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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-12] British Columbia. Supreme Court Jun 12, 1990

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 28250  Submission by Mr. Goldie        1  Vancouver, B.C.  2 June 12, 1990  3  4 THE REGISTRAR:  Order in court.  Supreme Court of British  5 Columbia, this 12th day of June, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 THE COURT:  One of the problems that constantly besets me in  8 this case is that the Vancouver Bar Association  9 generously agrees to have a luncheon for judges every  10 year.  It's come around again, and for that reason I  11 think that I will have to adjourn at twelve o'clock  12 today.  We'll make up the time somewhere along the way  13 I dare say.  I must say except for the generosity of  14 the host I think I would be happier to stay and do our  15 duty here, but I think I must be there close to twelve  16 o'clock, and for that reason we will do the best we  17 can to make the time up perhaps later in the day.  I  18 can sit until 5:00 tonight, and then counsel can  19 indicate later during the day if there's any need to  20 sit beyond that.  I think I could be back at about  21 7:00.  All right.  Thank you, Mr. Goldie.  22 MR. GOLDIE:  Thank you, my lord.  I was at page 131 of Part III  23 of Section X.  24 THE COURT:  Yes.  Thank you.  25 MR. GOLDIE:  And I had just referred to a letter which Mr.  26 Sproat had written to the Minister of the Interior  27 enclosing a very long memorandum, Mr. Sproat having  28 been chosen as the joint delegate of the Dominion and  29 the Province of the three-man Indian Reserve  30 Commission.  Mr. Sproat's covering letter is dated the  31 30th of September 1876, and I think I had mentioned  32 that that probably reached Ottawa just about the time  33 of a change in office from Laird to Mills with an  34 interregnum of about two weeks in October.  And I  35 believe I had said to your lordship that Mr. Sproat  36 was somebody who had lived amongst the West Coast  37 Indians of Vancouver Island for a number of years.  38 And his memorandum poses a number of the problems  39 which he foresaw with respect to the Indian Reserve  40 Commission's operations, and he posed a particular  41 question, which is referred to on page 131 of my  42 summary, the question being, and I quote:  43  44 "The practical question now is, does Canada  45 propose to apply this principle of the full  46 Indian title, in the land, to the Indians of  47 British Columbia.  If so, it is necessary that 28251  Submission by Mr. Goldie        1 the Reserve  Commissioners be instructed  2 immediately to make treaties for the cession of  3 the lands and as to what is to be given to the  4 Indians for them..."  5  6 And I say the answer to the Joint Commissioner's  7 question, if any was made, has not been found.  In my  8 submission, however, later events make it clear that  9 the Dominion issued no instructions to the Joint  10 Indian Reserve Commissioners to enter into land  11 cession treaties with the Indians of British Columbia.  12 And turning to tab 81, which is an extract from  13 his long memorandum.  The memorandum in full, my lord,  14 was found under tab 79, and it runs to quite a number  15 of pages.  At the beginning of his memorandum in the  16 second paragraph, after referring to Lord Dufferin's  17 views as expressed publicly and privately to Mr.  18 Sproat, and these views were characterized by Mr.  19 Sproat in his letter in the extract which I have  2 0 quoted, namely:  21  22 "...that Canada should not touch an acre of the  23 soil of any acquired Territory, peopled,  24 however scantily, by Indians, without having  25 previously extinguished the Indian title in a  26 formal and satisfactory manner."  27  2 8 Now, Mr. Sproat went on in his memorandum to say:  29  30 "I carefully refrain from expressing any opinion  31 as to this policy, for my mind is open on the  32 subject, but I rather think this policy  33 considerably differs from the policy of the  34 Imperial Government with respect to the  35 presumed title of the Indians of British North  36 America to the whole of the soil of the Country  37 which they inhabit."  38  39 As for what -- as for the what might be recognized  40 at law, he observed, and I quote, and this is in his  41 page 20:  42  43 "...The law of nations and also, I imagine, the  44 common law of England (in English colonies  45 where it operates) would, if they could sue, be  46 sufficient to secure to the Indians their  47 cultivated fields, their constructed 28252  amenities  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  Submission by Mr. Goldie        1 habitations, the  of their dwellings,  also whatever they had annexed to themselves by  personal labour."  And there is a note appended to that that the Indians  did have the capacity to sue in 1876.  And under  the —  THE COURT:  Where is that reference?  MR. GOLDIE:  That's a note, my lord, immediately following the  quotation in the middle of page 132 of my summary.  And under the blue separator sheet --  THE COURT:  Oh, I see.  Yes.  MR. GOLDIE:  — in tab 111-81 of the yellow binder is the Indian  Act as of 1876, and section 67 reads as follows:  "Indians and non-treaty Indians shall have the  right to sue for debts due to them or in  respect of any tort or wrong inflicted upon  them, or to compel the performance of  obligations contracted with them."  Returning to my summary, commenting upon some of  the same legislation and documents which are in  evidence in the case at bar, Sproat observed that the  Colonies of Vancouver Island and British Columbia had  been erected "without a word being said about any  Indian title to the soil," and noted, in particular,  and the extract of his memorandum is under tab 111-82,  and I have quoted part of it in my summary as follows:  "...that Sir E B Lytton did not recognise any  Indian title to the soil in his acts and  speeches connected with the establishment of  the Colony.  Nor does it appear that Lord Carnarvon, his  then under Secretary, did so in any of the  Despatches which he wrote at that time, nor has  an Indian title to the soil been admitted by  any of Sir E B Lyttons successors, except of  course their rights as English subjects above  mentioned, which I presume the Indians might  claim under the English Common law in British  Columbia whether the English Crown recognised  them or not."  Moreover, he, Sproat that is, observed that: 28253  Submission by Mr. Goldie 1                  "...the British  Parlt., in sanctioning the Union  2 of British Columbia with Canada in 1871, did  3 not declare that there was any full Indian  4 title to be extinguished, and Canada herself,  5 at that time, appears to have omitted to do so,  6 tho' expressly agreeing, in the terms of Union,  7 that the land should belong to the Province.  8 Moreover, Canada stipulated for the grant of a  9 large tract of land in British Columbia for  10 railway purposes, but did not mention that  11 there was any Indian title to such tract to be  12 extinguished by the Crown, or by the Province.  13 If I am right in my recollection of these  14 several matters, it follows that England does  15 not appear to have recognised any particular  16 title, on the part of the Indians to the soil  17 of the Western portion of the Continent, other  18 than the right which subjects of the Crown may  19 generally possess ... The regions above described  20 were dealt with by the Crown without any  21 reference to the Indians..."  22  23 And he concluded at page 28, and I quote:  24  25 "...that the Governments of England and of  26 Canada differ considerably in their views of  27 this question of the full title of the Indians  28 to the soil, so far at least as the central and  29 western portions of the North American  30 continent are concerned..."  31  32 And then I say Canada's new policy of admitting  33 "the full Indian title" in Manitoba and the Northwest  34 Territories differed from Imperial and British  35 Columbia practice.  And Mr. Sproat said, and I quote:  36  37 "The Indian policy of the Governments of  38 British Columbia... with respect to the Indian  39 title to lands, has naturally been the same as  4 0 the Home Government - the country having been  41 mainly governed from England until 1871 when  42 the Colony joined Canada."  43  44 Paragraph 83.  Although it was not accepted that  45 Indians had any title "to all the soil" in British  46 Columbia, Mr. Sproat informed the minister:  47 28254  Submission by Mr. Goldie        1 "...their legal  rights of occupancy and  2 possession of particular portions ... have been  3 fully admitted, as also their equitable claim  4 to an ample sufficiency of land for reasonable  5 subsistence and progress."  6  7 That was at page 32, and the extract is under tab  8 111-83.  9 Then 84.  This was in its essence the policy  10 pronounced by Governor Douglas on the mainland.  11 Sproat's memorandum canvassed many subjects  12 besides the "Indian title" question, including the  13 wisdom and policy of Indian treaties in general and  14 the treaty system in the United States, as well as the  15 status of Indians in British Columbia as self-  16 supporting British subjects with few legal  17 disabilities, not as indigent wards of the state who  18 were compelled to live apart from Europeans.  And that  19 citation or quotation, my lord, is pages 76 to 84, and  20 it is found under tab 111-85.  And without reading  21 what is found under that tab, I can say that he raises  22 the question of the wisdom of treaties as well as the  23 policy of treaties having regard to the fact that the  24 native peoples are in some respects treated as  25 dependent peoples.  26 And I note that Chief Justice Begbie made the same  27 comparison in 1885, and that, my lord, is the  28 reference to the case in which he granted an  29 injunction restraining the contractors of the Dominion  30 Government from going on to a reserve in Victoria for  31 the purpose of building an immigration shed.  32 I note in paragraph 86 the Dominion never issued  33 instructions to the Indian Reserve Commissioners to  34 enter into treaties, despite concerns expressed by  35 Mackenzie's Minister of Finance that title to Pacific  36 railway lands in British Columbia would be burdened by  37 unextinguished "Indian title."  That is Mr.  38 Cartwright's memorandum, which was forwarded to the  39 Colonial Office by -- well, actually, it was addressed  40 to Lord Carnarvon.  And Mr. Cartwright, who is the  41 Minister of Finance, is suggesting that the cost of  42 extinguishing Indian titles in the prairies is one  43 that should be taken into consideration, and then he  44 points out that there's no provision for extinguishing  45 Indian title in British Columbia.  4 6 I note that his memorandum was sent to the  47 Secretary of State for the Colonies by Lord Dufferin 28255  Submission by Mr. Goldie        1 and was included in a  Colonial Office confidential  2 print transmitted to the Treasury Office and  3 acknowledged without comment by Lord Carnarvon.  4 Now, later in 1877 Lord Dufferin raised again the  5 question of the B.C. Indian Land Question, and in a  6 private letter to Lord Carnarvon he described his  7 attempts to impose his personal views respecting the  8 extinguishment of Indian title upon the Prime Minister  9 and other Dominion ministers.  The letter presaged a  10 second and final attempt by the Dominion to induce the  11 Province to accede to a policy which, in my  12 submission, the Dominion was at all times since July  13 1871 free to pursue.  That letter is found under  14 tab --  15 THE COURT:  87.  16 MR. GOLDIE:  — 87.  And Lord Dufferin says, beginning in the  17 second paragraph:  18  19 "As I have often had occasion to mention to you  20 both in my public and private correspondence,  21 the B.C. Government has never dealt properly  22 with its Indians.  Instead of following the  23 example of Canada, and buying up the Indian  24 title, the whites in British Columbia have  25 simply claimed the land as their own, and  26 though they have made certain Indian  27 reservations in various places a great deal of  28 injustice has been perpetrated both in regard  29 to their allotment, and the subsequent  30 resumption of portions of them.  Unfortunately  31 the Dominion Government have no legal power of  32 interference, but by dint of a considerable  33 amount of moral pressure exercised privately by  34 myself, and 'semi'- officially by Mackenzie, we  35 got them to agree to the appointment of joint  36 commissioners who were to settle all disputes  37 upon equitable terms."  38  39 And then he makes reference to the situation in the  40 United States, and that situation gave rise to some  41 considerable concern, which I deal with in the next  42 paragraph.  43 Apprehension that an outbreak of violence between  44 whites and Indians in the United States would spill  45 over into British Columbia gave rise to an exchange of  4 6 views between the governments through the medium of  47 the Joint Indian Reserve Commissioner, that's Mr. 28256  Dominion's  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  Submission by Mr. Goldie        1 Sproat, and the  Indian Superintendent in  Victoria. The cause of the threatened violence had  little to do with a claim for recognition of Indian  title.  I won't go through all of these particular  letters, but they show that the apprehension of  violence did not arise out of the title question in  British Columbia.  It was a spill-over from the state  of affairs in the United States.  