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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-30] British Columbia. Supreme Court May 30, 1990

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 27731  Submissions by Mr. Goldie        1  Vancouver, B.C.  2 May 30th, 1990  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 30th day of May, 1990.  Delgamuukw versus Her Majesty  8 the Queen, at bar, my lord.  9 THE COURT:  Mr. Goldie.  10 MR. GOLDIE:  Yes, my lord.  Yesterday I read in relation to  11 paragraph 15 of Part VII Section 5(b) --  12 THE COURT:  Yes.  13 MR. GOLDIE:  -- A despatch from the Secretary of State assigned  14 by Lord Carnarvon in the absence of Sir Edward Bulward  15 Lytton dated the 11th of April, 1859, and I said that  16 I'd give a copy of that to be placed in the yellow  17 binder as the last document in tab 5(b)-15.  18 THE REGISTRAR:  Thank you.  19 MR. GOLDIE:  It's the despatch at the top of the page, my lord,  20 the 11th of April.  21 THE COURT:  All right.  22 MR. GOLDIE:  And it was one in which -- which formed a series of  23 despatches when the question of the Songhees  24 Reservation in Victoria came up.  But its relevance in  25 the discussion that we had on paragraph 15 --  2 6 THE COURT:  All right.  27 MR. GOLDIE:  -- Arose out of Lytton asking him what his thoughts  28 were for the future.  29 My lord, I was at paragraph 25 and --  30 THE COURT:  Were you still in (b)?  31 MR. GOLDIE:  Beg pardon, my lord?  32 THE COURT:  Were you still in (b)?  33 MR. GOLDIE:  Yes.  It's page 18 of 5(b).  34 THE COURT:  I'm sorry.  Paragraph 25?  35 MR. GOLDIE:  Yes.  3 6 THE COURT:  Yes.  37 MR. GOLDIE:  And I had read, my lord, from the despatch in the  38 yellow binder the paragraph which -- paragraphs which  39 I have set out in my summary.  And these were -- these  40 were paragraphs which represented the declarations  41 which Douglas had made to the Indians as he progressed  42 from Lytton -- I'm sorry -- from Lilloet to Cayoosh,  43 Lytton to Similkameen and thence to Rock Creek.  And  44 between Lytton and Rock Creek he ran into a number of  45 groups who had come to meet him and had expressed  46 their concern about the -- what he referred to as:  47 27732  condition  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  Submissions by Mr. Goldie        1 "... the abject  to which the cognate  Indian tribes of Oregon have been reduced by  the American system of removing whole tribes  from their native homes into distant reserves  And he repeated to them what he had stated earlier  which constituted the statements of policy on behalf  of Her Majesty's government.  My lord, my friend Mr. Rush, I don't have the  reference, but my recollection is that he said that  these were simply political statements.  Now, in the  sense that the root of political is policy I don't  disagree with that, but if by that he was suggesting  that they were the statements made by a politician I  disagree with that.  Governor Douglas was not running  for office.  He was not -- he was not hampered by  having to receive the concurrence of a cabinet.  He  did not have to carry a representative assembly  through to implement his statements.  He was the  embodiment of the Crown both in its executive and  legislative capacities.  THE COURT:  Well, it seems to me, Mr. Goldie, there is a problem  here that applies across the whole width and breadth  of this case, and that is one which cuts both ways for  all parties.  And that is that the plaintiffs adduced  evidence and referred in argument to numerous  statements by numerous officials about their views.  Mr. Rush particularly referred to letters written by  federal officials regarding aboriginal rights in  British Columbia and their views on that question.  And, of course, we have the same situation here  with -- with the distinction or difference you just  mentioned with Governor Douglas and with others.  And  I have been wondering whether goverments can be bound  by statements made other than by published regulations  by way of order-in-council or by statute, and whether  these utterances are merely underpinning or  explanatory of the official acts that are -- that  actually take place.  And it seems to me that both of  you up to this point, and I suspect Mr. Macaulay and  Ms. Koenigsberg in their turn will be making similar  references to pronouncements made by the elected or  government officials regarding the matters in issue in  this case.  I must say at the moment I'm of two, or  several minds about the legal and evidentiary value of  those pronouncements.  I appreciate you make a 27733  Submissions by Mr. Goldie        1 distinction with  Governor Douglas because in British  2 Columbia at that time he was the Crown.  3 MR. GOLDIE:  He was the Crown.  And when he spoke he spoke as  4 Her Majesty's delegated representative for that  5 purpose.  6 THE COURT:  And Lord Dufferin?  7 MR. GOLDIE:  Lord Dufferin was on a private progress.  My lord,  8 I'll come to the evidence in which the prime minister  9 of the day expressly disclaimed instructing him in  10 what he said.  11 THE COURT:  Well, there are these shades and gradations.  12 MR. GOLDIE:  They're very important shades and gradations.  13 THE COURT:  Yes.  14 MR. GOLDIE:  And I am going to refer your lordship to a  15 statement in the -- I believe it's the Sable case  16 where the Privy Council said the Crown cannot be bound  17 by acts of acquiescence of its officials unless these  18 can be corroborated or ratified or adopted by  19 orders-in-council or acts of parliament or something  20 of equally unmistakable effect.  21 THE COURT:  Well, you will remember, of course, and I say this  22 as much to alert plaintiffs' counsel as it is intended  23 to be directed to you, of the memorandum made and  24 written by, I think it was a member of the federal  25 cabinet in the pre-McKenna-McBride period where he set  2 6 out the views of the two governments regarding the  27 debate that was then underway which really amounted to  28 a question do we deal with aboriginal rights or do we  29 deal with reserves, and he set out the two positions.  30 That's something I reach back into the plaintiffs'  31 argument to use as an example of a very strong  32 pronouncement by a member of the federal cabinet.  33 MR. GOLDIE:  Yes.  34 THE COURT:  And it's been an open question in my mind as to  35 whether it has any, and if so what, evidentiary value.  36 MR. GOLDIE:  I will be submitting, my lord, that in every case  37 that I rely upon it is rooted in acts, the equivalent  38 of acts of parliament or orders-in-council.  39 THE COURT:  What about all these despatches?  40 MR. GOLDIE:  Well, confining my submission to the instant, I say  41 Douglas not only made the declaration, he did it.  In  42 other words, there was a setting aside of a reserve.  43 And as the Privy Council said, all that it required  44 for him to do was to state his will in that regard.  45 But, furthermore, when we come to his proclamations,  46 as we will shortly, the policy is reflected in the  47 proclamations which are acts of parliament. 27734  Submissions by Mr. Goldie        1 Now, because  Douglas was rolled up in one as the  2 viceroy, so to speak, with autocratic powers, there  3 were no orders-in-council as such, but when he gave a  4 direction it had the same force and effect.  Now, that  5 particular state of affairs, of course, came to an end  6 as the institutions began to arise both of a  7 representative kind and of an executive kind.  But  8 the -- now, I'm now dealing with the despatches  9 outside this.  10 THE COURT:  Yes.  11 MR. GOLDIE:  They are intended to provide your lordship with the  12 environment in which the Colony of British Columbia  13 was created.  14 THE COURT:  Well, I'm not for a moment suggesting that you  15 shouldn't do that the same way your friends have done  16 it with respect to the Royal Proclamation and  17 otherwise.  18 MR. GOLDIE:  Yes.  19 THE COURT:  I just think that counsel should know that I have an  20 uneasiness and an uncertainty about the force of it  21 all.  It's very interesting, and it certainly provides  22 the environment, as you say.  I'm as yet undecided as  23 to what it all means.  24 MR. GOLDIE:  In the case of Douglas, and I cannot stress this  25 too strongly, from 1858 until 1863 by virtue of an act  26 of the Imperial Parliament, an order-in-council and  27 the Royal Instructions, statutory instruments of the  28 highest authority if I may put it that way, he was the  29 Crown.  And that was how he was characterized by the  30 Privy Council.  And I say when he made a statement it  31 was understood by his hearers who and what he was.  He  32 was, in fact, the travelling legislature as well as  33 the executive.  So I reject the characterization of  34 these declarations as political speeches.  I say they  35 are acts of state.  These are the declarations that I  36 had in mind when I said to your lordship if there are  37 acts of state which have relevance in the history of  38 the Colony it is not so much the act of 1858, although  39 it qualifies by definition, but it is the two things  40 done by Douglas.  One is the proclamation of the  41 English law.  And he did that all by himself.  All he  42 had to do was have it printed and proclaimed in a  43 formal way in a very small gathering at Fort Langley.  44 THE COURT:  Wasn't it prepared in London?  45 MR. GOLDIE:  The form was, yes, but it didn't receive its  46 efficacy until he did it.  4 7 THE COURT:  Yes. 27735  Submissions by Mr. Goldie 1  MR. GOLDIE:  He was the  legislature which gave it first, second  2 and third reading, and then he gave it Royal assent.  3 Of the same character, in my submission, are the  4 declarations that he made.  These which are contained  5 in the three despatches laid before parliament for its  6 consideration.  So I reject the proposition that he  7 was somebody seeking office.  He embodied the --  8 represented the Crown.  And I'm going to draw a  9 distinction between him in that respect and him on  10 Vancouver Island where he had a Legislative Council.  11 And I draw a distinction between him in that respect  12 and Mr. Mills or Mr. Laird, the two federal cabinet  13 ministers that my friends referred to, and to whom  14 I'll be coming again in a few minutes.  All of these  15 people have a different official character.  16 Now, I wonder if I might -- I go on to -- oh,  17 yesterday, my lord, I went into the details of what he  18 did at Rock Creek, and in the yellow book at page 20,  19 this is 1182, Mr. Cox writes to the Chief Commissioner  20 of Land and Works, and it's from Rock Creek.  And he  21 says:  22  23 "Sir, I have the honour to inform you that I am  24 this day in receipt of a Circular from the  25 Colonial Secretary, by which I perceive His  26 Excellency the Governor has been pleased to  27 appoint me Assistant Commissioner of Lands for  28 this District.  29  30 I therefore beg to seek from you some  31 information on the following:  32  33 Laws for controlling Indian Reservations."  34  35 This is not in the yellow binder, my lord.  3 6  THE COURT:  Oh.  37  MR. GOLDIE:  It's Exhibit 1182, page 20.  And Cox says:  38  39 "The former I shall thank you much to make me  40 acquainted with as early as convenient; some  41 disputes (for the present amicably arranged)  42 having lately arisen between the natives and  43 white men, concerning ground preoccupied by the  44 former near the northern extremity of Okanagan  45 Lake  46  47 And my point in saying that is that when Douglas 27736  Submissions by Mr. Goldie        1 went to Rock Creek and  told the assembled miners what  2 he did tell them, he said the laws are going to be  3 introduced, magistrates are going to be appointed.  He  4 did all of those things.  There was -- a magistrate  5 had been appointed.  The magistrate had the power to  6 mark out lands to protect the Indian peoples.  7 Now, my lord, at paragraph 26 on page 19, there  8 are further factors which make these reports of  9 critical importance:  At these meetings the Indian  10 people spoke freely to one long experienced in  11 understanding the native peoples and in making himself  12 understood by them.  13 And there I remind your lordship that Douglas had  14 been in what is now British Columbia since the 1820's.  15 His working life had been spent amongst the peoples of  16 the province.  17 The protection of the village sites and fields and  18 of the right to fish and to hunt over unoccupied Crown  19 lands was explicit and so was the declaration of  20 acceptance.  There was no claim of a general right of  21 ownership and jurisdiction.  The instructions, and he  22 stated instructions, will be given to the magistrates,  23 I say, were precisely in terms those which O'Reilly  24 were carrying out in the claim area in 1891-92.  25 My lord, I should qualify that.  26 THE COURT:  That's not really right, is it?  27 MR. GOLDIE:  No, it isn't.  28 THE COURT:  Mr. O'Reilly was acting under Royal Commission.  29 MR. GOLDIE:  At that time.  30 THE COURT:  I'm sorry.  Not Royal Commission, Indian Commission.  31 MR. GOLDIE:  At that time it was a joint commission.  And what I  32 should say is that although matters had become  33 institutionalized by that time, at this time Douglas  34 could state instructions will be given.  That is to  35 say he would give the instructions and he were -- his  36 instructions -- and they were the Crown's  37 instructions.  Nevertheless by 1891 the whole process  38 had become institutionalized, as one would expect, but  39 O'Reilly's instructions and the way in which he  40 carried them out are not inconsistent with the spirit  41 of what Douglas was saying in 1860.  42 I say, the southern tribes were well informed of  43 the American policy of recognizing aboriginal title,  44 extinguishing it by treaty and removal to  45 reservations.  Douglas' policy of protecting actual  46 use and occupancy under British law was the preferred  47 alternative of these knowledgeable tribes.  I say, as 27737  Submissions by Mr. Goldie        1 a matter of interest,  from evidence given at the first  2 Metlakatla inquiry in 1884, it appears that northern  3 Indians under the influence of missionaries treated  4 Indian successes against the U.S. Army as an excuse to  5 challenge white authority on the Skeena.  6 That, my lord, is under the tab 26.  And the page  7 is the extract from the evidence given at the  8 commission of inquiry, the first Metlakatla inquiry.  9 And it's right down towards the bottom of the page.  10 The witness states in response to a question:  11  12 "It is my belief that this land trouble being  13 agitated by the Indians of the Skeena River is  14 the outcome of the trouble at Metlakatla.  They  15 threatened to drive the miners from the gold  16 diggings.  They talk of not being afraid of  17 soldiers, and give as their reason that,  18 referring to the disturbances in the United  19 States in which the Government has met  20 reverses, they say, why can't we do the same  21 thing?"  22  23 And then he refers to one of the missionaries  24 saying that.  25 Now, I submit that the Douglas' statements were  26 intended to be and were of general application,  27 binding the Crown in its dealings throughout the  28 Colony.  He was not fashioning local expedients to  2 9 local demands.  30 I say, the statements made by Douglas of a policy  31 of which had been and was thereafter acted upon, set  32 out in the despatches submitted to parliament in  33 accordance with the Act of 1858 are fatal to the  34 proposition that aboriginal ownership and jurisdiction  35 existed in the Mainland Colony or could be implied  36 from acts by or on behalf of the Crown.  No exception  37 was taken to Douglas' statements by Newcastle in his  38 acknowledgement of February the 1st, 1861.  Which was  39 no more than that, a brief acknowledgement, because in  40 my submission the statements of the policy that he  41 made in the name of the Crown conformed to his earlier  42 statements which have been sent home for review.  43 My lord, just apropos of what your lordship was  44 saying a few minutes ago I refer to the case of  45 Ontario Mining Company v Sable.  And in the trial  46 court -- and this, my lord, is the plaintiffs' Volume  47 VI at tab 24.  This was really an action -- 27738  Submissions by Mr. Goldie        1  THE COURT:  Just a minute, Mr.  Goldie, please.  2 MR. GOLDIE:  Thank you, my lord.  3 THE COURT:  They're not all gray.  4 MR. GOLDIE:  Oh, no.  Oh, I had forgotten that.  5 THE COURT:  Oh, I'm sorry.  We're in the plaintiffs' books.  6 MR. GOLDIE:  We're in the plaintiffs'.  I see your lordship has  7 a red one and I have a green one.  8 THE COURT:  At what page?  9 MR. GOLDIE:  It's tab —  10 THE COURT:  Oh, I have the tab.  11 MR. GOLDIE:  — 24.  I'm just about to refer to the headnote.  12 THE COURT:  All right.  13 MR. GOLDIE:  The background of the case -- and this too arose  14 out the Treaty of 1873 under which certain lands were  15 set aside for reserves and in negotiating the treaty  16 the Dominion commissioners represented to the Indians  17 that they would be entitled to the benefit of any  18 minerals that might be discovered on any of the --  19 certain of the reserves.  The effect, of course, of  20 St. Catherine's Milling was to confirm that the entire  21 beneficial interest resulting from that surrender was  22 vested in the province and the question then arose as  23 to what flowed from that so far as some of the earlier  24 negotiations and representations were concerned.  And  25 the holding was in the trial court that:  26  27 "After the surrender in 1886 a title to the  28 land and to the precious metals therein could  29 be obtained only from the Crown as represented  30 by the Province of Ontario.  With the Royal  31 mines and minerals the Indians had no concern  32 or could the Dominion make any valid  33 stipulation with them which could affect the  34 rights of Ontario.  A province is not to be  35 held bound by alleged acts of acquiesence of  36 various departmental officers which are not  37 brought home to or authorized by the proper  38 executive or administrative organs of the  39 provincial government and are not manifested by  40 any order-in-council or other authentic  41 testimony."  42  43 And that is enlarged upon by Chancellor Boyd at  44 page 393.  45 Now, in the House of Lords -- I shouldn't say in  46 the House of Lords.  In the Privy Council under tab  47 25, my lord, the observation of Lord Davey on this 27739  Submissions by Mr. Goldie 1            point is indicated in  the last seven lines on page 83.  2  3 "It was contended in the courts below and that  4 their lordships' bar was suggested rather than  5 seriously argued that the Ontario Government by  6 the acts and conduct of their officers had in  7 fact assented to and concurred in the selection  8 at any rate of reserve 38B notwithstanding the  9 recital to the contrary in the agreement.  The  10 evidence of the circumstances relied upon for  11 this purpose was read to their lordships, but  12 on this point they adopt the opinion expressed  13 by the learned Chancellor Boyd that the  14 province cannot be bound by alleged acts of  15 acquiesence on the part of various officers of  16 departments which are not brought home to or  17 authorized by the proper executive or  18 administrative organs of the provincial  19 government and are not manifested by any  20 order-in-council or other authentic testimony."  21  22 Now, I'm going to be submitting that everything  23 upon which I rely is based upon or is affected or  24 effected by orders-in-council or legislation itself.  25 THE COURT:  What do you think is meant by the term "other  26 authentic testimony"?  27 MR. GOLDIE:  I can only think of as an example of that, my lord,  28 a direction by a responsible minister in execution of  29 an act of parliament.  There must be some other  30 examples of that.  31 THE COURT:  M'hm.  32 MR. GOLDIE:  But speculation, opinion, statements by a minister  33 of the Crown which are not acts of execution of policy  34 are not acquiescence by the Crown in the policy so  35 stated or in a policy described.  36 Now, I say, in the case of Douglas, and I'm  37 repeating myself of course at this point, that he  38 embodied the Crown in its complete capacity subject  39 only to the limitations imposed upon him by the home  40 authorities.  But in paragraph 27 I note that examples  41 of how Douglas' stated policy was implemented are  42 found in Exhibit 1182, the so-called yellow book, more  43 formerly known as Papers Connected with the Indian  44 Land Question, 1850 to 1875.  The reason for this  45 document and a resume of its contents was stated by  46 counsel at the transcript reference.  That reference,  47 my lord, and I won't go into it, simply provided your 27740  Submissions by Mr. Goldie 1            lordship with the  background of why those papers were  2 collected and published.  3 Paragraph 28, the relevant section in Exhibit 1182  4 is that containing selected correspondence between the  5 Colonial Secretary, the official within the Colony as  6 distinct from the Colonial Secretary in London who is  7 referred to as the Secretary of State for the  8 Colonies, and another colonial official, the Chief  9 Commissioner of Lands and Works.  The first such  10 appointee was Colonel Moody of the Royal Engineers.  11 This correspondence, found at pages 20-86, 92-96 and  12 164-167, reflect the administration of policy.  That  13 correspondence from page 20, starting with Mr. Cox's  14 letter of February 12, 1861, through to page 39 and  15 concluding with Mr. Trutch's letter to Mr. O'Reilly of  16 November 16, 1866, all relate to the Mainland Colony.  17 Just pausing there, my lord.  In the yellow binder  18 under tab 5(b)-27 are the transcript references that I  19 referred to, and then -- and I'm not going to -- and I  20 have not included the references from the yellow book  21 itself.  I'm just describing what they are.  22 Beginning with Mr. Mclvor's letter of April 8th,  23 1867 on page 39 and concluding with Mr. Trutch's  24 memorandum of August 28th, 1867 page 43, the  25 correspondence relates to the united Colony.  Mr.  26 McColl's report of May 16, 1864 on page 43 and related  27 documents on the next page relate to the Mainland  28 Colony before a union.  This mixture of events which  29 took place before and after 1866 continues to page 86.  30 The collection beginning at page 92 and continuing  31 through to page 96 all relate to events in the united  32 Colony in 1871 before and after the union of British  33 Columbia with Canada.  At page 164-167 will be found a  34 selection of Gazette notices of Indian reserves.  35 These examples of administration illustrate one of  36 the salient features of the colonial policy, that is  37 reserving the sites of settlements and of the adjacent  38 cultivated areas.  They also indicate the difference  39 in the needs of the Indian peoples in the southern  40 interior, who were more nomadic in habit than the  41 coastal Indians.  42 Now, my lord, I had a map yesterday showing Indian  43 reserves in British Columbia, and perhaps I might  44 refer to that again.  45 THE COURT:  The Rock Creek map?  46 MR. GOLDIE:  This is the one from which I identified Rock Creek.  4 7  THE COURT:  Yes. 27741  Submissions by Mr. Goldie        1  MR. GOLDIE:  And what, of course,  becomes obvious when one  2 simply -- what becomes evident when one looks at these  3 is the sheer number of them and the great variety in  4 sizes.  And I make particular reference to the south  5 central and southeast part of the province where there  6 are very large reserves reflecting a more nomadic  7 existence.  And, of course, up the Fraser River there  8 are many.  Many of them are smaller and they represent  9 the reserves which people who largely depended upon  10 the fish were found.  And, of course, on the coast  11 there are very many small reserves which were  12 inhabited by people whose livelihood was primarily  13 found in the exploitation of the sea resources.  These  14 reflect the policy which was stated by Douglas and for  15 which he was solely responsible.  Not in the execution  16 of it, but in its statement.  And others did his  17 bidding.  For instance -- and I'm going to read from  18 page 21 of the yellow book.  Does your lordship have  19 that exhibit?  20 THE COURT:  I did yesterday.  I'm not sure I do now.  21 MR. GOLDIE:  I think your lordship may have our copy.  1182.  22 Well, perhaps I can just refer to it very shortly.  2 3  THE COURT:  Yes.  24 MR. GOLDIE:  At page 21 the Colonial Secretary, and that's the  25 official in the colonial government who was Douglas'  26 secretary, to the Chief Commissioner of Lands and  27 Works, that was Colonel Moody, date line New  28 Westminster, 5th of March, 1861.  29  30 "Sir, I am directed by His Excellency the  31 Governor to request that you will take  32 measures, so soon as may be practicable, for  33 marking out distinctly the sites of the  34 proposed Towns and the Indian Reserves  35 throughout the Colony.  36  37 The extent of the Indian Reserves to be defined  38 as they may be severally pointed out by the  39 Natives themselves."  40  41 Now, it's, of course, inevitable that a general  42 statement of policy like that is going to be variously  43 interpreted, but that was the policy.  44 Now, I say in paragraph 30, in all material  45 respects the policy of the Mainland Colony with  46 respect to its native residents was settled by Douglas  47 by 1860. 27742  Submissions by Mr. Goldie        1 In the next section  I'm going to review the 13  2 colonial proclamations and ordinances before the  3 courts in Calder and as well as others not before  4 those courts and these will be examined to determine  5 their relationship to this policy.  6 THE COURT:  Could you give me again the reference to that  7 passage you just read out of the yellow book, please?  8 MR. GOLDIE:  That's Exhibit 1182 at page 21.  And it is the  9 Colonial Secretary to the Chief Commissioner of Lands  10 and Works.  11 THE COURT:  The Colonial Secretary in London?  12 MR. GOLDIE:  No.  No.  That's Douglas' secretary.  13 THE COURT:  All right.  14 MR. GOLDIE:  In that book.  15 THE COURT:  Sorry.  The date?  16 MR. GOLDIE:  5th of March, 1861.  17 THE COURT:  Thank you.  18 MR. GOLDIE:  The Secretary of State for the Colonies in London  19 is referred to by that title in this document.  20 MS. MANDELL:  My lord, I wonder if my friend could clarify  21 whether or not he's saying that the policy which he  22 says is expressed that the reserves are defined as  23 pointed out by the Indian people themselves as  24 contained in the March 6th letter is the policy in the  25 pre -- does he say that is the policy in the  26 pre-confederation period?  27 MR. GOLDIE:  Well, as institutionalized over time, yes.  You're  28 talking up to 1871.  29 MS. MANDELL:  That's right.  30 MR. GOLDIE:  Yes, that's correct.  But the extent of the Indian  31 reserves -- let me -- let me be clear about it.  The  32 declaration, and let me -- let me give your lordship  33 an example of what I call the institutionalization of  34 it without affecting the general character, and it is  35 a letter dated March the 6th, 1861 from the Chief  36 Commissioner Colonel Moody to Mr. Cox.  And he says:  37  38 "I have the honour to acknowledge the receipt  39 of your communication of the 12th ultimo,  40 requesting information as to the laws for  41 controlling Indian Reservations, also those for  42 the letting of agricultural land to aliens.  43  44 With regard to the former, I have received  45 instructions from His Excellency the Governor  46 to communicate with you on the subject and to  47 request that 'you will mark out distinctly all 27743  Submissions by Mr. Goldie        1 the Indian  Reserves in your District, and  2 define their extent as they may be severally  3 pointed out by the Indians themselves.'  I  4 would, at the same time, beg of you to be  5 particular in scrutinizing the claims of the  6 Indians, as I have every reason to believe that  7 others (white persons) have, in some instances,  8 influenced the natives in asserting claims  9 which they would not otherwise have made, the  10 object of such persons being prospective  11 personal advantages previously covertly  12 arranged with the Indians."  13  14 Now, what I am getting at is that the directions  15 of the Governor were intended to carry out what he had  16 stated to the Indian peoples in his meetings with  17 them, that they would be protected in respect of their  18 village sites and in respect of the agricultural lands  19 which they needed for their subsistence.  These were  20 the words that he used to the Indians themselves.  21  22 "I also explained to them that the magistrates  23 had instructions to stake out, and reserve for  24 their use and benefit, all their occupied  25 village sites and cultivated fields and as much  26 land in the vicinity of each as they could  27 till, or was required for their support."  28  29 Now, that's a pretty clear proposition.  And that  30 was the intention of the policy in the Colony, and  31 that was the expressed intention by the person who had  32 the authority, indeed the only person who had the  33 authority to formulate that policy.  34 Now, here is another example, my lord.  35 THE COURT:  Where was that passage that said that it was so much  36 of the land that they could till?  37 MR. GOLDIE:  That is in Douglas' despatch.  It's set out on page  38 17 of my summary, my lord, but it's Douglas' despatch  39 of October the 9th, 1860.  40 THE COURT:  And that would be in the yellow book too, would it?  41 MR. GOLDIE:  I'm not sure that it is in the yellow book.  The  42 yellow book is a real conglomeration.  But this is the  43 despatch that went to London and was laid before the  44 Houses of Parliament.  And it's -- it is the statement  45 that he made at Cayoosh, that he made at Lytton, and  46 that he made to various groups between Lytton and Rock  47 Creek in which I say constitutes a statement of 27744  Submissions by Mr. Goldie        1 general application  throughout the Colony.  2 I was going to go back -- your lordship will  3 appreciate that my characterization of the documents  4 in the yellow book is that they represent the  5 administration of a policy.  And a further example of  6 that is the instructions given to Sapper Turnbull, the  7 engineers, on page 22.  Turnball is instructed by his  8 superior officer:  9  10 "You will take an early opportunity of staking  11 and marking out in the District you are now  12 stationed, all Indian villages, burial places,  13 reserves, etc., as they may be pointed out to  14 you by the Indians themselves, subject however,  15 to the decision of the District Magistrate as  16 to the extent of the land so claimed by them."  17  18 That is an example of what I call the  19 institutionalization of the policy.  20 Now, sometimes that administration led to lands in  21 excess of what was required being taken.  Sometimes it  22 led to considerable correspondence internally.  An  23 example of that, my lord, begins on page 29 with Mr.  24 Nind's letter to the Colonial Secretary.  Now, this  25 being the local man, not the man in London.  And Nind  26 is a District Magistrate, and he is talking about what  27 appears to be complaints about the size of a reserve,  28 and he receives instructions on what to do about it.  29 And at the bottom of page 31 is a copy of a letter  30 from Mr. Cox to Mr. Nind respecting Indian reserves  31 about Kamloops, dated 16th of July, 1865.  Now, he  32 says:  33  34 "Just before leaving Kamloops, I received  35 instructions from Governor Douglas to mark out  36 all the Indian Reserves in the neighbourhood."  37  38 Now, that, of course, must have been prior to  39 Douglas' resignation, which was early in 1864.  And  4 0 then we have a report from Turnball, I don't know  41 whether that's the same Turnball who had been been in  42 the engineers, at page 35.  And this is just before  43 the union of the two Colonies.  And he's talking about  44 how he laid out three Indian reserves in the Okanagan.  45 But all of that, my lord, is what I call  4 6 administration.  And indeed that's what Musgrave  47 referred to as in 1871 or 1870 just before 27745  Submissions by Mr. Goldie        1 Confederation.  But  your lordship will have observed  2 that the instructions to the magistrates with respect  3 to reserves and the extent of them was only one part  4 of a number of items which Douglas was dealing with  5 when he was talking to the Indians.  6 And if your lordship would look at page 17 of my  7 summary your lordship will see, and I referred to this  8 yesterday, that he really dealt with a number of items  9 each one of which in my submission was completely  10 inconsistent with ownership and jurisdiction.  First  11 about eight lines from the bottom of the first  12 paragraph he says:  13  14 "The local magistrates would attend to their  15 complaints, and guard them from wrong, provided  16 they abandoned their own barbarous modes of  17 retaliation."  18  19 Now, he's stating there that they must give up the  20 way in which they dealt with each other.  And that's  21 just as important, my lord, in this claim for which  22 includes jurisdiction as the question of reserves.  23 THE COURT:  I don't see that passage on page 17.  24 MR. GOLDIE:  Page 17 of my summary.  2 5 THE COURT:  Yes.  26 MR. GOLDIE:  The quotation, the long quotation there.  27 THE COURT:  Yes.  Oh, yes.  I see it.  28 MR. GOLDIE:  First paragraph.  29 Now, if your lordship will go down to the next  30 sentence he says:  31  32 "I also forcibly impressed upon their minds  33 that the same laws would not fail to punish  34 offences committed by them against the persons  35 or property of others."  36  37 Now, that too is equally important on the question  38 of jurisdiction.  He is asserting jurisdiction on the  39 part of the Crown and stating that British law would  40 be applied in respect of offences committed by them  41 against the persons or property of others of whatever  42 character.  And then comes the -- the policy with  43 respect to the reserves and then immediately following  44 that.  45  46 "And that they might freely exercise and enjoy  47 the rights of fishing the lakes and rivers, and 27746  Submissions by Mr. Goldie        1 of hunting over  all unoccupied Crown lands in  2 the Colony."  3  4 Now, that is clearly stating when he said  5 unoccupied that their rights were subject to the  6 provisions of occupation which allowed the Crown to  7 alienate under the presumption law.  When I say  8 "clearly" I mean that he is clear in his statement.  9 And then the next one is:  10  11 "That on their becoming registered free miners  12 they might dig and search for gold"  13  14 My lord, that is a statement that they must comply  15 with the laws of the country if they were going to  16 exploit the resources.  And that, in my submission, is  17 fatal to the claim that is made here of ownership of  18 resources.  19 Now, we are exhorted to seek these things through  20 the eyes of the Indians, and I accept that.  And I say  21 that the person who's talking to these Indians was  22 somebody who had been talking to Indians for upwards  23 of 30 years.  I say that there was an exchange.  This  24 was not a declaration of a unilateral character.  It  25 was not a presentation of here's the terms of a  26 treaty, take it or leave it.  There was an exchange of  27 views.  And that was clearly the case of the people  28 who said we're -- we don't want to become like our  29 American cousins, compelled to move into distant  30 reserves.  31 Now, the acceptance of the allegiance which is in  32 the terms expressed by him on the quotation at the top  33 of page 18 where he says:  34  35 "They were delighted with the idea, and  36 expressed their gratitude in the warmest terms,  37 assuring me of their boundless devotion and  38 attachment to Her Majesty's person and Crown,  39 and their readiness to take up arms at any  40 moment in defence of Her Majesty's dominion and  41 rights."  42  43 There's no mention of military service in his  44 statements.  That statement of the readiness to take  45 up arms is something that came from them.  And that's  46 what I point to in support of my proposition that  47 there was an exchange of views, not a unilateral 27747  Submissions by Mr. Goldie        1 statement.  And the  fact that it was understood by the  2 people to whom he was talking, and by subsequent  3 peoples, including those in the claims area, is clear.  4 A number of them did take out free miner's licenses.  5 In fact, so far as is known everyone who purported to  6 mine took out a free miner's licence.  And certainly  7 Mr. Williams' evidence shows that a number in the  8 claims area did exactly that.  9 Now, my lord, I want to return to my summary.  And  10 I am section 5(c) in which I propose to examine the  11 legislative instruments which in my submission  12 indicate that the settled policy of the Colony carried  13 Douglas firsly, and later his successors, carried  14 through into legislation was that there was --  15 THE COURT:  Is that a correct statement in paragraph 2?  Did  16 Seymour succeed Douglas?  I thought Seymour succeeded  17 Blanchard.  18 MR. GOLDIE:  No.  Douglas succeeded -- the sequence was  19 Blanchard on Vancouver Island for a relatively short  20 period of time succeeded by Douglas.  21 THE COURT:  Oh, all right.  22 MR. GOLDIE:  And on the mainland Seymour succeeded Douglas, and  23 Seymour became the Governor of the united Colony and  24 died in office in 1869.  25 THE COURT:  I don't know why I got that one wrong.  I'm glad to  26 have it corrected.  So Douglas was the second governor  27 of Vancouver Island?  28 MR. GOLDIE:  Yes, my lord.  Blanchard wasn't there for very  29 long, but he was there long enough to be there when  30 the first 11 of the purchase agreements were entered  31 into with the native peoples on Vancouver Island.  