 9    THE COURT:  Yes.  40 MR. GOLDIE:  That's the way it should be.  So if this 7 would  41 replace the other 7, I think it follows the context.  42 Yes, it does.  And now the paragraph 11 at the bottom  43 of page 6 that I was reading from continues on to the  44 top of the next page.  For the immediate  45 implementation of the Governor's initiatives in the  46 face of the extraordinary situation --  4 7    THE COURT:  Yes. 2764?  Submissions by Mr. Goldie  1 MR. GOLDIE:  -- confronting it.  This included a delay in the  2 introduction of responsible self-government in a  3 settled colony.  4  5 And then in the next paragraph under the heading  6 "The mainland colony was a settled colony in  7 recognition of aboriginal title was excluded by the  8 Act of 1858".  There can be no question that when  9 parliament enacted the Act of 1858 its powers with  10 respect to what became the Mainland Colony was "...  11 the same as its powers in the United Kingdom."  My  12 lord, the Madzimbamuto case is the one that arose out  13 of the unilateral Declaration of Independence of  14 Southern Rhodesia.  And the proposition was made that  15 the effect of that was to give rise to a divided  16 sovereignty.  And at page 722 of that report which is  17 under tab 5a-12 I have simply noted this:  18  19 "If The Queen in the Parliament of the United  20 Kingdom was Sovereign of Southern Rhodesia in  21 1965, there can be no doubt that the Southern  22 Rhodesia Act of 1965, and the Order in Council  23 made under it were of full legal effect there.  24 Several of the learned judges have held that  25 Sovereignty was divided between the United  26 Kingdom and Southern Rhodesia.  Their Lordships  27 cannot agree.  So far as they are aware it has  28 never been doubted that, when a colony is  29 acquired or annexed, following on conquest or  30 settlement, the Sovereignty of the United  31 Kingdom Parliament extends to that colony, and  32 its powers over that colony are the same as its  33 powers in the United Kingdom."  34  35 Going back to my summary, in other words,  36 Parliament's legislative powers were unrestricted.  In  37 English constitutional theory this is conveniently  38 known as "supremacy of Parliament".  The acknowledged  39 expositro of this theory was Dicey.  Extracts from the  40 10th Edition are referred to.  That should be part  41 VII, my lord, section 2, rather than part V.  There  42 are also references in part V, but that one is more  43 convenient.  44  45 I say, the Act of 1858 is beyond challenge in this  46 or any other of the Queen's Courts.  The modern view  47 does not differ in any material sense.  And the 27649  Submissions by Mr. Goldie  1 extract under that is to Halsbury, paragraph 81.  2 THE COURT:  You have read this already.  3 MR. GOLDIE:  And I have read this.  And this, of course, in my  4 submission was the state of the law in 1858.  And to  5 the extent that it is relevant, it is the state of the  6 law today certainly in respect to the United Kingdom  7 Parliament.  8  9 In paragraph 15, the 1858 Act empowered the Queen  10 in Council to confer upon the Governor the most  11 exstensive legislative powers.  The words "peace,  12 order and good government" in section 2 of the 1858  13 Act are repeated in paragraph III in Douglas'  14 Commission and in the Order in Council pursuant to  15 section II of the Act itself.  Douglas is himself  16 empowered to make laws "... as may be necessary for  17 the peace, order and good government of Her Majesty's  18 subjects and others in the said Colony".  19  20 Now, I make brief reference again to the extent of  21 the words "peace, order and good government", but I  22 simply note here that the Act of Parliament conferred  23 upon the Queen in Council a power to, in turn, confer  24 upon an officer nominated by her as Governor the power  25 to make laws for peace, order and good government.  26 When we turn to the Commission and the Instructions,  27 we find that that delegated power which Parliament to  28 the could Queen in Council was fully exercised.  29  30 And if your lordship would look under tab 5a-15, I  31 have collected there firstly section II of the Act of  32 Parliament.  And I have sidelined the words:  33  34 "... and establish all such laws, institutions  35 and ordinances as may be necessary for the  36 peace, order and good government of Her  37 Majesty's subjects and others therein."  38  39 Then when we turn to the Letters Patent, his  40 Commission we find in section III:  41  42 "And whereas it has been appointed by  43 Parliament that it shall be lawful for Us, by  44 any Order or Orders to be by Us from time to  45 time made, by advice of Our Privy Council, to  46 make, ordain, and establish, and,subject to  47 such conditions and restrictions as to Us shall 27650  Submissions by Mr. Goldie  1 seem meet, to authorize and empower such  2 officer as We may appoint to administer the  3 Government of Our said Colony, to make  4 provision for the administration of justice  5 therein, and generally to make, ordain, and  6 establish all such laws, institutions, and  7 ordinances as may be necessary for the peace,  8 order and good government of Our subjects and  9 other residing therein."  10  11 And then the appointment itself.  And then the next  12 page I have the Order in Council which empowers him to  13 exercise those powers.  And there is a recital with  14 respect to the Act of 1858 and to the power of the  15 Queen in Council to make the appointment.  And the  16 extent of that appointment in the first page:  17  18 "...generally to make, ordain, and establish  19 all such laws, institutions and ordinances."  20  21 And then beginning at the bottom of the page, the  22 operative words of the Order in Council:  23  24 "Her Majesty, by virtue of the powers vested in  25 Her by the said recited Act, and by and with  26 the advice of Her Privy Council, is pleased to  27 order and doth hereby order, authorize,  2 8 empower, and command the Governor, or the  29 officer for the time being administering the  30 Government of the said Colony of British  31 Columbia, to make provision for the  32 administration of justice; and further, by  33 Proclamation or Proclamations to be by him  34 issued for that purpose, under the Public Seal  35 of the said Colony, to make, ordain, and  36 establish all such laws and ordinances as may  37 be necessary for the peace, order and good  38 government of Her Majesty's subjects and others  39 in the said Colony; subject, nevertheless, to  40 the following conditions, that is to say: that  41 every such law or ordinance as aforesaid shall  42 by the said Governor or officer administering  43 the Government be with all convenient  44 expedition transmitted to Her Majesty, for Her  45 approbation or disallowance thereof or of any  46 part thereof, through one of Her Principal  47 Secretaries of State, and that the same or any 27651  Submissions by Mr. Goldie  1 part thereof shall not be in force within the  2 said Colony after Her Majesty's disallowance as  3 aforesaid shall be made known therein:  4 Provided nevertheless, Her Majesty doth hereby  5 reserve to Herself, Her heirs and successors,  6 Her and their right and authority to make and  7 establish, from time to time, with the advice  8 of Her Privy Council, all such laws as may to  9 Her or them appear necessary for the order,  10 peace, and good government of the said Colony  11 and its Dependencies, as fully as if this  12 present Order had not been made."  13  14 Now, my lord, I say that the effect of all of this  15 is to confer upon Douglas the same powers to make laws  16 as the Imperial Government itself, the Imperial  17 Parliament itself possessed.  The restrictions on that  18 do not effect the amplitude of the power itself.  And  19 I make reference to Hogg's Constitutional Law of  20 Canada in paragraph 16.  And I note the footnote 7.  21 And Professor Hogg here is referring to the  22 proposition made by the editor of Laskin's  23 Constitutional Law of Professor Abel.  And he says:  24  25 "In the same article Abel insists that the  26 phrase 'peace, order and good government of  27 Canada' should not be treated as 'a jingle' or  28 a 'package deal', but should be unpacked so  29 that a court asks of a statue: 'does this  30 involve the peace of Canada? the order of  31 Canada? the good government of Canada?'  This  32 suggestion not only finds no support in  33 Canadian case law (as he concedes), it seems to  34 me to be historically inaccurate.  The phrase  35 'peace, order and good government', or some  36 close variant thereof, is to be found in nearly  37 all the British-derived constitutions,  38 including the constitutions of unitary states  39 such as New Zealand, and the phrase has  40 everywhere been interpreted as 'a compendious  41 means of delegating full powers of  42 legislation', subject to any limitations which  43 may be expressed in other language of the  44 constitution."  45  46 Now, there are a number of authorities which  47 support that proposition.  And I say the Governor's 27652  Submissions by Mr. Goldie  1 powers were limited only by the restrictions expressly  2 set out in the Royal Instructions accompanying his  3 Commission.  And the Royal Instructions I will come to  4 in a couple of minutes.  5 But in paragraph 17 I say, as earlier stated in  6 Part V, the Mainland Colony was a settled colony.  The  7 legal result of this has been noted.  The colony was  8 also declared to be created out of "wild and  9 unoccupied territory".  The legal effect of this was  10 to deny the existence of any organized body that could  11 enter into a treaty of surrender and such a denial was  12 not open to question.  Parliament's declaration was  13 not made out of ignorance of the presence of Indian  14 tribes.  The Aboriginal Map of North America  15 (identified as AGBC #26B in the second pocket of the  16 Report from the Select Committee on the Hudson's Bay  17 Company) was ordered printed by the House of Commons  18 July 31 and August 11, 1857 and a number of the  19 members of that Committee participated in the debates  20 on the 1858 Bill.  Sir George Simpson testified in  21 March of 1857 that the population of the Indians west  22 of the mountains was 80,000; that there were very  23 warlike and very numerous; and that they might be  24 troublesome in the first instance until the settlers  25 were sufficiently numerous to protect themselves.  26  27 The map itself, which I'll get out in a few  28 minutes, my lord, is just a couple of parts of it have  29 been photographed for the yellow binder under tab  30 5a-17.  But your Lordship will see that the title of  31 the map is Aboriginal Man of North America Denoting  32 the Boundaries and the Locations of Various Indian  33 Tribes.  And then part of that, the lower right-hand  34 corner of the map is a census, so to speak, of various  35 tribes and their locations.  And at the top it says  36 "Statement of the Indian Tribes of the Hudson's Bay  37 Territories west of the Rocky Mountains."  38 And there are numbers given there which don't quite  39 coincide with Sir George Simpson's evidence.  And  40 the —  41 THE COURT:  It shows about is it 35 and 15?  42 MR. GOLDIE:  Yes.  4 3    THE COURT:  50,000.  Yes.  44 MR. GOLDIE:  And then the next page which is page 3 of the set  45 of documents is from the evidence of the Select  46 Committee.  The report in the evidence is Exhibit  47 1183, my lord.  Sir George Simpson was giving evidence 27653  Submissions by Mr. Goldie  1 on March 2, 1857.   And he is here being questioned  2 about the country of the Rocky Mountains.  I will  3 refer first to question 2058:  4  5 "Q  Are you well acquainted with the country to  6 the west of the Rocky Mountains?  7 A  Yes; I have travelled through that country  8 repeatedly.  9 Q   Are you able to form any opinion as to how  10 much of it, or whether any of it is fit for  11 colonization; I speak of the mainland; not of  12 Vancouver's Island?  13 A  Very little of it I think is fit for  14 settlement and colonizationnorth of 49, from  15 the rugged character of the country; it is and  16 exceedingly rugged and mountainous country."  17  18 And then he is asked about the soil and so on and so  19 forth, and the severity of the winters, what has been  20 going on in Fort Langley.  21  22 2064 Q   In the event of colonization being  23 attempted there, is it likely that any  24 difficulty would arise as regards to the  25 Indians?  26 A   The Indians are very warlike and very  27 numerous, and I think they might be troublesome  28 to settlers in the first instance, unless they  29 were sufficiently numerous to protect  30 themselves.  31 Q   The Company has had more trouble with them  32 west of the mountains than in the east?  33 A  Much more trouble.  They are difficult to  34 manage.  35 Q   I think about two-thirds of the whole  36 Indian population reside west of the mountains?  37 A   I think about 80,000; the whole population  38 being about 139,000."  39  40 Now, my submission, my lord, is that even if it was  41 legally permissible for the facts behind Parliament's  42 declaration to be examined, and we found, as we do  43 find, that Parliament was well aware of the existence  44 of Indian peoples, the declaration in the Act of 1858  45 is, in my submission, sufficient to rule out the  46 proposition that Parliament contemplated any treaty of  47 surrender wild and unoccupied territory is 27654  Submissions by Mr. Goldie  1 unambiguous.  It was intended that the settlers would  2 form a settled colony in which there was no sovereign.  3 THE COURT:  I think we will take the morning adjournment now,  4 please.  5 THE REGISTRAR:  Order in court.  Court stands adjourned for a  6 short recess.  7 (PROCEEDINGS ADJOURNED at 11:00)  8  9 I hereby certify the foregoing to  10 be a true and accurate transcript  11 of the proceedings transcribed to  12 the best of my skill and ability.  13  14  15  16  17    18 Lisa Franko,  19 Official Reporter,  2 0 UNITED REPORTING SERVICE LTD.  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 27655  Submissions by Mr. Goldie  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 27656  Submission by Mr. Goldie  1 (PROCEEDINGS RECONVENED AT 11:20 A.M.)  2  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  My lord, I asked the registrar to place before your  5 lordship the Aboriginal Map of North America, which  6 was appended to the report of the Select Committee in  7 the Hudson's Bay Company.  And it's not all that easy  8 to see, but if your lordship, for instance, looks over  9 on the west coast of British Columbia just opposite  10 the Queen Charlotte Islands, you'll see on the Queen  11 Charlottes a name which can be recognizable as Haida.  12 THE COURT:  Yes.  13 MR. GOLDIE:  And then just opposite that on the mainland a name  14 which is recognizable as Tsimshian.  15 THE COURT:  Yes.  16 MR. GOLDIE:  And the shading of the map represents the nations  17 or what was thought at the time to be the larger  18 groups.  And all I'm saying, my lord, is that there  19 was a very considerable amount of information known in  20 1857 which was not known in 1848, when the Colony of  21 Vancouver Island was founded.  And I submit that there  22 is no basis for saying that there was any measure of  23 ignorance over the existence or the characteristics of  24 the native peoples on the mainland, and from that I  25 submit that the parliamentary declaration in the  26 preamble that the colony was to be created out of wild  27 and unoccupied territory carries with it the clear  28 implication that, as I said, there was no recognized  29 sovereign.  30 My lord, I was -- I think it would be convenient  31 for me to deal briefly with Douglas' instructions  32 here.  It's not in my text.  I have it, I believe,  33 elsewhere, but I think in light of my submissions with  34 respect to his powers I can briefly refer to his  35 instructions, the Royal Instructions.  They are found  36 under tab 5a-10.  37 THE COURT:  That's V?  38 MR. GOLDIE:  No, it's VII/5a-10, the tab in the yellow binder.  39 THE COURT:  Are they in this book?  40 MR. GOLDIE:  Yes, they'll be in the yellow binder we're working  41 with, my lord.  42 THE COURT:  Yes.  43 MR. GOLDIE:  And it should open at the commission, "Letters  44 Patent under the Great Seal..."  4 5 THE COURT:  Yes.  46 MR. GOLDIE:  And then three pages on are the instructions.  47 THE COURT:  Page 3. 27657  Submission by Mr. Goldie  1 MR. GOLDIE:  And these are -- these are the Royal Instructions  2 which Douglas was told in the despatch of July 31st  3 would be coming to him.  They're dated September the  4 2nd, as is the Order in Council -- as is the letters  5 patent appointing him.  And, in my submission, there  6 is nothing in the instructions which limit his powers  7 under the Peace Order in Good Government Grant in  8 respect of Indian title.  9 And the paragraphs are numbered in the -- in Roman  10 numbers, and I think the -- those which limit his  11 legislative powers -- well, I can begin with VI on the  12 second page of the insert.  13  14 "You are to observe, in making laws, that the  15 style of enacting the same be by the Governor  16 of British Columbia."  17  18 That is contrasted with the style of an act of  19 parliament, which typically refers to the Queen in  20 parliament by and with the advice of the House of  21 Commons or whatever.  He is -- it is he who makes the  22 law.  23 Item VII is not very relative.  It's what I might  24 call a style direction.  But then in VIII we come to  25 the expressed limitations on his powers.  26  27 "You are not to make any law whereby any person  28 may be impeded in establishing the worship of  29 Almighty God in a peaceable and orderly manner,  30 although such worship may not be conducted  31 according to the rites and ceremonies of the  32 Church of England;  33 IX.  Nor any law for the divorce of persons  34 joined together in holy matrimony;  35 X.  Nor any law for granting land or money or  36 other donation to yourself;  37 XI.  Nor any law for making any paper or other  38 currency a legal tender, except the coin of the  39 realm, or other gold or silver coin;  40 XII.  Nor any law for raising money by the  41 institution of public or private lotteries;  42 XIII.  Nor any private law whereby the property  43 of any individual may be affected, in which  44 there is not a saving of the rights of Us, Our  45 heirs and successors, and of all bodies politic  46 or corporate, and of all other persons,  47 excepting those at whose instance or for whose 2765?  Submission by Mr. Goldie  1 especial benefit such law may be enacted, and  2 those claiming by, from, through, and under  3 them;  4 XIV.  Nor any law for imposing differential  5 duties;  6 XV.  Nor any law the provisions of which shall  7 appear inconsistent with obligations imposed  8 upon us by treaty;  9 XVI.  Nor any law interfering with the  10 discipline of our Land or Sea Forces in the  11 Colony;  12 XVII.  Nor any law that shall purport to be  13 enacted for less than one year;  14 XVIII.  Nor any law, of an extraordinary nature  15 and importance, whereby Our Prerogative, or the  16 rights and property of Our subjects residing in  17 Our said Colony, or the trade and shipping of  18 Our United Kingdom and its Dependencies, may be  19 prejudiced;  20 XIX.  Nor any law containing provisions to  21 which Our assent has been once refused, or  22 which have been disallowed by Us."  23  24 My lord, broadly speaking -- well, not broadly  25 speaking.  Those are the limitations on the -- his  26 power to make laws, and clearly he could make laws  27 with respect to Indians, as he did; he could make laws  28 with respect to the disposition of land, as he did; he  29 could make laws with respect to imposing taxes, as he  30 did.  In other words, the restrictions on him were  31 very, very few.  32 THE COURT:  What about XVIII?  33 MR. GOLDIE:  "Nor any law, of an extraordinary nature and  34 importance..."?  Is that the one you're referring to?  35 THE COURT:  Yes.  36 MR. GOLDIE:  Yes.  "...whereby Our Prerogative, or the rights  37 and property" -- I take it that that is a prohibition  38 against anything which would prejudice the  39 prerogative.  Not the exercise of the prerogative, but  40 the prerogative itself.  41 THE COURT:  It says, "...or the rights and property of Our  42 subjects residing in Our said Colony" are prejudiced.  43 MR. GOLDIE:  Yes.  44 THE COURT:  If there were some form of aboriginal rights  45 existing, then the Indians within the province, would  46 they not be prejudiced or could they not be prejudiced  47 by any law? 27659  Submission by Mr. Goldie  1  MR.  GOLDIE  2  3  THE  COURT:  4  MR.  GOLDIE  5  6  7  8  9  10  ]  11  THE  COURT:  12  13  MR.  GOLDIE  14  THE  COURT:  15  MR.  GOLDIE  16  THE  COURT:  17  MR.  GOLDIE  18  THE  COURT:  19  MR.  GOLDIE  20  21  22  23  24  25  THE  COURT:  26  MR.  GOLDIE  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  :  It would have to be one of an extraordinary nature  and importance.  Yes.  :  I take it that that is directed to what might be  termed a bill of attainder where the object of the --  of the legislation is to single out somebody, but a  bill or an act which grants land to a settler and  which may incidentally affect a claim of aboriginal  title is not one that falls within that, my lord, in  my submission.  There's no actual specific power to grant land, or  is there?  :  No.  He passes a law.  Yes.  :  Which --  Gave that power to himself.  :  Yes, which enables him to do that.  Yes.  :  And, of course, as I mentioned yesterday, that's  one of the great differences between the situation  that prevailed in Vancouver Island and the one that  prevailed in the mainland.  