But Mr. Mills, who  was by this time the Minister of the Interior, chose  to raise the title question at this point in  conjunction with his concerns over the spill-over, as  I put it.  The first letter under tab 88 is Sproat's  acknowledgment of one of Mills' letters, and I simply  note that Sproat says:  "The Indians have not brought the question,"  that is to say the question of title, because that was  raised in Mills' letter of August 3rd,  "to the notice of the Commissioners, except  indirectly and not pressingly on one or two  occasions, and in all cases the Commissioners  have endeavoured to satisfy the Indians, and  the requirements of a just and liberal  treatment of them, by managing to have ample  land reserves."  And then when Sproat wrote to the Lieutenant-  Governor of British Columbia, enclosing a copy of Mr.  Mills' letter, he said:  "The Indians, so far, have not raised the  question of their title to the soil, though  they have been encouraged to speak their minds  freely, to the Commissioners as their  friends ..."  And then in the report of the Department of the  Interior it is stated, and this is on page 5 of the  pagination at the lower right-hand corner of the  pages, the report stated, and I quote, speaking of:  "...uneasiness and discontent... amongst the  Indian tribes at Kamloops and its neighbour- 28257  Submission by Mr. Goldie        1 hood, and that  the settlers throughout that  2 section of the country entertained serious  3 apprehensions that the Indians meditated a  4 general rising against the Whites."  5  6 The report goes on to say:  7  8 "This discontent was believed to be occasioned  9 mainly by the delay in the settlement of the  10 long pending land difficulties, and was  11 increased in consequence of a rumour which  12 circulated amongst the Indians that the Reserve  13 Commissioners, whom they had been anxiously  14 expecting, did not intend visiting that section  15 of the country."  16  17 Sproat himself did not appear to feel that the  18 matter was of great concern.  That is evident from the  19 page 6, which is an extract from his report.  Oh, I'm  20 sorry, the one I want to refer to is at page 7,  21 beginning at page 7.  Up at the top of the page,  22 "State of Feeling Among the Indians," and I'm now at  23 page 9, he said:  24  25 "There were some circumstances, which, as  26 you are aware, made the work of the  27 Commissioners in this part of the country  28 especially anxious and difficult.  These  29 circumstances were partly historical, and  30 partly of the present time.  The question,  31 according to the contention of the Dominion  32 Government, of the unextinguished title of the  33 Indians to the soil was one of them."  34  35 And another was the cutting down of some of the older  36 reserves.  37 But the Minister of the Interior, and I'm now  38 going to trace through some of Mr. Mills'  39 communications upon which my friends rely, chose to  40 interpret the situation as one involving title, as the  41 following extracts from the correspondence show.  42 On 2nd August the Minister of the Interior sent a  43 telegram to the Indian Superintendent in Victoria.  44  45 "Indian rights to soil in British Columbia have  46 never been extinguished.  Should any difficulty  47 occur steps will be taken to maintain the 28258  Submission by Mr. Goldie        1 Indian claims to  all the country where rights  2 have not been extinguished by Treaty.  Don't  3 desire to raise the question at present, but  4 Local Government must instruct Commissioners to  5 make reserves so large as to completely satisfy  6 Indians."  7  8 And there was a marginal insert.  9  10 "Present condition necessary consequence of  11 British Columbian policy.  Write you today.  12 Send Governor Richards copy of this telegram."  13  14 That's a reference to the then Lieutenant-Governor,  15 Mr. Richards.  16 Then in a letter to Superintendent Powell of the  17 same date the minister wrote that his telegram had  18 indicated, and I quote:  19  20 "...the line which I believed the Government of  21 Canada would feel themselves obliged to take if  22 the Land Commissioners do not deal with the  23 Indians of British Columbia in the most liberal  24 spirit, completely satisfying them as to the  25 extent of land set apart as reserves."  26  27 And I say that he was concerned not with the principle  28 of extinguishing Indian title, but with avoiding an  29 Indian war, and he went on to say:  30  31 "Should anything so disastrous as an Indian war  32 overtake the Province of British Columbia, I do  33 not believe that the Provincial authorities  34 would be permitted to deal with any portion of  35 the lands claimed by the Indians until the  36 Indian title had been first extinguished by  37 making them reasonable compensation."  38  39 And he noted that he did not know if the Canadian  40 Government was "fully aware" of British Columbia's  41 policy when the Terms of Union were being negotiated.  42 And reading directly from his letter, he said:  43  44 "I do not know whether the Government of Canada  45 were fully aware of the condition of things at  46 the time British Columbia was admitted into the  47 Union - whether they were aware that the 28259  Submission by Mr. Goldie        1 Government of  British Columbia had undertaken  2 to deal with the public lands of that Province  3 without first having extinguished the Indian  4 title."  5  6 Now, that, of course, was -- is written by a man who  7 was in opposition at the time.  8 THE COURT:  Where were you reading from there, Mr. Goldie?  9 MR. GOLDIE:  I was reading, my lord, from what is under tab  10 111-90, and it's page 3 using the pagination at the  11 bottom of the page.  12 THE COURT:  Right.  Yes.  13 MR. GOLDIE:  But it is page 6 of his letter.  14 THE COURT:  All right.  15 MR. RUSH:  You don't mean to say he was in opposition at the  16 time he wrote the letter?  17 MR. GOLDIE:  No.  He was the Minister of the Interior at the  18 time he wrote the letter, but he was demonstrating his  19 ignorance of affairs at the time British Columbia  20 joined the Union.  21 Continuing with my summary, after yet another  22 incorrect assertion that British Columbia was the only  23 British Colony in North America to have "undertaken to  24 dispose of the public domain without first having  25 treated with the Indians for its possession," he went  26 on to say:  27  28 "The Government have no desire to raise this  29 question if it can be avoided; and, in my  30 opinion, if the Government of British Columbia  31 will instruct their Commissioner to deal with  32 the Indians in the same liberal spirit that the  33 Indians on the East side of the Rocky Mountains  34 have been dealt with by the Government of  35 Canada, there will be no necessity for raising  36 it."  37  38 And then he went on to say that the -- to note  39 that the Government of Canada had paid "liberally for  40 the extinguishment of the claims of the Hudson's Bay  41 Company in the Northwest Territories."  It had also  42 "made liberal reservations" and granted annuities, and  43 it had done so "because they believe that such a  44 policy is not more just than it is wise and  45 economical."  4 6 And then he said:  47 28260  Submission by Mr. Goldie 1                  "I have no doubt  whatever, that as guardians of  2 the aboriginal inhabitants of the Dominion the  3 Government of Canada have the right to insist  4 upon the extinguishment of their title before  5 the Provincial Govt, assume absolute control of  6 these lands; and if it becomes necessary, in  7 order to prevent an Indian war, to assert this  8 right on behalf of the Indians, there can be no  9 doubt as to the course which it will be the  10 duty of the Federal Government to pursue."  11  12 Now, my lord, finally, and this is, in my  13 submission, most important, he told Dr. Powell that he  14 had not discussed the matter with his colleagues "with  15 a view to entering into any discussion with the Local  16 Govt, as to the Indian title to the Crown Domain in  17 British Columbia," that he hoped it would not be  18 necessary to do so, and that he wanted Powell to  19 ascertain British Columbia's views informally.  And  20 that appears from his letter, and I am referring to  21 page 4 under tab 90, page 4 being the system at the  22 bottom of the right-hand corner, the right-hand corner  23 of the page, internal page 11.  24  25 "I have not deemed it necessary as yet to bring  26 this matter formally before my colleagues, with  27 a view to entering into any discussion with the  2 8 Local Govt...."  29  30 Now, my lord, that, in my submission, means that  31 he was not acting -- he was not expressing the views  32 of the government.  He was expressing his own views.  33 Your lordship commented on the weight to be given  34 various communications and expressions of opinion.  I  35 have already submitted and directed your lordship's  36 attention to the material upon which I rely, that Lord  37 Dufferin in his speech did not represent the views of  38 his ministers.  I say that Mr. Laird in his report,  39 which formed the basis of the Order in Council of the  40 4th of November, was more concerned with the reserve  41 allocation question than with title.  Mr. Mills has  42 raised this question in its most explicit form, but I  43 say he was speaking without the knowledge or  44 concurrence of the cabinet, and I base that on what  45 I've just read.  And he expressed views which were  46 held by many from Ontario, and he continued to hold  47 those views in later years.  In fact, there's an 28261  Submission by Mr. Goldie        1 exchange in the House of  Commons between himself and  2 Sir John A. Macdonald in 1885 when he restates  3 virtually the whole of this.  And when I say restates  4 virtually the whole of it, I mean restates the  5 erroneous views with respect to treaties elsewhere in  6 Canada and the policy of Canada.  I say that it is --  7 I submit, my lord, that it is impossible to place  8 these expressions on the same footing as, for  9 instance, Governor Douglas' declarations, made by one  10 who possessed all the powers of government and who was  11 in himself the cabinet.  12 Now, turning to paragraph 91 of my summary --  13 THE COURT:  Was there any requirement for unanimity with the  14 Commissioners?  15 MR. GOLDIE:  I'm not sure whether there was a requirement, but I  16 am sure that if -- well, I shouldn't say I am sure,  17 but my understanding is that if there wasn't  18 unanimity, the provincial government wouldn't pay very  19 much attention to their recommendation.  2 0  THE COURT:  Yes.  21 MR. GOLDIE:  Now, the Minister of the Interior wrote a similar  22 letter to Mr. Sproat of August the 3rd, 1877, and I've  23 read the acknowledgment of that, but the letter itself  24 is found under tab 91, and it's addressed to Mr.  25 Sproat, dated in Ottawa the 3rd of August.  And he  26 says on page 3 of the letter, second paragraph:  27  28 "It is obvious that the discontent of the  29 Indians is wholly due to the Policy which has  30 been pursued toward them by the local  31 authorities.  The Government of British  32 Columbia have all along assumed that the  33 Indians have no rights in the soil to  34 extinguish, and they have acted toward the  35 Indian population upon this assumption.  This  36 policy is wholly at variance which that which  37 has hitherto been pursued by the Crown in  38 dealing with the aboriginal population of this  39 Continent.  40 Of all the colonies Great Britain  41 established in North America, from the  42 settlement of Virginia and New England down to  43 the present time, British Columbia is the only  44 one which has undertaken to deal with the  45 territory without the Indian title having first  46 been extinguished by treaties with the  47 different native tribes." 28262  assertions  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  Submission by Mr. Goldie        1 Now, that and other  of a like character  have been relied upon by commentators and relied upon  initially in this trial as evidence of the singularity  of British Columbia's policy.  I'm going to refer your  lordship to a statement made to the Joint Committee by  the Deputy Superintendent General of Indian Affairs  when he makes it quite clear that that expression is  erroneous.  Be that as it may, he made reference to the powers  of the Federal Government in this letter to Mr.  Sproat, and I refer to pages 5 and 6, where he said:  "The British North America Act places under  the control of the Federal Government not only  lands reserved for Indians, but also the  Indians themselves; and, in my opinion, the  Federal Government, as the guardians of the  Indians, have the legal right to interfere and  prevent the Provincial Government from dealing  with any public land the Indian title to which  has not been extinguished, and they have the  right, also, as such guardians, to be present  at any negotiation which takes place between  the Indian population and the Provincial  authorities in order that Indian interests may  be adequately protected."  And then a little later on he talks again of head 24  of section 91. Beginning at the bottom of page 7 he  says :  "By the 146th Section of the British North  America Act, the terms and conditions upon  which any Province is admitted into the Union  are only valid in so far as they are not  inconsistent with the general provisions of the  Act; and as one of those provisions places the  Indians and everything pertaining to them under  the guardianship of the Federal Government, it  can neither divest itself of its authority nor  take away the just claims of the Indian  population by failing to question the  assumption of the Province to the absolute  property of the soil," and so on.  