32 I say, to introduce the examination of Colonial  33 Proclamations and Ordinances, the Commissions and  34 Instructions given the two Governors who succeeded  35 Douglas should be noted.  36 Seymour succeeded Douglas as Governor of the  37 Mainland Colony in January of 1864 and on November 19,  38 1866 when the two Colonies were combined to form the  39 single Colony of British Columbia he became Governor  40 of the United Colony, dying in office in 1869.  41 Anthony Musgrave was appointed June 17, 1869 and  42 continued in office until British Columbia joined  43 Canada in 1871.  44 Seymour's commission is found, and they are  45 collected, my lord, under tab 5(c)-2.  And the  46 difference between Seymour and Douglas was, of course,  47 the introduction of the Legislative Council.  I 27748  Submissions by Mr. Goldie 1            shouldn't say the  difference between Seymour and  2 Douglas, because right at the end of Douglas' tenure  3 the Legislative Council came into being.  And, of  4 course, the making of laws for the peace, order and  5 good government then became "with the advice of the  6 Legislative Council".  That's noted, my lord, on page  7 two of the typescript at the top with the words "with  8 the advice of the Legislative Council", et cetera.  9 And he is expressly empowered, unlike Douglas who  10 could make his own laws, he is expressly empowered on  11 page three of the typescript to dispose of any lands  12 which may be lawfully granted or "disposed of by us".  13 And then there follows that the instructions to  14 Seymour dated January 11th, 1864.  And there's some  15 marginally relevant points.  And the first one is on  16 page five of the typescript.  And this again marks the  17 introduction or reflects the introduction of a  18 Legislative Council.  It's XI.  19  20 "And whereas by an order-in-council bearing  21 date the eleventh of June, 1863, We did  22 constitute a Legislative Council, and did  23 empower the Governor of Our said Colony with  24 the advice of Our said Council to make Laws for  25 the Peace, Order, and Good Government."  26  27 And then on page seven the limitations on the  28 Governor's authority, or I should say the authority to  29 enact laws with the advice of the Legislative Council.  3 0 XVI.  31  32 "And We do further direct that you are on no  33 account without Our permission, to allow any  34 Ordinance to take effect in Our said Colony  35 which may belong to either of the following  36 classes."  37  38 And then they set out some ten items.  And number  39 eight.  40  41 "Any Ordinance of an Extraordinary Nature and  42 Importance whereby our Prerogative, or the  43 Rights and Property of Our Subjects not  44 residing..."  45  46 Et cetera.  That is again something that would  47 affect the prerogative of an extraordinary nature. 27749  Submissions by Mr. Goldie        1 Nine.  2  3 "Any Ordinance whereby persons of African,  4 Asiatic or Indian Birth may be subjected or  5 made liable to any disabilities or restrictions  6 to which persons of European Birth or Descent  7 are not aslso subjected to or made liable.  8  9 Any Ordinance containing Provisions to which  10 our Assent has been once refused, or which have  11 been disallowed by us."  12  13 My lord, other than that Seymour's instructions  14 and commission contained no restriction on legislation  15 which might affect an aboriginal interest if such  16 existed.  17 At page 12, paragraph XXVI.  18  19 "And it is our further will and pleasure that  20 you do to the utmost of your power promote  21 Religion and Education among the Native  22 Inhabitants of Our said Colony or of the lands  23 thereto adjoining."  24  25 That was something which was missing from Douglas'  26 commission.  27 And then under tab 3 are the portions of the --  28 well, those are also Seymour's commissions.  And tab 3  29 simply relates some of the ones that I have been  30 referring to.  31 THE COURT:  Tab 3 is part of Seymour's commission?  32 MR. GOLDIE:  Yes, my lord.  And part of it I have read.  It's  33 just repeated because there's additional reference in  34 the paragraph, and there is also a repetition of  35 instructions under the second binder starting at page  36 three.  37 Now, under tab 4 are the -- is the commission of  38 Musgrave.  And the authority with respect to lands is  39 set out in paragraph IV on page three of the  40 typescript.  41  42 "And we do hereby Authorize and Empower you to  43 make and execute in Our Name and on Our Behalf  44 under the said Public Seal, Grants and  45 Dispositions of any Lands within said Colony  46 which may be lawfully granted or disposed of by  47 Us either in conformity with Instructions under 27750  Submissions by Mr. Goldie        1 OUr Sign Manual  and Signet, or in conformity  2 with such Regulations as are now in force or  3 may be made by you in that behalf with the  4 Advice of our said Executive Council and duly  5 Published in Our said Colony."  6 And in his instructions there is included in the  7 description of the bills not to be assented to by him.  8 The instructions follow the separator sheet.  And the  9 bills not to be assented to are in paragraph XV, and  10 amongst the classes which he is not to assent to is  11 the bill -- any bill which would discriminate against  12 persons not of European birth or descent.  I'm sorry.  13 Discriminate people -- yes, not of European birth or  14 descent.  15 And in paragraph 5 I note that he is enjoined to  16 promote religion, et cetera, amongst the native  17 inhabitants in language substantially the same as that  18 of Seymour's instructions.  19 Now, in paragraph 6 I say, it will be seen from  20 the foregoing that there is not only no reference to  21 aboriginal rights or titles or interests, but that  22 specific reference to the Indians is of a protective  23 character, that is to say, protection in the free  24 enjoyment of their processions as well as their  25 persons.  26 Now, that language is found in paragraph XXIV  27 under tab 5(c)-5.  After enjoining the Governor to  28 promote religion there follows the clause:  29  30 "And that you do especially take care to  31 protect them in their Persons and in the Free  32 Enjoyment of their Possessions."  33  34 THE COURT:  I'm sorry.  Where was that in five?  35 MR. GOLDIE:  That's under tab 5(c)-5.  3 6 THE COURT:  Yes.  37 MR. GOLDIE:  And it's paragraph XXIV of Musgrave's instructions.  38 THE COURT:  Oh, yes.  39 MR. GOLDIE:  I note that Douglas' commission and instructions  40 were silent with respect to any reference to native  41 peoples and the variations and changes which had taken  42 place must be taken to be inclusive of all matters  43 which the British government considered necessary to  44 instruct those who succeeded Douglas.  Native title  45 was not amongst these.  46 The order-in-council of June 11, 1863 providing  47 for a Legislative Council did not diminish the 27751  Submissions by Mr. Goldie        1 amplitude of  legislative powers conferred by the  2 phrase "peace, order and good government".  All  3 Colonial Ordinances, whether enacted by Governor  4 Douglas prior to the order-in-council of June 11, 1863  5 in his capacity as the legislature or by the Governor  6 thereafter with the advice and consent of the  7 Legislative Council were transmitted to London where  8 they were liable to be disallowed by the Queen in  9 Council.  As will be seen the important Ordinances  10 enacted by Douglas not only laid before parliament but  11 also received the express approval of the Queen.  Most  12 of the 13 Calder Ordinances not enacted during  13 Douglas' tenure as Governor were also expressly  14 approved by the Queen.  There appear to have been two  15 different -- two different categories.  One was the  16 ordinary right of disallowance which extended to all  17 Colonies of whatever kind, and the other was the  18 approval.  The express approval on the part of the  19 Queen which was given in connection with most of the  20 Calder Ordinances.  And I say, such approval removed  21 any possibility of legislation being beyond the powers  22 of either the Governor or the Governor acting with the  23 advice and consent of the Council.  24 I mean there the sequence from Douglas who was  25 acting -- who was empowered to act on his own through  26 Douglas to Seymour where there was a Legislative  27 Council.  28 Now, turning to the Calder XIII I say, of the 11  29 judges who considered the 13 Colonial Ordinances  30 placed before the courts in Calder seven were of the  31 opinion expressed by the trial judge, Mr. Justice  32 Gould, quoted with approval by Mr. Justice Tysoe and  33 by Mr. Justice Judson.  And his opinion was that these  34 pieces of legislation:  35  36 "... reveal a unity of intention to exercise  37 ... absolute sovereignty ... inconsistent with  38 any conflicting interest, including one as to  39 'aboriginal title, otherwise known as the  40 Indian title'  41  42 THE COURT:  What do you think they're talking about when they  43 use the term "aboriginal title", are they talking  44 about ownership or are they talking about usufructuary  45 rights?  46 MR. GOLDIE:  They certainly were not talking about ownership,  47 because the meaning of the term used in the prayer for 27752  Submissions by Mr. Goldie 1            relief in Calder was in  general terms.  And I'll -- I  2 think it is stated just as is stated in the quotation,  3 "aboriginal title, otherwise known as the Indian  4 title".  On several occasions counsel was asked what  5 was meant by that and he is quoted in both courts -- I  6 should say in both the Court of Appeal and in the  7 Supreme Court of Canada.  And Mr. Justice Judson said  8 at page 328 of Calder --  9 THE COURT:  Just a moment.  Yes.  10  MR. GOLDIE:  He said:  11  12 "... the fact is that when the settlers came,  13 the Indians were there, organized in societies  14 and occupying the land as their forefathers had  15 done for centuries.  That is what Indian title  16 means and it does not help one in the solution  17 of this problem to call it a 'personal or  18 usufructuary right'.  What they are asserting  19 in this action is that they had a right to  20 continue to live on their lands as their  21 forefathers had lived and that this right has  22 never been lawfully extinguished.  There can be  23 no question that this right was 'dependent on  24 the goodwill of the Sovereign'."  25  26 And then Mr. Justice Hall at page 352 said this:  27  28 "When asked to state the nature of the right  29 being asserted and for which a declaration was  30 being sought, counsel for the appellants ..."  31  32 That is to say for the Nishga.  33  34 "Described it as 'an interest which is a burden  35 on the title of the Crown; an interest which is  36 usufructuary in nature; a tribal interest  37 inalienable except to the Crown and  38 extinguishable only by legislative enactment of  39 the Parliament of Canada.'."  40  41 And his lordship goes on:  42  43 "The exact nature and extent of the Indian  44 right or title does not need to be precisely  45 stated in this litigation."  46  47 The issue being whatever the title may be it has 27753  Submissions by Mr. Goldie        1 not been extinguished.  2 Now, I mentioned the prayer for relief.  The  3 declaration that was sought is exactly in the words  4 that are quoted at the top of page six of my summary.  5 And I'm now reading from page 313 of Calder, the  6 headnote, and I quote:  7  8 "The appellants, suing on their own behalf and  9 on behalf of all other members of the Nishga  10 Tribal Council and four Indian bands, brought  11 an action against the Attorney-General of  12 British Columbia for a declaration 'that the  13 aboriginal title, otherwise known as the Indian  14 title, of the Plaintiffs to their ancient  15 tribal territory ... has never been lawfully  16 extinguished'."  17  18 So that was the prayer for relief.  It was  19 characterized by Mr. Justice Judson in the manner that  20 I have just finished reading, and by Mr. Justice Hall  21 in his quotation from what counsel had stated followed  22 by his observation the exact nature and extent of the  23 Indian right or title does not need to be precisely  24 stated.  But all appear to be more or less agreed on  25 the usufructuary nature.  That is to say, the use of  26 something belonging to another.  And that's how it has  27 come to be characterized as a use and occupancy claim.  28 Now, my lord, it is my submission that the  29 conclusion of Mr. Justice Gould and of the Court of  30 Appeal and of the three judges in the Supreme Court of  31 Canada, who agreed that the legislation in question,  32 which was primarily land legislation, reveal the unity  33 of intention to exercise absolute sovereignty, and it  34 is my submission that that is a correct conclusion.  35 Independently of aboriginal title if one examines  36 these pieces of legislation there can't be any doubt,  37 in my submission, that it was the intention of the  38 legislature to deal with the lands of the Colonies as  39 if it was the absolute owner of those lands.  40 THE COURT:  Of course, that begs the question, doesn't it, they  41 can be absolute owner and still have a burden over it,  42 can't they?  43 MR. GOLDIE:  My point is that there are two stages.  Firstly,  44 does the legislation reveal that unity of intention to  45 deal with absolute sovereignty.  If it doesn't then I  46 say the door opens and you have to ask the second.  47 Now, the second one is that -- the second question is, 27754  Submissions by Mr. Goldie        1 is there anything that  you can find which recognizes  2 or acknowledges a burden on what is otherwise being  3 dealt with as the absolute ownership of the Crown.  4 Now, the Royal Proclamation, of course, provided  5 the answer to that in respect of the great reserve in  6 the east.  A treaty can do the same.  And, of course,  7 the reserves did it with respect to lands in British  8 Columbia.  Virtually every piece of that legislation  9 which we are going to look at exempts Indian  10 settlements or reserves.  11 I note that on the basis of the legislative  12 history of these enactments it will be submitted the  13 opinion of Mr. Justice Hall at S.C.R. page 413 et seq  14 that any attempt to extinguish title by virtue of  15 these Ordinances was ultra vires is, with respect,  16 incorrect.  17 The analysis of these 13 enactments by Gould, as  18 referred to above, is adopted as applicable to claims  19 outside reserves, and by that I mean claims here made,  20 whether such claims be to ownership and jurisdiction  21 or the non-proprietary claim of the use and occupancy  22 of the kind put forward in Calder.  23 Now, I turn to the first --  24 THE COURT:  You mentioned three possibilities of reconciliation.  25 The Royal Proclamation was the first and reserves was  26 the second, but what was the third?  27 MR. GOLDIE:  Treaties.  28 THE COURT:  Treaties.  Yes.  29 MR. GOLDIE:  By that I mean this, my lord, that the numbered  30 treaties on the Prairies took a surrender in gross, if  31 I may put it that way, and then set up reserves.  Now,  32 that was never done in British Columbia with the  33 exception of the area within the Treaty 8.  The  34 reserves were established by withdrawing the area of  35 the Indian settlements and the lands necessary for the  36 subsistence -- the agricultural as necessary for their  37 subsistence.  Those were withdrawn from the ambit of  38 the pre-emption laws.  39 THE COURT:  There's one of the great difficulties I have with  40 this case is precisely in focus with this argument,  41 because you say there must be this recognition, and  42 the plaintiff, as I understand their alternative  43 claim, or indeed their claim for ownership is that if  44 it pre-exists as a matter of law the formation of the  45 Colony then no recognition would be required.  46 MR. GOLDIE:  Except that they're asking your lordship to  47 recognize it. 27755  Submissions by Mr. Goldie        1  THE COURT:  Oh, yes.  To declare  that it exists.  But that's recognition.  There is no -- with  respect to ownership and jurisdiction they can point  to no law.  They're asking me to declare that no recognition was  necessary.  Which is a slightly round about way --  Yes.  -- Of asking your lordship to recognize it.  Yes.  Or to acknowledge it.  I'll put it that way.  And, of course, you rely on the historical  pronouncements, for example, of the select committee  that says there was no such right except to settle  villages.  That's correct.  And I'm collecting some other  references to that.  Yes.  All right.  But your lordship will appreciate that my friends  are saying that this interest existed throughout the  entire Colony when it became a Colony.  They're saying  that when the act of parliament was passed --  Yes.  -- In 1858 there existed an interest which could be  enforced against the Crown.  And I say you look in  vein in that act to find any such acknowledgement.  And, in fact, you find a negation of it.  They say  that it survived the introduction of English law which  acknowledges no other source of title in the Crown.  So your lordship is going -- my friends are asking  your lordship to find such an acknowledgement or  recognition in the face of instruments which, in my  submission, are directly contrary.  Now, if I am correct in my submission the  Parliament of the United Kingdom never conceived of  the idea that it had to extinguish aboriginal title.  The instruments that I'm going to refer to simply  cannot be reconciled with acknowledged law creating an  interest enforceable against the Crown.  Well, do you have to put that acknowledged word in  there?  Well, my friends say that it was sufficiently  recognized for this court or indeed a court in 1858  had the question arisen.  You're saying recognized as understood rather than  being as declared?  I'm sorry, my lord.  2  MR.  GOLDIE  3  4  5  THE  COURT:  6  7  MR.  GOLDIE  8  THE  COURT:  9  MR.  GOLDIE  10  THE  COURT:  11  MR.  GOLDIE  12  THE  COURT:  13  14  15  16  MR.  GOLDIE  17  18  THE  COURT:  19  MR.  GOLDIE  20  21  22  23  THE  COURT:  24  MR.  GOLDIE  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  THE  COURT:  41  42  MR.  GOLDIE  43  44  45  THE  COURT:  46  47  MR.  GOLDIE 27756  Submissions by Mr. Goldie        1  THE COURT:  You're using  recognized in the sense there as if it  2 were synonymous with understood rather than recognize  3 in the sense of the formal declaration of recognition?  4 MR. GOLDIE:  I'm using those two words acknowledge or recognized  5 in the sense of something which would allow a  6 municipal act, a municipal court, a domestic court --  7 THE COURT:  Yes.  8 MR. GOLDIE:  -- To find that the Crown was bound by an interest  9 adverse to its own claims.  10 THE COURT:  Yes.  11 MR. GOLDIE:  I'm at paragraph 10, my lord.  Calder I.  12 THE COURT:  Well, if you're starting on Calder XIII — I guess  13 you are, are you?  14 MR. GOLDIE:  Yes, I am.  15 THE COURT:  I think we'll take the adjournment now.  16 THE REGISTRAR:  Order in court.  Court stands adjourned for a  17 short recess.  18  19 (PROCEEDINGS ADJOURNED)  20  21 I hereby certify the foregoing to  22 be a true and accurate transcript  23 of the proceedings transcribed to  24 the best of my skill and ability.  25  26  27  28  29  30 Peri McHale,  31 Official Reporter,  32 UNITED REPORTING SERVICE LTD.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 27757  Submissions by Mr. Goldie        1 (PROCEEDINGS  RESUMED AT 11:15)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord.  Your lordship will find under tab 5c-10  6 what has been referred to as Calder number I, and it  7 gave Douglas -- it's Douglas' Proclamation of December  8 2nd, 1858 which gave him the power to convey land, a  9 formal step which was based upon Judge Begbie's  10 opinion.  These -- your lordship may recall the way in  11 which the exhibits were arranged.  Taking Exhibit  12 1185, it contains a number of the Calder documents --  13 Calder proclamations and the legislative history in  14 relation to each, such as it is.  There's no first,  15 second or third reading, but there is a trail that is  16 left behind.  The proclamation itself, and this is  17 typical of all those that were enacted by Douglas when  18 he was using the powers of the Act of 1858, the  19 "Proclamation, having the Force of Law to enable the  20 Governor of British Columbia to convey Crown Lands  21 Sold within the said Colony.  And then the recital:  22  23 "By virtue of an Act of Parliament made and  24 passed on the 21st and 22nd Years of the Reign  25 of Her Most Gracious Majesty the Queen" --  26  27 That's the Act of 1858:  28  29 "-- by a Commission under the Great Seal of the  30 United Kingdom of Great Britain and Ireland" --  31  32 That's his commission:  33  34 "-- in conformity therewith, I, James Douglas,  35 Governor of the Colony of British Columbia,  36 have been authorized by proclamation issued  37 under the Public Seal of the said Colony, to  38 make Laws, Institutions and Ordinances for the  39 peace, order and good government of the same."  40  41 And then the substantive part of the proclamation:  42  43 "Now, therefore, I, James Douglas, Governor of  44 British Columbia, by virtue of the authority  45 aforesaid, do proclaim, ordain, and enact" --  46  47 Those are words from the Commission: 27758  Submissions by Mr. Goldie        1 "-- that on and  after the day of this  2 proclamation, it shall be lawful for the  3 Governor, for the time being of the said  4 Colony, by any instrument in printing or in  5 writing, or partly in print and partly in  6 writing, under his hand and seal to grant to  7 any person or persons any land belonging to the  8 Crown in the said Colony; and every such  9 instrument shall be valid as against Her  10 Majesty, her Heirs and Successors for all the  11 estate and interest expressed to be conveyed by  12 such instrument in the lands therein  13 described."  14  15 That constituted Douglas -- or to be more accurate,  16 the Governor, whether it was Douglas or his successor,  17 so long as this proclamation was law, to make grants  18 which bound the Crown.  The -- I note that it was the  19 advice of Begbie which led to the Proclamation, that  20 is apparent from the second document under the blue  21 binder -- the blue separator sheet.  It was enclosed  22 with Douglas' transmittal of the proclamation, and  23 Begbie said:  24  25 "It appears to me that the title of the Crown  26 can only be conveyed by Letters Patent under  27 the Great Seal, or under the authority of an  28 Act of Parliament.  29 I should, therefore, recommend a Proclamation  30 having the force of law to be immediately  31 issued, empowering some person or persons to  32 convey the legal estate in Crown Lands which  33 have been contracted to be sold.  34 This merely provides machinery for carrying  35 into full legal effect the sales which have  36 already been made equitably at the auction, and  37 subsequently thereto in the surveyor's office."  38  39 That particular reference to that which had already  40 been done, my lord, refers to the sale of town lots in  41 Fort Langley.  42 I say in paragraph 10 of my summary:  The earlier  43 Proclamation of November -- and that should be 19th  44 instead of 11th -- declaring that the civil and  45 criminal laws of England were applicable in the  46 Colony, was a necessary companion - the basis of the  47 English law of real property is that all title to land 27759  Submissions by Mr. Goldie        1 is derived from the  Crown.  2 And I noted yesterday, my lord, that the form of  3 the Proclamation was drafted in England and sent out,  4 and the form of the Crown grant was sent out when the  5 Colonial Office reminded Douglas of the fact that  6 grants from the Crown should not be in the name of the  7 Governor but in the name of the Queen.  8 THE COURT:  You don't treat the English law of land as one of  9 the Calder XIII?  10 MR. GOLDIE:  No.  I say it is one of those which has greater  11 significance in this case because we're dealing with  12 ownership and jurisdiction.  13 THE COURT:  Mm-hmm.  14 MR. GOLDIE:  In Calder XIII they were addressing themselves  15 entirely to the question of land use.  I don't say  16 that Calder XIII, simply because it's a Calder, it's  17 one of the Calder XIII it has greater significance --  18 THE COURT:  No.  19 MR. GOLDIE:  -- than any other.  It has significance in terms of  20 land use, but in terms of ownership and jurisdiction,  21 I say the English law Proclamation is of greater  22 significance.  23 I say of equal importance to the exercise of  24 absolute sovereignty over all the lands of the  25 Mainland Colony was the Proclamation of February 14th,  26 1859 respecting the alienation and possession of  27 agricultural lands.  That's under tab 11, and --  28 THE COURT:  Is this Calder II?  29 MR. GOLDIE:  This is Calder II.  And Section 1 of this Ordinance  30 it was declared:  31  32 "All the lands in British Columbia, and all the  33 mines and minerals therein, belong to the Crown  34 in fee."  35  36 The effect of that has been noted in several  37 subsequent cases, and that is to say that the  38 administration of its public lands was investigated in  39 the Colony at this date as distinct from the situation  40 that prevailed in the prairie provinces when they were  41 carved out of what had been Rupert's Land.  The  42 administration of all the public lands in those  43 provinces were retained by the Dominion until I think  44 it was 1930, but here we see that from 1859 the --  45 while the Proclamation is dealing with agricultural  46 lands, we have the Section 1 stating that:  47 27760  Submissions by Mr. Goldie 1                  "All the lands in  British Columbia, and all the  2 mines and minerals therein, belong to the Crown  3 in fee."  4  5 Now, that placed the administration of those lands  6 with the Colonial government, that is to say, at that  7 time, Douglas.  And I note in the Precious Metals case  8 at page -- and that should be 301, not 302:  9  10 "The title to the public lands of British  11 Columbia has all along been, and still is,  12 vested in the Crown; but the right to  13 administer and to dispose of these lands to  14 settlers, together with all Royal and  15 Territorial revenues arising therefrom, had  16 been transferred to the Province, before its  17 admission to the federal union."  18  19 And this is what that --  20 THE COURT:  I would have thought that the establishment of a  21 Colony and the principle that the settlers carry the  22 law with them is, as it is -- would have affected that  23 purpose, that is transferring the law of the lands to  24 the Province was affected just by the establishment of  25 the Colony, that wouldn't have required this.  26 MR. GOLDIE:  I think it would -- I think the lands would have  27 been treated as -- I'll put it this way:  In a settled  28 colony, with no pre-existing sovereign title to the  2 9 lands, would be deemed to be in the Crown, but who is  30 the Crown advised by?  Without this it would have been  31 the Crown as advised by the ministers in London, and  32 the administration of the lands would have been the  33 responsibility of the Imperial government.  This is in  34 effect a local statute saying what we would say today  35 "The Crown in right of the Colony".  That wasn't the  36 fashion in those days.  But the effect is quite clear,  37 as appears from the quotation from the Precious Metals  38 case:  39  40 "The title to the public lands of British  41 Columbia has all along been, and still is" --  42  43 And that's what your lordship is referring to, "all  44 along been":  45  46 "-- but the right to administer and to dispose  47 of these lands to settlers, together with all 27761  Submissions by Mr. Goldie        1 Royal and  Territorial revenues, have been  2 transferred to the Province."  3  4  5 THE COURT:  I guess I'm just being stubborn, but I would have  6 thought on the principle that you have put forward  7 that upon the creation of the calling with the  8 Governor that the land and the province within the  9 territories and the boundaries of the Colony at that  10 time would have been vested in the Crown.  11 MR. GOLDIE:  I think that's correct, my lord, but we would say  12 today which Crown, and without this it would be the  13 Imperial Crown.  It becomes of practical significance  14 when you say "Where do the revenues go", and "Do they  15 go to the Governor in his capacity as the" --  16 THE COURT:  I think I'm just troubled by your statement that  17 this Calder II effected that transfer.  I would have  18 thought that transfer was -- was effected by the terms  19 of union in the context in which they're writing and  20 prior to that time the lands would be in the Crown in  21 the Right of the Colony, but if there's no such thing  22 it would be in the Imperial Crown.  23 MR. GOLDIE:  I think we'll see later on that the position in  24 British Columbia was that the terms of union didn't  25 effect any transfer at all.  26 THE COURT:  Well, I'll be interested enough, because I've always  27 assumed that by the terms of the union the land of the  28 province -- the lands within the province became  29 provincial property.  30 MR. GOLDIE:  Well, the Colony ceased to be a Colony and became a  31 province.  32 THE COURT:  Yes.  33 MR. GOLDIE:  But the lands didn't -- its ownership, if I can put  34 it that way, of the lands, didn't derive from any  35 conveyance or any transfer effected by the Imperial  36 Order in Council or from the Dominion.  37 THE COURT:  You see in paragraph 1 of Calder II, it says:  38  39 "All lands in British Columbia and all mines and  40 minerals therein belong to the Crown in fee."  41  42 MR. GOLDIE:  Yes.  43 THE COURT:  Well, it seems to me, that clearly would be the  44 Imperial Crown.  45 MR. GOLDIE:  Except that it has been treated, my lord, as the --  46 a transfer of the administration.  47 THE COURT:  Well, the administration is — 27762  Submissions by Mr. Goldie        1  MR. GOLDIE:  And revenues.  2 THE COURT:  Is with the Colony, yes?  3 MR. GOLDIE:  Yes.  4 THE COURT:  All right.  5 MR. GOLDIE:  And that — I think, with respect, that the — it's  6 stated by the Privy Council when their lordship said  7 "the title", that is to say the legal title, the  8 beneficial title, the complete title to the public  9 lands of British Columbia has all along been and still  10 is vested in the Crown.  Now, "all along been and  11 still is", in my understanding, refers to British  12 Columbia before confederation, and after confederation  13 vested in the Crown, but the right and the -- this  14 next clause is introduced by the word "but":  15  16 "but the right to administer and to dispose...  17 had been transferred to the Province, before  18 its admission to the federal union."  19  20 THE COURT:  Of course, that in itself is a contradictory  21 statement, isn't it?  There was no province.  22 MR. GOLDIE:  That's correct.  23 THE COURT:  Before admission to the union.  24 MR. GOLDIE:  It should have been "transferred to the Colony",  25 before its admission to the federal union.  2 6 THE COURT:  All right.  I could live with that.  27 MR. GOLDIE:  All right.  I'm not adverse to correcting the  28 Judicial Committee on occasion.  29 THE COURT:  Oh, no, when they're clearly wrong.  30 MR. GOLDIE:  Yes.  Turning to paragraph 12, I say Douglas'  31 earlier Proclamation of September 15, 1858 forbidding  32 land sales on the Fraser River was made without  33 authority.  And that's at the -- under tab 12, my  34 lord.  35 THE COURT:  Are you treating this as a Calder item?  36 MR. GOLDIE:  This is the the background, what I call the  37 lesgislative history --  38 THE COURT:  Mm-hmm, all right.  39 MR. GOLDIE:  — to Calder II.  The Earlier Proclamation — it  40 starts at the bottom of page 2 -- of the first page,  41 under the tab in the yellow binder, and states:  42  43 "Whereas it has been made to appear to me that  44 certain persons in Victoria and elsewhere, have  45 attempted to delude the public, by making  46 pretended sales of certain lands from Fraser's  47 River:  Now, I do hereby warn all persons whom 27763  Submissions by Mr. Goldie        1 it may concern,  that no lands at or near  2 Langley, or elsewhere on Fraser's River have  3 been in any manner encumbered or sold, and that  4 the title to all such lands is vested in the  5 Crown, and that any person found occupying the  6 same without due authority from me, will be  7 summarily ejected; and all persons fraudulently  8 selling the same will be prosecuted and  9 punished as the law directs.  10  11 Now, that was, as I say in my note, made without  12 authority.  It was made before he received the  13 despatches of September 2nd and before he proclaimed  14 the Act of 1858 to be in force in the Colony.  15 However, both it and the companion Proclamation of  16 September 6th, forbidding the sale of spirits to  17 Indians, were approved by the Colonial Secretary --  18 and that is found in page 3 of the collection under  19 tab 12 -- and would have been validated by the  20 Indemnity Proclamation.  21 Now, at this point, my lord, I touch on the  22 question of the reach of these proclamations.  And  23 my -- this is in paragraph 13.  The territorial  24 application of these and other Ordinances of the  25 Mainland Colony was, of course, limited on the north  26 by the boundary established in the Act of 1858 "to the  27 north by Simpson's River and the Finlay branch of the  28 Peace River".  North of this, in turn, lay Her  29 Majesty's Dominions "not within the jurisdiction of  30 the legislative authority of any of Her Majesty's  31 possessions abroad", to use the language of an Act in  32 1860.  But that's simply a description that beyond the  33 northern border of the Colony, as constituted in 1858,  34 there was British territory that was not within the  35 legislative authority of any of the overseas  36 possessions, and so was therefore under the authority  37 of London alone.  38 Paragraph 13.  On July 19th, 1862 the Stickeen  39 Territories Order in Council was passed creating this  40 Territory, or at least that part of it which extended  41 on the south from the boundary of the Colony of  42 British Columbia to the 62nd parallel on the north.  43 It was placed under the jurisdiction of the Governor  44 of the Mainland Colony for certain purposes.  That  45 Order in Council, my lord, is under tab 14, and it  46 starts off by reciting an Act:  47 27764  Submissions by Mr. Goldie        1 "An Act to enable  Her Majesty to provide for the  2 government of Her settlements on the Coast of  3 Africa and in the Falkland Islands."  4  5 Now, that sounds rather far away from British  6 Columbia.  The purpose of that Act and a subsequent  7 Act was to give to the Queen and Council power by an  8 Act of Parliament to proceed by an Order in Council to  9 regulate government territories which had no local  10 government.  And after reciting that Act and the  11 second one, which begins on the third line of the next  12 page:  13  14 "And whereas by an Act passed in the 24th year  15 of the reign of Her Majesty, intituled 'An Act  16 passed in the 6th year of Her Majesty Queen  17 Victoria, intituled 'An Act to enable Her  18 Majesty to provide for the government of Her  19 settlements on the Coast of Africa and in the  20 Falkland Islands,' it was enacted that the  21 provisions of the said first recited Act should  22 extend to all possessions of Her Majesty not  23 having been acquired by cession or conquest."  24  25 There we have once again, my lord, the distinction  26 that is very carefully made between Colonies acquired  27 by cession or conquest and Colonies that are settled.  28 And the other discriptive clause follows, and I quote:  29  30 "Nor (except in virtue of the latter Act) being  31 within the jurisdiction of the Legislative  32 authority of any of Her Majesty's possessions  33 abroad."  34  35 And then if I skip down to the last "whereas" in that  36 paragraph:  37  38 "And whereas it is necessary to provide for the  39 government of certain territories adjacent to  40 our Colony of British Columbia, but not being  41 within the jurisdiction of the Legislative  42 authority of any of Her Majesty's possessions  43 abroad, hereinafter called the Stickeen  44 territories."  45  46 Then Her Majesty in Council describes the Stickeen  47 territories, and the last sentence: 27765  Submissions by Mr. Goldie        1 "And it is  further ordered that the Governor for  2 the time being of British Columbia shall be  3 Administrator of the Government of the said  4 territories."  5  6 And the power given him, apart from those directly  7 relating to administration of justice, is indicated in  8 the third paragraph on the next page, which states:  9  10 "And it is further ordered that the said  11 Administrator shall have power and authority  12 from time to time to make, alter and repeal  13 regulations respecting the use and occupation  14 of lands belonging to Her Majesty within the  15 said territories, and by such regulations to  16 authorize persons to seek or take away gold,  17 silver or other minerals in or from any part of  18 the said territories."  19  20 Et cetera.  Now, this -- all of this relates to the  21 fact that there is a flurry of gold interest in the  22 Omineca.  And then the second to last paragraph on  23 that page:  24  25 "It is further ordered that the law in force in  26 the said territories shall be the law of  27 England as it existed on the 1st day of  28 January, 1862, so far as the same is applicable  29 to the circumstances of those territories."  30  31 And then there's an extensive provision for the  32 administration of justice.  33 So I say that the status of the Stickeen  34 territory -- and I'm back on paragraph 14 -- the  35 status of the Stickeen territory as a settled Colony  36 conformed to that of the Mainland Colony, both being  37 declared by Acts of Parliament to fall within that  38 category.  39 15.  