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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-05] British Columbia. Supreme Court Apr 5, 1990

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 23801  Submissions by Mr. Jackson  1 APRIL 5, 1990  2 SMITHERS, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 5th day of April, 1990.  In the matter  6 of Delgamuukw versus Her Majesty The Queen at bar, my  7 lord.  8 THE COURT:  Ms. Thompson, I didn't bring my bench book.  9 Yes, Mr. Jackson.  10 MR. JACKSON:  Yes, my lord.  We left last night, my lord, with  11 page 173.  And the next section of our submissions is  12 under the general head of "The Genesis of the Royal  13 Proclamation of 1763".  14 And as Your Lordship will no doubt have realized,  15 it is the plaintiffs' submission that the genesis of  16 the Royal Proclamation in its fullest sense goes back  17 into the Covenant Chain treaties, and goes back into  18 the whole pattern of treaty making consistent with the  19 principles of recognition of aboriginal rights, and  20 the concept that those rights can only be acquired,  21 extinguished with the consent of the indigenous  22 aboriginal peoples.  This section, however, dealing  23 with the period from 1760 to 1763, and in that sense  24 is the most approximate period leading up to the  25 signing of the Proclamation.  So I will pick up the  26 argument at page 173, my lord.  27 Returning to the period preceding the promulgation  28 of the Royal Proclamation, with the ending of the  29 military struggle between France and England concerns  30 for the protection of the proprietary rights of the  31 Indians, remained a central and abiding concern of the  32 Indian-British diplomacy.  33 Over to page 174.  Even before the end of the war,  34 Indian Nations in the Ohio Valley and on the New York  35 and northern Pennsylvania frontier had voiced their  36 concerns relating to the future of their lands.  In  37 February 1760 several chiefs of the Canajoharie  38 Indians asked Johnson whether, after the war, they  39 would have any lands left at all.  They feared that  40 once hostilities ceased completely, agricultural  41 settlement of their hunting lands would continue at  42 the same rapacious level as in pre-war time.  Johnson  43 assured them if any illegal encroachments occurred, he  44 would investigate them personally.  Then in early  45 March of 1760 the Lower Mohawks met with Johnson,  46 complaining that several Albany residents had told  47 them the Indians of that region no longer owned any of 23802  Submissions by Mr. Jackson  1 the lands they occupied.  The Superintendent tried to  2 appease the Mohawk delegation by stating that the  3 lands would be protected by the Crown, and that the  4 Kings would never allow any injustice to befall his  5 ancient allies, the Six Nations.  6 Over to page 175, my lord.  Although William  7 Johnson had good reason to be optimistic about the  8 general strengthening of British-Indian friendship  9 amongst the Six Nations, Indians living in the area  10 surrounding the old French outposts north of the Ohio  11 and west of the Great Lakes required greater  12 demonstration of British commitment to protection of  13 their land rights and continuation of trade.  To this  14 end Johnson determined to attend the Pan-Tribal  15 meeting to be held in Detroit the following summer in  16 order to explain long-term British intentions for the  17 northwest.  18 Over to page 176.  19 MR. GOLDIE:  Before my friend goes on, I take it he's not  20 abandoning the parts that he is skipping.  21 MR. JACKSON:  No, my lord.  I am seeking to give Your Lordship a  22 continuous highlighting, as it were, of the written  23 submissions.  2 4    THE COURT: Yes.  25 MR. GOLDIE:  That's what I assume, and am I correct in my  26 understanding that the facts which are stated are  27 found in Stagg?  28 MR. JACKSON:  Yes, my lord, these references are all references  29 to Dr. Stagg's material.  3 0    THE COURT:  Thank you.  31 MR. JACKSON:  Over, my lord, to page 176.  In September, 1761  32 Johnson reached Detroit and met with the  33 representatives of Thirteen Indian Nations from the  34 surrounding area.  Johnson, in his opening speech,  35 adopted the framework of diplomatic discourse which  36 now characterized Covenant Chain negotiations,  37 expresses his desire:  38  39 "To renew in His Majesty's name the friendship  40 formerly subsisting between you and us, to give  41 assurances of his clemency and favour to all  42 such nations of Indians as are desirous to come  43 under his Royal Protection."  44  45 And on the specific issues, my lord, at page 177  46 of the protection of Indian land rights, William  47 Johnson stated: 23803  Submissions by Mr. Jackson  1  2 "I can with confidence assure you that it is not  3 at present, neither has it been His Majesty's  4 intentions to deprive any nation of Indians of  5 their just property by taking possession of any  6 lands to which they have a lawful claim."  7  8 And you will note, my lord, the generality with  9 which the Superintendent as an Imperial representative  10 represented the Crown's intentions, in our  11 submissions, in a way consistent with the previous two  12 centuries of conduct of the Crown.  13 MR. GOLDIE:  Maybe my friend can assist me further.  The  14 following clause which states "farther than for the  15 better promoting of an extensive commerce", is that  16 word "farther" or "further"?  17 MR. JACKSON:  I can check from the exhibit, my lord.  I'm not  18 sure.  I will have to check from the original.  19 Perhaps my friend can do that.  20 Page 177, my lord, at the bottom.  21 The most important outcome of Johnson's conference  22 at Detroit was the recognition by both British  23 officials and the Indian nation of the continuing  24 importance of land and trade in the post-war period.  25 While Johnson had always recognized the essential  26 place these matters held in all British-Indian  27 diplomacy, the Detroit proceedings reinforced the  28 urgency of formulating a comprehensive British-Indian  29 policy if peace were to be maintained.  30 Johnson, in a series of letters to the Lords of  31 Trade in 1759 and 1760, had already set out what he  32 saw as the need for an all encompassing and  33 enforceable policy to govern Indian affairs,  34 particularly one which redressed or satisfied  35 justifiable Indian land grievances.  In 1759,  36 following the conference at Canajohory, he recommended  37 that the Indians ought to be redressed or satisfied in  38 all their reasonable and well founded complaints of  39 enormous and unrighteously obtained patents for their  40 lands.  To accomplish their latter goal, he  41 recommended that there should be treaties of  42 limitations with the respective provinces agreed upon,  43 and religiously observed, with regard to the bounds of  44 our settlement towards the Indian country.  The  45 Superintendent pointed to the agreements made between  46 the Indians and the Provinces of Pennsylvania and New  47 Jersey at Easton in 1758 as precedents for the types 23804  Submissions by Mr. Jackson  1 of treaties needed to alleviate tensions between  2 Indians and colonists over rights to frontier lands.  3 A series of events which occurred during 1761-62  4 reinforced Johnson's apprehension about the lack of  5 Crown policy for dealing with problems of Indian  6 lands.  The first of these concerned continued  7 military presence, the English military presence on  8 the western and northern frontiers.  9 Later in the paragraph.  General Amherst, in  10 particular, somewhat cavalier disregards for Indian  11 land rights reinforced this apprehension.  General  12 Amherst took the position that military imperatives,  13 such as the need for land upon which to build a new  14 fort, could override Indian objections to the use of  15 their land.  16 Bottom of page 179.  The second area of concern  17 was the encroachment of settlers on the western  18 frontiers of New York, Connecticut and Pennsylvania.  19 By February of 1761 British-Indian relations became so  20 tense over this issue on the northern New York  21 frontier that Johnson felt compelled to write to the  22 acting governor of New York, Cadwaller Colden.  And in  23 the letter Johnson stated that he was "obliged to take  24 notice of, and see justice done to the Indians ...  25 concerning the sale of their lands ..."  Johnson,  26 after reciting the continuing abuse and unfair means  27 used for obtaining deeds for Indian lands, and the  28 fact that "nothing can tend more to alienate their  29 affection and attachment from His Majesty's interest,  30 than the pressing them to dispose of their lands",  31 went on to:  32  33 "Entreat you not to pass patents to any lands,  34 that were not given, or sold with the consents  35 of their whole Castle".  36  37 Remember, My Lord, Castle is a reference to the  38 community village.  39 In the early summer of 1761, New York surveyors  40 arrived on Upper Hudson to measure out land for a  41 settlement on the west bank of the river.  Several of  42 the Mohawk chiefs complained bitterly to Johnson that  43 the Upper Hudson was among the most productive of the  44 hunting areas, and that they would not tolerate no  45 further encroachments in the region.  46 Over to page 181.  In Pennsylvania, immigrants  47 from several British colonies, especially Connecticut, 23805  Submissions by Mr. Jackson  1 began moving onto lands in dispute between the  2 Pennsylvania proprietary and the Susquehanna Delaware.  3 Faced with the protests of Indians who hunted in the  4 area, Pennsylvania Governor James Hamilton issued a  5 Proclamation forbiding any further trespassing on  6 lands which had not been purchased from the Indians.  7 The colonizing of the region continued, however,  8 with the Connecticut based Susquehanna Land Company  9 openly encouraging more and more people to move  10 westward into the Wyoming Valley.  You recall, my  11 lord, it was the Wyoming Valley in which Chief  12 Hendrick was particularly concerned that in fact there  13 be no westward movement into the heartland of the  14 hunting lands of Delaware, the Six Nations.  In  15 Virginia similar urging to prospective colonists to  16 settle lands west of the Susquehanna came from the  17 Ohio Company.  Although at the Treaty of Easton in  18 1758 there had been agreement by the participating  19 colonial authorities not to allow settlement west of  20 the Alleghenies, and particular into Susquehanna,  21 Virginia and Maryland took the position that they were  22 not bound by the treaty.  23 Colonel Bouquet, then commanding at Fort Pitt,  24 believed that the consequences of any further  25 unauthorized British settlement would be so disastrous  26 to British-Indian relations that all settlers  27 migration to lands west of the Alleghenies should be  28 stopped at once.  And to protect Indian rights to the  29 lands, Bouquet proposed that notices be issued by the  30 governors of Pennsylvania, Maryland and Virginia to  31 this effect.  When no action appeared to be  32 forthcoming from the three colonies, Bouquet himself  33 issued a Proclamation in October of 1761 to declare  34 that all the country west of the Alleghenies was  35 reserved exclusively for the Indians.  He incorporated  36 in the document the terms of the Treaty of Easton.  A  37 Proclamation line to distinguish between Indian  38 country and settlement territories was to follow the  39 crest of the mountains, and no British subject was to  40 hunt or settle west of the line without express  41 permission of either the governing chief or the  42 governors of the respective provinces.  43 This Proclamation, my lord, marked the first  44 unambiguous prohibition of settlement west of the  45 Alleghenies to be issued by a representative of the  46 Crown.  Although, as we have pointed out, the  47 Allegheny line was one which had been the subject of 23806  Submissions by Mr. Jackson  1 extensive negotiations between the Iroquois and  2 British representatives in the treaty making process.  3 While Bouquet's Proclamation temporarily discouraged  4 further settlement on the Ohio, lands along the  5 Susquehanna near the mountain divide continued to see  6 a steady migration of potential farmers and  7 homesteaders.  In March of 1762 Johnson took up the  8 Delaware cause of writing Connecticut Governor Thomas  9 Fitch.  10 And over to page 183, my lord.  Fitch responded  11 two months later by issuing his own Proclamation  12 forbiding anyone from his province to settle on the  13 Susquehanna.  As Dr. Stagg points out, this  14 Proclamation seems not to have stemmed the tide of  15 illegal settlement.  16 And it was the de facto disregard of Indian lands  17 rights which led in 1761 to the Board of Trade in  18 London issuing clear instructions to several of the  19 American colonies regarding Indian land rights.  20 Further down that paragraph, my lord, earlier in  21 1760 when the Lords of Trade had heard of Virginia's  22 participation in settlement of land west of the  23 Alleghenies, they have informed the Virginia governor  24 the conflict between Britain and the interior tribes  25 had subsided "solely upon our having engaged...not to  26 settle up on their hunting grounds".  The Virginia  27 Governor was told bluntly neither his province nor  28 Pennsylvania would be permitted to pre-empt the Treaty  29 of Easton which had solemnly relinquished to the  30 Indians all the land westward of the Great Mountains.  31 The bottom of page 185, my lord.  The board had  32 also become aware through William Johnson about the  33 increasing concern on the part of the Mohawks  34 resulting from the non-Indian encroachments on  35 northern New York lands.  They were further made aware  36 of General Amherst's intention to provide soldiers at  37 Fort Niagara with settlement lands without Indian  38 consent.  As part of its process of reviewing the  39 whole question of land grants in northern New York,  40 the board sent the Secretary of State William Pitt a  41 note to warn General Amherst about the dangers  42 inherent in making grants on lands claimed by Indians.  43 The board stressed the need for "a proper regard to  44 our engagements with the Indians and their hunting  45 ground reserved to them by the most solemn treaties".  46 Further plans by Amherst to encourage agricultural  47 settlement in New York along the Upper Mohawk River 23807  Submissions by Mr. Jackson  1 and the endorsement of this plan by the New York  2 council led to the Board of Trade issuing a report in  3 November 17 61 comdemning New York's actions.  Again  4 the board reiterated that the primary cause of Indian  5 discontent with the British was the "cruelty and  6 injustice with which they had been treated with  7 respect to their hunting grounds, in open violation of  8 those solemn compacts by which they had yielded to us  9 the dominion but not the property of those lands".  10 The Board of Trade report was forwarded to the  11 Privy Council on 17 November 1761, its recommendations  12 approved by the King and his cabinet.  However,  13 instead of the board's findings being transmitted as a  14 directive to the governor in New York, the Privy  15 Council asked that the board's recommendations be  16 incorporated into instructions for the governors of  17 the non-proprietary colonies, and they are there set  18 out forbidding them to pass grants of or encourage  19 settlements upon any lands within the colonies which  20 might interfere with the Indians bordering on those  21 colonies.  22 And draft instructions were accordingly drawn up  23 and sent to the King, which were approved by the Privy  24 Council in December, 1761.  25 My lord, these Royal instructions represented the  26 most comprehensive statement on recognition of Indian  27 territorial integrity which the British government had  28 made to that time.  The recital to the instructions  29 reviews the legitimate grievances of the Indians with  30 regard to their lands, and links the security of  31 British possessions in North America to the continued  32 friendship and alliance of the British nations.  33 THE COURT:  Indian nations I think.  34 MR. JACKSON:  Yes, my lord.  Yes.  And I have set out the  35 recital at the bottom of page 186, over to page 187,  36 and I would just refer Your Lordship in particular to  37 the board's expression of the Crown's intention in the  38 last part of those recitals on page 187.  The Crown,  39  40 "Being determined upon all occasions to support  41 and protect the said Indians in their just  42 rights and possession and to keep inviolable  43 the treaties and compacts which have been  44 entered into with them."  45  46 And the Royal instructions specifically provided  47 that the Crown hereby strictly enjoined -- this is of 23808  Submissions by Mr. Jackson  1 course addressed to the Governors of the various  2 provinces:  3  4 "Nor any lieutenant governor ... do upon any  5 pretense whatever upon pain of Our Highest  6 displeasure and of being forthwith removed from  7 your or his office, pass any grant or grants to  8 any persons whatever of any lands within or  9 adjacent to the territories possessed or  10 occupied by the said Indians or the property  11 possession of which has at any time been  12 reserved to or claimed by them."  13  14 And these Royal instructions also required the  15 governors to issue individual Proclamations strictly  16 enjoining and requiring all persons who may either  17 wilfully or inadvertently have seated themselves on  18 any lands so reserved to or claimed by the said  19 Indians without any lawful authority for so doing,  20 forthwith to remove themselves.  And indeed required  21 the governors to prosecute those that failed to comply  22 with the Proclamation.  23 Over to page 188.  The Royal instructions of  24 December 1761 provided a clear signal to the colonial  25 establishment in North America, as well as to the  26 Indian Nations that the King and the Imperial  27 government in London would be taking a much greater  28 role in the post-war affairs of the American colonies  29 than ever before, and that the central feature of that  30 intervention was the protection of the rights of the  31 Indian Nations.  32 However, while the central importance of a  33 principled and coordinated Indian land policy had  34 become clear to Imperial officials by the end of 1761,  35 events in the colonies during the latter parts of 1761  36 and throughout 1762 did not bode well for peaceful  37 Anglo-Indian relations.  While officials such as  38 Johnson, who were in close touch with the pulse of  39 Indian concern, were well aware of rumours of an  40 Indian war in the face of continuing encroachment on  41 their lands, others like General Amherst, who was most  42 responsible for the safety of the British frontier  43 settlements, tended to regard these rumours as  44 overblown.  Prohibition on the sale of arms and  45 ammunition to the Indians by General Amherst  46 exacerbated British-Indian relations.  As British  47 soldiers and other immigrants began taking up 23809  Submissions by Mr. Jackson  1 unsurrendered traditional Iroquois lands in such areas  2 as Fort Niagara and Lake George, it appeared to the  3 Indians that once enough of them were deprived of the  4 means to defend themselves, all Indian lands would be  5 seized without resistance.  6 Another problem which increased tensions between  7 the British and the Indian Nations during this period  8 was the question of "presents".  One of the important  9 diplomatic protocols of the Covenant Chain diplomacy  10 was the exchange of gifts or presents.  11 My lord, you will recall that Dr. Daly in his  12 evidence in describing the Gitksan-Wet'suwet'en  13 institutions, and particularly the feasting complex,  14 went to great pains to explain the concept of  15 reciprocity and the extent to which gift exchange was  16 a central feature of these -- of the social order.  So  17 with the Iroquois and by extension in their  18 relationships with the Crown, the exchange of gifts  19 was viewed as an integral and essential part of treaty  2 0 making.  21 But by late 1761 this practise was threatened when  22 General Amherst, complaining of the heavy costs  23 associate with Indian Superintendency, told Johnson  24 that he was adverse to "purchasing the good behaviour  25 of Indians by presents", and ordered Johnson to avoid  26 such presents in the future.  Johnson explained to  27 Amherst that the giving of presents was an important  28 aspect of diplomatic protocol, and ought not to be  29 viewed, as Amherst seemed to see it, as a bribe to the  30 Indians.  31 My lord, in 1761, as in 1990, there are those who  32 are able to see the real depth of the relationships  33 between and within Indian Nations, and those in fact  34 who are unable to understand that complexity.  35 Over, My Lord, to page 190.  Middle paragraph.  36 By the winter of 1762 British-Indian relations of  37 North America had gone from bad to critical.  The  38 Iroquois, those nations whom the British had always  39 relied upon most for their loyalty and commitment,  40 were reportedly ready to break publicly with their  41 former allies.  They were allegedly worried about a  42 possible British policy of extermination.  Rumour was  43 that as soon as they had secured all the non-Indian  44 captives still in the hands of the former French  45 allied tribes, the British would swoop down on the  46 Indians, camp by camp, and kill every one on the  47 continent. 23810  Submissions by Mr. Jackson  1 Croghan, who had reported the Indian disaffection,  2 speculated that as the Iroquois went, so would all of  3 the western tribes.  And in reviewing the short period  4 between the cessation of hostilities between the  5 French and the British and the settling of the peace,  6 Dr. Stagg concludes "British-Indian relations had  7 deteriorated to the point of what appeared to be no  8 return."  9 Page 191.  The preliminary articles of peace were  10 signed in Paris on the 8th of November, 1762 by the  11 representatives of the courts of Spain, France and  12 Great Britain.  And as Your Lordship has heard  13 vis-a-vis the European colonial nations, more  14 territory would change hands by this agreement than by  15 any treaty dealing with the Americans either before or  16 since.  The focus, my lord, of the plaintiffs' legal  17 argument will remain on the effect of those  18 territorial rearrangements on the pre-existing rights  19 of ownership and jurisdiction of the Indian nations.  20 The British imperial authorities were faced with  21 questions of major importance arising from the signing  22 of the preliminary articles of peace.  How the new  23 acquisitions in America were to be divided up and  24 administered; what new security measures were needed  25 to protect British possessions; how the large  26 French-Canadian population in Canada was to be  27 governed, and of critical importance and central to  28 our legal argument, what policy or policies were to be  29 employed in managing the relationship between British  30 colonies and the Indian nations inhabiting the North  31 American continent.  32 And it is the plaintiffs' submission that in the  33 formulation of that policy and in its ultimate  34 expression in the Royal Proclamation of 1763, the  35 imperial authorities endorsed and consolidated the  36 fundamental principles of the common law governing  37 Indian-Crown relationships which had been articulated  38 and agreed upon in the Covenant Chain treaties and  39 compacts and in the imperial measures directed to  40 their maintenance.  41 As we have argued, one of those fundamental  42 principles was the recognition of the integrity of  43 Indian hunting territories and their protection by the  44 Crown from unlawful encroachment by white land  45 speculators and settlers.  