He informed Mr. Sproat, as he had Dr. Powell, that  the Dominion was "not disposed to raise the question 28263  Submission by Mr. Goldie        1 of the general rights of  the Indian population to the  2 soil in British Columbia, so long as the Indians were  3 contented, " and to that end the Commissioners should  4 allot reserves "so ample as to avoid the necessity, if  5 possible, of raising the question."  6 Now, as he said, he was looking to the interests  7 of the country as a whole, and he wrote that it was in  8 Canada's interest as much as British Columbia's that  9 an Indian war be avoided.  He thought that the people  10 of Canada would not approve an Indian policy in  11 British Columbia which was, in his opinion, "not only  12 unwise and unjust, but also illegal."  He thereupon  13 urged "the propriety of meeting every reasonable  14 demand on the part of the Indians, both as to the  15 extent and locality of their reservations."  16 My lord, it is submitted that if the minister  17 truly believed that the Dominion's Indian policy in  18 British Columbia was "not only unwise and unjust, but  19 also illegal," he was - as the minister charged with  20 the responsibility for Indians who were considered by  21 Canada to be wards of the Crown - open to charges not  22 only of breach of trust, but of gross dereliction of  23 his duty to countenance neither injustice nor  24 illegality.  25 I'm not saying, my lord, that he didn't -- he  26 wasn't sincere in what he said, but what I am saying  27 is that he simply avoided the consequence of the  28 conclusions that he was stating.  Of course, the  29 conclusions that he was stating were based upon  30 erroneous assumptions, but that doesn't alter the fact  31 that if he thought through what he was saying, he had  32 a duty which he was avoiding.  33 Now, Mr. Sproat, with that document in his hand,  34 sent a copy of it to the Provincial Secretary and to  35 the Lieutenant-Governor of British Columbia.  He told  36 the Lieutenant-Governor that the Indians had not  37 "raised the question of their title to the soil,"  38 although they had been encouraged to speak freely to  39 the Reserve Commissioners, and that as the question  40 was not mentioned in the Commissioners' instructions  41 from either government, he did not consider the  42 minister's letter "as an Amended Instruction, but as  43 an intimation of his opinion on a matter of great  44 magnitude and importance in case events should bring  45 it to the front."  46 That is taken from the -- the typescript of  47 Sproat's letter to the Provincial Secretary is found 28264  Submission by Mr. Goldie 1            under tab 93, the letter  sending it to the Provincial  2 Secretary, and then the one to the Lieutenant-Governor  3 is under the separating sheet.  4 Returning to my summary, the Provincial Secretary  5 replied at some length to Sproat's letter to the  6 Lieutenant-Governor, first noting the Provincial  7 Government's "satisfaction" that the Joint  8 Commissioner did not consider Mills' letter "as an  9 amended instruction."  He expressed the Provincial  10 Government's wish that the Indians "should be dealt  11 with not only justly, but generously," and that the  12 interests of the settlers should be protected at the  13 same time.  Continuing with a spirited defence of the  14 Province's policy, he wrote, and I quote:  15  16 "The Hon. the Minister of the Interior  17 gratuitously assumes throughout his letter that  18 the Indian population of British Columbia has  19 been treated, not only ungenerously, but  20 unjustly.  The history of the Province however  21 tells a very different tale...  22 Before Confederation a discontented Indian  23 could hardly be found in British Columbia, and  24 the Indian title question, as you are aware,  25 had no existence until raised during the past  26 year by His Excellency the Governor General."  27  28 I pause there, my lord, and I say that that is not  29 wholly accurate.  It had been raised by Mr. Bernard in  30 1875 and by the Bishop, the Roman Catholic Bishop of  31 British Columbia in 1872, as contained in Mr.  32 Langevin's report.  33 Now continuing with the quotation from the  34 Provincial Secretary's letter:  35  36 "It would be easy for the Province to charge  37 the present discontent among the Indians to the  38 policy of the Dominion Government, or at least  39 to the manner in which that policy is put in  40 operation, for it is an incontrovertible fact  41 that the discontent and dissatisfaction have  42 originated since the Dominion Government took  43 charge of Indian Affairs in this Province."  44  45 And I refer again to the -- I refer now to the  46 letter which Mr. Sproat wrote to Mr. Mills, which is  47 under tab 111-95.  And this is the same letter that I 28265  Submission by Mr. Goldie        1 started off this  particular section or part of my  2 summary, and I draw your lordship's attention again to  3 the last paragraph, where he says:  4  5 "The Indians have not brought the question  6 to the notice of the Commissioners, except  7 indirectly,"  8  9 etcetera.  10 If I may interject at this point, the Indian  11 population of British Columbia with which the  12 Commissioners were dealing were well aware of the  13 Canadian policy on the prairies.  Mr. Sproat noted  14 that in his long memorandum where he said they have --  15 that they're aware of it and they are becoming  16 discontented.  17 MR. RUSH:  Is there evidence that the Gitksan-Wet'suwet'en were  18 aware of that?  19 MR. GOLDIE:  Well, Mr. Sproat stated that the Indian peoples of  20 British Columbia were alert and that matters flew from  21 tribe to tribe faster than the mails, and I don't  22 think the Gitksan and the Wet'suwet'en were so  23 isolated at that time.  There was a community at  24 Hazelton, and the Kitsegukla affair had occurred some  25 years earlier.  All these things indicated that that  26 community was fully in communication with the rest of  27 the province.  28 Turning to paragraph 95 of my summary, Sproat  29 informed -- oh, I've read that, my lord.  96.  Powell  30 reported to Mills that he had had several discussions  31 with provincial officials on the matters raised in  32 Mills' 2nd of August letter to him and that he had  33 formed the opinion:  34  35 "...that the local Government if convinced that  36 the necessity of effecting [the extinguishment  37 of Indian title] now would devolve upon them,  38 they would much prefer resigning the public  39 lands of the Province to the Dominion  40 Government than to undertake a responsibility  41 which would be attended with so much expense  42 and annual outlay to themselves."  43  44 Powell went on to explain the thinking which had  45 underlain the Colony's policy and which informed the  46 Province's present position.  47 28266  Submission by Mr. Goldie        1 "The system  inaugurated by the late Sir James  2 Douglas appeared to have been successful, and  3 it was thought that his policy of making  4 Indians self reliant, and to take upon  5 themselves as a general thing the independence  6 of British subjects would prove satisfactory."  7  8 The initial success of this approach had been  9 altered, Powell thought, by the circumstance that  10 Indians in British Columbia, having learned of  11 Canada's policy of extinguishing title in the North  12 West and of paying annuities, now wished to receive  13 similar treatment.  14 Now, my lord, I ask your lordship to disregard  15 paragraph 97.  On consideration, I think the document  16 that I rely upon is ambiguous, and I don't rely upon  17 it for the statements made there.  18 Paragraph 98.  There is no evidence of any  19 subsequent direct communication between the Province  20 and the Dominion about Indian matters until December  21 1877.  If I may pause to comment on that point, Mills'  22 expressions of opinion were in each case made to  23 people other than in the Province itself, people other  24 than in the administration of the Province's affairs,  25 and in each case the reaction of the Province was  26 passed through the same intermediaries, Powell and  27 Sproat.  2 8  THE COURT:  Powell was the federal nominee?  29 MR. GOLDIE:  He was the federal nominee in charge of Indian  30 affairs in British Columbia, and Sproat, of course,  31 was the joint nominee -- the Joint Commissioner of the  32 Indian Reserve Commission.  33 THE COURT:  Was this commission in the meantime going about its  34 business of allocating reserves?  35 MR. GOLDIE:  Yes, it was.  36 I say there's no evidence of any subsequent direct  37 communication between the Province and the Dominion  38 about Indian matters until late December of 1877, when  39 the Minister of the Interior, having withdrawn from  40 what in my submission was his earlier ill-informed  41 position, proposed directly to the Lieutenant-  42 Governor of British Columbia the:  43  44 "...adoption of some method of completing the  45 work of adjusting the Indian Land Claims...more  46 simple, expeditious and inexpensive than by the  47 Joint Commission now acting in the matter." 28267  Submission by Mr. Goldie 1                It was "very  desirable" in his view that the two  2 governments should come to a definite agreement "on  3 the course to be pursued on this important question."  4 Referring to Mr. Sproat's assurances that he could  5 complete the Indian Reserve Commission's work alone,  6 and "in such a way as to give entire satisfaction to  7 both Governments and also to the Indians and white  8 settlers," and I emphasize that, the minister urged  9 the provincial government to consider the matter and,  10 if it were unable to agree with those views, "to  11 suggest some other method of dealing with this  12 question; in the early and satisfactory settlement of  13 which both Governments are so deeply interested."  14 He suggested that the Lieutenant-Governor, if he  15 thought well of what he was saying to him, should  16 appear to do this on his own initiative.  And that  17 becomes apparent, my lord, in the letter that Mills  18 wrote to the Lieutenant-Governor dated December 20th,  19 1877, under tab 111-98.  And after referring on page 1  20 to the adoption of some method of completing the work  21 of the commission that I have already referred to, he  22 says on page 2:  23  24 "It is very desirable that before the  25 commencement of the next Session of Parliament  26 and if possible before the commencement of the  27 next Session of your local legislature, the two  28 Governments should have definitely agreed on  29 the course to be pursued on this important  30 question."  31  32 And then after referring to Sproat's confidential  33 report to him:  34  35 "...that, if it be considered essential to  36 reduce the expenditure of the Commission, he  37 would be prepared singly to finish the work  38 which has been commenced by himself and his  39 brother Commissioners..."  40  41 Does your lordship have that?  42 THE COURT:  Yes.  43 MR. GOLDIE:  Yes.  44  45 "...and that he is disposed to believe that he  4 6 could complete it not only much more  47 inexpensively than it has heretofore been 28268  Submission by Mr. Goldie 1                   conducted, but  also in such a way as to give  2 entire satisfaction to both Governments and  3 also to the Indians and White settlers."  4  5 And then he suggests that the Lieutenant-Governor  6 take the opportunity of consulting with Mr. Sproat and  7 possibly laying Sproat's views before the Executive  8 Council.  9 And then in paragraph 6 he says:  10  11 "If on the other hand your advisers are not  12 disposed to endorse Mr. Sproat's views they  13 will no doubt be prepared to suggest some other  14 method of dealing with this question; in the  15 early and satisfactory settlement of which both  16 Governments are so deeply interested."  17  18 Then he goes on to say:  19  20 "It occurs to me that, should you not see  21 any objection to such a course, it might be  22 well that you should bring Mr. Sproat's views  23 under the notice of your advisers as a  24 proposition emanating from yourself and not as  25 made at my suggestion."  26  27 I suppose he was feeling a little tender after having  28 criticized the provincial government in the terms that  2 9 he did.  30 Be that as it may, he said in his next annual  31 report that the causes for apprehension which had so  32 excited him in August of 1877 had "entirely  33 disappeared" and that the Indian Reserve Commission  34 had "given entire satisfaction to the Indian Bands"  35 whose reserves had thus far been allotted.  36 Continuing with my summary, the progress reports  37 of the Indian Reserve Commission, appended to the  38 Minister's Report for 1877, demonstrate the Dominion's  39 approach to the allotment of reserves in British  40 Columbia.  In the report of their meeting with the  41 Musqueam Indians the Commissioners noted -- and that  42 document is under tab 100, and it's on the second  43 page.  At the top of the page the Commissioners state  44 that "their winter's work was to commence near  45 Burrard's Inlet, and thence continue northward along  46 the mainland coast to the head of Jervis Inlet."  And  47 then he says: 28269  Submission by Mr. Goldie 1                  "At Musqueeam the  Commissioners commenced their  2 work."  3  4 And after describing them:  5  6 "To these people the Commissioners confirmed  7 their old Reserve, already surveyed, containing  8 342 acres; and in addition assigned a tract on  9 Sea Island, adjacent, containing some 80 acres  10 of rich meadow land for hay making and pasture.  