Accordingly, the laws of England as of January 1,  40 1862 became applicable to that part of the land claims  41 area north of Simpson's River.  Simpson's River as  42 such does not exist but appears to be a westerly  43 extension from the mouth of the Nass to the junction  44 of the Skeena and the Babine.  This approximation  45 appears from the Arrowsmith map of June 1, 1859 which  46 is the last part of tab 2 of Exhibit 1142.  47 Now, my lord, that map is almost impossible to 27766  Submissions by Mr. Goldie        1 reproduce here, but it  is one that we have looked at.  2 And it's not reproduced in the yellow binder, but it  3 is one that we have looked at before, and the  4 description I've given is very close to that.  It's  5 not the Arrowsmith map, which is in the Select  6 Committee on the affairs of the Hudson's Bay Company  7 of 1857, it is one that was part of the papers laid  8 before Parliament of the Act of 1858.  It is  9 accordingly dated in 1859, and I say the Simpson's  10 River, which appears to be on that, conforms to the  11 description I've given.  12 Paragraph 16.  The whole of the claim area fell  13 within the boundaries of the Mainland Colony on July  14 28th, 1863, that's the — that should be July 28th,  15 not July 8th, because that is the date of the  16 subsequent Order in Council -- I'm sorry -- the date  17 of an Act of Parliament, which is under tab 16, and it  18 recites the desirability of amending the 1858 Act.  It  19 repeals the first section of that Act, which was the  20 geographical description of the Colony of British  21 Columbia.  The remaining sections are continued, and  22 then the boundaries are set forth as they are today,  23 the northerly boundary being the 60th parallel of  24 north latitude.  The Stickeen territory went north to  25 the 62nd parallel, but when they came to incorporate  26 part of the Stickeen territory in the -- in British  27 Columbia, the Act limited the northern boundary to the  28 60th parallel.  And effective date of that Act is the  29 28th of July, 1863.  Now, my lord, I make reference to  30 Mr. Willard Ireland's article, which provides a  31 narrative description of the evolution of the  32 boundaries of British Columbia.  The confusion over  33 the boundary between Russian America and British North  34 America which concerned Mr. Justice Hall in the Calder  35 case has no application to the claim area in the case  36 at bar.  That reference, my lord, is concern over the  37 fact that British sovereignty was in question with  38 respect to part of the Nishga claim.  There was no  39 issue in that -- there is no issue in that regard in  40 the case at bar.  41 Paragraph 17.  Consequently, by not later than  42 July -- that should be 28th -- 1863, the whole of the  43 area in which the Plaintiffs' claims arose became  44 subject to existing Colonial legislation as well as to  45 the laws of England unless the latter were otherwise  46 inapplicable owing to local circumstances.  47 Douglas' Proclamation of January 4th, 1860 27767  Submissions by Mr. Goldie        1 respecting the quick  acquisition of unsurveyed Crown  2 lands is Calder III.  3 I'm now going to go on to Calder III, which is an  4 important Proclamation, my lord, not only because of  5 its terms, but because while it was under  6 consideration in London, the proposal of Captain  7 Clarke, which expressly raised the question of  8 aboriginal title, was brought to the attention of the  9 Colonial Office and, in my submission, the approval of  10 the Proclamation after this consideration provides  11 clear and plain denial of the kind of aboriginal title  12 claimed by the plaintiffs.  13 I now look first to the Proclamation itself, and  14 by way of background, my lord, this is the  15 Proclamation over which Douglas and the Colonial  16 Office differed in terms of whether land should be  17 open for pre-emption before survey.  Your lordship may  18 recall that I touched on a number of the dispatches in  19 which Douglas said it is going to become necessary, if  20 settlement of the country is going to proceed, to  21 devise some means of securing to the settlers their  22 lands before survey, which was moving along so slowly.  23 And turning to the Proclamation under tab 18, the  24 usual recitals.  The second recital:  25  26 "Whereas it is expedient, pending the operation  27 of the survey of agricultural lands in British  28 Columbia, to provide means whereby unsurveyed  29 agricultural lands may be lawfully acquired by  30 pre-emption in British Columbia by British  31 subjects, and in certain cases to provide for  32 the sale of unsurveyed agricultural land in  33 British Columbia by private contract."  34  35 Then the substantive or operative parts of the  36 enactment:  37  38 1.  That from and after the date hereof,  39 British subjects and aliens who shall take the  40 oath of allegiance to Her Majesty and to Her  41 successors may acquire unoccupied, and  42 unreserved, and unsurveyed Crown land in  43 British Columbia (not being the site of an  44 existent or proposed town, or auriferous land  45 available for mining purposes, or an Indian  46 reserve or settlement), in fee simple, under  47 the following conditions." 2776?  the words  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  Submissions by Mr. Goldie        1 Your lordship will note  "Indian reserve or  settlement".  That protected Indian settlements prior  to a reserve being created.  It withdrew "Indian  settlement" from the operation of the pre-emption  statute, but all other lands in the Colony are thrown  open for settlement, provided that they're unoccupied  and unreserved and not being the site of an existent  or proposed town, or gold lands, or an Indian reserve  or settlement.  So this -- this opened the entire  Colony up to settlement, and I have already drawn your  lordship's attention to the Southern Rhodesia case in  which their lordship said settlement in itself is  fatal to the claims of natives to ownership of the  entire country side.  The provisions of the Proclamation are of  interest, but not terribly significant to the case at  bar, except to emphasize that the intention was to  give a title good as against the word, even when in  occupation and prior to the grant from the Crown.  And  that I say is what makes it so inconsistent with the  notion of an existing settlement -- existing  aboriginal interest beyond a settlement or an Indian  reserve.  Disputes over lands after the fee simple had --  could be summarily dealt with, that's paragraph 17, by  the magistrate, who could award damages.  This clearly  expressed the intention of conferring upon a preemptor  who obtained title guarantee of quiet ppossession  against all the world.  The right to quiet possession  before the grant of the fee is provided for in Section  13, which states:  "Whenever a person in occupation at the time of  record aforesaid, shall have recorded  aforesaid, and he, his heirs, or assigns, shall  have continued in permanent occupation of land  pre-empted or land purchased as aforesaid, he  or they may save as hereinafter mentioned,  bring element or trespass against any  intruder."  The rights of free miners are preserved under section  14. Then I say it represents the culmination of his  efforts to reconcile the need for settlement with the  slow progress made by the surveying parties of the  Royal Engineers.  And the reference, my lord, is to  certain dispatches which have already -- have already 27769  Submissions by Mr. Goldie        1 been read to your  lordship yesterday in which he is  2 emphasizing the need for the -- for settlement in the  3 Colony and the problem of the slow progress of the  4 surveying parties and the engineers.  5 And paragraph 19.  Prior to the arrival in London  6 of Douglas' dispatch of October 18th, 1859 the  7 Colonial Office received a report from one Captain  8 Clarke.  The date of arrival of the dispatch is  9 derived -- is December the 19th, 1859, my lord.  The  10 dispatch is dated October 18th, and it was received  11 December 19th, but I say prior to the arrival in  12 December, the Colonial Office received a report from  13 one Captain Clarke.  Under cover of a letter of this  14 date he forwarded proposals with respect to the  15 alienation of land in British Columbia.  And that  16 report is -- well, it's set out later in extenso, but  17 the background of Captain Clarke is indicated in  18 paragraph 19.  Captain Clarke was an officer with  19 experience in land matters in Australia and propounded  20 his suggestions for British Columbia in minute detail.  21 These were examined in the Colonial Office and sent to  22 Douglas for comment, and by this time Calder II was  23 under consideration in London.  In this report,  24 Captain Clarke states his assumption that no Indian  25 title exists or if it does it had been extinguished in  26 British Columbia.  This is at page 443 of tab 11.  Tab  27 11 refers to the dispatches, Exhibit 1142.  28 THE COURT:  The yellow book?  29 MR. GOLDIE:  No, the —  30 THE COURT:  The blue book?  31 MR. GOLDIE:  The blue books, yes.  Now, his covering -- not his  32 covering letter, but the comment that he makes, he set  33 up his system or his proposal in, so to speak, two  34 columns.  One was the proposed -- proposal of the  35 Order in Council or the regulation itself, and the  36 other was -- left-hand column, was comments.  And he  37 says -- and this is page 6 under tab 19, is the  38 typescript of the first page of his letter to the  39 Secretary of State for the Colonies, and it's headed  40 "Proposed Land Scheme".  And the right-hand side is  41 the legislation or the suggested legislation:  42  43 "Chapter, Section, Alienation of Crown lands to  44 be by sale at Public Auction as hereafter  45 described."  46  47 And then his comment on the left: 27770  syst  ;em to  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  Submissions by Mr. Goldie        1 "The auction  be established as the  rule.  Selection and temporary occupation of  Crown lands - the exception."  I must at the outset remark that the proposed  scheme is suggested under the impression that  no claims or rights have arisen to the soil of  British Columbia excepting isolated claims of  the Hudson's Bay Company not yet decided, other  than those of the Crown and that no Indian  title exists or if any that it has been  extinguished, and Separate provision made for  them."  Now, that -- over at page 7, which is the next  document, is the -- a photocopy of the handwritten  report, and the typescript is of the portion that is  identified by the side bar.  Now, the chronology of  these, I call them crossing dispatches, was explained  by counsel in the section that I've noted, and that's  under the next tab, and I'm not going to read that, my  lord.  In paragraph 20 I say Douglas had transmitted  Calder III to London under cover of his dispatch dated  January 12th, 1860.  Pausing there, he had  foreshadowed it in his earlier dispatch, and when it  was received in London it was referred to the Land and  Emigration Commissioners.  Now, looking at tab 20, we  see the dispatch of the 12th of January in which he  encloses his Proclamation of January the 4th, Calder  III, and then on page 4 is the -- is the minute in the  Colonial Office.  This is a typescript, of course,  where a Mr. Elliot, for Merivale's attention, notes:  "The Governor has carried into effect, formally,  his intention of allowing occupation of Crown  Land, with right of pre-emption.  I suppose the first step will be to refer this  to the Land and Emigration Commissioners."  And that date is the 6th of March.  And then the  extract of the Land and Emigration Commissioners'  report is shown on page 5.  This is Exhibit 1187, my  lord, tab 15.  Now, prior to the receipt of the  Proclamation, the Land and Emigration Commissioners  had expressed their regret that Douglas should have  adopted a system of land disposition prior to survey.  And that becomes apparent in the sideline portion on 27771  Submissions by Mr. Goldie        1 page 5, where they say,  and I quote:  2  3 "In this measure, Governor Douglas has carried  4 out the intention which he expressed in his  5 despatch of July 4th last to establish a  6 temporary system of occupation with preemptive  7 rights."  8  9 And then at the bottom of that page, last paragraph:  10  11 "Without denying that under the peculiar  12 circumstances of British Columbia it may be  13 more important not to discourage persons  14 disposed to settle on the Land than to maintain  15 strictly the rule which forbids the sale or  16 grant of unsurveyed Crown land.  We think that  17 the relaxation of that rule should have been  18 restricted to the absolute necessity of the  19 case, and should not have been made general  20 with a view to invite Settlers.  Probably the  21 effect will not be sufficiently extensive to  22 create any very serious difficulty - but we  23 would suggest that Governor Douglas should be  24 recommended to withdraw the General  25 Instructions which he has issued."  26  27 So that was the -- that was the reaction of the Land  28 and Emigration Commissioners.  29 Their subsequent report of March 31st on the  30 Proclamation itself proceeded on the assumption that  31 the Colonial Secretary, and by that I mean the  32 Secretary of State for the Colonies, had sanctioned  33 Douglas' earlier proposal for disposition of Crown  34 lands prior to survey.  And their comments were  35 accordingly directed to matters of form, and that  36 appears from the last document under this tab  37 beginning at page 7.  Paragraph 2 of -- well, the  38 first paragraph:  39  40 "We have to acknowledge" --  41  42 This is addressed to the Colonial Office from the  43 Lands and Emigration Commissioners:  44  45 "We have to acknowledge your letter of 14th  46 instant, enclosing a Despatch from the Governor  47 of British Columbia with a Proclamation issued 27772  Submissions by Mr. Goldie        1 by him, to  prescribe the conditions on which  2 unsurveyed Agricultural lands may be occupied  3 in that Colony on a system of preemption.  4 In a Despatch dated 4th July last, and  5 again in a Despatch of 18th October, Governor  6 Douglas explained the difficulty which he  7 experienced and in providing surveyed Country  8 Lands for Agricultural Settlers, and proposed  9 as a means of escape the establishment of a  10 system of occupation of unsurveyed Land with a  11 future right of preemption.  The Duke of  12 Newcastle having sanctioned that proposal the  13 Proclamation now transmitted has been issued to  14 carry it into effect.  15 The Proclamation announces that in future  16 any British subject or alien--"  17  18 Et cetera.  And then they go on to discuss at very  19 considerable length the provisions of the  20 Proclamation, and wind up in paragraph 8 on the  21 second-to-last page:  22  23 "Except in these respects we conceive that the  24 Proclamation may be approved."  25  26 Now, the proclamation itself was laid before both  27 Houses of Parliament in April and May of 1860, and  28 that's evident from the documents under tab 5c-21,  29 which records the -- their progress in that regard.  30 And I won't make further reference to that.  That  31 takes me through to Newcastle's dispatch of the 7th of  32 May, 1860, which is page 7, in which he says:  33  34 "I have to acknowledge the receipt of your  35 despatch No. 5 of the 12th of January enclosing  36 a Proclamation issued by you prescribing the  37 conditions on which unsurveyed Agricultural  38 lands may be occupied in British Columbia."  39  40 THE COURT:  I've lost that, Mr. Goldie.  Is that 21 or 22?  41 MR. GOLDIE:  It's under 21.  42 THE COURT:  Under 21?  43 MR. GOLDIE:  And it's the last -- no, second-to-last document,  44 it's page 7.  4 5 THE COURT:  Yes.  46 MR. GOLDIE:  And he is acknowledging receipt of the  47 Proclamation, and he says in the second paragraph: 27773  Submissions by Mr. Goldie 1                  "The difficulties  you experienced in providing  2 surveyed country lands for Agricultural  3 Settlers were explained in your despatches of  4 the 4th of July and 18th of October last and  5 the present Proclamation carries into effect  6 the measures to which you had found yourself  7 compelled to resort of granting occupation of  8 unsurveyed land with a future right of  9 preemption.  10 The Proclamation has been laid before  11 Parliament in compliance with the provisions of  12 the Act 21-22 Victoria."  13  14 That's the 1858 Act:  15  16 "-- but I shall delay to convey to you any final  17 decision upon it until I shall have received  18 your report upon the scheme of Captain Clarke  19 R.E. for the disposal of the Crown Lands of  20 British Columbia which I forwarded to you with  21 my despatch No. 3 of the 7th of January which  22 has crossed your despatch now under  23 acknowledgement."  24  25 So the Queen's approval is being withheld, although  26 the Proclamation has been laid before Parliament.  27 Now, back to 22 of my summary.  Douglas commented  28 on Captain Clarke's proposals in his dispatch of  29 August 24th, 1860.  And while he has good things to  30 say about Captain Clarke's suggestions, he says  31 they're inapplicable to the Colony and he accepts none  32 of them.  His dispatch of the 24th of August, 1860  33 starts out:  34  35 "I have now the honor of submitting a Report  36 upon the scheme of Captain Clarke R.E. for the  37 disposal of land in British Columbia."  38  39 He says it has:  40  41 "-- merits of a high order, and indicates the  42 large experience, and, on many points, liberal  43 views of the writer; I fear however its  44 introduction here, would not, without  45 modification, be attended with any immediate or  4 6 ultimate advantage.  47 The system appears to be adapted to the present 27774  Submissions by Mr. Goldie        1 advanced State  of the Colonies Australia which  2 are relatively wealthy and populous; and where  3 the genial climate, open surface, rich  4 pastures, the accumulation of capital, and the  5 profits derived from Stock Farming, make land a  6 desirable investment, and lead to its rapid  7 sale; but it is inapplicable to a Colony like  8 British Columbia, just called into existence,  9 and where the physical conditions of climate  10 and soil are altogether different, and country  11 land as yet, with some few exceptional  12 localities, absolutely unsaleable.  13 In principle,however, Captain Clarke's  14 scheme is widely different from the Laws now  15 regulating the disposal of land."  16  17 And then he goes on to deal with the proposal section  18 by section.  He makes no reference to Clarke's  19 assumption that Indian title is either still  20 outstanding or has been extinguished, and I don't  21 propose going through any of the sections.  He  22 comments in considerable detail, as I say, and the  23 last page of his report, which is page 13 of the  24 typescript under the tab in the yellow binder, he  25 concludes with paragraph numbered 7:  26  27 "I would therefore, not recommend any change in  28 our present laws until the "Pre-Emption Act" of  29 the 4th January 1860 has been fairly tested;  30 and should it not produce the desired effect of  31 attracting population, it may be modified by  32 reducing the price of Country Land to Five  33 Shillings per acre, or by adopting the system  34 pursued in Canada of making free grants of one  35 hundred acres to Settlers, coupled with certain  36 specified conditions of occupation and  37 settlement."  38  39 Now, the -- no minute on that dispatch indicates any  40 concern over the question of Indian title.  41 THE COURT:  Well, there is a note at the bottom that says "A  42 good report, I believe".  43 MR. GOLDIE:  Yes, that's correct, my lord.  That's — that's  44 directed to Sir Frederick Rogers of the Land Board by  45 Mr. Blackwood, and it's -- it's Rogers' annotation, "A  46 good report, I believe", that follows.  The minute in  47 the next page is that of Mr. Portesque, who was the 27775  Submissions by Mr. Goldie        1 Parliamentary  Undersecretary.  2 Now, Clarke's report was referred to Begbie, and  3 Begbie's report of April 1860, which is found under  4 tab 5c-23, was also forwarded by Douglas to the  5 Colonial Office on August 24th, 1860.  Begbie's  6 comments are very wide-ranging, and they culminate, so  7 far as it's relevant, in the proposition that he was  8 of a firm belief in no sales before survey, but having  9 regard to the conditions of the country and to the  10 kind of people that are being dealt with, he has been  11 converted to the wisdom of allowing pre-emption before  12 survey.  I just touch on a number of the points that  13 he touches on.  The make up of the population he notes  14 at page 5.  15 THE COURT:  Are these pages —  16 MR. GOLDIE:  The page numbers are those of the typescript at the  17 top.  18 THE COURT:  Well, all right.  19 MR. GOLDIE:  They're not the page numbers of the original  20 document.  And after describing the population as  21 being alert and -- well, I should go over the -- I  22 start on page 4, my lord.  He starts talking about the  23 population midway down the page immediately above the  24 numbers 11.  He says:  25  26 "The nature and extent of the population is of  27 course a most important consideration.  But it  28 appears to me that their sentiments and wishes  29 are extremely necessary to be ascertained.  A  30 population so acute and sensitive as that of  31 British Columbia cannot be governed in a mode  32 distasteful to its wishes. I do not think they  33 would violently oppose any law which they  34 disliked:  they would attempt to evade it; if  35 unsuccessful they would leave the country.  I  36 have found the white population particularly  37 orderly and obedient, as I have repeatedly had  38 occasion to represent to your Excellency.  39 Since I first sat in a court in the Colony  40 there has not been more than one serious crime  41 committed, or I believe, attempted, by a white  42 man in the Colony (I except the outrages in the  43 United States boundary commission camp) and I  44 never in the United Kingdom saw any courts  45 (except perhaps the House of Lords on Scotch  46 appeal cases) in which such perfect order and  47 stillness prevails as in those over which I 27776  Submissions by Mr. Goldie        1 have had the  honor to preside.  There are 6  2 Justices 14 or 15 constables in the entire  3 Colony.  The merit of this tranquillity is  4 therefore entirely due to the good sense of the  5 people and I take it as indicating the  6 extremely valuable sort of population, scanty  7 as it is, which has hitherto occupied the  8 country since the first rush in the summer and  9 autumn of 1858.  That inundation contains a  10 great many elements which all however subsided  11 and drained off as rapidly as they had  12 appeared.  13 Such a population, I think deserves on many  14 grounds to have a voice in the determination of  15 questions affecting so vitally the land which  16 they inhabit so peacefully and industriously.  17 But there immediately arise two very serious  18 considerations.  1.  The population are nearly  19 all aliens.  One sixth probably are British  20 subjects - either from the Mother country or  21 the Provinces.  The remaining five sixths are  22 either citizens of the United States (generally  23 adopted citizens of the United States not many  24 born in the United States - those born citizens  25 are generally very superior to the adopted)."  26  27 And so on.  And then he talks about the prejudices of  28 those people.  Midway down the page he says:  29  30 "There is a social difficulty not to be lost  31 sight of, arising from the presence of large  32 and increasing bodies of two different imported  33 races, besides the native population, the  34 Chinamen, important from their great numbers,  35 industry and tenacity of gain; the negro, or  36 mixed negro population, important from their  37 acquaintance with our language and laws, and  38 from their presence being in a great measure  39 the test and pledge of British, as contrasted  40 with the United States domination.  41 All three of these races are despised and  42 to some extent, disliked by the prevalent white  43 races, who are most strongly imbued with the  44 United States notions on the score of colour  45 and race."  46  47 And so on.  And at the top of page 7 he says, in the 27777  Submissions by Mr. Goldie        1 second paragraph:  2  3 "The native Indian tribes are numerous very  4 brave very patient and very intelligent:  5 willing to work hard at some description of  6 labour."  7  8 The observations of -- and the observations of their  9 equality before the law, he says in the paragraph  10 beginning with the words:  11  12 "In the Australian Colonies, the 'free negro'  13 question is not so prominent, I conceive.  And  14 in those countries moreover, the inferior races  15 are treated like inferior races.  In the  16 neighbouring States at least, it would be a new  17 sight, I imagine, for an Indian to bring  18 complaint in open Court before a Justice of the  19 Peace against a white man who had committed a  20 common assault (knocking him down and cutting  21 his eyebrow with a blow) and for the white man  22 to be summarily convicted and fined on wholly  23 Indian testimony:  as in a case before myself  24 and Mr. O'Reilly at Fort Hope the other day."  25  26 And then his observation on Captain Clarke's  27 assumption with respect to Indian title, and this has  28 been -- considerable stress has been placed on this by  29 my friends, because they say it is recognition of an  30 Indian title which is enforceable at law, and I refer  31 to page 15, and here he is commenting on almost a  32 section-by-section basis.  Section 1, this is about a  33 quarter -- third of the way down the page.  He says:  34  35 "From this view I differ, in the case of  36 ordinary agricultural lands, as already  37 mentioned.  I may also observe that the Indian  38 title is by no means extinguished.  Separate  39 provision must be made for it, and soon:  40 though how this is to be done will require some  41 consideration.  From the friendly intercourse  42 with the natives however, no serious difficulty  43 is to be apprehended."  44  45 Now, there in the -- in the form that is unmistakable  46 is brought before the attention of the Governor and  47 the authorities in London, the Judge's view that 27778  Submissions by Mr. Goldie        1 Indian title has not  been extinguished.  Now, he says:  2  3 "Separate provision must be made for it, and  4 soon."  5  6 And I -- it is of course my assumption -- my  7 submission that the separate provision was of course  8 the provision for reserves.  9 And then at page 18 he says, and this is at the  10 bottom of the page, my lord, the last three  11 paragraphs:  12  13 "When I first came to the Colony I was strongly  14 of the same opinion as Mr. Murdoch" --  15  16 That's Mr. Murdoch of the Emigration Board and a  17 gentleman who was not in favour of sale before survey:  18  19 "-- same opinion as Mr. Murdoch is reported to  20 be that viz: "that no occupation of the soil  21 till after survey and Sale be allowed.  22 I have completely changed my opinion: and I  23 don't believe any man could have gone around  24 the country, even to the limited extent to  25 which my duties have led me, without coming to  26 the same conclusion (viz) that to carry out the  27 prohibition is fortunately impossible, and  28 would be impolitic if it were possible.  See  29 also my remarks on Section 6."  30  31 Et cetera.  Now, therefore he comes to the conclusion  32 that the principle of the Land Ordinance is  33 appropriate, although he did not see eye to eye with  34 Douglas in its drafting.  This is an interesting  35 observation, my lord.  It demonstrates, if  36 demonstration is necessary, that Douglas was his own  37 man.  This is evident from page 12, where Judge Begbie  38 says in the first complete paragraph on that page:  39  40 I beg to refer to the pre-emption Act  41 (proclamation 4th January 1860) for the details  42 under which these principles are carried into  43 practice, in which proclamation your Excellency  44 is aware I do not wholly agree."  45  46 He continues:  47 27779  Submissions by Mr. Goldie        1 "I agree in the  above principles as being the  2 cheapest and most attractive in practise: (that  3 is) looking at the question merely in a  4 practical point of view as best suited to the  5 physical nature of the country and the moral  6 nature of the population and the means we have  7 at hand.  8 On the occasion of the drafting of the  9 proclamation of the 4th January I wished to  10 codify the land system in many respects - to  11 define what should be considered town and  12 suburban sites, what are the defendant  13 situation of the Government and Indian  14 reserves.  Until this be done, (and all but the  15 Indian may be very shortly defined) nobody can  16 be quite certain what unsurveyed lands are open  17 for his selection, either by pre-emption or  18 purchase."  19  20 Now, he's not quarreling with the principle, but he  21 says it needs refinement.  22 Now, notwithstanding his comment about Indian  23 title, he says at the top of -- on page 20 in the  24 third paragraph after talking about the nature of some  25 of the lands in the province, he says:  26  27 "The absolute right of the crown in all these  28 lands is perfectly recognized and I am happy to  29 say that great confidence in the honor of the  30 Government is shewn by all parties."  31  32 The recommendation -- I'm at paragraph 24.  The  33 recommendation of the Emigration Office dated November  34 20th, 1860 was that nothing in Mr. Begbie's paper  35 overruled Douglas' recommendation.  And Royal sanction  36 of the Proclamation was conveyed to Douglas in  37 Newcastle's dispatch of December 6th, 1860.  That's  38 under 5c-24.  The Emigration Office report on Mr.  39 Begbie's paper and Governor Douglas' report is found  40 at page 4, that's the pagination of the lower  41 right-hand corner, my lord.  And the part I direct  42 your lordship's attention is the last sentence in the  43 third paragraph on the page.  He says, and I quote:  44  45 "I do not see, therefore, that there is anything  46 in Mr. Begbie's paper to overrule the  47 recommendation of Governor Douglas." 27780  Submissions by Mr. Goldie        1 So -- oh, and the Royal  ascent.  2 THE COURT:  This is addressed to whom?  3 MR. GOLDIE:  Beg your pardon, my lord?  4 THE COURT:  This is sent to whom?  5 MR. GOLDIE:  This document is from the Emigration Office to the  6 Colonial Office, and it is commenting on both Begbie  7 and the -- both Begbie and the Douglas report.  I  8 should have noted, my lord, that the writer is Mr.  9 Murdoch, who was unhappy at the prospect of land being  10 sold before survey, and I should refer your lordship  11 to the minutes in the Colonial Office.  Mr. Murdoch's  12 conclusion in paragraph 8, second to last page, he  13 says:  14  15 "From the Secretary of States Despatch of 16th  16 July last enclosed in your letter it would  17 appear, that his decision on the Preemption Act  18 of January last had been suspended until the  19 receipt of Governor Douglas' report and Captain  20 Clarke's suggestions.  Looking to the clear and  21 decided opinions on this point expressed by  22 Governor Douglas and Mr. Begbie - the  23 peculiarity of the circumstances of British  24 Columbia -- and to the sanction which has  25 already been given to principle of preemptive  26 occupation before survey, I presume that the  27 Duke of Newcastle will consider it right now to  28 sanction the preemption Law.  Whatever future  29 inconvenience may arise from the occupation of  30 unsurveyed Land with preemptive rights, it will  31 apparently be less injurious than the risk of  32 driving away from the Colony the only persons  33 who are likely to bring any part of its soil  34 into cultivation for perhaps several years."  35  36 And then the matter was referred to Mr. Elliot in the  37 Colonial office, and his minute is:  38  39 "I have read this report and I presume that the  40 opinions which it contains will be adopted.  If  41 so write accordingly to the Governor?  The  42 despatch should, I apprehend, reiterate the  43 chief practical suggestions which I have marked  44 at pages 7, 9, 14 and 15."  45  46 Portesque's minute:  47 27781  Submissions by Mr. Goldie        1 "These  conclusions seem to me quite right."  2 Judge Begbie should be thanked for his  3 interesting report."  4  5 And then the next document is Newcastle to Douglas of  6 the 6th of December, 1860, in which he reviews the  7 whole matter and acknowledges receipt of the reports  8 of the Governor and Mr. Justice Begbie.  And at the  9 bottom of the page he says:  10  11 "It remains therefore for me to convey to Her  12 Majesty's sanction, which had been withheld  13 pending the receipt of your report, of the  14 "Pre-emption Act of 1806" by which the  15 foregoing regulations are enacted.  16 In conclusion I have to request that you will  17 convey to Mr. Begbie my thanks for the  18 interesting report which he has supplied."  19  20 Now, that, my lord, is totally inconsistent with  21 dealing with aboriginal title as having the force of  22 law.  23 In my friends' submission, they say Begbie rang  24 the alarm bell, and the reaction of the Colonial  25 Office was it's an interesting report and there's  26 nothing in it to contradict the recommendation of the  27 Governor that the Proclamation be enacted.  28 And I say in paragraph -- page 14 of my summary,  29 thus, despite Begbie's express suggestion that Indian  30 title had by no means been extinguished or everywhere  31 provided, the proclamation which was, in every way,  32 inconsistent with any general aboriginal title, was  33 given Royal approval.  34 I interject there, my lord, to say that in my  35 submission Begbie's statement and his earlier comment  36 that Douglas had not adopted his drafting suggestions  37 which would have led to greater definition of the --  38 amongst others, Indian interest, that Begbie is in no  39 way suggesting that there be aboriginal title spreads  40 widespread throughout -- spread throughout the Colony,  41 and in my submission his comments are wholly  42 consistent with the proposition that the interest  43 which ought to be acknowledged is one confined to  44 their settlements.  And when he says that they have  45 been by no means extinguished, he means, as he states  46 earlier, that the definition of Indian settlement has  47 not been sufficiently made precise. 27782  Submissions by Mr. Goldie        1 It is noted here,  and emphasized, that Begbie's  2 observation was made prior to Douglas' statement of  3 policy to the Indians of the interior in the fall of  4 1860.  5 In my submission, that policy answered Begbie's  6 concern.  7 I say Calder III is the most important  8 Proclamation in respect of aboriginal title in the  9 Mainland Colony.  I should say, my lord, but most  10 important, in the sense of land dealing, the following  11 points summarize the conclusion that it alone was  12 sufficient to extinguish aboriginal title if any  13 existed outside the lands which the magistrates had or  14 were to set aside:  15  16 a.  The sole purpose of the Proclamation was to  17 provide a means whereby title to land could be  18 vested in a Crown grantee.  19 b.  The Proclamation was under consideration by the  20 Colonial Office from March 5th, 1860 until  21 December 6th, 1860, when the Queen's sanction was  22 recorded in a despatch of that date.  23 c.  The question of aboriginal title had been  24 expressly raised in October 1859 by Captain Clarke  25 in his elaborate scheme for the disposition of  26 Crown lands in British Columbia on the assumption  27 that Indian title "...had been  28 extinguished or separate provision made for  2 9 them...."  30 d.  The scheme was forwarded to Douglas for comment on  31 January 7, 1860 but, more importantly, he was  32 later told that approval of his land proclamation  33 would be withheld until his comments were  34 received.  This was conveyed to him in the  35 dispatch of May 1860.  36 e.  Douglas' comments were forwarded in August of 1860  37 and under separate cover of the same date he sent  38 those of Begbie, who expressly denied Clarke's  39 assumption that Indian title had been extinguished  40 and that "...separate provision must be made for  41 it, and soon...."  42 f.  These despatches were received October 8th, 1860.  43 the Emigration Board saw nothing in Begbie's  44 paper overruling the recommendations of Douglas  45 that the Proclamation be allowed to operate.  46 g.  I submit, the conclusion is inescapable, the issue  47 of Indian title was expressly raised, it was 27783  Submissions by Mr. Goldie        1 expressly said by  the judge of British Columbia  2 not to have been extinguished in every particular  3 and the Colonial Office decided to let stand  4 legislation that is completely inconsistent with  5 the continued existence of unextinguished Indian  6 title.  Mr. Justice Hall —  7  8 THE COURT:  I think we should hear from Mr. Justice Hall after  9 lunch, Mr. Goldie.  10 MR. GOLDIE:  All right, thank you, my lord.  11 THE REGISTRAR:  Order in court.  Court stands adjourned until  12 two o'clock.  13  14 (PROCEEDINGS ADJOURNED AT 12:30)  15  16 I hereby certify the foregoing to be  17 a true and accurate transcript of the  18 proceedings herein transcribed to the  19 best of my skill and ability  20  21  22  23  24 Graham D. Parker  25 Official Reporter  26 United Reporting Service Ltd.  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 27784  Submissions by Mr. Goldie        1  2 THE REGISTRAR:  Order in court.  3 THE COURT: Mr. Goldie.  4 MR. GOLDIE:  Thank you, my lord.  My lord, at the noon  5 adjournment I was at page 17 of 5C of the summary, and  6 I was going through the items listed there that I  7 relied upon for the conclusion that Calder III, the  8 Proclamation of the 4th of January, 1860, was  9 sufficient when the -- its legislative history is  10 taken into account, to extinguish aboriginal title if  11 any existed outside the lands which the magistrates  12 had or were to set aside.  