The first concrete sign  46 that the imperial authorities were prepared to  47 consider and act quickly in support of this 23811  Submissions by Mr. Jackson  1 fundamental principle appeared in a letter of the 27th  2 of January, 1763 from the Secretary of State from the  3 southern department, the Earl of Egremont to General  4 Amherst, the commander in chief of His Majesty's  5 forces in North America.  6 This letter was prompted by reports received in  7 England of a potential conflict arising between some  8 Delaware Indians and a number of New England  9 homesteaders who had settled on lands near the  10 Susquehanna River in northern Pennsylvania, a conflict  11 which had its origins in the questionable purchase of  12 lands in the Wyoming Valley during the Albany  13 Conference of 1754.  In the letter Egremont expressed  14 his concern about the dangers of conflict between  15 colonists and the Indian nation, and identified the  16 measures necessary to avoid this.  Lord Egremont  17 stated:  18  19 "The King trusts, that you will, at least, be  20 able to prevail with the people concerned in  21 this pretended purchase, to suspend, for the  22 present, the making of the settlement in  23 question, til you shall have reported to me,  24 for the King's information, a true state of  25 this matter ... His Majesty's having it much at  26 heart to conciliate the affection of the Indian  27 Nations, by every act of strict justice, and by  28 affording them his Royal protection from any  29 encroachment on the lands they have reserved to  30 themselves for their hunting grounds, and for  31 their own support and habitation: and I may  32 inform you that a plan for this desirable end,  33 is actually under consideration."  34  35 At page 194, my lord.  Therefore, by January,  36 1763, imperial officials had demonstrated their  37 commitment to the protection of Indian hunting  38 territories and to the prohibition of any  39 encroachments on those territories by settlers or land  40 speculators.  41 The next paragraph.  On December 6, 1762 Henry  42 Ellis, Governor Designate of Nova Scotia and trusted  43 advisor to Lord Egremont, sent Egremont a lengthy  44 report on previous relations between British colonies  45 and the southern tribes with his advice on what was  46 needed to be done to gain the latter's trust and  47 support.  Ellis was well qualified to offer such 23812  Submissions by Mr. Jackson  1 advice for, as resident Governor of Georgia between  2 1757 and 1761, he had gained firsthand experience in  3 colonial Indian affairs.  4 Page 195.  In order to counter Indian fears  5 regarding British intentions for the southern  6 interior, Ellis advised the calling of a conference of  7 all major tribal groups inhabiting the region.  He  8 believed that the gathering should be convened jointly  9 by the four southern governors to conciliate the  10 Indian's goodwill by a fair and candid explanation of  11 the Treaty of Peace completed with the French and  12 Spaniards and of His Majesty's just and equitable  13 intentions towards all Indian nations.  14 The next paragraph.  Lord Egremont concurred with  15 Ellis's advice and ordered John Stuart, the southern  16 Superintendent of Indian Affairs, Sir William Johnson  17 was the northern superintendent, my lord, John Stuart  18 and the four southern governors to hold a conference  19 with the Indian representatives.  20 Page 196.  Thus, we see, my lord, that by  21 mid-March of 1763, the Ministry was committed to an  22 imperial policy of conciliation on matters of land and  23 trade with the Indian tribes occupying the vast  24 trans-Appalachian interior of the continent.  In the  25 north Egremont hoped to accomplish this through  26 example:  by a prohibition on unauthorized settlement  27 on the Susquehanna River.  In the south it was to be  28 by openly stated policy.  British outposts were to be  29 employed for the mutually beneficial purpose of trade,  30 not, as the Indians feared, as precursors of increased  31 colonial settlement.  32 But a more plenary far and wide-reaching program  33 for the consolidation of Crown-Indian relations was  34 under active consideration in early 1763 was alluded  35 to in Lord Egremont's letter to Amherst of January 27,  36 1763, concerning the Susquehanna River settlement  37 where he talks of the development of a plan.  Dr.  38 Stagg's suggestion that the most probable source for  39 this remark is a document which has come to be known  40 as the "Hints" document.  Its title being "Hints  41 Relative to the Division and Government of the  42 Concurred and Newly Acquired Countries in America".  43 That was a document which was placed in evidence,  44 my lord, by Mr. Morrison, and the exhibit number is  45 there noted.  46 MR. GOLDIE:  And by Dr. Greenwood.  47 MR. JACKSON:  Yes, my lord, it was also referred to by Dr. 23813  Submissions by Mr. Jackson  1 Greenwood.  Although unsigned and undated, it is  2 generally attributed to Henry Ellis, who, in colonial  3 matters, was the most influential advisor of Lord  4 Egremont.  To use the modern vernacular, Ellis and  5 Egremont were key players in the development of  6 imperial policy which finally emerged in the form of  7 the Royal Proclamation of October 1763.  The Hints  8 document is important, my lord, particularly for the  9 provincial defendant, in that it is part of the  10 evidentiary basis, as we understand it, upon which the  11 provincial defendant argues that the intent of the  12 framers of the Proclamation in establishing a boundary  13 line that would constitute the western limits of  14 colonial expansion, was designed principally for  15 traditional mercantilist reasons.  That is to say that  16 the boundary would force settlement expansion to take  17 place north and south of Nova Scotia and Georgia,  18 instead of the settlers "planting themselves in the  19 heart of America, out of the reach of government, and  20 where from the great difficulty of procurring European  21 commodities, they would be compelled to commence  22 manufacturers to the infinite prejudice of Britain".  23 Although Ellis, in light of his extensive colonial  24 experience, well versed in the precedents for this  25 boundary line between the settlers and Indians, the  26 Hints' paper makes no mention of the importance of  27 such a line to the future integrity of Indian-British  28 relations.  The provincial argument again, as we  29 understand their position, argues that this omission  30 is evident of the overtly economic base of the line,  31 and in turn provides evidence that the Proclamation  32 was never intended to apply to British Columbia,  33 because no expansion of settlement to the west was  34 contemplated.  35 However, my lord, as Dr. Stagg points out in his  36 review, detailed review of this period --  37 MR. GOLDIE:  Is my friend adopting this as his argument?  Are  38 you relying upon Dr. Stagg for the facts?  39 MR. JACKSON:  I am adopting Dr. Stagg's recitation of these  40 facts, my lord, and we are also adopting Dr. Stagg's  41 arguments as one which is most consistent with the  42 evidence and with the facts.  43 Ellis most likely tailored the rationale for a  44 boundary line to its intended audience in Britain.  45 For British officials and policy makers a positive  46 appeal for limiting westward continental settlement  47 based on economic necessity would have been a much 23814  Submissions by Mr. Jackson  1 more comprehensible and appealing argument than one  2 negatively formed around the potential threat to  3 colonial security.  The full rationalization of the  4 policy to preserve the interior hunting territories  5 and to secure peace and friendship with the country's  6 native peoples could await further exposition.  As Dr.  7 Stagg points out, the first appeal had to be a clear  8 and unfettered economic one.  9 On May the 5th, 1763, Lord Egremont wrote to the  10 Board of Trade requesting a report on the various  11 problems associated with the newly acquired  12 territories in North America, the West Indies and  13 Africa.  14 The bottom of the page.  On the issue of Indian  15 policy around the question of promoting peace and  16 tranquillity among the Indian Nations, Egremont  17 offered the board what he referred to as some lights.  18 Now, lights, my lord, in terms of illumination, I  19 understand the word to be used.  20 He anticipated that the board's most probable  21 approach to a guarantee of protection and security for  22 British settlements would be construction of more  23 forts in Indian country, but he warned that this was  24 not the preferred solution.  And what he said in his  25 letter to the Board of Trade was:  26  27 "Tho' in order to succeed effectually in this  28 point, it may become necessary to erect some  29 forts in the Indian country, with their  30 consent, yet His Majesty's justice and  31 moderation inclines him to adopt the more  32 eligible method of conciliating the minds of  33 the Indians by the mildness of his government."  34  35 And I emphasize the following passage, my lord.  36  37 "By protecting their persons and property and  38 securing to them all the possessions, rights  39 and privileges they have hitherto enjoyed, and  40 are entitled to, most cautiously guarding  41 against any invasion or occupation of their  42 hunting lands, the possession of which is to be  43 acquired by fair purchase only."  44  45 My lord, the plaintiffs say that in that passage  46 Lord Egremont referentially incorporates a whole  47 patent of what we say are fundamental principles 23815  Submissions by Mr. Jackson  1 governing the relationships between Indian Nations and  2 the Crown, which I documented yesterday from the days  3 of the very first colonization.  4 My lord, at the bottom of page 199.  As Professor  5 Slattery has pointed out, the significance of the  6 Egremont letter of May 5, 1763, and particularly the  7 passages cited above, is that it demonstrates the  8 major tenets for the Indian policy later embodied in  9 the Royal Proclamation had already been determined by  10 the agreement.  These tenets included the general  11 recognition of the Indians' property rights, the  12 importance of protecting and securing those rights,  13 and particularly the prevention of any invasion or  14 occupation of their hunting grounds, and the need for  15 the acquisition of Indian lands by fair purchase only.  16 The initial task of preparing a draft report was  17 turned over to by the Board of Trade to John Pownall,  18 its permanent secretary.  This draft report was first  19 discovered by historians among the Shelburne papers,  20 and is referred to as "Mr. Pownall's sketch of a  21 report".  And in reference, my lord, you have heard in  22 these proceedings is the sketch.  23 The bottom of the page.  The significance of  24 Pownall's sketch is that it endorses the idea of  25 restraining the westward expansion of the old colonies  26 as expounded in Ellis's  "Hints", and fuses it with  27 the policy enunciated by Lord Egremont of protecting  28 the territorial rights of the Indians.  29 Mr. Pownall sought to link the nature and extent  30 of the new colonies to be established, with the  31 necessity of providing a rational and coherent policy  32 to govern future Indian-Crown relations.  33 According to Pownall, the formation and division  34 of the cessions to Britain should satisfy either what  35 would suit Britain exclusively, what would be best for  36 her commercial relationships with the Indian Nations,  37 or both.  And in Mr. Pownall's words, by a "happy  38 coincidence of circumstances both cases meet together  39 in the same point and form an exact union of system".  40 The essence of Pownall's "happy coincidence" was  41 twofold.  And I have set it at the bottom of page 201.  42 If either the old or new colonies were prohibited  43 from expanding and making new settlements beyond the  44 heads and sources of those rivers that flowed into the  45 Atlantic Ocean or the Gulf of Mexico, colonial  46 development would remain accessible to the importation  47 of British manufactured goods, the standard 23816  Submissions by Mr. Jackson  1 mercantilist argument which was the focus of the  2 Hints' document and to which Pownall subscribed.  But  3 at the same time, and this is the second aspect of the  4 matter, the prohibition of such settlements would  5 avoid "a manifest breach of our general engagements  6 with the Indians which would naturally excite them in  7 jealousy and disgust, but might prove of fatal  8 consequence."  9 Mr. Pownall thus combined the mercantile rationale  10 espoused in "Hints" with the principle of ensuring  11 peace and tranquillity on the frontier by protecting  12 the Indian hunting territories advocated by Lord  13 Egremont into a single policy of geographical  14 restriction of future colonial settlement.  15 Now, in providing historical justification for his  16 recommendation and, as Dr. Stagg suggests, perhaps to  17 explain the specific geographical boundary he used,  18 Pownall cited a number of precedents, including the  19 Treaties of Easton, Lancaster and Detroit.  20 And as I note at the bottom of 202, my lord, in  21 our previous argument, we have shown how the concept  22 of a boundary line between colonial settlement and the  23 Indian territories can be traced even further back to  24 the Congress of Albany in 1754 and to the great Treaty  25 of Lancaster in 1743.  26 Over to page 204, my lord.  Although Pownall  27 advocated, as others had done before him, that the  28 Easton boundary -- my lord, that should be Eastern,  29 e-r-n.  It is in fact the doubling -- that was  30 actually the boundary established at the Treaty of  31 Easton, but I meant to use it in the more common form.  32 That the eastern boundary separating the Indian  33 country in the limits of the British colonies should  34 be the Appalachian divide.  However, he recognized  35 that there would have to be exceptions in particular  36 cases:  37  38 "For as on the one hand, the creeks, Cherokees  39 and Catabaws have claims on this side of the  40 mountains and the Six Nations also upon the  41 Susquehanna, which it would be unjust to  42 violate."  43  44 And conversely, Pownall viewed it necessary to  45 adjust the proposed boundary line to exclude from the  46 Indian country certain lands west of the Appalachans  47 where settlements had been established under the 23817  Submissions by Mr. Jackson  1 auspices of the government of Virginia which "do not  2 yet interfere with any claims of the Indians and which  3 it would be equally unjust and impolitic to break up  4 and destroy".  5 On June the 8th, 1763, the final report of the  6 Board of Trade was submitted to Lord Egremont.  In the  7 report, the Board reviewing the various commercial  8 advantages flowing from the acquisition of the new  9 territories.  My lord, the rest of page 204 and page  10 205 reviews those commercial benefits.  I will turn,  11 though, to page 206.  12 After outlining what it believed to be the most  13 obvious advantages to British commerce, the board  14 turned its attention to the issue of the division and  15 form of government structures in the new territories.  16 The report divided the territories, for which a  17 governing structure was to be considered, into two  18 distinct categories.  The first of these was  19 identified as "all such places where planting and  20 settlement as well as trade and commerce are the  21 immediate objects".  And these comprised the new  22 provinces of Canada and east and west Florida, in  23 which civil governments should be established and  24 where a large military force should be kept to secure  25 public peace and sustain British sovereignty.  26 The second category of cession was identified in  27 the report by the phrase "where no perpetual residence  28 or planting is intended".  Here the board recommended  29 that "no such regular civil government is necessary or  30 indeed can be established".  There were three regions  31 identified as comprising this category.  Newfoundland  32 and Labrador coast where a temporary Fishery is the  33 only object, Senegal, which is rather outside the  34 scope of our immediate discussion, and finally, and of  35 course most significantly for the purposes of the  36 legal argument.  37  38 "That territory in North America which in Your  39 Majesty's Justice and Humanity as well as sound  40 policy is proposed to be left under Your  41 Majesty's immediate protection, to the Indian  42 tribes for their hunting grounds, where no  43 settlement by planting is intended immediately  44 at least to be attempted and consequently where  45 no particular form of civil government can be  46 established."  47 2381?  Submissions by Mr. Jackson  1 Now, my lord, the concept of the boundaries of  2 this Indian territory is a matter of critical  3 importance, and it is a matter to which my friend, Mr.  4 Rush, will be shortly addressing you, and I intend to  5 say no more about it at this point.  6 Over to page 208.  On July the 14th, 1763, Lord  7 Egremont responded to the report of the Board of  8 Trade.  He advised the board that their report had  9 been laid before the King, and that he had expressed  10 approval of the plan to erect three new governments in  11 North America, namely Canada, east and west Florida.  12 Egremont, however, expressed the King's reluctance to  13 leave the Indian country "without being subject to the  14 civil jurisdiction of governor in virtue of His  15 Majesty's Commission".  The reasons given for this  16 reluctance are related to the difficulties of bringing  17 to justice criminals taking refuge in the Indian  18 country and the fear that such lands, if not included  19 within some established government, might be treated  20 by other foreign powers as derelict lands.  21 And it is the plaintiffs' submission, my lord, that as  22 in previous assertions by the Crown and by the -- both  23 the British and the French Crown, the concern here is  24 the assertion of jurisdiction vis-a-vis other European  25 powers and not in opposition to the internal  26 self-government of the Indian Nations.  27 And that is a point, my lord, I will be returning  28 to at some length in due course.  29 Lord Egremont proposes therefore unless the board  30 can suggest a better alternative, that the commission  31 issued to the Governor of Canada should include the  32 proposed Indian country.  33 The bottom of the page.  On August the 5th, 1763,  34 the Board of Trade responded to Egremont.  The board  35 agreed that the Indian territory should be placed  36 under a particular government, by virtue of a  37 commission which describes the country's boundaries  38 and confers powers to deal with the Indian trade and  39 criminal fugitives, but objects to anexing the  40 territory to the new province of Canada, because,  41 among other things, this would give that colony an  42 unfair advantage in the Indian trade.  And as an  43 alternative, the board proposed that a commission for  44 the government of the Indian country should be given  45 to the military Commander in Chief of North America  46 especially adapted to the role of protecting the  47 Indian tribes and managing the fur trade. 23819  Submissions by Mr. Jackson  1 The board, however, expressed the opinion that the  2 preparation of such a commission and instructions to  3 the Commander in Chief would require additional  4 information and so should be postponed.  The board  5 commented that:  6  7 "No such delay will produce any bad  8 consequences, either in respect to this country  9 being considered as direlect, while Your  10 Majesty's troops are in the actual possession  11 of every post and fort formerly enjoyed by the  12 French."  13  14 My lord, as Mr. Morrison indicated in his  15 evidence, at this point, in fact, as a result of the  16 general uprising of the western tribes, because of the  17 intrusion into their lands of settlers, it would  18 appear from that comment of the board that the Board  19 of Trade at this late date was not aware that all of  20 the military posts in the interior country, save and  21 except for Detroit, had been captured by the Indians  22 as part of the Pontiac's Rebellion so-called.  23 The board concluded its August the 5th response to  24 Egremont with the following proposal:  25  26 "In the meantime, we humbly propose that a  27 Proclamation be immediately issued by Your  28 Majesty as well on account of the late  29 complaints of the Indians, and the actual  30 disturbances in consequence, as of Your  31 Majesty's fixed determination to permit no  32 grant of lands nor any settlements to be made  33 within certain fixed bounds, under pretense of  34 purchase or any other pretext whatever leaving  35 all that territory within it free for the  36 hunting grounds of those Indian Nations  37 subjects of Your Majesty and for the free trade  38 of all your subjects, to prohibit strictly all  39 infringements or settlements to be made on such  4 0 grounds ..."  41  42 Now, the Board of Trade does not give any reason  43 for recommending that a Royal Proclamation be issued  44 as opposed to other perogative instruments, such as  45 instructions to the governors.  As Stagg points out in  46 his detailed analysis of this period, most historians  47 credit the board's recommendation for a Proclamation 23820  Submissions by Mr. Jackson  1 to the pressing circumstances of the Pontiac  2 rebellion.  Dr. Stagg rejects that standard  3 interpretation, but he points out why it's important  4 in terms of its implication.  5  6 "Firstly hypothesizing the government was under  7 extreme pressure to do something quickly, one  8 is easily led to surmise that what must be  9 ineluctably result is a hastily thought out,  10 perhaps haphazardly formulated set of policies.  11 Emergency measures are seldom right-headed  12 ones.  Secondly, given the historical  13 circumstances, an argument that the British  14 government completely abandoned its former  15 ideas for ones more strictly tailored to the  16 exigencies of a new situation is a compelling  17 one.  Political organizations are not generally  18 held up as models of principle."  19  20 My lord, the essential point there is that if this  21 was a response to Pontiac's rebellion, the British  22 might have changed whatever their historic policies  23 and principles were for a historically contingent  24 policy.  It is the plaintiffs' submission, however, my  25 lord, that the Royal Proclamation does represent a  26 carefully thought out and principle consolidation of  27 pre-existing policies regarding Indian-Crown relations  28 which reflects treaties and compacts, consensually  29 negotiated and was not conceived as a result of  30 specifically geographically localized exigencies of  31 the moment.  In other words, it is the plaintiffs'  32 submission that the Royal Proclamation of 1763  33 reflects an abiding and overriding commitment on the  34 part of the Crown to do justice to the rights of the  35 Indian Nations of North America.  36 THE COURT:  I take it then that you are disagreeing with Dr.  37 Stagg?  38 MR. JACKSON:  Dr. Stagg, my lord, and I will be getting to this  39 in a moment, Dr. Stagg in fact disagrees with that  40 analysis.  That passage on page 211, his statement of  41 what the implications of such an analysis would be.  42 In other words, if indeed it was hastily thought out,  43 this would follow from that mode of conception of the  44 Proclamation.  As you will see in the next passage I  45 cite, my lord, Stagg specifically rejects that  46 analysis.  47 And it is our submission that the legal and 23821  Submissions by Mr. Jackson  1 constitutional imperatives embodied in the  2 Proclamation have as much significance in 1763 in  3 relation to the territories of the Six Nations and  4 their western allies as they do to the territories of  5 Gitksan and Wet'suwet'en 100 years later in British  6 Columbia.  