In Vancouver Island the  right to grant lands was with the company.  Here it is  with the Crown as represented by Douglas.  Yes.  All right.  :  Turning to paragraph 18 of my summary, my lord, I  say the Act of 1858 contemplated that upon the  appointment of the governor the laws of England would  follow the settlers and would be in force to the  exclusion of all other forms of law.  Now, when I say  contemplated, I'm referring there to the law which I  have alluded to earlier and is stated by Blackstone  that where the colony is a settled colony it is based  upon the assumption that -- I'm sorry -- that where  the colony is a settled colony the presumption is that  the settlers take with them the laws of England, the  assumption being that they are British settlers.  I say in 19 Mr. Justice Hall in Calder thought  that Douglas' proclamations would be ultra vires if he  purported to extinguish aboriginal title.  And the  reference there, my lord, is to -- pages 408 and 413  is where the full discussion takes place, and his  lordship says at page 413:  "If in any of the Proclamations..."  This is the left-hand column, paragraph 3. 27660  Submission by Mr. Goldie  1 "If in any of the Proclamations or actions of  2 Douglas, Seymour or of the Council of the  3 Colony of British Columbia there are elements  4 which the respondent says extinguish by  5 implication the Indian title, then it is  6 obvious from the Commission of the Governor and  7 from the Instructions under which the Governor  8 was required to observe and neither the  9 Commission nor the Instructions contain any  10 power or authorization to extinguish the Indian  11 title, then it follows logically that if any  12 attempt was made to extinguish the title it was  13 beyond the power of the Governor or of the  14 Council to do so and, therefore, ultra vires."  15  16 Now, my lord, I submit that his lordship's  17 conclusion rests upon three erroneous assumptions:  18 firstly, that an express power to extinguish must be  19 found in Douglas' Commission or Instructions.  My  20 lord, the form of the act, the letters patent, and the  21 Royal Instructions is not to grant a specific power,  22 but to exclude from the broadest possible power  23 certain items, and, in my submission, not one of those  24 items precluded Douglas from either expressly or  25 incidentally extinguishing Indian title if he had  26 wanted to.  His lordship appears to assume that there  27 had to be an express grant in one of the -- one of the  28 instruments conferring power upon Douglas, and  29 that's -- the instructions, the Royal Instructions do  30 not purport to confer legislative powers.  That was  31 done through the letters patent, which depended in  32 turn upon the Act of 1858.  The point is that there is  33 nothing in any of those instruments which recognize  34 aboriginal title.  35 The further assumption that his lordship appears  36 to make is that Lytton's July 31st, 1858 despatch was  37 a direction to recognize title and was further -- was  38 further to the Royal Instructions.  In fact, the two  39 things were exactly reverse.  The Royal Instructions  40 superseded the July 31st despatch, which expressly  41 acknowledged that the instructions were -- the Royal  42 Instructions were on their way or were to be on their  43 way in the course of time.  44 And finally, his lordship, of course, assumed that  45 the Royal Proclamation of 1763 applied to British  46 Columbia.  47 I say as to item one above, Douglas had the widest 27661  Submission by Mr. Goldie  1 powers possible.  Their exercise was subject only to  2 disallowance of the laws he made, to parliamentary  3 intervention and to instructions in respect of his  4 administration.  The fallacy with respect to item two  5 has been noted:  the Royal Instructions of September  6 2nd superseded the July 31st despatch.  As to item  7 three, this has been dealt with in detail elsewhere.  8 It is sufficient to note here that the Act of 1858  9 rules out the application of the Royal Prerogative by  10 declaring the territory "wild and unoccupied" and  11 treating it as settled by "divers of Her Majesty's  12 subjects and others..." who are said to have resorted  13 to and settled in the lands.  The result in law is  14 that stated by 6 Halsbury, sections 1017, 18, and 27.  15 My lord, I'm not going to refer to those in detail,  16 they have been alluded to already, but they're under  17 tab 5a-20.  Moreover, I submit, the reasoning of Mr.  18 Justice Hall assumes that aboriginal title existed in  19 British Columbia at or prior to the creation of the  20 colony.  That assumption, with respect, is incorrect.  21 The reference should be Part III, my lord, section 1  22 of this summary, not part IV.  23 Now, I should explain that that last point is not  24 a denial that there existed as amongst the inhabitants  25 of the mainland of what became British Columbia a  26 system of customs and usages which they themselves  27 observed.  I'm not denying that at all.  What I am  28 saying is that there was no such recognition that  29 those customs and usages were the law in British  30 Columbia at the time it became a colony.  31 And I say the situation was not unlike that which  32 Lord Grey assumed would have been the case had there  33 not been prior transactions in New Zealand.  See  34 Exhibit 1251, tab 5, pages 67-69.  And I have read  35 that in part to your lordship also, but this is his  36 instructions to the newly appointed Governor of New  37 Zealand, and he states that he entirely dissents from  38 the claims that the native peoples have an interest in  39 the land, to all of the land as the "proprietors of  40 every part of its soil."  And I rely upon that as a  41 statement of the law which prevailed in the United  42 Kingdom in 1858.  43 Now, that's by way of a background, and I say how  44 Douglas resolved peaceful permanent settlement in the  45 colony with protection of the interests of the Indian  46 peoples will be reviewed in the next part.  But before  47 I go to that I want to discuss an addendum to that 27662  Submission by Mr. Goldie  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  part, my lord, which will follow this and begin with  paragraph number 23.  And in this I say, my lord,  before going to the events "on the ground" I wish to  make reference to Mr. Justice Hall's criticism of the  British Columbia Court of Appeal in Calder at 404-406.  He characterizes "as an erroneous application of the  Act of State doctrine" the Court of Appeal's holding  that there is no Indian title capable of judicial  recognition in the courts of Canada unless it has been  previously recognized either by the legislature or the  executive branch of government.  Mr. Justice Hall conceded that the activity of the  sovereign in the acquisition of territory is an Act of  State.  And the judgment in the Supreme Court of  Canada may be found, my lord, in the defendant's grey  books of authorities, Volume 1 under tab C-2, and the  particular reference to which I note is 404 to 406,  and at page 404, the last paragraph is where his  lordship addresses the so-called Act of State  doctrine.  He says, and I quote:  "This doctrine denies a remedy to the citizens  of an acquired territory for invasion of their  rights which may occur during the change of  sovereignty."  THE COURT:  I'm sorry, that's on 404?  MR. GOLDIE:  Yes, my lord.  It's the last paragraph.  THE COURT:  Oh, yes.  Thank you.  Yes.  MR. GOLDIE:  His lordship suggests the doctrine has no  application to claims dependent on aboriginal title,  and that is found at page 405 in the first paragraph  following a quotation from Professor O'Connell, where  his lordship says:  "The Act of State doctrine has no application in  the present appeal for the following reasons:  (a) It has never been invoked in claims  dependent on aboriginal title."  He also suggests that the cases relied upon by the  Court of Appeal have either been repudiated, and in  that regard, my lord, he's relying upon Professor  O'Connell, who is quoted at the top of page 405 as  stating this, and I quote:  "This doctrine, which has been affirmed in 27663  Submission by Mr. Goldie  1 several cases arising out of the acquisition of  2 territory in Africa and India, has been  3 misinterpreted to the effect that the  4 substantive rights themselves have not survived  5 the change.  In fact English courts have gone  6 out of their way to repudiate the construction,  7 and it is clear that the Act of State doctrine  8 is no more than a procedural bar to municipal  9 law action, and as such is irrelevant to the  10 question whether in international law change of  11 sovereignty affected acquired rights."  12  13 That's one basis for his lordship's rejection of  14 the application of the Act of State doctrine.  The  15 other is -- I have put it in paragraph 24 -- or are  16 limited to those instances where the claimant sought  17 to enforce a treaty between two sovereign states.  And  18 that is -- that is expressed in the last paragraph on  19 page 405.  20  21 "The ratio for the cases relied upon by the  22 Court of Appeal was that a municipal Court  23 could not review the Act of State if in so  24 doing the Court would be enforcing a treaty  25 between two Sovereign States."  26  27 THE COURT:  Where is that, please?  28 MR. GOLDIE:  That is in the last paragraph on page 405 beginning  29 with the —  30 THE COURT:  Oh, yes, I see it.  31 MR. GOLDIE:  Yes.  32 THE COURT:  Mr. Goldie, before you go on, I understand your  33 submission that a claim to title must be one which is  34 recognized by the operation in law of the  35 jurisdiction.  36 MR. GOLDIE:  Yes.  37 THE COURT:  But I'm not sure if you are equating that to Act of  38 State.  39 MR. GOLDIE:  No, I'm not.  This is what I want to clear up  40 because I am not saying that the act of recognition --  41 THE COURT:  Yes.  42 MR. GOLDIE:  — is in itself an Act of State.  It may be.  43 THE COURT:  What I'm trying to get straight at the moment is  44 whether or not you are relying upon any Act of State  45 doctrine.  46 MR. GOLDIE:  I'll put it this way, my lord.  I will submit that  47 there are at least two instances which can be pointed 27664  Submission by Mr. Goldie  1 to as Acts of State, but I do not rely upon the Act of  2 State doctrine.  The instances simply fit the  3 definition of Act of State, which is an act of the  4 sovereign.  My concern here is to ensure that the  5 criticism of the Court of Appeal is not applied to my  6 submission.  7 THE COURT:  Well, he says on 404:  8  9 "The Court of Appeal also erred in holding that  10 there 'is no Indian title capable of judicial  11 interpretation unless it has previously been  12 recognized either by the Legislature or the  13 Executive Branch of Government.'"  14  15 Now, is that your position here?  16 MR. GOLDIE:  It is, but I don't -- I don't have to rely upon any  17 Act of State doctrine.  Put another way, my lord, my  18 submission cannot be put to one side on the  19 proposition that it is dependent --  2 0 THE COURT:  Yes.  All right.  21 MR. GOLDIE:  — upon an Act of State doctrine.  22 THE COURT:  All right.  Thank you.  Well, are you then saying  23 that establishing a colony is an Act of State and  24 that's a factor you rely upon in saying that having  25 done that there can't be a third level of rights or a  26 legal right that doesn't fit the jurisprudential  27 system that is established?  28 MR. GOLDIE:  Yes, in a settled colony.  29 THE COURT:  In a settled colony.  But you do not say that that  30 is an Act of State doctrine?  31 MR. GOLDIE:  If the Act of State doctrine which the Court of  32 Appeal got into a discussion of and which Mr. Justice  33 Hall criticized its application of, if the Act of  34 State doctrine is -- I'm sorry.  If my submission  35 which your lordship has just summarized is  36 characterized as an application of the Act of State  37 doctrine, I say I don't have to rely upon that.  38 THE COURT:  All right.  39 MR. GOLDIE:  Now, the confusion which arises or which has arisen  40 can be seen from his lordship's reference to Professor  41 O'Connell.  In the first place, Professor Connell's  42 work dealt with public international law, and the  43 reference is in a chapter dealing with state  44 succession.  Now, my lord, attached to this addendum  45 is, and it's the first item following the typed page,  46 is the title page of Professor 0'Connell's work, and  47 it's called "International Law," and the chapter is 27665  Submission by Mr. Goldie  1 headed "State Succession.  2 Well, by definition Professor O'Connell is talking  3 about the situation that arises in a ceded or  4 conquered colony where one sovereign succeeds another.  5 That's what state succession is all about.  And the  6 particular aspect which he was considering was the  7 protection afforded by international law to the  8 acquired rights of foreign nationals after the change  9 of sovereignty takes place.  10 Now, that's -- that becomes apparent when one goes  11 to page 377, the "Effect of Change of Sovereignty on  12 Acquired Rights."  Well, your lordship will have heard  13 my submission that in a settled colony there is no  14 change of sovereignty.  And by definition -- by virtue  15 of the Act of 1858, the status of British Columbia,  16 the settled colony, was determined.  And then he  17 goes -- he defines acquired rights, and then on page  18 378 he says -- he has a section headed "Protection of  19 acquired rights and the doctrine of Act of State," and  20 then there follows the text which is cited by Mr.  21 Justice Hall, and it concludes with the words -- or  22 not concludes, but it contains the words, about  23 two-thirds of the way down Professor 0'Connell's text:  24  25 "This doctrine, which was affirmed in several  26 cases arising out of the acquisition of  27 territory in Africa and India, has been  28 misinterpreted to the effect that the  29 substantive rights themselves have not survived  30 the change.  In fact English courts have gone  31 out of their way to repudiate the  32 construction..."  33  34 And then there is cited footnote 51 with a series of  35 cases and articles and a reference to Professor  36 O'Connell's work itself.  37 It is submitted, and I'm back in paragraph 25, it  38 is submitted that the context of state succession is  39 irrelevant to British Columbia.  There is no issue of  40 state succession in the case at bar.  41 Now, furthermore, and this is almost nothing but  42 an aside, my lord, in respect of his statement that  43 English courts have repudiated one application of the  44 Act of State doctrine, Professor O'Connell fails to  45 cite the Vajesingji case.  That was the case that very  46 clearly held that the foreign national -- or not the  47 foreign national, but the inhabitant of a country in 27666  Submission by Mr. Goldie  1 which there is a change of sovereignty has no rights  2 except those recognized by something of a very  3 specific nature.  4 I say in that case, although it was factually  5 concerned with a ceded territory, the holding was  6 extended to settled colonies as well.  All the cases  7 relied upon by Professor O'Connell to support his  8 statement that there had been a repudiation of Cook v.  9 Sprigg and the other authorities referred to in his  10 footnote 50 were decided before Vajesingji.  The  11 latter case was applied by the Privy Council as late  12 as 1985, and, in my submission, Professor O'Connell's  13 assertion, even if it was relevant, must itself be  14 regarded as no longer good law.  15 Now, my lord, I come to the point that is of  16 importance so far as my submission is concerned.  "Act  17 of State" is not a precise term, and it is submitted  18 that it was used in two different senses by Mr.  19 Justice Tysoe in the Court of Appeal and by Mr.  20 Justice Hall in the Supreme Court of Canada.  The  21 former was seeking some indication of acknowledgment  22 of the Nishga title by the Crown and referred to cases  23 where the issue arose upon a change of sovereignty  24 taking place.  25 Mr. Justice Hall assumed that the Act of State  26 doctrine was confined in its scope to the act of  27 acquisition.  A very narrow application.  And that  28 becomes clear, my lord, where his lordship at page  29 406, at the very -- the paragraph at the top of the  30 page, my lord.  31 THE COURT:  Yes.  32 MR. GOLDIE:  Well, perhaps I should start over the preceding  33 page.  He says:  34  35 "The ratio for the cases relied upon by the  36 Court of Appeal was that a municipal Court  37 could not review the Act of State if in so  38 doing the Court would be enforcing a treaty  39 between two sovereign states."  40  41 And he refers to the cases that were referred to in  42 the Court of Appeal, Cook and Sprigg, Vajesingji, and  43 Salaman.  Two of those figured in Professor  44 O'Connell's footnote, but not the Vajesingji case.  45  46 "In all the cases referred to by the Court of  47 Appeal the origin of the claim being asserted 27667  Submission by Mr. Goldie  1 was a grant to the claimant from the previous  2 Sovereign.  In each case the claimants were  3 asking the Courts to give judicial recognition  4 to that claim.  In the present case the  5 appellants are not claiming that the origin of  6 their title was a grant from any previous  7 Sovereign, nor are they asking this Court to  8 enforce a treaty of cession between any  9 previous Sovereign and the British Crown.  The  10 appellants are not challenging an Act of  11 State - they are asking this Court to recognize  12 that settlement of the north Pacific coast did  13 not extinguish the aboriginal title of the  14 Nishga people - a title which has its origin in  15 antiquity - not in a grant from a previous  16 Sovereign.  In applying the Act of State  17 doctrine, the Court of Appeal completely  18 ignored the rationale of the doctrine which is  19 no more than a recognition of the Sovereign  20 prerogative to acquire territory in a way that  21 cannot be later challenged in a municipal  22 Court."  23  24 Now, after referring to that in paragraph 29 I say  25 he dismissed the application in Calder on the basis of  26 the aboriginal interest in question did not depend on  27 a grant from a preceding sovereign - page 406.  I've  28 read that.  29 Now, my lord, if I may pause and say the -- while  30 the particular question that is being referred to,  31 namely, what happens upon a change of sovereignty, is  32 applicable in its obvious application to a ceded or  33 conquered colony, the Vajesingji case said it also  34 applies to a settled colony, and his lordship does not  35 address that point.  Be that as it may, the Court of  36 Appeal, I say in my submission, was directing its  37 attention to acknowledgment of an interest cognizable  38 in a court of law.  Mr. Justice Hall was looking at it  39 from the standpoint of extinguishment.  40 The question, in my submission, however, remains:  41 what is the basis of enforcing a claim against the  42 Crown in British Columbia?  This question is all the  43 more important where the interest claimed is ownership  44 and jurisdiction - a proprietary interest heretofore  45 unknown.  I make reference to the Sobhuza case, my  46 lord, and I -- it should be attached, page 525 of that  47 judgment.  Yes, it follows Professor O'Connell's 2766?  Submission by Mr. Goldie  1 extract.  My lord, I refer to paragraph 2, where  2 midway down that paragraph I think it was Lord Haldane  3 said that he wishes "to recall the true character of  4 the native title to land throughout the Empire,  5 including South and West Africa."  He said:  6  7 "The notion of individual ownership is foreign  8 to native ideas.  Land belongs to the community  9 and not to the individual.  The title of the  10 native community generally takes the form of a  11 usufructuary right, a mere qualification of a  12 burden on the radical or final title of whoever  13 is sovereign.  Obviously such a usufructuary  14 right, however difficult to get rid of by  15 ordinary methods of conveyancing, may be  16 extinguished by the action of a paramount power  17 which assumes possession or the entire control  18 of the land."  19  20 Now, that disjunctive "or" followed by "the entire  21 control of the land" was particularly relevant in that  22 case.  23 But I come back to paragraph 30, and I say the  24 question, however, neither the Court of Appeal nor the  25 Supreme Court of Canada or Mr. Justice Hall in Calder  26 fully had to deal with, remains, and it's one in this  27 case:  what is the basis of enforcing a claim against  28 the Crown in British Columbia?  The answer to this  29 question -- and I say it is unnecessary to answer this  30 question to designate anything as an Act of State  31 although the Act of 1858 qualifies in the broad sense  32 of something done by the state in the execution of its  33 sovereign power.  34 I say, however, it is clear from the authorities  35 cited by Mr. Justice Tysoe that the Indian peoples  36 could not claim an interest enforceable against the  37 Crown relying upon the Act of 1858.  And these  38 authorities are reinforced by the recent case of  39 Winfat Enterprise Limited v. A.G. Hong Kong.  And  40 the -- I don't think that -- I'm going to hand up the  41 report of that entire case a little later.  42 Now, in transcript 339 I referred to two instances  43 of an Act of State - the proclamation with respect to  44 English law and the declarations made by Douglas at  45 Hills Bar, Lillooet, Lytton and between Lytton and  46 Rock Creek - and I say these were directed to all  47 within the colony whether British subjects or aliens. 