13 Just before I complete those, I want to remind  14 your lordship apropos of the discussion we had this  15 morning about statements made by the government  16 officials.  I have repeated it several times that  17 Douglas stood in a separate category.  I did want to  18 remind your lordship that I undertook to flesh out the  19 reference to colonial law in the New Zealand Select  20 Committee report, and that will throw some light on  21 the statements of policy by responsible officials.  22 I was at item G on page 17, and I had submitted  23 that the conclusion is inescapable.  The issue of  24 Indian title had been expressly raised, it was  25 expressly said by the judge of British Columbia not to  26 have been extinguished, and the colonial office  27 decided to let stand legislation that is completely  28 inconsistent with the continued existence of  29 unextinguished Indian title.  30 I note that Mr. Justice Hall in Calder said, and I  31 quote:  32  33 "It would ... appear to be beyond question that  34 the onus of proving that the Sovereign intended  35 to extinguish the Indian title lies on the  36 respondent and that the intention must be clear  37 and plain.  There is no proof in the case at  38 bar; no legislation to that effect."  39  40 I say in comment with respect to that, that I do  41 not agree with the question of the statement with  42 respect to the onus.  The intention being clear and  43 plain as taken from the American authority, and I  44 respectfully agree with Mr. Justice Mahoney in the  45 Baker Lake case when he said "The intention to be  46 clear and plain need not be evidence by legislation".  47 I say that the Queen's sanction which was conveyed 27785  Submissions by Mr. Goldie        1 to Douglas after the  question of aboriginal title had  2 been raised in the colonial office on December 6th,  3 1860 is clear and plain, and I make further reference  4 to that on page 18.  5 Assuming the criteria for extinguishment adopted  6 by Mr. Justice Hall to be correct, it is submitted  7 that the history of Calder III is proof clear and  8 plain of what the sovereign intended by virtue of her  9 sanction of this legislation, thereby giving the  10 Proclamation the force of an Imperial Act of  11 Parliament.  And I refer there to the Cain case, which  12 I have noted before, my lord, in the particular  13 sentence it is -- the last one:  14  15 "The Imperial Government might delegate those  16 powers to the governor or the Government of one  17 of the Colonies, either by Royal Proclamation  18 which has the force of a statute of a local  19 Parliament ... to which the Crown has  20 assented."  21  22 The Imperial Government left it to Douglas to  23 implement his policy as providing separate provision.  24 Those are Judge Begbie's words with respect to the  25 native population.  I remind your lordship that when  26 Mr. Justice Begbie in his judicial capacity came in  27 1886 to consider a claim which has some resemblance to  28 the claim at the case at bar, he was in no doubt that  29 it had not been recognized and could not be recognized  30 in a court of law, and he relied in part upon the  31 authorities cited by Chancellor Boyd in  32 St.Catherine's Milling.  33 Now, my lord, in paragraph 28 I make --  34 THE COURT:  Can you refer me to that -- just for cross-reference  35 purposes, where that judgment of Chief Justice Begbie  36 might be found?  37 MR. GOLDIE:  I can, my lord.  I don't have it at my fingertips,  38 but it occurred in --  3 9 THE COURT:  1886.  40 MR. GOLDIE:  In 1886, and it was in reference to —  41 THE COURT:  We saw it yesterday.  42 MR. GOLDIE:  Yes, that's correct.  I'll get it for my lord.  43 It's in my yellow binder.  44 MS. MANDELL:  I don't believe that that is a judgment.  If I am  45 thinking of the same document, it's a bench book, just  46 notes and comment in the course of the case.  47 MR. GOLDIE:  The judgment was oral.  The judgment was that there 27786  Submissions by Mr. Goldie        1 was an injunction, and  that's apparent from the pages  2 of the bench book, but as I characterize it, my lord,  3 as having the quality of both a colloquy between bench  4 and bar, as well as a note of the judgment which he  5 simply says:  "I continued the injunction."  6 THE COURT:  Well, there is an issue between you on that.  7 MR. GOLDIE:  I'm content to have it resolved with the document.  8 And I'll get your lordship the reference in the yellow  9 binder.  10 My lord, I want to deal with -- apparently in a  11 fairly summary way with some of the remainder  12 Proclamations in the Calder series.  Not because I  13 think them any the less important, or that they do not  14 have the same character as stated by Mr. Justice Gould  15 in Calder, but because they speak for themselves, I'll  16 put it that way.  17 I note that in Calder IV to IX, which spans the  18 period from January 20th, 1860 to May 27th, 1863, I  19 say all of those further demonstrate unity of  20 intention to exercise sovereignty with respect to land  21 in a manner inconsistent with any conflicting right.  22 All except Calder IX, which constituted the Supreme  23 Court of B.C., about which were no underlying  24 documents were found, were laid before Parliament  25 without eliciting any complaint about a failure to  26 observe native title, and all except Calder IX are  27 known to have received the Royal approval.  The  28 relevant documents are found under the applicable  29 ordinance number in the Exhibit 1185.  30 Calder X of April 11th, 1865, which was after the  31 Stikene territory became part of the colony repealed  32 and re-enacted the principal provisions of Calder II,  33 VIII and IX.  It continued the protection from  34 pre-emption of Indian reserves and settlements.  35 Perhaps I should just refer to that, my lord.  Under  36 Tab 5C-29 in the yellow binder is Calder -- I'll call  37 it Calder X, and your lordship will see that it  38 repeals with a saving clause, the repeal taking place  39 in section 1, saving clause is section 2.  It repeals  40 the Proclamation of 14th February '59, which is Calder  41 number II, except a certain portion, the Mining  42 District Act of 1863, which is Calder IX, and the  43 Pre-emption Consolidation Act 1661, which is Calder  44 VIII.  And then it repeats —  45 THE COURT:  I'm sorry, the Mining District is Calder what?  46 MR. GOLDIE:  My note is Calder IX, my lord.  47 THE COURT:  All right.  And the — 27787  Submissions by Mr. Goldie 1  MR. GOLDIE:  Pre-emption  Consolidation Act --  2 THE COURT: Calder VIII?  3 MR. GOLDIE:  Yes.  4 THE COURT:  Thank you.  5 MR. GOLDIE:  And 3 repeats the section from the very early  6 Proclamation that the lands in British Columbia, et  7 cetera, not otherwise lawfully appropriated belong to  8 the Crown in fee.  9 Section 5:  10  11 "The governor shall at any time, and for such  12 purposes as he may deem advisable, reserve any  13 lands that may not have been either sold or  14 legally pre-empted."  15  16 And Section 12 is the section I refer to when I  17 say the protection against Indian Reserve, that is to  18 say one that had been so designated, or settlement,  19 which is a settlement not so designated as a reserve  20 is continued in Section 12, which reads, and I quote:  21  22 "From and after the date hereof British  23 subjects, and aliens who shall take the oath of  24 allegiance to Her Majesty, Her heirs and  25 successors, may acquire the right to pre-empt  26 and hold in fee simple unoccupied and  27 unsurveyed and unreserved Crown Lands not being  28 the site of an existent or proposed town, or  29 auriferous land available for gold or silver  30 mining purposes, or an Indian reserve or  31 settlement, under the following conditions."  32  33 And the procedures are expanded, but the policy  34 remains the same.  By this time, my lord, the colony  35 had an Attorney General who was appointed from  36 England, and the papers include the reports that he  37 made on the advisability or otherwise of legislation  38 passed by the legislative assembly.  39 And in paragraph 30 I said Calder XI of March  40 31st, 1866 followed a similar course.  And that was an  41 ordinance further to define the law regulating the  42 acquisition of land in British Columbia.  And section  43 1:  44  45 "The right conferred under clause 12 of the Land  46 Ordinance, 1865, on British Subjects, or aliens  47 who shall take the oath of allegiance, of 27788  Submissions by Mr. Goldie        1 pre-empting and  holding in fee simple  2 unoccupied and unsurveyed and unreserved Crown  3 Lands in British Columbia, shall not (without  4 the special permission thereto of the Governor  5 first had in writing) extend to or be deemed to  6 have been conferred on Companies whether  7 Chartered, Incorporated, or otherwise, or,  8 without the permission aforesaid, to or on any  9 of the Aborigines of this Colony or the  10 Territories neighbouring thereto."  11  12 Now, the right of pre-emption, so far as the  13 Indian peoples were concerned, was unqualified prior  14 to this.  The basis for this is indicated in the  15 Attorney General's report of the 21st of April 1866,  16 which is under the same tab, and he -- in his report  17 in the second paragraph he makes reference to  18 companies and to the undesirability of them having  19 unlimited rights of pre-emption, and he speaks of that  20 as being virtually mortmain.  21 And then at the bottom of the page, after  22 discussing the removal from the bill of a clause  23 dealing with the definition of occupation, he says,  24 and I quote:  25  26 "The question of Indian pre-empting is a still  27 more serious one.  28 Already large reserves have been made for  29 them in various parts of the Country,  30 inordinately so - many consider, certainly much  31 beyond their actual or probable requirements  32 for any agricultural purpose.  33 Were they allowed in addition to the  34 existing Indian Reserves, to pre-empt 160 acres  35 each and buy as much adjacent land as they  36 chose, they would become ready tools in the  37 hands of designing men who upon any rush for  38 the limited quantity of land in the Colony  39 available for settlement would either shut out  40 altogether, or levy black mail upon coming bona  41 fide settlers.  42 Indeed the process has already begun ..."  43  44 That is to say the process of pre-emption by  45 native peoples.  And as I say, that was unqualified  46 prior to this.  But the reason for it is one that lies  47 not in the incapacity of the native peoples as such as 27789  Submissions by Mr. Goldie        1 the -- as in the  potential for land speculation, which  2 was matter of concern from the very beginning of the  3 colony and was, of course, a matter of widespread  4 application in the United States.  5 THE COURT:  I don't see the prohibition.  Is it here somewhere?  6 MR. GOLDIE:  It's in section -- your lordship would turn back to  7 the Section 1 of the Proclamation.  8 THE COURT:  I'm looking at what tab?  9 MR. GOLDIE:  At 30, yes, 5C-30, section 1, which makes reference  10 to the right conferred under clause 12 of the land  11 ordinance of 1865.  And that was simply a right of  12 pre-emption, and it now qualified that right.  13  14 "Shall not (without the special permission  15 thereto of the governor first had in writing)  16 extend to or be deemed to have been conferred  17 on companies ... or on any of the aborigines of  18 this colony or the territories neighbouring  19 thereto."  20  21 THE COURT:  Yes.  22 MR. GOLDIE:  I think the first instance of pre-emption by a  23 member of the -- of one of the tribes in the Fraser  24 Valley, and I think it's the first instance of  25 pre-emption in British Columbia by an Indian people --  26 by an Indian person is -- was recorded in 1862, when a  27 member of the Squamish tribe desired to purchase a  28 suburb and lot.  29 THE COURT:  Where are you please?  30 MR. GOLDIE:  I'm making reference to Exhibit 1182, my lord, the  31 yellow book, and page 23 is a letter from the Chief  32 Commissioner to the Colonial Secretary recording the  33 application of a member of the Squamish tribe to  34 purchase a suburb and lots which had been put up for  35 auction, and it was open to purchase on the upset  36 price.  37 Perhaps I am wrong in stating that that is an  38 example of pre-emption.  It is an example of a  39 purchase, not pre-emption.  But Colonel Moody says:  40  41 "The above is an interesting turning point in  42 the history of the Indians of British Columbia,  43 and I submit that I be authorized to receive  44 the purchase money, procure him a title deed,  45 and in all respects deal in the matter  46 precisely as I would with a white man.  His  47 Excellency's authority is requested early." 27790  Submissions by Mr. Goldie        1  2 And that is given in the next letter of the 18th  3 of June.  4  5 "I am directed by the governor to inform me that  6 there can be no objection to your selling lands  7 to the natives on the same terms as they are  8 disposed to have to any purchasers in the  9 colony."  10  11 But the pre-emption right which tied up land  12 without a down payment was considered to be one that  13 was subject to the dangers of speculation.  14 Paragraph 31.  Calder XIII of March 10, 1869 was  15 an Ordinance of the United Colony although applicable  16 to the mainland only.  The United Colony did not have  17 provision like the pre-emption ordinance.  Calder XIII  18 is an amendment to that, but it is applicable to the  19 colony of British Columbia only, the former colony,  20 and it is just part of the series that Mr. Justice  21 Gould referred to as indicating an identity of  22 purpose.  23 I said that was Calder XIII.  That's Calder XII.  2 4  THE COURT:  Yes.  25 MR. GOLDIE:  Calder XIII is referred to in paragraph 32 of June  26 1st, 1870, was a major piece of land legislation which  27 repealed Calders II to XII and substituted a  28 comprehensive code for the acquisition of unreserved  29 Crown land in the United Colony, not being an Indian  30 settlement.  That's evident in the document under Tab  31 32, and your lordship will see in section 2 the Acts  32 that are amended with the savings clause, and there's  33 been penciled in the references Calder 2, 3, 4, 5, 6,  34 7, 8, 9, 10, 11, 12.  So this is very substantially,  35 my lord, a consolidation of land laws, although it is  36 just one of three which were passed at virtually the  37 same time.  And section 3 says:  38  39 "From and after the date of the Proclamation in  40 this Colony Her Majesty's assent to this  41 Ordinance, any male person being a British  42 subject ..."  43  44 That was included, native peoples, my lord, male  45 persons of the native race who answered that  46 description, as will be seen by the proviso.  47 27791  Submissions by Mr. Goldie        1  2 "... of the age of 18 years or over, may require  3 the right to pre-empt any tract of unoccupied,  4 unsurveyed, and unreserved Crown lands not  5 being an Indian settlement."  6  7 Now, that again protected Indian settlement  8 because -- well, it would be protected if it was  9 reserved, and if it was not reserved as protected as a  10 settlement.  11  12 "... not exceeding Three Hundred and Twenty  13 Acres in extent in that portion of the Colony  14 situated to the Northward and Eastward of the  15 Cascade or Coast Range of Mountains, and One  16 Hundred and Sixty Acres in extent in the rest  17 of the Colony.  Provided that such right of  18 pre-emption shall not be held to extend to any  19 of the Aborigines of this Continent, except to  20 such as shall have obtained the Governor's  21 special permission in writing to that effect."  22  23 Section 4 extends the prohibition to chartered or  24 incorporated companies.  25 This contained the special provision in section  26 Roman LIV on page 9 of the Ordinance, second to last  27 provision:  28  29 "This ordinance shall not take effect until Her  30 Majesty's assent thereto shall have been  31 proclaimed in the colony."  32  33 And I say in paragraph 33 of my memorandum or  34 summary, the principal purpose of the ordinance was to  35 provide a uniform Crown land system over the entire  36 colony, and it and two companion pieces of legislation  37 formed the subject of a voluminous report by the  38 Attorney General.  And that is part, at least, if not  39 all of it is under Tab 33 of that report.  On  40 September 5, 1870 Her Majesty confirmation and  41 allowance was notified, and the Proclamation of the  42 Royal assent was published October 20th, 1870.  And  43 that is apparent from the last two documents under  44 that tab.  Well, actually it's the last document under  45 that tab which is a Proclamation of the 20th of  46 October, 1870 reciting the 54th clause of the Land  47 Ordinance 1870, and that Her Majesty's confirmation 27792  Submissions by Mr. Goldie 1            and allowance has been  received.  2 My lord, that confirmation or allowance was  3 received in other acts, but unless there was a clause  4 suspending the operation of the Act until the Royal  5 approval had been received, it was not the matter of  6 the Proclamation so far as I could make out.  7 The report of the Attorney General, which is the  8 second document -- the first document under the tab,  9 he states, and this is his letter to Governor  10 Musgrave, but his reports were sent to London when the  11 legislation itself was transmitted.  He says:  12  13 "I have the honour to report for the information  14 of Her Majesty's Government, that in order to  15 put an end to that long continued conflict of  16 regulations, which is existed heretofore  17 respecting the mode of purchasing, and  18 otherwise acquiring Land in the Colony, direct  19 from the Crown, and in certain cases  20 distributing the payment of the same over  21 intervals convenient to the straigtened  22 circumstances of early settlers.  The  23 Legislative Council have passed, 'An ordinance  24 to amend and consolidate the laws relating to  25 Crown lands in British Columbia,' the first  26 local law proposing to extend one uniform or  27 rather general Crown land system over the  28 entire colony.  29 Hitherto two different modes of dealing  30 with Crown Lands have prevailed in the mainland  31 and the island.  32 In the former for some years although not  33 formally made over by any special Act of  34 dedication - the mainland crown lands, and all  35 the revenues derivable with some important  36 exceptions with which the present ordinance  37 deals."  38  39 And he says:  40  41 "In return for this concession, the local  42 legislature has passed the Crown salaries  43 ordinance 1863, a permanent law extended by the  44 British Columbia Act 1866 over the whole Colony  45 under the necessary intendment of Section IV of  4 6 that Act.  47 Under the Mainland land system, where 27793  Submissions by Mr. Goldie 1                   pre-emption is  now the principal medium for  2 settlement, the points particularly calling for  3 definition and legislation have been -  4 Who should pre-empt?  5 How much?  6 How far a pre-emption right should be mortgaged  7 sold or transferred?  8 What precise force should be given to a  9 Certificate of Improvement?  10 The key-note and vital point of pre-emption.  11 What shall be the meaning of 'occupation'?"  12  13 And then he goes on to talk about that.  And on  14 page 3 he says:  15  16 "In Vancouver Island a most extraordinary jumble  17 of titles for Crown lands had for some years  18 reigned supreme.  19 Hudson Bay Conveyance under Seal affixed in  20 England, Conveyances by Hudson Bay Factors,  21 ostensibly acting as Attornies in fact for that  22 great Corporation - but not under the Seal of  23 the Company - (There are hundreds of such deeds  24 extant) - Installment papers from the local  25 Government, given while the Fee of the Island  26 was still in the Company, creating by  27 implication, inchoate, conditional, equitable,  28 interests handed down from Settlers, sometimes  29 by assignment, sometimes by mere delivery of  30 possession, the particular effect of which is  31 utterly indescribable by any terms known to the  32 Law.  33 These altogether formed a chaos of Land  34 dealing that nothing but legislation could set  35 straight.  36 Even at this moment, the Crown lands of  37 Vancouver Island are in the hands of the  38 Crown - and the revenues therefrom go to swell  39 the amount of the Island Crown fund."  40  41 The point of that is, of course, not immediately  42 apparent, but in simple terms the revenues on the  43 mainland went -- were under the hand of the governor  44 until there was a legislature, and after that under  45 the hands of the legislature, and in Vancouver Island  46 there had always been a legislative council, but they  47 didn't have the Crown land revenues.  They could tax, 27794  Submissions by Mr. Goldie 1            but they couldn't get  at the Crown land revenues, and  2 there was a considerable disagreement between the  3 governors, Kennedy who succeeded Douglas, and Douglas  4 to some extent, over expenditures, the legislature  5 wanted in some respects, and that the governor wasn't  6 prepared to make in others, and -- well, I'll deal  7 with that a little later.  8 Now, I come to "Selected Proclamations".  9 Before I do that, I just want to add a note of  10 summary to the Calder XIII.  11 Your lordship will have seen from the section 2 of  12 the 1870 Ordinance that it really picked up everything  13 from 1859 onwards, and intended to be and was a  14 comprehensive code of acquisition unoccupied,  15 unreserved, unsurveyed Crown lands.  So it continued a  16 policy expressed in legislation, repeated in  17 legislation that recognized only titles from the  18 Crown.  Lands were granted under the Calder  19 Proclamations from 1859 until 1871, which purported to  20 give good title against the world, and especially Her  21 Majesty to the grantee.  22 Now, I say that that negates any proposition that  23 there was a burden on those titles which clung to  24 them, if one was referring to the use and occupancy  25 theory, or which negated the power of the Crown to  26 grant that title if one accepts the theory which is  27 put forward by the plaintiffs here of ownership and  28 jurisdiction.  29 I now wish to turn to the -- what I call the  30 "Selected Proclamations", which have been selected  31 because of the extended nature of the claim here,  32 which includes jurisdiction.  And I say the reasons  33 for this selection of colonial ordinance is in the  34 three volumes marked Exhibit 1199-1, 2 and 3  35 respectively, are first to demonstrate that each was  36 transmitted to London; each was considered, and each,  37 if not left to its operation, was granted Royal  38 approval.  39 Second, to indicate the breadth of Colonial  40 legislation; its frequent application to native  41 peoples as such and, in one important instance, the  42 provision of summary legal machinery for protecting  43 the interests of the native peoples within the  44 reserves of Crown lands which in turn were created to  45 protect their villages and settlements.  46 I want to add an observation there, my lord.  I  47 said a few minutes ago that the purpose of the land 27795  Submissions by Mr. Goldie        1 legislation was to  grant title good as against Her  2 Majesty.  I remind your lordship that all of the  3 Indian Reserves created in the colony were in the name  4 of Her Majesty, and that the recognition or  5 acknowledgement of Indian title was never other than  6 one that was in Her Majesty for the benefit and use of  7 the native peoples.  So that when legislation is  8 passed to create the interest of the native peoples  9 within the reserves, by implication I say it was  10 equally designed to protect the interests of the  11 settler outside that reserve.  12 Now, in Exhibit 1199-1 there are ten ordinances,  13 four 1858 Proclamations, two of which were made before  14 Douglas' authority was legally established, and two  15 subsequently.  The indemnity Proclamation of November  16 19, 1858 retrospectively validated the two earlier  17 ordinances, and both of these earlier Acts were laid  18 before Parliament.  19 I say that no underlying documents relating to the  20 Proclamation of June 8, 1859, declaring the  21 constitution of the court of justice of British  22 Columbia has been found, but the constitutional  23 validity of the Supreme Court has not been -- is not  24 so far in issue in this proceeding.  25 Incidently, and purely as a matter of interest,  26 that Proclamations an act of state.  It sets up a  27 court of justice, and it subjects all within the  28 colony of the jurisdiction of that court.  It is  29 totally inconsistent with the proposition that there  30 is some Indian law which governs -- of the kind that  31 is being -- that has been put forward here, and which  32 has been -- is the subject matter of two or three of  33 the Prayers for Relief.  34 The legislation relating to gold mining, which is  35 under Tab 37, is partly Douglas -- well, I think the  36 two under that tab are both Douglas.  And in my  37 submission that legislation, those two Proclamations  38 exclude aboriginal interests to the extraction of  39 mineral substance.  The requirement of a Free Miners'  40 Certificate effectively precluded the importation of  41 Miners' Law, and Douglas had applied this licensing  42 requirement to the Indian peoples with success and  43 acceptance.  And I make reference to his report of his  44 meeting with the Interior Indians, which we have  45 discussed today -- yes, today.  46 The International Telegraph Ordinance of 1865,  47 which is under Tab 38, and its successor ordinances 27796  Submissions by Mr. Goldie        1 provide the Overland  Telegraph undertaking with  2 authority to make use without compensation of any  3 unappropriated Crown lands " ... not reserved for  4 Indians ..."  5 That exception, my lord, appears at the top of  6 page 2, section 3:  7  8 "And it shall be further lawful for the said  9 Perry Macdonough Collins, his associates and  10 assigns, for the purpose of establishing and  11 maintaining such line, and without  12 compensation, to use so much of the  13 unappropriated Crown lands in the Colony, not  14 reserved for Indians, as may be necessary for  15 such stations ..."  16  17 Et cetera.  He's also authorized to set up block  18 houses.  19 That ordinance and its complimentary ordinances  20 extending it to successor companies was enacted to  21 carry out imperial policy.  And that appears, my lord,  22 from the report of the Attorney General, which is page  23 5 in the sequence of documents, and his report of the  24 12th of May 1865 reads as follows:  25  26 "Ordinance No. 5 entitled 'The International  27 Telegraph Ordinance 1865' has been framed to  28 carry out the instructions of Her Majesty's  29 Government in accordance with the law of  30 England and the agreement made with Mr. Perry  31 MacDonough Collins for the construction of the  32 Overland Telegraph via Behrings Strait."  33  34 And that particular ordinance was confirmed by the  35 Queen, and notice of this was sent out in -- I have  36 June the 28th.  It should be July the 28th, 1865.  I  37 say the telegraph company was further empowered to  38 build defensive works against interference by native  39 tribes, and its actual construction traversed the land  40 claims area from a point near Fort Fraser to a point  41 at or near Kispiox.  The Act and the work undertaken  42 pursuant to its authorities are inconsistent with any  43 general aboriginal title in the colony or, in  44 particular, in the claim area.  Documents indicating  45 the extensive activity of the telegraph undertaking  46 were filed by Mr. Williams in the course of his  47 evidence. 27797  Submissions by Mr. Goldie        1 Now, that  ordinance, of course, was after passed,  2 and the activity had authorized took place after the  3 Stikene territory had been incorporated in British  4 Columbia.  So there is no question that with the  5 building of the telegraph line, which involved the  6 cutting of a 20 foot right-of-way, the stringing it  7 off telegraph poles -- or the erection of telegraph  8 poles and the stringing of the wire was completely at  9 odds with any suggestion of either use and occupancy  10 or jurisdiction and ownership.  Your lordship may  11 remember that the introduction of horses to the claims  12 area can be traced to the work parties of this  13 telegraph undertaking.  This was one of a number of  14 ordinances which were validated by the confirmatory  15 ordinance of 1866, which is under tab --  16 THE COURT:  Must be tab 65 of the blue book.  17 MR. GOLDIE:  No -- yes, it's -- well, we are out of the -- yes,  18 it would be, my lord.  It's tab 65, I think, of the  19 exhibit.  Yes, the confirmatory ordinance is the last  20 document -- no, it's the last but one document under  21 the yellow binder, tab 5C-38, and it in turn received  22 the Royal confirmation.  And that is the last document  23 under that tab in the yellow binder.  24 The next selection, the ordinances in Exhibit  25 1199-2, extend in time from 1865 to 1869, that is both  26 before and after the union of the mainland colony and  27 Vancouver Island.  28 The supply ordinance of 1865 provides  29 appropriations of some 400 pounds in respect of Indian  30 chiefs and tribes for purposes unconnected with any  31 sense of aboriginal interest or title.  That is to say  32 there is no -- the payment has nothing to do with  33 supposed compensation or otherwise.  The Game  34 Ordinance of 1865 was one of a series of ordinances  35 passed for the purpose of regulating hunting  36 activities.  37 The Indian Game Ordinance of 1865 protected native  38 graves wherever found in the colony, in part by  39 declaring the objects protected property of the Crown.  40 That was a specific protection of Indian graves,  41 because of the violation of those graves by people who  42 were seeking some of the goods that had been left with  43 them, and since the graves may be found anywhere in  44 both inside and outside reserves, it was thought  45 necessary to address the problem specifically.  46 MS. MANDELL:  I just ask you to look at paragraph 2 of the Game  47 Ordinance, and I think my friend may have coloured the 27798  Submissions by Mr. Goldie        1 declaration to some  extent.  And I say that the  2 declaring of the objects to be protected property of  3 the Crown is perhaps taking it too far; that what the  4 ordinance actually did say is that in any indictment  5 or proceeding that it's sufficient for that purpose to  6 state that the thing is the property of the Crown, and  7 I think that the -- there was never a proper  8 declaration that Indian bones or articles or graves or  9 items removed from the graves in fact was the property  10 of the Crown.  11 MR. GOLDIE:  Well, I don't say so.  I said declaring the objects  12 protected property of the Crown.  The protection is  13 extended by means of the -- by the allegation in the  14 indictment or in the summary proceeding.  If my  15 meaning was unclear, I apologize.  I intended by the  16 use of the word "protected" to make reference to what  17 is asserted in section 2.  I think the point, and  18 it's -- I didn't put the Attorney General's report in  19 the yellow binder, but my recollection is that the  20 Attorney General said, "In order to secure a  21 conviction, we don't want to have to prove whose  22 property it was."  But it's a means of protection of  23 the interests of the native peoples in those goods.  24 41.  The Game Ordinance of 1867 illustrates the  25 process of assimilating the laws of Vancouver Island  26 and of the mainland colony.  And the Attorney  27 General's report in this one is found where he says --  28 and this is under tab 41, making reference to the Game  29 Ordinance of 1867:  30  31 "Has been passed for the purpose of assimilating  32 the game laws of Vancouver Island British  33 Columbia.  34 Since the session began a special committee  35 of the house has been sitting for the purpose  36 of assimilating the laws of the island and the  37 mainland - by repealing existing laws of  38 sections of the Colony and re-enacting them as  39 a whole with such modifications as are  40 necessary over the whole colony so as to begin  41 the new statutory history of the United Colony,  42 with a new, and as far as possible, single  43 Statute Book.  The Ordinance embraces the best  44 points of the local Game Laws, and may be  45 approved."  46  47 Now, the same observation can be made with respect 27799  Submissions by Mr. Goldie        1 to the Indian Games  Ordinance of 1867 under tab 96 of  2 the exhibit and the evidence ordinance under tab 100.  3 Both of those are included, but the Attorney General's  4 comment simply duplicates that in which I have read.  5 In the ordinance to provide for the taking of oaths in  6 the admission of evidence in certain cases, and I  7 think I may be coming back to that, but I note section  8 5 which allows the Court to receive evidence of  9 testimony from native peoples which would be  10 considered to be as unsworn in the ordinary sense of  11 the day.  It's a process of affirmation.  12 Paragraph 42.  The ordinance of 1869 to facilitate  13 the working of mineral lands regulated the exploration  14 and development of mineral resources other than gold.  15 As in the older Gold Fields Regulations this ordinance  16 required that every person who wished to prospect  17 obtain a Crown licence.  Crown grants of mineral lands  18 could be obtained, but in Section 35 it was provided  19 that nothing in the ordinance affected the right of  20 the Crown to make reserves for government purposes, or  21 Indian settlements.  The definition of the mineral  22 claims excluded lands in any way reserved.  The  23 ordinance contained a clause suspending its effect  24 until Her Majesty's confirmation was received, and  25 this was done at the governor's request by telegraph.  26 I have a note, my lord, that the tab number in the  27 exhibit should be 112.  If I may turn to the yellow  2 8 binder for a minute.  I have read what I submit are  29 the relevant parts, but I note in paragraph 17 that  30 the provision is made which has the effect of  31 including in a prospecting licence the right to -- a  32 right-of-way of either road or railway to the sea.  33 And that is evident from the power granted to the  34 chief commissioner of lands and works and surveyor  35 general.  Upon proof to a satisfaction of the  36 necessity of such grant, and upon approval by him of  37 the plan and sections of the proposed works with the  38 sanction of the governor to give to any person,  39 association or company holding a prospecting licence  40 or Crown grant under this ordinance.  By any writing  41 under the hand of such commissioner a right-of-way for  42 a road, canal or railway from his mining claim to the  43 seashore or other line of communication for any  44 purpose connected with such licensees or grantees  45 mining operations with full power by himself or  46 themselves, his or their agents, servants or workmen  47 and so on and so forth "to enter upon any lands or 27800  Submissions by Mr. Goldie 1            waters between the  premises included in such licence  2 or Crown grant and such shore, river, other line of  3 communication upon paying reasonable compensation to  4 the owner of such intermediate land or the portion so  5 taken or the use so made."  6 Now, that means that even without the Crown grant,  7 the Crown is asserting its power to give a licence to  8 go upon lands, even those owned, and in those cases to  9 pay compensation.  Those cases, I mean those cases of  10 lands which are owned by the intermediate owners.  11 Now, in theory that would allow -- well, I  12 speculate, and I haven't -- there is nothing in the  13 Attorney General report that would support my  14 speculation.  So I go onto paragraph XXXV, which is  15 noted in my summary, and it reads:  16  17 "Nothing in this ordinance shall be deemed or  18 taken in any way to limit or affect the rights  19 of Her Majesty, Her Heirs, and Successors in or  20 to the Crown lands of the Colony, other than is  21 herein particularly expressed, or to limit or  22 affect the right of the Crown to grant or lease  23 tracts of land for mining purposes as  24 heretofore, on any special application made in  25 that behalf or special cause shown, or make  26 reserves for Government purposes, or Indian  27 settlements, or roads, bridges, buildings, or  28 other public purposes; or to limit or affect  29 the operation of the Gold Mining Ordinance,  30 1867, other than is herein expressed."  31  32 Now, this ordinance, my lord, was contained -- was  33 concerned primarily with base metals, because gold was  34 taken care of in a special regulation of its own.  So  35 I say that it excludes the aboriginal right of  36 recovering mineral resources other than gold, which is  37 also excluded, because it was a precious metal.  38 I make reference to the Game Ordinance of 1869,  39 which further regulates the hunting of game birds out  40 of season.  41 THE COURT:  Before you leave the Game Ordinance, I am thinking  42 very generally, but it seems to me we had an awful lot  43 of litigation in this country, in this province  44 suggesting that the Game Ordinance may not apply to  45 aboriginals.  46 MR. GOLDIE:  Well, I am not aware of that in the sense of the  47 application of the statute, but certainly there's been 27801  Submissions by Mr. Goldie        1 a lot of litigation  suggesting that their hunting  2 rights were not affected by the game legislation.  3 Perhaps it's the same thing as your lordship is  4 stating.  But in the colonies time, judging from the  5 report of the Attorney General, and I'm not sure that  6 I have got that in here, but I'll look it up, it seems  7 to me he states that one of the reasons for amending  8 it was that its application was affecting Indians and  9 settlers, and it was intended to stop the hunting of  10 people in areas close to town.  