7 And this is the point I was just referring to, my  8 lord.  Dr. Stagg in his detailed analysis rejects the  9 thesis that the Proclamation was hastily conceived,  10 and has made a compelling case that while the Board of  11 Trade at the time it completed its August the 5th  12 response to Egremont recommending a Royal  13 Proclamation, knew something of the frontier  14 hostilities, they were not privy to how serious  15 matters were in North America.  And he points  16 particularly to the fact already noted in the evidence  17 of Mr. Morrison that the board recites that the  18 interior military posts are in the possession of  19 British troops, whereas in fact all except Detroit  20 have fallen into Indian hands.  As Dr. Stagg  21 concludes, "one is virtually forced to accept the  22 opinion that the difficulties of communication between  23 London and the American interior and the vagaries of  24 the Atlantic passage prevented the board from being  25 aware of the very serious turn of events in North  26 America prior to August the 5th".  27 And, my lord, I should say this, that regardless  28 of the outcome of that debate, it is the plaintiffs'  29 position that when you put the immediate periods of  30 the Proclamation in the context we have placed it of  31 150 years of treaty making, where Indian Nations again  32 and again have stood up, asserted their rights, where  33 the Crown has recognized them through the treaty  34 making process, the idea that the Proclamation was  35 hastily conceived, that the policies were the  36 exigencies of the historical moment, we say is  37 historically misconceived, and in fact inconsistent  38 with that deep historical record.  39 And there were in fact, my lord, a number of  40 reasons why -- this is at page 213, why the Board of  41 Trade should have chosen a Proclamation as the best  42 vehicle to announce in the most public manner the  43 Crown's intentions in relation to its future  44 relationships with Indian Nations and the protection  45 of their territories.  46 And as Professor Slattery has pointed out, a  47 Proclamation issued under the great seal carried with 23822  Submissions by Mr. Jackson  1 it an authority at least equal to that of a commission  2 and superior to that offered by formal Royal  3 instructions.  As public document, it was well suited  4 to the role of warding off potential intruders on  5 Indian territories, whether they be foreign powers or  6 British settlers.  As a public declaration of imperial  7 policy, a Proclamation had obvious advantages over  8 instructions which were nothing more than private  9 communications from the sovereign to his officers and  10 reached a wider audience only by acception.  In  11 addition it must be remembered that the ancient  12 colonies, such as Virginia by virtue of their original  13 Crown charters, had pretensions to lands beyond the  14 Alleghenies which were to be protected against  15 encroachment, and from an administrative point of view  16 the rewriting of commissions to each and every  17 governor of the ancient colonies for the establishment  18 of western boundary or the certain fixed limits beyond  19 which no settlement was to be permitted would have  20 been a difficult and time consuming a fair.  In this  21 regard, my lord, a Proclamation was expedient, legally  22 sound and appropriate to the task at hand.  23 Lord Egremont died suddenly on August the 21st,  24 1763, and was replaced by Lord Halifax.  And the new  25 Secretary of State communicated to the Board of Trade  26 on September the 19th, 1763, indicating the  27 government's agreement to drop the idea of including  28 within the government of the new province of Canada or  29 of any other established colony lands which are to be  30 reserved for the use of the Indians.  The letter  31 endorses the board's proposal of issuing immediately a  32 Proclamation to prohibit for the present any grant or  33 settlement within the bounds of the countries intended  34 to be reserved for the use of the Indians, but  35 indicates that several other objects of importance be  36 provided for at this time through the vehicle of the  37 Proclamation.  More specifically, to make known the  38 boundaries of the new colonies and the additions to  39 the old as well as the constitution of the new  4 0 governments and the the general powers which the  41 governors will have of granting lands.  These matters  42 became the subjects of Parts I and II of the  43 Proclamation.  Furthermore, to prohibit private  44 purchases of lands from Indians, to declare a free  45 trade for all of His Majesty's subjects with all the  46 Indians under licence, security and proper  47 regulations, and to empower military officers and 23823  Submissions by Mr. Jackson  1 Indian agents within the Indian country to seize  2 fugitives and return them for trial in the colonies  3 from which they fled.  4 In these proposals we see the direct origin of  5 what becomes paragraphs 4 and 5 of Part Roman IV of  6 the Proclamation.  7 My friend Mr. Rush will be taking you carefully  8 through those provisions, my lord.  9 The point is, my lord, that in effect, page 215,  10 the basic policies to be embodied in the Proclamation  11 were now settled, and the Board of Trade set to work  12 drawing up the requisite instruments.  A draft  13 Proclamation was placed before and received the  14 approval of the Attorney General, Charles Yorke, who  15 found nothing in the document contrary to law.  16 My lord, a number of amendments were made to the  17 draft Proclamation by John Pownall, and again my  18 friend Mr. Rush will be referring you to those in  19 their particular contents.  And so, my lord, on  20 October the 7th, 1763 under the hands of King George  21 the III, the great Proclamation was issued.  And, my  22 lord, those are all my submissions at this point.  My  23 friend, Mr. Rush, will take up the historical record  24 at this point.  25 THE COURT:  Thank you, Mr. Jackson.  Is there a book in which  26 these pages should be placed?  27 MR. JACKSON:  My lord, they will fit into the back of your first  28 volume, I think, without unduly cramping.  29 THE COURT:  Yes.  That's fine.  Thank you.  Oh, its right here.  30 Thank you.  Mr. Rush.  31 MR. RUSH:  My lord, I will be dealing with the Royal  32 Proclamation of 1763.  Before I embark upon my  33 argument, I want to at least pass to the Registrar the  34 number of documents and acquaint yourself -- acquaint  35 Your Lordship with the boxes of material that's now in  36 front of you.  Firstly, reference has been made to the  37 thesis of Dr. Stagg, and as I understand it, that's  38 not yet tendered as a treatise, and I intend to do  39 that now.  So I am simply going to hand this up to the  40 registrar.  And I have a copy for my friend.  41 MR. GOLDIE:  Your Lordship will bear in mind that the question  42 of whether a document like this can be relied upon  43 with the facts stated is an open one, having been  44 raised by Mr. Grant's desire to add pages to a  45 treatise or I should say a thesis, and I would hope  46 that we would settle that aspect of it next week  47 outside of the regular court hours. 23824  Submissions by Mr. Rush  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  THE  MR.  THE  MR. RUSH  MR.  MR.  THE  MR.  THE  MR. RUSH  THE  MR.  COURT  RUSH:  THE  MR.  THE  MR.  MR.  THE  MR.  COURT:  Yes.  All right.  GOLDIE:  So we don't encroach upon my friends' arguing time.  COURT:  All right.  Well, I will be glad to accommodate  counsel in that regard when we -- let me know what you  would like to do in that connection.  My lord, I wonder, Dr. Stagg's name, for some reason  unknown to me, doesn't appear on the face of it, but I  understand it's Dr. Stagg's thesis, and I wonder if we  could just place his name on that.  GOLDIE:  I agree with that.  RUSH:  I also intend, my lord, to hand up two volumes of Dr.  Slattery's thesis, minus the index and the first three  pages.  And I am endeavoring to get those for you as  well.  COURT:  All right.  That's in the same category, is it?  GOLDIE:  It is, my lord.  COURT:  Yes.  All right.  I am beginning to know what the  Pope meant when he talked about a little learning.  Now, my lord, I want to refer you to the box of  authorities which are before you.  More than a little learning.  Yes.  My lord, what we have in front of you are  Canadian American authorities as well as text  treatises and statutes, and the first grouping, if I  may call it that, is series one, which are the  Canadian authorities, and they are Roman volumes I  through X.  Roman volume I to X are --  The Canadian authorities, my lord.  Yes.  And then volumes 11 through 13 are U.S. authorities.  And volumes 14 and 15 are -- excuse me, 14 through 16  are articles in book references, and volume 17 is a  volume containing statute references.  I simply want  to advise Your Lordship that there are some texts,  references to certain articles which are not included  here that we were unable to obtain, and they are being  obtained in Vancouver, and I will attempt to get those  and supplement our volumes.  So there is in fact a  second series that we are anticipating which will be  supplemental to the existing series.  And are these 17 volumes all related to the Royal  Proclamation?  No, my lord, thank goodness.  All right.  I will be making periodic reference, my lord, to some  of the authorities, but they are the case authorities  COURT  RUSH:  COURT  RUSH:  THE COURT  RUSH:  COURT  RUSH: 23825  Submissions by Mr. Rush  1 in respect of all of the plaintiffs' submission.  2 THE COURT:  All right.  That's the best news I have heard today.  3 MR. RUSH: My lord, I am also going to hand up to you a copy of  4 Exhibit 1025, which is the Briggen version of the  5 Royal Proclamation, and this is in two parts.  It  6 contains Parts I through Roman III, and then Part IV  7 as a separate part.  And what I have done here, in  8 order to make the submissions more related to the  9 actual paragraphs of the Proclamation, I have  10 separated out in the text the various paragraphs that  11 are strung together in the Briggen version.  12 THE COURT:  All right.  Thank you.  13 MR. RUSH: So I will be making reference to the whole of the  14 Proclamation, but in specifics to Part Roman IV, which  15 is the second section, and Your Lordship can see that  16 that is divided into numbered paragraphs, and I will  17 be making reference to the numbers, and Your Lordship  18 may well wish to have that.  19 THE COURT:  Yes.  20 MR. RUSH:  A copy of the Briggen version beside you as I move  21 through the submission.  22 Now, we have prepared for Your Lordship a second  23 volume of the argument, which is in this case the  24 legal argument on the Royal Proclamation, and I will  25 just pass that up to Your Lordship now.  There will be  26 an index that I will provide to Your Lordship, and  27 there will be a supplement that I will make to that at  28 the end.  I have a copy of this for the clerk.  29 THE COURT:  And what is this, please, Mr. —  30 MR. RUSH:  My lord, that is a copy for the Court Reporter.  31 THE COURT:  Good.  Thank you.  Mr. Rush, I notice we are six  32 minutes from the usual adjournment time.  Would you  33 rather take the adjournment before you start?  34 MR. RUSH: Yes, I think that might be suitable, so I can start  35 in.  36 THE COURT:  All right.  We will take the morning adjournment  37 now.  Thank you.  May I inquire, will I be needing  38 volume one during the course of this argument?  39 MR. RUSH: There may be references made to it, my lord.  4 0 THE COURT:  I'll keep it here.  Thank you.  41 THE REGISTRAR: Order in Court.  This court stands adjourned for  42 a 15 minute recess.  43  44 (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  45  46  47 23826  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 23827  Submission by Mr. Rush  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT: Thank you, Mr. Grant.  Sorry, Mr. Rush.  5 MR. RUSH:  My lord, turning to page 1 of the Volume 2 of the  6 argument on the Royal Proclamation of 1763, I'd like  7 to begin this argument by reference to the statement  8 of claim and what is pleaded there.  And in the  9 statement of claim the plaintiffs plead that their  10 aboriginal rights are recognized and confirmed by the  11 Royal Proclamation of 1763.  Paragraph 64:  12  13 "The Plaintiffs have enjoyed and still enjoy  14 their aforementioned rights as recognized and  15 confirmed by the Royal Proclamation made by His  16 Majesty King George the Third on the 7th of  17 October 1763."  18  19 THE COURT:  I don't recall the context at the moment, Mr. Rush.  20 What does "rights" mean in that context?  21 MR. RUSH:  The rights that we will argue, my lord, include the  22 full scope of our pleadings of title, ownership, and  23 jurisdiction.  24 THE COURT:  All right.  25 MR. RUSH:  And is intended to be an all-inclusive reference to  26 aboriginal title, ownership, and jurisdiction.  And  27 argument will be -- argument, as you have heard from  28 Mr. Jackson's submissions and as you will hear  29 subsequently -- that in fact the Royal Proclamation  30 affirms and recognizes pre-existing rights, and those  31 rights include the rights of aboriginal title,  32 ownership, and jurisdiction.  33 In paragraph 65, the plaintiffs plead:  34  35 "The Royal Proclamation applies to British  36 Columbia and is part of the Constitution of  37 Canada.  The Plaintiffs' ownership and  38 jurisdiction over the Territory thereby  39 includes without restricting the generality of  40 the foregoing:  41 1.  A right that the Territory be reserved to  42 the benefit of the Plaintiffs until by the  43 Plaintiffs informed consent the said rights are  44 surrendered to the Imperial or Federal Crown.  45 2.  A recognition of the Plaintiffs' aboriginal  46 title, ownership, and jurisdiction, and the  47 special relationship of the Plaintiffs as to 2382?  Submission by Mr. Rush  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  THE COURT  MR. RUSH:  the Imperial or Federal Crown."  And then in paragraph 66 we've pleaded, in the  alternative, by virtue of the Royal Proclamation of  1763, these rights are enjoyed by the plaintiffs:  "1. A right of ownership of all lands within  the Territory and to territorial waters and to  the resources therein; and,  2. A right to jurisdiction over the Plaintiffs  and the members of their Houses and all the  land, territorial waters and resources within  the Territory, and.  3. A right to the Imperial or Federal Crown's  protection in reserving the aforementioned  rights to the benefit of the plaintiffs until,  through the informed consent of the Plaintiffs,  the said rights are surrendered to the Imperial  or Federal Crown."  Now, my lord, I wish to set out at the beginning  the propositions, and these were referred to in  summary form and I will reiterate in summary form the  propositions that we advance in respect of the Royal  Proclamation.  And on page 2, sub-paragraph 1, it's  the plaintiffs' submission those general provisions of  the Royal Proclamation which restrict land grants,  settlement, or private purchase of lands, reserved to  the Indians were intended to apply to all parts of  North America over which the British Crown claimed  dominion as against other European powers.  This is  what we say the Proclamation says on its face.  And, my lord, perhaps for ease of reference where  I refer to Proclamation I mean the Royal Proclamation  of 1763.  :  Yes.  All right.  And, secondly, there was no western geographical  limit placed upon the Indian land provisions of the  Proclamation and none was intended.  Nothing in the  text of the Proclamation precluded its geographical  application to what is now British Columbia and it did  so apply.  Third, the category of Indians living under the  protection of the Crown, in relation to whom various  provisions of the Proclamation were directed, was not  intended to be a frozen category, limited only to  those Indians known to the Crown as of 1763.  Those 23829  Submission by Mr. Rush  1 provisions applied to Indians living in what is now  2 British Columbia.  3 Now, our argument is framed in the alternative in  4 sub-paragraph 4.  If the Proclamation did not apply to  5 British Columbia and Indians in British Columbia in  6 1763, then it's the plaintiffs' submission it applied  7 to British Columbia and Indians in British Columbia at  8 the time of the establishment of the colony of  9 Vancouver Island in 1848.  And I should add, and I  10 daresay, the establishment of the colony of the  11 mainland British Columbia as well.  The mischief that  12 was to be remedied must be identified so that a  13 construction and interpretation may follow which  14 attain the Proclamation's legislative purpose.  And  15 what we say is that the purpose of part Roman IV of  16 the Proclamation was to recognize and to protect the  17 principle of territorial integrity of Indian lands and  18 to establish a uniform procedure based upon Indian  19 consent which would strictly govern the Crown's  20 purchase of such lands.  It is submitted that in light  21 of this purpose, the intention of the Crown is not to  22 be considered fixed as of 1763, but rather that the  23 provisions of part IV are to apply to situations after  24 1763 as they arose.  Moreover, we say, there is no  25 express language in the Proclamation that suggests a  26 limited temporal application.  To impute such a  27 limited intention to the Crown is to deny the history  28 surrounding the enactment of the Proclamation and the  29 fact that colonial policy and practice subsequent to  30 1763 evidence reliance on the principles set out in  31 the Proclamation.  32 Now, my lord, I first want to direct you to the  33 Proclamation as a whole, and I'd like to refer to the  34 document which, as I've said, is Exhibit 1025.  And  35 for our purposes we've numbered the paragraphs by part  36 Roman number and by Arabic numbers in terms of their  37 sub-paragraphs.  And, as I've indicated, my lord,  38 Exhibit 1025 is the recognized authoritative version  39 of the Proclamation.  40 Now, in the specific context of the plaintiffs'  41 argument, that is to say, that the Proclamation is a  42 codification of fundamental principles governing  43 Indian Crown relations, and that its key provisions  44 regarding the proprietary rights of the Indian nations  45 are legally applicable to Indian Crown relations in  46 British Columbia, it's important to bear this caveat  47 of Professor Slattery's in mind. 23830  Submission by Mr. Rush  1  2 "The Proclamation is a composite document  3 dealing with a number of heterogeneous matters  4 and falling into four discrete parts, each with  5 its own preamble and subject matter, and each  6 in turn subdivided into a series of distinct  7 provisions.  These vary considerably, not only  8 in subject matter, but in geographical scope -  9 a point worth stressing.  Certain provisions  10 are concerned with the newly ceded territories,  11 others with the old American colonies, and  12 others with both alike.  They range in coverage  13 from a single colony to the entirety of British  14 territories in America.  It cannot be assumed  15 that the scope of one provision is identical  16 with that of another; each requires separate  17 examination."  18  19 And I adopt that, my lord, and I think that your  20 lordship will as well, upon a consideration of the  21 whole of the document.  22 Now, what I'd like to do is to simply take you  23 through, in perhaps summary form, but I invite your  24 lordship to read the whole of the document.  I will  25 take you through each of the parts of the document and  26 set out what it is are the principal features of that  27 part and sub-paragraph.  28 Part 1, and I'm here at the bottom of 4 of our  29 argument, part 1 of the Proclamation deals with the  30 measures taken by the British Crown for the  31 disposition of the former French and Spanish  32 territories acquired in the Treaty of Paris and it's  33 there called the definitive treaty of piece signed in  34 February the 10th, of 1763.  35 I'd just like your lordship to keep in mind the  36 date because events as they occurred subsequently I  37 think are relevant to the date of the signing of the  38 Treaty of Paris and the fact that about eight months  39 later it was that the Proclamation itself was issued.  40 Now, in part 1, IV, new colonies were created by  41 the direction of the king out of the territories and  42 their boundaries were described, and these were  43 Quebec, East Florida, West Florida, and Grenada.  44 Quebec was defined so as to take in only a limited  45 portion of the St. Lawrence Valley, from the St. John  46 River and Gaspe on the east, to the Ottawa Valley and  47 Lake Nipissing on the west.  The Quebec boundaries 23831  Submission by Mr. Rush  1  2  3  4  5  6  7  8  9  10  THE  COURT  11  MR.  RUSH:  12  13  14  15  16  17  18  19  20  THE  COURT  21  22  MR.  RUSH:  23  THE  COURT  24  25  26  MR.  RUSH:  27  28  29  30  31  THE  COURT  32  33  34  MR.  RUSH:  35  THE  COURT  36  MR.  RUSH:  37  THE  COURT  38  MR.  RUSH:  39  40  41  42  43  44  THE  COURT  45  MR.  RUSH:  46  47  THE  COURT  excluded the Great Lakes and most of the territory  claimed by France as Canada.  The status of this area  was left unresolved and its precise extent undefined.  In this part, too, several old colonies were expanded.  Now, just to take you, my lord, to that last  point, I'd just ask you to refer to the fact that part  I, sub-paragraph 2, deals with the government of  Quebec.  Sub-paragraph 3, and here I'm going by the  Arabic numbers --  :  Yes.  -- beside, deals with east Florida, 4 with west  Florida, 5, the government of Grenada.  Sub-paragraph  7 and 8 deal with the annexation of certain lands in  respect to old colonies.  The effect was that these  colonies were expanded.  Now, dealing with part II, there is again a  recitation clause suggesting a preamble, and part II  of the Proclamation is here devoted to the  constitutions of the new governments.  :  I'm sorry, Mr. Rush, just one moment.  You say at  the bottom of page 4 --  This is in the --  :  -- for the limited portion of the St. Lawrence  Valley from St. John River and Gaspe on the east to  the Ottawa Valley, and then you refer to paragraph 7.  Yes.  What I did, my lord, was I don't intend to go  through the boundaries of each one of the colonies  that were created, but only to say that the  boundaries, as conceived by the king, are set out in  those paragraphs.  :  But that says the islands of St. John and up the  rivers from the St. John River.  Are we looking at two  different things?  Yes, we are.  :  All right.  Go ahead.  I'll catch up to you.  If you'll follow me over to the top of page 5.  :  Yes.  My point is simply that in paragraph 7 and 8 of the  numbered version of the Proclamation several old  colonies were expanded, and I'm simply here saying, my  lord, that we see that lands are annexed to existing  colonies.  And I point this out simply to demonstrate  that colonies were created and colonies were expanded.  :  I see.  All right.  Now, I will be returning to the question that you've  raised a little later in the argument.  :  All right. 23832  Submission by Mr. Rush  1 MR. RUSH:  The question of the definition of the province of  2 Quebec.  3 THE COURT:  Yes.  All right.  4 MR. RUSH:  Now, part II of the Proclamation is devoted to the  5 constitutions of the new governments, reciting that  6 the governors of the new colonies have been empowered  7 to summon assemblies, and, in conjunction with Council  8 and assembly, to make laws for peace, welfare, and  9 good government of the colonies concerned "as near as  10 may be agreeable to the laws of England".  