27669  Submission by Mr. Goldie  1 They are analogous to the instruments referred to in  2 the first paragraph on page 525 of the Sobhuza case.  3 Referring back to that, 525, the first paragraph of  4 the judgment --  5 THE COURT:  Of which judgment, please?  6 MR. GOLDIE:  Beg your pardon, my lord?  7 THE COURT:  Which judgment?  8 MR. GOLDIE:  This is the judgment in the Sobhuza II v. Miller  9 case.  Now, this case involved a question of the  10 extension of British interests in a territory which  11 was already British, and in some respects that's  12 analogous to the situation that has occurred here.  13 The headnote in the Sobhuza case reads as follows:  14  15 "Before the conquest and annexation of the South  16 African Republic,"  17  18 that's the Boer Republic,  19  20 "Swaziland was an independent native State,  21 treated as a protected dependency of that  22 Republic, by which it was administered under a  23 Convention made in 1894 between Great Britain  24 and the Republic.  The Convention provided for  25 the preservation of native law, and the  26 agricultural and grazing rights of the natives.  27 The annexation,"  28  29 that is to say, of the South African Republic itself,  30  31 "did not extend to Swaziland.  Subsequently  32 under Orders in Council certain lands in  33 Swaziland were expropriated to the Crown, to  34 the extinguishment of the use and occupation of  35 them by natives under native law, certain lands  36 being allotted exclusively to the natives:-  37 Held, that the Orders in Council were  38 effective, even if they were not within the  39 powers recognize by the Convention."  40  41 Now, that, in a very short compass, describes a fairly  42 tangled line of events, but at page 525 Lord Haldane  43 says this:  44  45 "In the Southern Rhodesia case...Lord Sumner, in  46 an elaborate judgment given on behalf of the  47 Judicial Committee on a special reference, 27670  Submission by Mr. Goldie  1 expressed views which are substantially  2 similar.  He held that a manifestation by  3 Orders in Council of the intention of the Crown  4 to exercise full dominion over lands which are  5 unallotted is sufficient for the establishment  6 of complete power.  Both of these cases imply  7 that what is done may be unchallengeable on the  8 footing that the Order in Council, or the  9 proclamation made under it, is an act of State.  10 This method of peacefully extending British  11 dominion may well be as little generally  12 understood as it is, where it can operate, in  13 law unquestionable."  14  15 My lord, in my submission, Douglas' statements,  16 which I'll be coming to, constitute, if one wished to  17 examine the chain of authority that he represented in  18 his own person, the equivalent of an Order in Council  19 constituting an Act of State, but it is unnecessary  20 for me to ask your lordship to so find.  21 I'm sorry, I've lost my place, my lord.  22 THE COURT:  I've got you at page 12A(5), paragraph 32.  23 MR. GOLDIE:  Oh, yes, I've got it now.  I say these are  24 analogous to the instruments referred to and I've read  25 to your lordship from the Sobhuza case.  2 6 The English Law of Evidence Amendment Act  27 recognized that Acts of State could occur in a colony,  28 that is to say, after a colony has been created.  And  2 9 the Law of Evidence Amendment Act is attached.  It's  30 of 1851.  31 THE COURT:  Going back to the previous paragraph, I don't  32 recognize this declaration --  33 MR. GOLDIE:  No.  34 THE COURT:  — by Douglas at Hills Bar.  35 MR. GOLDIE:  I haven't read it to your lordship yet.  36 THE COURT:  Is it an Order in Council or proclamation?  37 MR. GOLDIE:  No, no, it's his statement to a group of people.  38 THE COURT:  All right.  He laid down the law informally, did he?  39 MR. GOLDIE:  He laid down the law informally, but since he  40 embodied the executive and the legislature, his  41 declarations, in my submission, are entitled to a  42 weight which goes beyond that of a governor in an  43 ordinary colony.  44 The English Law of Evidence Amendment Act is  45 attached, and the section VII states "all  46 Proclamations, Treaties, and other Acts of State of  47 any Foreign State or of any British Colony" are 27671  Submission by Mr. Goldie  1 entitled to judicial notice.  So it appears to have  2 been accepted in England of 1851, at any rate, that  3 Acts of State were not confined to a specific -- did  4 not have a specific form and could take place in a  5 British colony.  6 But I say in paragraph 34 whether the proclamation  7 and the declarations which I have referred to in  8 paragraph 32 are characterized as Acts of State is  9 unimportant.  The result precluded alien or British  10 subject from setting up a title or interest in the  11 mainland colony derived from any source other than the  12 Crown.  This flows from the content of the  13 instruments, not the form of the acts.  14 And then I go into the effect of the introduction  15 of English law.  The introduction of English law was  16 effected by Douglas' proclamation of November 19th,  17 1858, and by the Stickeen Territory Order in Council  18 of July 19th, 1862.  19 Lytton's despatch of September 2nd, 1858,  20 enclosing the form of the English law proclamation is  21 found at Exhibit 1142, tab 1, page 61.  It is, in my  22 submission, a statement of Imperial policy.  23 This proclamation, and perhaps I -- I don't have  24 this annexed, but I'm going to refer to the -- from  25 the Exhibit 1142 itself.  It's under tab 1, page 61.  26 THE COURT:  I'm sorry, what are you looking at now?  27 MR. GOLDIE:  I'm going to look at the despatch I'm referring to  28 in page 34.  2 9 THE COURT:  Yes.  30 MR. GOLDIE:  Or paragraph 34.  31 THE COURT:  Where do I find it?  32 MR. GOLDIE:  It's not in your book, my lord.  33 THE COURT:  All right.  34 MR. GOLDIE:  I'm going to read from the exhibit itself, 1142,  35 tab 1, page 61.  Lytton enclosed the forms of two  36 proclamations, and they were to be proclaimed by  37 Douglas immediately after proclaiming the Act of 1858.  38 And the first of those proclamations was the  39 introduction of English law, and the second was to  40 indemnify himself and his subordinate officers for  41 acts taken prior to the establishment or the  42 proclamation of the Act of 1858.  Now, Lytton referred  43 to the introduction of English -- the proclamation  44 introducing English law in these words:  45  46 "The one, which is rather matter of solemn form  47 than of absolute necessity, to declare the law 27672  Submission by Mr. Goldie  1 of England prevalent throughout the Colony,  2 subject, of course, to your own power of  3 modifying it by laws enacted by yourself when  4 absolute necessity requires."  5  6 And I say that was a statement of Imperial policy,  7 that English law was to be prevalent throughout the  8 colony.  9 It fixed the date at which English law was  10 introduced and avoided the potential problem arising  11 from the fact that many of the "settlers" were not  12 British subjects - something alluded to in the  13 preamble to the 1858 act.  So it precluded any alien  14 from saying, "English law doesn't affect me."  The  15 Stikine Territory Order in Council achieved the same  16 result.  17 I note that the mainland was much more precisely  18 provided for than Vancouver Island, where until 1867  19 there was no enactment comparable to the Mainland  20 Proclamation of 1858.  And there's some references  21 there.  22 Paragraph 37.  The effect of the introduction of  23 English law into a settled colony was to import the  24 common and statute law of England, and the judgment of  25 Begbie, C.J. in 1872 is attached.  A litigant  26 attempted to make use of a statute providing for a  27 summary procedure in -- that had been passed in  28 England, and in respect of that Begbie, C.J. said:  29  30 "My opinion is that the defendant must pay the  31 costs of this action.  I do not think that the  32 Order in Council, 1856,"  33  34 which was an Imperial Order in Council,  35  36 "applies here, either proprio vigore or by the  37 help of the 'English Law Ordinance, 1867'..."  38  39 I pause there.  That was the ordinance which  40 established in Vancouver Island as well as -- English  41 law and continued the 1858 one.  42  43 "...which establishes in British Columbia 'the  44 Civil and Criminal Laws of England, as the same  45 existed on the 19th November, 1858.'  I think  4 6 those words mean Common and Statute Law, and  47                     not Orders in Council, although issued under 27673  Submission by Mr. Goldie  1 the authority of an Act of Parliament."  2  3 Now, by the common law of England the Crown was  4 the source of title to all lands.  Blackstone's  5 Commentaries have been referred to as well as the  6 statement in Halsbury.  7 I say the combined effect of the Act of 1858, the  8 Order in Council of September 2nd, 1858, Douglas'  9 Instructions and his Commission of the same date was  10 to endow Douglas with the power to, and I quote:  11  12 "...make, ordain and establish all such laws and  13 ordinances as may be necessary for the peace,  14 order and good government of Her Majesty's  15 subjects and others in the said Colony..."  16  17 Enough in British constitutional language to connote  18 "...the widest law-making powers appropriate to a  19 Sovereign."  And the reference there is to a judgment  20 of the Privy Council.  21 With the enactment of the English Law Ordinance  22 the principle that the basic title of all land vested  23 in the sovereign became the law of British Columbia.  24 The onus, in my submission, remains on the plaintiffs  25 under these circumstances to show, and I quote:  26  27 "...the acts of acknowledgment which give them  28 the right they wish to be declared..."  29  30 Erected on a basis of land tenure that recognized  31 no title but that originating with the Crown, a system  32 of land laws was built up wholly based on grants from  33 the Crown being the "root of titles to land in the  34 Colony," and those are the words of the British  35 Columbia Land Registry Extension Ordinance of 1864.  36 My lord, that addendum, as I indicated earlier,  37 was to clarify the position that I take with respect  38 to Acts of State.  As I say, certain events can be  39 characterized as Acts of State and as such  40 unchallengeable, but more importantly, the link  41 between the establishment of the colony, the Imperial  42 policy and requiring a proclamation introducing the  43 law of England, and the effect of that makes it clear,  44 in my submission, that the Court of Appeal in Calder,  45 despite the fact that its discussion was under the  46 rubric of Acts of State, was correct in saying where  47 is the acknowledgment which must precede a right 27674  Submission by Mr. Goldie  1 cognizable in a municipal court.  2 THE COURT:  But doesn't your own submission include the  3 recognition of some aboriginal right at least to their  4 village sites?  5 MR. GOLDIE:  That's — that's exactly what Douglas protected,  6 the village site.  7 THE COURT:  But how does that stand beside the submission that  8 you're making now that all title -- the Crown is the  9 root of all title in the colony?  10 MR. GOLDIE:  Because the title was retained in the Crown.  11 THE COURT:  And the right of the aborigines to their village  12 site became a burden on that title?  13 MR. GOLDIE:  In respect of those sites.  That was an act of  14 creation.  15 THE COURT:  Then the issue between you and your friend on that  16 basis is merely what lands did they occupy at the time  17 of — at the time of 1858?  18 MR. GOLDIE:  Well, that was determined by Douglas according to  19 the policy that he established at the time.  20 THE COURT:  I have no difficulty understanding the A to B to C  21 to D submission that you have been making.  The  22 problem I have with it is to fit into it the  23 recognition of the Indians' claim of some sort to  24 their village sites and cultivated fields.  25 MR. GOLDIE:  Well, I will be submitting that that claim is one  26 that justice and humanity requires to be recognized.  27 As Merivale put it, if we disturb them in their  28 village sites, then they're entitled to compensation.  29 Or as Lytton said, if you have an act of cession which  30 deprives them of their subsistence, there ought to be  31 compensation.  Douglas' policy was to avoid anything  32 which required depriving them of the lands that they,  33 shall I put it this way, lived on or subsisted on.  34 THE COURT:  Well, are you saying that it is an act of grace then  35 on behalf of the Crown to recognize their -- to  36 recognize the justice of them continuing to enjoy  37 their village sites.  38 MR. GOLDIE:  My submission will be it was so regarded in 1858,  39 but once he recognized that, then -- and the  40 legislation in the colony shows this, that there were  41 rights recognized as against third parties.  There  42 were never rights recognized as against the Crown.  43 There could not be.  44 THE COURT:  So your submission comes back to what Mr. Justice  45 Taschereau said in St. Catherine's Milling?  46 MR. GOLDIE:  It comes very close to it.  47 THE COURT:  That if they had a claim, it was a claim to the 27675  Submission by Mr. Goldie  1 generous bounty of the Crown.  2 MR. GOLDIE:  Well, he put it —  3 THE COURT:  He put it more eloquently than I just put it.  4 MR. GOLDIE:  Well, he put it in terms of a higher than legal  5 responsibility.  6 THE COURT:  It seems to me that one of the crucial legal  7 questions in this case is whether or not some  8 aboriginal right even to occupy village sites existed  9 in the province before 1858.  10 MR. GOLDIE:  Yes.  11 THE COURT:  Or whether there was no right at all except to the  12 kind consideration of the executive.  13 MR. GOLDIE:  Well, I -- one of the questions that your lordship  14 has put to me and which I'm preparing a response to  15 was to flesh out the reference to colonial law in the  16 Select Committee's report, the New Zealand Select  17 Committee.  My submission is that in order to bring  18 into play the courts of justice there has to be a  19 creation or a recognition of an interest.  There is --  20 and we are talking about land in this particular  21 instance, and when the -- at the outset, at the  22 threshold of the colony it is made clear, and I can't  23 think of any clearer way in which it could be made  24 than by the Act of 1858 and the English Law  25 Proclamation, it is made absolutely crystal clear that  26 the Crown is the source of all interest, then it seems  27 to me that it follows from that that it must be from  28 the Crown that there be a recognition of an interest,  29 which has been done here, but not as against the Crown  30 because the Crown retained the title.  And it was up  31 to the Crown, and I don't -- I don't say it's a matter  32 of whim or fancy, but it is up to the Crown to  33 determine the extent of the interest so recognized.  34 And that was shown by the language of St. Catherine's  35 Milling, where Lord Watson went out of his way, in my  36 submission, to talk about the pleasure of the  37 sovereign.  3 8 THE COURT:  Yes.  39 MR. GOLDIE:  There has to be somewhere we can find.  The  40 clearest, of course, is an act of parliament.  41 THE COURT:  But their lordships in St. Catherine's described it  42 as a burden on the underlying title.  43 MR. GOLDIE:  It was a burden as so created.  The act of creation  44 was the proclamation, and they construed, they  45 construed and determined what that created.  And it is  46 my submission that what I'm coming to now will assist  47 your lordship in determining what was created in the 27676  Submission by Mr. Goldie  1 colony of British Columbia after it had been fixed in  2 the most clearest way that the form of English law was  3 to prevail.  4 THE COURT:  Well, it seems to me that on the next page you have  5 posed a question that I ask as to what was the law at  6 the time of the Royal Proclamation, but it seems to me  7 that that question is one that can be just as usefully  8 phrased in terms of the time of the creation of the  9 colony.  10 MR. GOLDIE:  Yes, I agree.  11 THE COURT:  Because that would be the next question that would  12 have to be answered if, for example, the Royal  13 Proclamation was found not to apply to British  14 Columbia.  15 MR. GOLDIE:  I agree, my lord.  If I haven't wholly addressed it  16 here, it's part of what I am preparing in response to  17 your lordship's questions.  18 THE COURT:  I think you've certainly explained, as I think I  19 understand your legal argument.  As I say, I have  20 trouble working into that legal argument the nature of  21 the burden that was recognized qua village sites at  22 least or, alternatively, the nature of the burden  23 itself as described in St. Catherine's.  24 MR. GOLDIE:  Yes.  25 THE COURT:  I look forward to hearing your further submissions.  26 Do you want to start something else or should we  27 adjourn until two o'clock?  28 MR. GOLDIE:  I can read, my lord, the next section, 5(b), which  29 is headed "The Mainland Policy."  30 THE COURT:  Oh, yes.  31 MR. GOLDIE:  Douglas, in order to deal with the problems  32 inherent in the origin of the mainland colony, often  33 acted in advance of instructions.  His discretion was  34 for the most part approved.  In a few instances it was  35 not.  These exceptions, such as disapproval of his  36 initiative in arranging for control of navigation of  37 the Fraser River are not relevant to the issues in  38 this case.  Further references in this section to the  39 Papers under tabs 1 to 4 of Exhibit 1142 will be to  4 0 the tab number alone.  And then --  41 THE COURT:  I'm sorry, what is that, further references in this  42 section to the Papers under --  43 MR. GOLDIE:  Yes.  Now, these are what I — these are —  44 THE COURT:  Oh, they'll be the tab number in your yellow books?  45 MR. GOLDIE:  Yes, the "Papers Relative to the Affairs of British  46 Columbia" are the -- constitute tabs 1, 2, 3, and 4 of  47 or Parts I, II, III, and IV of Exhibit 1142. 27677  Submission by Mr. Goldie  1 THE COURT:  So the references we're now going to go back to are  2 in -- the tab numbers are in the yellow books?  3 MR. GOLDIE:  They will be, yes.  4 THE COURT:  Your yellow books?  5 MR. GOLDIE:  Yes, they will be.  6 THE COURT:  All right.  Should we adjourn until two o'clock?  7 MR. GOLDIE:  Thank you.  8 THE REGISTRAR:  Order in court.  Court stands adjourned until  9 two o'clock.  10  11 I hereby certify the foregoing to  12 be a true and accurate transcript  13 of the proceedings transcribed to  14 the best of my skill and ability.  15  16  17  18  19  2 0 Leanna Smith  21 Official Reporter  22 UNITED REPORTING SERVICE LTD.  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 2767?  Submissions by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie, do you have any idea of how long you'd  5 like to go this afternoon?  We should let the  6 reporters know what our plans are.  7 MR. GOLDIE:  Yes.  I think 4:30 will be sufficient, my lord.  8 THE COURT:  4:30?  9 MR. GOLDIE:  Yes.  10 THE COURT:  All right, thank you.  11 MR. GOLDIE:  My lord, I was at Part 7 section 5b, the Mainland  12 Policy.  Before I continue with that, I'd just like to  13 draw your lordship's attention to an example of the  14 care the Colonial office took to identify Douglas as  15 the delegate of the Crown.  And it's not in your  16 lordship's yellow binder, but in Exhibit 1142, the  17 papers relating to British Columbia, as laid before  18 Parliament, the second -- under tab 2 at page 76 is  19 Lytton's dispatch to Douglas of January 20, 1859, and  20 he acknowledges receipt of Douglas' dispatches sent  21 over in October of 1858, and he says this:  22  23 "With respect to the Form of Grant enclosed in  24 your second Despatch I have to observe that it  25 runs in the name of the Governor and not in the  26 name of the Queen as is usual in all grants  27 made in virtue of powers delegated by Her  28 Majesty."  29  30 Then he goes on to say:  31  32 "I therefore transmit a form of grant for your  33 adoption which appears to me to be sufficient  34 for all purposes.  You will observe that all  35 reservations, timber, minerals, et cetera, are  36 omitted in conformity with the policy which has  37 been established in other colonies, but this  38 omission will not entitle a grantee to  39 appropriate gold or silver which may be found  40 in his grant. "  41  42 So Douglas had issued grants in his name as governor  43 of the colony and he was directed to substitute the  44 form of grant for Crown lands, and it reads:  45  46 "Victoria by the Grace of God of the United  47 Kingdom..." 27679  Submissions by Mr. Goldie  1  2 et cetera, and it is the usual form of a Crown grant:  3  4 "...with the proviso that it should at all times  5 be lawful for us, our heirs and successors, and  6 or for any person or persons acting in that  7 behalf by our or their authority to resume  8 without compensation any part of the said Lands  9 which may be deemed necessary to resume for  10 making roads, canals, bridges, towing paths, or  11 other works of public utility or convenience,  12 so nevertheless that the Lands so to be resumed  13 shall not exceed 120 as part of the whole..."  14  15 et cetera.  The only point, as I say, that I make is  16 that the colonial office was in my submission anxious  17 to ensure that Douglas was identified as the Crown's  18 delegate in respect of the grants of land.  19 Now, turning to my summary, paragraph 2, I say  20 Douglas lacked legal authority over the Mainland until  21 November 2, 1858 when he received a series of  22 dispatches dated 2 September 1858.  