Apparently there's  11 quite a poaching went on.  12 Ms. Sigurdson has given me the exhibit, which is  13 1199-2, and the tab number is 114, and it is the  14 Attorney General's report on the ordinance entitled --  15 ordinance entitled Game Ordinance 1869.  And he says,  16 and I quote:  17  18 "I have the honour to report that 'an ordinance  19 entitled the Game Ordinance 1869' has His  20 Excellency Governor Seymour has been passed by  21 the Legislative Council, in a form which it may  22 be submitted for Her Majesty's assent.  23 The local law prescribing the Game seasons,  24 was found to be ineffective in a great measure  25 in practice from the difficulty of proving how  26 the Game seen in the hands of persons suspected  27 of dealing in game during the close season,  28 came into their possession.  29 The present Ordinance throws the onus of  30 disproof on the person in whose possession the  31 game is found out of the regular season.  32 This Ordinance, it is hoped, will remedy  33 the evil, at the same time that, practically no  34 injury will be affected by the stringency of  35 some of its provisions; as the only persons who  36 would have been likely to be prejudiced by it  37 would have been the settlers during the hay  38 season."  39  40 I suspect the legislation which has given rise to  41 the litigation your lordship refers to is not colonial  42 legislation.  43 MS. MANDELL:  If I may add just on that point, my lord.  You  44 will notice that in the second paragraph of Exhibit  45 1199-2, that the prohibition runs that it's unlawful  46 for people to possess certain animals between certain  47 times, and then it says: 27802  Submissions by Mr. Goldie        1  2 "Provided always that the possession of any  3 Deer, Elk, Grouse, Prairie-fowl, Quail or  4 Partridge, by any person or persons, between  5 the times aforesaid, shall be prima facie  6 evidence of an intention to sell, or barter, or  7 offer the same for sale or barter; but nothing  8 herein contained shall be construed to prevent  9 bona fide settlers in country districts from  10 killing or getting such game in any season for  11 their own consumption merely."  12  13 And the argument which I think arises directly  14 from that paragraph is that it certainly can't be seen  15 that Indian people who are getting food for their own  16 consumption would be included in the Act, "them"  17 expressly excluding settlers.  It's hardly in our  18 submission a proper construction of the Act that  19 Indian people who are hunting for their own  20 consumption, but not included in the wording were  21 intended to be dealt with more stringently than the  22 settlers.  And I think that what we have is an Act  23 which appears on its face to be applicable to settlers  24 and not to Indians.  25 MR. GOLDIE:  Well, the prohibition is from and after the passage  26 of this inordinance -- it shall be unlawful for any  27 person to be in possession of Grouse, et cetera for  28 the purpose of sale or barter.  29 Now, the Attorney General said that they found  30 that the outlying settlers, et cetera, found the game  31 in which they in great measure relied upon  32 disappearing.  And the exception with respect to  33 settlers would have been the settlers during the hay  34 season.  "No injury will be affected by the stringency  35 as some of its provisions."  36 I think this particular ordinance was aimed at  37 anybody, including Indian people, from having game in  38 their possession for sale or barter.  It doesn't  39 exclude people having anybody -- anybody having it in  40 their possession for food.  And then for some reason  41 they make the reverse onus inapplicable to bona fide  42 settlers in country districts from killing or getting  43 such game at any time for their own consumption  44 merely.  45 Now, I take it that that includes having such game  46 in their hands for a purpose of exchange for  47 consumption.  But I don't think that the -- that there 27803  Submissions by Mr. Goldie        1 is much doubt that the  game laws, as they went along,  2 certainly did apply to the Indian peoples, but only  3 incidentally if -- because they are not assumed to be  4 in their hands for sale or barter, or at least I  5 wouldn't think they would.  6 THE COURT:  Well, the last clause seems to be a saving clause.  7 "But nothing herein contained shall be construed to  8 prevent bona fide settlers in country districts from  9 killing or getting such game at any season for their  10 own consumption merely".  "Settlers" isn't defined, of  11 course, and Indian wouldn't be a settler.  12 MR. GOLDIE:  Not normally, no, my lord.  I take that — the  13 primary offenders were white men, and -- but the  14 prohibition was against all persons having a game in  15 their hands for the purposes of sale or barter.  I say  16 that would include Indians, but wouldn't include them  17 for purposes of food.  18 THE COURT:  All right.  Thank you.  19 MR. GOLDIE:  Now, I go onto the next item, which is the Indian  20 Reserve Ordinance of 1869.  And I say it's an  21 important piece of legislation directly affecting  22 Indian peoples throughout the entire colony.  It  23 conferred upon the colony's stipendiary magistrates  24 the power to settle the boundary between Indian  25 reserves or settlements, these being designated as  26 Crown lands, and to treat as trespassers those  27 non-Indians who went upon such lands over the  28 objections of the native inhabitants.  By necessary  29 implication the rights of Indians beyond the boundary  30 of the reserve would be subject to general land laws  31 of the colony.  Where a valid pre-emption was  32 contiguous to the boundary as settled by the  33 stipendiary magistrate an inhabitant of the reserve  34 who strayed upon the pre-emptor's lands would, in that  35 case, be the trespassing.  Of course it was the  36 settler crossing the boundary, he would be the  37 trespasser.  This ordinance was given Royal sanction.  38 While inconsistent with any aboriginal right or title  39 beyond the boundaries of a reserve, it is statutory  40 recognition of an interest in a reserve other than a  41 grant from the Crown obtained under the general land  42 laws of the colony.  In that sense it is confined to  43 the Indian people in their settlements.  44 THE COURT:  Why do you say it's a recognition of the interest  45 other than by a grant from the Crown?  46 MR. GOLDIE:  Well, we are talking about — well, I put it this  47 way.  It's an interest within the reserve which the 27804  assert by  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  Submissions by Mr. Goldie        1 Indian people could  a complaint directly to  the magistrate.  There's been nothing so far which  enabled the Indian people to assert a right under a  statute if somebody trespassed on their reserves.  Their course was to complain to the stipendiary  magistrates, but this conferred the legal right.  And  it went further.  It conferred -- it allowed the  magistrate to award damages and to issue an  injunction.  So in effect the aggrieved inhabitant of  the reserve thereby had a right which he could assert  directly both for damages, an injunction and whatever  else -- whatever other remedy the magistrate might  give them.  It catalogued so-to-speak his remedies, and it  gave him a direct access to the courts.  The damages were -- section 1 it says not damages,  but both the award and the damages:  "It shall be lawful for such magistrate after  reasonable notice to all parties to be affected  by such decision and after hearing to award and  enforce such costs and damages not exceeding in  any one case the sum of $250.  By warrant of  distress of the goods and chattels of the  person or persons against whom such decision  given as to such magistrates shall seem  reasonable. "  And then there is the -- the effect -- and section  2 is in effect to provide a mandatory -- powers of a  mandatory injunction.  I say -- well, I note the Attorney General's  report states that:  "The ordinances has been passed to provide a  speedy and cheap means of remedying and abating  encroachments on the Indian reserves, and  debatable land between Indian and white  claimants, without delay necessary in cases  tried before the Supreme Court."  And, my lord, there is no suggestion that  "debatable" implies a contest between aboriginal title  and title derived through a Crown grant of a  pre-emptor's claim.  Royal confirmation and allowance  was notified in June of 1869.  Now, I pass on to Exhibit 1199-3.  Two of the 27805  Submissions by Mr. Goldie        1 three ordinances in  this volume together with Calder  2 XIII formed -- which was the land ordinance, the  3 consolidating previous land ordinances, formed, in the  4 words of the emigration board in its report to the  5 colonial office of August 27, 1870:  6  7 ".... a complete code for the 'clearing  8 acquisition and registration of title to real  9 estate' in the Colony - and have become  10 necessary in consequence of the variety,  11 irregularity and confusedness of the modes in  12 which claims to land have heretofore been  13 created on Vancouver Island and the Mainland  14 ..."  15  16 The ordinance to facilitate the issue of Crown  17 grants -- the Attorney General's report -- or I'm  18 sorry, the report of the emigration board in which I  19 have quoted is the first document under that tab  20 5C-46, my lord.  21 THE COURT:  Yes.  22 MR. GOLDIE:  And the ordinance itself is -- follows the blue  23 separator sheet, page 15.  But I want to turn back to  24 the report of the Attorney General for a minute.  I'm  25 sorry, the report of the emigration board.  I have  2 6 quoted from paragraph 2.  I am quoting now from the  27 letter of the emigration board:  28  29 "They form as the Attorney General states in his  30 report of 11th May, a complete code for 'the  31 clearing, acquisition and registration of title  32 to real state' in the colony - and have become  33 necessary in consequence of the variety,  34 irregularity and confusedness of the modes ..."  35  36 Et cetera.  The lengthy analysis of the provisions  37 is followed by minutes in which Mr. Holland, I think,  38 made a minute for the purposes of Lord Kimberley's  39 consideration.  40  41 "I think these three ordinances must be  42 sanctioned.  The report of Sir C. Murdoch shows  43 very clearly and briefly the general effect of  44 them.  The Attorney General disposes  45 satisfactorily of the objections raised by the  46 banks to section 33 of number 17.  That section  47 is nearly identical to the clause in the 27806  Submissions by Mr. Goldie        1 Imperial Act  2  3 And so on.  He says:  4  5 "I observe that no provision is made for  6 compensation to parties wrongfully deprived of  7 land from erroneous registration or otherwise.  8 The Attorney General on page 10 of his second  9 report upon the ordinance speaks of government  10 compensation as palpably impossible in this  11 colony.  It has not been found to be so in  12 Trinidad or by the recent ordinance provisions  13 made for an insurance fund."  14  15 And of course, as your lordship knows, there was  16 an insurance fund eventually became an essential part  17 of the land title system of British Columbia.  18 The two ordinances in question begin at page --  19 the ordinance to facilitate the issue of Crown grants  20 is found at page 9, and that provides for a means of  21 issuing a Crown grant in cases where there has been  22 doubt and there's a provision made for settling the  23 title.  And the other one is -- begins at page 15, and  24 it's an ordinance to assimilate the law relating to  25 the transfer of real estate, and to provide for the  26 registration of titles to land throughout the colony,  27 and in the preamble states:  28  29 "Whereas it is expedient to establish a Registry  30 of titles to real estate throughout the colony  31 of British Columbia, and to assimilate the law  32 relating to the transfer thereof, and for that  33 purpose to repeal certain acts and ordinances  34 ..."  35  36 And the report of the Attorney General on the  37 first of those two starts at page 12.  He says:  38  39 "I have the honour to report for the information  40 of Her Majesty's Government that 'An Ordinance  41 to facilitate the issue of Crown Grants' has  42 been passed to meet a want long felt in the  43 Colony, by providing facilities for the issue  44 of Crown Grants in the names of persons fairly  45 entitled thereto, on account of land purchased  4 6 from the Crown but transmitted from hand to  47 hand in a somewhat untechnical manner." 27807  Submissions by Mr. Goldie 1  2 And he again makes reference to the state of  3 affairs both on the island and in the mainland.  And  4 he says:  5  6 "It is essentially a temporary and enabling  7 Ordinance, general in its application but  8 retrospective in its operation.  9 It is expressly framed to meet a state of  10 circumstances which - on the Mainland - has  11 arisen from the unsettled provisions and  12 constant changes of the land regulations of  13 various kinds on the first settlement of a new  14 Country, where professional aid has not been  15 accessible, and a considerable portion of the  16 ealy settlers alien.  17 In Vancouver Island - arising frm the  18 length of time that the Crown lands have been  19 out of the control of the Crown, and the  20 exceptional nature of the mode in which the  21 titles have been derived..."  22  23 And then he talks about Vancouver Island, where  24 from the length of time that the Crown lands were out  25 of control of the Crown and the exceptional nature of  26 the mode the title had been derived, and there was, as  27 he put it, total absence of many of the parties  28 through whom titles have informally descented have  29 probably left the colony forever without leaving a  30 trace of their whereabouts.  And the whole purpose is  31 to settle disputes over Crown grants however had they  32 may have been issued.  But in my submission the  33 relevance here is that there is again an intention to  34 confer upon the grantees good title and quiet  35 possession --  36 THE COURT: Mr. Goldie, the Land Registry has always been so  37 exciting that I think we should adjourn for this.  38 Thank you.  39 THE REGISTRAR: Order in court.  40  41 I HEREBY CERTIFY THE FOREGOING TO BE  42 A TRUE AND ACCUATE TRANSCRIPT OF THE  43 PROCEEDINGS HEREIN TO THE BEST OF MY  44 SKILL AND ABILITY.  45  4 6    4 7 LORI OXLEY 27808  Submissions by Mr. Goldie        1 (PROCEEDINGS RESUMED  AT 3:30 P.M.)  2  3 THE COURT:  When I received a letter from Mr. Sterritt the other  4 day I mentioned, I think, that I thought I had  5 received an earlier one from him and I see that I did.  6 And I think perhaps with some regret I notice that I  7 caused a letter to be sent to him informing him that I  8 couldn't engage in correspondence with him.  That, of  9 course, just prompted another letter.  So I will give  10 the letters to counsel and they can -- there is  11 nothing much in any of them, but I will be relieved  12 when I know that counsel have seen everything that I  13 have seen and they may have some advice as to what to  14 do with it.  But my present reaction is to not reply  15 further.  But I will be glad to have counsels' advice.  16 MR. GOLDIE:  My lord, I wonder if I might take your lordship  17 back to the Game Ordinances, and I see that the final  18 one of them is not included in this sequence.  But if  19 I could take you to the yellow binder and deal first  20 with what I think to be the initial one, which is -- I  21 am sorry, -- I want to first --  22 THE COURT:  Tab 41, I think.  23 MR. GOLDIE:  Pardon me?  24 THE COURT:  Tab 41, where you talk about Game Ordinances.  25 MR. GOLDIE:  Tab 41.  No, that's the Indian Graves Ordinance.  26 Your lordship is right, tab 41 is the 1865 one and  27 I want to come back -- I want to start with the --  28 that's the 1867 one.  I want to start with the -- 39,  29 Ms. Sigurdson tells me.  3 0 THE COURT:  Tab 39?  31 MR. GOLDIE:  Yes.  Yes, if your lordship would turn to tab 39,  32 it's the last document.  And that's the Game Ordinance  33 of 1865, and it reads:  34  35 "From and after the passage of this ordinance  36 it shall be unlawful for any person to buy,  37 sell, barter, give or offer to exhibit for sale  38 any deer or elk..."  39 Et cetera.  40  41 Now, in my submission it's perfectly clear that  42 that applies to any person, whether he is a settler,  43 whether he is an Indian, whether he or she is  44 anything, as long as they meet the description of  45 person.  Then if I go to tab 41, I find that there has  46 been repealed the Game Ordinance of 1865 of the Colony  47 of British Columbia and an Act For The Preservation Of 27809  Submissions by Mr. Goldie 1            Game of 1859 of the  former Colony of Vancouver Island.  2 And this one substantially repeats in Section 2 the  3 prohibition:  4  5 "It shall be unlawful for any person to buy,  6 sell, barter..."  7  8 Et cetera.  9  10 The attorney-general's report on that is that this  11 was to assimilate the two laws.  12 Then when I turn to the one of 1869, which is  13 under tab 43, this time the offence is not -- is  14 stated to be "...to be in possession for the purposes  15 of sale or barter."  16 Now, I don't have the attorney-general's report on  17 that, but what I do have is an Exhibit 1199, the  18 reason for the repeal of that act of 1869.  Now, I  19 have asked the registrar to obtain for your lordship  20 Exhibit 1199-3, and under tab 23, in the white tab 23,  21 is the -- Legislative History of the Game Ordinance of  22 1870.  And under tab 126 is the Game Ordinance of 1870  23 which repeals that of 1869.  24 Under tab 127 is the attorney-general's report,  25 and he starts off by saying, "Has been passed..."  26 This is line three of the first paragraph:  27  28 "Has been passed with a view to meeting some  29 defects disclosed in the working of the  30 previous law, the Game Ordinance Act of 1869  31 when applied upon the trial of recent cases  32 that arose under it in our courts.  The law was  33 too general in its application, extended too  34 far beyond the towns where the chief market lay  35 for this illicit traffic and, contrary to  36 expectations, affected settlers in remote  37 districts who, when other meat was not  38 procurable, depended in a great degree on  39 venison and game for subsistence during several  40 months of the year.  The definition of game  41 under it did not support a conviction.  The  42 penalty for infraction of the law was not at  43 all proportionate to the trouble of laying  44 information, arraying the evidence and  45 procuring a conviction, nor was sufficient  46 inducement held out to lead parties to give  47 information of the infraction of the law. 27810  Submissions by Mr. Goldie        1 Great and  increasing destruction of game had  2 still been going on in a closed section  3 throughout the country through the  4 instrumentality of white men, at all times  5 thoughtlessly ready to purchase game without  6 regard to breeding time and in certain  7 localities threatens the almost entire  8 destruction of an important portion of the red  9 man's food.  The restrictions placed on the  10 aborigines by the former statute..."  11  12 I just pause there, my lord.  It's clear there it  13 was assumed the former statute applied to the native  14 peoples.  15  16 "...were found to work injuriously on the very  17 class they were intended to protect and a new  18 mischief had arisen from the wholesale  19 destruction of insectibourous birds and a  20 consequent increase of caterpillars and other  21 crop-destroying insects.  All these defects the  22 present measure attempts to remedy with some  23 expectation of success.  There is always great  24 tenderness in the legislature, executive and  25 courts in dealing with questions affecting the  26 natives of the country and some of the same  27 spirit observeable in the ordinance under  28 report.  29 The only fear is that the exemption of  30 Indians from the operation of the act will  31 provide the white man with a ready means of  32 evading the most beneficial of its provisions  33 through the agency of the very persons whose  34 interests are most deeply concerned in its  35 enforcement."  36  37 That, my lord, that I have been reading from in  38 fact Miss Sigurdson points out to me is under tab 47  39 of the yellow binder.  40 However, I now turn back to the Game Ordinance of  41 1870 itself.  And the change that is made is to make  42 unlawful for any persons to have in their possession,  43 in the city of Victoria or of New Westminster or the  44 Town of Nanaimo or of Esquimalt, et cetera, game which  45 is out of season.  Now this excludes settlers on their  46 farms, it excludes Indians outside the towns, and --  47 but if a settler is in town with -- in possession of 27811  Submissions by Mr. Goldie        1 game out of season, he  can be found guilty, just as an  2 Indian could.  The exemption that the attorney-  3 general refers to, I will call it this way, a  4 geographic limitation on the operation of the act.  5 And that is what he expected would remedy the defects  6 of the previous one, which extended to all persons who  7 had game in their possession for the purpose of sale  8 or barter with the reverse onus of proving that it  9 wasn't otherwise if they were found in possession of  10 it out of season.  11 THE COURT:  Clearly in breach of two provisions of the Charter  12 of Rights.  13 MR. GOLDIE:  It would certainly be that case and I have at times  14 the impression in this case, a retrospective  15 application of the law to the year 1858 is what the  16 plaintiffs really want.  But I may have misunderstood  17 that.  18 Clearly the point, however, I make, my lord, is  19 that the proclamations apply to Indians and they  20 exempt them and settlers, both Indians and settlers  21 are being -- a remedy is being granted to them by the  22 geographic limitation.  23 Now, if I could turn to -- back to my summary, I  24 think I was at page 28 of 5(c).  25 THE COURT:  No, well on to page 29.  26 MR. GOLDIE:  That's correct, I had read that part.  Thank you,  2 7 my lord.  28 THE COURT:  I think you read all but the last paragraph.  29 MR. GOLDIE:  That's true, and it is -- I would ask your lordship  30 to have before you the Land Registry Ordinance, 1870,  31 which should be under tab 46.  32 THE COURT:  Yes.  33 MR. GOLDIE:  The minute that I have referred to is -- precedes  34 it, but it is at page nine, and the particular clause  35 that I wish to refer to is 47 -- page 47 is -- I am  36 sorry, page 15 is the one that I am looking for.  And  37 47, Section 47, is under the heading Indefeasible  38 Title.  I have quoted from it in part and I have got  39 one word wrong in the -- yes, 47:  40  41 "The owner in fee of any land, the title of  42 which shall have been registered for the space  43 of seven years, may apply to the registrar for  44 a certificate of indefeasible title, but he  45 shall first make an affidavit that to the best  46 of his knowledge, information and belief, all  47 deeds and documents, maps, plans, papers with a 27812  Submissions by Mr. Goldie        1 list thereof  annexed relating to the title of  2 the land in question, have been produced to the  3 registrar or the cause of non-production, et  4 cetera, fully explained."  5  6 Then the registrars, under the fourth paragraph,  7  8 "...shall, upon being satisfied of the truth of  9 the statements made in the affidavit, cause an  10 advertisement to be inserted in the Gazette and  11 in other newspapers, stating his intention of  12 issuing the certificate of indefeasible title  13 applied for on a day to be named in such  14 advertisement.  Then if no valid objection, the  15 registrar shall issue a certificate."  16  17 Then in 49:  18  19 "The Certificate of Indefeasible Title shall be  20 conclusive evidence..."  21  22 My lord, in the quotation that I have on page 29  23 of my summary, the word "conclusive" should be  24 substituted for "sufficient" in the first page of the  25 quotation at the bottom of that page.  26 THE COURT:  Sufficient should be conclusive?  27 MR. GOLDIE:  Yes, my lord.  And I will now go back and read from  2 8 49, and I quote:  29  30 "The certificate of indefeasible title shall be  31 conclusive evidence in all courts of justice  32 that the person therein named is the absolute  33 owner of an indefeasible fee simple in the real  34 estate therein mentioned against the whole  35 world (the Crown only excepted)..."  36  37 Now, the legislative intent there is to provide a  38 title which goes beyond the original Crown grant and  39 to provide a Certificate of Title authorized by  40 statute, which would be good as against the entire  41 world, the Crown only excepted, and that is because  42 the exceptions there are the indefeasible title.  And  43 I pose the question that this cannot be reconciled  44 with the -- a pre-existing law said to constitute  45 ownership and jurisdiction in the plaintiffs.  And I  46 say this that ordinance, together with Calder XIII is  47 a prime example of what Mr. Justice Gould referred to 27813  Submissions by Mr. Goldie        1 as:  2  3 "...a unity of intention to exercise, and the  4 legislative exercising, of absolute sovereignty  5 of all the lands of British Columbia, a  6 sovereignty inconsistent with any conflicting  7 interest..."  8  9 And I say that that interest necessarily includes  10 that of the plaintiffs.  11 Now, my lord, in paragraph 47 we get to the Game  12 Ordinance that I have just been talking about, and I  13 won't repeat what is found in there, except to say  14 that it received Royal confirmation and allowance as  15 indicated in Lord Granville's despatch.  16 Then in two exhibits, Exhibits 1200-1 and 1200-2,  17 there is a collection of colonial regulations,  18 proclamations, ordinances and enactments but without  19 the underlying documents indicating transmittal to  20 London, consideration there and approval thereafter.  21 So far as I am aware, all of these documents were  22 transmitted to London and received whatever  23 consideration was given there but I don't -- I haven't  24 collected the documents with respect to them in these  25 exhibits.  It's just the documents themselves.  26 These statutory instruments reveal the broad  27 variety of subjects dealt with by the legislative  28 authority in the mainland and united colonies.  They  29 touch almost every part of the life of the colony.  As  30 Mr. Walkem noted, in his report to the Executive  31 Council of the Province of British Columbia in August  32 1875, by virtue of executive act Indians were exempted  33 from paying tolls and direct taxes in respect of  34 public highways and bridges.  They were relieved of  35 customs duties in certain circumstances and were  36 otherwise assisted.  The document in question, which  37 is taken from the yellow book, Exhibit 1182, and there  38 are two sets of paginations, the first runs from page  39 1 up to 170, and then follows an order-in-council of  40 the 18th of August, 1875, which adopts as the  41 expressions of the provincial government, as to the  42 best method of bringing about a settlement of the  43 Indian land question.  And that is -- it is that  44 order-in-council, and the memorandum of Mr. Walkem,  45 who was the attorney-general, that I now refer to.  46 And this indeed did lead to -- at least started the  47 process of settlement of a rather acute problem in 27814  Submissions by Mr. Goldie        1 1874 and 1875 between  the federal and provincial  2 governments.  But I am now referring to Mr. Walkem's  3 memorandum, which was adopted by order-in-council.  4 THE COURT:  The acute problem you're talking about is the  5 settlement of reserves, or the dialogue between rights  6 and reserves?  7 MR. GOLDIE:  No, my lord, it was over the size of the reserves.  8 THE COURT:  Thank you.  9 MR. GOLDIE:  But what it did do -- I am sorry, what it resulted  10 in, which made it indeed very acute, was the  11 disallowance of a Provincial Land Act, because it made  12 insufficient provision for Indians.  And the report of  13 the deputy attorney-general, which the Minister of  14 Justice used to support his disallowance, introduced  15 the idea that the Royal Proclamation applied to  16 British Columbia.  And it became one of the most  17 famous items of support in those who were agitating or  18 who were claiming that Indian title existed in the  19 province.  But, that is -- that was in the past and  20 this is the -- it is this report of Walkem's which led  21 to the creation of the Indian Reserve Commission.  22 THE COURT:  But this is written after disallowance?  23 MR. GOLDIE:  This was written after the disallowance.  24 The outcome of it is indicated in the preceding  25 page, which is 169, page number 169, and is dated  26 January 6th, 1876, where order-in-council recites on a  27 memorandum dated the 3rd day of January, 1876 from the  28 Honourable the Attorney-General, reporting upon a  29 minute of the Honourable the Privy Council of Canada  30 bearing date the 10th of November, 1875, and making  31 the following propositions for the settlement of the  32 Indian land question in this province.  First, that  33 the adjustment of the question be referred to three  34 commissioners, one to be appointed by the Dominion  35 Government, one by this government and the third to be  36 jointly named by the two governments.  Now that was  37 the Indian Reserve Commission.  And it functioned  38 relatively briefly as a three-member commission and  39 then it was undertaken by one.  I believe Mr. Sproat  40 was the first single commissioner.  But the report I  41 am going to refer to is dated the 18th of August, 1875  42 and it is -- the recommendation that Mr. Walkem makes,  43 which was not wholly accepted, but it led the way to  44 the settlement.  And I refer to it here because, in  45 effect, it reviews the British Columbia policy and it  46 appends letters from Mr. Duncan suggesting steps that  47 might be taken.  But it is in respect of the review of 27815  Submissions by Mr. Goldie 1            the policy that I am  referring to it.  And at page 2,  2 and this is what is -- I don't know how it is in your  3 lordship's yellow binder, but page 3 precedes page 2.  4 THE COURT:  Yes.  5 MR. GOLDIE:  Perhaps to give it the appropriate introduction, I  6 should go to pages preceding, that -- and I am now  7 reading from the report as it was adopted by the  8 Executive Council.  And to do that I am reading from  9 the exhibit itself, 1182.  10  11 "The undersigned..."  12  13 That's Walkem,  14  15 "...begs leave to submit for the consideration  16 of His Honour the Lieutenant-governor in  17 council the following memorandum on Indian  18 affairs.  For some time past the government of  19 the provinces have endeavoured but without..."  20  21 THE COURT:  Sorry, Mr. Goldie, I was trying to get my book  22 closed and I didn't see where you started.  23 MR. GOLDIE:  It's not in the yellow binder, just by way of  24 introduction to the things that are in the yellow  25 binder, and Walkem talks about the desire to reach a  26 practical solution of what is termed the Indian land  27 question.  He says:  28  29 "The negotiations with the Dominion on the  30 subject have been based on the 13th article of  31 our terms of union which reads as follows."  32  33 Then he recites the two paragraphs, term 13, and  34 states, and I quote:  35  36 "It will thus appear first that Canada assumed  37 the charge of the Indians and the trusteeship  38 and management of their lands.  39 Second, that a policy towards our Natives  40 is as liberal as that of the Colonial  41 Government prior to Confederation should be  42 continued by the Dominion Government.  43 Third, that this province should, after  44 Confederation, convey to the Dominion in trust  45 for the use of the Indians, tracts of land  46 similar in extent to those which had been set  47 apart for their use by British Columbia when 27816  Submissions by Mr. Goldie 1                   governed  directly by the Imperial authorities.  2 Fourth, that any disagreement with respect  3 to the extent of such land should be referred  4 to the Secretary of State for the Colonies for  5 his decision."  6  7 And then that -- page 2, and this is -- your  8 lordship can pick this up from the yellow book -- I am  9 sorry, the tab --  10 THE COURT:  I have it.  11 MR. GOLDIE:  12  13 "Upon these four distinct areas the 13th article  14 is based.  It needs scarcely be stated that  15 there is a marked difference between a  16 stipulation to establish a general policy and  17 an agreement to supply certain detailed  18 assistance to carry out such policy.  Referring  19 to the report of the Honourable the Minister of  20 the Interior, adopted by the minute of the  21 Privy Council the 4th of November, 1874, it  22 will be observed that the minister fails to  23 draw such a distinction and harshly condemns  24 the Indian policy of the Crown Colony 'as  25 little short of a mockery of the claims' of the  26 Indians because the aid given to it in the  27 shape of land and for education fell short of  28 that given in old Canada."  29  30 I take it he is referring to pre-1867, Province of  31 Canada, which was split into Ontario and Quebec in  32 1867.  Then he goes to to say:  33  34 "The value of the above distinction will  35 presently appear in discussing the several  36 points in the order laid down.  Although the  37 question of what assistance in land shall  38 British Columbia now give the Dominion to carry  39 out her Indian policy is the real issue between  40 the two governments.  It appears to be  41 absolutely necessary to give a short sketch of  42 the Indian policy of the Crown Colony with a  43 view of removing the very unjust impression  44 respecting it which has been created in the  45 public mind by the publication of the report of  46 the Minister of the Interior.  Superior to this  47 reason is the undoubted right of the Imperial 27817  Submissions by Mr. Goldie        1 Government, to  whom the Indian correspondence  2 has been referred..."  3  4 My lord, that refers to the -- Lord Dufferin's  5 sending to the Colonial Office the Privy Council's  6 minute of the 4th of November, together with his own  7 despatch.  8 THE COURT:  Where he said that British Columbia was behaving  9 badly?  10 MR. GOLDIE:  Yes, yes.  11 THE COURT:  Yes, I remember.  12 MR. GOLDIE:  And he says:  13  14 "Since it has been referred to the Imperial  15 Government, a full explanation respecting the  16 charges preferred in the report of mal-  17 administration of the a policy established  18 under their directing influence."  19  20 Just pausing there, that's, if I may say so, a  21 home shot, because he is saying we ought to provide an  22 explanation for something which was done under the  23 authority and direction of the Imperial government.  24  25 "...and justice also to the past and present  26 governments of British Columbia as well as to  27 its people at large, a thorough consideration  28 of the minister's report is demanded.  With  29 these remarks the undersigned now proposes to  30 deal with the last three propositions above set  31 forth as the first condition may be considered  32 as disposed of "  33  34 The last three conditions are the ones that I read,  35 namely that it is his analysis of the elements of term  36 13, the first condition was that Canada assumed the  37 charge of the Indians and the trusteeship and  38 management of their lands.  And he says that's self  39 evidently been taken care of by virtue of British  40 Columbia's joining Confederation.  But he says the  41 last three remain to be considered, that is to say,  42  43 "...a policy towards our natives as liberal as  44 that of British Columbia prior to  45 Confederation.  46 Third, that the province should, after  47 Confederation, convey to the Dominion in trust 27818  Submissions by Mr. Goldie 1                   for the Indians,  tracts of land similar in  2 extent to those which have been set apart for  3 their use by British Columbia when governed  4 directly by Imperial authority.  5 Fourth any disagreement goes to the  6 Secretary of State for the colonies."  7  8 He says then with respect to the second  9 proposition:  10  11 "With respect to the second proposition, that  12 the Indian policy of Canada shall not be less  13 liberal than that of the Crown colony of  14 British Columbia, it is not intended to give  15 more than a free statement of the colonial  16 policy as it was pursued prior to 1871.  Nor  17 would such a statement have been necessary had  18 the colonial Indian system been better  19 understood by thge Dominion government.  The  20 policy of the Dominion aims at a concentration  21 of the Indians upon reserves while that of the  22 Crown colony besides granting reserves in cases  23 where the Indians preferred them, accorded  24 rather an opposite result.  The Colonial policy  25 was first innaugurated under the auspices of  26 the Imperial government in 1858, the date of  27 the foundation of the Crown colony."  28  29 Now, my lord, if I may pause to note an -- almost a  30 footnote, the act of 1866 which joined Vancouver  31 Island and British Columbia legally had the effect of  32 the mainland colony taking over the Vancouver Island  33 colony.  So Mr. Walkem is legally correct in stating  34 that 1858 was the date of the foundation of the Crown  35 colony as it was in 1871.  36  37 "Under this policy, the natives were invited and  38 encouraged to mingle with and live amongst the  39 white population with a view of weaning by  40 degrees from savage life and gradually leading  41 them by example and precepts to attitudes of  42 peace, honesty and industry.  It is true that  43 this step was not unintended with some of the  44 well-known evils which are unfortunately  45 acceptable from the attempted fusion of savage  46 and civilized races.  