11 (Here, as elsewhere afterwards, the  12 Dominion Commissioner explained the views of  13 the Dominion Government with regard to the  14 Indians, and the earnest desire that exists to  15 promote their welfare.  The Provincial  16 Commissioner also explained the views of his  17 Government, in accordance with his  18 instructions.  It will, therefore, be  19 unnecessary hereafter to revert to this portion  20 of the subject."  21  22 The Commissioners' Report of their meeting with  23 the Chemainus Indians supplies a little more detail of  24 this procedure, and I quote from what is page 3 of the  25 extract or the third page.  I'm not sure whether it's  26 the Chemainus Indians, but it's over on the Island at  27 any rate.  But I am beginning, in anticipation of  2 8 their argument:  29  30 "...the Dominion Commissioner, in accordance  31 with the tenor of his instructions, informed  32 the Indians at the ouset that, while the  33 Dominion Government in unison with the  34 Provincial Government, were solicitous to  35 promote the interest of the Indians, and to  36 satisfy them in every reasonable way, no  37 interference with the vested interests of the  38 White settlers could be permitted.  These  39 having purchased their land in good faith,  4 0 having made their improvements, and whose money  41 had gone, with other moneys, to make the roads  42 and build the bridges, by which the whole  43 community was benefitted, and the value of all  44 the adjacent land, whether held by Whites or  45 Indians, enormously enhanced."  46  47 Returning to my summary, that the Commission - to 28270  Submission by Mr. Goldie  continued to proceed on the  1  the Dominion's knowledge  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GOLDIE  THE COURT:  MR. GOLDIE  THE COURT:  MR. GOLDIE  THE COURT:  MR. GOLDIE  THE COURT:  basis that no unextinguished Indian title burdened the  lands in British Columbia is clear from the following  passage in Sproat's report of the 1st December 1877,  and that's found --  THE COURT:  I don't see it.  MR. GOLDIE:  It's the fourth page, and it is -- it's page lxxiii  at the top.  THE COURT:  Of tab?  MR. GOLDIE:  Of tab —  100.  -- 100.  All right.  I think I'm correct in that.  Yes.  No, I only have four pages of tab 100.  That's correct, and it's the last page.  Is it quoted in the report?  Yes, it's right up in the first paragraph.  The  quotation that I have in the summary is in the first  paragraph, and it's the last five lines of the  paragraph.  This is Mr. Sproat's report.  Oh, I'm sorry, I thought this was the Department of  the Interior's report.  MR. GOLDIE:  Well, it's the Department of the Interior's report,  but this portion of it is --  THE COURT:  All right.  Yes.  Okay.  MR. GOLDIE:  -- the report of the Indian Reserve Commissioners  for British Columbia.  THE COURT:  Right.  And you're talking about the top of page 4?  Yes, that's right.  And where does it say --  And he says, reading from the second line:  "Some of the Indian tribes, however, will be  found to have better Reserves than others.  Here, as on the coast, the people are attached  to their old places.  The Commissioners had to  deal with the people as they found them, and  with the country, such as it was in the  neighbourhood of the tribes they dealt with.  I  can add with confidence, that, in accordance  with the instructions from both Governments,  the greatest care has been taken to adjust  Indian claims so as to prevent damage to the  interests of the White settlers, and not to  check the progress of White settlement.  This  has been one of the most difficult and anxious  MR. GOLDIE  THE COURT:  MR. GOLDIE 28271  Submission by Mr. Goldie        1 parts of the  duties of the Commission."  2  3 Now, what I'm saying there is that that was how he  4 reported the basis upon which he was operating, and I  5 say it is totally inconsistent with the notion that  6 there was unextinguished Indian title burdening those  7 lands.  8 Now, in my submission, and I'm back at my summary,  9 it is submitted that the question of Indian title  10 could be regarded as having been settled between the  11 Governments of Canada and British Columbia at any one  12 or more of several junctures canvassed in this part of  13 the summary, including:  first, the Dominion's  14 acknowledgment that there was no restraint on the  15 alienation of Crown lands in British Columbia in March  16 1874; second, the Dominion's May 19th, 1876 Order in  17 Council respecting Indian policy in British Columbia,  18 together with its decision that no treaties would be  19 required; third, the application to British Columbia  20 in 1874 of legislation relating to Indians which was  21 silent as to aboriginal title; fifth, the  22 establishment of the Joint Indian Reserve Commission  23 in 1875-1876, and I add having regard to all of the  24 circumstances which led up to that, to the  25 establishment of that commission; sixth, the  26 Dominion's decision not to disallow the 1875 Crown  27 Lands Act of British Columbia despite its apparent  28 failure -- despite its intended failure or actual  29 failure to deal with the notion of title; and finally,  30 the Dominion's agreement, both express and implied,  31 with the view that the allotment of sufficient  32 reserves was all that was necessary to be done.  33 My lord, I turn to the next --  34 THE COURT:  Did they revert to one Commissioner?  35 MR. GOLDIE:  Yes, they did.  36 THE COURT:  Yes, I thought they did.  37 MR. GOLDIE:  And eventually Mr. O'Reilly succeeded Mr. Sproat,  38 and he was the sole Commissioner for a number of  39 years, and then I think Mr. Vowell was the Indian  40 Reserve Commissioner for a while.  41 My lord, I'm going to hand up a replacement for  42 Part IV and ask your lordship to replace what is in  43 there now with what I'm handing up.  44 THE COURT:  I think since you are starting a new section, Mr.  45 Goldie, we'll take a break.  I think we're going to be  46 taking one-hour segments this morning at the request  47 of the reporters. 28272  Submission by Mr. Goldie        1  THE REGISTRAR:  Order in court.  Court stands adjourned.  2  3 (PROCEEDINGS ADJOURNED AT 10:00 A.M.)  4 I hereby certify the foregoing to  5 be a true and accurate transcript  6 of the proceedings transcribed to  7 the best of my skill and ability.  8  9  10  11  12    13 Leanna Smith  14 Official Reporter  15 UNITED REPORTING SERVICE LTD.  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 28273  Submissions by Mr. Goldie        1 (PROCEEDINGS RESUMED  PURSUANT TO A BRIEF ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, before I go on to Part IV, I want to go  6 back to a comment I made when I was reading Mr. Mills'  7 communications and I said that I would refer to a  8 document that indicated the true state of affairs as  9 seen by the Dominion Government in much later years.  10 The reference that I had to Mr. Mills' letters, and I  11 think it's common in both his letters of the 2nd and  12 3rd of August, but I am looking at the one of the 3rd  13 of August under tab 3-90 at page 3, and I read this  14 but I am just bringing it to your lordship's  15 attention.  16 THE COURT:  3-90.  17 MR. GOLDIE:  Yes.  I am sorry, 3-91 page 3.  18 THE COURT:  Yes.  19 MR. GOLDIE:  Where he starts off by saying:  20  21 "It is obvious that the discontent of the  22 Indians is wholly due to the Policy which has  23 been pursued toward them by the local  24 authorities.  The Government of British  25 Columbia have all along assumed that the  26 Indians have no rights in the soil to  27 extinguish, and they have acted towards the  28 Indian population upon this assumption.  This  29 policy is wholly at variance with that which  30 has hitherto been pursued by the Crown in  31 dealing with the Aboriginal population of this  32 continent.  33 Of all the colonies Great Britain established  34 in North America, from the settlement of  35 Virginia and New England down to the present  36 time, British Columbia is the only one which  37 has undertaken to deal with the territory  38 without the Indian title having first been  39 extinguished."  40  41 And I am referring to -- I now refer to the joint  42 committee report of the Senate and House of Commons of  43 1927 which is found in full in Exhibit 1203-13 and I  44 am reading from Dr. Scott's memorandum at page 3 of  45 the proceedings, where he says:  46  4 7 "I have the honour to submit a memorandum on the 28274  Submissions by Mr. Goldie        1 relations  between the Dominion Government and  2 the Indians of British Columbia.  An Aboriginal  3 title to the provincial lands has been since  4 Confederation claimed for the Indians of the  5 Province and has been presented in different  6 forms and by different methods to His Majesty's  7 Privy Council to the Dominion Parliament and to  8 the Dominion and Provincial Governments."  9  10 Then he goes on to say:  11  12 "No cession of the Aboriginal title claimed by  13 the Indians over the lands of the Province of  14 British Columbia has ever been sought or  15 obtained.  In this respect, the position is the  16 same as in Nova Scotia, Prince Edward Island,  17 New Brunswick, Quebec, and the Yukon."  18  19 THE COURT:  Sorry, those are again?  20 MR. GOLDIE:  Nova Scotia, Prince Edward Island, New Brunswick,  21 Quebec, and the Yukon.  And that was made as a simple  22 statement of fact in 1927.  But the facts were the  23 same in 1877 as they were in 1927.  24 Could I now turn, my lord, to the revised Section  25 IV of the Counterclaim which deals with Indian land  26 matters in British Columbia during the second  27 administration of Sir John A. Macdonald, October 17,  28 1878 to June 6, 1891.  That latter date is the date of  29 his death, and the dissolution of his second  30 administration.  I remind your lordship that when he  31 returned to power, the Dominion Lands Act was intended  32 to be applied to the province, the railway lands had  33 not yet been transferred, and it was during his  34 administration that the railway lands were transferred  35 and the application of the Dominion Lands Act to  36 British Columbia was repealed.  The Precious Metals  37 case was decided that held that British Columbia had  38 the right to gold and silver found in the Railway Belt  39 and during his administration the form of how the  40 Dominion would administer lands that its controlled in  41 British Columbia came into focus.  42 Turning to my summary, I say:  The Canadian  43 Pacific Railway was largely constructed during John A.  44 Macdonald's second administration.  45 The details of the implementation of Term 11 of  46 the Terms of Union are really peripheral to the issues  47 in Delgamuukw.  Your lordship will have in mind Term 28275  Submissions by Mr. Goldie        1 11.  2 What is relevant is the manner in which Canada  3 dealt with the lands in British Columbia over which it  4 acquired the sole administrative authority, and upon  5 which lived Indians over whom it had sole legislative  6 and executive authority.  It will be seen that Canada  7 dealt with such lands as if they were unburdened by  8 aboriginal title.  9 For convenience, the Province's -- I will prefer  10 to the Province's statute respecting the transfer of  11 the Railway Belt and the Peace River district as the  12 B.C. Settlement Act of 1883.  The Dominion's companion  13 statute is the Dominion Settlement Act of 1884.  It  14 has been noted that in 1875, in anticipation of the  15 eventual transfer of lands from British Columbia to  16 Canada, the Mackenzie administration extended and  17 applied the Dominion Lands Acts of 1872 and 1874:  18  19 "...to all lands to which the Government of  20 Canada are now or shall at any time hereafter  21 become entitled, or which are or shall be  22 subject to the disposal of Parliament, in the  23 Province of British Columbia, whether the title  24 thereof be legally vested in Her Majesty the  25 Queen for the Dominion of Canada, or howsoever  26 otherwise."  27  28 And your lordship will recall that eventually that was  29 intended to deal with the transfer of the Railway Belt  30 and the Peace River block, those being in effect the  31 only real holdings of the Dominion in British  32 Columbia.  33 Section 42 (the Indian title extinguishment  34 section) of the --  35 THE COURT:  I suppose the Dominion Coal Block in the Kootenays  36 came along later, did it?  37 MR. GOLDIE:  I think it did, my lord.  It was -- it may have  38 been the 19th century, but it was pretty late.  39 THE COURT:  It must have been during the construction of the  40 Crows Nest Pass.  41 MR. GOLDIE:  Yes.  42 THE COURT:  All right.  43 MR. GOLDIE:  Section 42 (the Indian title extinguishment  44 section) of the Dominion Lands Act of 1872 stipulated  45 that the Act's provisions respecting agricultural,  46 timber and mineral lands would not apply to lands to  47 which Indian title had not been extinguished.  The 28276  Submissions by Mr. Goldie        1 effect of this was to  deny settlement and other rights  2 in such lands.  3 Parliament repealed the 1875 Act which applied  4 "The Dominion Lands Acts" to British Columbia on May  5 7, 1880, the day before British Columbia transferred  6 the Railway Belt along the later-abandoned Yellowhead  7 Route.  8 The repealing statute gave to the Governor in  9 Council:  10  11 "...full power and authority... to regulate the  12 manner, terms and conditions in and on which  13 any lands which have been or may be hereafter  14 transferred to the Dominion of Canada under the  15 terms and conditions of the admission of  16 British Columbia into the Dominion shall be  17 surveyed and laid out, administered, dealt with  18 and disposed of."  19  20 Thus, the Indian title extinguishment section  21 applied to Dominion lands in British Columbia west of  22 the Rocky Mountains for a period of only five years,  23 from 1857 to 1880.  