That reference as  23 I noted is to tab 1, page 50 of the Exhibit 1142, they  24 are the documents themselves collected in the yellow  25 binder under the tab number 75b-3, paragraph 3.  I am  26 not going to refer to those.  27 THE COURT:  753-b?  28 MR. GOLDIE:  75b-3.  2 9    THE COURT:  Yes, all right.  30 MR. GOLDIE:  No, I am sorry, it will be -2 and there are a  31 series of dispatches there of the 2nd of September.  32 And the extent of his authority when granted was  33 foreshadowed in Lytton's dispatch of August 14 which  34 Douglas was told he would be "...empowered both to  35 govern and to legislate of your own authority".  36 Douglas received this dispatch on or about October 21,  37 1858.  38 Prior to receiving this indication of his future  39 authority he had dealt resolutely with friction  40 between miners and Indians by denying to the miners a  41 right of occupation derived from the act of squatting  42 and by denying to the Indian any right of redress  43 against the miner based on native laws and customs.  44 In my submission, his dispatch of June 15, 1858 is of  45 primary importance.  That, my lord, is the one that is  46 under tab 5b-3 and it says:  47 27680  Submissions by Mr. Goldie  1 "In reporting the other day the result of my  2 observations on the Gold Regions of Fraser's  3 River, I omitted to mention several things  4 which I ought to have communicated to you.  5 Paragraph 3:  On the arrival of our party at  6 'Hill's Bar', the white miners were in a state  7 of great alarm on account of a serious affray  8 which had just occurred with the native  9 Indians, who mustered under arms in a  10 tumultuous manner, and threatened to make a  11 clean sweep of the whole body of miners  12 assembled there.  13 4.  The quarrel arose out of a series of  14 provocations on both sides, and from the  15 jealousy of the savages, who naturally feel  16 annoyed at the large quantities of gold taken  17 from their country by the white miners.  18 5.1 lectured them soundly about their conduct  19 on that occasion, and took the leader in the  20 affray, an Indian highly connected in their  21 way, and of great influence, resolution, and  22 energy of character, into the Government  23 service, and found them exceedingly useful in  24 settling other Indian difficulties.  25 6.  I also spoke with great plainness of speech  26 to the white miners, who were nearly all  27 foreigners, representing almost every nation in  28 Europe.  I refused to grant them any rights of  29 occupation to the soil, and told them  30 distinctly that Her Majesty's Government  31 ignored their very existence in that part of  32 the country, which was not open for the  33 purposes of settlement, and they were permitted  34 to remain there merely on sufferance; that no  35 abuses would be tolerated; and that the laws  36 would protect the rights of the Indian, no less  37 than those of the white man.  38 7.1 also appointed Mr. George Perrier, a  39 British subject, as Justice of the Peace for  40 the district of 'Hill's Bar', and directed the  41 Indians to apply to him for redress whenever  42 any of them suffer wrong at the hands of white  43 men, and also cautioned them against taking the  44 law into their own hands, and seeking justice  45 according to their own barbarous customs.  46 8.1 also appointed Indian magistrates, who  47 are to bring forward, when required, any man of 27681  Submissions by Mr. Goldie  1 their several tribes who may be charged with  2 offences against the laws of the country; an  3 arrangement which will prevent much evil; but  4 without the exercise of unceasing vigilance on  5 the part of the Government Indian troubles will  6 sooner or later occur.  7 9.  The recent defeat of Colonel Steptoe's  8 detachments of United States troops, consisting  9 of dragoons and infantry, by the Indians of  10 Oregon territory, has greatly increased the  11 natural audacity of the savage, and the  12 difficulty of managing them.  It will require,  13 I fear, the nicest tact to avoid a disastrous  14 Indian war."  15  16 I am going to comment a little later on some of the  17 aspects of this.  I note, however, that his actions in  18 this were approved by the colonial office and that  19 appears from the dispatch of August 14, at page 3 and  20 in paragraph 5 the colonial secretary says, and I  21 quote:  22  23 "I highly approve of the steps which you have  24 taken, as reported by yourself, with regard to  25 the Indians."  26  27 Your lordship will notice in the upper right-hand  28 corner the dispatches to which Lytton is acknowledging  29 and the first one -- I am sorry, the second one --  30 it's the third that I have read previously, number 26,  31 of the 15th of June, 1858.  32 My lord, I say some sense of the significance of  33 Douglas' action is gained from Professor Merk's  34 contrast of the two systems that prevailed in western  35 North America.  And I have inserted pages 414 to 418  36 of his book to provide your lordship with some sense  37 of the significance of what Douglas was doing.  Page  38 414, in the second complete paragraph, the author is  39 here talking about gold rushes which took place west  40 of the Rockies or in some cases in the foothills.  He  41 says:  42  43 "The land on which the Rocky Mountain mining  44 rushes took place was the public domain.  It  45 was being trespassed on as had been the case in  46 California.  The miners acted under the  47 frontier doctrine that any person had the right 27682  Submissions by Mr. Goldie  1 to enter the unoccupied federal land or land  2 held only by Indians, and gather the products  3 of the soil unmolested.  Land seemed as free to  4 exploit as the air or the water."  5  6 And going down to the bottom of the page:  7  8 "In the absence of government policy the miners  9 of California established their own.  In every  10 gold-mining district they set up at miners'  11 camp meetings local regulations governing the  12 use of land and water in their operations.  A  13 typical example of such regulations is the one  14 drawn up by the miners' camp of the  15 Jacksonville District in 1850:"  16  17 And these are the miners' own rules, and I won't read  18 them; they are four in number.  19  20 "Codes of this informal sort for both placer and  21 lode mining were drawn up in hundreds of  22 miners' camps in all the mining states and  23 territories of the Far West.  Though differing  24 in detail, all were based on the principles  25 that the public lands were free to be exploited  26 by American citizens, that claims to the lands  27 could be staked out in the order of first come,  28 first served, and that the miner must develop  29 his discovery in order to maintain his claim.  30 Here were the principles of the pre-emption law  31 applied to mining.  In some places the miners'  32 code was the only law.  As time went on, the  33 codes were incorporated in county, state, and  34 territorial laws."  35  36 If your lordship would go over to page 416, the  37 second to last complete paragraph beginning with:  38  39 "The mining camps made rules not only for land  40 use, but also for the government of their  41 camps.  When a mining rush into a remote area  42 occurred, formal government was slow in getting  43 started.  Months or years passed in the proces  44 of getting a territory organized, a governor  45 appointed, and a legislature elected.  46 Territorial officials were often mediocre  47 politicians, appointed as part of the spoils 27683  Submissions by Mr. Goldie  1 system in the federal government."  2  3 And then he goes down to the next paragraph:  4  5 "An example of such government is that of the  6 miners' camp of the Jacksonville District."  7  8 And he describes how that was done.  And the last  9 paragraph:  10  11 "Such informal codes were for years the only  12 means of preserving public order in the  13 gold-mining regions of the Far West.  They were  14 illustrations of the frontier practice of  15 setting up extralegal voluntary government to  16 take the place of formal government.  The  17 miners' camps were the successors in the Far  18 West to the Plymouth Compact, the Watauga  19 Association, and the squatters' claims clubs of  20 the East.  21 Their effectiveness in preserving order was  22 no greater than the orderliness of the  23 population that enforced them."  24  25 And then he proceeds to try the population and their  26 prejudices.  27 In the next paragraph he states:  28  29 "The preservation of law and order in such a  30 society was at best difficult.  Not only were  31 the miners a rough and transitory population,  32 but many had had an apprenticeship in the wild  33 California gold camps.  Thrown together in  34 exhilaration available, it was likely to get  35 out of hand.  When crimes were detected,  36 punishment was uncertain.  A miners' camp  37 meeting was prone to gusts of feeling, rage in  38 some cases, maudlin sympathy in others.  Since  39 crime was not effectively dealt with, vigilante  40 committees to cope with it had to be set up.  41 That meant anarchy - the wild conditions  42 recorded by Mrak Twain and Bret Harte."  43  44 Then he goes on to say:  45  46 "Such conditions were in contrast with the order  47 and peace in the gold fields of British 27684  Submissions by Mr. Goldie  1 Columbia on the Canadian side of the border.  2 These fields were discovered at about the same  3 time as those on the American side.  The  4 population that flowed into them was largely  5 American - the same type of rough miners that  6 raised hell on the American side.  But disorder  7 in the British Columbia fields was  8 conspicuously absent.  The contrast is so  9 marked that some explanation of it is  10 necessary.  11 One of the elements in the explanation is  12 that in British Columbia the Crown asserted the  13 right to all precious metals in the soil.  A  14 licence was required of every miner who took  15 gold from public land.  The licence had to be  16 renewed each year of a cost of 1 pound  17 sterling.  It was indispensable to a miner.  In  18 case of overlapping or jumping of claims, no  19 miner without a licence had any standing in the  20 British Columbia provincial courts.  The  21 licence became a means of exercising control  22 and maintaining order in mining districts.  23 The government in British Columbia was  24 almost wholly executive.  A governor was  25 appointed by the Crown as soon as the gold  26 rushes began and was given full power.  A  27 handful of marines was stationed in the  28 province to support him.  A mining code was  29 formulated, copied from that of New Zealand.  30 Under it a gold commissioner was appointed for  31 each mining field as soon as a discovery had  32 been made.  He was given all the local  33 authority that on the American side was  34 investigated in the miners' camp.  He had  35 jurisdiction over civil cases, claims, titles,  36 and contracts.  He decided disputes, assessed  37 fines and damages without jury trial, though a  38 right of appeal existed in certain cases, to  39 the Supreme Court of British Columbia.  40 A very superior type of governor was  41 appointed in British Columbia.  The first  42 appointee was James Douglas, who had been chief  43 factor of the Hudson's Bay Company at Fort  44 Victoria.  He was a man of high character and  45 ability and had been trained in a great  46 administrative system.  He had the advantage,  47 also, that he knew British Columbia by heart." 27685  Submissions by Mr. Goldie  1  2 And then he goes on to describe the advantages of that  3 system.  4  5 "This executive system of government had the  6 merit that it was swift and elastic.  Control  7 was on the spot, in the person of the gold  8 commissioner, almost as soon as miners arrived.  9 Authority came simultaneously with population.  10 Law and order were promptly established.  Crime  11 was swiftly dealt with in legal fashion.  There  12 was never a lynching or a vigilante committee  13 because there never was need for one.  Peace  14 was as well maintained as in the older  15 societies of the East.  16 On the American side of the line effective  17 authority did not enter new finds  18 simultaneously with population.  It came late.  19 The substitute for it - the miners' camp -  20 though better than nothing, was not dependable.  21 Self-help and direct action took the place of  22 it.  The habit of violence got established, and  23 was hard later to eradicate."  24  25 And he raises a philosophical question, and then the  26 paragraph following the next:  27  28 "The result of the existence of disorder and  29 violence on American frontiers for two  30 centuries was that a kind of tolerance of them  31 became established in the American society."  32  33 And then I go down, my lord, to the last  34 paragraph:  35  36 "A number of important consequences flowed from  37 the advance of the miners over the Rocky  38 Mountain West."  39  40 And he details that down to the last four lines.  41  42 "Finally, Indian problems in the Far West  43 resulted.  In the mining rushes the Indians of  44 the Great Plains, whose reservations lay in the  45 path of the miners, and the mountain Indians  46 whose lands were overrun by the gold seekers,  47 rose in protest and introduced new chapters in 27686  Submissions by Mr. Goldie  1 the old problem of the dispossession of the  2 original holders of the soil."  3  4 I simply ask your lordship to take into account  5 the nature of the society which prevailed on the  6 American side with that which Douglas, in my  7 submission, was successful in introducing.  8 I am now on page 3 of my summary.  Douglas himself  9 was fully alive to all this.  Responding to  10 observations made by Lytton on the instructions he had  11 issued for the management of the gold fields,  12 instructions which were dated in July of 1858, he said  13 in his dispatch of September -- and that should be  14 December, my lord, not September, December 30, 1858,  15 paragraph 3:  16  17 "It was to establish a legal control over the  18 adventurers who were rushing from all sides  19 into the country, to anticipate their own  20 attempts at legislation, and to accustom them  21 to the restraints of lawful authority, that I  22 prepared and issued in gold regulations."  23  24 And I emphasize, my lord, that he did that before he  25 had any legal authority.  And it was those regulations  26 that in large measure contributed to the result that  27 America refers to.  28 In the same dispatch of June 15, 1858, and that's  29 the one that I have just read, my lord, and it is the  30 first dispatch under tab 5b-3 in the yellow binder, he  31 referred to the continuing Indian wars in the adjacent  32 American territory where the ostensible policy was to  33 extinguish aboriginal title by treaty prior to  34 settlement.  And I refer your lordship back to  35 Douglas' dispatch of June 15, the enclosure.  36 THE COURT:  Sorry.  Now, where do I — yes, I have it.  37 MR. GOLDIE:  It should be —  3 8 THE COURT:  Yes.  39 MR. GOLDIE:  — page 2 of the —  4 0 THE COURT:  Yes.  41 MR. GOLDIE:  And it's headed midway down the page Enclosure in  42 number 4, Extract from Pioneer and Democrat.  4 3 THE COURT:  Yes.  44 MR. GOLDIE:  And it is dated May 28, 1858.  So in terms of his  45 dispatch of June 15 it is very recent indeed.  And the  46 newspaper article reads as follows:  47 27687  Submissions by Mr. Goldie  1 "Another Indian War - Startling Intelligence.  2 Defeat of Colonel Steptoe.  Fifty-three men  3 killed.  4 Just as we are getting our paper ready for the  5 press (Thursday afternoon), an express arrived  6 from the head quarters of Colonel Steptoe in  7 the Simcoe Valley, with despatches for Lieut.  8 Col. Casey, and letters to his Excellency  9 Governor McMullin, informing them of the  10 defeat, on the 16th instant, at the first  11 crossing of Snake River, about 30 miles above  12 its junction with the Columbia, of the command  13 of Col. S.  The command consisted of five  14 companies or 400 men.  The Indians are reported  15 as having been 1,500 strong, and composed of  16 the Snake, Palouse, and other tribes.  The  17 action resulted in three officers and 50 men  18 killed.  Two of the officers killed are Capt.  19 Wynders and Lieut. Gasden.  The Indians took  20 two howitzers which belonged to the command,  21 and all but 60 pack animals.  In fact, so  22 complete is said to have been the rout, that  23 the officer in command was compelled to fall  24 back with the utmost precipitation.  The battle  25 took place while the regulars were in the act  26 of crossing the river.  27 Colonel Steptoe had proceeded into the  28 Snake country peaceably to treat with them, or  29 proceed to hostilities, if necessary.  The  30 object of his visit was probably of a similar  31 character with that of Major Haller, some three  32 years since, and which resulted in a like  33 unfortunate manner.  Major H., our readers will  34 remember, proceeded thence with a force of 104  35 men, and in a peaceable manner demanded the  36 murderers of the emigrants of 1854.  The result  37 was, that instead of bringing to justice these  38 depredators and murderers, he brought home the  39 bodies of 22 of his command, killed or wounded,  40 on litters."  41  42 Five days earlier, and back to my summary, my  43 lord, in his dispatch of June 10, 1858, Douglas  44 referred to throwing the country open to settlement as  45 "a measure of obvious necessity".  Now, that dispatch  46 is under 5b-5, and it is page 5 of the documents under  47 that tab, it says dispatch of June 10 and beginning at 276?  Submissions by Mr. Goldie  1 paragraph 18, he recounts the fact that there was:  2  3 "...existence of gold over a vast extent of  4 country situated both north and south of  5 Fraser's River and the conviction is gradually  6 forcing itself upon my mind, that not only  7 Fraser's River and its tributary streams, but  8 also the whole country situated to the eastward  9 of the Gulf of Georgia, as far north as  10 Johnstone's Straits, is one continued bed of  11 gold of incalculable value and extent.  12 19.  Such being the case, the question arises  13 as to the course of policy in respect to  14 Fraser's River which Her Majesty's Government  15 may deem it advisable in those circumstances to  16 follow.  17 20.  My own opinion is, that the stream of  18 immigration is setting so powerfully towards  19 Fraser's River that it is impossible to arrest  20 its course, and that the populations thus  21 formed will occupy the land as squatters, if  22 they cannot obtain a title by legal means.  23 21.  I think it therefore a measure of obvious  24 necessity that the whole country be immediately  25 thrown open for settlement, and that the land  26 be surveyed, and sold at a fixed rate."  27  28 And then he goes on to discuss some of the advantages,  29 and in paragraph 24, he states:  30  31 "24.  In anticipation of your instructions to  32 carry some such plan into effect, I have  33 communicateed with Mr. Pemberton, the  34 Surveyor-General of Vancouver's Island, and  35 desired him to make temporary arrangements with  36 any qualified persons he may find in this  37 Colony, for the purpose of increasing the staff  38 of surveying officers, and of engaging actively  39 in an extended survey of the lands of Fraser's  4 0 River."  41  42 Now, at that point the Royal Engineers have not  43 arrived in the colony and indeed at that point Douglas  44 as I say was without authority.  This measure of  45 throwing the country open to settlement is in my  46 submission incompatible with the existence of any  47 general aboriginal title.  His denial of any 27689  Submissions by Mr. Goldie  1 squatter's right of occupation was in accordance with  2 his pre Colonial instructions.  And I am making  3 reference there, my lord, to what he did or what he  4 reported on in his dispatch of June 15 when he said,  5 "We do not recognize your presence here".  And that  6 appears clear from his reference in his dispatch of  7 July 26 which is page 8 under this tab.  He says --  8 and I -- in paragraph -- paragraph 5:  9  10 "5.  The regulations we have established, and  11 which we seek to enforce in the Fraser's River  12 District, are only such as have reference to my  13 Instructions from Her Majesty's Government, and  14 to the rights of the Crown with respect to  15 minerals in their natural place of deposit.  16 6.  I will, for your Lordship's information,  17 concisely enumerate the objects we wish to  18 attain through these regulations:-  19 In the first place, I have distinctly, and  20 to all applicants for land, refused the  21 grant of any rights of occupation, in  22 accordance with the instructions from Mr.  23 Secretary Labouchere, as detailed in his  24 Despatch, No. 4 of the 1st February 1858."  25  26 That is the dispatch that I earlier referred to, my  27 lord, which Mr. Labouchere said:  "It is not our  28 present election to elect a colony".  29 Under the next number on the sheet I have placed  30 at page 17 of the documents a copy of that particular  31 dispatch, and if your lordship would look at the one  32 line paragraph third from the bottom:  33  34 "No rights of occupation whatever are therefore  35 to be granted to them."  36  37 Now, while that related to the Mormons, those  38 represented the last instructions or information which  39 Douglas had.  40 Now, my friend, Mr. Rush, has relied upon that  41 dispatch, my lord, with the proposition in reference  42 to the words in the second paragraph above about the  43 natives not authorized to part with the soil.  My  44 friend says, well, if they are not authorized to part  45 with the soil they must have some rights of title in  46 the soil.  47 THE COURT:  Where is that? 27690  Submissions by Mr. Goldie  1 MR. GOLDIE:  If your lordship would look -- you found the one  2 line, "No rights of occupation"?  