These effects it was  47 believed that in time had been largely removed 27819  Submissions by Mr. Goldie        1 by the  application of proper remedies."  2  3 Then he goes on to quote the Dominion Commissioner  4 for Indian Affairs, which is -- which was quoted in  5 the Dominion's Privy Council report of 4th of  6 November, 1874.  7 Now that, what I have just read, is quoted in part  8 on page 31 and 32 of my summary, and I say with  9 respect to it, that this reference, of course, to the  10 mainland colony, distinctly negates any suggestion of  11 what was done on Vancouver Island had either influence  12 on the mainland or even validity after union of the  13 two colonies in 1866.  14 Then I go on to say, Mr. Walkem estimated the  15 number of Indians in the country at about 40,000 at  16 the time of Confederation, a number approximately 4000  17 in excess of the white population at that time.  He  18 proceeds to characterize the Indian community as  19 "...loyal, peaceable and contented, and in many cases  20 honest and industrious."  21 After he makes the remarks he did make on page 2,  22 and quotes from the statement of the Dominion  23 Commissioner for Indian Affairs on the parsimonious  24 treatment of the Indians by the colony, he proceeds to  25 look at the books and vouchers of the treasury  26 department of the colony.  And at the top of page 3,  27 line five, he says:  28 "By instructions from the government, the  29 Natives were exempted from paying tolls and  30 direct taxes levied on the community at large  31 for the construction of public highways and  32 bridges; nor were Customs Duties exacted upon  33 the animals and merchandise -- sometimes of no  34 inconsiderable value -- which the members of a  35 tribe from time to time imported across the  36 boundary line from American soil.  These  37 abatements -- large in the aggregate -- are  38 virtually 'money payments' on Indian account.  39 Pecuniary aid was given to the sick and  40 destitute, and to a large extent in cases of  41 epidemic such as smallpox, treating the life of  42 the Indian with as much respect and  43 consideration as that of his civilized  44 neighbour.  Inquests were held, when necessary,  45 in cases of untimely death.  These proceedings  46 were often and almost always in the interior,  47 attended with considerable outlay.  In the 27820  Submissions by Mr. Goldie 1                   administration  of justice gratuities were  2 sometimes given at the instance of a Judge on  3 circuit, or of a District Magistrate, to  4 deserving Indians.  With a view of encouraging  5 their feelings of loyalty and strengthening  6 their fidelity and attachment to the Crown, a  7 general invitation was annually extended to the  8 various tribes within reach to meet at some  9 central point in the lower country for the  10 purpose of celebrating the birthday of Her  11 Majesty"  12  13 And so on.  14  15 He says:  16  17 "The system of 'gifts'..."  18  19 in the next paragraph,  20  21 "...to the Native tribes was not, however, a  22 prominent feature in the Colonial Policy.  It  23 was followed more in obedience to Indian  24 tradition than to conviction of ultimate good."  25  26 And he goes on at some length to justify, not -- to  27 characterize what I would say was seeking to put in  28 the proper light the colonial policy having regard to  29 the very harsh criticism made of it by the federal  30 government in 1874.  31 Now, I want to, before I leave that, refer further  32 to page 3.  This is towards the beginning of the  33 second paragraph on that page, line three, after  34 referring to the system of gifts, he said:  35  36 "The practice was therefore countenanced rather  37 than encouraged, as it was opposed to main  38 principles of assimilation in the higher degree  39 of the native and civilized races and of the  40 consequent treatment of the Indian as a fellow  41 subject.  Instead of this mode of assisting  42 them, habits of self reliance were inculcated,  43 and the advantage of well directed labour were  44 impressed upon them.  The time too was  45 opportune for putting these lessons into  46 practice as labour was scarce and in great  47 demand.  Every Indian then who could and would 27821  Submissions by Mr. Goldie        1 work -- and they  were numerous -- was employed  2 in almost every branch of industrial and of  3 domestic life at wages which would appear to be  4 excessively high in England or in Canada."  5  6 He says what they were able to do with the money  7 they earned and how the government employed those  8 "...living in the interior, as police, labourers,  9 servants and messengers entrusted with errands of  10 importance."  11 And after going through all of that, he makes  12 reference, towards the bottom of the page, to acts  13 which especially were directed to them, the Evidence  14 Act and the one dealing with preservation of their  15 graves and of forbid the sale of intoxicating liquors.  16 Now, my lord, the point that I am making is that  17 all of the legislation and all of the executive acts  18 of the colony in reference to the Indian peoples,  19 confirmed the unity of intention at the time to  20 exercise absolute sovereignty over the lands and  21 resources of the colony inconsistent with any  22 conflicting interest.  And the particular emphasis  23 that I place here, after reading Mr. Walkem's report,  24 is that however one may agree or disagree with the  25 policy of assimilation that is referred to there, it  26 is one in which the object was to treat the Indian and  27 the white man as equal before the law, to protect the  28 Indian with respect to his settlement and the land for  29 which he -- which was necessary for his subsistence,  30 but that otherwise, he was a British subject and he  31 was treated as such.  32 I say in the exercise of the sovereignty that was  33 embodied by Douglas and by his successors, the  34 interests of the native peoples were protected and  35 given legal definition by the implementation of  36 Douglas policies.  The interest asserted by the  37 plaintiffs is inconsistent with that policy.  Such an  38 interest, except for the reserves -- I insert that --  39 was effectively extinguished, if it existed, by virtue  40 of that policy.  41 I again remind your lordship of the report of the  42 Select Committee on New Zealand, which was almost  43 contemporaneous with the foundation of the colony and  44 which distinctly negated any interest of the  45 aboriginal peoples in lands that they were not in  46 actual possession of.  47 Now, my lord, may I go to part VII. 27822  Submissions by Mr. Goldie        1  THE COURT: I was looking for the  reference to that Select  2 Committee.  3 MR. GOLDIE:  It's Exhibit 1251.  There is a tab number under  4 that.  5 THE COURT:  1251?  6 MR. GOLDIE:  1251.  And I believe that there are several  7 documents in that.  8 THE COURT:  It's 1843, isn't it?  9 MR. GOLDIE:  1844 and the instructions to the governor of New  10 Zealand or 1846.  11 Yes, Exhibit 1251- —  12 THE COURT:  Well, I just want the tab —  13 MR. GOLDIE:  I am just going to give you the tab numbers, my  14 lord, because there are ten tabs in that exhibit.  Tab  15 4, the instructions given by Lord John Russell to  16 Governor Hobson in 1840, and that's what led to the  17 Treaty of Witangi.  Then the despatch of the Secretary  18 the State for the colonies to the Governor of New  19 Zealand with enclosures, including the Royal  20 Instructions, are dated December 23, 1846, tab 5.  21 Now, I just want to -- I think, my lord, that  22 the -- there is another exhibit number which I will  23 have to give you that completes the reference to that  24 and I will —  25 THE COURT:  Maybe you can find it for me.  I am sure I can find  26 it from Exhibit 1251.  27 MR. GOLDIE:  No, I am afraid that the extracts of the Select  28 Committee's report is not in that page but I will get  29 that before we adjourn today.  30 I was going to go to eight, my lord.  31 Now, it will be recalled that at Part VII was  32 dealing largely with the period immediately prior to  33 1858, and the period up to from 1858 to 1871.  And  34 1871 of course, is a cut-off date because of British  35 Columbia joining the Confederation of Canada in July  36 of that year.  37 Now, introducing Part VII I say in the summary,  38 under the heading Effective Union With Canada,  39 paragraph 1, Douglas was succeeded as governor of  40 Vancouver Island by Arthur Kennedy who assumed office  41 in March of 1864.  Frederick Seymour succeeded Douglas  42 on the mainland.  He assumed office after Douglas met  43 the first mainland legislative council on January 21,  44 1864.  The report of Douglas's speech on that occasion  45 reflects the consistency of his policy of white  46 settlement together with protection of native  47 villages. 27823  Submissions by Mr. Goldie        1 And I refer -- has  your lordship now got the next  2 yellow binder?  3 THE COURT:   Have I?  4 MR. GOLDIE:  It's volume 18.  5 THE COURT:  Thank you.  6 MR. GOLDIE:  Before I go on, the reference to the Select  7 Committee is Exhibit 11- -- it's 1184-3, and in the  8 yellow books, if -- yes, it was attached to the  9 introduction which I handed up, my lord.  10 THE COURT:  All right.  So is in the text of your introduction?  11 MR. GOLDIE:  Pardon, my lord?  12 THE COURT:  It's in the text of the introduction?  13 MR. GOLDIE:  It's attached to the introduction.  14 Now, just to recapitulate, on the mainland colony  15 an order-in-council, an Imperial order-in-council, of  16 1863, provided for the introduction of an appointed  17 legislative council for that colony, which met for the  18 first time on January 21st, 1864.  And if your  19 lordship would look in the yellow binder under tab  20 VII-1-1, there is a report from the journals and the  21 first page lists the members of the council, one was  22 the Attorney-General, second, collector of customs,  23 and then there were four magistrates, the district  24 stipendiary magistrate and then a gentleman from New  25 Westminster, one from Douglas and Lilloet and the  26 other from Cariboo east.  And the opening address by  27 Sir James Douglas recites the nature of the proceeding  28 when he says:  29  30 "I have great pleasure in meeting the  31 Legislative Council of British Columbia,  32 assembled this day for the first time, by  33 authority of Her Majesty's Order in Council,  34 dated at the Court of Windsor, on the 11th day  35 of June, 1863; and I offer you, and the people  36 of the colony at large, my sincere  37 congratulations on this event, the first step  38 towards a perfect form of representative  39 government and the establishment of those  40 popular institutions which we all revere as our  41 birth-right and inheritance; and which Her  42 Majesty's Government saw fit to withhold in the  43 infancy of the Colony, only from a sincere  44 regard for its happiness and prosperity."  45  46 And your lordship has already heard me on the  47 effect of withholding.  Then over the page, he is 27824  Submissions by Mr. Goldie        1 reporting on the state  of the colony and where the  2 side bar is, he says, and I quote:  3  4 "The state of the colony in other respects  5 exhibits favourable prosperity, as may be  6 inferred from the progress of settlement, the  7 increasing exports of gold and a large increase  8 of the public revenue for the past year.  9 I have thought it incumbent on my  10 government to pursue, as fixed policy, a course  11 that would tend to increase of population and  12 encourage the settlement of the waste lands of  13 the Crown, which are now unproductive alike to  14 the sovereign and to the people."  15  16 I pause there and say, my lord, that those waste  17 lands of the Crown are those which my friends say are  18 subject to the ownership and jurisdiction of their  19 clients.  2 0 Then I go down two paragraphs:  21  22 "I am glad to inform you, gentlemen, that the  23 Country continues to enjoy uninterupted peace  24 and tranquility.  25 The native Indian tribes are quiet and well  26 disposed; the plan of forming Reserves of Land  27 embracing the Village Sites, cultivated fields,  28 and favourite places of resort of the several  29 tribes, and thus securing them against the  30 encroachment of Settlers, and for ever removing  31 the fertile cause of agragian disturbance, has  32 been  productive of the happiest effects on the  33 minds of the Natives.  The areas thus partially  34 defined and set apart, in no case exceed the  35 proportion of ten acres for each family  36 concerned, and are to be held as the joint and  37 common property of the several tribes, being  38 intended for their exclusive use and benefit,  39 and especially as a provision for the aged, the  40 helpless and the infirm.  The Indians  41 themselves have no power to sell or alienate  42 these lands, as Title will continue in the  43 Crown, and be hereafter conveyed to Trustees,  44 and by that means secured to the several Tribes  45 as a perpetual possession.  46 That measure is not however intended to  47 interfere with the private rights of 27825  Submissions by Mr. Goldie 1                   individuals of  the Native Tribes, or to  2 incapacitate them, as such, from holding land;  3 on the contrary, they have precisely the same  4 rights of acquiring and possessing land in  5 their individual capacity, either by purchase  6 or by occupation under the Preemption Law, as  7 other classes of Her Majesty's subjects;  8 provided they in all respects comply with the  9 legal conditions of tenure by which land is  10 held in this Colony.  11 I have been influenced in taking these  12 steps by the desire of averting evils pregnant  13 with danger to the peace and safety of the  14 Colony, and of confirming by those acts of  15 justice and humanity, the fidelity and  16 attachment of the Native Tribes to Her  17 Majesty's rule."  18  19 Now I point out, my lord, that later on, as we have  20 seen, their unqualified right of preemption was  21 curtailed for fear of speculators taking advantage of  22 them.  But that doesn't affect the policy.  23 And I say that that speech reflects the consistency  24 of his policy of "white settlement together with  25 protection of native villages and the cultivated  26 fields and favoured places of resort", whatever that  27 may be.  28 The union of the two colonies, despite the refusal  29 of the British government to fund purchases from  30 native tribes on Vancouver Island, and that, my lord,  31 refers to the circumstance which arose on Vancouver  32 Island when the legislature there petitioned the  33 governor to seek funds from the United Kingdom to  34 extinguish title of the Cowichan.  And I say, and that  35 was refused by the British government, who said it's a  36 purely local matter.  37 The effect of that appears to have resulted in  38 Douglas dealing with the native peoples without  39 payment of any compensation and without any so-called  40 treaties of purchase.  And that appears from the fact  41 that -- if I may just turn to two, tab 2, this --  42 under that tab is a typescript of Newcastle's despatch  43 to Douglas of October 19th, 1861.  He says:  44  45 "I have had under my consideration your  46 despatch No. 24 of the 25th of March last,  47 transmitting an address from the House of 27826  Submissions by Mr. Goldie        1 Assembly at  Vancouver Island in which they pray  2 for the assistance of Her Majesty's government  3 in extinguishing the Indian title to the public  4 lands in the Colony and set forth the evils  5 that may result from a neglect of this  6 precaution.  I am fully sensible of purchasing  7 without loss of time the native title to the  8 soil of Vancouver Island:  but the acquisition  9 of the title is purely Colonial Interest and  10 the Legislature must not entertain any  11 expectation that the British Taxpayer will be  12 burthened to supply the funds or British Credit  13 pledged for the purpose."  14  15 Then he says:  16  17 "I would earnestly recommend therefore to the  18 House of Assembly that they should enable you  19 to procure the requisite means."  20  21 But if they don't think proper to do so, the home  22 government would not supply the local people.  23 Now that put a stop -- I shouldn't say it put a  24 stop, because as far as we can ascertain, no purchase  25 agreement was entered into after 1854.  But that  26 didn't prevent Douglas from continuing to follow a  27 policy which he had initiated in the mainland, dealing  28 with the native tribes by setting aside reserves  29 without any treaty or the payment of any compensation.  30 And I say at page 2 that this serves to emphasize  31 that the policies regarding Indians in the two  32 colonies were distinctly different.  I say, upon union  33 of the two colonies in 1866 these differences tended  34 to disappear.  In the submission of the defendant what  35 happened on Vancouver Island is of little direct  36 relevance to the issues in the case at bar.  The  37 policies of the united colony appear to be those of  38 the mainland and I say -- I interject this -- this is  39 to be expected as the existing government  40 administration of the mainland simply took over  41 Vancouver Island and the legislature there just  42 disappeared.  43 Certainly by 1871, the policy of the united colony  44 largely conformed to that on the mainland.  And the  45 description given it in Trutch's memorandum to  46 Governor Musgrave, enclosed with the latter's despatch  47 to Granville of January 29, 1870, was considered by 27827  Submissions by Mr. Goldie        1 Walkem in 1875 as  confirmatory of his own views.  2 Now, my lord, that takes us back to --  3 THE COURT:  You read that just a moment ago.  4 MR. GOLDIE:  Yes, it takes us back to that report that Walkem  5 prepared.  6 THE COURT:  That's in the other volume?  7 MR. GOLDIE:  Yes.  But I think I have it in part in this volume  8 also and it's under tab 1-6.  9 Well, this is an addendum, now it's one    10 THE COURT:  This isn't in the other volume, this page 11?  11 MR. GOLDIE:  No, that's correct.  12 THE COURT:  Tabs two and three of the other volume.  13 MR. GOLDIE:  If I can just go to tab 1-5, and — well, the first  14 one is Granville sending to Musgrave the letter from  15 the Aborigines Protection Society, which enclosed  16 Sebright Green's letter in which he questioned the  17 policies and the acts of the Colonial Government and  18 makes particular reference to the fact that "...the  19 Indians were promised remuneration in money or  20 blankets for land which was taken from them.  A  21 reserve was set apart and every sort of assistance and  22 protection was promised but they have never been paid  23 for their land, their reserve has not been kept  24 intact."  25 Those words I am quoting from Sebright Green's  26 letter, which is printed and which is attached, forms  27 an attachment to the letter of the Aborigines  28 Protection Society to Lord Granville transmitted to  2 9 Musgrave.  30 Then under the next divider sheet, page seven is,  31 of course, Musgrave to Granville enclosing Trutch's  32 despatch of 1870 -- Trutch's memorandum replying to  33 Sebright Green, and this, my lord, forms an appendix  34 to Walkem's report.  In other words, he, in his  35 report, says:  36  37 "I find that Musgrave's despatch and Trutch's  38 memorandum of 1870 to be confirmatory of my own  3 9 views."  40  41 And he attaches them.  And your lordship has had  42 read to you substantial parts of Trutch's letter, but  43 I point out that the main part of that letter is  44 primarily taken up with allegations other than the  45 question of title.  Yes, page 11 of the sequence of  46 documents numbered tab number, is page four of  47 Walkem's report from Exhibit 1182, and he says: the  27828  Submissions by Mr. Goldie        1 "Since writing  ii  In which he describes the colonial system --  THE COURT:  I am sorry, on page 11?  MR. GOLDIE:  It's page 11 in the lower right hand corner, it's  page four of Walkem's report.  Now, I had taken your lordship briefly through  pages two and three.  This is page four and this is  what he says:  "Since writing the above, the undersigned has  fortunately obtained a copy of a despatch,  addressed in 1870 by the governor of British  Columbia to the Secretary of State for the  colonies, respecting the Colonial Indian  Policy. [Appendix B]  This document strongly  and ably bears out many of the views and  opinions above expressed.  Such is but an imperfect sketch of the  Colonial Indian Policy which was founded in  1858 and determined in 1871.  It was based on  the broad and experimental principle of  treating the Indian as a fellow subject."  My lord, I have read that part in my introduction  to my submission.  THE COURT:  It's time we adjourn, Mr. Goldie, is this a  convenient place?  MR. GOLDIE:  Yes.  We are returning this evening, are we?  THE COURT:  Yes, at seven.  All right.  Thank you.  (Proceedings adjourned until 7 o'clock p.m.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  above  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  Wilf Roy  Official Reporter 27829  Submissions by Mr. Goldie        1 (PROCEEDINGS RESUMED  PURSUANT TO DINNER RECESS)  2  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  My lord, before I continue with Part VIII there are  5 two things I wish to deal with.  Firstly, the question  6 of what Mr. Justice Begbie did in 1886 in the  7 application that came on before him that dealt with or  8 raised the issue of Metlakatla.  My lord, I have gone  9 back to look at the documents and I'm going to hand up  10 a set with a statement that, in my submission, Ms.  11 Mandell and I are both right, but she to a larger  12 extent than I am.  13 THE COURT:  All right.  14 MR. GOLDIE:  I'll explain that.  The typescript that your  15 lordship sees on the first page which begins with the  16 words "Note:  The following entry".  17 THE COURT:  Yes.  18 MR. GOLDIE:  That was prepared by Dr. Lane.  And what followed  19 from that is two pages further on beginning with the  20 words "I then proceeded to lament the promulgation".  21 THE COURT:  Yes.  22 MR. GOLDIE:  Now, that was what was put in by Dr. Lane in her  23 evidence in chief.  In cross-examination her attention  24 was drawn to that part of the benchbook in which  25 the -- which is set out in the two pages immediately  26 following her introductory note.  27 THE COURT:  M'hm.  28 MR. GOLDIE:  And that starts with Wednesday 27 October, 1886.  2 9 THE COURT:  I haven't found Wednesday yet.  I've got —  30 MR. GOLDIE:  It should be the first — the second page.  31 THE COURT:  Yes.  I have that.  32 MR. GOLDIE:  Now, my lord, the -- there should be accompanying  33 it a photocopy of the benchbook itself.  34 THE COURT:  Yes.  35 MR. GOLDIE:  The long pages.  3 6 THE COURT:  Yes.  37 MR. GOLDIE:  And I won't endeavor to take your lordship through,  38 but the the typescripts, I'm satisfied, are reasonably  39 accurate.  Now, what I was -- had caught my eye was in  40 the -- in the first day -- this took place over a  41 period of two days.  42 THE COURT:  Yes.  43 MR. GOLDIE:  And the first day is Wednesday 27th of October, the  44 case is Attorney General v Tait and others, and it is  45 a relator action.  As your lordship will see the  46 applicant being a Reverend Charles Nash.  And he goes  47 on to, in an abbreviated fashion, to state that there 27830  Submissions by Mr. Goldie 1            is a two acre trust.  2  3 "Two acres held in trust for the Missionary  4 Society.  Duncan not now a society man.  This  5 trespass greatly inconveniences Bishop Ridley".  6  7 And there's a building referred to.  8  9 "Bishop of Caledonia represents Church  10 Missionary Society.  Defendants are all  11 Indians.  No means.  Do nothing but by advice  12 and sanction of Mr. Duncan.  13  14 Mr. Drake asked for an injunction against  15 permitting the continuance of the trespass.  16 The steamer returns immediately.  17  18 The Court.  Mr. Duncan is reported to be in  19 Victoria.  Why not serve him with notice of  20 your application?  21  22 Answer.  He's not defendant's agent, but their  23 guide philospher.  24  25 It was found that the steamer didn't sail until  26 the next -- until Friday p.m..  Therefore stood  27 over until tomorrow, Thursday noon, in order  28 that Mr. Duncan may appear or instruct counsel  29 for defendants if he thinks fit.  30  31 The next day, Thursday, Mr. Drake renewed his  32 application.  33  34 Senator MacDonald and Mr. Duncan were present  35 but offered no observations.  36  37 Mr. Davie appeared for Mr. Duncan.  38  39 I:  Mr. Duncan is no party to the action and no  40 person can appear for him.  He cannot be heard  41 except as a witness.  Acting on common  42 knowledge and indeed on what is stated in an  43 affidavit I directed yesterday that this  44 application should stand over and that he  45 should be notified.  I thought it possible that  46 someone might be charitable enough to instruct  47 counsel for these poor savages.  I do not think 27831  Submissions by Mr. Goldie        1 it would come  within the mischief of  2 maintenance."  3  4 And then he goes on to say:  5  6 "The formal nature of the action being  7 apparently sufficient:  The land being  8 unsurveyed, informations technical, extinct and  9 C.B. Nash a resident in the house and premises  10 encroached upon and the nuisance prima facie  11 clear.  The scope also of all injunctions being  12 now widened I intimated that I did not see why  13 the application should not be granted, but  14 suggested that litigation might cease or be  15 suspended or at least that no adverse order at  16 least now be made.  If any trustworthy person  17 could be found to undertake that the  18 objectionable building should be removed.  19  20 Silence, however.  21  22 I then proceeded to lament the promulgation in  23 the morning paper."  24  25 Now, that brings us to the -- to the part that Dr.  26 Lane put in.  2 7  THE COURT:  Yes.  28 MR. GOLDIE:  And which contains the colloquy between counsel and  29 the bench in which Mr. Justice Begbie referred to St.  30 Catherine's Milling, and so on and so forth.  But it  31 concludes, and this is -- this is so from the  32 benchbook, it concludes on the last page by simply  33 tailing off.  He said:  34  35 "I assume that the right of a civilized  36 power -- England, France, the U.S. -- to occupy  37 and settle in a country utterly barbarous,  38 inhabitedonly by a sparse population of  39 separate petty tribes more or less nomadic  40 without any approach to any formal government,  41 will not be disputed."  42  43 Now, I agree with my friend that there is no  44 evidence on the basis of the benchbooks that any order  45 was made.  As I said, what had caught my eye was the  46 statement of his lordship that the injunction -- he  47 intimated that "I did not see why the application 27832  Submissions by Mr. Goldie        1 should not be granted".  But my friend, I think, wins  2 on points.  I can find nothing to indicate that the  3 injunction was in fact granted.  4 THE COURT:  M'hm.  All right.  5 MR. GOLDIE:  I'm not saying that it wasn't, or I'm not saying  6 that the application wasn't adjourned sine die or some  7 other disposition made.  Uncharacteristically the  8 benchbook, as I say, just tails off.  9 My lord, I don't know whether your lordship wishes  10 to put this in your book.  11 THE COURT:  Yes.  12 MR. GOLDIE:  My summary that is.  13 THE COURT:  Do you remember where it was?  14 MR. GOLDIE:  The discussion arose in respect of paragraph 28 on  15 page 19 of Section VII, part 5(c).  And it was an  16 interjection of mine in which I said that the  17 conclusion must be that which had been reached by Mr.  18 Justice Begbie in the 1886 application.  19 THE COURT:  That was at page -- what page did you say?  20 MR. GOLDIE:  I suggested page 19, my lord, of Part VII, 5(c).  I  21 think it was in regard to an observation of mine with  22 respect to paragraph 28.  23 THE COURT:  All right.  So then it should be — oh, it goes in  24 the other book.  25 MR. GOLDIE:  Oh, I see, your lordship is going to put it in the  26 yellow book.  Fine.  27 THE COURT:  Yes.  On second thought I think maybe it will go  28 better here.  29 MR. GOLDIE:  All right.  One of the benefits of a looseleaf.  30 THE COURT:  All right.  Thank you.  31 MR. GOLDIE:  The other thing that I should have said when I came  32 to the end of Part VII was, as I said when I came to  33 the end of Part V, it had been my intention to make a  34 submission summing up the matters referred to and  35 endeavouring to put them in context.  36 THE COURT:  What, after paragraph 50?  37 MR. GOLDIE:  Yes.  That's what I had intended to do, and I am  38 deferring that in the interests of time with the  39 intention of providing something which may be in  40 writing on June the 11th.  41 THE COURT:  All right.  42 MR. GOLDIE:  Now, turning to —  43 THE COURT:  I think we're on page three, aren't you?  44 MR. GOLDIE:  Yes.  I believe so, my lord.  45 I was dealing in this part with the events after  46 1871, and I had chosen to introduce that by referring  47 to a review of the colonial policy as set out in Mr. 27833  Submissions by Mr. Goldie 1            Walkem's memorandum  which was adopted by the British  2 Columbia Executive Council in 1875.  And after doing  3 so at paragraph 6 on page three I was going to state,  4 and I do state now, that it is submitted that Mr.  5 Trutch's statement in his memorandum to Musgrave, and  6 we are dealing here with the document under tab 1-6,  7 which is Musgrave's memorandum to -- I'm sorry --  8 Trutch's memorandum to Musgrave in late 1870.  And I  9 am quoting from the one, two, three, fourth paragraph  10 on the page under -- in the yellow binder.  11 THE COURT:  I'm a little confused with these documents when I've  12 only got a page 11.  What is this document again?  13 MR. GOLDIE:  This is the document that -- the memorandum that  14 Mr. Trutch wrote to the Governor to provide him with a  15 reply to a letter from the Aboriginal Protection  16 Society, and that letter is under tab 1-5.  17 THE COURT:  All right.  Thank you.  18 MR. GOLDIE:  And the letter charged the Government of British  19 Columbia with a number of shortcomings.  And if your  20 lordship would refer to that for a minute.  Under 1-5  21 is first the Colonial Secretary's letter of  22 transmission to Musgrave, then the Aboriginal  23 Protection Society's letter of the 3rd of November,  24 1869 transmitting Sebright Green's letter of June  25 1869.  And Green says that he had been a settler in  26 the Cowichan country, and that the Colony had no  27 Indian policy whatsoever.  That the Cowichan Indians  28 were owed money because they had not been paid  29 compensation for lands, and that their reserve had not  30 been kept intact.  31 Now, in part when Trutch prepared his answer he  32 said -- and I have as your lordship has stated only  33 extracted that part of the answer to which I have  34 reference.  But in answer to at least part of Sebright  35 Green's questions he said, and I'm quoting from  36 paragraph 6 of my memorandum.  37  38 "But the title of the Indians in the fee of the  39 public lands, or of any portion thereof, has  40 never been acknowledged by Government, but, on  41 the contrary, is distinctly denied ... these  42 claims (of possession) have been held to have  43 been fully satisfied ... by securing to each  44 tribe ... the use of sufficient tracts of lands  45 for their wants for agricultural and pastoral  46 purposes ..."  47 27834  Submissions by Mr. Goldie        1 And I say that is a  reasonable synopsis of the  2 policy formulated by Douglas on the Mainland as  3 executed in colonial legislation and executive acts to  4 the time British Columbia joined Canada on July 20,  5 1871.  6 THE COURT:  But did Mr. Rush not point out in some other letter  7 three weeks earlier where Trutch said the opposite?  8 MR. GOLDIE:  He purported to say the opposite with respect to  9 the Cowichan.  That was one of the things that I  10 intend to deal with in my answer, and which I will  11 deal with --  12 THE COURT:  All right.  13 MR. GOLDIE:  -- In the way I have referred to, but I'm going to  14 deal with the proposition that Trutch was misleading  15 the Governor and that this letter is false.  Those  16 were the submissions that were made.  Basically it  17 really doesn't matter what Trutch said.  He's an  18 official.  He is not a position -- in a position to  19 speak of the policy of the -- of the -- of the Colony.  20 That is something which is reserved to the Governor or  21 to the Secretary of State for the Colonies in London,  22 the Imperial policy.  23 Now, dealing with the Terms of Union.  The events  24 leading up to union are dealt with in detail in  25 Section 1 of the counterclaim, which is part ten.  26 The purpose of this section is to review the  27 relevant Terms of Union in light of the then known  28 circumstances and to refer briefly to the consequences  29 of British Columbia joining confederation under the  30 terms of the then British North America Act.  The 1867  31 Act.  32 Granville's despatch to Musgrave of August 14th,  33 1869, which is found under tab 10, my lord, stated the  34 intention of the United Kingdom to encourage the  35 incorporation of British Columbia in Canada.  The same  36 despatch, pages 330-331, those are the stamped page  37 numbers, and it is to the last two pages that it  38 refers, withdrew from the purview of the local  39 legislature the two questions of Indians and the  40 future position of senior officials in the public  41 service of the Colony.  And I say that emerges very  42 clearly from the -- from the despatch itself.  43 And I'll read the last paragraph on page 330 and the  44 balance on page 331.  45  46 "It will not escape ..."  47 27835  Submissions by Mr. Goldie        1  THE COURT:  Yes.  2 MR. GOLDIE:  Something.  "It will not escape" and I can't make  3 out that word.  4  5 "... you that in acquainting you with the  6 general views of the Government I have avoided  7 all matters of detail on which the wishes of  8 the people and the legislature will, of course,  9 be declared in due time.  I think it necessary,  10 however, to observe that the Constitution of  11 British Columbia will oblige the Governor to  12 enter personally upon many questions as the  13 condition of Indian tribes and the future  14 position of Government servants with which in  15 the case of a negotiation between two  16 responsible Governments he would not be bound  17 to concern himself."  18  19 That despatch was published, and Musgrave's  20 acknowledgement communicated directly by the latter to  21 the Governor General of Canada who, of course, made it  22 known to his responsible advisors the Canadian  23 Cabinet.  And I refer under that same tab to the  24 second document which is page 12 in the sequence on  25 the lower right-hand corner, and Musgrave said, and  26 this is to Sir John --  2 7  THE COURT:  Young.  28  MR. GOLDIE:  — Young.  29  30 "I have been acquainted by the Secretary of  31 State that His Lordship had communicated to you  32 his despatch British Columbia '84 the 14th of  33 August.  I now forward to Your Excellency a  34 copy of my reply as the best means of conveying  35 to you my present impressions as to the state  36 of the question of something in this Colony.  I  37 should be glad to be informed confidentially --  38 advised confidentially with Your Excellency's  39 views on the points which I have mentioned as  40 likely to present difficulty in arrangements."  41  42 And then we go on.  The channel of communication  43 was maintained.  Musgrave's despatch of February 20th,  44 1870.  These tab numbers in the text of my summary, my  45 lord, are a little misleading.  Again, they refer to  46 the tabs in the exhibit.  All of the documents  47 referred to in this paragraph are under the single tab 27836  II/1-10  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  Submissions by Mr. Goldie        1 in the yellow binder of  And I needn't read  these.  But Musgrave's despatch of February 20th, 1870  which makes express reference to the omission of any  reference to Indians in the resolution he drafted for  submission to the Legislative Council and to the  significance of Head 24 of Section 91 of the '67 Act.  And, my lord, there is a typescript of that at  page 50 of the documents under this tab in the yellow  binder which makes it easier for me to read.  It's  Musgrave to the Governor General, British Columbia,  20th February, 1870.  He sends to Sir John Young:  "... a copy of the message which I caused the  Legislative Council to be opened on the 15th  instant, and of a Resolution which the  Government will introduce, embodying the terms  in which it is recommended that this Colony  should propose to join the Dominion of Canada."  And then turning to paragraph 9 on the next page  he says:  "In Lord Granville's Despatch, No. 84, of 14th  August, which was communicated to Your  Excellency, he mentioned the condition of the  Indian tribes as among those questions upon  which the constitution of British Columbia will  oblige the Governor to enter personally.  I  have, purposely, omitted any reference to this  subject in the terms proposed to the  Legislative Council.  Any arrangement which may  be regarded as proper by her Majesty's  Government can, I think, best be settled by the  Secretary of State, or by me, under his  direction, with the Government of Canada.  But  'Indians,' and 'Lands reserved for Indians,'  form the twenty-fourth of the classes of  subjects named in the seventy-first Section of  the Union, which are expressly reserved to the  Legislative authority to the Parliament of the  Dominion."  Now, my lord, my submission on that is that he  identifies the proper chain of command or chain of  communication for matters relating to Indians as  between the Secretary of State or by him under the 27837  Submissions by Mr. Goldie        1 direction of the  Secretary of State with the  2 Government of Canada.  