It was imposed by the Mackenzie  24 administration when Indian title in British Columbia  25 was an issue and when little of the Crown land in the  26 Province was under the control of the Crown in right  27 of Canada:  It had, in my submission, little, if any,  28 practical significance.  29 It was removed by the Macdonald administration on  30 the day before the Railway Belt along the route first  31 selected was transferred to the Crown in right of  32 Canada.  33 It is submitted that the policy implication behind  34 the repealing statute is clear:  so far as the second  35 administration of Sir John A. Macdonald - under whose  36 leadership the British Columbia Terms of Union were  37 negotiated - was concerned, there was no Indian title  38 in British Columbia.  39 Four years later, the "Dominion Settlement Act of  40 1884" ratified the 1883 agreement under which British  41 Columbia transferred to Canada both the Railway Belt  42 ("wherever finally settled"), that's the words from  43 Term 11, and 3.5 million acres in the Peace River  44 district, "east of the Rocky Mountains and adjoining  45 the North-West Territories of Canada.  That act is  46 under tab 4-6.  It's the Dominion Act respecting the  47 Vancouver Island Railway, the Esquimalt Graving Dock, 28277  Submissions by Mr. Goldie        1 and certain Railway  Lands of the Province of British  2 Columbia and it recites:  3  4 Whereas negotiations between the Governments of  5 Canada and British Columbia have been recently  6 pending, relative to delays in the commencement  7 and construction of the Canadian Pacific  8 Railway, and relative to the Vancouver Island  9 Railway, the Esquimalt Graving Dock, and  10 certain railway lands of the Province of  11 British Columbia:  12 And, whereas, for the purpose of settling  13 all existing disputes and difficulties between  14 the two Governments, it hath been agreed as  15 follows:  16 a)  The Legislature of British Columbia shall  17 be invited to amend the Act number eleven, et  18 cetera, so that the same extent of land on each  19 side of the line of railway through British  20 Columbia, wherever finally settled, shall be  21 granted to the Dominion Government in lieu of  22 the lands conveyed by that Act."  23  24 And then section (c):  25  26 "(c)  The Government of British Columbia shall  27 obtain the authority of the Legislature to  2 8 convey to the Government of Canada three and  29 one-half millions of acres of land in the Peace  30 River District of British Columbia, in one  31 rectangular block, east of the Rocky Mountains  32 and adjoining the North-West Territories of  33 Canada."  34  35 Section 11(5) of the Act repealed the 1880 Act which  36 provided for the administration by the Governor in  37 Council of Dominion Lands in British Columbia, but for  38 the lands in the Railway Belt, the powers of the  39 Governor in Council stated:  40  41 "...to regulate the manner in which and terms  42 and conditions on which the said lands shall be  43 surveyed, laid out, administered, dealt with  44 and disposed of..."  45  46 were left intact.  That's Section 11(4).  So your  47 lordship will see when I refer to the next section, 28278  Submissions by Mr. Goldie        1 namely 12, that lands  in the Peace River district  2 (lying east of the Rocky Mountains) were to be  3 administered differently.  They were deemed to be  4 "Dominion lands within the meaning of the Dominion  5 Lands Act, 1883.  And that's stated in section 12.  6 The three and one half millions of acres of lands and  7 that portion of the Peace River district of British  8 Columbia lying east of the Rocky Mountains and  9 adjoining the North-West Territories of Canada shall  10 be held to be Dominion lands within the meaning of the  11 Dominion Lands Act, 1883.  These have been -- were put  12 in earlier, my lord, but I have included following  13 that section of the act.  14 THE COURT:  What was the reason again for removing the operation  15 of the Dominion Lands Act prior to the conveyance of  16 the Railway Belt and the Peace River block?  17 MR. GOLDIE:  As I can only speculate on this, but the  18 application of the Dominion Lands Act to British  19 Columbia as imposed during the Mackenzie  20 administration made no distinction between lands east  21 of the Rockies and lands west of the Rockies.  This  22 act kept lands east of the Rockies under the Dominion  23 Lands Act and set up lands west of the Rockies under a  24 different administration.  The practical effect was to  25 treat the Peace River block in the same fashion as the  26 lands and the prairie provinces were being treated,  27 whereas the lands in the Railway Belt were to be  28 administered according to regulations passed by the  29 Governor in Council.  30 THE COURT:  All right.  31 MR. GOLDIE:  My lord, I am handing up two maps which show the  32 locations of the Railway Belt and the Peace River  33 block, and these are in another volume of documents  34 but they might be conveniently placed here in the  35 yellow binder following the extract from the Dominion  36 Act of 1884.  37 MR. RUSH:  Where do these come from please?  38 MR. GOLDIE:  These come from the provincial surveyor's office.  39 MR. RUSH:  Are they exhibited?  40 MR. GOLDIE:  Not to my knowledge.  41 THE COURT:  I have seen this before.  42 MR. GOLDIE:  Yes, we have -- they have been referred to before  43 in the course of this.  44 THE COURT:  I don't know where I saw them before but I identify  45 them.  Where do you say they should go?  46 MR. GOLDIE:  I suggest, my lord, they go following the act which  47 makes the distinction between the Peace River block 28279  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 and the Railway Belt.  THE COURT:  And that would be in tab?  MR. GOLDIE:  Under tab 4-6.  THE COURT: Yes. I am troubled -- not troubled, just curious  about the Peace River block. Looks like the larger  section is in Alberta.  MR. GOLDIE:  Well, I think, my lord, that the section in Alberta  simply demonstrates the survey lines which have been  laid out there but --  THE COURT:  I thought the Peace River block had two contiguous  portions to it.  This looks like it's one square  parcel.  MR. GOLDIE:  I believe it's just the one -- the one solid block.  THE COURT:  All right.  All right.  I thought you read me  something a moment ago that suggested it was two  separate blocks, two separate contiguous blocks.  MR. GOLDIE:  No, just in this -- what I read was from the  agreement between the Dominion and the Province which  is recited at the beginning of the 1884 Act, and if  your lordship would look at the first page under tab  4-6, the section (a) of the agreement refers to the  amendment of an act so that the same extent of land on  each side of the line of railway through British  Columbia wherever finally settled shall be granted to  the Dominion Government in lieu of the lands conveyed  by that Act.  That was in lieu of the Yellowhead  Route.  Then over the page item (c) is the second, and  that's the Peace River block.  "The Government of British Columbia shall obtain  the authority of the Legislature to convey to  the Government of Canada three and one-half  millions of acres of land in the Peace River  District of British Columbia, in one  rectangular block..."  THE COURT:  MR. GOLDIE:  One rectangular block.  I thought I heard two.  "...east of the Rocky Mountains and adjoining  the North-West Territories..."  THE COURT:  I know what happened.  I have seen that map before  and saw two rectangular blocks and thought you were  referring to the same thing.  Thank you.  MR. GOLDIE:  Now, my lord, I am at paragraph 7 of my summary.  As for the Peace River lands, section 3 of the 1883 28280  Submissions by Mr. Goldie        1 Dominion Lands Act  provided as follows:  2  3 "None of the provisions of this Act shall be  4 held to apply to territory the Indian title to  5 which shall not, at the time, have been  6 extinguished."  7  8 Now, that was the successor of the original  9 Section 42 but went a bit further because the original  10 sections made specific reference to agricultural  11 timber and mineral lands, whereas the section that was  12 currently in effect provided that Indian title  13 generally had to be extinguished before there was --  14 settlement could be effected.  15 Now, I speculate, my lord, in paragraph 8 of my  16 summary on the reason for the difference in treatment  17 when I say:  The reason for applying the Dominion  18 Lands Act to lands in the Peace River district east of  19 the Rocky Mountains may have been simply that those  20 lands, being physically similar to lands in the  21 prairies, were considered more suitable for regulation  22 under that Act.  23 This explanation is supported by the preamble of  24 the 1880 "repealing" Act which removed the application  25 of the Dominion Lands Act from British Columbia.  The  26 preamble noted:  27  28 "...that the conformation of the country upon  29 and in the vicinity of the located line of the  30 Canadian Pacific Railway, through the Province  31 of British Columbia, is such that it is  32 inexpedient to attempt to apply the provisions  33 of the Dominion Lands Act."  34  35 Now, all I can say, my lord, is that that was a  36 recital of a physical fact and the conformation of the  37 country did not change with the comings and goings of  38 the statutes.  However, whatever the reasons for  39 separate administrative schemes, it will be seen that  40 the Dominion extinguished Indian title in the Peace  41 River block by Treaty 8.  42 THE COURT:  That was in the 1890s.  43 MR. GOLDIE:  Yes.  44 THE COURT:  Well, Treaty 8 was 1890.  I think the Peace River  45 block was later, wasn't it?  46 MR. GOLDIE:  Well, there was an adhesion in the Peace River  47 block in the Fort Nelson bands whose reserves weren't 28281  later  but  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 allotted until years  I will be coming to  that in due course.  MR. RUSH:  Treaty 8 covered more than the Peace River block.  THE COURT:  Indeed, it covered most of the prairies.  MR. GOLDIE:  It covered west of the Rockies.  MR. RUSH:  In B.C., my lord.  THE COURT:  Yes, yes.  MR. GOLDIE:  But not the Yukon.  The long title of the Dominion Settlement Act of  1884, which we have been referring to, that is to say  an act respecting the Vancouver Island Railway, the  Esquimalt Graving Dock and certain railway lands of  the province of British Columbia granted to the  Dominion, reflects the scope of the agreement between  Canada and British Columbia which the Act ratified,  and which had already been ratified by British  Columbia by the B.C. Settlement Act of 1883.  And I  have made reference to the preamble.  The preamble to the recital of the agreement  states that it was intended to settle "all existing  disputes and difficulties between the two  Governments ..."  There is no reference to Indian title in the  agreement.  And I don't want to emphasize it over  much, my lord, but Indian title was in legislation, it  is not a question of Indian title being something  unknown.  The Dominion Lands Act, which was going to  be -- was made applicable to the Peace River block,  made specific reference to Indian title.  Continuing.  The agreement, as implemented by the  two Settlement Acts, bound Canada to open lands in the  mainland Railway Belt for settlement as soon as  possible and to give squatters a prior right of  purchase.  And that is evident from the sections of  the Act, and I needn't refer to them.  Unlike Dominion lands in Manitoba, the Northwest  Territories, and northeastern British Columbia, which  were not open to settlement before Indian title was  extinguished, and I interject that, by virtue of the  Dominion Lands Act, Railway Belt lands and other  Dominion lands west of the Rocky Mountains, were  considered by Canada to be free from the necessity of  extinguishing Indian title before settlement was  allowed to proceed.  That this was so is clear, not only from the fact  that the Railway Belt lands were not made subject to  the Dominion Lands Act, but also from the fact that 28282  Submissions by Mr. Goldie        1 the Indian title  section of the Dominion Lands Act  2 1883, section 3, was purposely omitted from the first  3 set of Regulations promulgated by the Dominion for the  4 administration and disposal of lands in the Railway  5 Belt.  And I make reference there, my lord, to the  6 draft of the regulations under tab 10 attached to the  7 Order in Council adopting them, and your lordship will  8 see that -- that the draft regulations are headed:  9  10 "For the disposal of Dominion Lands within the  11 railway belt in the Province of British  12 Columbia."  13  14 That's the third page in under that tab.  And then  15 over the page, your lordship will see sidelined the  16 handwriting which is on the right-hand side of the  17 printed text, "Sec. 3 D.L.A. having reference to  18 extinguishment of Indian title omitted".  19 THE COURT:  This is a draft, is it?  20 MR. GOLDIE:  It is a draft but it is attached to the Order in  21 Council, my lord.  22 THE COURT:  I see.  23 MR. GOLDIE:  It is what was approved by the Cabinet and approved  24 by the Governor-General.  So this -- this was  25 something which was drawn specifically to the  26 attention of the -- of the cabinet by the Minister who  27 was the Prime Minister, the Order in Council being the  28 following regulations for the survey, administration  29 and disposal of Dominion lands within the Railway Belt  30 in the province of British Columbia being the same or  31 hereby approved and adopted, and then the regulations  32 are attached with the explanatory notes set out there.  