3 THE COURT:  Yes.  4 MR. GOLDIE:  Go up two paragraphs, my lord, beginning with the  5 word, "Should they apply for admission".  6 THE COURT:  Yes.  7 MR. GOLDIE:  Now, the fourth line down:  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  "...territory belongs to the Crown subject only  to such rights as may be recognized in the  Indian tribes ..."  I say that is prospective:  "...(who are not authorized to part with the  soil without permission of the Crown)."  I say that's a prevailing part of the policy of Great  Britain, and my friend says, well, if they are not  authorized to part with the soil they must have some  rights of title in the soil.  And, in my submission,  that is not the point.  The point was to prevent  frauds and abuses; that is to say, the native people  selling the same plot of land twice over or three  times over.  In any event, I point out that the occupation  which is being referred to on the part of the Indian  peoples and the soil that is being referred to is what  they are in actual occupation of.  Otherwise, it would  make no sense to talk about rights of occupation  elsewhere.  Now, I come back to my summary at page 4.  By  November 1858, when he received his Commission and the  Royal Instructions Douglas had put into effect or  recommended a policy which precluded any theory of  general aboriginal title.  And by general aboriginal  title I mean proprietary interest in the lands colony  wide.  The principles of this policy were:  settlement  under British law, not miners' law; protection of  Indian civil and agrarian rights under British law,  not native law; and co-existence of Indian and white.  I say that policy, which is formulated in the  three dispatches of June 10 and 15, and July 26,  embody in my submission the essential principles of  "peace, order and good government", which is the  ultimate responsibility of the Crown to its subjects.  It is to be noted that in the administration of 27691  Submissions by Mr. Goldie  1 British law at Hill's Bar Douglas appointed Indian  2 magistrates.  Again, their duty was to assist, I say  3 their duty was to administer, I say their duty was to  4 assist in administering British law to the Indians,  5 subjects of the Crown.  And that is from the paragraph  6 of the dispatch of June 15 that I have referred your  7 lordship to, not only did he take the leading man into  8 the government service but he states:  9  10 "I also appointed Indian magistrates, who are to  11 bring forward, when required, any man of their  12 several tribes who may be charged with offences  13 against the laws of the country..."  14  15 THE COURT:  These tab numbers at the top, 13.  16 MR. GOLDIE:  Those are to the Exhibit 1142, my lord.  17 THE COURT:  But they don't refer to these tab numbers in the  18 yellow book.  19 MR. GOLDIE:  No.  The tab numbers in the yellow volume are  20 dictated by the paragraph numbers of the summary.  21 THE COURT:  All right.  So these are —  22 MR. GOLDIE:  These will all be found under tab 5b-6.  23 THE COURT:  Yes.  All right, thank you.  24 MR. GOLDIE:  The policy of the British government with respect  25 to the Mainland Colony was indicated from the preamble  26 of the 1858 Act, and I quote:  27  28 "...and it is desirable to make some temporary  29 provision for the civil government of such  30 territories, until permanent settlements shall  31 be thereupon established, and the number of  32 colonists increased..."  33  34 What was implicit in the foregoing was expressly  35 stated in Lytton's dispatch of July 1 1858, and I  36 quote that on the next page, my lord, it's the second  37 document under the tab in the yellow binder 5b-7.  And  38 it's the dispatch of July 1, and what I refer to is in  39 the second -- in the second complete paragraph, the  40 last sentence:  41  42 "All claims and interests must be subordinated  43 to that policy which is to be found in the  44 peopling and opening up of the new country,  45 with the intention of consolidating it as an  46 integral and important part of the British  4 7 Empire." 27692  Submissions by Mr. Goldie  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  This instruction was taken by Douglas as authority  to lay out townsites and to grant rights of occupation  and I deal with that in my next -- the next paragraph  of my summary.  This was acknowledged and implemented by Douglas  as described in his dispatch of October 12, 1858 when,  using Lytton's dispatch of July 1 as his authority, he  proposed to lay out townsites and to grant rights of  occupation for a rent which would apply to the  purchase price upon sale - the occupier having  pre-emptive rights at the time of sale.  In his  Dispatch Number 60 of December 30, 1858, Lytton  expressed his cordial approval of the manner in which  Douglas was carrying out the two objects to be borne  in mind:  "...a liberal and kindly welcome to all honest  immigrants, and the unquestionable supremacy of  British sovereignty and law."  Now, going back, my lord, Lytton's dispatch of  July 1st was taken as I say by Douglas as revoking or  superseding Labouchere's instructions of February 1,  1858 which forbad granting people any rights of  occupation.  And when -- I now refer, my lord, to that  part of his dispatch of October 12 which is page 1  under tab VII 5b-8.  THE COURT:  The date of this is what again?  MR. GOLDIE:  October 12, 1858, my lord.  THE COURT:  Yes.  MR. GOLDIE:  And the paragraph 8, he says, and I quote:  "8.  Having just ascertained, from your Despatch  of the 1st of July last, that it was the wish  of Her Majesty's Government to colonize the  country and develop its resources, I proposed  to the inhabitants of the place..."  That's Fort Hope that he was at:  "...to lay out certain lands as a town site, and  to grant a right of occupation for town lots,  under a lease terminable at the pleasure of the  Crown, and to be held at a monthly rental of 4  Is. 8d. sterling, payable in advance, and with  the understanding that the holder would be 27693  Submissions by Mr. Goldie  1 allowed a pre-emption right of purchase when  2 the land is sold, in which case the sum of  3 monthly rent paid would be considered as part  4 of the purchase money.  5 9.  The people gladly assented to the terms."  6  7 Now, as I have stated, when Lytton received that  8 dispatch and he acknowledged it in his -- of December  9 30, in the dispatch on page 2 under tab 8 -- under tab  10 5b-8, he says in the second paragraph:  11  12 "I can but repeat (and I do so with great  13 pleasure) the testimony which I have already  14 borne to your energy and promptitude amidst  15 circumstances so extraordinary as those in  16 which you found yourself placed; and to assure  17 you of the sense entertained by Her Majesty's  18 Government of the capacities you have thus  19 signally avinced."  20  21 And then in the last paragraph, last sentence I have  22 read and as set out in my summary:  23  24 "I cannot conclude without expressing my cordial  25 approval of the manner in which you appear to  26 have carried out the two objects which, at the  27 outset of such a Colony,"  28  29 et cetera.  30 I interject, my lord, here to read to your  31 lordship from re Southern Rhodesia, a case which --  32 and your lordship should find under tab 5b-7 at  33 pages --  34 THE COURT:  I am sorry, where should I look?  35 MR. GOLDIE:  5b-7 in the yellow book.  36 THE COURT:  Yes, all right.  37 MR. GOLDIE:  Pages 3 and 4.  3 8    THE COURT:  Yes.  39 MR. GOLDIE:  I have indicated to your lordship from the material  40 I have read firstly Douglas' view that the country  41 could not be held closed to settlement, so many people  42 were coming in that it had to be open to settlement  43 and controlled.  This view was accepted in London and  44 indeed it was endorsed in the preamble to the 1858 Act  45 and especially referred to by the Colonial Secretary,  46 so settlement was adopted as a policy in the new  47 colony, and I wish to refer to the effect of that as 27694  Submissions by Mr. Goldie  1 recorded in the case of re Southern Rhodesia which  2 involved a conquest of territory by the British South  3 Africa country made on behalf of the Crown and a  4 contest which arose between the Crown and the company  5 as to the consequences of the company's actions and of  6 the Crown's actions subsequently.  In that case, the  7 native peoples of Southern Rhodesia were briefed and  8 presented an argument and the disposition of that  9 argument is found at page 234, and I begin about a  10 third of the way down the page with the sentence:  11  12 "Lobengula's duties, if describable as those of  13 a trustee, were duties of imperfect  14 obligation."  15  16 THE COURT:  I haven't found that.  17 MR. GOLDIE:  It's about 14 lines down from the top.  18 THE COURT:  Oh, yes.  I see it.  19 MR. GOLDIE:  Lobengula was the ruler, the sovereign of the  20 territory in question, and that territory was acquired  21 in a variety of ways, partly by conquest and partly by  22 cession.  The argument that was made by the Native  23 peoples emerges as will be seen in a minute.  Anyway,  24 the judicial committee described:  25  26 "Lobengula's duties, if describable as those of  27 a trustee, were duties of imperfect obligation.  28 Except by fear or force he could not be made  29 amenable.  He was the father of his people, but  30 his people may have had no more definite rights  31 than if they had been the natural offspring of  32 their chieftain.  According to the argument the  33 natives before 1893 were owners of the whole of  34 these vast regions in such a sense that,  35 without their permission or that of their King  36 and trustee, no traveller, still less a  37 settler, could so much as enter without  38 committing an trespass.  If so, the maintenance  39 of their rights was fatally inconsistent with  40 white settlement of the country, and yet white  41 settlement was the object of the whole forward  42 movement, pioneered by the Company and  43 controlled by the Crown, and that object was  44 successfully accomplished, with the result that  45 the aboriginal system gave place to another  46 prescribed by the Order in Council.  47 This fact makes further inquiry into the 27695  Submissions by Mr. Goldie  1 nature of the native rights unnecessary."  2  3 That, I say, is the effect of determining by the  4 Crown upon a policy of settlement.  5 The dispatch, that of Douglas' of October 12, 1858  6 in which he says that acting upon his conception of  7 the instructions he received, he laid out a townsite  8 and encouraged people to take lots on the basis of a  9 rental.  I say in paragraph 9:  In Douglas' dispatch  10 of October 12, 1858 he also records the circumstance  11 leading to his Proclamation of September 6, 1858,  12 forbidding the sale of alcoholic beverages to Indians  13 and records one of the earliest instances on the  14 Mainland of reserving lands for the use of Indians.  15 That, my lord, is found under tab 9.  He states in  16 paragraph 20 of his dispatch of October 12, 1858, and  17 it is page 2 of the collection of documents -- well, I  18 should read -- start at page 2.  19  20 "18.  We found a large assemblage of people at  21 Fort Yale expecting our arrival with some  22 anxiety, in order to ascertain the views of Her  23 Majesty's Government.  24 19.  According to their earnest request I met  25 them the following day at a public meeting, and  26 delivered a short address in which I announced  27 the instructions I had received from Her  28 Majesty's Government, as contained in your  29 Despatch of the 1st of July last, and tidings  30 were received with satisfaction.  31 20.  The same process of organization was gone  32 through here as at Fort Hope.  The Indians were  33 assembled, and made no secret of their dislike  34 to their white visitors.  They had many  35 complaints of maltreatment, and in all cases  36 where redress was possible it was granted  37 without delay.  One small party of those  38 natives laid claims to a particular part of the  39 river, which they wished to be reserved for  40 their own purposes, a request which was  41 immediately granted, the space staked off, and  42 the miners who had taken claims there were  43 immediately removed, and public notice given  44 that the place was reserved for the Indians,  45 and that no one would be allowed to occupy it  46 without their consent."  47 27696  Submissions by Mr. Goldie  1 An attempt by land speculators to gain lands  2 through squatting was broken up.  And that's the same  3 dispatch, paragraph 36.  4  5 "36.  Information was received from Victoria,  6 during my stay at Fort Yale, that some  7 speculators, taking advantage of my absence,  8 had squatted on a valuable tract of public land  9 near the mouth of Fraser's River, commonly  10 known as the site of old Fort Langley, and  11 employed surveyors at a great expense to lay it  12 out into building lots, which they were  13 offering for sale, hoping by that means to  14 interest a sufficient number of persons in the  15 scheme as would overawe the Government and  16 induce a confirmation of their title."  17  18 I suppose in miniature, my lord, this was the sort of  19 thing that Merk described was going on in very large  20 scale in the United States.  21  22 "To put the public upon their guard, and defeat  23 a swindling scheme, which, if tolerated, would  24 give rise to other nefarious transactions of  25 the same kind.  I thought it necessary to issue  26 a proclamation, of which a copy is transmitted,  27 warning all persons that the Crown lands in  28 that part of the country had not been alienated  29 or in any way encumbered, that any persons  30 making fraudulent sales of land appertaining to  31 the Crown, would be punished as the law  32 directs, and persons holding such lands would  33 be summarily ejected.  34 That Proclamation was immediately forwarded  35 to Victoria and published, with so decided  36 effect on the public mind as entirely to break  37 up the scheme, and we are now laying off the  38 site of Old Fort Langley in town lots, to be  39 sold for account and for the benefit of the  40 public revenue."  41  42 My lord, in paragraph 10 of my summary I say all  43 these events and activities - the laying out of a  44 townsite to encourage settlements; the granting of  45 redress to Indians upon complaints of maltreatment at  46 the hands of miners; the staking out of reserve for  47 the exclusive use of Indians and the denial of any 27697  Submissions by Mr. Goldie  1 right to land other than through the Crown - are  2 antithetical to any assertion of a general claim of  3 aboriginal title in the Mainland Colony.  4 Now, my lord, I say treaties of surrender had no  5 place in Douglas' policy.  In his Dispatch Number 12  6 of 2 September, 1858 Lytton forwarded a copy of a  7 letter from the Aborigine's Protection Society which  8 urged recognition of native title in the new Colony,  9 the negotiation of a treaty and payment for what was  10 necessary to acquire.  That dispatch is found under  11 tab 5b-ll and Lytton forwards it to Douglas with the  12 comment:  13  14 "I regard that subject..."  15  16 that is to say, the treatment of the native Indians:  17  18 "...as one which demands your prompt and careful  19 consideration.  I now transmit to you the copy  20 of a letter from the Aborigine's Protection  21 Society, invoking the protection of Her  22 Majesty's Government on behalf of these people.  23 I readily repeat my earnest injunctions to you  24 to endeavour to secure this object.  At the  25 same time I beg you to observe that I must not  26 be understood as adopting the views of the  27 Society as to the means by which this may be  28 best accomplished."  29  30 Now, Douglas' response to that is his dispatch of  31 November 5, 1858, which is under that tab 5b-ll, my  32 lord, and it's the second document, page 4 of the  33 collection.  He says:  34  35 "I have the honour to acknowledge the receipt of  36 your Despatch..."  37  38 et cetera.  39  40 "2.  While you do not wish to be understood as  41 adopting the views of the society as to the  42 means by which that may be best accomplished,  43 you express a wish that the subject should have  44 my prompt and careful consideration, and I  45 shall not fail to give the fullest effect to  46 your instructions on that head, as soon as the  47 present pressure of business has somewhat 2769?  Submissions by Mr. Goldie  1 abated.  I may, however, remark that the native  2 Indian tribes are protected in all their  3 interests to the utmost extent of our present  4 means."  5  6 Now, my lord, it is clear in my submission that  7 Douglas has adopted the policy of protecting them but  8 he does not accept the proposition that there should  9 be a treaty.  I should refer your lordship to the  10 letter from the Aborigine's Protection Society which  11 is page 2 of what is under that tab, my lord, it's a  12 letter from Mr. Chesson apparently undated but it  13 expresses a sense of concern over the danger of  14 collision which would ripen into a deadly war of  15 races, and the writer of the letter says in paragraph  16 2:  17  18 "The danger of collision springs from various  19 cases.  In the first place, it would appear  20 from Governor Douglas' Despatches as well as  21 from more recent accounts that the natives  22 generally entertain ineradicable feelings of  23 hostility towards the Americans, who are now  24 pouring into Fraser's and Thompson's Rivers by  25 thousands, and who will probably value Indian  26 life there as cheaply as they have,  27 unfortunately, done in California.  The  28 reckless inhumanity of the gold diggers of that  29 state towards the unfortunate Indians is thus  30 described in a recent number of the New York  31 Times: -"  32  33 And then there is an account of what goes on in  34 California or at least as alleged to go on in  35 California.  And they wind up by -- the writer of the  36 letter winds up by urging that there be a treaty and  37 with all of that, that implies --  38 MR. RUSH:  He says more than that.  39 MR. GOLDIE:  Well, I am not suggesting that's the only thing he  40 says.  When Douglas received the formal instruments of  41 his authority over the Mainland Colony he proclaimed,  42 in accordance with his Instructions, three approximate  43 proclamations:  The first revoking the exlusive  44 privileges of the Hudson's Bay Company, the second  45 indemnifying the officers of government from all  46 irregularities previous to the date of the  47 Proclamation and validating all acts, matters or 27699  Submissions by Mr. Goldie  1 things bona fide done for the purposes of government,  2 and the third, that the civil and criminal laws of  3 England, as the same existed on November 19, 1858 and  4 so far as they were not from local circumstances  5 inapplicable to the Colony of British Columbia, were  6 in full force within the Colony until lawfully  7 altered.  The introduction of English law -- I am now  8 repeating my earlier submission.  The introduction of  9 English law which recognizes only the Crown as the  10 source of interest in land, is inconsistent with the  11 notion of aboriginal ownership and jurisdiction and  12 this Proclamation, together with the indemnity  13 Proclamation, confirmed Douglas' early lecture to the  14 miners and Indians on -- prior to June 15, 1858 at  15 Hill's Bar that British law, not Indian law or miner's  16 law, would prevail.  I refer there to the fact, my  17 lord, that when Douglas was speaking to these people  18 he had no authority but the indemnification  19 Proclamation ratified what he had to say.  20 Now, I next submit that the manner of disposition  21 of public lands is relevant to a consideration of the  22 question of aboriginal title on the Mainland.  Douglas  23 had anticipated and exceeded his Instructions in  24 having the Surveyor of the Vancouver Island Colony lay  25 out a townsite at Fort Langley.  This has already been  26 briefly referred to, my lord, but under tab 5b-12  27 which is an extract from his dispatch of -- I don't  28 have the date, it's his dispatch of October 11, 1858,  29 and in paragraphs 8 to 10, he reviews what he is doing  30 with respect to public lands in the vicinity -- well,  31 public lands.  32  33 "8.  The disposal of public lands and also of  34 town lots, as suggested in your Despatch, will,  35 I think:  36  37 that dispatch is the one of July 31:  38  39 "...I think, prove a prolific source of revenue,  40 besides having the effect of opening the  41 country for permanent settlement.  In my late  42 excursion to Fraser's River, of which I will  43 soon forward an account, the most urgent  44 appeals were made to me by intending settlers,  45 on the prospect of approaching winter, for the  46 purchase of town lots at Fort Yale and Fort  47 Hope; but having no legal authority to make 27700  Submissions by Mr. Goldie  1 sales of land, or to grant sufficient titles, I  2 could only meet their wishes by giving leases  3 of the desired lots, at a monthly rent of 41  4 shillings, to be continued, with a pre-emption  5 right to the holder until the land is finally  6 sold.  7 9.  Since the arrival of your Despatch:  8  9 and that is the one that Douglas took his authority to  10 proceed vigorously with settlement:  11  12 "...I have sent Mr. Pemberton, the  13 Surveyor-General, to lay out three several town  14 sites on Fraser's River, namely, at  15 Old Fort Langley,  16 Fort Hope,  17 Fort Yale,  18 there being a demand at each of those places  19 for town lots, in consequence of their position  20 at important trading points of the River, which  21 gives them a peculiar value in the estimation  22 of the public.  