In other words, I say it takes  3 it out of the local zone of influence altogether.  4 He then goes on, however, to note that the  5 question of Indians and lands reserved for Indians  6 have been expressly referred to in the 1867 Act and  7 are therefore matters that are already in whole  8 exclusively conferred upon the Dominion.  So that with  9 confederation there will be no scope for any action on  10 the part of British Columbia.  11 Paragraph 11 of my summary.  Musgrave gave Trutch,  12 one of the three delegates who went to Ottawa to  13 negotiate the Terms of Union, a memorandum dealing  14 with Indians and colonial officials.  He instructed  15 Trutch to give a copy to Sir John A. Macdonald.  The  16 original was subsequently delivered by Trutch to the  17 then colonial secretary, the Earl of Kimberley.  In it  18 Musgrave noted that as administration of all affairs  19 relating to the Indians would rest with the Dominion  20 it was important that the seven stipendiary  21 magistrates who effectively carried out the colonial  22 policy should be Dominion officers.  He emphasized the  23 difference between the Indians of British Columbia and  24 those of Canada; the loyalty of the former and the  25 importance of avoiding any change of policy which  26 might cause them to lose confidence in the protection  27 afforded them.  28 That document is under tab 11, and the particular  29 references are identified by the pages in the upper  30 right-hand corner.  I might say that a substantial  31 part of the document is taken up with what is to  32 happen to the colonial officials who were appointed  33 from London and paid by London in the event of the  34 change of administration.  But with respect to the  35 Indians the page numbers are those which I have given  36 and they touch the topics that I refer to.  37 Now, the point I say in paragraph 12 of my summary  38 is two things should be noted here:  (a)  The matters  39 which the British Government instructed Musgrave to  40 keep in his own hands and in respect of which he  41 required the approval of the colonial office were  42 pensions and Indians.  And these were dealt with in  43 Terms 6 and 13 of the Terms of Union.  The references  44 to these two matters in Helmcken's Diary are pages 356  45 and 357.  46 Helmcken's Diary, my lord, is described under tab  47 12.  I shouldn't say described.  It is -- well, it is 27838  Submissions by Mr. Goldie        1 described in this sense  that it is a document which  2 came to light late in the day.  It constitutes the  3 only contemporaneous record of the transactions  4 between the British Columbia delegation and the  5 Dominion.  There were no records kept, at least that  6 have survived.  And the commissioners -- I'm sorry --  7 everybody was sworn to secrecy and this was what  8 effectively sealed everybody's lips with the exception  9 of Dr. Helmcken's diary which had been put away and  10 wasn't discovered until very late -- comparatively  11 late and after his death.  12 THE COURT:  I didn't know that Dr. Helmcken was Douglas'  13 son-in-law.  14 MR. GOLDIE:  Yes.  15 THE COURT:  His great grandson told me that the other night.  16 MR. GOLDIE:  Well, I wondered if it was referred to here.  I  17 thought perhaps that -- Helmcken was seen by Musgrave  18 as a very influential person.  He was  19 anti-confederation.  And Musgrave felt that if he  20 could bring him around then he would have a great  21 influence in the Colony.  He's described in this  22 appendix to the book that -- in which the diary is  23 published.  24  25 "On May 10th, 1870 a delegation of unusual  26 importance left Victoria for San Francisco, en  27 route to Ottaws.  It was composed of three of  28 the leaders of the political life of the colony  29 of British Columbia:  The Honourable J.W.  30 Trutch, Chief Commissioner, the Honorable  31 R.W.W. Carrall and the Honorable J.S. Helmcken,  32 elected members of the Legislative Council for  33 Cariboo and Victoria City, respectively."  34  35 Then the next page is an actual page of the diary.  36 And at the bottom of the page Helmcken writes this:  37  38 "With regard to Pensions."  39  4 0 And then the footnote 2:  41  42 "Under the terms proposed by British Columbia,  43 pensions were to be provided for those  44 executive officials of the colony whose  45 services were dispensed with as a result of  46 confederation.  The inclusion of this clause  47 had influenced not a little the change in 27839  Submissions by Mr. Goldie        1 attitude towards  the question of  2 confederation."  3  4 Continuing with the diary entry:  5  6 "The resolution was agreed to, but the ministry  7 said they meant to make such arrangements as  8 would suit and be agreed to by Governor  9 Musgrave."  10  11 The ministry being the federal people.  12  13 "Perhaps give them appointments or get  14 appointments for them from Her Majesty's  15 Government.  With regard to Attorney General,  16 the Honorable H.P.P. Crease, he might be made a  17 judge and thus settle the question of the court  18 of appeal and an official at once.  Pensions  19 they did not like to go before Parliament with,  20 they did not like them and were afraid of them.  21 As few officials as possible would be  22 interfered with."  23  24 And then over the page the third paragraph:  25  26 "The clause about Indians was very fully  27 discussed.  The Ministers thought our system  28 better than theirs in some respects, but what  29 system would be adopted remained for the future  30 to determine.  I asked about Indian Wars and  31 Sir G. Cartier said that it depended upon the  32 severity, as a rule the expense would have to  33 be borne by the Dominion Government."  34  35 The second point I note is that the Secretary of  36 State for the colonies was to settle disputes under  37 Term 13.  It is my submission, my lord, that it is  38 axiomatic that the acceptance of this role would have  39 been secured before the constitutional processes for  40 the implementation of the Terms of Union would be put  41 in motion.  42 Given Musgrave's statement that matters relating  43 to Indians would be settled by the Secretary of State  44 for the colonies and Canada directly or through him  45 taking instructions from the Secretary of State, it  46 appears clear, in my submission, that a provision  47 which required the Secretary of State to intervene in 27840  Submissions by Mr. Goldie        1 the event of disputes  would certainly have to be --  2 have cleared with him, if not initiated by him.  3 The Terms of Union, as settled before the Ottawa  4 conference, differed from those proposed by B.C.  5 primarily in respect of a federal undertaking to build  6 a railway in substitution for a promise to build a  7 coach road.  8 Now, the proposed Terms of Union under tab 13 are  9 those which were adopted by the provincial or the  10 colonial legislative assembly.  And the important term  11 is with respect to communication with Canada was Term  12 8.  13  14 "Inasmuch as no real Union can subsist between  15 this Colony and Canada without the speedy  16 establishment of communication across the Rocky  17 Mountains by Coach Road and Railway, The  18 Dominion shall within three years from the date  19 of Union, construct and open for traffic such  20 Coach Road from some point on the line of the  21 Main Trunk Road of this Colony to Fort Garry,  22 of similar character to the said Main Trunk  23 Road; and shall further engage to use all means  24 in her power to complete such Railway  25 communications at the earliest practicable  26 date, and that Surveys to determine the proper  27 line for such Railways shall be at once  2 8 commenced."  29  30 Now, in his letter to Trutch of July, and it  31 should be 28th, my lord, Musgrave referred to a number  32 of matters:  The railway, the tariff, et cetera.  33 There is no mention of the Indian clause.  And that is  34 found in the typescript of Musgrave's letter of the  35 28th of July, 1870 which is page 13 under this tab  36 number.  And he writes:  37  38 "My dear Trutch  39 I did not write to you from San Francisco as I  40 really had nothing then to add to what I  41 expressed in the telegram."  42  43 THE COURT:  I'm sorry.  Where is this?  44 MR. GOLDIE:  It's page 13, my lord.  I'm sorry.  Page three  45 under tab 13.  4 6  THE COURT:  All right.  Oh, yes.  Thank you.  47  MR. GOLDIE:  As will become apparent Musgrave was in San 27841  Submissions by Mr. Goldie 1            Francisco at the time  the negotiations were going on,  2 and what is of great interest to historians is the  3 fact that he was in telegraphic communication with the  4 delegation.  None of these telegrams have survived.  5 But what he says on the 28th in his letter to Trutch  6 is he:  7  8 "Really had nothing then to add to what I  9 expressed in the telegram.  That is to say I  10 was much pleased at the progress you were  11 making in the negotiations as reported in your  12 letter of 9th June, and as I was then otherwise  13 personally occupied I waited until I should  14 receive further particulars from you on my  15 return here.  I duly received your second  16 letter the 26th June and was quite satisfied  17 with its contents, but I was not able to write  18 by the return mail and indeed preferred to  19 postpone my letter until I had seen Helmcken  20 then expected and got the final intelligence  21 from him.  Two days ago I got your last letter  22 and by the same opportunity received the Report  23 of the Privy Council formally from Sir John in  24 a despatch in which he conveys the assurance of  25 his Ministers that matters shall be arranged to  26 my satisfaction as regards the Pensions.  27  28 I must now say to you that I'm more than  29 pleased at the manner in which you performed  30 your Mission.  Helmcken gives you all the  31 credit and I have no doubt that you deserve it.  32 The Terms are far better than I expected to  33 get - better, indeed, in some respects than  34 what we proposed; and the man must indeed be  35 unreasonable who does not admit that Union on  36 such terms must be greatly to our advantage.  I  37 admit that I am astonished at their facing the  38 Railway so boldly.  I always thought that that  39 was at once the great point and the great  40 difficulty, and I wrote long ago to the  41 Secretary of State that if the Railway could be  42 promised scarcely anything else would be  43 allowed to be a difficulty."  44  45 And he goes on to talk about other things, but  46 there is no reference to the Indian terms, and in my  47 submission this confirms the fact that the Indian 27842  Submissions by Mr. Goldie        1 terms were matters  which Musgrave himself dealt with  2 through the agency of telegraphic communications.  3 Paragraph 15.  The destruction of the secret and  4 confidential despatches between Musgrave and the  5 colonial office makes it difficult to identify the  6 roles played in the negotiation of Term 13, but it is  7 clear that responsibility for its substance is that of  8 the Imperial Government.  9 That's my submission, my lord, on the basis of the  10 documents that we have.  11 THE COURT:  I'm sorry.  You mean the responsibility that the  12 Imperial Government persuaded Canada to accept these  13 terms?  14 MR. GOLDIE:  No.  I don't say that it persuaded Canada to accept  15 the terms, but I say the ultimate responsibility was  16 with the Imperial Government.  And I say that because  17 of Musgrave's statement to Sir John Young that the  18 matter would have to be settled between Canada and the  19 Imperial Government directly, or through him on behalf  20 of the Secretary of State for the colonies.  And it  21 appears that Musgrave while he was in San Francisco  22 was in telegraphic communication not only with Ottawa,  23 his delegation, but I believe there is some evidence  24 that he was in telegraphic communication with London.  25 There was no direct telegraphic communication from  26 Victoria at this time, but there was from San  27 Francisco.  28 MS. MANDELL:  I rise because I'm not aware of any evidence of  29 telegraphic communication between Musgrave with  30 London.  I'm wondering whether my friend knows.  31 MR. GOLDIE:  I think — I think there the document that I have  32 in mind we are coming to.  33 THE COURT:  Just a moment, please.  Just a moment, please, Mr.  34 Goldie.  Change of reporters.  35  3 6 (REPORTER CHANGE)  37  38 I hereby certify the foregoing to  39 be a true and accurate transcript  40 of the proceedings transcribed to  41 the best of my skill and ability.  42  43  44  45  46 Peri McHale, Official Reporter,  47 UNITED REPORTING SERVICE LTD. 27843  Submissions by Mr. Goldie        1 (CHANGE OF  REPORTERS)  2  3 MR. GOLDIE:  I think I put it this way in my summary, my lord,  4 the question of Indian administration -- the question  5 of administration was settled by Head 2 of Section 916  6 of the 1867 Act.  By "settled", I mean it was already  7 an Imperial statute that it was federal responsibility  8 in its entirety.  The fact of telegraphic  9 communication between Musgrave and the B.C. delegation  10 has been established.  And I refer to Musgrave's  11 letter to Trutch of July 28th, 1870, and there's a  12 further reference that I'll come to, and I say that  13 communication between Musgrave and San Francisco and  14 London by telegraph can be assumed.  I think I have  15 another reference for that, and I'll give it when I  16 turn it up.  17 Continuing, Term 13 simply acknowledges the  18 transfer of London's role with respect to Indians to  19 Ottawa and imposes upon British Columbia only what  20 British Columbia was already doing.  The one novel  21 feature is the provision for the intervention of the  22 Secretary of State for the Colonies.  This means of  23 avoiding an impasse could only come from London.  I  24 say it is -- to explain that further, my lord, I say  25 it is inconceivable that the job of arbitrator would  2 6 have been fastened on the Imperial government without  27 its consent.  28 THE COURT:  Of course these terms are only the ones that had  29 been settled between the four original confederating  30 provinces, except for the provision for the  31 arbitration, were they not?  32 MR. GOLDIE:  No.  I don't think so, my lord.  The terms —  33 THE COURT:  Wasn't there some provision that Term 13 between  34 the —  35 MR. GOLDIE:  There's nothing comparable to Term 13 elsewhere.  36 There are some Statutes between Ontario and Canada.  37 THE COURT:  Right.  38 MR. GOLDIE:  And Quebec and Canada, but those were entered into  39 in consideration of the extension of the boundaries of  40 those two provinces and in consideration in that  41 Ontario and Quebec in Statutes side by side, I  42 don't -- when I say "side by side", I mean companion  43 Statutes of Canada, and the two provinces dealt with  44 the provision of reserves, but that was much later and  45 it was in consideration of the extension of the  46 boundaries of the provinces and were confined to the  47 extended portion.  There is nothing comparable to the 27844  Submissions by Mr. Goldie        1 Term 13 which was  operative within British Columbia as  2 it stood.  3 THE COURT:  How about 91(24)?  4 MR. GOLDIE:  91(24) was already there.  There's nothing in the  5 terms of union that even refers to 91(24), it was a  6 given, and that's what Musgrave meant when he pointed  7 out to the Governor-General, but the Indians and lands  8 reserve for Indians is a subject exclusively reserved  9 for Canada.  10 THE COURT:  So that part of it they could have just picked out  11 of the existing 1867 Act.  12 MR. GOLDIE:  It was there, it was overhanging them.  13 THE COURT:  You didn't have to negotiate it?  14 MR. GOLDIE:  Not a bit.  15 THE COURT:  All right.  16 MR. GOLDIE:  I say that what Term 13 meant was expressed by the  17 Dominion in 1888, and I'm here referring to the  18 Cornwall-Planta inquiry into the events at Metlakatla,  19 Cornwall being the Provincial appointee, Planta being  20 a Dominion appointee, who constituted a commission of  21 inquiry to have a look at Metlakatla and the problems  22 that were up there.  Mr. Planta pressed the Dominion  23 to respond to the demands of the Indians heard at the  24 Cornwall-Planta inquiry that the Government give them  25 an answer to the title claims.  Because at Metlakatla  26 the title business emerges.  The Dominion's response  27 emerges, and I'm referring to the documents under tab  28 15, my lord, which unfortunately the tab number is 5,  29 so it follows 13, so clearly it is 15 in the yellow  30 binder.  And Mr. Planta had said to the federal  31 government please respond to the Indians, who are  32 making statements with respect to their land rights,  33 and here is the letter that he -- that the Deputy  34 Superintendent of Indian Affairs, Mr. Vankoughet, the  35 Deputy Superintendent General of Indian Affairs wrote  36 to a Mr. Dewdney, who was the Superintendent-General  37 of Indian Affairs at that time, and he starts off:  38  39 "With reference to the letter of the 17th August  40 last from J.P. Planta, Esq., of Nanaimo, B.C.,  41 who was one of the commissioners sent last  42 autumn to hear the statements of the Indians on  43 the North-west Coast of British Columbia in  44 respect to the land and other rights claimed by  45 them, in which letter that gentleman intimates  46 that the Indians to whom the commissioners gave  47 audience on that occasion expect a reply from 27845  Submissions by Mr. Goldie        1 the Dominion  Government the undersigned begs to  2 state that, until receipt of the letter of Mr.  3 Planta on the 4th next - the same having been  4 enclosed in a letter from the Acting Indian  5 Superintendent at Victoria of the 28th August,  6 this department was not aware that the Indians  7 expected a reply from the Dominion government  8 in regard to the matters which engaged the  9 attention of the Commissioners, no intimation  10 of such being expected having been conveyed in  11 the report of Messrs. Cornwall (who was the  12 commissioner on behalf of the Dominion) and  13 Planta (who was the Provincial Commissioner)."  14  15 I had them switched, my lord:  16  17 The Commission was appointed at the instance of  18 the Government of British Columbia on account  19 of representations made by a delegation of  20 Indian Chiefs from the North-west Coast to  21 certain members of that Government, when the  22 said delegation was promised that a commission  23 of inquiry would be appointed and dispatched to  24 the Coast, and the Dominion Government was  25 subsequently requested to appoint a  26 Commissioner to represent it on the board.  The  27 report of the Commission is addressed to His  28 Honor the Lieutenant-Governor of British  29 Columbia.  A duplicate of the same was  30 forwarded by Mr. Cornwall to this department.  31 No communication has been received from the  32 Government of British Columbia in respect to  33 the matters referred to in the said report,  34 although the majority of them are matters for  35 consideration and adjustment by that  3 6 Government.  37 The matters which formed the subject of  38 complaint on the part of the Indians and of  39 inquiry on the part of the Commissioners appear  40 to have been:  41 (1)  The title of the Indians to all the  42 territory outside of the reserves alloted to  43 them by the Indian Reserve Commissioner.  44 (2)  The application the Indian Act to them,  45 (3)  The appointment of Indian agents having  46 supervision over the Indians and their  4 7 Reserves." 27846  Submissions by Mr. Goldie 1            And so on.  I'm not  going to read all of the  2 enumerated items, but he deals with them in turn.  But  3 before I get to that, on page 5 he says:  4  5 "Inasmuch as Mr. Planta, the Commissioner  6 appointed by the British Columbia Government,  7 has intimated that the Indians with whom the  8 Commissioners held meetings expect a reply from  9 the Dominion Government in regard to the  10 matters which formed the subjects of inquiry,  11 the undersigned respectfully recommends that a  12 reply be sent to the Indian Agent for the  13 locality, for communication to the Indians  14 concerned, on the various subjects above  15 referred, and to the effect -  16 1.  That, as regards the Indian title to the  17 territory outside of the reserves alotted to  18 them by the Indian Reserve Commissioner, the  19 Dominion Government does not propose to recede  20 from the agreement entered into with the  21 Government of British Columbia at the date of  22 the admission of that Province into the  23 Dominion of Canada under the British North  24 American Act.  Suitable reserves were to be  25 alotted to the various bands of Indians in  26 British Columbia, and the residue of the Public  27 Lands were handed over to the Provincial  28 government to be disposed of in such manner as  29 by that Government might be considered proper."  30  31 And then he goes on to deal with the other things  32 which were enumerated.  And that is signed by the  33 Deputy Superintendent of Indian Affairs.  34 Now, the effect of that --  35 THE COURT:  What's that name?  36 MR. GOLDIE:  Vankoughet, V-A-N-K-O-U-G-H-E-T, I believe.  37 THE COURT:  Mm-hmm.  38 MR. GOLDIE:  Now, the effect of that was a communication to the  39 Acting Indian Superintendent in Victoria the 23rd of  40 October, and it starts off:  41  42 "It having been represented to the Department  43 that the Indians of the North West Coast of  44 British Columbia, whose claims as to land and  45 other rights were investigated last Autumn by  46 Mssrs. Cornwall and Planta, Commissioners  47 appointed by the Dominion and Provincial 27847  Submissions by Mr. Goldie        1 Governments  respectively expected a reply from  2 the Dominion Government in regard to the  3 matters which formed the subjects of inquiry.  4 I'm directed by the Superintendent-General of  5 Indian Affairs to communicate to you for  6 permission to Mr. Acting Indian Agent Todd the  7 following statements, which are the replies of  8 this Department to the complaints of the  9 Indians, and to request you to ask Mr. Todd to  10 convey the same to the Indians interested as  11 soon as possible -  12 1.  As regards the Indian title to the  13 territory outside of the Reserves alotted to  14 them by the Indian Reserve Commissioners, the  15 Dominion Government does not propose to recede  16 from the agreement entered into with the  17 Government of British Columbia at the date of  18 the admission of that Province into the  19 Dominion of Canada under the British North  20 America Act, in accordance with which agreement  21 suitable Reserves were to be allotted the  22 various Bands of Indians in British Columbia,  23 and the residue of the public lands were to be  24 handed over to the Provincial Government to be  25 disposed of in such manner as by that  26 government might be considered proper.  27  2 8  THE COURT:  That's the same language as the previous one.  29 MR. GOLDIE:  Yes.  The first one was the memorandum from the  30 Deputy to his Ministers, and this one is after that.  31 And it is -- I don't have the signature page in it,  32 but it's Mr. Vankoughnet writing as the Deputy, but  33 clearly he had the approval of his senior.  But all I  34 say is that that is the view that was taken by the  35 Dominion at that time.  The letter is so written as I  36 say was to form the replies to the Indians' demand.  37 This statement made in 1888, after questions of title  38 had been raised in British Columbia by Lord Dufferin  39 and by a Mr. Duncan and his adherence states without  40 equivocation that the effect and meaning of Term 13  41 will be adhered to.  42 The terms of union are part of the Constitution of  43 Canada.  See item 4 to the schedule to the  44 Constitution Act.  If your lordship will correct that  45 reference.  It's not schedule 5, it's item 4 to the  46 schedule to the Constitution Act, and by virtue of  47 Section 52(1) are part of the supreme law of Canada. 27848  Submissions by Mr. Goldie        1 Any law therefore which  is inconsitent with the Terms  2 of Union is a nullity.  3 And I say it may be useful to quote the succinct  4 statement of Mr. E.L. Newcombe, then Deputy Minister  5 of Justice and later a Judge of the Supreme Court of  6 Canada, in his argument on behalf of Canada in The  7 Province of Ontario v. The Dominion of Canada 42  8 S.C.R. 1.  That's the "Annuities Case", my lord, when  9 the Dominion was seeking to fasten onto Ontario the  10 financial responsibility of the annuities which had  11 been promised the Indians beforehand, and in some  12 respects had been promised them by the Colonial  13 authorities in what was then the old Province of  14 Canada.  Mr. Newcombe, as counsel, stated, and I  15 quote:  16  17 "...It was not competent to Ontario to make a  18 treaty with the Indians or to obtain any  19 transfer or surrender from the Indians.  20 Neither has the Provincial Government the right  21 to require the Dominion upon any terms to  22 obtain a surrender or refrain from obtaining a  23 surrender.  The whole administration" --  24  25 That is to say of Indians and lands reserved for  26 Indians:  27  28 "...is exclusively in the hands of the Dominion  2 9 Government."  30  31 Now, in the "Annuities Case", which I think sometimes  32 the plaintiffs refer to as the "Royalties Case",  33 Canada's position rested upon dicta of Lord Watson in  34 St. Catherine's Milling.  The Judicial Committee found  35 that contention -- which the dicta in terms, my lord,  36 suggested that as Ontario had the benefit of the  37 surrender, it should pick up some of the burden.  That  38 was -- that was disposed of by the Judicial Committee  39 on the appeal in the "Annuities Case" on the basis of  40 the judgments of Mr. Justice Duff and Mr. Justice  41 Idington in the Supreme Court of Canada.  The former  42 speaking of the reason for extinguishing the Indian  43 interest in question by Treaty 3 said:  44  45 "This latter evidence clearly shows it was only  46 a means to an end.  It was deemed advisable to  47 provide a passage through this territory for 27849  Submissions by Mr. Goldie        1 immigrants into  the newly acquired North-west.  2 It was necessary if the obligations of the  3 Dominion undertaken in the terms of Union with  4 British Columbia were to be fulfilled to  5 arrange for the immediate commencement and  6 prosecution of the construction of a line of  7 railway between eastern Canada and that  8 province.  These were objects of Dominion  9 policy affecting the Dominion as a whole.  To  10 attain these objects it was necessary to induce  11 the Indians to abandon their pretensions to  12 occupy the whole territory in question to the  13 exclusion of Whites and to settle on more  14 limited reservations.  Upon this necessity the  15 Dominion acted, hence the treaty."  16  17 And Mr. justice Idington said --  18 THE COURT:  What treaty is he talking about there?  19 MR. GOLDIE:  Pardon me, my lord?  20 THE COURT:  Is that one of the numbered treaties?  21 MR. GOLDIE:  Yes, number 3.  22 THE COURT:  Thank you.  23 MR. GOLDIE:  And Mr. Justice Idington's view of the matter was  24 that:  25  26 "The Province of Manitoba was created out of  27 part of the new acquisition of territory.  A  28 rebellion broke out there.  It becomes  29 necessary to send troops through a long stretch  30 of wilderness forming part of the land in  31 question on which only Indians dwelt or over  32 which they roamed.  Many of those who had risen  33 in rebellion were partly of Indian blood.  It  34 was thus brought home to those who had to deal  35 with such a situation that the sooner these  36 Indians roaming over the lands looked upon by  37 them as their land and across which the troops  38 had been transported settled with the better  39 for Canada."  40  41 And concluded at page 117:  42  43 "The case as it presents itself to my mind is  44 that the Dominion was assigned by the 'British  45 North America Act', Section 911 subsection 24,  46 quoted above, the high, honourable and onerous  47 duties of the guardians of the many races of 27850  Submissions by Mr. Goldie        1 Indians then  within or that might at any future  2 time fall within the borders of Canada; that  3 these duties were to be discharged as occasion  4 called for, having in mind always the peace,  5 order and Good Government of Canada and, as  6 part and parcel thereof and not the least  7 factor in promoting all implied therein, the  8 due observance of those duties towards the  9 Indians, which the policy of the British Crown  10 had rendered of paramount importance; that the  11 discharging, in a statesmanlike way, when the  12 several occasions that I have recited called  13 for, these high duties of national importance  14 they were discharged all the better by being  15 freed from the trammels of being confined  16 within the narrow views that the Provincial  17 range of vision might have restricted action  18 to, if the needs and wishes of a single  19 province were to be considered, or even the  20 dominant factor used as a guide, perhaps to the  21 detriment of national interests; and that there  22 arose on the part of Ontario no contractual or  23 equitable obligation enforceable in a suit of  24 law to make good any moneys expended in the way  25 claimed.  Nay, more, I am unable to see how  26 short of express understanding there ever could  27 have arisen from the discharge by the Dominion  28 of its responsibilities under subsection 24 any  29 such legal liability on the part of any  30 province."  31  32 Now, that puts the responsibility of the Dominion with  33 respect to lands and lands reserved for the Indians in  34 a -- in the context of a national responsibility, and  35 even when the Province was a beneficiary thereof, it  36 was -- didn't lose that character.  The railway  37 undertaken to be built under Term 11 was of course in  38 the national interest, and if compensation was due  39 Indian peoples in respect of an aboriginal interest  40 outside reserve lands, the liability therefore would  41 have been the Dominion's.  42 I say in paragraph 21, in lands subject to the  43 Royal Proclamation the Indian interest in unceded  44 lands was held to fall within Section 109 as "... an  45 interest other than that" -- and if your lordship  46 would stroke out the words "the interest of", there's  47 a duplication of words there.  So it should read 27851  Submissions by Mr. Goldie        1 "...an Interest other  than that of the province in the  2 same..."  3 In British Columbia, Crown lands did not come  4 under the administration of the Province as a result  5 of Section 109.  As was said in the Precious Metals  6 case:  7  8 "The titling to the public lands of British  9 Columbia has all along been, and still is,  10                   vested in the Crown."  11  12 And we looked at that at some greater length, my lord,  13 in the -- this morning.  And perhaps I might make  14 reference to the -- I was going to make a reference to  15 the Offshore Mineral Rights case, my lord, and I'll do  16 that in a minute, but your lordship will find under  17 tab 23 a map of the Railway Belt.  Your lordship was  18 expressing some interest in knowing where the Railway  19 Belt was.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  And it is territory 20 miles on either side of the  22 proposed right of way.  Now, there were --  23 THE COURT:  It's through the Kicking Horse Canyon.  24 MR. GOLDIE:  Yes.  This is the true Railway Belt in the sense  25 that it was the one that was selected after the route  26 of the railroad had been determined.  And the Dominion  27 got the Peace River block in addition to compensate it  28 for alienations which had taken place within the  29 Railway Belt.  Now, I say in paragraph 23 --  30 THE COURT:  I think we'll take a short adjournment, Mr. Goldie,  31 please.  32 THE REGISTRAR:  Order in court.  33  34 (SHORT ADJOURNMENT TAKEN)  35  36 THE REGISTRAR:  Order in court.  37 MR. GOLDIE:  I say in paragraph 23 in 1883 British Columbia  38 transferred to Canada the Railway Belt, a strip of  39 land 20 miles wide on either side of the proposed  40 right of way, plus the Peace River block of three and  41 a half million acres.  This is briefly described in  42 the Precious Metals Case, pages 300 to 301.  And the  43 point of introducing the Railway Belt, my lord, is  44 that for a period of time the federal government had  45 full control over the lands of the Railway Belt, and  4 6 it will be shown that no attempt was made to  47 extinguish Indian title or to acknowledge Indian title 27852  Submissions by Mr. Goldie        1 in those lands before  they were handed back to the  2 Province.  3 Under tab 23 there is a Judicial Committee's  4 description of the situation that arose, and by way of  5 introduction, your lordship will recall that the  6 Canadian Pacific Railway really didn't get advanced  7 very far in the first administration of Sir John A.  8 MacDonald.  It wasn't a matter of great interest to  9 the administration which succeeded him, McKenzie's  10 administration, they had opposed the railway, and  11 matters arose at such a pitch that there was a  12 compromise arranged.  And this is what has been  13 referred to:  14  15 "After the union, owing to engineering and other  16 difficulties, there was considerable delay in  17 constructing the line of railway through  18 British Columbia.  Various differences arose  19 between the two Governments, and these were  20 ultimately settled, in the year 1883, by a  21 provisional agreement, which was subsequently  22 ratified" —  23  24 As part of the agreement had reference to the 11th  25 Article of Union, which it modified at the following  26 extent:  27  28 "The Government of British Columbia agreed to  2 9 convey to the Government of the Dominion, as  30 therein provided, the public lands along the  31 railway, wherever it might be finally located,  32 to a width of twenty miles on either side of  33 the line and, in addition, to convey to the  34 Dominion Government three and a half millions  35 of acres of land in the Peace River District,  36 in one rectangular block, east of the Rocky  37 Mountains, and joining the Northwest Territory  38 of Canada.  On the other hand, the Dominion  39 Government undertook, with all convenient  40 speed, to offer for sale the lands within the  41 Railway Belt, on liberal terms, to actual  42 settlers; and also to give to persons who had  43 squatted on these lands a prior right of  44 purchasing the lands improved, at the rates  45 charged to settlers generally.  In accordance  46 with this agreement, the lands forming the  47 Railway Belt were granted to the Dominion in 27853  Submissions by Mr. Goldie        1 terms of the  11th Article of Union, by an Act  2 of the legislature of British Columbia."  3  4 Now, the Precious Metals Case arose out of the  5 question of who owned the gold in the Railway Belt,  6 and the -- it was decided in favour of the Province.  7 But for our purposes, as I will later be noting, the  8 question of Indian title was clearly within the  9 Dominion's purview in respect of the Railway Belt  10 while it was under its control.  11 I say in paragraph 24, it is clear that no Indian  12 title constituting an interest other than that of the  13 Province fettered the power of the Province either to  14 transfer lands in the Railway Belt to Canada or to  15 maintain its right to gold and silver found within the  16 Railway Belt.  17 Canada treated these lands differently according  18 to whether those lands lay east or west of the  19 Rockies.  This is paragraph 25, my lord.  In 1912 Mr.  20 J.A.J. McKenna in his long letter to Sir Richard  21 McBride stated there were two policies, one in the  22 area west of the 80th degree longitude, which is  23 approximately the Quebec-Ontario border, and east of  24 the Rockies, and one east of the 80th degree.  What he  25 said is illuminating.  Now, this long extract, my  26 lord, is taken from McKenna's letter, and it -- the  27 relevant passages are under tab 25.  He said:  28  29 "The history of the dealings with the Indians of  30 the Imperial Government and the Governments of  31 the Colonies which originally formed the  32 Dominion shows that Indians have been settled  33 within two ways:  (1) by formal treaties, under  34 which certain money payments to the Indians are  35 covenanted for, and certain tracts of land  36 reserved for their use and benefit, or (2)  by  37 the voluntary act of the Crown in setting aside  38 particular tracts of land as reserves for their  39 use and benefit, and in assuming the financial  40 obligations incident to the duties of  41 guardianship and the carrying out of a policy  42 for the advancement of the Indians.  43 Roughly speaking, the Indians of that portion  44 of Canada extending from the 80th degree of  45 longitude to the Atlantic Ocean have been dealt  46 with in the latter way."  47 27854  Submissions by Mr. Goldie        1 Basically that's Quebec  and the Maritime Provinces:  2  3 "And in the portion extending westward from that  4 degree of longitude to the mountains and lying  5 between the 49th and 60th parallels of north  6 latitude, they have been made parties to formal  7 treaties.  The Indians of that part of British  8 Columbia lying east of the mountains were so  9 dealt with under Treaty Number Eight in 1899,  10 with the acquiescence of the Government of the  11 Province.  12 The only portion of Canada in which the Indian  13 title has not been extinguished in either of  14 these ways is, it has been contended, that  15 portion of British Columbia lying west of the  16 mountains."  17  18 And then he says:  19  20 "To my mind however, the Crown in British  21 Columbia, prior to its union with Canada,  22 followed the plan adopted in the eastern part  23 of Canada.  There were differences in detail,  24 but the principle was the same."  25  26 So I say in paragraph 26, he concluded that end result  27 of both systems was the same.  This, in my submission,  28 was consistent with the Dominion giving effect to its  29 agreement to open the lands in the Railway Belt for  30 settlement.  