33 There are other sections of the Dominion Lands Act  34 which are omitted and there are explanation given.  35 That's not the only one but it's the only one which is  36 relevant and it, my lord, is clear that the minds of  37 the draughtsmen and the collective mind of the  38 cabinet, who was directed to the question of the  39 extinguishment of Indian title in that portion of  40 British Columbia which was comprised within the  41 Dominion Lands Act -- within the Railway Belt.  42 Now, I am back in my summary.  The distinction  43 between Railway Belt and Peace River district lands  44 was preserved in the 1886 statute relating to Dominion  45 Lands in British Columbia.  That's an act respecting  46 public lands in British Columbia.  It is under tab 11.  47 Railway Belt lands continued to be regulated by 28283  Submissions by Mr. Goldie 1            the Governor in  Council, s. 1(4) (although the  2 Dominion Lands Board could be given jurisdiction over  3 them, s. 1(5)); lands in the Peace River district  4 lying east of the Rocky Mountains and adjoining the  5 North-West territories remained subject to the  6 Dominion Lands Act.  That's s. 2.  I note in my  7 summary at page 157 that the Indian title  8 extinguishment section was preserved as section 4 in  9 the 1886 Dominion Lands Act consolidation.  It was  10 eliminated in the 1908 Dominion Lands Act which, of  11 course, was after Treaty 8, for reasons which are  12 stated in the exhibits to which I will now refer.  13 Under tab 4-11, my lord, the first item is the act  14 itself.  Then follows the Dominion Lands Act, 1886  15 consolidation, second page of which is section 4:  16  17 "None of the provisions of this Act shall apply  18 to territory the Indian title to which is not  19 extinguished."  20  21 So that is applicable to the Peace River block, but  22 not to the railway lands.  And then follows the, in  23 Bill form, the 19 -- what became the 1908 Act which  24 consolidated the Dominion Lands Act, and I have drawn  25 this to your lordship's attention before but -- at the  26 second page, which is page 6 of the tab numbers, your  27 lordship will see at the bottom of the page "Repeal",  28 and it reads:  29  30 "Chapter 55 of the Revised Statutes, 1906, is  31 repealed.  32 Eliminated Provisions of Present Law.  33 Explanatory note. - The following sections not  34 referred to in the foregoing notes have been  35 omitted:  36 Section 4..."  37  38 which I read to your lordship a few minutes ago:  39  40 "...of chapter 55, Revised Statutes, which  41 provides that the Act shall only apply to  42 territory in which the 'Indian title' has been  43 extinguished, has been omitted, as it created a  44 question as to whether the Act applied to the  45 Yukon Territory were no extinguishment of  46 Indian title was ever effected, for the reason  47 that the same policy was followed in regard to 28284  Submissions by Mr. Goldie        1 Indians there as  followed on the Pacific  2 coast."  3  4 Now, if I can stop right there, my lord, that  5 policy is the Dominion's policy.  British Columbia had  6 no jurisdiction in the Yukon.  7 Continuing:  8  9 "The only object conceivable for the provision  10 was the making of a statutory guarantee that  11 the condition of the deed of surrender from the  12 Hudson's Bay Company to the Dominion, which  13 provided that the Indian claims should be  14 extinguished within the tract ceded, would be  15 carried out; but as the territory covered by  16 the deed of surrender has been ceded by the  17 Indians there is no longer reason on that score  18 for perpetuating the section."  19  20 I make the obvious submission, my lord, that the  21 reason for the repeal is a policy reason.  The  22 requirement has been met.  The requirement has nothing  23 to do with the Royal Proclamation or anything else.  24 It is traced back to the terms under which Canada  25 acquired Rupert's Land and the Hudson's Bay  26 territories adjacent to Rupert's Land.  27 I now make reference to certain other legislative  28 provisions relating to the question of whether  29 aboriginal title was thought to be a matter of  30 interest in British Columbia.  On February -- I am at  31 paragraph 12 of my summary.  32 On February 15, 1881 Royal Assent was given to An  33 Act respecting the Canadian Pacific Railway, whose  34 preamble cited the Dominion's obligation to construct  35 a railway to the coast of British Columbia.  36 Section 3 provided for the granting by Canada of  37 lands for the right of way and other purposes.  38 Annexed as a Schedule to the Act was a contract  39 between the Government of Canada and those persons who  40 undertook to construct the railway.  Clause 12 of the  41 contract provided:  42  43 "The government shall extinguish the Indian  44 title affecting the lands herein appropriated,  45 and to be hereafter granted in aid of the  46 railway."  47 28285  Submissions by Mr. Goldie        1 The C.P.R. Contract  also incorporated into the  2 Letters Patent granted to the Company by the Governor  3 in Council the next day.  4 This contractual provision notwithstanding, Canada  5 never entered into any land cession agreements with  6 Indians in the Railway Belt and on March 25, 1930 had  7 transferred the Railway Belt back to British Columbia.  8 While it is generally accepted that 19 December  9 1883 was the effective date of transfer of the Railway  10 Belt to the Dominion, the exact date is irrelevant  11 here as no matter which date is taken, it remains  12 that, and I now quote from the Fisheries reference:  13  14 "...the entire beneficial interest in everything  15 that was transferred passed from the Province  16 to the Dominion.  There is no reservation of  17 anything to the grantors.  The whole solum of  18 the belt lying between its extreme boundaries  19 passed to the Dominion..."  20  21 And I site that in support of the obvious proposition  22 that on -- when the Railway Belt was under the  23 administration of the Dominion, it was in the position  24 of being the Crown in right of Canada -- it was in the  25 position as the Crown in right of Canada of having  26 complete responsibility for all that went on within  27 the Belt.  28 Of course, if the Plaintiffs' view of the  29 "fundamental principles of the common law of  30 aboriginal title" is correct, nothing passed to Canada  31 except a bare right of pre-emption.  I say that's a  32 remarkable result which can only be explained by their  33 Lordships' ignorance of what the Plaintiffs say was a  34 "well-established rule of common law".  35 From 1883 (at the latest) until 1930, unsettled  36 lands in the Railway Belt were "public property"  37 within the meaning of section 91 of the Constitution  38 Act, 1867, and as such they were within the exclusive  39 legislative authority of the Parliament of Canada.  40 And I make reference there to the Burrard Power  41 Company case.  42 Throughout that period there was no impediment,  43 constitutional or legislative, to the extinguishment  44 by the Dominion of any Indian title, if such existed,  45 in those lands which it had the sole beneficial  46 interest, and from which it derived revenues arising  47 from their management and disposition. 28286  Submissions by Mr. Goldie        1 Despite the fact  that it was contractually bound  2 to extinguish Indian title to lands appropriated and  3 granted in aid of the Railway, Canada never did so in  4 British Columbia because, in my submission, as far as  5 Canada was concerned, there was no aboriginal title in  6 British Columbia.  7 Now, my lord, I turn to another incident.  On June  8 23, 1883, the Dominion's Minister of Justice, Sir  9 Alexander Campbell, was appointed by the Governor in  10 Council to visit British Columbia in order to consult  11 with the Provincial Government about various unsettled  12 matters, among which was the transfer of the mainland  13 Railway Belt.  He was also instructed to examine:  14  15 "...into all matters of importance relating to  16 the Indians of British Columbia, the  17 organization of the Indian Department and  18 agencies there, and the best means of improving  19 their condition both on the Island and on the  2 0                   Mainland."  21  22 Campbell's formal report on the results of his  23 mission was approved by the Governor in Council on  24 September 27, 1883.  25 His report set out the matters upon which  2 6 agreement between the two governments had been  27 reached.  This of course foreshadowed the 1884 Act,  28 the Vancouver Island Railway, the Graving Dock, the  29 mainland Railway Belt, and the Judiciary, and appended  30 the Memorandum of Agreement signed by Campbell and  31 Premier Smithe of British Columbia in August 20, 1883.  32 The agreement included the following statement:  33  34 "The above includes all matters as to which  35 there is any dispute or difference between the  36 Government of the Dominion and the Government  37 of British Columbia, and when carried into  38 effect, will constitute a full settlement of  39 all existing claims on either side or by either  4 0 Government."  41  42 There is no suggestion that Indian title was a matter  43 over which there was any dispute between the  44 governments, or indeed that it was discussed at all.  45 Campbell submitted a separate, informal, report on  46 Indian matters to the Superintendent General of Indian  47 Affairs.  It contains no reference to Indian title. 28287  Submissions by Mr. Goldie        1 Although Indian  title was not an issue - either  2 between the government or between the Indians and the  3 governments - when Campbell visited British Columbia  4 in the summer of 1883, it became one before the end of  5 that year, and remained active for the next several  6 years.  7 The roots of the recurrence of the issue lay in a  8 religious dispute involving missionary efforts on the  9 northwest coast of British Columbia.  One of the  10 missionaries was William Duncan who had for many years  11 ministered to Indians on the northwest coast from his  12 base establishment at Metlakatla near Fort Simpson.  13 That the dispute was originally between  14 co-religionists of the Church Missionary Society, and  15 had nothing whatever to do with a claim for aboriginal  16 title, is demonstrated by the following:  I am not  17 going to go through these, my lord.  The origin of the  18 dispute had nothing to do with Indian title.  19 Going to paragraph 22.  On February 28, 1883, the  20 Superintendent General of Indian Affairs referred this  21 matter to the Dominion's Confidential Agent in British  22 Columbia, then Mr. Trutch, for his consideration.  23 Trutch considered it inadvisable for the  24 Government to interfere in "an affair of religious  25 conviction and practice... however much they may regret  26 its existence".  He recommended that the boundaries of  27 the two-acre tract of land which the Provincial  28 Government had reserved to the Church Missionary  29 Society be surveyed and conveyed to the society.  Once  30 this was done:  31  32 "...the Agents of that Society will of course be  33 in their right within those bounds; but outside  34 these limits they, in common with Mr. Duncan,  35 and other missionary agents at Metlakatla, must  36 abide by the rules and regulations of the  37 Indian Act and in all their dealings with the  38 Indians on the Metlakatla Indian Reservation  39 which surrounds their private property."  40  41 The Governor in Council concurred in Trutch's  42 recommendations on July 7 of 1883, and ordered that  43 the Provincial Government be informed accordingly.  44 The attempted survey precipitated a more serious  45 dispute in which claims of Indian title became an  46 issue.  47 My lord, that takes me over to Section V. 28288  Submissions by Mr. Goldie        1  THE COURT:  I am not sure I have  grasped the point there.  Is it  2 the conveyance of two acres was done without regard to  3 Indian title?  4 MR. GOLDIE:  No.  The two acres, your lordship may recall, was  5 resurveyed by Douglas for the Church Missionary  6 Society when Mr. Duncan was their lay representative  7 and it was to be set aside for the purpose of building  8 a church.  When the dispute between Duncan and Bishop  9 Ridley over purely religious matters of practice  10 became serious, Mr. Duncan's view was that the  11 two-acre parcel was part of the larger reserve.  The  12 Church Missionary Society in the person of Bishop  13 Ridley viewed the two-acre parcel as particularly  14 belonging to the Society and the petitions and letters  15 to government from Mr. Duncan and his adherents at the  16 outset took the view that the Church Missionary  17 Society or the Anglican church have no right to the  18 two acres.  That was not a proposition that was  19 accepted by anybody but it was becoming a source of  20 embarrassment, and perhaps I can just pick up  21 paragraph D on page 163 of my summary, my lord.  There  22 had been a breach of the peace at Metlakatla.  23 THE COURT:  Well, Mr. Goldie, if your point here is this is  24 background information indicating the genesis of the  25 Indian title problem, then I understand you.  26 MR. GOLDIE:  Yes, it is.  And I can almost get to the conclusion  27 in almost one sentence.  Mr. Duncan, in order to  28 dispute the title of the Church Missionary Society,  29 developed the view that the Crown had no title to  30 grant the two acres.  He said the Indians have neither  31 ceded the land nor had they been conquered; therefore,  32 they had title to the two acres.  