23 10.  The Surveyor has advertised a public sale  24 at this place of town lots ... at old Fort  25 Langley, for the 20th of this month, October,  26 the upset price to be 100 dollars."  27  28 Now, the lots in fact were sold by auction on  29 November 25, and that report is in the second dispatch  30 under that tab, my lord, November dispatch being  31 November 29, 1858, and there is no mention of Indian  32 title yet -- and that is entirely inconsistent with  33 the recognition generally of a colony-wide title of  34 proprietary claim of ownership and jurisdiction.  35 THE COURT:  When you say Indian title do you mean ownership or  36 do you mean something less than ownership?  37 MR. GOLDIE:  Well, of any kind.  38 THE COURT:  All right.  39 MR. GOLDIE:  I will use a more neutral word.  Indian interest.  4 0    THE COURT:  All right.  41 MR. GOLDIE:  But I emphasize that it is an Indian interest  42 colony wide that is incompatible with surveying and  43 setting out townsites which are not the subject --  44 which are not occupied by village and Indian  45 settlement.  Douglas' actions were approved in  46 February 1859, and that is evident, my lord, from the  47 last document under that tab where Lytton said: 27701  Submissions by Mr. Goldie  1  2 "I have had under my consideration your Despatch  3 No. 38 of the 29th November, containing a  4 report of the sale of town lands at Old Fort  5 Langley, in British Columbia.  I approve of  6 your proceedings in that matter of the sales,  7 of which the result appears to have been  8 satisfactory."  9  10 My lord, I now am at paragraph 13 of my summary.  11 A significant difference of opinion arose between  12 Douglas and the Colonial Office later in 1859.  13 Initially Douglas had agreed that sale of public lands  14 should follow survey but the slow pace of the  15 surveying parties of the Royal Engineers in the Lower  16 Mainland caused him to put into effect a system which  17 allowed sale by pre-emption to precede survey.  18 Lytton's instructions of August 14, 1858 were to open  19 land for settlement gradually, "not to sell beyond the  20 limits of what is either surveyed or ready for  21 immediate survey".  That dispatch, my lord, is under  22 5b-13 and the relevant paragraph is marked.  This  23 instruction was quoted by Mr. Justice Hall in Calder  24 in the Supreme Court Reports 409 - 410 in which the  25 dispatch of Lytton is quoted, the bottom of the first  26 column on page 409.  And after quoting it His Lordship  27 states:  28  29 "There is nothing in the record indicating that  30 the Nishga lands have even yet been surveyed or  31 made ready for immediate survey expecting,  32 perhaps, the land given for the townsite of  33 Stewart.  The boundary line with Alaska was not  34 surveyed until after the boundary settlement.  35 Consequently I cannot see how anything can be  36 derived from the fact that surveys were made on  37 Vancouver Island or on the lower mainland that  38 would lead to the conclusion that the rights of  39 the Nishgas in the northwest corner of the  40 Colony were being dealt with by implication or  41 at all."  42  43 I note in my summary that his lordship therefore  44 treated this instruction as one of continuing validity  45 and concluded, from the absence of surveys in the  46 Nishga territory, that the lands there in question  47 were not being dealt with by implication or at all. 27702  Submissions by Mr. Goldie  1 Now, the fact is, after considerable discussion  2 within the Colonial Office, Douglas' insistence that  3 settlement could only be encouraged if occupation with  4 a pre-emptive right to purchase preceded survey was  5 accepted.  He stated in his reasons in his dispatch of  6 July 4 and October 18, 1859, and the references, my  7 lord, I will refer to in a minute but the page number  8 of the July 4 dispatch should be 29 instead of 28.  9 And turning to the extracts from the dispatches under  10 5b-14, he is reporting on the events up country and  11 including by this time that gold mining was taking  12 place beyond Lytton, he reports on the road building  13 activities in paragraphs 13 to 14, and then in  14 paragraph 15 he says:  15  16 "15.  The regular settlement of the country by a  17 class of industrious cultivators is an object  18 of the utmost importance to the colony, which  19 is at present dependent for every necessary of  20 life, even to the food of the people, on  21 importation from abroad."  22  23 He notes in paragraph 17 that:  24  25 "17.   The mining population are proverbially  26 migratory and unsettled in their habits..."  27  28 Paragraph 18:  29  30 "18.  We are for that reason most anxious to  31 encourage the actual settlement for the  32 country..."  33  34 And then he refers to paragraph 19, tracts of level  35 land and prairie land which are suitable for  36 agriculture.  And then in paragraph 26:  37  38 "26.  Colonel Moody is making great efforts to  39 bring surveying parties rapidly into the field,  40 but the survey of the site of Queensborough..."  41  42 which is present day New Westminster:  43  44 "...and other necessary work, has led to  45 unavoidable delays, and no country land has as  46 yet been brought into market.  There is much  47 popular clamour, on that account, and should 27703  Submissions by Mr. Goldie  1 the pressure for land be great, I think it will  2 be advisable to meet the emergency by  3 establishing some temporary system of  4 occupation, which would enable settlers to hold  5 and approve certain specified tracts of land  6 under a pre-emption right until the surveys are  7 completed, when it might cease to be in force."  8  9 Now, that was the -- his dispatch of July 4, 1859.  10 And then October 18, 1859, he continues the theme in  11 paragraphs 24 to 29.  In paragraph 24 he again recites  12 the fact that the colony lacks a farming class, the  13 population being almost entirely composed of miners  14 and merchants.  He alludes to his anxieties in that  15 regard and to the attention of government being very  16 anxiously directed to the means of providing or  17 encouraging of agricultural settlers.  And paragraph  18 25 to 29 then, he says:  19  20 "25.  The colony has not proved attractive to  21 agricultural settlers.  22  23 26.  At Douglas and Hope, various applications  24 are made to me for rural land, by persons who  25 had ... made valuable improvements.  They asked  26 to be secured in the ownership of any land they  27 might improve ... and that it should not be  28 exposed to public sale  ... and outlay.  29  30 27.  There was nothing unreasonable in their  31 proposal, and as meeting their views would, I  32 felt assured, have the effect of promoting the  33 settlement of the country; I had every wish to  34 do so, but there was a difficulty in  35 accomplishing the object, for the reason that  36 no country land had been surveyed in those  37 districts, nor could surveys be completed  38 before next year, when the petitioners would  39 probably all have left the colony in disgust.  40 I therefore had recourse to an expedient which  41 fully met the case, without sacrifice to the  42 Government, and to the perfect satisfaction of  43 the public, by issuing a circular addressed to  44 the Assistant Commissioners of Hope, Yale,  45 Douglas, Lytton, and Cayoosh, directing them to  46 permit all persons being at the time British  47 subjects, and all persons who have recorded 27704  Submissions by Mr. Goldie  1 their intention of becoming British subjects,  2 to hold tracts of unsurveyed Crown land, not  3 being town sites, nor sites of Indian villages,  4 and not exceeding 160 acres in extent, with a  5 guarantee that the same would be fully conveyed  6 to the holder when the land is surveyed.."  7  8 And he says:  9  10 "28.   This is in fact the basis of a  11 pre-emption law founded on occupation and  12 improvement, the Government agreeing on those  13 conditions to convey the land at a fixed price;  14 it being moreover provided that the rights of  15 actual settlers, of those persons only who are  16 found in possession when the land is surveyed  17 will be recognized and allowed.  Persons  18 wishing to acquire larger tracts will be  19 required to pay a deposit ... on all land over  20 160 acres pre-empted for their benefit; a  21 condition intended to serve as a protection to  22 bona fide settlers, and to prevent speculators  23 from preying on the public."  24  25 And then he says if that doesn't work we should  26 consider free grants not exceeding 100 acres.  27 Now, that Proclamation -- I am sorry, that was  28 followed by a Proclamation of January 4 of 1860 which,  29 in my submission, became the cornerstone of the  30 Colony's land policy right up to and including 1870,  31 which is Calder XIII.  This history will be examined  32 in detail on the discussion of Calder III, that is to  33 say the Proclamation of January 4, 1860, but it is  34 enough to note here that the 1860 Proclamation  35 allowing for the acquisition of unsurveyed Crown lands  36 received the Queen's sanction on December 6, 1860 and  37 thereafter the issue of ultra vires to which Mr.  38 Justice Hall alludes to in Calder ceased to be a  39 constitutional possibility.  And I make reference to  40 the case of Attorney General for Canada v. Cain.  The  41 documents in Calder III which by support this  42 conclusion were not before the Supreme Court of  43 Canada.  I just briefly turn to the documents in  44 question, my lord.  The Proclamation itself as I say  45 would be dealt with subsequently but the case of the  46 Attorney General of Canada v. Cain is one that I have  47 already alluded to.  It involved the expulsion of 27705  Submissions by Mr. Goldie  1 aliens and the issue of extra territorial powers of  2 the dominion government, and the reference that I have  3 made to it is at page 546, midway down the  4 paragraph -- I am sorry, about a quarter of the way  5 down the paragraph:  6  7 "The Imperial Government might delegate those  8 powers..."  9  10 Those powers being the right to refuse to permit an  11 alien to enter or to subject him to conditions or to  12 expel or deport him.  13  14 "The Imperial Government might delegate those  15 powers to the governor or Government of one of  16 the Colonies, either by royal proclamation  17 which has the force of a statute - Campbell v.  18 Hall (1) - or by a statute of the Imperial  19 Parliament, or by the statute of a local  20 Parliament to which the Crown has assented.  If  21 this delegation has taken place, the depositary  22 or depositaries of the executive and  23 legislative powers and authority of the Crown  24 can exercise those powers and that authority to  25 the extent delegated as effectively as the  26 Crown could itself have exercised them."  27  28 And I say that when the Queen's sanction was  29 granted to the Proclamation of January 4, 1860, it was  30 beyond constitutional -- it was constitutionally  31 beyond reach and its provisions which allowed for  32 pre-emption of unsurveyed lands were law.  33 Now, continuing paragraph 15.  In his dispatch  34 of -- and the month should be December, my lord,  35 December 30, Lytton requested Douglas' observation on  36 the future treatment of the native population.  In his  37 reply to this inquiry, Douglas referred to his  38 experience on Vancouver Island with the Songhees  39 reserve in Victoria.  In particular he referred Lytton  40 to his Vancouver Island dispatch of February 9, 1859.  41 And, in my submission, it is clear from the text of  42 the whole of his dispatch of March 14 that he was, as  43 Lytton requested, considering the future.  Impliedly,  44 both the inquiry and the reply assumed the existing  45 policy on the Mainland involved reserves from which,  46 with the passage of time, individual ownership would  47 develop both within and outside the reserve.  Douglas 27706  Submissions by Mr. Goldie  1 expressly rejected the U.S. practice in terms which  2 showed his familiarity with Indian affairs in that  3 country.  He thus rejected as a model a jurisdiction  4 which sought to deal with native interests by  5 recognition of aboriginal title and the extinguishment  6 thereof by treaty of surrender.  The references under  7 15 I can take your lordship through very shortly.  The  8 first document is Lytton's dispatch of December 30 in  9 which he raises as a question for the future, and I  10 rely upon the second paragraph where he says:  11  12 "The success that has attended your transactions  13 with these tribes induces me to inquire you if  14 you think it might be feasible to settle them  15 permanently in villages; with such settlement  16 civilization at once begins."  17  18 I ask your lordship to note that that obviously  19 assumes a resettlement because they're already in  20 their own villages, but he is talking about, I would  21 put it, as resettlement.  Douglas' response to that I  22 have excerpted under the next page and it is dated  23 March 14, 1859, and he says in paragraph 12:  24  25 "I would, for example, propose..."  26  27 and he too obviously is speaking to the future:  28  29 "...propose that every family should have a  30 distinct portion of the reserved land assigned  31 for their use, and to be cultivated by their  32 own labour, giving them however, for the  33 present, no power to sell or otherwise alienate  34 the land; that they should be taught to regard  35 that land as their inheritance; that the desire  36 should be encouraged and fostered in their  37 minds of adding to their possessions, and  38 devoting their earnings to the purchase of  39 property apart from the reserve, which would be  40 left entirely at their own disposal and  41 control; that they should in all respects be  42 treated as rational beings, capable of acting  43 and thinking for themselves; and lastly, that  44 they should be placed under proper moral and  45 religious training."  46  47 I have an observation to make about that.  Firstly, if 27707  Submissions by Mr. Goldie  1 there was any understanding of a general aboriginal  2 interest that prevailed throughout the colony, it  3 would be inconsistent to suggest that those natives  4 who were settled in a reservation would have to  5 purchase property apart from the reserve.  He rejected  6 the U.S. experience as I have noted and that's evident  7 from paragraphs 10 and 11.  He says:  8  9 "10.  The plan followed by the Government of the  10 United States, in making Indian settlements..."  11  12 that is to say, in creating reservations to which  13 tribes were removed:  14  15 "...appears in many respects objectionable; they  16 are supported at an enormous expense by  17 Congress, which for the fiscal year ending June  18 30, 1856, granted the sum of $358,000 for the  19 support and maintenance of the Indians of  20 California alone..."  21  22 and so on.  And he said he would not recommend the  23 system pursued by the founders of the Spanish missions  24 in California.  25 And, in paragraph 11, he says:  26  27 "...we may perhaps succeed in escaping the  28 manifest evils of both systems..."  29  30 that is to say, the systems pursued in the United  31 States and in California:  32  33 "...the great expense and the debasing  34 influences of the American system; by making  35 the Indians independent and the settlements  36 self-supporting; and to avoid the rock on which  37 were wrecked the hopes of the Spanish  38 missions."  39  40 I say he thus rejected as a model a jurisdiction which  41 sought to deal with native interests by recognition of  42 aboriginal title and the extinguishment thereof by  43 treaty of surrender.  44 Paragraph 16 —  45 THE COURT:  I think we will take the afternoon adjournment now,  46 Mr. Goldie.  47 MR. GOLDIE:  Very well, my lord. 2770?  Proceedings  1    THE REGISTRAR:  Order in court.  Court stands adjourned.  2  3 (PROCEEDINGS ADJOURNED AT 3:15 p.m.)  4  5 I hereby certify the foregoing to  6 be a true and accurate transcript  7 of the proceedings transcribed to  8 the best of my skill and ability.  9  10  11  12  13    14 Tannis DeFoe,  15 Official Reporter,  16 UNITED REPORTING SERVICE LTD.  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 27709  Submissions by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, before I leave paragraph 15 on page 12,  6 and that paragraph deals with Lytton's dispatch of  7 December 30, 1858 in which he had asked as  8 consideration for the future whether Douglas, having  9 regard to the success that had attended his  10 transactions with the Indian tribes, might think it  11 feasible to settle them permanently in villages.  And  12 I think I said that implied removal into villages  13 rather than continued settlement in their own  14 villages.  I am not so sure that that is necessarily  15 the case, or whether he is simply suggesting that  16 those who were of a nomadic inclination might be  17 persuaded to settle in their own villages.  And the  18 reason I express that doubt is that I had my attention  19 drawn to Lytton's acknowledgment of Douglas' dispatch  20 of the 14th of March which I had referred to at some  21 length, the second document under tab B-15.  And  22 Douglas saying:  23  24 "I would, for example, propose that every  25 family should have a distinct portion of the  26 reserved land assigned for their use."  The  27 acknowledgment is in the papers relating to  28 British Columbia, Exhibit 1142, tab 2 at page  29 92 and is dated May 20, 1859.  It is not in my  30 yellow binder, but it is short, and I will read  31 it.  32  33 "I have to acknowledge the receipt of your  34 Despatch, No. 114, of the 14th of March, on the  35 subject of the policy to be observed towards  36 the Indian tribes, and containing your opinion  37 as to the feasibility of locating the Indians  38 in natives villages, with a view to their  39 protection and civilization."  40  41 Now, I say that seems to be somewhat ambiguous.  42 He goes on to say this:  43  44 "I am glad to find that your sentiments  45 respecting the treatment of the natives races  46 are so much in accordance with my own, and I  47 trust that your endeavours to conciliate and 27710  Submissions by Mr. Goldie  1 promote the welfare of the Indians will be  2 followed by all persons whom circumstances may  3 bring into contact with them.  But whilst  4 making ample provision under the arrangements  5 proposed for the future sustenance and  6 improvement of the native tribes, you will, I  7 am persuaded, bear in mind the importance of  8 exercising due care in laying out and defining  9 the several reserves, so as to avoid checking  10 at a future day the progress of the white  11 colonists."  12  13  14 THE COURT:  I'm sorry, I am not sure what you are reading from,  15 Mr. Goldie.  16 MR. GOLDIE:  Well, that is a dispatch of Lytton to Douglas.  It  17 is not in the yellow binder.  18 THE COURT:  No.  19 MR. GOLDIE:  Acknowledging Douglas' dispatch in response to  2 0 Lytton's "What do you think we should do in the  21 future?" dispatch.  22 THE COURT:  Yes.  23 MR. GOLDIE:  If I may put it that way.  I am going to provide  24 your lordship with this one of May the 20th so that it  25 completes the sequence.  26 THE COURT:  It is Lytton?  27 MR. GOLDIE:  It is Lytton to Douglas of May 20th.  2 8 THE COURT:  1859?  29 MR. GOLDIE:  '59.  30 THE COURT:  And that's in reply to —  31 MR. GOLDIE:  And it is in reply to Douglas of March 14th, 1859,  32 a part of which is extracted and placed on page 2 and  33 is page 2 under tab 5b-15.  Now, while the dispatch  34 is --  35 THE COURT:  What's the date in May?  36 MR. GOLDIE:  May 20th, my lord.  37 THE COURT:  All right.  38 MR. GOLDIE:  It is signed by Carnarvon who is the Under  39 Secretary of State in the absence of Lytton.  But the  40 point, my lord, is that it is totally inconsistent  41 with the notion of an all pervasive Indian interest  42 for the Secretary of State to urge upon Douglas to  43 bear in mind the importance of exercising due care in  44 laying out and defining the several reserves so as to  45 avoid checking at a future day the progress of the  46 white colonists that I thought it significant that  47 your lordship should have that just to complete that 27711  Submissions by Mr. Goldie  1 sequence.  2  3 Now, turning to paragraph 16 on page 12.  In his  4 dispatch number 20 dated February 11, 1859, and that  5 is under tab 5b-16.  Lytton transmitted to Douglas for  6 the latter's information copies of "Canadian" Acts  7 regulating the sale of Crown land to aliens <KWREPBS>.  8 Now, in my submission, if it was the intention of the  9 British government that there be an uniformity of  10 policy in the British North American colonies with  11 respect to Indian title this dispatch afforded the  12 Colonial Office an opportunity to do so.  And to  13 instruct Douglas accordingly.  It did not.  And  14 Douglas' acknowledgment was noted by him as being  15 respectively of "great service".  16  17 The only point I make, my lord, is that here the  18 Colonial Office is directing Douglas' attention to the  19 sale of lands to aliens.  And they send out to him for  20 his information and guidance and assistance laws of  21 Canada, presumably Upper Canada.  And if there was  22 any -- that seems to me to be an opportunity which was  23 afforded them if they wished to make the laws uniform,  24 and they did not.  I make reference to a map of  25 British Columbia which is part of the Exhibit 1142,  26 but I won't refer to that further.  27  28 Paragraph 18, Douglas' dispatch of June 8th  29 enclosed Judge Begbi's report of a circuit which took  30 him to just beyond present-day Lillooet.  