11 And your lordship can pick up that passage on page  12 214 of Exhibit 1025 in the middle of the page.  Your  13 lordship will see the reference to "the power to make,  14 constitute, and ordain laws, statutes, and ordinances  15 for the public peace, welfare, and good government of  16 our said colonies."  17 THE COURT:  Yes.  18 MR. RUSH:  This is the king exercising his prerogative right, my  19 lord, to create colonies and constitutions thereunder.  20 Now, carrying on on page 5, second paragraph, in  21 the meantime, the inhabitants, as part Roman II  22 continues, "may confide in Our Royal Protection for  23 the Enjoyment of the Benefit of the Laws of Our Realm  24 of England".  25 Now, my lord, I'll just ask you to bypass the next  26 paragraph.  We'll be returning to Connolly v.  27 Woolrich.  I wish to continue with the consideration  28 of part II at the top of page 6.  In part II,  29 paragraph 2, which is at the bottom of page 214, the  30 Proclamation authorized the governors of the three new  31 colonies the power "to settle and agree with the  32 inhabitants ... or any other persons for such lands...as  33 are now, or hereafter, shall be in our power to  34 dispose of..."  And I just ask you to take into  35 account those last words.  36 Now, my lord, I'll ask you to refer to part Roman  37 III, which is on page 215 of the Exhibit 1025, and I  38 refer to this on page 6.  Part III differs from the  39 preceding parts in subject matter and scope, providing  40 for free land grants to military men who served in the  41 war in America.  The provisions are addressed to the  42 governors of "our said Three and New Colonies", namely  43 Quebec and the two Floridas, and also to "all other  44 Our Governors of Our Several Provinces on the  45 Continent of North America".  Thus, we say, the scope  46 extends beyond the ceded territories to include all  47 established British provinces in America.  And, as Dr. 23833  Submission by Mr. Rush  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  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  Slattery points out, the wording is comprehensive and  prima facie would cover Nova Scotia, Newfoundland and  Rupert's Land, as well as the 13 colonies to the  south.  Now, my lord, if you look to the second of the two  portions of the Proclamation which I handed up to you,  and the one that I will be dealing with most  extensively, that's part Roman IV, and this contains  three pages and contains the preamble and six  paragraphs.  Now, returning to the bottom of page 6.  The  fourth and longest part of the Proclamation addresses  the issues affecting the Indian Crown relations and is  the part which is of the most direct relevance to the  plaintiffs' legal argument.  It is the most complex of  the parts and comprises six distinct provisions which  vary in content and scope.  Part IV begins with a  preamble reciting that it is just and reasonable that  "the several Nations or Tribes of Indians" living  under British protection should not be disturbed "in  the possession of such Parts of Our Dominions and  Territories as, not having been ceded to, or purchased  by Us, are reserved to them, or any of them, as their  Hunting Ground..."  Now, following this preamble, paragraph 1 deals  with what may be called restrictions on land grants.  And here the king prohibits the governors of the three  new colonies, Quebec, east Florida, and west Florida,  from granting survey warrants or patents for three  categories of lands.  First, lands beyond the bounds  of Quebec and the Floridas; second, lands west of the  Atlantic watershed; and third, unceded Indian lands  generally.  And I'll just direct you to that portion, my lord,  which is at the end of paragraph 1 of part Roman IV  "or upon any lands whatever which, not having been  ceded to or purchased by us as aforesaid, are reserved  to the said Indians or any of them."  :  And the "said" there refers to what, in your  submission?  The said Indians.  :  Yes.  Refers back to the preamble?  Yes, my lord.  :  Yes.  And I'll be addressing that point specifically.  Now, paragraphs 2 and 3 set out measures designed  to restrict settlement in the Indian country.  And 23834  Submission by Mr. Rush  1 your lordship may conveniently refer to these two  2 paragraphs as restrictions on settlement.  The  3 categories of land protected from unwarranted  4 settlement in these paragraphs are, firstly, lands  5 beyond the limits of Quebec, the two Floridas and  6 Rupert's Land; secondly, lands west of the Atlantic  7 watershed; and third, unceded Indian lands generally.  8 And I'd ask you to turn to sub-paragraph 3 of  9 Roman IV on the second of the three pages to the last  10 clause, my lord, which says "or upon any other lands  11 which not having been ceded to or purchased by us are  12 still reserved to the said Indians as aforesaid  13 forthwith to remove themselves from such settlements."  14 And of course the "to the said Indians" we will argue  15 refers back again to the preamble.  16 Now, my lord, dealing with paragraphs 2 and 3, the  17 restrictions in those two paragraphs coincide with the  18 categories of land protected from land grants in  19 paragraph 1 except that Rupert's Land has been added  20 to the colonies in the first category in paragraph 2.  21 So in essence we have -- we have in paragraph 2 lands  22 granted to the Hudson's Bay company being added.  23 Now, if I may take you now to paragraph 4(a), this  24 paragraph deals with the question of the purchase of  25 Indian lands.  And referring to the "great Frauds and  26 Abuses (which) have been committed in the purchasing  27 Lands of the Indians" in the past, the king forbade  28 private persons from making purchases "of any lands  29 reserved to the said Indians, within those Parts of  30 Our Colonies where We have thought proper to allow  31 Settlement: ...."  The paragraph goes on to provide  32 that for those lands that the Indians "should be  33 inclined to dispose of" purchase shall be made "in our  34 name at some public meeting or assembly" of the  35 Indians held for that purpose.  In the case of  36 proprietary governments, purchase shall be in the name  37 of such proprietaries.  Now, we say, my lord, these  38 provisions apply to all British colonies in North  39 America.  40 Paragraph 4 (b) deals with the question of trade  41 and jurisdiction.  And that's to be found on the last  42 page.  Here, the king declared that the Indian trade  43 shall be open to all British subjects, on condition --  44 THE COURT:  Trade with Indians?  45 MR. RUSH:  Yes.  The Indian trade shall be open to all British  46 subjects, on condition that a license be obtained and  47 certain regulations observed.  On the face of the 23835  Submission by Mr. Rush  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  THE COURT  MR. RUSH:  Proclamation these provisions apply to all British  colonies in North America.  Now, finally, in paragraph 5, the Proclamation  provides for the apprehension of persons who, charged  with criminal offences, take refuge "within the  Territory reserved as aforesaid for the use of the  said Indians".  And again we say this applies to all  British colonies.  Now, my lord, if you keep this extract of the  Proclamation handy, I'll be making periodic and  frequent references to it, but I track much of the  language in the argument as well.  And I'm moving now  to the top of page 9, dealing with the principles of  interpretation that your lordship should apply when  analysing the language and coming to determine its --  coming to determine its meaning.  Now, firstly dealing with the characterization of  the Royal Proclamation, we say that the Proclamation  is a constitutional instrument.  In addition, its  Indian land provisions are statutory in nature and  have the force and effect of a British Act of  Parliament.  Now, my lord, I simply pause here to note that  this is important in terms of the legal effect that  the Royal Proclamation has in British Columbia and we  will be addressing that shortly.  Now, it is our submission that the Royal  Proclamation is a major prerogative instrument, being  referable to the Crown's constituent power in British  territories.  The provisions in part Roman IV of the  Proclamation are constitutional in nature having to do  principally with limitations on the power of governors  to acquire lands in Indian possession.  The effect of  these provisions in relation to all colonies in  British North America was to make the procedure for  acquiring lands in Indian possession as part of the  constitution.  We're saying, my lord -- my friend sotto voce asks  what constitution, and we say this document is the  constitutional instrument, and perhaps he's right in  asking whether or not this is the constitutional  instrument to which we refer, this is the  constitutional instrument and we say that this is and  ought to be considered as part of the constitution of  the country.  Of Canada.  Yes. 23836  Submission by Mr. Rush  1 MR. GOLDIE: That was my question, my lord.  2 MR. RUSH:  Now, the Indian land provisions of the Royal  3 Proclamation confirmed the long held British colonial  4 policy and practice to recognize and protect the  5 rights of Indians to lands in their possession.  The  6 Indian land provisions thus entrenched, in a written  7 document, what were existing unwritten constitutional  8 restraints; in particular the restraints on grants,  9 settlements and purchases of lands possessed by  10 Indians.  The purchase of Indian lands could only be  11 made by the Crown according to the treaty protocol at  12 a public meeting in an assembly of the Indians.  13 Now, my lord, and I'm here referring now to the  14 top of page 10, the constitutional character of the  15 Proclamation has been recognized judicially.  In the  16 Queen v. Secretary of State for Foreign and  17 Commonwealth Affairs, and that's contained in the  18 authorities which we've provided to your lordship,  19 Lord Denning stated that the Proclamation "was  20 equivalent to an entrenched provision in the  21 constitution of the colonies in North America" and  22 that it continued to be constitutionally binding on  23 the Dominion and provincial legislatures even after  24 confederation.  And the cite is there given.  25 We say that the continuing constitutional  26 significance of the Proclamation is evidenced as well  27 by its inclusion in the Constitution Act of 1982,  28 section 25.  And that states:  29  30 "The guarantee in this Charter of certain rights  31 and freedoms shall not be construed so as to  32 abrogate or derogate from any aboriginal treaty  33 or other rights or freedoms that pertain to the  34 aboriginal peoples of Canada including:  35 (a) any rights or freedoms that have been  36 recognized by the Royal Proclamation of October  37 7, 1763."  38  39 Now, in addition to the restrictions and  40 procedures embodied in part IV, to which I have made  41 reference, being a part of the constitution, these  42 provisions also have the force and effect of statute  43 in the colonies to which they applied.  44 In the Lady MacMaster case Mr. Justice MacLean  45 stated:  46  47 "The Proclamation of 1763 as has been held has 23837  Submission by Mr. Rush  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  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  the force of a statute, and so far therein as  the rights of the Indians are concerned, it has  never been repealed."  The Supreme Court of Canada held the Indian  provisions of the Proclamation to have the force of  statute, and this is in the Easterbrook v. the Queen  case, and I'll just refer this -- give you a reference  in our book of authorities, my lord.  It's volume  Roman IV, tab 16.  :  That's Easterbrook.  Yes.  :  Tab 16.  Thank you.  Yes.  In holding the lease there in issue to be void,  the court stated, at pages 217, 18:  "...the lease was ineffective and void at law,  by reason of the absence of any authority in  the part of the grantors to make it, and for  non-compliance with the peremptory requirements  of the Proclamation (of 1763), which have the  force of statute..."  Now, the statutory effect of the Indian land  provisions is found as well in Regina v. White & Bob,  and I'm going to give you the cite as well.  The  cite's there given, my lord.  The reference is to  volume Roman VIII, tab 13, in the Court of Appeal of  this province.  In discussing the question of the  extinguishment of aboriginal rights by the colony of  British Columbia, Mr. Justice Norris stated, and I'm  reading from the text of the judgment, my lord, at  page 662":  "...it would have required specific legislation  to extinguish the aboriginal rights and it is  doubtful whether colonial legislation, even of  a specific kind, would extinguish these rights  in view of the fact that such rights had been  confirmed by the Royal Proclamation of 1763."  :  Is that a judgment of the court or is that Mr.  Justice Norris?  That's Mr. Justice Norris.  :  Just on his own?  Yes.  :  And in view of the Court of Appeal's decision in 2383?  Submission by Mr. Rush  1 Meares Island, would it follow that that pronouncement  2 would no longer be law in view of the split on this  3 view in the Supreme Court of Canada in Calder?  4 MR. RUSH:  I think not, my lord.  I think that it's not a  5 decided question by any means, but neither is it a  6 rejected question.  And I'm not advancing Mr. Justice  7 Norris as having been affirmed by a higher court, but  8 I'm advancing it as sound reasoning which your  9 lordship should follow.  10 THE COURT:  Yes.  All right.  11 MR. RUSH:  In the decision of Mr. Justice Norris the statutory  12 effect of the Proclamation we say was equal to that of  13 an Imperial statute since it is only the latter that  14 is protected from colonial override.  And reference is  15 there made to the Colonial Laws Validity Act, again, a  16 statute to which we will be returning.  17 While it is clear that aboriginal title is a  18 common law right, not dependent upon the Royal  19 Proclamation, the Indian Act, or any other legislative  20 recognition, and for this we rely on Guerin v. the  21 Queen, a common law right may be given statutory  22 effect by such legislation.  And as Mr. Justice Norris  23 concluded, the Proclamation was "declaratory and  24 confirmatory of aboriginal rights."  And that's found  25 at page 636.  And we will be asking your lordship to  26 find as well, as Mr. Justice Norris did, that the  27 Royal Proclamation was declaratory and confirmatory  28 and recognized the aboriginal rights as we will urge  29 their definition to be upon your lordship.  30 Now, in terms of the principles of interpretation,  31 and here, my lord, I will advise you that the  32 interpretive texts apparently did not find their way  33 into our authorities, but I think that many of these  34 are well known principles and I don't intend to dwell  35 on them.  Prerogative orders, such as Proclamations,  36 are the exercise by the sovereign of her residual  37 powers to legislate without the authority of  38 Parliament and consequently they are, as are statutes,  39 original legislation.  Legislation under the  40 prerogative powers of the Crown is to be construed in  41 the same manner as statutes.  42 Now, in interpreting the Proclamation as a  43 statute, the court cannot properly determine its  44 meaning apart from the historical context in which it  45 arose and the matters to which it was addressed.  This  46 history provides a valuable window into the mischief  47 or state of affairs which the various provisions of 23839  Submission by Mr. Rush  1 the Proclamation were intended to deal with.  Looked  2 at purposively the Proclamation was intended to deal  3 with certain mischief especially in respect of the  4 Indians.  5 Now, there are two principles of construction  6 which will assist the court in construing the  7 Proclamation, and the first is in the principle that  8 the ordinary sense of the words used is to be adhered  9 to unless that would lead to an absurdity, some  10 repugnance or inconsistency with the rest of the  11 statute.  This is called a canon of construction and  12 is sometimes referred to as the golden rule.  And I  13 there set it out as a passage from Craies.  14 Now, continuing in the next paragraph.  Where the  15 words are not plain, then the object and scope of the  16 Act may be considered.  And this is the rule in  17 Heydon's Case, which all of the texts quote, and here  18 I adopt or quote from Odgers' at 297.  And I ask your  19 lordship to have particular reference to that portion  20 of the second paragraph which begins at the bottom of  21 the page:  22  23 "If the words are not plain, the first thing to  24 do is to consider the object and scope of the  25 Act.  This involves a consideration of the  26 context, the setting in which the disputed  27 words are placed and the design of the whole  28 statute."  29  30 Carrying on with Heydon's Case:  31  32 "That for the sure and true interpretation of  33 all statutes in general, (be they penal or  34 beneficial, restrictive or enlarging of the  35 common law) four things are to be discerned and  36 considered:  1.  What was the common law before  37 the making of the act; 2.  What was the  38 mischief and defect for which the common law  39 did not provide; 3.  What remedy the Parliament  40 hath resolved and appointed to cure the disease  41 of the commonwealth.  And, 4. The true reason  42 of the remedy; And then the office of all the  43 judges is always to make such construction as  44 shall suppress the mischief, and advance the  45 remedy, and to suppress subtle inventions and  46 evasions for continuance of the mischief, and  47 pro privato commodo, and to add force and life 23840  Submission by Mr. Rush  1 to the cure and remedy, according to the true  2 intent of the makers of the Act, pro bono  3 publico."  4  5 Now, my lord, the plaintiffs consider this of  6 considerable import.  We say the court must determine  7 the true meaning of the words that have been used in  8 the statute according "to the true intent of the  9 makers of the Act..."  These rules of construction  10 will assist the court in determining the meaning of  11 the words used in the Proclamation.  In this case the  12 court will be greatly assisted by determining the  13 mischief and defect not provided in the common law and  14 determining what remedy the king resolved to cure "the  15 disease of the commonwealth".  The rules in Heydon's  16 Case have been adopted for construing constitutional  17 provisions.  And there we cite Federated Saw Mill  18 Employees.  19 The rule in Heydon's Case has also been recently  20 applied in the Ontario Court of Appeal decision in Re  21 Xerox.  And in this -- and I'll briefly cite from  22 their decision at page 436.  23  24 "If the court can determine the mischief or  25 defect that the statute was intended to remedy,  26 it should give the legislation a fair, large  27 and liberal interpretation as will best ensure  28 the attainment of the object of the Act."  29  30 We will ask this court to employ this method in  31 interpreting the Proclamation.  The mischief or defect  32 of the Proclamation can be determined and in the  33 circumstances the Proclamation should be given a fair,  34 large and liberal interpretation by your lordship.  35 Now, the mischief rule is codified in the  36 Interpretation Act, and it states in Section 11:  37  38 "Every enactment shall be deemed remedial, and  39 shall be given such fair, large and liberal  40 construction and interpretation as best ensures  41 the attainment of its objects."  42  43 Words of a wide and general meaning in a remedial  44 statute should be given a broad construction so as to  45 benefit the greatest numbers of peoples.  Such is  46 mandatory where the statute to be construed relates to  47 Indians.  And this is expressed by the Supreme Court 23841  Submission by Mr. Rush  1 of Canada in its decision in Nowegijick.  And I'll  2 cite just the relevant portions of that passage that's  3 set out on page 16 of our argument.  4  5 "It is legal lore that, to be valid, exemptions  6 to tax laws should be clearly expressed.  It  7 seems to me, however, that treaties and  8 statutes relating to Indians should be  9 liberally construed and doubtful expressions  10 resolved in favour of the Indians."  11  12 Now, this principle and other principles of  13 interpretation have come to be applied by the courts  14 to treaties and statutes relating to Indians.  And  15 this was recently restated by our own Court of Appeal  16 in these words, and I'm here citing from the  17 Saanichton Marina v. Claxton case.  These principles  18 were set out as the applicable interpretive canons, if  19 you will, of treaties and statutes relating to  20 Indians.  21  22 "(a) The treaty should be given a fair, large and  23 liberal construction in favour of the Indians;  24  25 (b) Treaties must be construed not according to the  26 technical meaning of their words, but in the  27 sense that they would naturally be understood  28 by the Indians,  29  30 (c) As the honour of the Crown is always involved,  31 no appearance of 'sharp' dealing should be  32 sanctioned;  33  34 (d) Any ambiguity in wording should be interpreted  35 as against the drafters and should not be  36 interpreted to the prejudice of the Indians if  37 another construction is possible;  38  39 (e) Evidence by conduct or otherwise as to how the  40 parties understood the treaty is of assistance  41 in giving it content."  42  43 I will just pause there my lord to say that in  44 Saanichton Marina, the particular instrumentality that  45 was being considered was a treaty, but I say,  46 following upon Nowegijick, that these principles are  47 equally applicable to statutes relating to Indians. 23842  Submission by Mr. Rush  1 Now, it is submitted, we say, that these  2 principles are applicable to the interpretation of the  3 Indian land provisions in the Royal Proclamation.  And  4 we ask your lordship to apply them when interpreting  5 the words and meaning of the Proclamation.  6 Now, part IV of the Proclamation was proclaimed  7 because of the fraudulent land dealings which white  8 settlers had visited on the Indian nations in North  9 America.  This had resulted in Indian discontent which  10 both threatened further hostilities as well as  11 disruption of the fur trade.  The mischief addressed  12 by the Royal Proclamation of 1763 extended back over  13 decades.  This history was been developed earlier in  14 the portion of the argument on "The Development of the  15 Fundamental Common Law Principles" to which Mr.  16 Jackson has already addressed your lordship.  But  17 briefly, the documentary history records the Crown's  18 commitment to deal with the Indian complaints and to  19 protect the Indian interest.  And I'm simply going to  20 refer to a few of these documents.  21 Firstly, instructions of the Board of Trade to  22 Osborne, and in that document it was stated to:  23  24 "Examine into the complaints (the Indians) have  25 made of being defrauded of their lands..."  26  27 Two, in 1756, the Delaware Chief Teedyuscung  28 addressed to the Governor of Pennsylvania:  29  30 "...But we think we should not be ill-used on  31 this account by those very people who now enjoy  32 the fruits of our lands;"  33  34 Three, at the Council of Easton, July 21st, 1757,  35 Teedyuscung spoke to the conference:  36  37 "The land is the cause of our difference that is  38 our being unhappily turned out of the land is  39 the cause, and tho the first settlers might  40 purchase lands fairly, yet they did not act  41 well nor do the Indians justice for they ought  42 to have reserved some place for the Indians."  