And from that little  33 acorn grew a very serious dispute which led to an  34 investigation by two commissions of inquiry.  35 THE COURT:  Yes.  Now I understand because I see your next  36 section continues on the subject.  37 MR. GOLDIE:  Yes, and I am not going to spend all that amount of  38 time because the ramifications of that dispute were  39 pretty fortuitous, but throughout was the thread of  40 the proposition that Mr. Duncan developed, that the  41 title to the entire country had never moved from the  42 Indians to the Crown.  43 THE COURT:  I think we will take another short adjournment.  44 THE REGISTRAR:  Order in court.  Court stands adjourned.  45  46 (PROCEEDINGS ADJOURNED AT 11:00 a.m. FOR A BRIEF RECESS)  47 28289  Proceedings  the foreg<  oing  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  I hereby certify  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Tannis DeFoe,  Official Reporter,  UNITED REPORTING SERVICE LTD. 28290  Submissions by Mr. Goldie        1  THE COURT:  Mr. Goldie.  2 MR. GOLDIE:  Thank you, my lord.  I am at page 165 commencing  3 Section V.  4 THE COURT:  Yes.  5 MR. GOLDIE:  As I have already indicated, the Metlakatla dispute  6 really escalated division opinion over religious  7 practices into a very extensive controversy and it was  8 in the course of that that Mr. Duncan attacked the  9 title of the two acre allotment made by Douglas in  10 favour of the Church Missionary Society and in so  11 doing attached the title of the Crown in right of  12 British Columbia.  13 Turning to my summary, I say:  As was noted in the  14 previous section of this Summary, some Indians and  15 their advisors on the Northwest coast of British  16 Columbia claimed unextinguished aboriginal title  17 during the decade of the 1880s.  I pause there and say  18 that was evident in the materials that I skipped.  19 Appeals and submissions made by and on behalf of the  20 Indians were made to the Government of British  21 Columbia, to the Government of Canada, and to the  22 Government of the United Kingdom.  23 There were two official Commissions of Inquiry:  24 one provincial (the 1884 Davie/Ball Commission), and  25 one joint (the 1887 Cornwall/Planta Commission).  26 There was also a formal inquiry by the Church  27 Missionary Society.  28 In my submission, the Government of the Dominion  29 rejected claims of aboriginal title in British  30 Columbia.  At the same time it avowed its intention to  31 adhere to the British Columbia Terms of Union, Term 13  32 of which embodied the whole of British Columbia's  33 obligation towards the Indian peoples.  Indian  34 reserves continued to be allotted and were steadfastly  35 protected which the Dominion in exercise of its role  36 as trustee of lands reserved for Indians.  37 Throughout this decade, the Dominion government  38 was led by Sir John A. Macdonald, whose previous  39 government was responsible for the negotiation of the  40 British Columbia Terms of Union.  41 In my submission, it is clear that the aboriginal  42 title claim was initiated by the missionary, William  43 Duncan and his followers, who seized upon it as a  44 means to remove the Church Missionary Society from the  45 Metlakatla reserve, and then to retain control over  46 the Tsimshian Indian reserve as against both federal  47 and provincial intrusion.  And I make reference there 28291  Submissions by Mr. Goldie        1 to certain documents  which support that.  2 It is also clear that the idea of aboriginal title  3 was spread by missionaries and by word-of-mouth to  4 nearby areas, including the middle and upper Skeena  5 River.  6 A subsidiary purpose to the review of events on  7 the northwest coast during the 1880s is to demonstrate  8 that the people who lived along the Skeena River - who  9 were ministered to and tutored by one of Mr. Duncan's  10 adherents, Robert Tomlinson - knew about events on the  11 coast.  Although they protested against some actions  12 taken by Europeans, the Skeena River people generally  13 accepted the presence of "outsiders" without  14 complaint.  The few documented confrontations had in  15 my submission nothing whatever to do with claims to  16 aboriginal title in lands.  Now that proposition has  17 been dealt with in the course of the trial and in  18 other parts of the argument.  19 Paragraph four.  Following the Governor in  20 Council's 7 July 1883 recommendations -- now, that is  21 what is referred to as page 164 of my Summary.  22 THE COURT:  That's the first one or second one?  Second one?  23 No, that would be the first.  24 MR. GOLDIE:  Yes.  That, my lord, was the acceptance of Mr.  25 Trutch's recommendation.  2 6  THE COURT:  Oh.  All right.  27 MR. GOLDIE:  That a survey be made.  And the two acre parcel  28 conveyed to the Church Missionary Society so that that  29 dispute over ownership could be put to rest.  Mr.  30 Trutch had also recommended that an Indian agent be  31 appointed, and this was done.  Mr. J. W. McKay, with  32 Dr. Powell, arrived in November of 1883.  By that  33 time, Mr. Duncan had been relieved of his Commission  34 as Justice of the Peace, and his authority on the  35 Tsimshian reserve was not recognized by either  3 6 government.  37 On their arrival, Mr. McKay and Powell, agents of  38 the Dominion government, were informed by Mr. Duncan  39 and his Indian followers that the Indians claimed  40 unextinguished aboriginal title in the lands which had  41 been set apart as a reserve for them by Indian Reserve  42 Commissioner O'Reilly.  43 On December 13, Powell informed the Superintendent  44 General of Indian Affairs in Ottawa by telegram that  45 the Metlakatla Indians, acting on Duncan's advice, had  46 refused to obey the Indian Act or to have their land  47 treated as a reserve.  They had rejected McKay as 28292  Submissions by Mr. Goldie 1            agent and were  attempting to get other Indians to act  2 with them.  Their claim was based "... on prior or  3 aboriginal title to lands which the[y] state they have  4 never disposed of or alienated by treaty or  5 otherwise... "  That document, my lord, is under tab 4  6 and I won't -- I won't read it, but I do draw your  7 lordship's attention to one paragraph in the -- in Dr.  8 Powell's letter to the department.  And it is on page  9 two towards the bottom of the paragraph on that page.  10 It reads as follows:  11  12 "The feeling that is encouraged among the  13 Indians at Metlakahtla and Fort Simpson against  14 Mr. O'Reilly will no doubt extend to other  15 tribes speaking a kindred tongue on the Skeena,  16 and, if not checked, their real source and  17 origin will, in my opinion, operate materially  18 against the proper performance of that  19 Officer's duty when his work is resumed on the  20 Skeena."  21  22 Mr. O'Reilly by that time being the sole joint -- the  23 sole Indian Reserve Commissioner.  24 Paragraph five of the Summary.  Mr. Powell sent  25 a -- Dr. Powell sent a full report to Ottawa on  26 December 20, 1883.  He described meetings with Duncan  27 and his followers, and noted presence of "the Revd.  28 Mr. Tomlinson".  Powell had told the Indians that the  29 Dominion government's concern was for their welfare;  30 that a reserve had been set aside for their exclusive  31 use; that the Indian Act would be enforced on their  32 reserve; and that the Queen's laws "which are made for  33 the welfare of all will be rigorously upheld."  Now,  34 that if your lordship would insert the words  35 "enclosure number one" in the brackets before pages 15  36 to 16.  And Mr. Duncan had asserted to Powell, quote:  37  38 "...[The Indians'] rights were long prior to  39 the Indian Act - in fact to the title of the  40 Crown to the land, the Indians were the first  41 owners of the soil, they had never been  42 conquered, nor had they been disposed of their  43 rights by treaty, or otherwise and he had been  44 informed by a Judge of the Supreme Court in  45 Victoria that their case was a good one for  46 argument, and favourable consideration..."  47 28293  Submissions by Mr. Goldie        1 He also said:  2  3 "... that in his opinion the Reserve  4 Commissioner would not be allowed to resume his  5 work on the North West Coast, and Mr. O'Reilly  6 would find serious opposition when he began  7 work again on the Skeena."  8  9 Now, responding to Powell's address to them, the  10 "Council and People of Metlakatla" acknowledged that  11 the Indian Reserve Commissioner had allotted a  12 reserve.  This is enclosure number two.  But they  13 wondered,  14  15 "...  why do the Government do this with our  16 property the land our ancestors owned; and  17 occupied by them centuries before the  18 Government or white men came.  19 We own these lands and are still occupying  2 0                   them and we are using them more than our  21 forefathers did.  22 If the Government has already claimed our  23 lands, we ask you again does the Queen's law  24 allow the property of the weak and poor to be  25 taken by the stronger party?  We were not told  26 by our forefathers that they had sold their  27 land to the Government and therefore we cannot  28 surrender it [ . ] "  29  30 In enclosure number three, the Indian Superintendent  31 replied that the land at Metlakatla had become "a  32 general Government reserve" for a long time, and,  33 quote:  34  35 "... The title to public lands since it became  36 a portion of the British Empire has been vested  37 in the Crown and certainly no exception could  38 be made to this fact or principle, as you  39 appear to think, at Metlakahtla."  40  41 And then, without reading these, all of these  42 paragraphs, my lord, I trace through the steps that  43 were taken by Powell and I note in paragraph six on  44 page 170, one Indian referred to Lord Dufferin's  45 Victoria speech in claiming that the Indians "have not  46 been treated with."  47 Now, in paragraph eight I note that the Premier of 28294  Submissions by Mr. Goldie        1 British Columbia was in  Ottawa in March 1884 to  2 discuss a number of matters with the Dominion  3 government, including the difficulties at Metlakatla.  4 My lord, the document under that tab 5-8 or V-8 is a  5 photograph of the original and it's very hard to read  6 and I have a typescript which I would propose handing  7 up and which might be placed under that tab following  8 the photograph of the original despatch.  9 Now, Mr. Smithe, who was then the Premier of  10 British Columbia, commented on page two of the  11 typescript about the "failure to establish an agency  12 at Metlakatla," and that refers, I believe, my lord,  13 to the refusal of the people there to accept Mr. McKay  14 as the resident Indian agent.  And the continuing from  15 his letter, quote:  16  17 "...  and the open resistance of a large body  18 of Indians there to the application of the  19 Indian Act to their community are fraught with  20 danger to the peace and welfare of the entire  21 Indian population of the Northwest coast of  22 British Columbia, and indeed to the whole  23 community in that vicinity of white traders and  24 settlers."  25  26 And then he goes on to make some further observations.  27 He had -- he had commented on the differences between  28 the Native races in Eastern Canada and the Northwest  29 Territories with those in British Columbia.  And I've  30 set out a quotation from that letter at the top of  31 page 171.  Macdonald informed Smithe of what he  32 proposed to do and included in that was what was going  33 to be done with respect to Metlakatla, and that is at  34 page three of Macdonald's letter, paragraph four,  35 which is under tab V-9:  36  37 "The Indian troubles at Mettakathla on the  38 North West Coast render the appointment of a  39 Stipendiary Magistrate necessary for the  40 preservation of peace and the enforcement of  41 law and order."  42  43 And suggesting that British Columbia make that  44 appointment.  In the same letter he also made  45 reference to the agreement for the transfer of Railway  46 Belt and Peace River block to the Dominion.  47 And at page 172 of my Summary I say this:  The 28295  Submissions by Mr. Goldie        1 Prime Minister, who was  that some Indians in  2 British Columbia had asserted a claim to aboriginal  3 title, informed the Premier of British Columbia that  4 as Parliament had chosen the railway terminus (thus  5 fixing the route through British Columbia), quote:  6  7 "...  the Canadian Government have no claim on  8 any lands in Your Province except those  9 included in what is known as the Railway Belt  10 under the Terms of Union and the tract of land  11 lately granted East of the Rocky Mountains."  12  13 Nine days later, the "Dominion Settlement Act, 1884"  14 received Royal Assent.  15 I submit that Macdonald's statement to the Premier  16 of British Columbia, coupled with his knowledge of  17 events on the northwest coast of the Province - and I  18 interject there - not only the knowledge of events but  19 the knowledge of the assertion of title - is cogent  20 evidence that the Dominion did not consider Crown  21 lands in British Columbia to be burdened by aboriginal  22 title.  And I interject here.  If he had thought, that  23 is to say if the Dominion had thought that there was a  24 burden of aboriginal title, it would, of course, have  25 taken steps with respect to the Railway Belt to remove  26 that burden.  Continuing:  By so releasing all claims  27 to the Province's Crown lands, the Dominion  28 acknowledged that there was no "interest other than  29 that of the Province" within the meaning of section  30 109 of the Constitution Act, 1867.  