This was  31 enclosed with his dispatch of June 8th.  And that's  32 under tab 5b-18.  And Begbie's report starts on the  33 second page -- Judge Begbie by noted at page 24 -- my  34 lord, I think there is a mistake in the reference  35 there because there is a part only of the -- no, it is  36 all right.  It is the second document under that tab,  37 although it is the enclosure with the first.  The  38 report runs at some length.  But at paragraph 34 Judge  39 Begbie said this:  40  41 "The remainder of my route is so well --"  42  43 Paragraph 34:  44  45 "The chief points that struck me, to make a  46 brief re-capitulation, were:  47 1st.  The ready submission of a foreign 27712  Submissions by Mr. Goldie  1 population to the declaration of the will of  2 the executive, when expressed clearly and  3 discreetly, however contrary to their wishes.  4 2ndly.  The great preponderance of the  5 California or Californicized element of the  6 population, and the paucity of British  7 subj ects.  8 3rdly.  The great riches, both auriferous and  9 agricultural, of the country.  10 4thly.  The great want of some fixityof tenure  11 for agricultural purposes.  12 5thly.  The absence of all means of  13 communication, except by forming torrents in  14 canoes or over goat tracks on foot, which  15 renders all productions of the country, except  16 such as, like gold, can be carried with great  17 ease and small weight and compass practically  18 valueless . "  19  20 His dispatch of July 4th of 1859, and this is  21 Douglas' dispatch, lays great emphasis on the need to  22 develop permanent settlement and alludes to the  23 potential advicability of disposing of land before  24 survey:  Paragraph 26.  Well, I should first refer to  25 the -- but I have already referred to this, my lord,  26 that dispatch.  There is no reference, I say, to  27 Indian title.  28  29 And Douglas reported on his tour of the Colony in  30 his dispatch of October 18, 1859.  And this is under  31 tab 5B-19.  And paragraphs 24 to 27 he describes how  32 he met the wishes of settlers for land in advance of  33 survey, describing what he had done as a "...basis of  34 a pre-emption law."  What he did was wholly  35 inconsistent with aboriginal ownership and  36 jurisdiction throughout the Colony.  The sites of  37 Indian villages, as I have noted, were protected from  38 pre-emption.  39 THE COURT:  I'm sorry, what paragraph is that in?  40 MR. GOLDIE:  That is in paragraph 27 on page 68 under tab 5b-19,  41 about four lines from the bottom of that paragraph.  42 THE COURT:  Yes, I have it.  43 MR. GOLDIE:  It says:  "nor sites of Indian villages."  44  45 Paragraph 20, on November 21, 1859 Douglas  46 forwarded an edited version of Downie's trip from the  47 mouth of the Skeena to Fort Fraser - substantially 27713  Submissions by Mr. Goldie  1 bisecting the claims area and in part going through  2 the boundaries of the Colony of British Columbia  3 although remaining within British territory.  The  4 object of Downie's enterprise is stated at the bottom  5 of page 73.  The last paragraph, after describing his  6 hardships, he says:  7  8 "The only thing that supported us was the grand  9 idea of the enterprise we were engaged in -  10 that of being the first party to explore the  11 route from the Pacific to Fraser's River, which  12 will one day connect the Atlantic to the  13 Pacific Ocean."  14  15 And going back two pages to page 71, and this is part  16 of Douglas' dispatch, he says:  17  18 "The valley of the Skeena is thus shown to be  19 an available avenue into the interior of  20 British Columbia, and will, I have no doubt,  21 soon become the most important outlet to the  22 upper districts of Fraser's River, which, from  23 the course of the river and the direction of  24 the coast, are brought in close proximity with  25 the sea.  26 As a means of supplying the distant mining  27 districts of British Columbia by a shorter and  28 cheaper route than the valley of Fraser's  29 River, its importance will soon be appreciated  30 and attract the attention of the mining and  31 commercial classes; and I believe that the day  32 is not far distant when steamers will be busily  33 plying on the waters of the two great inland  34 lakes."  35  36 THE COURT:  Which lake do you think they meant?  37 MR. GOLDIE:  I think one was Babine.  And the other I think was  38 Stuart.  39 THE COURT:  Okay.  40 MR. GOLDIE:  Now, I think it is in evidence that Downie erected  41 a stake at Hazelton claiming a pass for the railroad.  42 But I don't have that noted in my summary, my lord.  43 What I emphasize is that Douglas' purposes was to find  44 a shorter and cheaper route to the mining fields.  And  45 that route,  of course --  46 THE COURT:  Does it say what his route was?  47 MR. GOLDIE:  He went up the Skeena.  And then he started down 27714  Submissions by Mr. Goldie  1 what I think is the Bulkley.  But his guides took him,  2 I would say, to the northeast rather than following  3 the valley of the Bulkley down to Fort Fraser.  Took  4 him northeast over the pass down to -- I place it  5 virtually at the source of the Babine River, the  6 outlet of Babine Lake.  And then hence down Babine  7 Lake, and eventually to Fort St. James.  8 THE COURT:  Was he a surveyor?  9 MR. GOLDIE:  Downie was an —  10 THE COURT:  Adventurer?  11 MR. GOLDIE:  Adventurer who had gone up to -- his original  12 connection with Douglas was that he had gone up to the  13 Queen Charlottes on a -- with a body of prospectors to  14 look for the gold deposits that were there.  And then  15 Douglas had staked him, I put it that way, to make  16 further explorations.  If your lordship would turn  17 back to the first page of Douglas' dispatch of  18 November 21, he says:  19  20 "I have the honour to forward for your Grace's  21 information the copy of a report which I lately  22 received from Mr. William Downie, the same  23 enterprising person who last winter furnished a  24 report, also forwarded with my dispatch on  25 Jarvis Inlet.  26 The report now transmitted relates to the  27 unsuccessful attempt result of the attempt made  28 in the month of July last, by a body of miners  29 from this place, to explore Queen Charlotte's  30 Islands."  31  32 And he states that most of them --  33 THE COURT:  So this trip took place in 1860?  34 MR. GOLDIE:  1859, my lord.  35 THE COURT:  Is it?  36 MR. GOLDIE:  Yes.  37 THE COURT:  Oh, I'm sorry, yes.  38 MR. RUSH:  My lord, there is a diary of his trip.  3 9 THE COURT:  Yes.  40 MR. RUSH:  Downie kept it.  It is Exhibit 1174-1.  41 THE COURT:  Thank you.  1174?  42 MR. RUSH:  1174-1.  And it is in October of 1859 that he began  43 his recordings.  4 4 THE COURT:  Thank you.  45 MR. GOLDIE:  But to the point, my point is, my lord, that he  46 went there under semi-official or under official  47 sanction.  He did all of this at Douglas' request. 27715  Submissions by Mr. Goldie  1 MR. RUSH:  I would like to know what the evidence of that is, my  2 lord.  3 MR. GOLDIE:  Yes.  Continuing with the description, Mr. Downie  4 made arrangements to explore the course of the Skeena  5 River.  6  7 "The party commenced the ascent of the Skeena  8 in a canoe, which they managed to take on as  9 far as the Forks, a distance of 110 miles from  10 the sea.  The river ceases to be navigable at  11 that point, in consequence it is supposed of  12 falls and dangerous rapids; and they had to  13 leave the canoe, and to travel 55 miles by land  14 to the Indian village of 'Naas Glee,' a  15 celebrated native fishing station, from whence  16 the Skeena again becomes navigable to its  17 source in 'Babine Lake', 15 miles beyond 'Naas  18 Glee'."  19  20 That assumes that the Skeena is part of the Babine.  21 And then he describes --  22 THE COURT:  I wonder what Forks he means 110 miles from the sea.  23 MR. GOLDIE:  I think that's what would be called the Forks of  24 Gitanmaax where Hazelton is today.  25 THE COURT:  That has to be more than 110 miles.  Their  26 measurement wasn't that accurate, I suppose.  27 MR. GOLDIE:  He later says:  28  29 "The whole distance from Babine Lake to the sea  30 does not appear to exceed 180 miles."  31  32 That is pretty far out.  33 MR. RUSH:  Downie talks about the Village of Gitanmaax at the  34 Forks, my lord.  35 THE COURT:  Does he?  36 MR. GOLDIE:  There is some question about that.  But I will  37 leave Mr. Willms to deal with it.  38 MR. RUSH:  I don't think there is any question about it.  It is  39 in Exhibit 1174   40 MR. GOLDIE:  I know it is there.  I saw it long before it became  41 an exhibit.  The fact of the matter is that it is not  42 in the dispatch which was transmitted to the Colonial  43 Office.  There is maybe one other reference that I  44 wish to give your lordship at this point.  45 THE COURT:  Well, is there any reason to believe that the river  46 becomes -- I suppose the Bulkley ceases to become  47 navigable at that point, or does it? 27716  Submissions by Mr. Goldie  1 MR. GOLDIE:  Well, certainly the Bulkley would be because of the  2 canyon at Hagwilget.  3 MR. RUSH:  Not because of the canyon at Hagwilget.  But because  4 of the rock that fell into the canyon at Hagwilget.  5 THE COURT:  All right.  6 MR. GOLDIE:  I will accept my friend's precision.  The  7 difference is negligible.  But whatever it is, whether  8 the rock placed there by providence or otherwise, it  9 is, I think, conceded that it is not navigable beyond  10 the canyon.  The canyon is very shallow also certainly  11 at points.  12  13 My lord, I was going to give as the background to  14 Mr. Downie, Douglas' dispatch of March 25, 1859.  It  15 is not in the yellow binder, but it is in Exhibit  16 1142, tab 2, page 70.  And the dispatch is of March  17 25, 1859.  And he says in paragraph 6:  18  19 "I have for some time past had in the  2 0 Government employ a respectable Scotchman,  21 named Downie, one of the most successful miners  22 in California, and known all over that state as  23 Major Downie, the founder of the town of  24 Downieville.  He accompanied Mr. McKay last  25 summer in his overland journey from Harrison's  26 River to Howe's Sound.  He has since explored  27 Jarvis' Inlet, where he spent the greater part  28 of the winter, and lately made an excursion  29 with Indians into Desolation Sound, which he  30 has in part closely examined with reference to  31 its mineral character."  32  33 And then after describing Downie's views of the land  34 around the head of Jarvis Inlet, he says, and I quote:  35  36 "He is not therefore expensive to the Colony,  37 and may possibly, from his practical knowledge  38 of mining and enterprizing turn of mind, make  39 some valuable discovery, and will at least  40 contribute much information respecting the  41 mineral character of the country."  42  43 Now, my lord, that covered an enclosure of a  44 similar kind to the one that we have been looking at.  45 And, in my submission, the Downie explorations were at  46 the urging of Douglas.  47 MR. RUSH:  My lord, my only point was, and again I don't mean to 27717  Submissions by Mr. Goldie  1 interrupt my friend's submission here, but my  2 understanding is that there was no evidence that  3 Downie, at the time that he commenced his explorations  4 up the Skeena, was in the government employ where he  5 may well have been in March of 1859.  But in October  6 of 1859 there is no evidence to that effect.  7 THE COURT:  All right.  8 MR. GOLDIE:  Well, except that the exploration that was begun in  9 March was subsequently continued through to Queen  10 Charlotte Islands.  And that was certainly done at the  11 government's instigation.  12  13 Paragraph 21, enclosed with his dispatch of  14 January 12, 1860 was Douglas' Proclamation of January  15 4, 1860 which embodied his policy of settlement before  16 survey.  This, my lord, is the Calder III  17 Proclamation.  And it is forwarded under cover of his  18 dispatch of January 12th, the proclamation being dated  19 January 4th.  In paragraph 8 of his dispatch he  20 stated, and I quote:  21  22 "The Act distinctly reserves, for the benefit  23 of the Crown, all townsites, auriferous land,  24 Indian settlements, and public lands  25 whatsoever; the emigrant will, therefore, on  26 the one hand, enjoy the perfect freedom of  27 choice with respect to unappropriated land, as  28 well as the advantage, which is perhaps of more  29 real importance to him, of being allowed to  30 choose for himself and enter at once into  31 possession of land without expense or delay;  32 while the rights of the Crown are, on the other  33 hand, fully protected as the land will not be  34 alienated nor title granted until after payment  35 is received."  36  37 And then I direct your lordship's attention to the  38 document itself under tab 5b-21 where Mr. Douglas  39 states, and I quote:  40  41 "In my report on the affairs of the colony of  42 the British Columbia, of the number and date  43 noted in the margin, I did myself the honour of  44 laying before your Grace a statement of the  45 expense, inconvenience, uncertainty, and delays  46 to which emigrants were exposed in making  47 purchases of that land in that colony. 2771?  Submissions by Mr. Goldie  1 I also stated that the Government surveys could  2 not keep pace with the demand for public land,  3 and I might, moreover, have added that the  4 expense of moving surveying parties of the  5 Royal Engineers to the various points where  6 land is required for settlement and cultivation  7 would probably exceed the money value of the  8 land sold.  9 I at the same time informed your Grace that in  10 order to remove so pregnant a cause of  11 complaint, and to facilitate settlement and  12 promote the lawful acquisition of unsurveyed  13 agricultural land, pending the operation of the  14 public surveys, I had authorized the occupation  15 of land to the extent of 160 acres, with a  16 pre-emptive right, by any person immediately  17 occupying and improving such land and agreeing  18 to pay the Government price, not exceeding 10  19 shillings an acre, whenever the land is  20 surveyed and title granted."  21  22 Now, I ask your Lordship the rhetorical question:  23 How could this be a recognition of any aboriginal  24 interest outside the reservation of Indian  25 settlements?  26  27 And I go down to paragraph 7 of the dispatch:  28  29 "The object of the measure is solely to  30 encourage and induce the settlement of the  31 company; occupation is, therefore, made the  32 test of title, and no pre-emption title can be  33 perfected without a compliance with that  34 imperative condition."  35  36 The reservations of townsites, auriferous land, Indian  37 settlement and any land in which the public rights  38 were involved avoided any conflict over occupation.  39 It was truly to be unoccupied land.  And in my  40 submission, and I am back at my summary, this negates  41 general Indian ownership and jurisdiction in the lands  42 comprising Indian settlements as withdrawal of these  43 lands (identified in the proclamation as Indian  44 reserves or settlement) is for the benefit of the  45 Crown.  The Indian interest is subsumed in that of the  46 Crown.  As earlier stated, this proclamation received  47 royal approval after a thorough discussion in London. 27719  Submissions by Mr. Goldie  1 And I will deal with that when we come to that in  2 a few minutes.  At tab 3, page 99 of Exhibit 1142, and  3 under tab 22, the Duke of New Castle transmitted to  4 Douglas for his comments an Imperial statute of August  5 1859 which amended the Acts of 1803 and 1821 insofar  6 as they dealt with criminal jurisdiction in Indian  7 territory.  The Act contemplated use of the Courts of  8 the Colony of British Columbia in certain  9 circumstances.  Douglas' reply is found, and it will  10 be found, my lord, under the same tab.  First, I  11 should note that the Imperial Act itself is the first  12 document under tab 3b-22.  And in section 1, after a  13 long preamble, it provides that the justices who may  14 be appointed under the Acts of 1803, 1821 may send  15 accused for trial to the Courts of the Colony of  16 British Columbia.  Then section 2 -- I need not refer  17 to that, my lord.  18  19 Then I say at paragraph 23, returning to the Blue  20 Books.  Now, my lord, I keep using that term because  21 it is the term that is used in the lower courts in the  22 Deadman's Island case.  Although, technically  23 speaking, I am informed that Blue Books were  24 customarily referred to books of form which the  25 colonies were to fill out and return to London each  26 year.  27  28 But anyway, we are talking here about Exhibit  29 1142, Papers Relating to British Columbia.  At tab 4,  30 on page 2, there is found Douglas' dispatch of  31 February 18, 1860 transmitting with his favourable  32 recommendation the request of Bishop Cridge for a  33 report to be established for Mr. Duncan's missionary  34 settlement - to become Metlakatla.  The idea of a  35 reserve for a settlement to be established other than  36 for the protection of the site of an existing village  37 is seen to have originated with Douglas.  His view was  38 that all land reserved for Indians should be  39 inalienable and held by the Governor in trust.  Again  40 the concepts stated by Douglas are wholly inconsistent  41 with a general sense of aboriginal title extending  42 across the Colony.  The proposal was approved.  I need  43 not enlarge upon that, my lord.  The dispatch from  44 Douglas is found to which is appended two letters from  45 Bishop Cridge, one to the Governor and the other to  46 Mr. Duncan.  And Mr. Duncan's letter in which he says:  47 27720  Submissions by Mr. Goldie  1 "I duly received, by the favour of Captain Dodd  2 of the Honourable Hudson's Bay Company, your  3 kind letter of the 11th ult. tendering me the  4 sympathy and good wishes of his Excellency the  5 Governor of British Columbia in reference to my  6 work as a Missionary among the Chimsyan Indians  7 of this place.  Also expressing his  8 Excellency's desire that I would report to him  9 from time to time the progress of the mission,  10 and make suggestions of any measures which I  11 deem would be likely to prove beneficial."  12  13 and then he picks up the suggestion that there might  14 be a place of refuge for his Indians who are -- who  15 wishes to get away from the influence of others.  At  16 the top of page 4 he says:  17  18 "There is no lack, I am happy to state, of  19 suitable spots of land.  One place the Indians  20 frequently speak of as offering many advantages  21 for a future home.  It is about 30 miles south  22 of this place, so far as I can ascertain."  23  24 That and that gave rise to Douglas' suggestion to New  25 Castle that a reservation would be made for religous  26 purposes at Metlakatla.  27  28 Now, in a series of dispatches commencing with one  29 dated October 9, 1860, Douglas reported on his  30 progress through the Colony in the course of which he  31 stated to gatherings of Indian peoples the policy of  32 the Crown with respect to them.  These gatherings took  33 place at Cayoosh, Lytton and at various places between  34 Lytton and Rock Creek.  What Douglas said on these  35 occasions is succintly set out at paragraph 35 of his  36 October 9, 1860 dispatch.  The collection of these  37 documents, my lord, is found under the tab 5b-24.  And  38 he has explained at some length his progress through  39 the colony.  He comments in paragraph 20 on an Indian  40 reserve near Pemberton.  And then at paragraph 35 he  41 says:  42  43 "I had an opportunity of communicating  44 personally with the native Indians tribes, who  45 assembled in great numbers at Cayoosh during my  46 stay. "  47 27721  Submissions by Mr. Goldie  1 I ask your lordship to notice "in great numbers", and  2 the plural of the word "tribes".  3  4 "I made them clearly understand that Her  5 Majesty's Government felt deeply interested in  6 their welfare, and had sent instructions that  7 they should be treated in all respects as Her  8 Majesty's other subjects; and that the local  9 magistrates would attend to their complaints,  10 and guard them from wrong, provided they  11 abandoned their own barbarous modes of  12 retaliation, and appealed in all cases to the  13 laws for relief and protection.  I also  14 forcibly impressed upon their minds that the  15 same laws would not fail to punish offences  16 committed by them against the persons or  17 property of others.  18 I also explained to them that the  19 magistrates had instructions to stake out, and  20 reserve for their use and benefit, all their  21 occupied village sites and cultivated fields  22 and as much land in the vicinity of each as  23 they could till, or was required for their  24 support; and that they might freely exercise  25 and enjoy the rights of fishing the lakes and  26 rivers, and of hunting over all unoccupied  27 Crown lands in the colony; and that on their  28 becoming registered free miners they might dig  29 and search for gold, and hold mining claims on  30 the same terms precisely as other miners: in  31 short, I strove to make them conscious that  32 they were recognized members of the  33 commonwealth, and that by good conduct they  34 would acquire a certain status and become  35 respectable members of society.  36 They were delighted with the idea, and  37 expressed their gratitude in the warmest terms,  38 assuring me of their boundless devotion and  39 attachment to Her Majesty's person and crown,  40 and of their readiness to take up arms at any  41 moment in defence of Her Majesty's dominion and  42 rights."  43  44 And then paragraph 37:  45  46 "Lytton was the next stage in my progress.  