And there is -- the Act that gave effect  31 to that, my lord, is under tab 26 paragraph 2:  32  33 "The said lands shall be open for entry to bona  34 fide settlers in such lots and at such prices  35 as the Governor in Council determines."  36  37 That's so the Government of Canada is dealing with the  38 lands of the Railway Belt:  39  40 "Every person who squatted on any of the said  41 lands prior to the nineteenth day of December,  42 1883, and who has made substantial improvements  43 thereon, shall have a prior right of purchasing  44 the lands so improved, at the rates charged to  45 settlers generally."  46  47 Now, the Peace River lands, however, are dealt with in 27855  to be held by the  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  Submissions by Mr. Goldie        1 Section 2, and they are  - they are  held to be Dominion lands within the meaning of the  Dominion Lands Act.  And that particular Act, having  the effect of requiring extinguishment of Indian title  before settlement.  So -- and that was the Act which  was in operation in the Prairie provinces or the  Rupert's Land and after Manitoba had been created.  I say the question was settled to all intents and  purposes even before the Railway Belt was transferred  to Canada.  Now we go back to 1872.  Then the Province  sought the Dominion's approval to a release of  specified lands within the area that was subject to  the proviso in Term 11 restricting the Province's  right to sell or alienate lands in the Railway Belt  for a period of two years from the date of union.  That particular piece of history is embodied in Orders  in Council, and the first one is dated the 12th of  February, 1873, and it reads:  "On despatch hereto attached from the Lieutenant  Governor in British Columbia dated 7th November  1872, with the Minute of the Executive Council  which accompanies it, having reference to the  release of certain lands from the effect of the  resolutions entered into between British  Columbia and the Dominion Government - so that  free grants may be made to actual settlers."  What British Columbia had done in Term 11 was to agree  to withhold lands from settlement in the area that the  probable route of the railway would take for a period  of two years.  Continuing with the Order in Council:  "The honourable the Secretary of State to whom  this despatch and Minute of Council has been  referred, reports that from information he has  obtained from the Engineer in Chief of the  Pacific Railway Survey, the lands asked to be  released are likely to be on the route of that  road, and that he considered it undesirable, as  the line of the Canadian Pacific will so soon  be determined, to interfere with the  arrangements presently existing in this matter.  The Committee submits the Report of the  Secretary of State for Your Excellency's  approval." 27856  Submissions by Mr. Goldie        1 And Lord Dufferin  approved it.  2 Now, later on the request was renewed.  It raised  3 the question again in February of 1873, the Deputy  4 Minister of Justice in a memorandum to the Prime  5 Minister suggested that with the expiration of the  6 two-year period in July of 1873 a restriction would  7 disappear, and that is indicated, my lord, in the --  8 under the tab 28.  It's headed "Memo for Sir John",  9 and it's initialed H.B., the initials of the then  10 Deputy Minister of Justice.  And Mr. Bernard says:  11  12 "A singular question may arise as to the effect  13 of the 11th Section of the Terms of Union of  14 British Columbia."  15  16 And he quotes:  17  18 "That until the commencement within two years,  19 as aforesaid, from the date of the Union, of  20 the construction of the railway, the Government  21 of B.C. shall not sell or alienate any further  22 portion of lands of B.C. etc."  23 Does not this imply that the lands must be  24 chosen for the railway route prior to 20 July  25 1873.  And that the restriction of sale of B.C.  26 lands by local government ceases at that date."  27  28 And the Order in Council of October 6th -- and I think  29 that is 1873, my lord:  30  31 "With reference to the Despatch of His Honour,  32 the Lieutenant Governor of the Province of  33 British Columbia, bearing date the 12th day of  34 February last, enclosing copies of an address  35 from the Legislative Assembly of the Province,  36 the undersigned has the honour to report:  37 That such address requests the Lieutenant  38 Governor to recommend to the Government of  39 Dominion, the passage of an Act by the  40 Parliament of Canada legalizing all sales of  41 lands in the Province of British Columbia since  42 the 1st June, 1870.  43 As the two years within which the  44 Government of British Columbia were, by the  45 terms of the Union of the Province with Canada  46 prevented from making any conveyance of land,  47 have expired --" 27857  Submissions by Mr. Goldie 1                So that would make  this October 6th, 1873:  2  3 "-- there does not seem to be anything now to  4 prevent that Government from granting  5 conveyances to parties who have purchased lands  6 since the 1st June 1870.  7 It is therefore unnecessary to submit any  8 measure to the Parliament of Canada."  9  10 So that Canada was agreeing that British Columbia was  11 free to resume the sale of lands to settlers, and in  12 my submission -- and I'm going to first refer to the  13 conclusion.  This conclusion was confirmed by the  14 McKenzie administration, which came into power shortly  15 afterwards, about five months later, and that's the  16 Order in Council under -- under tab 29.  And this  17 is — and it's dated the 13th of March, 1874:  18  19 "Upon the despatch of the Lieutenant Governor of  20 British Columbia transmitting the Acts passed  21 by the Legislature of that Province, in its  22 second session.  23 The Honourable the Minister of Justice to whom  24 said Despatch with the Acts have been referred  25 reports upon the following Acts as follows:  2 6 Chapter 1.  An Act to amend the land  27 Ordinance Act 1870.  2 8 Chapter 3.  An act to amend the Mineral  29 Ordinance or 1869.  30 Chapter 4.  An Act to amend" —  31  32 The Gold Mining Ordinances:  33  34 "These acts are respectively reserved as to  35 their operation, either by express enactment or  36 in effect until the 21st day of July 1873, and  37 that date is evidently fixed as being at the  38 expiration of the period of two years, by which  39 under the terms under which British Columbia  40 entered the union lands were to be reserved by  41 the government of British Columbia from sale  42 with a view to setting apart such lands as are  43 requisite for the Canada Pacific Railway."  44  45  MR. GOLDIE:  I think I'll pause, my lord.  4 6  THE COURT:  Yes, thank you.  4 7 (CHANGE OF REPORTERS) 27858  Submissions by Mr. Goldie        1  2 I hereby certify the foregoing to be  3 a true and accurate transcript of the  4 proceedings herein transcribed to the  5 best of my skill and ability  6  7  8  9  10 Graham D. Parker  11 Official Reporter  12 United Reporting Service Ltd.  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 REPORTER  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  27859  Submissions by Mr. Goldie        1 (CHANGE OF  MR. GOLDIE:  I am reading from the Order in Council which  contains the recommendation of three Acts which were  to come into effect on the 21st day of July 1873.  This is a Dominion Order in Council.  "As such period of two years expired on the 21st  July 1873 the province had the power to pass  laws and make other arrangements for the sale  of their lands and there is therefore no  objection with the passage of these Acts, and  the minister recommends therefore be they be  left to their operation.  But he suggests the communication be had  with the lieutenant governor of British  Columbia calling his attention to the practical  inconvenience which must ensue to the  Government of Canada and British Columbia of  land be sold by the province on any portion of  the line which may hereafter be selected as  that of the Pacific Railway."  And that:  "His consideration be requested to the  proprietary of withholding from sale or rights  of prescription."  I'm sorry.  "Rights of pre-emption lands which in so far as  surveys have been heretofore made can possibly  be contiguous to the line of railway if anyone  of such surveys be adopted."  And that was approved by the Governor General,  and, my lord, the effect of that was that the  pre-emption law of British Columbia was again in  operation in respect to lands after being suspended  while in conformity of Term 11 of the Terms of Union.  Now, I say the acquiescence of Canada, and I  interject there, my law, when I say the acquiescence  of Canada, I rely upon these Orders in Council when I  say acquiescence.  In the sale of public lands without  any requirement of extinguishment of title was made  against the background of treaties elsewhere, Treaty 27860  Submissions by Mr. Goldie        1 No. 3 was entered into  in 1873, and the emerging  2 difficulty between the two governments with respect to  3 reserve allocations in the province.  The acquiescence  4 in my submission is explained on one of two grounds.  5 A, that Indian title beyond the limits of reserves  6 had been extinguished in British Columbia; or B, that  7 Indian title in British Columbia beyond the limits of  8 reserves did not require consideration.  That is to  9 say that the whole of the Indian interest in a settled  10 colony was protected by the reserves.  11 THE COURT:  Is there a third possibility that they just ignored  12 it?  13 MR. GOLDIE:  How could they, my lord?  They were ex — the  14 Dominion was extinguished in title the same year on  15 the prairies.  It requires an act of faith which goes  16 beyond the experience of mankind to adopt the  17 proposition that there is a sudden loss of memory on  18 the west of the Rockies.  19 THE COURT:  I am not suggesting they forgot, but I am just  20 suggesting that they decide not to bother with it.  21 MR. GOLDIE:  If they decide not to bother with it, it was  22 because they considered that it didn't have to be  23 done.  24 THE COURT:  Why did they do it in Treaty 8?  25 MR. GOLDIE:  Because Treaty 8 was east of the Rockies, and was  26 dealing with the same people that he had extinguished  27 the title on and the numbered treaties on the  28 prairies.  And that becomes clear as we go along, my  29 lord.  30 The important thing to note here is that the  31 MacKenzie administration's acknowledgement, and that's  32 what this last Order in Council was, that British  33 Columbia was free to resume land sales was of course  34 inconsistent with its later disallowance in 1874 of  35 the Land Act of the province on the ground that it  36 failed to provide for Indian title, that the year  37 later they disallow on the basis that the Land Act,  38 which is exactly the same kind of Land Act that had  39 been in place since 1858, failed to provide for Indian  40 title.  41 THE COURT:  I rather thought that they disallowed the Act simply  42 because it seemed on the face of it to entrench on  43 Dominion authority.  44 MR. GOLDIE:  The memorandum of the Deputy Minister of Justice  45 which was adopted by the Minister of Justice in his  46 recommendation concluded, amongst other things, that  47 the Royal Proclamation applied in British Columbia. 27861  Submissions by Mr. Goldie        1  THE COURT:  You'll be coming to  that.  2 MR. GOLDIE:  I heard a bit of a gasp behind me.  3 THE COURT:  I heard it up here.  4 MR. GOLDIE:  Let me put it this way.  5 THE COURT:  It was a low density gasp.  6 MR. GOLDIE:  Mr. Bernard's memorandum is going to speak for  7 itself, and I shouldn't characterize it.  8 THE COURT:  All right.  9 MR. GOLDIE:  Paragraph 33 it is submitted the conclusion that is  10 consistent with all the evidence, that is the evidence  11 that we have examined to date, is that Indian title  12 was never acknowledged in the British and Canadian  13 territories west of the Rocky Mountains, or, if it  14 existed, was provided for by setting aside of reserves  15 protecting settlements, et cetera.  If some aspect of  16 native title existed in British Columbia at the time  17 of Confederation, any responsibility for it on the  18 part of the province disappeared with the Terms of  19 Union.  And that, I say, is -- merges very simply from  20 the Terms of Union which state in perfectly clear  21 terms what the obligation of the province is, and  22 placed side by side with head 24 or section 21 leaves  23 no other conclusion.  The actions of Canada, with  24 particular reference to the Railway Belt and the  25 application of the Dominion Lands Act confirm this.  26 It was, of course, open to Canada to deal with the  27 Indians of British Columbia as if some interest  28 existed outside the reserve lands, and in my  29 submission it sought to do that in 1922-23.  But  30 that's some years ahead.  31 And I say in paragraph 34, when on May 19th, 1874  32 Lord Dufferin annotated his approval of Order in  33 Council PC 582 with the question:  34  35 "Why is a different system pursued in B.C. with  36 regard to compensation to Indians from that in  37 the N.W. Territories?"  38  39 He either did not receive an answer, or the answer  40 he received was not informative.  The unfortunate  41 results of his ignorance of the history of the colony  42 and his erroneous belief that the practise of  43 negotiating treaties prevailed throughout the rest of  44 Canada became manifest later in the year and, of  45 course, in his speech in Victoria in 1876.  46 Now, the Order in Council to which I make  47 reference, my lord, is that which is under Tab 33, and 27862  Submissions by Mr. Goldie        1 the date is the 19th of  May of 1874, and it reads:  2  3 "On a memorandum dated 4 April 1874 from the  4 Honourable the Minister of the Interior stating  5 that the Indian Commissioner for British  6 Columbia desires to be instructed before  7 leaving for that province on the policy which  8 the government proposes to pursue towards the  9 Indian in British Columbia particularly in the  10 matter of presence.  11 That it is assumed that the government does  12 not contemplate giving the Indians of British  13 Columbia any compensation for their lands as  14 has been done with the Indians of the  15 northwest, and he the minister submits that in  16 view of the general discontent now prevailing  17 amongst the former, it would be advisable to  18 spend a small sum annually in the distribution  19 amongst them of useful presence such as garden  20 tools, agricultural implements and seed grain  21 as suggested by the commissioner.  He  22 accordingly recommends that the Indian  23 commissioner be authorized to expend out of the  24 Indian appropriation for the current year the  25 sum of $5,000 in the purchase of such presents  26 as he may think likely to be most useful and  27 acceptable to the Indians.  The same to be  28 distributed by him or his agents amongst the  29 Indian bands during the coming season.  30 That in the selection and distribution of  31 presents the commissioner be instructed to  32 practise the utmost economy consistent with  33 satisfying a reasonable expectation of the  34 Indians.  35 That the Commissioner be required to take  36 effectual measures to secure the presents being  37 given to those Indians only who are likely to  38 make a proper use of them and to be careful to  39 purchase such vouchers to the department as the  40 circumstances will permit to show that the  41 presents reached the bands or individual  42 Indians for whom they were intended ..."  43  44 And so on.  And Lord Dufferin's notes, which is  45 not the easiest thing to read, is what I have set out  4 6 in the text of my summary.  47 27863  Submissions by Mr. Goldie        1 "Why is a  different system pursued in B.C. with  2 regard to compensation to Indians from that in  3 the Northwest Territories?"  4  5 Now, my lord, the Order in Council squarely raises  6 the -- squarely based on the assumption that no  7 compensation will be paid to the Indians in British  8 Columbia.  9 Now, I come to section 2, and we take a fairly  10 long leap ahead.  It will bring us to the Order in  11 Council -- the Dominion Order in Council 751 of June  12 20th, 1914.  13 Before I do that, I should deal with the document  14 which gave me some suggestion or suggested to me that  15 there was telegraphic communication between Governor  16 Musgrave when he was in San Francisco and the  17 Secretary of State for the colonies during the time  18 when the B.C. delegation and the Terms of Union were  19 in Ottawa, and in respect of which they reported to  20 him by telegraph.  And it starts in Exhibit 1201-2,  21 and under tab 46 is the Secretary of State --  22 THE COURT:  Of this two series, or back to the previous series?  23 MR. GOLDIE:  Well, these documents are not in our binders.  24 THE COURT:  I see.  All right.  Thank you.  25 MR. GOLDIE:  I am sorry, not in the yellow binders.  I am just  26 endeavoring to respond to my friend's request that I  27 provide some indication of why I thought there was  28 telegraphic communication between London and San  29 Francisco.  And I start, and I am going to try and  30 compress this, but I start with a letter from the  31 Secretary of State to the Governor General, June 28th,  32 1871.  And he transmits a copy of a dispatch that he  33 sent to Governor Musgrave as to the disposal of the  34 correspondence between the Governor of British  35 Columbia and the Secretaries of State:  36  37 "And I have to request that you will be good  38 enough to communicate with him in regard to the  39 ultimate disposal of the public dispatches."  40  41 And then there was a direct dispatch of the same  42 date in which it is said to Musgrave by the Secretary  43 of State:  44  45 "In consequence of the approaching change in the  46 constitution of the office of Governor of  47 British Columbia by which he will cease to be 27864  Submissions by Mr. Goldie        1 an officer  appointed by the Queen and to  2 correspond direct with the Secretary of State I  3 have to request that you will select from the  4 records of the colony all dispatches from the  5 Secretary of State to the governors which are  6 marked as confidential or secret.  And also  7 similar dispatches from the governors to the  8 Secretary's of States and cause them to be  9 packed in packing cases and transmitted to me  10 at this office."  11  12 And that's Lord Kimberley, and the -- then I come  13 to tab 51, which is a copy of the documents in the  14 public records office of London.  The group is  15 colonial office register of secret correspondence  16 contents North American Australian, et cetera, 1870 to  17 1873.  And the register is for the year 1871, the 27th  18 of October, British Columbia.  The date 12th of July.  19 Secret and confidential dispatches of British  20 Columbia.  The description, forwards parcels of --  21 with something -- and also dispatches as to  22 telegraphic cipher and telegraph of, and it looks like  23 7th July.  24 Now, those documents were destroyed pursuant to  25 statute.  So that's where we are left.  26 THE COURT: Didn't Collins Overland telegraph get to Kispiox in  27 1860's?  28 MR. GOLDIE:  It did, but it never went into operation, my lord.  2 9 THE COURT:  No.  30 MR. GOLDIE:  186 —  31 THE COURT:  5, I think.  32 MR. GOLDIE:  5 or —  33 THE COURT:  Yes.  34 MR. GOLDIE:  It got there when it was still the mainland colony.  35 THE COURT:  And so what we are trying to figure out, or you are  36 trying to advance that by 1859, is it, you are  37 concerned about -- no, it's later than that.  It's in  38 the seventies.  39 MR. GOLDIE:  This is 187 —  40 THE COURT:  Well, the Collins got to Kispiox in '65, it must  41 have been operational for a good part of its line --  42 MR. GOLDIE: I don't think it became operational until the  43 Dominion took it over.  44 THE COURT:  That may well be, but they must have had the  45 technology or the ability to.  46 MR. GOLDIE:  The situation that we had was that Musgrave was in  47 San Francisco, and he was in telegraphic communication 27865  Submissions by Mr. Goldie        1 from there with Ottawa,  and I say that there is at  2 least an inference that he was in telegraphic  3 communication with the colonial office from San  4 Francisco where there was a British Consulate.  5 THE COURT:  Yes.  Well, I would suspect that union went into  6 operation long before that.  7 MR. GOLDIE:  What killed the Collins was the successful opening  8 of the Atlantic telegraph.  9 THE COURT:  Yes.  10 MR. GOLDIE:  Which was, I think, in the 1860's.  11 THE COURT:  Yes.  12 MR. GOLDIE:  So that in San Francisco he reached Ottawa, as we  13 know, and it was equally feasible to reach London, and  14 in fact the approval of one of the Colony's Acts, the  15 Queen's approval was transmitted by telegraph.  16 THE COURT:  All right.  17 MR. GOLDIE:  Well, that brings me, my lord, to section 2 of part  18 8, the implementation of Term 13, and here I sketch  19 with, I hope, some brevity which is not confusing some  20 events which occupy a great deal of space in the  21 counter-claim, but the purpose of it is to bring us up  22 to 1914 and set the stage for ultimately the Royal  23 Commission and the Order in Council at 1265 in which I  24 rely on this particular section.  25 Now, on October 12, 1874 the provincial secretary,  26 that's B.C., the provincial secretary in response to a  27 letter from Mr. Lenihan, the Dominion's appointee to  28 the short-lived board of Indian commissioners for  29 British Columbia, enclosing letters from two Roman  30 Catholic clergymen criticizing the niggardliness of  31 reserve allocations in the Okanagan said:  32  33 "... all that it is 'reasonable and just' to  34 demand of the Provincial Government is that the  35 13th Section of the Terms of Union should be  36 faithfully observed.  Should the Dominion be of  37 opinion that concessions beyond those provided  38 for in the said section are necessary, it  39 becomes the duty of that Government to make  40 provisions accordingly."  41  42 And that document is under the appropriate tab.  43 Paragraph 2.  It is submitted that in law this was  44 a correct statement; that it was eventually accepted  45 as correct by Canada, and that by virtue of Order in  46 Council PC 1265 of July 19, 1924 it was acknowledged  47 by Canada that British Columbia had fufilled Term 13. 27866  Submissions by Mr. Goldie 1                In this part it  will be submitted that acts done  2 by Canada after the establishment of the Indian  3 Reserve Commission were consistent with this  4 definition of British Columbia legal responsibilities.  5 The memorandum of agreement dated September 24th, 1912  6 between McKenna and Sir Richard McBride excluded the  7 question of Indian title from consideration by the  8 proposed Royal Commission.  In my submission this was  9 appropriate because such a question would have been  10 inconsistent with the Terms of Union, particularly  11 Term 13.  The agreement, and that's under 4 -- now,  12 the agreement unfortunately under 4 is almost  13 illegible, and under the facing sheet on page 9 there  14 is a typed script of it, and it's headed -- does your  15 lordship have that?  16 THE COURT:  Not quite.  17 MR. GOLDIE:  It's page nine under Tab 2-4.  18 THE COURT:  I have it now.  19 MR. GOLDIE:  And the memorandum of agreement which gave rise to  20 the Royal Commission on Indian Affairs is printed  21 there in a much more legible form than the form that  22 is attached to the Dominion Order in Council which  23 approved it and which precedes it, and the preamble  24 states:  25  26 "It is desirable to settle all differences  27 between the Governments of the Dominion and the  28 Province respecting Indian lands and Indian  29 affairs generally in the Province of British  30 Columbia, therefore the parties above named,  31 have, subject to the approval of the  32 governments of the Dominion of the Province  33 agreed upon the following proposals as a final  34 adjustment of all matters relating to Indian  35 affairs in the province of British Columbia:"  36  37 The appointment of a commission.  The power of the  38 commission to adjust the acreage of Indian reserves  39 both in respect of reduction and addition.  40  41 "3.  The province shall take all such steps as  42 are necessary to legally reserve the additional  43 lands which the commissioner shall apportion to  44 any body of Indians in pursuance of the powers  45 set out.  46 4.  The lands which the Commissioners shall  47 determine are not necessary for the use of the 27867  Submissions by Mr. Goldie 1                   Indians shall be  subdivided and sold by the  2 Province at public auction.  3 5.  The net proceeds  ... divided equally  4 between the province and the Dominion."  5  6 Expenses shared.  7  8 "The lands comprised in the reserves ..."  9  10 This is paragraph 67.  11  12 "...  as finally fixed by the commissioners  13 shall be conveyed by the province to the  14 Dominion with full power to the Dominion to  15 deal with the said lands in such manner as they  16 may deem best suited for the purposes of the  17 Indians, including a right to sell the said  18 lands and fund, or use the proceeds for the  19 benefit of the Indians, subject only to a  20 condition that in the event of any Indian tribe  21 or band in British Columbia at some future time  22 becoming extinct, then any lands within the  23 territorial boundaries of the Province which  24 have been conveyed to the Dominion as aforesaid  25 for such tribe or band, and not sold or  26 disposed of as hereinbefore mentioned, or any  27 unexpended funds being the proceeds of any  28 Indain Reserve in the Province of  British  29 Columbia, shall be conveyed or repaid to the  30 Province."  31  32 And paragraph 8.  33  34 "Until the final report of the Commission is  35 made, the Province shall withhold from  36 pre-emption or sale any lands over which they  37 have a disposing power and which have been  38 heretofore applied for by the Dominion as  39 additional Indian Reserves or which may during  40 the sitting of the Commission, be specified by  41 the Commisioners as lands which should be  42 reserved for Indains."  43  44 And so on.  And the agreement, I say, reflect  45 McKenna's success in persuading the province to drop  46 its claim to reversionary interest in Indian reserves.  47 And I say that -- the principal source of discontent 27868  Submissions by Mr. Goldie 1            on the part of the  Indian peoples of the province.  2 That's my submission.  3 And that was -- had become a very troublesome  4 thing, my lord, because the province had got to a  5 point where it was selling the reversionary interest  6 in existing reserves, and that was -- that was one of  7 the principal grounds of dispute between the province  8 and the dominion, and as stated by Mr. McKenna was one  9 of the principal grounds of Indian concerns.  10 THE COURT: Wasn't there another principal ground or concern --  11 or feature of this matter that Mr. McKenna said that  12 he would drop or put aside for the time being, the  13 question of title?  14 MR. GOLDIE:  Oh, yes.  Sir Richard McBride said he wouldn't —  15 he wouldn't countenance, and calling in question the  16 titles which the Crown had granted to -- the Crown  17 grants of the province.  18 THE COURT:  All right.  19 MR. GOLDIE:  As is evident in the adoption of Mr. McKenna's  20 report by Order in Council 3277, which is under tab 5,  21 the Dominion Government had no doubt was acting in the  22 interests of the Indian peoples in relation to any  23 claim which might be advanced by them or on their  24 behalf against the province.  25 Now, my lord, the Indian Act, and there was quite  26 a bit of discussion between your lordship and my  27 friend, Mr. Rush, Mr. Rush contending that the British  28 Columbia could not be brought into court against its  29 own wishes, and suggesting that the matter of the  30 title was dropped by the province -- by the dominion  31 because it had no way of bringing it before you.  But  32 I say while the Indian Act was amended in 1911 to  33 provide for action by the Crown in Right of Canada to  34 determine claims of possession or right of possession  35 in reserve or non-reserve lands, the Dominion's  36 intention to commence proceedings thereunder was not  37 pursued.  38 Now, that appears, if your lordship would turn to  39 tab 6.  This is an amendment to the Indian Act of  40 1911, and as will be seen, it was pursuant to a  41 decision on the part of the Dominion that it would  42 test the title question without the consent of the  43 province.  And the means of doing so is set out in  44 section 4 on page 3 of the amended Act.  And it reads  45 as follows:  46  47 "Subsection 1 of Section 37A of the said Act, as 27869  Submissions by Mr. Goldie        1 enacted by  section 1 of chapter 28 of the  2 statutes of 1910, is hereby repealed and the  3 following is substituted therefore.  4 If the possession of any lands reserved or  5 claimed to be reserved for the Indians, or of  6 any lands of which the Indians or any Indian or  7 any band or tribe of Indians claim the  8 possession or any right of possession is  9 withheld, or if any such lands are adversely  10 occupied or claimed by any person, or if any  11 trespass is committed thereon, the possession  12 may be recovered for the Indians or Indian or  13 band or tribe of Indians, or the conflicting  14 claims may be ajudged and determined or damages  15 may be recovered in an action at the suit of  16 His Majesty on behalf of the Indian or Indians  17 or bands of Indians."  18  19 And so on.  Now, that was intended to enable the  20 government of Canada to test the question of Indian  21 title by selecting an appropriate case where an  22 individual was established on lands which the Indians  23 claimed they owned by virtue of aboriginal interests.  24 There is no question but that was the intention and  25 that was the -- was accomplished, at least the  2 6 machinery was accomplished by virtue of that amendment  27 in 1911.  But for whatever reason the Dominion did not  28 within the period of 1911 and 1914 commence the  29 proceedings which it could have done without the  30 consent of the province.  I say:  31  32 "Matters were brought to a head with a Nishga  33 petition of 1914.  The Minister of Justice in  34 his letter to the Superintendent of General of  35 Indian Affairs of December 17th said the policy  36 of the government was the preliminary question  37 to be determined."  38  39 And that is evident from -- my lord, before I go  40 to that letter from the Minister of Justice, I have  41 placed under Tab 2-4 the British Columbia Act which  42 confers jurisdiction upon the Supreme Court of Canada  43 and the Exchequer Court to determine controversies  44 between the Dominion of Canada and the Province.  It's  45 page 5, my lord, under Tab 2-6.  4 6  THE COURT:  Oh.  47  MR. GOLDIE:  My lord, that act has been on the books since — 27870  Submissions by Mr. Goldie        1  THE COURT:  1897.  2 MR. GOLDIE:  And it's on the books today.  And if there was a  3 controversy between the Dominion and the Province, the  4 Province had agreed by statute that it would submit to  5 the jurisdiction of the then Exchequer Court or the  6 Supreme Court of Canada to have that controversy  7 resolved.  So that if there was any difference of  8 opinion, real difference of opinion, such as to amount  9 to a controversy between the Dominion and the Province  10 over the question of aboriginal title in British  11 Columbia, the Dominion could have brought action in  12 the Supreme Court of the Exchequer Court at any time.  13 The submission made by my friend, Mr. Rush,  14 completely overlooked that Act.  And he also  15 overlooked the amendment to the Indian Act which would  16 have allowed advantage to be taken, a test case  17 so-to-speak, of trespass on the part of somebody, an  18 individual, a private individual who was allegedly on  19 lands claimed under an aboriginal title.  So there  2 0 were two avenues open to the Dominion without the  21 Province's consent.  22 My friend Mr. Rush made extensive evidence --  23 extensive comment on the draft questions to be  24 submitted to the Supreme Court of Canada by way of a  25 reference, and he said the province ruled out those  26 questions dealing with title.  And he said that  27 stopped it.  Well, in my submission it didn't stop it  28 at all.  A, if there had been a controversy, it would  29 have gone in under this Act.  B, if the Dominion in  30 which to proceed under the private -- I'll call it the  31 private route under the amendment to the Indian Act,  32 it had it at hand for that very purpose since 1911.  33 And that brings me to the question that was raised by  34 the Minister of Justice in 1913 when he was sent a  35 copy of the Nishga petition --  36 THE COURT:  Well, was Mr. Rush perhaps saying that there could  37 well be litigation assuming a lis, L-I-S, but that in  38 the absence of the appropriate case agreement would be  39 required in order to submit a question for the  40 decision in the Court?  41 MR. GOLDIE:  There was no agreement required under the amendment  42 to the Indian Act.  43 THE COURT:  Well, the Indian Act would require a lis.  44 MR. GOLDIE:  Well, the lis was there.  It wasn't a question of  45 creating it.  It was there to be created simply by  46 chosing the appropriate piece of land.  Here is a  47 settler, he's got a piece of land adjacent to a 27871  Submissions by Mr. Goldie        1 reserve, the band says  this is our traditional hunting  2 ground, and then the Crown sues out of an action of  3 ejectment.  4 THE COURT:  That route seems clear, but under this 1897 statute  5 I suppose Canada could assume British Columbia.  6 MR. GOLDIE:  Not unless there was a controversy.  7 THE COURT:  Yes.  Or they would have to find a controversy.  8 MR. GOLDIE:  And in my submission, my lord, there was no  9 controversy between the Dominion and the Province.  10 The controversy was on the part of the Indian peoples  11 who were agitating this question in a very  12 considerable way.  13 THE COURT:  Yes.  14 MR. GOLDIE:  At the time, and we're saying there is aboriginal  15 title in British Columbia.  The Dominion did not  16 assert that, and had not asserted it, in my  17 submission, since 1874 when the Act was -- the B.C.  18 Land Act was disallowed.  19 THE COURT:  I would have to go back and check Mr. Rush's  20 submission, but I am not sure he wasn't saying any  21 more than that you can't have a constitutional  22 reference without agreement of both parties, but I'm  23 not sure that's right either.  24 MR. GOLDIE:  That's not the case.  655 of the Supreme Court Act  25 allows the Dominion to refer a matter to the Supreme  26 Court of Canada without the approval of a province.  27 THE COURT: I suppose Her Majesty of the Supereme Court of Canada  28 justices would settle the terms of the question if  29 parties couldn't agree --  30 MR. GOLDIE:  Yes.  Well, there have been a number of instances  31 where, for instance, the validity of provincial  32 legislation has been referred over the protests of the  33 province.  That was the case of the Alberta Social  34 Credit legislation in the thirties.  35 THE COURT:  And the other side to that the week before last when  36 the province sought to test the provisions of the  37 budget --  38 MR. GOLDIE:  Yes.  39 THE COURT:  Against the agreement of Canada —  40 MR. GOLDIE:  All that the abortive negotiations between Newcombe  41 and Lafleur, which were brought to a halt by McBride  42 saying, "I am not going to have the first three  43 questions referred", was agreement on the case.  44 That's all it was.  The power to do it was there at  45 the government's -- the Dominion's hand at any time.  46 Now, the counter to that is the power in the province  47 to refer to the Court of Appeal a question even if 27872  Submissions by Mr. Goldie        1 that is over the  objections of the federal government.  2 THE COURT:  Yes.  All right.  Well, I think it's time that we  3 adjourned.  How are we doing on the schedule, Mr.  4 Goldie?  5 MR. GOLDIE:  Well, my lord, I plan on being finished this  6 section within a reasonably compass tomorrow morning,  7 and we will -- my colleagues advise me, who are  8 dealing with part 9, that they will be fairly  9 expeditious.  10 THE COURT:  Part 9 is?  11 MR. GOLDIE:  Is miscellaneous.  12 THE COURT:  Yes, all right.  13 MR. GOLDIE:  And then we come to the counterclaim, which I will  14 be dealing with, and our plan is indeed to be finished  15 by June the 11th.  16 THE COURT:  All right.  Well, then, we will sit tomorrow then at  17 9:30 to 4:30?  18 MR. GOLDIE:  I think that's what is planned on.  19 THE COURT:  All right.  And from 9:00 to 11:00 on Friday?  20 MR. GOLDIE:  That's correct, my lord.  21 THE COURT:  And then we are off until the 11th?  22 MR. GOLDIE:  No.  There is one day in there that your lordship  23 said would be available, the 8th of June.  24 THE COURT:  Yes, the Friday.  Yes.  Friday the 5th?  25 MR. GOLDIE:  Yes.  26 THE COURT:  No, I'm sorry, the 8th.  27 MR. GOLDIE:  Yes, it's the 8th.  Ms. Sigurdson tells me that it  28 may be necessary to sit until 5:30, if your lordship  29 could.  30 THE COURT:  No, I don't think I can.  There are some social  31 obligations that would be very awkward to sit beyond  32 5:00 o'clock tomorrow.  All right.  33 MS. MANDELL:  I want to clarify if we are sitting 'til 4:30.  34 THE COURT:  Yes, 4:30, I think.  Yes.  All right.  Thank you.  35 THE REGISTRAR:  Order in court.  Court stands adjourned until  36 9:30 tomorrow.  37  3 8 (PROCEEDINGS ADJOURNED AT 9:00 P.M.)  39  40  41  42  43  44  45  46  47 27873  Proceei  dings  THE FOREGOING  TO  BE  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  A TRUE AND ACCURATE TRANSCRPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.

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