43  44 Fourth, in his letter of July 21, 1758 Johnson to  45 Denny, Johnson says "Giving them satisfaction with  46 regard to their land complaints,"  47 Now, my lord, the mischief was further evident 23843  Submission by Mr. Rush  1 from a Proclamation already referred to in argument by  2 Mr. Jackson, the Proclamation of Henry Bouquet,  3 British military commander at Fort Pitt, and while Mr.  4 Jackson did not refer you to the recital clause, I  5 will briefly.  And in this recitation Mr. Bouquet said  6 this:  7  8 "Whereas by a treaty held at East Town in the  9 year 1758, and since ratified in his Majesty's  10 Ministers, the country to the west of the  11 Allegany Mountains is allowed to the Indians  12 for their hunting ground, and as it is of the  13 highest importance to His Majesty's service,  14 the preservation of the peace and a good  15 understanding with the Indians, to avoid giving  16 them any just cause of complaint, this is  17 therefore to forbid any of His Majesty's  18 subjects to settle or hunt to the west of the  19 Allegany Mountains on any pretence whatsoever."  20  21 Now, my lord, in the evidence of Mr. Morrison it  22 was testified that Fort Pitt was in the Ohio country  23 and the Ohio company of Virginia had received various  24 land grants in the region of the Ohio Valley.  But by  25 the Treaty of Easton with the Six Nations and the  26 Delawares in 1858, Pennsylvania and other colonies had  27 agreed not to settle beyond the Allegany Mountains;  28 but, Virginia and Maryland did not recognize the  29 treaty and were thereby allowing people to settle in  30 the Ohio Valley and to take up lands under the Ohio  31 Company grants.  Various Virginia land speculators  32 were involved in this settlement process.  Bouquet had  33 taken the position that Virginia and Maryland were  34 bound by the Easton Treaty, and Bouquet's Proclamation  35 was designed to forbid any of His Majesty's subjects  36 from settling west of the Allegany Mountains on any  37 pretence.  And as has already been referred to by Mr.  38 Jackson, this is the first instance after prohibition  39 of a settlement west of the Alleganys.  40 Now, in a letter from Johnson to Colden, who was  41 then Acting Governor of the Colony of New York, in  42 February of 1761 Sir William Johnson outlined a series  43 of problems between the Indians and settlers who were  44 taking up lands in New York, and in part he said, and  45 I'm here at the top of page 20 of the argument:  46  47 "As there has been and still are abuses and 23844  Submission by Mr. Rush  1 unfair means used with them, (the Indians)..."  2  3 That's my addition.  4  5 "...for obtaining deeds for their lands, which  6 may not, and they cannot be well cognisable to  7 a Governor, I think it my duty to give you a  8 hint of it, and endeavour all in my power to  9 prevent their being defrauded, as I am fully  10 sensible that nothing can tend more to alienate  11 their affection and attachment from His  12 Majesty's Interests, then the pressing them to  13 dispose of their Lands, and that often be  14 unwarrantable means."  15  16 Now, Johnson, in his letter, refers to meeting  17 with the Indians and that the Indians had asked him to  18 write to the Governor of the Colony of New York, and  19 that passage has been referred to.  At page 340 of the  20 same document, Johnson concluded:  21  22 "But I fear if they (the Indians) are not done  23 justice too soon and the grievances redressed,  24 it may turn out a more serious affairs that we  25 are apprehensive of."  26  27 Now, the problems involving the settlers and the  28 way in which land grants were being taken up in the  29 colony of New York was raised again by Sir William  30 Johnson to Colden in June of 1761.  And he said the  31 French had been telling the Indians that the English  32 intended to make slaves of them and have their lands  33 taken from them.  And Johnson went on to say in his  34 letter, and I'll quote it in part:  35  36 "I cannot Sir consistent with the duty I owe His  37 Majesty and the good of the Service I am by him  38 employed in avoid acquainting you, I am very  39 apprehensive that pressing the Indians so much  40 to dispose of their lands and that in such  41 great Quantities contrary to their Inclinations  42 at present, will give them great umbrage and  43 alarm all the Nations and probably produce  44 consequences which may be very prejudicial to  45 His Majesty's interests, and stop the settling  46 of the country."  47 23845  Submission by Mr. Rush  1 Now, my lord, the fraudulent land dealings of the  2 white settlers was addressed by the Lords of Trade in  3 their draft instructions to the king on December the  4 2nd of 1761.  And at page 5478 of these instructions  5 the Lords of Trade set out their complaints.  6  7 "We therefore taking this matter into Our Royal  8 Consideration as also the fatal Effects which  9 would attend a discontent amongst the Indians  10 in the present situation of affairs, and being  11 determined on all occasions to support and  12 protect the same Indians in their just rights  13 and possessions and to keep inviolable the  14 Treaties and Compacts which have been entered  15 into with the Indian."  16  17 The instructions then went on to prescribe a cure  18 for the evil by enjoining and commanding the governors  19 and their officials.  20  21 "Upon any pretext whatever, upon pain of Our  22 Highest Displeasure and being forwith removed  23 from your or his office, pass any Grant or  24 Grants to any person whatever of any lands  25 within or adjacent to the Territories possessed  26 or occupied by the said Indians or the Property  27 Possession of which has at any time been  28 reserved to or claimed by them."  29  30 Now, my lord, I say that this language is similar  31 to the language later used in the Royal Proclamation  32 some two years later.  The governors were required to  33 publish a Proclamation prohibiting persons from  34 remaining on lands reserved to or claimed by the  35 Indians which were ceded to them without lawful  36 authority.  Those draft instructions were approved and  37 officially used.  38 Now, my lord, in the years up to the issuing of  39 the Royal Proclamation settlement had been permitted  40 on Indian land by some of the old colonies and as a  41 result settlers encroached upon lands protected by  42 treaty or claimed by the Indians.  This led to serious  43 dissatisfaction by the Indians and threats of  44 hostilities which the authorities sought to prevent by  45 the restriction of land granting and settlement on  46 Indian lands.  Now, I ask you to note our conclusion  47 here.  These, then, were the historical facts which 23846  Submission by Mr. Rush  1 show the mischief that was dealt with in the Royal  2 Proclamation.  The sharp dealings and "abuses and  3 unfair means used...for obtaining deeds for their  4 lands" was the mischief addressed by the Proclamation.  5 Now, in a letter of the Earl of Egremont to  6 Jeffery Amherst, who was the Commander of the King's  7 Forces in North America, of January of 1763, shows  8 that the settlers were persisting in making pretended  9 purchases of Indian land from the Indians and settling  10 on Indian's lands contrary to the Indian interests.  11 And Egremont said this:  12  13 "His Majesty having it much at heart to  14 conciliate the Affection of the Indian Nations,  15 by every Act of strict Justice, and by  16 affording them His Royal Protection from any  17 encroachment on the lands they have reserved to  18 themselves, for their hunting grounds and for  19 their own Support and Habitation..."  20  21 He, Egremont, then informed Amherst that a plan  22 for this was desirable and actually under  23 consideration.  And this letter, my lord, started a  24 string of events and document exchanges leading to the  25 Royal Proclamation, and I should say the issuance of  26 the Royal Proclamation, and what we say the cure to  27 "most effectually prevent so great an evil", language  28 used in the document of the Earl of Egremont.  29 Now, my lord, by the Proclamation, paragraph 4(a),  30 and I'll just ask you to refer back to that, if you  31 will have the part beforehand, we say that the British  32 wanted to convince the Indians that they would be  33 treated justly and honourably.  And I refer you to the  34 language of "Our Justice" in the part IV,  35 sub-paragraph (a), in respect of land dealings with  36 whites.  And I ask you to note the words, and these  37 were with whites at that time, and I submit, my lord,  38 the language in the second -- I'm sorry, the fifth  39 line down, "for the future".  And I ask you to take  40 note of that, that this was intended to apply as at  41 that time, namely, that Indians would be treated  42 justly and honourably then and for the future.  And in  43 order to achieve this goal, the cause of  44 dissatisfaction was to be removed.  And I direct you  45 to the language "Resolution to remove all reasonable  46 cause of discontent" in that paragraph.  Now, these  47 objectives were, I say, prefigured in the preamble to 23847  Submission by Mr. Rush  1 part IV by the King's opening words to the whole of  2 part Roman IV.  And here the king proclaimed:  "And  3 whereas it is just and reasonable, and essential to  4 Our Interest and the Security of Our Colonies,..."  5 And I say, my lord, on the top of page 24, that  6 the whole of part IV was aimed at bringing about an  7 Imperial cure.  The cure was found in the restrictions  8 on land grants and settlements, the confirmation of  9 the principle of inalienability of Indian land title,  10 except to the Crown, the licensing of the fur trade,  11 and the enforcement of the criminal law against  12 fugitives in the lands reserved for the Indians.  13 Now, I would like to take you to a somewhat more  14 detailed consideration of part IV in the sub-paragraph  15 (c) entitled an analysis of part Roman IV of the  16 Proclamation.  Now, part IV recognizes that lands  17 possessed by Indians anywhere in British North America  18 are reserved to them unless or until ceded to the  19 Crown or its representatives and protects this  20 territorial integrity by restrictions on grants,  21 settlements and purchases.  It also temporarily closes  22 to colonization, subject to Indian consent, large  23 parts of the North American interior, reserving it for  24 the use of the Indian Nations, but designated it a  25 free trade zone.  For the time being, settlement is to  26 be restricted to the new colonies of Quebec, east  27 Florida and west Florida, to Rupert's Land, and to the  28 areas east of the Appalachian Mountains along the  29 Atlantic seaboard.  To the extent that future  30 settlement is permitted by the Crown on lands which  31 Indian Nations are prepared to sell, purchase is to be  32 made according to the treaty protocol at a public  33 meeting in an assembly of the Indians by a  34 representative of the Crown.  Moreover, the  35 Proclamation contemplates no intrusion into the powers  36 of tribal self-government.  37 Now, my lord, I'd like to deal firstly with the  38 recognition in the Proclamation of pre-existing  39 rights.  Now, it's our submission that the recognition  40 of pre-existing legal rights of Indian Nations to  41 their territories is an integral part of part Roman  42 IV.  Thus, the recital, and I'd ask you to consider  43 this, my lord:  44  45 "And whereas it is just and reasonable, and  46 essential to our Interest, and the Security of  47 our Colonies, that the several Nations or 23848  Submission by Mr. Rush  1 Tribes of Indians with whom We are connected,  2 and who live under our Protection should not be  3 molested or disturbed in the Possession of such  4 Parts of our Dominions and Territories as..."  5  6 And here are the words I direct your attention to  7 specifically.  8  9 "...not having been ceded to or purchased by Us,  10 are reserved to them, or any of them, as their  11 Hunting Grounds.  "  12  13 Now, it is our submission, my lord, that this  14 recital contains within its text the most  15 comprehensive recognition of the pre-existing land  16 rights of the Indian nations.  And I would ask you to  17 consider Dr. Slattery's view of this language, which  18 view we adopt in these circumstances.  19  20 "In effect, the text assumes an already existing  21 situation whereby certain lands are reserved  22 for Indian use, and states the necessity of  23 safeguarding them from invasion.  Which lands  24 are viewed as reserved?  They are described as  25 'such parts of our dominions and territories'  26 as have not 'been ceded to or purchased by us'  27 and are in Indian 'possession'.  The  28 conjuncture of these factors is taken to  29 characterize the lands in question.  This  30 presupposes that lands possessed by indigenous  31 peoples which have not been ceded to or  32 purchased by the Crown are reserved for their  33 use.  The references to cession and purchase  34 likewise presume the existence of interests  35 susceptible of being ceded and bought, that is,  36 interests amenable to legal transfer, at least  37 to the Crown.  In sum, the preamble recognizes  38 that Indians hold rights to unceded lands in  39 their possession through the British Dominions  40 in North America."  41  42 Now, that the Proclamation was "declaratory and  43 confirmatory" of existing aboriginal rights is  44 supported by the weight of judicial authority.  And I  45 cite White & Bob and Calder for that proposition.  46 THE COURT:  Is this a convenient place to adjourn, Mr. Rush?  47 MR. RUSH:  Yes, my lord, if your lordship wishes. 23849  Submission by Mr. Rush  1 THE REGISTRAR: Order in court. Court stands adjourned until two  2 o'clock.  3  4 (PROCEEDINGS ADJOURNED FOR LUNCH RECESS)  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein transcribed to the  9 best of my skill and ability.  10  11    12 Tanita S. French  13 Official Reporter  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 23850  Submissions by Mr. Rush  1 (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2  3 THE COURT:  Mr. Rush?  4 MR. RUSH:  My lord, I had left off with the proposition that the  5 Proclamation was "declaratory and confirmatory" of  6 existing aboriginal rights and it was -- that  7 proposition was supported in the authorities.  8 I wanted to direct your attention to R. vs. White  9 and Bob. and the statement of Mr. Justice Norris, and  10 your lordship will recall that that's to be found in  11 Volume Roman VIII at tab 13, at page 630, where Mr.  12 Justice Norris said, among other things, and I quote:  13  14 "The Proclamation of 1763 was declaratory and  15 confirmatory of such aboriginal rights and  16 applies to Vancouver Island."  17  18  19 In Calder Mr. Justice Hall -- and this reference is  20 to be found in our authorities at Volume Roman II at  21 tab 35, at page 203, Mr. Justice Hall said this, and I  22 quote:  23  24 "Paralleling and supporting the claim of the  25 Nisga'as that they have a certain right or  26 title to the lands in question is the guarantee  27 of Indian rights contained in the Proclamation  28 of 1763."  29  30 He goes into the consideration of the St.  31 Catherine's Milling and that -- and the  32 Proclamation and states at the bottom of 203:  33  34 "In respect of this Proclamation it can be said  35 that when other exploring nations were showing  36 the ruthless disregard for native rights,  37 England adopted a remarkably enlightened  38 attitude towards the Indians of North America.  39 The Proclamation must be regarded as a  4 0 fundamental document upon which any just  41 determination of aboriginal rights rests."  42  43  44 And then Mr. Justice Judson's comments are to be  45 found at page 152, the same judgment, after citing at  46 considerable length the decision in St. Catherine's  47 Milling of the Privy Council Mr. Justice Judson said 23851  Submissions by Mr. Rush  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 :  "There can be no doubt that the Privy Council  found that the Proclamation of 1763 was the  origin of the Indian title."  And then he cites the passage  THE COURT:  He said was the origin?  MR. RUSH:  Was the origin of the Indian title.  THE COURT:  You don't agree with that, do you?  MR. RUSH:  No, I don't.  He is citing, however, he is citing St.  Catherine's Milling.  THE COURT:  And you don't agree with that either?  MR. RUSH:  Not that part of St. Catherine's Milling, my lord.  But he does go on to say:  "I do not take these reasons to mean that the  Proclamation was the exclusive source of Indian  title. "  MR. GOLDIE:  He also goes to to say that he agrees with the  British Columbia court that the Proclamation has no  bearing upon the problem of Indian title in British  Columbia.  MR. RUSH:  I am sure my friend will make that argument.  THE COURT:  I am sure he will.  Pre-figuring.  MR. RUSH:  The recognition, my lord, carrying on at page 26, the  recognition of the pre-existing aboriginal title and  rights is reinforced in the subsequent provisions of  Part IV of the Proclamation.  In paragraph one the  governors of the new colonies are prohibited from  issuing warrants of survey or patents beyond the  bounds of their respective governments and the  governors in any of the other colonies in America are  also prohibited.  And the quote from paragraph one is:  "For the present, and until our further pleasure  be known to grant Warrants of Survey, or pass  Patents for any lands beyond the heads sources  of any of the rivers which fall into the  Atlantic Ocean from the West or North West or  upon any lands whatever, which not having been  ceded or purchased by Us as aforesaid, are  reserved to the said Indians, or any of them."  And I would just ask your lordship to note the  last clause there. 23852  Submissions by Mr. Rush  1 In paragraph 3, the Proclamation requires the  2 removal of any settlements which have been made  3 wilfully or inadvertently "upon any lands which not  4 having been ceded to or purchased by Us or still  5 reserved to the said Indians as aforesaid."  6 In both passages, my lord, reserved lands are  7 identified as unceded lands, and the words "as  8 aforesaid", in our submission, refers back to the more  9 complete description given in the preamble.  So, I am  10 asking your lordship to look at the paragraphs 1, 3  11 and 2 as they relate back to the preamble, and the  12 description that is given in a more complete form at  13 that point.  14 This coincidence between lands reserved to the  15 Indians and lands not having been ceded to or  16 purchased by the Crown, is not accidental, arising as  17 it does from amendments made to the draft Proclamation  18 by John Pownall.  And the reference there, my lord, is  19 to Exhibit 1026-30, and it is the second document, the  20 opinion of York is the first document in that tab and  21 this is the second and I direct your attention to page  22 188, which shows Mr. Pownall's striking out of the  23 language and including this language to which I have  24 just made reference.  25 Now, turning to the Restriction on Settlement:  The  26 Indian Country, and the argument on page 27, in  27 addition to recognizing and protecting the principle  28 of territorial integrity of Indian lands, the  29 Proclamation imposed a moratorium on settlement on a  30 vast area of North America.  The areas closed to  31 settlement are described in paragraph two and, my  32 lord, paragraph two is there set out.  33 Now this clause recognizes as exclusively Indian  34 territory the lands outside the boundaries of three  35 new colonies:  Quebec, East and West Florida, lands  36 beyond the limits of the Hudson's Bay Company's  37 territories and all those lands west of the  38 Appalachian Mountains.  The provisions of paragraph 2  39 are reinforced by those in paragraph 1, which has been  40 previously set out, probibiting the new colonies from  41 granting lands beyond their boundaries and the other  42 colonies from patenting beyond the Appalachian  43 boundary.  44 The Crown also restricted the movement of settlers  45 into the American territory.  Specific areas were open  46 to settlement; the remainder of British North America  47 was sealed off for the time being as the Indian 23853  Submissions by Mr. Rush  1 country.  2 Now, my lord, in paragraph two, of part Roman IV,  3 the Indian country is defined negatively as those  4 those territories lying beyond a certain defined  5 limit.  Now the limits were these:  6 Firstly, the boundary of the three new colonies,  7 Quebec, East Florida and West Florida;  8 Secondly, the limits of the Hudson's Bay Company  9 territories, namely Rupert's Land;  10 and, (c) the sources of rivers falling into the  11 Atlantic Ocean from the west and northwest, roughly  12 speaking, the watershed formed by the Appalachian  13 Mountain chain.  14 Now, beyond these limits, the area was set aside  15 for Indian use and barred to settlers.  Stated another  16 way, my lord, the areas excluded from the Indian  17 country were to the south, the new colonies of West  18 and East Florida, situated along the coast of the Gulf  19 of Mexico, from the Mississippi River to the Florida  20 Peninsula;  21 Secondly, on the east the settled areas of the  22 ancient colonies that lie between the Appalachian  23 Mountains and the sea, from East Florida north to Nova  24 Scotia;  25 Three, the new government of Quebec, a geometrical  26 wedge encompassing most of the St. Lawrence Valley,  27 and that's defined part in Roman XII, paragraph two;  28 And four, the lands granted to the Hudson's Bay  29 Company on the north which itself was ill-defined.  30 Now, my lord, I would like to direct your attention  31 to Exhibit 1168 to assist your lordship in  32 appreciating what we say is the new government of  33 Quebec, because as it's difficult to determine just  34 what those boundaries were intended to be by the  35 description given in the text.  And I would like you  36 to look, if you will, please, at tab 9 of Exhibit  37 1168-9, which I think gives a visual depiction in this  38 map of the Quebec boundary as being the geometrical  39 wedge of which I speak.  This is the -- Her Majesty's  40 forces map of the containment and I --  41 THE COURT:  I am sorry, you're relating this to item three on  42 page 22?  43 MR. RUSH:  That's right, to give your lordship a sense of what  44 the boundary was as it was described in the  45 Proclamation, paragraph one, part one.  And your  46 lordship can get a sense of the nature of the boundary  47 by the black, the thick black line enclosing the area 23854  Submissions by Mr. Rush  1 of Quebec.  And I would just ask you to note, my lord,  2 that there is a gap between what is considered to be  3 the Rupert's Land boundary and the boundary of Quebec.  4 That gives you some sense as what the boundary was  5 perceived as being under the Proclamation three years  6 later.  7 Now, my lord, just returning to the argument, the  8 bottom of page 29, I think from these exclusions it is  9 clear that there is a gap between the boundaries of  10 Quebec and those of Rupert's Land, and that's I think  11 depicted on 1168-9 and no mention is made of the  12 Labrador coast.  13 The Indian country is therefore "all of the lands  14 and territories" not included within those four areas.  15 Now, by the plain language of the Proclamation, my  16 lord, the Indian country includes the entirety of  17 British territories in North America, save and except  18 the four regions mentioned.  And I am over on to the  19 pop of 30 now.  20 Now, my lord, as to the western limit of the Indian  21 country, the the Lords of Trade letter to Egremont on  22 8 June, 1763, is reflective of the historical  23 situation as understood at least by the board at that  24 time.  