47 There is a good horse-way from Cayoosh, but 27722  Submissions by Mr. Goldie  1 travelling by the river being more expeditious,  2 I chose that alternative, and made the run of  3 70 miles in five and a half hours.  The stream  4 is swift, and a number of dangerous rapids  5 render it in that part impracticable in high  6 water and unsafe in all seasons."  7  8 And then after referring to Stipendiary Magistrate at  9 Lytton:  10  11 "I granted the sum of 100 pounds at the  12 petition of the inhabitants in aid of a  13 horse-way to facilitate the transport of goods  14 to Alexandria and Quesnel River",  15  16 and so on.  And he comes down to paragraph 44.  17  18 "The Indians mustered in great force during my  19 stay at Lytton.  My communications with them  20 were to the same effect as to the native tribes  21 who assembled at Cayoosh, and their gratitude,  22 loyalty and devotion were expressed in terms  23 equally warm and earnest."  24  25 I should also make reference to paragraph 34:  26  27 "The assized were opened by the Judge of  28 British Columbia during my stay at Cayoosh, for  29 the trial of two Indians charged with having  30 murdered two Chinese miners.  The facts were  31 established on the admission of the accused  32 themselves; but, it appearing from the evidence  33 that the deceased were the aggressors, and had  34 been slain without prepense, in a casual  35 affray, arising out of an indecent assault  36 committed on the wife of one of the Indians,  37 the jury returned a verdict of "manslaughter"  38 on one of the prisoners and found the other  39 "not guilty"."  40  41 The event was obviously one of state.  My lord, there  42 are several things -- returning to my summary I have  43 set out virtually the whole of paragraph 35.  And I  44 ask your lordship to note these items in what Douglas'  45 exchange with the native tribes in large numbers at  46 both Lillooet or Cayoosh and Lytton.  And about 12  47 lines down from the bottom of paragraph 35, after 27723  Submissions by Mr. Goldie  1 reciting the instructions of Her Majesty's Government,  2 and the local magistrates would attend to their  3 complaints and guard them from wrong, there is the  4 proviso that "they abandoned their own barbarous modes  5 of retaliation and appeal in all cases for the laws of  6 relief and protection."  That is number 1.  7 Number 2, he "impressed upon their minds that the same  8 laws would not fail to punish offences committed by  9 them against the persons or property of others".  So  10 he has stated, if I may put it this way, of their  11 equality before the law both in respect of victims and  12 aggressors.  And they had a practical illustration of  13 that in the trial that is referred to in paragraph 34.  14  15 Then he goes on to say:  16  17 "I also explained to them that the magistrates  18 had instructions to stake out and reserve for  19 their use and benefit all their occupied  20 village sites, et cetera."  21  22 So there he was making, in my submission, a  23 declaration of Imperial policy.  And in my submission,  24 it was so understood when he was assured of the  25 devotion and attachment to Her Majesty's person and  26 crown.  "They might freely exercise and enjoy the  27 rights of fishing the rivers and lakes and of hunting  28 over all unoccupied crown lands."  Now, I say that  29 that is a non-exclusive use.  It is a use shared with  30 others.  And, of course, the word "unoccupied"  31 implies that the Crown could authorize legal  32 occupation by others as, indeed, the Proclamation of  33 January 4th, 1860 had done.  34  35 And finally, "that on their becoming registered  36 free miners they might dig and search for gold."  That  37 is wholly inconsistent with an aboriginal interest in  38 the resources.  They were told that they could dig for  39 gold if they took out a free miner's license.  40  41 Now, in a subsequent dispatch -- this is paragraph  42 25, my lord.  In a subsequent dispatch of October 25,  43 1860, Douglas expressly addressed the difference  44 between the Imperial policy in British Columbia with  45 that prevailing in the adjacent American territories  46 when he set down what he said to gatherings of Indians  47 he met between Lytton and Rock Creek.  Now, I should 27724  Submissions by Mr. Goldie  1 refer to that.  I'm referring to his dispatch of  2 October 25th.  And he is going from Lytton to Rock  3 Creek.  Now, my friend and I engaged in a discussion  4 as to where Rock Creek was.  I can, I think, satisfy  5 your lordship as to where it is.  But you will note  6 that his estimate of the distance was 228 miles from  7 Lytton.  And in that distance he said in paragraph 3:  8  9 "With the exception of the miners assembled on  10 Thompson River at Rock Creek and Shimilkomeen,  11 the part of British Columbia through which my  12 route lay, is still exclusively occupied by the  13 native Indian tribes, a race of bold and active  14 hunters, forming, when mustered in force on  15 their hardy native horses, and imposing array.  16 I fell in with detachments at different points  17 of the route, where they had assembled to offer  18 a rude but cordial welcome."  19  20 In my submission, my lord, this was clearly the  21 progress of the embodiment of the Crown, and it was  22 seen as such.  Now, I have a map which is a  23 publication of the Department of Indian Mines and  24 Resources.  No, Energy Mines and Resources Canada,  25 entitled Canada Indian and Inuik British Columbia.  I  26 have provided a copy for my friend before I make  27 reference to it, my lord.  If I may hand it up and  28 direct your lordship's attention to a green circle on  29 the 119th --  30 THE COURT:  It will be easier if I come down.  31 MR. GOLDIE:  — degree of latitude.  32 THE COURT:  Yes.  33 THE COURT:  It is on the Cattle River?  34 MR. GOLDIE:  Does your lordship see it?  35 THE COURT:  Yes.  But that doesn't say Rock Creek, does it?  36 MR. GOLDIE:  Yes.  37 THE COURT:  Does it?  38 MR. GOLDIE:  The words "Rock Creek".  3 9 THE COURT:  Greenwood.  40 MR. GOLDIE:  And then just immediately to the left and below is  41 Rock Creek.  42 THE COURT:  Yes.  Well, I know there is a Rock Creek there,  43 always has been.  44 MR. GOLDIE:  Well, it is the one that —  45 MR. RUSH:  I don't wish to pursue this interesting subject, my  46 lord.  I am sure that Rock Creek will allude us for  47 some time.  But 3 says: 27725  Submissions by Mr. Goldie  1 "With the exception of the miners assembled  2 on Thompson River at Rock Creek and  3 Shimilkomeen."  4  5 MR. GOLDIE:  Yes.  6 MR. RUSH:  I take it from that that the Rock Creek that he is  7 referring to is somewhere on the Thompson River.  8 THE COURT:  Well, it could read that way, or it could be that he  9 was listing three places.  And if he was on a large  10 circle, he would go to Rock Creek, Shimilkomeen.  11 MR. RUSH:  No.  He says at Rock Creek and —  12 THE COURT: I was reading that as if there would be a comma after  13 Thompson River.  I agree it is certainly capable of  14 that construction.  15 MR. GOLDIE:  It is pretty hard to find a Rock Creek in the  16 Thompson River that is 228 miles from Lytton.  17 THE COURT:  I am not sure if it is 228 miles from Lytton to the  18 Rock Creek I know or not.  It might be.  19 MR. GOLDIE:  He went cross country.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  And he was on horseback which is not possibly the  22 best way of estimating distance.  But the construction  23 that my friend suggests is, with respect,  24 geographiccally impossible.  25 THE COURT:  Well, it is not if there is a Rock Creek on Thompson  2 6 River flowing into the Thompson River.  27 MR. GOLDIE:  I don't — I am not aware of any.  28 THE COURT:  Nor am I.  But that doesn't mean there wasn't a Rock  29 Creek there at the time.  I am trying to think how he  30 would get down to Rock Creek from Thompson River.  31 MR. GOLDIE:  I think it will being evident that he went from  32 Lytton  to Shimilkomeen to a new discovery at Rock  33 Creek which was just across the border.  34 THE COURT:  And then north to the Thompson River?  35 MR. GOLDIE:  No.  I think he is referring there to the miners  36 that he has already talked to at Lytton.  And the part  37 of British Columbia through which his route lay,  38 namely from Lytton to Rock Creek, was with the  39 exception of the miners at Lytton, at Rock Creek and  40 Shimilkomeen, wholly occupied by the native Indian  41 tribes.  And the --  42 THE COURT:  Well, it is a fascinating question, but perhaps this  43 case won't turn on it.  44 MR. GOLDIE:  Well, it is important, in my submission, for your  45 lordship to have the sense that he was traversing  46 virtually the whole of the colony as it was then  47 occupied by miners or being utilized by miners.  I am 27726  Submissions by Mr. Goldie  1 going to refer to what was done at Rock Creek in a few  2 minutes.  But he is here --  3 THE COURT:  If you do that, you may get me to tell you what my  4 uncle and I used to do when we were mining Rock Creek.  5 MR. GOLDIE:  This will be an exhibit in this case.  My point is  6 that he was talking to groups of Indians that were  7 waiting for him or that he met with or fell in with at  8 different points on the route.  And he said:  9  10 "And I received them with every mark of respect  11 and kindness, entered freely into conversation  12 with the chiefs, assuring them of the warm  13 regard of Her Majesty's Government, and leading  14 them into the discussion of their own affairs  15 in order to discovery if they entertained any  16 real or fancied grievance which might lead to  17 disaffection, or induce them to make reprisals  18 on the white settlers.  19 There was one subject which especially  20 pre-occupied their minds, as I discovered by  21 the frequent allusions they made to it, namely,  22 the abject condition to which the cognate  23 native tribes of Oregon have been reduced by  24 the American system of removing whole tribes  25 from their native homes into distant reserves,  26 where they are compelled to stay, and denied  27 the enjoyment of that natural freedom and  28 liberty of action without which existence  29 becomes intolerable.  They evidently looked  30 forward with dread to their own future  31 condition, fearing lest the same wretched fate  32 awaiting the natives of British Columbia.  33 I succeeded in disabusing their minds of those  34 false impressions by fully explaining the views  35 of Her Majesty's Government, and repeating in  36 substance what I have in a former part of this  37 report informed your Grace was said on the same  38 subject to the assembled tribes of Cayoosh and  39 Lytton.  40 Those communications had the effect of  41 reassuring their minds and eliciting assurances  42 of their fidelity and attachment.  43 An appalling Indian outrage committed in the  44 neighbouring State of Oregon, as related with  45 its attendant horrors in a slip enclosed  46 herewith from the 'Vancouver Chronicle' will  47 show better than comment the impolicy of the 27727  Submissions by Mr. Goldie  1 American system, and how careful we should be  2 in guarding against the contagion of evil  3 example, by treating the natives with justice,  4 and removing when necessary, every cause of  5 distrust as to the ultimate views and policy of  6 Her Majesty's Government with respect to them."  7  8 And then he says:  9  10 "The country situated by between Lytton and  11 Rock Creek is highly attractive, and no other  12 part of British Columbia, nor of the United  13 States territory north of ColumbiaRiver, offers  14 so many inducements in point of soil and  15 climate  to the enterprising emigrant.  16 Its distance from the coast, and difficulties  17 of access have hitherto almost excluded it from  18 intercourse; but as those impediments are  19 removed by the formation of roads, now in rapid  20 progress, from the navigable points of Fraser  21 River, it will no doubt become a centre of  22 population and the seat of flourishing  23 settlements."  24  25 And then he says:  26  27 "I will not attempt to describe its physical  28 aspect; but to give a general idea in few  29 words, I will observe that it forms an elevated  30 table land of great extent, sometimes rising  31 into hills, and is traversed by many noble  32 valleys, and watered by numberless streams  33 flowing into its great arteries the Thompson,  34 Shimilkomeen, and the Okanagon Rivers.   There  35 are many varieties of soils, much arable land,  36 and a great deal that is fit only for pasture;  37 but as a remark generally applicable, I may  38 observe that the valleys contain a large extent  39 of good open land; while the steeply swelling  40 hills are mostly covered with treees fromed  41 into groups, or growing with park-like  42 regularity, widely apart and free from brush or  43 underwood."  44  45 Climate is good.  46  47 "The lakes, except the Okanagon, and all the 2772?  Submissions by Mr. Goldie  1 rivers, freeze in winter."  2  3 Your lordship will perceive that he has got as far as  4 the Okanagon.  5 THE COURT:  He wasn't there in the winters that I was there,  6 either.  7 MR. GOLDIE:  He says they freeze in the winter, he doesn't say  8 how hard.  9  10 "And there were occasional falls of snow, but  11 it seldom lies in the valleys more than a few  12 weeks at time.  The fact that horses and  13 domestic cattle are left out all winter to  14 shift for themselves, and generally thrive  15 without any care on the range of the country,  16 is probably, however, a better criterion of the  17 temperature than any other circumstance that  18 can be adduced."  19  20 And so on and so forth.  21  22 "After five days' travel in a fine open country  23 we reached the main branch of the Shimilkomeen  24 River a, few miles below the lately discovered  25 gold diggings, where 80 or 100 miners were at  26 work, all seemingly in high spirits, pleased  27 with the country, and elated with their  28 prospects and earnings.  Many of them were  29 engaged in putting up log huts, and making  30 other preparations, as they intend to witner  31 there if they succeed in having supplies of  32 flour and other necessaris brought from Hope  33 before the mountains become impassable from  34 snow."  35  36 And then he says;  37  38 "That circumstance brought the vital subject of  39 roads again forcibly to mind.  A road party  40 working out from Hope, had, I knew, nearly got  41 the length of the summit ridge, about 36 miles  42 distant from our camp, and could means be found  43 of cutting throught to the point, and  44 connecting Hope with Shimilkomeen by a  45 practicable trail before the advent of winter,  46 I felt assured that an important object for the  47 country would be gained, and I resolved to make 27729  Submissions by Mr. Goldie  1 the attempt.  Some Indian hunters were soon  2 found who undertook to conduct a party to the  3 desired point, by a better and less circuitous  4 line than the present almost impassable trail;  5 and the subject was immediately brought before  6 the miners, who, seeing the object of the  7 measure, at once volunteered in force sufficent  8 for the work, and early the following morning a  9 party properly equipped with tools, provisions,  10 and transport, was dispatched with  11 insstructions to opena path which would connect  12 with the horse-way from Hope.  13 Leaving Mr. Good and one of my attendants at  14 this point to urge on the work, and to inquire  15 into the condition of the miners, I pushed on  16 without further delay with my three other  17 attendants in light marching order towards Rock  18 Creek.  On the way I fell in with Mr. Cox, the  19 Revenue Officer of the southern frontier, who  20 joined my party, and after three days travel we  21 arrived at the town known as Rock Creek,  22 situated at the junction of that stream and the  23 Colvile River."  24  25 I think we are on the --  2 6    THE COURT:  I think that's it.  27    MR. GOLDIE:  28  29 "The town contains 15 houses, and several more  30 in progress, chiefly shops and buildings, et  31 cetera.  32 Nearly 500 miners are congregated about Rock  33 Creek and another tributary of the Colvile,  34 about 10 miles below that point.  35 The Rock Creek diggings were discovered last  36 October by Mr. Adam Beam, a native of Canada,  37 as he was travelling from Colvile to  38 Shimilkomeen; he again visited the spot in the  39 summer, but did not begin to work until the 7th  40 of May:  the following is a statement of his  41 daily earnings with a cradle for the first few  42 days afterwards."  43  44 And he then says:  45  46 "I met the assembled population of the place  47 the day after my arrival, and addressed them on 27730  Submissions by Mr. Goldie  1 various subjects.  I did not attempt to conceal  2 that the object of my visit to Rock Creek was  3 to inqurie into their conduct, and to suppress  4 the disorders which were reported to be  5 prevalent in that part of the country; and I  6 assured them that I was agreeably surprised to  7 find that those reports were unfounded.  After  8 that merited compliment, I proceeded to explain  9 the views of Her Majesty's Government, the  10 general mining regulations of the Colony,  11 especially directing their attention to that  12 section of the Act which provides for the  13 establishment of mining boards, with powers to  14 frame byelaws adapted to the circumstances of  15 each district; or, in other words, investing  16 the miners themselves with fill powers to amend  17 their own laws.  I further pointed out the  18 nature and object of the Pre-emption Law,  19 passed expressly for the encouragement of  20 settlers; and demonstrated the fact that the  21 whole policy of Her Majesty's Government was  22 considered liberal in the extreme.  I then  23 announced the appointment of Mr. Cox as Justice  24 of the Peace and Assistant Gold Commissioner  25 for the district of Rock Creek; and that he was  26 duly authorized to punish offences, to attend  27 to the maintenance of civil order, to the  28 registration of mining claims, and to receive  29 all dues payable to Her Majesty's Government.  30 I concluded by exhorting them, one and all, as  31 they valued and looked to the laws of the land  32 for protection, to aid and assist them on all  33 occasions, not only as a duty incumbent on good  34 subjects, but as being also their manifest  35 interest; for, I continued, if the laws are not  36 enforced there can be no security.  And without  37 security there can be no prosperity; therefore,  38 I went on to say, as you hope for redress  39 yourselves when individually suffering wrong,  40 you must be prepared to rally round the  41 magistrate charged with the execution of the  42 laws.  43 The meeting ended pleasantly, and the  44 measures announced appeared to give general  45 satisfaction.  46 Mr. Cox then proceeded to the less pleasant  47 task of levvying the regular customs charge on 27731  Submissions by Mr. Goldie  1 all goods found at Rock Creek which had not  2 been entered for importation; such goods being  3 really contraband and legally forfeited, might  4 have been seized for the benefit of the Crown,  5 had it not been considered inexpedient in the  6 circumstances to inflict the extreme penalty of  7 the law."  8  9 And, my lord, the point of all of this is that in a  10 community very close to the U.S. border and populated  11 almost entirely by U.S. miners who had come up from  12 the diggings below the border, Douglas introduced  13 British law.  He introduced the resident magistrate  14 and the collector of customs, the Assistance  15 Commissioner.  And that carried with it, my lord, the  16 duties of the Stipendiary Magistrate to lay out  17 reserves and protect Indian settlement as required  18 under the pre-emption law to which Douglas referred.  19  20 Now, the enclosure to which reference was made is  21 from the Vancouver Chronicle, that would be Vancouver  22 on the Columbia River.  And the date line is October  23 9, 1860, again a very temporary account.  24  25 "Forty-five Immigrants murdered.  26 H. Schreiber has just arrived at the Dalles  27 with news of the massacre by the Snake Indians  28 of an entire immigrant train, consisting of 46  29 persons, 19 of whom were men, the balance women  30 and children.  The party was first attacked  31 about 50 miles this side of Salmon Falls, on  32 the 9th of September.  This attack lasted one  33 hour.  The Indians then withdrew and allowed  34 the train to proceed five miles, when they  35 again attack.  The fight lasted two days and  36 one night."  37  38 It is evident that what had been reported from 1847  39 was still an unfortunate feature of the events on the  40 other side of the line it is to such events that  41 Douglas stated exhibited extreme impolicy on the part  42 of the Americans.  43 THE COURT:  Is it convenient to adjourn, Mr. Goldie?  44 MR. GOLDIE:  Yes, my lord.  45 THE COURT:  All right.  Just a minute, please.  All right.  9:30  4 6 tomorrow morning?  47    MR. GOLDIE:  Yes, my lord. 27732  Submissions by Mr. Goldie  1 THE COURT:  And then we will go until 4:30 or 5 o'clock, and  2 then two hours in the evening?  3 MR. GOLDIE:  Yes.  That's the present arrangement, my lord.  4 THE COURT:  All right.  Thank you.  5 THE REGISTRAR:  Order in court.  Court stands adjourned until  6 9:30 tomorrow.  7 (PROCEEDINGS ADJOURNED at 4:35)  8  9 I hereby certify the foregoing to  10 be a true and accurate transcript  11 of the proceedings transcribed to  12 the best of my skill and ability.  13  14  15  16  17    18 Lisa Franko,  19 Official Reporter,  2 0 UNITED REPORTING SERVICE LTD.  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

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