And in their report of that date, they said  25 this, and I quote:  26  27 "Canada as possessed and claimed by the French  28 consisted of an immense tract of country... "  29  30 And I would ask you to take into account the  31 bolden in this quotation,  32  33 "...including as well the whole lands to the  34 westward indefinitely, which was the subject of  35 their Indian trade, as all that country from  36 the southern bank of the River St. Lawrence,  37 where they carried on their encroachments.  38 It is needless to state with any degree of  39 precision the bounds and limits of this  40 extensive country, for we should humbly propose  41 to Your Majesty that the new government of  42 Canada should be restricted so as to leave on  43 the one hand, all the lands lying about the  44 Great Lakes and beyond the sources of the  45 rivers which fall into the St. Lawrence from  46 the north to be thrown into the Indian country.  47 23855  Submissions by Mr. Rush  1 Now, my lord, the document expresses the historical  2 situation at the time, and no boundary was expressed  3 for the Indian country to the northwest by the Lords  4 of Trade.  It is telling that the Proclamation is also  5 silent on that boundary.  The reason, I submit, is  6 obvious:  Why would the British limit their claim and  7 limit their access to the to the peltry trade to the  8 far west?  No boundary was necessarily implied from  9 this or any other preceding document.  10 Now, my lord, still dealing with the question of  11 the boundary, the northern coast of the old colony of  12 Nova Scotia is not clearly set out as it is not  13 described where the northernmost segment of the  14 Appalachian boundary line ends its course.  The  15 problem is that the northern part of the Nova Scotia  16 coast, from Chaleur Bay to George Bay drains into the  17 Guld of St. Lawrence rather that into the Atlantic  18 Ocean proper, while the description in paragraph 1,  19 part IV, speaks of rivers falling into the "Atlantik  20 Ocean."  21 My lord, I just want to pause here to say that the  22 boundary in the north, northernmost segment of the  23 Appalachian Chain is one that is in doubt because of  24 the, if you will, the different interpretations  25 permitted of the description of the southern boundary  26 of Quebec and the northern boundary of Nova Scotia as  27 can be seen from paragraph 1 of part I, and part IV,  28 paragraph 2.  29 Now, my lord, in his evidence, Dr. Farley  30 endeavoured to identify the watershed referred to in  31 part I of -- excuse me, paragraph 1 of part IV.  And  32 he stated:  33  34 "The most northerly point from which any stream  35 could be conceived as "falling into the sea" is  36 Mount Jacques Cartier located on the Gaspe  37 Peninsula in 48 degrees, 59 north, 57 degrees,  38 7 west."  39  40 He goes on to suggest that no such streams could  41 be conceived as flowing from the west and northwest  42 and falling into the Atlantic Ocean.  43 Now, this view argued by Dr. Farley on the basis of  44 contemporarly hydrological information on present day  45 maps, does not, in my submission, take into account  46 the language describing the watershed, nor the context  47 for the words used in paragraph 1 of Part I. 23856  Submissions by Mr. Rush  1 And, indeed, I wish to add, in paragraph 1 and 2 of  2 part IV.  The intention was to indicate the areas west  3 of a certain watershed which were closed to  4 colonisation reserved for Indian use, while lands  5 lying east of that divide, that is the Appalachian  6 Divide, were open for settlement.  The intention, in  7 my submission, of the language that's used in Part IV,  8 paragraph 1, was not to set up strict lines of  9 boundary for Indian lands to the westward, but to say  10 what was open for settlement and what wasn't.  11 Now, the Defendants' apparent position here is hard  12 to understand.  On Dr. Farley's evidence, the Gulf of  13 St. Lawrence is excluded from this expression, and the  14 boundary line encircles the drainage of the St. John  15 River and excludes the St. Lawrence Gulf as not being  16 part of the Atlantic.  And this interpretation does  17 not match the description of the southern limits of  18 Quebec set out in Part I, paragraph 2 in the  19 Proclamation.  20 This passage, that is to say, paragraph 2,  21 provides for a boundary running from a point east of  22 Lake Champlain at 45 degrees north latitude "among the  23 lands which divide the rivers that empty themselves  24 into the said River St. Lawrence, from those which  25 fall into the sea; and also those along the north  26 coast of Baye Des Chaleurs..."  And that's taken  27 directly from paragraph 2.  Here the description  28 referring to rivers falling into the sea cover those  29 emptyling into the Gulf of St. Lawrence as well as  30 those falling into the Atlantic proper, contrary to  31 Dr. Farley's rather unusual view of geography that a  32 river falling into a bay or gulf first does not  33 therefore fall into the ocean thereafter, in this  34 case, the Atlantic.  35 Now, my lord, we may be into some fairly fine  36 descriptions of geography here but, in my submission,  37 the major point is the intent of the framers behind  38 creating the Appalachian line at all and, in my  39 submission, the line was intended merely to determine  40 which areas were open for settlement and which ones  41 weren't.  And that's the intent, in my submission, of  42 paragraph 1 of Part IV.  43 Now, as to the coast of Labrador, it is clear from  44 the Proclamation's terms that Labrador forms part of  45 the Indian country and this falls from the fact that  46 Quebec and Rupert's Land are both specifically  47 excluded yet Labrador is not mentioned.  Of course, 23857  Submissions by Mr. Rush  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  THE COURT  MR. RUSH:  Labrador does not lie to the east of the Appalachian  Mountains.  Now finally, my lord, the description of the Indian  country in paragraphs 1 and 2, makes it clear that all  lands falling under British sovereignty in the west  and northwest, not comprised within Rupert's Land,  fell within the Indian territory.  Under the Treaty of  Paris, the western boundary of British territories in  North America follows the Mississippi River to its  source, which lies south of the modern Canadian border  on any reasonable understanding of the cartographic  and geographical knowledge contemporaneous with the  making of the Proclamation.  I will have more to say  on that later.  It is decisive that no boundary was stipulated  from northerly latitudes, and as we will urge, the  British domains were viewed as extending indefinitely  westward to the Pacific Ocean.  Now, my lord, as we have demonstrated, the concept  of a boundary line along the Appalachians dividing  areas within which British settlement was to take  place, and the area beyond the mountains within which  no settlement ought to be permitted except with the  consent of the Indian nations and the Crown, has a  long history originating in the covenant chain  treaties and endorsed at the Albany Conference of 1754  and the Treaty of Easton in 1758, and has been  reflected in governmental acts such as the Bouquet  Proclamation of 1761 and the Royal Instructions of 9  December, 1761.  These latter instructions, to which  reference has already been made, also constituted a  precedent for the prohibition on making grants to  lands in the possession of the Indians which had been  ceded to the Crown.  :  Not been ceded to the Crown.  Excuse me, not been ceded to the Crown.  Now, my lord, the 1761 Royal Instructions, which  are in Exhibit 1026-19, also foreshadowed paragraph 3  of Part IV of the Royal Proclamation.  And those Royal  Instructions provided:  "We do further strictly enjoin and require all  persons whatever who have either wilfully or  inadvertently seated themselves upon any lands  within the countries above described, or upon  any other Lands which not having been ceded to  or purchased by Us, are still reserved to the 2385?  Submissions by Mr. Rush  1 said Indians as aforesaid, forthwith to remove  2 themselves from such settlements."  3  4 In December of 1761, British North American  5 governors had been instructed by the King by a  6 circular letter from the King, to prosecute all  7 persons possessing or occupying lands claimed by the  8 Indians.  Such land were to be recovered, if  9 necessary, by the courts and returned to Indian  10 possession.  In adopting this method of enforcing  11 Indian territorial interests by mandatory injunction,  12 paragraph 3 of the Royal Proclamation reflects in  13 substance, procedures adopted Virginia Council in the  14 late 17th century as part of the implementation of the  15 Treaty of Middle Plantation.  16 Now, my lord, I simply pause here to point out what  17 I think is obvious in terms of this submission in  18 relation to submissions made to you by Mr. Jackson,  19 that the language of the boundary and its description  20 and the concept of boundary line were deeply rooted in  21 the years and decades prior to the issuance of the  22 Proclamation.  23 Now, moving to the question of the Treaty Protocol  24 for Purchase of Indian Lands, bottom of 34, the fourth  25 paragraph of the Proclamation, in setting out for the  26 future a legal protocol for the acquisition of Indian;  27 lands required for settlement, also affirms and  28 entrenches the principle of Indian consent and the  29 treaty making process which, as we have submitted,  30 characterized Indian-Crown relations from the time of  31 first contact.  32 Now, my lord, I have made reference to paragraph 4  33 (a) earlier, but I want to direct your attention now,  34 if you will, to the -- about the sixth line in  35 paragraph 4(a) and I quote:  36  37 "We do, with the advice of our Privy Council,  38 strictly enjoin and require that no private  39 person do presume to make any purchase from the  40 said Indians of any lands reserved to the said  41 Indians within those parts of our colonies  42 where we have thought proper to allow  43 settlement; but that if at any time any of the  44 said Indians should be inclined to dispose of  45 the said lands, the same shall be purchased  46 only for us ..."  47 23859  Submissions by Mr. Rush  1 That is to say the Crown,  2  3 "...in our name at some public meeting or  4 assembly of the said Indians to be held for  5 that purpose by the governor or commander-in-  6 chief of our colonies respectively within which  7 they shall lie."  8  9 Then he goes on to discuss or the Proclamation  10 goes on to discuss proprietory governments.  11 Now, my lord, it's our submission that in this  12 paragraph we find the referential incorporation of the  13 principal themes and principles which were the subject  14 matter of Treaties, Compacts and Royal Instructions  15 governing Crown-Indian relations in the pre-  16 Proclamation period.  We find the recital of the  17 frauds and abuses in the purchasing of Indian lands,  18 which were, as we have seen, a constant theme in  19 covenant chain conferences with the most dramatic  20 example being Lydius Deed for the Susquehanna lands.  21 My lord, I would simply like to pause here to state  22 that my earlier reference to specific documents  23 illustrating the sharp dealings or the frauds and  24 abuses perpetrated upon Indians, was not to limit to  25 those documents the full historical reach and  26 experience with regard to those frauds and abuses  27 submitted to you by Mr. Jackson.  28 Now, in prohibiting private purchases of Indian  29 lands, the Proclamation was confirming, as a matter of  30 Imperial law, provisions which were contained in  31 virtually all existing colonial laws which had been  32 reinforced from time to time by specific instructions  33 to colonial governors.  We give, by example, those  34 issued to Sir Danvers Osborn in September 1753,  35 wherein the governor of New York was warned to make no  36 grants of land purchased by persons "upon their own  37 accounts".  Osborn was told to ensure that all  38 purchases of Indian lands within his colony were to be  39 done at the public charge.  A year later, at the  40 Albany Conference, representatives of the various  41 colonies attending recommended that "all future  42 purchases of lands from the Indians be void unless  43 made by the government where such lands lye and from  44 the Indians in a body in their public councils."  45 The Proclamation affirms the principle that a  46 purchase from the Indians is the sole method of  47 acquiring Indian lands and affirms that the exclusive 23860  Submissions by Mr. Rush  1 legal process for that acquisition must be a public  2 meeting or assembly of the Indians held by  3 representatives of the Crown with the purchase being  4 made in the name of the Crown.  This principle and  5 process for the acquisition of Indian land rights,  6 while reflecting both the principles and process under  7 pending covenant chain treaty making, is a direct  8 reflection of Lord Egremont's recommendations or  9 "lights" in his the letter to Board of Trade, 5 May,  10 1763 that "a fair purchase" was the only method deemed  11 acceptable in acquiring Indian lands.  12 Now, a final point regarding paragraph 4 is that  13 the principle and process of acquiring Indian lands by  14 fair purchase is "to the end that the Indians may be  15 convinced of our justice".  As we have submitted, the  16 appeal to principles of justice underpinning Indian  17 insistence that their territorial integrity be  18 respected and that no settlement be permitted except  19 on lands which they have ceded to the Crown by treaty  20 is one of the dominant themes of the pre-Proclamation  21 period.  It is an appeal made by representatives of  22 the Indian nations, for example, Chief Canassatego, at  23 the Treaty of Lancaster in 1744, where as chief  24 spokesman for the Six Nations addressing the Maryland  25 commissioners regarding the Indians' repeated  26 complaints regarding settlement on lands claimed by  27 the Six Nations, he stated:  28  29 "We had no design to terrify you, but to put you  30 on doing us the justice you had so long  31 delayed."  32  33 The appeal to justice is one which also features  34 predominantly in the diplomacy of Sir William Johnson.  35 And I have touched on this earlier.  We have seen in  36 addressing the Iroquois at the Mount Johnson  37 Conference in 1755 regarding their complaints,  38 regarding the two deeds signed after the Albany  39 Conference in 1754, the one to the proprietor of  40 Pennsylvania and the other to Colonel Lydius on behalf  41 of the Susquehanna Company, Johnson distinguished the  42 process under which these lands had been ceded by  43 reference to principles of justice relating to the  44 voluntariness and public nature of the Indian consent  45 to the cessions:  46  47 "If Coll Lydius hath done as you represent and 23861  Submissions by Mr. Rush  1 which I am affraid is in a great measure true,  2 [Lydius is alleged to have gotten several of  3 the Indian leaders drunk], I think, he is very  4 faulty, and nobody so attempt to settle Lands  5 upon such unfair purchases.  I will endeavour  6 all in my power that justice may be done you in  7 this affair."  8  9 And then, my lord, in the next paragraph, as to  10 the deed made in favour of the proprietor of  11 Pennsylvania, Johnson distinguished that in the  12 proceedings, and I will simply direct your attention  13 to that and move down to the next paragraph.  14 In terms of the period immediately preceding the  15 Proclamation, it should be recalled that Egremont in  16 his May 5 communication to the Lords of Trade,  17 provided this rationale for the provisions which came  18 to be embodied in the Proclamation:  19  20 "His Majesty's justice and Moderation inclines  21 him to adopt a more eligible Method of  22 conciliating Minds of the Indians by the  23 Mildness of His Government by protecting their  24 persons and property and securing to them all  25 the possessions rights and privileges they have  26 hitherto enjoyed, and are entitled to most  27 cautiously guarding against any invasion or  28 occupation of their hunting lands their  29 possession of which is to be acquired by fair  30 purchase only."  31  32 Now, moving to the question of the geographical  33 scope of recognition of Indian rights, we say that the  34 preamble established as reserve lands "such parts of  35 our Dominions and Territories" as are unceded.  And  36 this is plain in the language of the preamble, being  37 part Roman IV.  The phrase is unqualified and applies  38 to all of the North American possessions of Britain.  39 as argued earlier, the preamble contemplates the  40 Indian possession of reserve lands as pre-existing,  41 not one that arises from the Proclamation itself.  And  42 this is borne out by the historical evolution of  43 treaty making and recognition of the Indians'  44 territorial rights in North America.  45 Now in paragraph 3 the language directs the removal  46 of settlements upon "any other lands within the  47 countries above described."  And this, my lord, as I 23862  Submissions by Mr. Rush  1 said earlier, refers back to the Indian country  2 delineated in paragraph two and also continuing in  3 paragraph 3, "upon any other lands which not having  4 been ceded to or purchased by us are still reserved to  5 the said Indians as aforesaid."  6 Now, read together with the preamble, this  7 phraseology in paragraphs 2 and 3 must surely indicate  8 that reserve lands are unrestricted.  9 This interpretation is supported as well in  10 paragraph 1, where the language pre-supposes that  11 reserve lands are not restricted to the Indian  12 country, and takes the absence of a cesion to the  13 Crown as the mark of continuing rights.  Paragraph 1  14 forbids the old colonies to grant patents, inter alia,  15 "upon any lands whatever which not having been ceded  16 to or purchased by us as aforesaid are reserved to the  17 said Indians or any of them" and the phrase "any lands  18 whatever" is all-inclusive and can only mean that  19 protection was being afforded to all unceded land  20 throughout the King's dominions on the continent of  21 North America.  The Proclamation would have taken  22 precedence over any Royal Instruction at the time.  23 There were no instructions to the governors which  24 would have in any way limited the scope of the lands  25 reserved for the Indians.  26 Finally, my lord, paragraph 4, sub (a), prohibits  27 private persons from purchasing "any lands reserved to  28 the said Indians within those parts of our colonies  29 where we have thought proper to allow the settlement".  30 The areas considered proper for settlement as argued  31 above, were exactly those excluded from the Indian  32 country.  Paragraph 4 (a), in our submission, makes no  33 sense if reserve lands do not exist outside of the  34 colonies thought proper for settlement.  35 Now, the scope of recognition of the Proclamation  36 was considered by the the Privy Council St.  37 Catherine's Milling vs. R..  Lord Watson, speaking for  38 the board, gave a detailed summary of the preamble in  39 the first two paragraphs of Part IV and he concluded:  40  41 "Their possession, such as it was, can only be  42 ascribed to the general provisions made by the  43 Royal Proclamation in favour of all Indian  44 tribes then living under the sovereignty and  45 protection of the British Crown."  46  47 Lord Watson attributed the Indian land interests 23863  Submissions by Mr. Rush  1 in question to "general provisions" favouring "all  2 Indian tribes" living under British sovereignty.  He  3 relied upon the general recognition afforded to Indian  4 lands, rights in the preamble in paragraph 1 which he  5 quoted.  6 Now, in Regina and Isaac  Chief Justice MacKeigan  7 said this:  8  9 "The Proclamation in it's broad declaration as  10 to Indian rights applied to Nova Scotia  11 including Cape Breton.  Its recital  12 acknowledged that in all colonies, including  13 Nova Scotia, all land which had not been 'ceded  14 to or purchased by' the Crown was reserved to  15 the Indians as 'their hunting grounds'."  16  17 Now, my lord, it's our submission that the  18 reference of a juridical state of affairs in the  19 recital of an enactment is good authority and the  20 court should be bound by the interpretation we urge  21 upon it.  22 In the case of Oyekan v. Adele, after quoting the  23 preamble to the Nigerian Ordinance, Lord Denning said  24 this:  25  26 "Their lordships regard that recital as an  27 authoritative statement by the British Crown of  28 the effect of the treaty.  Similarly, the  29 preamble in the Proclamation should be regarded  30 as an authoratative statement of the effects  31 attending the Crown's acquisition of American  32 territories."  33  34  35 Now, in my submission, my lord, that proposition  36 applies with equal force to the preamble of Part IV.  37 Further, on 42, where a statutory provision assumes  38 the existence of juridical situation or rule and draws  39 therefrom its sense and efficacy, a court must  40 normally give effect to that assumption as far as  41 necessary to implement the provision, even where the  42 correctness of the assumption might be doubted and we  43 cite Norton vs. Spooner for that.  44 The language, my lord, of the Proclamation in the  45 preamble to Part IV and contained in paragraphs 1 and  46 3 of the text, recognizes and confirms Indian title to  47 the categories of land described therein throughout 23864  Submissions by Mr. Rush  1 all the of the British territories in North America.  2 If they were unceded to the Crown or its  3 representatives anywhere in the British territories in  4 North America, they were lands recognized and  5 confirmed by the Proclamation.  6 Now, given that both unceded lands within the  7 Indian country, and those within the boundaries of the  8 new and existing colonies, are similarly protected by  9 the restrictions governing purchase of settlements and  10 land grants, the question remains as to why any  11 differentiation is drawn between the two in the text  12 of the Proclamation.  Professors Slattery and Stagg in  13 the two most exhaustive textual and contextual  14 analyses of the Proclamation, concur that the answer  15 lies in the degree of control exerted by the Imperial  16 Crown.  Thus, in respect of Indian lands within the  17 existing and new colonies, the governor or commander-  18 in-chief would proceed to purchase these lands in  19 conformity with the land purchase provisions of the  20 Proclamation without further permission from the  21 Imperial Crown.  22 However, for those lands within the Indian country,  23 as defined in paragraph 2, no purchases or settlements  24 could take place "without Our", that is to say, the  25 Imperial or Crown, "especial leave and licence for  26 that purpose first obtained."  27 Now, by imposing this additional burden of  28 obtaining Imperial prior authorization for land  29 purchases, the Crown directly controlled the pace of  30 colonization in its ability to preserve a protectorate  31 role for the Indian nations.  And the passages from  32 Slattery and Stagg are there cited.  33 The reason for distinguishing Indian lands within  34 the Indian country west of the Appalachians and Indian  35 lands within the boundaries of colonies in terms of  36 the degree of Imperial control over their future  37 acquisition, is directly relateed to the Crown's views  38 regarding colonial expansion in North America.  As the  39 various documents leading up to the drafting of the  40 Proclamation reflect, the areas into which settlement  41 was to be encouraged in North America, was along the  42 Atlantic Seaboard.  By closing off the area west of  43 the Appalachians to settlement, Britain would achieve  44 a more orderly expansion of its existing seaboard  45 colonies, which would satisfy the twin objectives of  46 doing justice and preserving peace with the Indians  47 and also discouraging development of colonial 23865  Submissions by Mr. Rush  1 commercial, particularly manufacturing enterprises in  2 remote areas to the detriment of British commerce and  3 manufacturing.  4 As we have seen, the mercantilist rationale was  5 particularly developed in Ellis's Hints document.  It  6 is also, however, clear from an analysis of the  7 contemporary documents that the moritorium on  8 settlement west of the Appalachians was not conceived  9 of as a permanent barrier but that western regions  10 might, in the future, be open to settlement dependent  11 upon the imperatives of colonization and subject to  12 the lawful acquisition of Indian interests through  13 consentual treaty making.  Thus, in the Hints  14 document, the author makes this point:  15  16 "It may also be necessary to fix upon some line  17 for a western boundary to our ancient provinces  18 beyond which our people should not, at present,  19 be permitted to settle."  20  21 Furthermore, in the Board of Trade's report to  22 Egremont in June of 1763, the board, in discussing  23 measures for establishing a tree trade area in the  24 North American interior, refers to:  25  26 "That territory in North America which, in your  27 Majesty's Justice and Humanity, as well as  28 sound Policy, is proposed to be left, under  29 Your Majesty's immediate Protection, to the  30 Indian Tribes for their Hunting grounds; where  31 no settlement by planting is intended,  32 immediately at least, to be attempted."  33  34  35 Now, we have also seen how the draft Proclamation  36 was amended by John Pownall so that its final text  37 provides in paragraph one that the restrictions on the  38 powers of colonial governors to make grants beyond the  39 Appalachians, is said to be "for the present and until  40 our further pleasure be known."  And the description  41 of the Indian country beyond the Appalachians in  42 paragraph 2 is accompanied by the proviso "for the  43 present as aforesaid."  44 THE COURT:  Excuse me, Mr. Rush, I don't have page 44.  If I  45 could be given a copy of it sometime.  46 Thank you, Ms. Mandell.  You are now at the end of  47 the first paragraph on 45, are you? 23866  Submissions by Mr. Rush  1 MR. RUSH:  Yes.  And what I did, my lord, was to direct your  2 attention to the passage in the Hints document which  3 indicates that the western boundary, this is Ellis  4 speaking, "beyond which our people should not at  5 present be permitted to settle." And to Egremont in  6 the June 8th, 1763 document, that indicated that the  7 "territory in North America which in Your Majesty's  8 justice, as well as sound policy is proposed to be  9 left under Your Majesty's immediate protection to the  10 Indian tribes for their hunting grounds where no  11 settlement by planting is intended immediately at  12 least to be attempted."  13 Now, my lord, the language in paragraph 1 of Part  14 IV to which I have drawn your attention, about eight  15 lines down, "until our further pleasure be known" and  16 in paragraph 2 "for the present as aforesaid" it's our  17 submission and it's the plaintiffs' position here,  18 that these phrases, viewed in their proper context,  19 refer unambiguously to the temporal nature of the  20 prohibition against land grants in paragraph 1 and  21 settlements in paragraph 2, and were not intended to  22 characterize the nature of Indian land rights.  23 To the extent that judicial statements which  24 characterize the Indian interests in lands as  25 existing "at the pleasure of the sovereign" are based  26 upon a reading of the Royal Proclamation of 1763, it  27 is respectfully submitted that such an interpretation  28 is misconceived and fails to take into the account the  29 whole context of Part IV and particularly the language  30 of the preamble in paragraph 4.  31 Now it is the plaintiffs' submission that the  32 Indians' interest in their territories is recognized  33 by the Proclamation as a pre-existing right which far  34 from being conditioned on the pleasure of the Crown,  35 can only be lawfully acquired by the Crown in  36 accordance with a principle of Indian consent  37 expressed through the legal protocol of treaty making.  38 Now, my lord I would like to turn to the next  39 section of our submission, which is under the heading,  40 section C, the Royal Proclamation of 1763 and its  41 application to British Columbia.  42 It's our submission that as a major Prerogative  43 instrument, under great seal, the Royal Proclamation  44 of 1763 enjoyed the force and effect of an Imperial  45 Statute applying proprio vigore to all British  46 colonies throughout North America, and in particular  47 to the colony of British Columbia.  The Proclamation 23867  Submissions by Mr. Rush  1 thus operated to void inconsistent colonial  2 legislation a rule contained in part in a Colonial  3 Laws Validity Act, 1865.  Provisions of colonial  4 legislation must be read down so as to operate  5 consistently with the provisions of the Proclamation.  6 And our submission is developed now in subparagraphs  7 (a) through (c).  8 Firstly, the prospective operation of the  9 Proclamation.  Now, it's our submission that by  10 applying the relevant rules of statutory construction,  11 the Proclamation should be construed to operate in a  12 prospective manner and operate so as to protect lands  13 possessed by Indians anywhere in British North  14 America.  15 Legislation under the prerogative powers of the  16 Crown is to be construed in the same manner as  17 statutes.  And there are two canons of construction  18 which would assist the court in construing the statute  19 and I have already addressed your lordship on this at  20 the top of 47.  21 Moving to the next paragraph, the Royal  22 Proclamation, on its face, is ambiguous as to its  23 temporal application, many of its provisions being  24 framed in general terms.  The mischief that was to be  25 remedied must be identified so that the construction  26 and interpretation may follow which attain the  27 Proclamation's legislative purpose.  And we have  28 submitted on the nature of that mischief.  The purpose  29 of Part IV of the Proclamation was to recognize and  30 protect the principle of territorial integrity of  31 Indian lands and to establish a uniform procedure  32 based upon Indian consent which would strictly govern  33 the Crown's purchase of such lands.  It is this  34 purpose which must inform the construction placed upon  35 the general words used in the Proclamation and, in  36 particular, must inform the intention that its  37 provisions be applied prospectively.  38 My lord, viewed in light of this purpose, the  39 intention of the Crown, in our submission, is not to  40 be considered fixed as of 1763 but rather that the  41 provisions of Part IV are to apply to situations after  42 1763.  Moreover, there is no express language in the  43 Proclamation that suggests a limited temporal  44 application.  To impute such a limited intention to  45 the Crown is to deny the history surrounding the  46 enactment of the Proclamation and the fact that  47 colonial policy and practice subsequent to 1763, 2386?  Submissions by Mr. Rush  1 evidence relying on the principles set out in the  2 Proclamation.  3 Now, it's a rule of statutory construction that a  4 statute is to be considered as always speaking and  5 applicable to circumstances as they arise.  And here I  6 cite Maxwell.  7  8 "The language of the statute is generally  9 extended to new things which were not known and  10 could not have been contemplated when the Act  11 was passed, when the act deals with a genus and  12 a thing which afterwards comes into existence  13 was a species of it.  Thus the provisions of  14 the Magna Carta which exempted Lords from the  15 liability of having their carts taken for a  16 carriage, was held to extend to degrees of  17 nobility not known when it was made, such as  18 dukes, marquises and Viscounts."  19  20 This rule is codified in the Interpretation Act,  21 Section 10.  A statute can apply to situations not  22 existing at the time of its enactment - it may govern  23 new situations if its spirit so requires and its  24 wording does not explicitly indicate the contrary.  25 And, once again, my lord, I simply want to draw  26 your attention to the language in paragraph 4, sub (a)  27 of Part IV, dealing with the protocol where, in line  28 five, the Proclamation states:  "In order there for to  29 prevent such irregularities for the future."  30 So there is language in the Proclamation itself  31 which suggests futurity.  32 In addition, carrying on at the bottom of 48, there  33 is the presumption that where a statute is beneficial  34 and remedial it should be liberally construed, and  35 doubtful expressions interpreted in the larger sense  36 which the words would properly bear.  Thus a public  37 enactment employing general words is usually  38 understood to apply to all entities falling within its  39 scope at any time during its life, even to things  40 which did not exist and could not have been  41 anticipated at the time of enactment, unless a  42 narrower temporal compass is expressly stated or  43 necessarily implied.  Examples of decisions where  44 statutes were applied to situations which did not  45 exist, and could not have been anticipated at the time  46 of enactment, include, and we cite here the Edison  47 Telephone case which was enacted before telephones 23869  Submissions by Mr. Rush  1 were invented and was held to apply to telephones, not  2 surprisingly, Associated Newspapers Ltd. vs. City of  3 London Corporation, a statute providing that the  4 owners be "free from all taxes and assessments  5 whatsoever", was held to apply not only to taxes  6 existing at the time of enactment but also to taxes  7 subsequently imposed.  8 The courts have construed legislation to apply in  9 a prospective manner when considering legislation  10 which is constitutional in nature.  Here we rely on  11 A. G. Ontario vs. A. G. Canada, 1947.  The question  12 was whether the British North America Act, 1867  13 empowered the Canadian legislature to abolish the  14 right of appeal from Canadian courts to the Privy  15 Council.  Lord Jowett stated as follows:  16  17 "It is, as their Lordships think, irrelevant  18 that the question is one which might have  19 seemed unreal at the date of the British North  20 America Act.  To such an organic statute the  21 flexible interpretation must be given that  22 changing circumstances require."  23  24  25 The Privy Council again approved of the comment  26 made Lord Sankey in an earlier case that "the B. N. A.  27 Act planted in Canada a living tree capable of growth  28 and expansion within its natural limits."  29 On page 50, my lord, the courts in Canada have  30 consistently construed instruments of constitutional  31 significance in a prospective manner.  Constitutional  32 instruments are applied to a new situation if such  33 comes within a liberal interpretation of the terms  34 used and is consistent with the aims and purposes of  35 of the legislation.  In Reference re Adoption Act,  36 Chief Justice Duff held that jurisdiction was "not to  37 be frozen at the limits in existence in 1867" where  38 such increased jurisdiction could come normally within  39 the terms of the act.  40 In upholding the constitutional validity of  41 administrative tribunals clearly not in existence in  42 1867, the Privy Council examined not merely the  43 jurisdiction alone but its context and setting and  44 conformity to broad legislative purpose.  We refer to  45 the Labour Relations Act of Saskatchewan and John  46 East Iron Works.  47 Thus we say, my lord, it is well established that 23870  Submissions by Mr. Rush  1 the general language used to describe the classes of  2 subjects in a statute, whether constitutional in  3 nature or not, is not frozen in the sense in which it  4 would have been understood at the time it was made.  5 The words of an act are to be given a "progressive  6 interpretation so as to continually adopt to new  7 conditions and ideas.  Where an act uses words  8 referring to general categories, those categories will  9 normally encompass things not specifically  10 contemplated by the maker at the time of the passing  11 of the enactment.  12 We rely on Hogg, Constitutional Law of Canada.  13 The British North America Act is a constituent or  14 organic statute which has to provide the basis for the  15 entire government of a nation over a long period of  16 time and an inflexible interpretation rooted in the  17 past would only serve to withhold necessary powers  18 from parliament or legislature and defeat its purpose.  19 The Supreme Court of Canada has applied a "broad  20 purposive analysis" seen "in the light of its larger  21 objects" to the provisions of the Constitution Act,  22 1982.  And here I cite Big M. Drug Mart and Southam  23 Inc. vs. Director of Investigation and Research.  24 Now, my lord, our conclusion and the proposition we  25 urge upon you, is this:  That the Royal Proclamation  26 of 1763 was a constituent instrument, expressed in  27 general terms.  Applying a purposive analysis to the  28 legal and constitutional imperatives embodied in the  29 Proclamation, the plaintiffs submit that its  30 application is not constrained by the limits of  31 British sovereignty in existence in 1763.  On a  32 purposive analysis, the provisions of the Proclamation  33 apply to new and even unforseen situations and in  34 particular, apply to the colony of British Columbia.  35 Now, I wish to refer to two American cases and The  36 Trade and Intercourse Act of 1790.  37 In the United States, my lord, the courts have  38 applied a purposive analysis to the statutory  39 interpretation of provisions of the Trade and  40 Intercourse Act of 1790.  That act is found in the  41 material exhibited at 1039-19.  42 Now, Section 4 of the act declared this, my lord:  43  44 "That no sale of land made by any Indians, or  45 any Nation or tribe of Indians within the  46 United States, shall be valid to any person or  47 persons, or to any state, whether having the 23871  Submissions by Mr. Rush  1 right of preemption to such lands or not,  2 unless the same shall be made and duly executed  3 at some public treaty held under the authority  4 of the United States."  5  6 Amendments to this wording with enacted in 1793,  7 1796, 1799, 1802 and 1834.  The act's current version  8 states this:  9  10 "No purchase, grant, lease or other conveyance  11 of land, or of any title or claim thereto from  12 any Indian nation or tribe of Indians, shall be  13 of any validity in law or equity, unless the  14 same be made by treaty or convention entered  15 into pursuant to the Constitution."  16  17 The act provides for a federal statutory restraint  18 against alienation of tribal land.  The policies  19 underlying such restraints on alienation are directly  20 traceable to the colonial experience.  In particular,  21 the restraint against alienation  has been traced to  22 the Royal Proclamation of 1763.  In light of the  23 relationship between the act and the Royal  24 Proclamation, the approach adopted in the American  25 cases is relevant to your lordship's task in  26 determining the reach of the Royal Proclamation of  27 1763 to British Columbia.  28 I am going to cite and refer to two cases.  First  29 the Passamaquoddy Tribe v. Morton case, a decision of  30 the First Circuit Court of Appeal, 1975.  The Court of  31 Appeal held that the Passamaquoddy tribe was a tribe  32 within the meaning of the act.  Both the United States  33 and the State of Maine had argued that "any...tribe of  34 Indians" is ambiguous language and should not apply to  35 a tribe which the federal government has not  36 specifically recognized or with whom the federal  37 government disavows any relationship.  In rejecting  38 this argument, the Court of Appeals relied on the  39 policy and purpose of the act.  And this is what the  4 0 court found, and I quote:  41  42  43 "There is nothing in the act to suggest that  44 tribe is to be read to exclude a bona fide  45 tribe not otherwise federally recognized.  Nor,  46 as the District Court found, is there evidence  47 of congressional intent or legislative history 23872  Submissions by Mr. Rush  1 squaring with appellants'"  2  3 That is to say governments' ,  4  5 "...interpretation.  Rather we find an  6 inclusive reading consonant with the policy and  7 purpose of the act."  8  9 And I ask you to note these words, my lord:  10  11 "That policy has been said to be to protect the  12 Indian tribes' right of occupancy, even when  13 that right is unrecognized by any treaty,"  14  15 and cite Santa Fe Pacific,  16  17 "and the purpose to prevent the unfair,  18 improvident or improper disposition of Indian  19 lands,"  20  21 Citing Federal Power Commission.  22  23 Now, the language of the act that is to say "any  24 tribe", was interpreted in light of the avowed purpose  25 of the statute, that is to say, "to prevent the  26 unfair, improvident or improper disposition of Indian  27 lands."  The court went on to hold that the federal  28 government bears a trust relationship to the tribe  29 governing the disposition of all tribally-held lands.  30 THE COURT:  Mr. Rush, I think I will take the afternoon  31 adjournment now.  Before we go could I just leave this  32 with you:  What would your view be about the role of  33 the Royal Proclamation, assuming the United States  34 were still part of British territories, after the  35 enactment of the Trade and Intercourse Act of 1790?  36 MR. RUSH:  All right.  37 THE COURT:  Could you think about that?  3 8    MR. RUSH:  Yes.  39 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  40 I hereby certify the foregoing to be a true  41 and accurate transcript of the proceedings  42 herein to the best of my skill and ability.  43  44  45  46 Wilf Roy  47 Official Reporter 23873  Submissions by Mr. Rush  1  THE  REGIS1  2  THE  COURT  3  MR.  RUSH:  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  THE  COURT  23  MR.  RUSH:  24  THE  COURT  25  26  27  28  MR.  RUSH:  29  30  THE  COURT  31  MR.  RUSH:  32  33  34  35  36  37  THE  COURT  38  MR.  RUSH:  39  40  41  THE  COURT  42  MR.  RUSH:  43  44  45  THE  COURT  46  MR.  RUSH:  47  PRAR:  Order in court.  :  Mr. Rush.  My lord, dealing with the question you posed before  the break, the Trade and Intercourse Act of 1790 was  of course passed after the Treaty of Versaille, after  the American Revolution, and was intended as a statute  to replace the Proclamation which of course no longer  applied in the American territories.  But dealing with  your question, assuming that it was British territory,  it would be our view that to the extent that there was  no inconsistency between the Royal Proclamation and  the Trade and Intercourse Act, they could live  together.  And if governors, for example, issued  instructions pursuant to that Act, they would give  effect to the principles of the Royal Proclamation or  the Trade and Intercourse Act.  Now, if there was an inconsistency, then it would  be our view that the law, the Trade and Intercourse  Act, would have to be read so as to be consistent with  the Royal Proclamation, and not to detract or derogate  from the terms that are provided --  :  You would say the same about the BNA Act, I suppose?  Yes, I would.  : To the extent they were -- to the extent they can  stand together, or they would both apply to the extent  they were inconsistent with the BNA Act would be  paramount --  My lord, assuming the Trade and Intercourse Act was a  colonial enactment --  :  Uh-huh.  And I take it that that's the assumption that you are  making, at least it was the assumption behind my  answer, if it were an imperial Act, that is of the  imperial Parliament, the imperial Parliament of course  could derogate from an imperial prerogative  legislation.  :  Yes.  Our position is that the Royal Proclamation is a  major prerogative instrument or a prerogative  legislation.  : But the BNA Act was also --  Yes, my lord, that's so, but the BNA Act would be an  imperial enactment of the imperial Parliament or of  the Parliament rather.  :  It could be --  To that extent it would have the power to derogate  from the imperial -- of the Royal Proclamation. 23874  Submissions by Mr. Rush  1 THE COURT:  I haven't thought of this question until I saw this  2 American statute, and I just wondered what the  3 effect -- what the effect would be if -- first that  4 was if the Trade and Intercourse Act were enacted  5 in -- I see the distinction between -- made between a  6 colonial and imperial enactment.  7 MR. RUSH:  It would be particularly relevant, my lord, for the  8 purposes of the state of the law prior to 1871 in  9 British Columbia where the BNA Act on Your Lordship's  10 example would apply -- would not have applied to  11 British Columbia prior to that time, and so we would  12 be -- we would be dealing with colonial enactment.  13 So taking the analogy between the Trade and  14 Intercourse Act and colonial enactment, then the  15 answer's supposing, as I have, that the Trade and  16 Intercourse Act was passed by a colonial assembly,  17 then in our submission it could not derogate from the  18 prerogative instrument that the Royal Proclamation  19 would be representing.  2 0    THE COURT:  All right.  Thank you.  21 MR. RUSH:  Now, my lord, I want to direct your lordship's  22 attention now to the Mohegan Tribe and State of  23 Connecticut case, which is the second of the two  24 American authorities I am directing your attention to.  25 And I am going to refer you to the text of the  26 decision, which is found in our series of authorities  2 7 at volume Roman VII, tab 32.  28 On page 53 of the argument, my lord, the second  29 circuit Court of Appeal in the United States dealt  30 with the issue of the geographic applicability of the  31 Trade and Intercourse Act.  The state filed a motion  32 to dismiss on the grounds that the restraint on  33 alienation was intended to apply only to land in  34 Indian country, defined primarily in terms of an  35 ill-defined western frontier.  The narrow construction  36 of the scope of the Act advanced by the state was  37 intended to exclude the settled portions of the  38 eastern seaboard states from Indian country and hence  39 from the reach of the federal statutory restraint  40 against alienation.  41 The position put forward by the State of  42 Connecticut to the effect that the intended scope of  43 the statutory restraint against alienation was all  44 Indian land west of the Mississippi River, is similar  45 to the position put forward by the defendant in this  46 case to the effect that the intended scope of the  47 restraint and alienation on the Royal Proclamation was 23875  Submissions by Mr. Rush  1 all Indian lands east of the Mississippi.  2 Now, concerning the argument generally, my lord, I  3 am referring to the statute -- excuse me, to the case  4 considering the statute, the argument commented at  5 page -- the Court commented in -- on page 615 on the  6 state's argument in this language:  7  8 "The State's argument is admittedly appealing in  9 that it would explain why both the states and  10 the federal government have ignored so  11 completely with what the Indians assert to be  12 the dictates of the Non-Intercourse statute.  13 To determine the question of the geographic  14 applicability of the Non-intercourse statute,  15 however, it is necessary to trace the history  16 of the Indian statutes and relevant aspects of  17 the Indian land tenure in the country."  18  19 And then what follows is precisely that historical  20 consideration.  The Court traced the history of Indian  21 legislation concerning the acquisition of Indian land  22 from the time of the Royal Proclamation, noting that  23 the federal monopoly on the acquisition of Indian land  24 reflected in the Act mirror provisions in the Royal  25 Proclamation in relation to the imperial Crown  2 6 monopoly.  27 Responding to the argument that the scope of the  28 Act was limited geographically, the Court first looked  29 to the language of the statute and concluded that  30 firstly the original Act of 1790 contained no language  31 suggesting any geographical limitation.  Secondly, the  32 language of the current statute was intended to  33 proscribe any conveyance to the States without federal  34 involvement, and was therefore not limited to the  35 protection of the land outside the boundaries of any  36 state.  Furthermore, the term "Indian country" was  37 consistently used in the Act and its various  38 amendments to expressly delimit trade and criminal  39 provisions in respect of Indians, but not in respect  40 of the statutory restraint on alienation of Indian  41 lands.  42 And I would like to refer Your Lordship to page  43 621, which I will read from, and which is set out in  44 the argument:  45  46 "Thus the conclusion to be drawn from the  47 language of the Non-intercourse statute and the 23876  Submissions by Mr. Rush  1 various Acts is that the statute was meant to  2 apply to Indian land throughout the United  3 States.  In regulating relations with the  4 Indians, congress imposed certain restrictions  5 on transactions occurring in Indian country and  6 certain others to those involving Indians  7 situated throughout the United States.  The  8 Non-intercourse statute, containing no language  9 of limitation, must then be read as applying to  10 all Indian lands."  11  12 The Court had drawn a similar distinction in its  13 review of the Royal Proclamation of 1763, that is to  14 say certain provisions intended to apply within a  15 defined territory, and other provisions intended to  16 apply throughout the whole territory.  And I again  17 take you back, my lord, to page 615 where the Court of  18 Appeal said this, after reviewing the Royal  19 Proclamation:  20  21 "Thus, the policy of the Royal Proclamation was  22 to demarcate an Indian country within which  23 trading could only be conducted with the  24 approval of the Crown, and to establish that  25 all grants of land from the Indians would be  26 valid only with the approval of the sovereign."  27  28 The Court then examined the legislative intents of  29 the Act and the legislative history, which indicated  30 that the congress wished to establish peace along the  31 frontier and prevent further encroachment by  32 non-Indian settlers on Indian land.  The Court held  33 that these objectives were not inconsistent with  34 reading the Act to prevent encroachment upon Indian  35 land throughout the United States rather than only to  36 land in Indian country.  In effect the Court concluded  37 that it was reasonable to believe that congress  38 intended a unified federal policy towards the land  39 acquisition from the Indians.  Relying on the purpose  40 and policy of the Act, the State of Connecticut's  41 motion to dismiss was denied.  42 Now, what we take from this, my lord, is the  43 following:  There are broad principles that can be  44 drawn between the findings of the courts as to the  45 proper interpretation of the Trade and Intercourse Act  46 and the submission of the plaintiffs as to the  47 prospective interpretation of the Royal Proclamation 23877  Submissions by Mr. Rush  1 applying to British Columbia.  Firstly the purpose of  2 the Act was to prevent the fraudulent or unfair  3 dispossession of the Indians.  Secondly, there is no  4 language of limitation in the Act to defeat its  5 application to all Indian lands throughout the United  6 States.  And thirdly, the Act viewed in its historical  7 context demonstrates the intention to apply a uniform  8 policy towards the acquisition of Indian lands.  9 Now, my lord, I am going to move to the next  10 sub-heading.  The Royal Proclamation of 1763 as a  11 major prerogative.  And I've briefly touched on this  12 earlier.  It's our submission, my lord, that Part IV  13 of the Royal Proclamation is major prerogative  14 legislation which is in force proprio vigore in every  15 part of the territories subject to the British Crown,  16 including in the colony of British Columbia.  17 Now, the King's prerogative in the colonies, I  18 want to deal with this first.  19 In all colonies, however acquired, the King  20 possessed the powers in the constituent field to  21 establish local governments.  And we cite Chalmers.  I  22 should point out, my lord, that these are among some  23 of the texts and cases which have not found their way  24 into our authorities as yet, but hopefully we'll have  25 them for you shortly.  26 MR. GOLDIE:  Which is that?  27 MR. RUSH:  Chalmers.  28 MR. GOLDIE:  Thanks.  29 MR. RUSH:  Now, it's our submission, my lord, there is a  30 difference between the constituent power of the Crown  31 and its ordinary legislative power in relation to  32 British Columbia colonies.  The former, that is to say  33 the constituent power of the Crown, may be invoked in  34 relation to all British Columbia colonies regardless  35 of the mode of acquisition.  The latter depends on the  36 method of the colony's acquisition, and different  37 rules will apply if the colony is acquired by  38 settlement, conquest or cession.  39 Now, reference is made to a work by Roberts -  40 Wray, and that, my lord, is the citation.  The fuller  41 citation for that is at page 67, and apparently this  42 appeared miracuously on my left hand.  And, my lord,  43 this is entitled Commonwealth and Colonial Law by Sir  44 Kenneth Roberts - Wray, and it is Stevenson, 1966.  45 And I will make this available to you tomorrow  4 6 morning.  4 7    THE COURT: Thank you. 2387?  Submissions by Mr. Rush  1 MR. RUSH:  Now, my lord, the different consequences flowing from  2 a grant of a local legislature on the constituent and  3 order legislative powers of the Crown is found in  4 Campbell and Hall, and it's explained in Sammut and  5 Strickland.  Firstly dealing with Campbell and Hall.  6 This case concerned the island of Grenada.  It was  7 taken by the British Army in open war from the French  8 King, and surrendered by the French upon capitulation.  9 Letters Patent, dated March 26, 1764, commissioned  10 General Melville as Governor of Grenada.  He was given  11 power to set up a legislature as specified in a  12 previous Proclamation under the great seal, dated  13 October 7, 1763.  That's the Royal Proclamation.  By  14 that Proclamation, the King had empowered and directed  15 the Government of Grenada by Letters Patent under the  16 Great Seal to summon general assemblies of the  17 representatives of the people of Grenada so soon as  18 the circumstances of the colony would allow, and with  19 their consent to make laws for the public peace,  20 welfare, and good government of the colony and its  21 inhabitants.  There had been a second Proclamation of  22 March 26, 1764, containing the recital of a survey of  23 the islands and their division into allotments, as an  24 invitation to purchasers to come and take up  25 properties on terms specified in the Proclamation.  26 After these instruments had been published, Letters  27 Patent were issued July 20, 1764 purporting to impose  28 by virtue of the Royal prerogative a duty of four  29 and-a-half percent on all sugars exported from the  30 island.  The question was whether the King had  31 precluded himself from the exercise of a legislative  32 authority over Grenada by the promise of an assembly  33 in the earlier Proclamation.  Lord Mansfield, in  34 delivering judgment, stated that prior to the issue of  35 the Letters Patent of July 20, 1764, that is to say  36 the taxing Proclamation, the King had precluded  37 himself from the exercise of a legislative authority  38 over the island of Grenada by the grant of an  39 assembly.  40 He then considered the terms of the two  41 Proclamations at issue, and he said this:  42  43 "We therefore think, that by the two  44 Proclamations and the commission to Governor  45 Melville, the King will immediately and  46 irrevocably grant to all who were or should  47 become inhabitants, or who had, or should 23879  Submissions by Mr. Rush  1 acquire property in the island of Grenada, or  2 more generally to all whom it might concern,"  3  4 And I ask you to note these words, my lord.  5  6 "that the subordinate legislation over the  7 island should be exercised by an assembly with  8 the consent of the governor and council in like  9 manner as the other islands belonging to the  10 King."  11  12 Now, in the case of Sammut and Strickland, the  13 Privy Council came to commenting on this statement in  14 Campbell and Hall.  And the Privy Council had this to  15 say:  16  17 "It is plain that this authority is dealing with  18 a case where the Crown, after having granted  19 representative institutions to the colony, was  20 purporting to exercise by Royal prerogative a  21 concurrent right of legislation."  22  23 And I ask you to make note of those words "though  24 no such right had been reserved".  25  26 Now, my lord, Campbell and Hall concerned the  27 Crown's power to legislate for local matters, that is  28 to say taxation, while the Letters Patent constituting  29 a local assembly were in effect.  The Privy Council in  30 Sammut makes clear that what was at issue in Campbell  31 and Hall was a concurrent legislative power in the  32 Crown where such a power had not been reserved.  33 Now, where an assembly has been granted, the Crown  34 loses its prerogative power to make subordinate  35 legislation over the territory.  Subordinate  36 legislation refers to ordinary laws and not those of a  37 constituent nature.  38 And that is our principle point.  39 The constituent power of the Crown was not at  40 issue in the case of Campbell and Hall, and no  41 decision was made regarding it in that case.  Thus a  42 grant by the Crown of a local legislature precludes  43 the exercise by the Crown of the power to make  44 ordinary laws, such a grant does not preclude the  45 Crown's constituent power being exercisable in British  4 6 dominions.  47 And Roberts - Wray is cited in both instances. 23880  Submissions by Mr. Rush  1 Now, my lord, the Crown's constituent power does  2 not go so far as to allow amendments of the  3 constitution amounting to a revocation of the grant.  4 However, constitutional details such as the extent of  5 the authority of the governor and the conditions on  6 which he was to exercise his authority could be varied  7 by the Crown.  And this was true whether or not such a  8 power was reserved to the Crown.  9 The King, moreover, enjoyed certain other major  10 prerogatives in relation to all British lands and  11 territories.  Such prerogatives applied proprio vigore  12 as an incident of British sovereignty.  13 Finally, both through an exercise of the  14 prerogative, through statute or common law, the public  15 law of England, that is to say law governing the  16 rights of subjects vis-a-vis the Crown, have  17 introduced in the colony proprio vigore.  18 Now, our proposition --  19 THE COURT:  What do you understand proprio vigore to mean?  20 MR. RUSH:  In its intrinsic meaning.  21 THE COURT:  Intrinsic meaning or intrinsic validity?  22 MR. RUSH:  Of its own force.  23 THE COURT:  Of its own force.  Okay.  24 MR. RUSH:  Or of its intrinsic force.  25 Now, my lord, not all prerogative instruments  26 enjoy the status of being part of the King's  27 constituent power, or are in relation to lands and  28 territories, or are part of the public law domain,  29 however, some prerogatives do.  It is our submission  30 that the Royal Proclamation of 1763 is a major  31 prerogative, and that it applies to the Colony of  32 Canada proprio vigore as a major prerogative  33 instrument referable to the Crown's constituent power.  34 It is a major Proclamation in relation to all British  35 lands and territories.  And finally, it is a major  36 Proclamation in the domain of public law applicable to  37 the colonies.  38 Now, there are three propositions there, my lord,  39 and I would like to break them out and discuss them  40 each in turn.  41 Firstly the proposition that the Royal  42 Proclamation is a major prerogative instrument  43 referable to the Crown's constituent powers.  44 Crown prerogatives have been classified to be either  45 major or minor.  Chitty makes the distinction between  46 minor prerogatives which are merely local to England,  47 and those fundamental rights and principles on which 23881  Submissions by Mr. Rush  1 the King's authority rests and which are necessary to  2 maintain it.  The minor prerogative powers enjoyed by  3 the King in England do not prima facie extend to  4 British dominions unless received there as part of the  5 common law.  In contrast, the major prerogative powers  6 prevail in every part of the territories subject to  7 the British Crown, by whatever particular or internal  8 laws they be governed.  Major prerogatives apply to  9 the colonies, notwithstanding its mode or their mode  10 of acquisition.  11 Furthermore, although local legislative assemblies  12 may alter minor prerogatives, they are not competent  13 to modify major prerogatives.  And Chitty, a treatise  14 on the laws of the prerogatives of the Crown is there  15 cited.  16 The major prerogative rights of the Crown we say  17 are so fundamental to the political character of the  18 sovereign, such that they are necessarily extended to  19 all newly acquired territories as a result of British  20 sovereignty.  21 Major prerogative powers have been described as  22 powers which fundamentally sustain the existence of  23 the Crown, or form the pillars on which it is  24 supported.  25 There are several examples of subjects falling  26 within the Crown's peculiar jurisdiction which are  27 included as major prerogatives.  28 And Mr. Roberts - Wray identifies some subjects  29 falling within the definition of major prerogatives,  30 but he is careful to note that the list is not  31 exhaustive.  32 As already noted in all colonies, the King enjoyed  33 the power to make laws of a constitutional nature - to  34 bring into being, in such colonies, a general power to  35 make laws.  And of course that's precisely what the  36 King did in relation to the Proclamation of 1763 as  37 noted in the review of Part I.  38 The prerogative instrument by which this was  39 accomplished clearly felt to be classified as major  40 prerogative legislation.  Begin citing Chitty, 379.  41 The prerogative power, my lord, to grant leave to  42 appeal to the Privy Council may also be a major  43 prerogative right.  It was held in British Coal that  44 if this prerogative is to be limited by a dominion or  45 colonial Act, it must be the Act of a dominion or  46 colonial legislature which has been endowed with the  47 requisite powers by an imperial Act giving the power 23?  Submissions by Mr. Rush  either by express terms or by necessary intendment.  This is not surprising, as prerogative powers were in  all cases subordinate to the powers of the imperial  Parliament.  Now, Roberts - Wray goes on further to identify  the prerogative of mercy as a major prerogative.  And  I quote from him.  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  THE COURT  MR. RUSH:  THE COURT  "It could without difficulty be arranged that an  attempt to interfere with the exercise of Her  Majesty in England of her right to mitigate the  sentences of her courts would conflict with the  sovereign's authority as the fountain of  justice, and that this is a major prerogative."  Similarly, my lord, the power of an English court  to issue the writ of Habeas Corpus, a "high  prerogative writ" is a manifestation of a major  prerogative, and so forms part of the basic law of a  territory within British jurisdiction, whether or not  received as part of British common law.  Roberts -  Wray suggests that this is in no way -- this in no way  limits the powers of such dependent legislatures from  enacting laws regarding the issue of writs by their  own courts, merely that such legislatures were  incompetent to alter the Crown's power to issue such  writs.  Now, my lord, it's our proposition that the major  prerogative rights of the Crown, for example, to make  laws, constitutions or grant privileges, special leave  and mercy, are so fundamental to the political  character of the sovereign such that they are  necessarily extended to all newly acquired territories  as a result of British sovereignty.  They form part of  the basic law and constitutional framework of such  territories and limit the legislative competence of  the local assemblies.  It is submitted that the Royal Proclamation of  1763, including the Indian land provisions, is just  such a major prerogative legislation.  :  Mr. Rush, would it follow that if the Royal  Proclamation is not a major prerogative right of the  Crown, that the Royal Proclamation might be found to  offend the principles of Campbell and Hall?  Our position, my lord, is that it does not offend the  principles of Campbell and Hall.  :  Because it's a major problem -- 23?  Submissions by Mr. Rush  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  THE  MR.  THE  MR.  MR.  MR. RUSH:  It will be urged upon you that Campbell and Hall  deals with the mode of acquisition of colonies, and  that —  COURT:  It really just dealt with whether the tax was a  valid one.  RUSH:  Well, that's a -- my lord -- that case is  distinguishable on that ground, I agree, but another  interpretation of Campbell and Hall will be urged upon  you by my learned friends, and irrespective of the  distinguishment, which I can concede Your Lordship --  I agree with Your Lordship on that point.  Our  position is that the Royal Proclamation itself as a  major prerogative piece of legislation, it does not  matter how you characterize the acquisition of the  colony, and therefore the issue in Campbell and Hall  is really not material to the determination of the  effect of the Proclamation in the colony of British  Columbia.  COURT: Thank you.  RUSH:  Now, my lord, it's a major -- it is a major  prerogative legislation for the following reasons in  our submission, and --  GOLDIE:  I wonder -- I apologize for interrupting my friend,  but this part is new.  It wasn't in my friend's  summary, and I ask him to assist me to this respect.  Several times my friend has referred to the Royal  Proclamation as constituent, and he summarizes the  major prerogatives as including those which set up  the -- the legislative or constitutional provisions of  a colony, if I understand him correctly.  Now, is my  friend applying that or asking Your Lordship to apply  that to the -- to this proposition, that the Royal  Proclamation provides for the government of the new  colonies, Quebec, Florida and Grenada, does he say  that has application to British Columbia, or is it  just the Indian parts that he says is -- I'm not quite  sure, and I appreciate his assistance.  MR. RUSH:  My lord, I thought that the argument that we were  advancing was fairly clear in that respect, because  the propositions that we are advancing are made in  respect of Part IV, that is Roman IV, which are the  Indian land provisions of the Royal Proclamation,  which are the material provisions so far as they  applied to the colonies of Vancouver Island and the  mainland colony of British Columbia.  MR. GOLDIE:  Well, I take it, then, that the Royal Proclamation  as such does not necessarily in its entirety what he 23884  Submissions by Mr. Rush  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  THE  MR.  MR. RUSH  MR.  THE  MR.  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  calls a major prerogative --  COURT:  I think he is saying it is.  GOLDIE:  If he is saying it is, then he is saying the  provisions with respect to the establishment of the  legislatures and things like that also have  application.  Well, I'm sure my friend will make his argument on  that respect.  My lord, I --  GOLDIE:  I just wanted to have it straight whether --  COURT:  I think all we can say at the moment is that Mr.  Rush isn't conceding his only major prerogative  enactment, because it provides for the establishment  of -- form of government in the new colonies --  RUSH:  That's right.  That is so, my lord.  The —  GOLDIE:  All right.  I take it that he is saying that the  entire document is an exercise of a major prerogative.  I think he is saying that.  Yes, that's exactly what I am saying, my lord.  Thank you.  The material thrust of this submission that  irrespective of how you might look at other  provisions --  Yes.  -- or other parts of the Royal Proclamation, Part IV,  is the material part that deals with the application  of the Proclamation.  But even then you wouldn't suggest, or do you, that  the pursuit and apprehension of the fugitives would be  the exercise of major constituent power, or would you,  or do you want to answer that?  No.  My lord, it may be a major constituent power.  It may not be, depending on -- and I'll have a  submission to make on that, because we in fact deal  with the jurisdiction Acts as the jurisdiction Acts  are implemented through other forms of commissions and  instructions.  Yes.  Thank you.  But let me return to the argument on page 62.  Firstly we say the Royal Proclamation is  constitutional in nature having to do with the  establishment of governments and courts, which this  Proclamation of 1763 does.  The Indian provisions have  to do principally with limitations on the powers of  governors to acquire unsurrendered tribal lands.  Secondly, the Indian provisions are constitutional as  legislation governing the procedure to be adopted for  Crown alienation of Indian lands that fall within the  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  THE COURT  MR. RUSH  COURT  RUSH: 23?  Submissions by Mr. Rush  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  King's peculiar authority.  And finally, we say the Proclamation is part of the  public law applicable to colonies as it was enacted to  settle Indian Crown relation upon principles of  recognition and consent, principles which were agreed  to by the Indians, and by so constituting the  relationship in these terms the Crown was able to  secure peace and to build a nation in Canada.  Now, we say, my lord, that Part IV of the Royal  Proclamation is constitutional in nature, having to do  principally with the exercise of the governor's power.  THE COURT:  Mr. Rush, I notice it's 4:00 o'clock.  Is it your  intention to carry on this afternoon?  MR. RUSH:  It hadn't been my intention, my lord.  THE COURT:  Well, I have a matter I have to attend to at 4:00  o'clock, but if you're not planning to carry on, then  that's fine, I'll go look after that.  Otherwise I  could come back in some little while or we could start  early in the morning, if you wish, or whatever you  suggest.  MR. RUSH:  Well, my lord, I was going to make the suggestion  that we carry on somewhat later tomorrow afternoon.  THE COURT:  Yes.  MR. RUSH:  And I was going to propose that we could carry on for  perhaps a further hour.  THE COURT:  Tomorrow afternoon?  MR. RUSH:  Yes.  THE COURT:  Yes.  MR. RUSH:  And I think that that may greatly assist us in our  progress.  THE COURT:  And do you wish to start at 10:00 in the morning or  at 9:30?  MR. RUSH:  Yes, I think 10:00 would be sufficient.  THE COURT:  All right.  We'll adjourn.  Thank you.  THE REGISTRAR:  Order in court.  Court stands adjourned until  10:00 o'clock tomorrow.  (PROCEEDINGS ADJOURNED TO 10:00 A.M. APRIL 6,  1990)  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.

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