Now, that, of  31 course, refers to the companion position the Dominion  32 could have taken with the Province in connection with  33 the Railway Belt that it was entitled to clear title  34 to those lands and that the Province had an obligation  35 to remove the burden.  That was the alternative  36 position which it could have taken under section 109  37 of the Constitution Act.  It, of course, did neither.  38 Paragraph 12.  Although the Dominion government  39 did not consider that aboriginal title existed in  40 British Columbia, it was alert to its duty to protect  41 Indian reserves in the Province.  And I provide an  42 example there, my lord, of the way in which a  43 proposition to rearrange or relocate Indian reserves  44 were rejected by the Dominion.  45 The last words of the Order in Council I have  46 underlined in the quotation:  47 28296  Submissions by Mr. Goldie        1 "... The  Reserves cannot now be altered  2 without the consent of the Indian proprietary."  3  4  5 To say "the lands are now the property of the Indians"  6 is also to say that the lands were not their property  7 before the reserves were surveyed and approved of by  8 the Government of British Columbia.  That is my  9 submission.  10 The May 30, 1884 Order in Council, to which I make  11 reference in paragraph 12 of my Summary, noted in the  12 paragraph above reflects the policy, embodied in the  13 several Indians Acts since Confederation, which  14 provided that once a reserve had been set aside, it  15 could only be dealt with upon voluntary surrender by a  16 majority of the Indians interested in it, in  17 accordance with the statutory procedure.  The  18 Dominion, as trustee for the Indians, was charged with  19 the duty of protecting Indian reserve lands, as well  20 as Indian.  And I say that the Dominion was fully  21 aware of that duty and responsibility.  22 On May 31, 1883, Sir John A. Macdonald had  23 informed a resident who wanted to purchase Indian  24 reserve lands to the same effect.  And the quotations  25 from the correspondence had been set out in that  26 paragraph.  27 Reverting now back to the fall of 1884, I say in  28 paragraph 15 that, apprehending trouble on the Skeena  2 9 River in the aftermath of Mr. Youman's murder and at  30 Metlakatla where Indians had prevented the survey of a  31 reserve, the Attorney General of British Columbia  32 appealed to the Dominion for assistance.  In a  33 telegram to the Minister of Justice he stated, quote:  34  35 "... Two ideas dominate Indians minds, first,  36 all lands belong to them - second, Government  37 powerless enforce law... The white community  38 that region generally accuse Duncan of disloyal  39 teaching, and being cause disaffection, which  40 has already spread amongst neighbouring Indians  41 of North West Coast, and continues... "  42  43 The Attorney General also stated his intention to go  44 to Metlakatla with other provincial officials to  45 inquire into the causes of unrest.  46 Concerning these difficulties, the Prime Minister  47 later wrote to the Minister of Justice: 28297  Submissions by Mr. Goldie        1  2 "While doing our duty as Guardians of the  3 Indians we must take care not to allow the  4 Provl Govt to throw upon us the whole burden of  5 the Adminn of Criminal law connected with  6 Indian crime."  7  8 I note that, my lord, because of the strong element of  9 breaches of the peace at Metlakatla, and of course the  10 circumstances of Mr. Youman's murder which has formed  11 the cause -- formed the basis of comment by witnesses  12 in the case.  13 Now, my lord, under paragraph 17 to 22 I deal with  14 the establishment of the -- or the events leading up  15 to the establishment of the Davie/Ball Inquiry and the  16 observations of the -- of Dr. Powell, the Indian  17 Superintendent, on matters.  And I summarize in  18 paragraph 17 what this correspondence demonstrates.  19 First -- this is on page 176.  First, that Indians  20 living on the upper Skeena River had been told as  21 early as the Autumn of 1882 that land reserves would  22 be laid out for them, and that the government would  23 not recognize any exclusive rights outside such  24 reserves.  Now, that's page one of that particular  25 exhibit.  26 MR. RUSH:  By upper Skeena there do you mean the  27 Gitksan-Wet'suwet'en area?  28 MR. GOLDIE:  I'm just quoting from the document.  That would  29 seem to me to be a phrase that has referred to the  30 Gitksan in particular.  31 In February of 1884 Tomlinson considered that  32 recognition by the Government of the Indians'  33 hereditary rights would "not of necessity bar the  34 occupation of the country."  That's a reference to  35 some correspondence.  36 He had been informed by the Provincial Secretary  37 of British Columbia that the government would not  38 disturb "whatever hunting or fruit-gathering rights  39 [the Indians] may claim... until such time as the  40 lands are required."  41 That the consensus of Europeans was that in making  42 their claims the Indians were acting under the  43 influence of missionaries, especially Messrs. Duncan  44 and Tomlinson.  Then I make reference to the annual  45 report of the Department of Indian Affairs.  46 And Superintendent Powell's report summarized his  47 earlier reports, and that's quoted at some length, my 28298  Submissions by Mr. Goldie 1            lord.  And at the  bottom of page 177 he says:  2  3 "The present attitude of other Tsimpsheean  4 tribes, who express dissatisfaction with their  5 land reserves ... and who now demand payment, for  6 the whole country, is due entirely to the  7 mischievous advice of those whose personal  8 interests induce them, by such means, to  9 prevent officers of the Government from taking  10 that part in the direction of the temporal  11 affairs of the various bands which the law  12 requires."  13  14 And his conclusions are reflected in the report of the  15 Superintendent General of Indians Affairs.  16 The Metlakatla Inquiry Report of Davie, Ball and  17 Mr. Elliott was submitted to the Government of British  18 Columbia on December 9, 1884.  They reported four  19 causes of disquietude and they number those.  The  20 first being:  21  22 "The claim of the Indians to have recognized  23 their title to all the land."  24  25 And their conclusion was noted as I note on page 179  26 that:  27  28 "... the idea of the existence of an Indian  29 title and of its non-extinguishment in British  30 Columbia originated in remarks made by Lord  31 Dufferin."  32  33 They considered that a "great and perhaps an original  34 impetus to the notion of Indian title" had arisen from  35 the dispute between Duncan and the Church Missionary  36 Society.  And they repeated the recommendation, this  37 is on page 180, that the two-acre reserve at  38 Metlakatla should be surveyed as government land.  I  39 note in paragraph 20 that the Captain of the  40 "Satellite", which transported the Davie-Ball  41 Commission up the coast, submitted a Report to the  42 Admiralty.  And he makes reference to the land  43 question.  And the questions which are being asked by  44 the native peoples to whom he talked.  45 And at paragraph 21 I note that the Davie-Ball  46 Commission's recommendation to survey the two-acre  47 parcel was adopted by a resolution of the Legislature. 28299  Submissions by Mr. Goldie        1 And that was in the  opinion of the Senator that such a  2 resolution was unwise.  3 My lord, on page 182 there is paragraph number 20.  4 That should be 22.  We have already had paragraph 20.  5 And then we come to the debate in parliament in which  6 Mr. David Mills of whom we have heard requested copies  7 of all correspondence between the Dominion and British  8 Columbia Governments.  9 I resist the temptation, my lord, to go through  10 that debate.  It's very interesting, but I am going to  11 go directly to paragraph 26 and just note in passing  12 Sir John A. Macdonald's observations on some of Mr.  13 Mills' suggestions that he had "barked up the wrong  14 tree" and he's "waked up the wrong passenger."  15 In the meantime, the policy of allotting Indian  16 reserves was being carried out.  Although, and this is  17 in Macdonald's words, there are "a few questions" in  18 which the two governments were "not in accord."  19 Macdonald said that William Duncan had "taken a  20 distinct position of his own, which... could not be  21 recognised by this Government, or any Government, or  22 by the Government of British Columbia..."  He had  23 "taken the position that the land belonged altogether  24 to the Indians... that the lands is the Indians, that  25 it belongs to them and their ancestors, and he abjures  26 and denies the right of either Government to  27 interfere."  28 Now, paragraph 27 I note that three weeks later  29 the Governor in Council approved the "Regulations for  30 the survey, administration and disposal of Dominion  31 Lands within the Railway Belt," and this is the --  32 these regulations were the subject matter of my  33 earlier comments where I observed the notation on the  34 side of the draft regulations which is set out at the  35 top of page 187.  This was a deliberate rejection of  36 the requirement of extinguishment of Indian title in  37 British Columbia.  38 I say in paragraph 28:  It is submitted that this  39 deliberate omission is clear and incontrovertible  40 evidence that the Dominion denied any general Indian  41 interest in the lands of the Province.  42 There was no constitutional, legal or equitable  43 principle which bound the Dominion to conclude land  44 cession treaties with Indians of British Columbia.  If  45 there was such a principle, the Dominion would have  46 been in breach of its duties as trustee pursuant to  47 section 91(24) and having regard to section 109 of the 28300  Submissions by Mr. Goldie        1 Constitution Act.  2 Now, in -- I'm going to pretty well skip over  3 paragraphs 29 to 36, my lord, because this too is  4 concerned with the detail of the representations made  5 to the Dominion government with respect to title and  6 of course with respect to the ownership of the  7 Metlakatla Indian reserve by the people who were  8 supporting Mr. Duncan.  However, at page 192 I correct  9 a couple of references, my lord.  Midway in the page  10 just before the inserted or inset quotation is the  11 sentence "of interest in the lands of British Columbia  12 (PP- 15-17)."  That should be pages 16 to 17 and then  13 following that Mr. Duncan closed by asserting at page  14 18 --  15 THE COURT:  I'm sorry, what's the second one?  16 MR. GOLDIE:  At page 18, just after the word "asserting" in the  17 next line.  18 THE COURT:  Oh, yes.  19 MR. GOLDIE:  Brackets page 18.  20 THE COURT:  All right.  The other change was just before that  21 from 15 to 17?  22 MR. GOLDIE:  It's pages 16 to 17 rather than 15 to 17.  2 3 THE COURT:  Thank you.  24 MR. GOLDIE:  But just to give your lordship a sense of the tone  25 of the representations that are being made, and I  26 emphasize these only in the sense of how they were  27 brought to the attention of the Dominion government,  28 this was a persistent assertion of Indian title in  29 1886.  30 Paragraph 32 on page 193 I say:  In the spring of  31 1886, on his return from London where he had gone to  32 confer with Church officials, Duncan asked the Deputy  33 Superintendent of Indian Affairs for answers to the  34 following questions:  35  36 "4th      Is the Indian Department prepared to  37 advise the Government of British Columbia to  38 enter into treaties with the Indians of that  39 Province in regard to Lands to be surrendered  4 0                   by them?  41 5th       Should the Indians of Metlakahtla be  42 compelled to test the legality of the survey of  43 Mission Point, made by order of the British  44 Columbia Government, - what attitude will the  45 Indian Department take in reference to their  46 action?"  47 28301  Submissions by Mr. Goldie        1 And then he wrote  directly to the Superintendent  2 General of Indian Affairs on May 29 to inform him that  3 the Indians at Metlakatla and Fort Simpson were  4 disappointed that no response to be made to their  5 pleas of the last year, and that surveyors had arrived  6 to survey reserves in both places.  He said:  7  8 "I do sincerely hope that Government will  9 without delay adopt a course which will result  10 in settling the minds of the Indians on the  11 land question before some future blow is given  12 to the peace of the Country."  13  14 And then I make reference to the investigation of the  15 Church Missionary Society officials from England.  And  16 they, too, drew the attention of the government to the  17 fact that title was being asserted and they received  18 the assurance of the Prime Minister that he would give  19 his personal attention to the subject on his  20 forthcoming visit to British Columbia.  21 Representations were received from the Aborigines'  22 Protection Society, who delivered a letter to the  23 Canadian High Commissioner in London in July of 1886,  24 which was then sent to the Secretary of State for  25 Canada, and referred to the Dominion Privy Council.  26 That Society wrote, and this is at the bottom of page  27 195:  28  29 "... that although the Aborigines of British  30 Columbia are not a conquered race their rights  31 in the soil are virtually ignored and that the  32 Local Government claim to exercise supreme  33 control over all the lands of the Province."  34  35 And paragraph 36:  The Governor in Council responded  36 to the Society's representations on November 10, 1886,  37 by approving a Report by the Superintendent General  38 which stated, quote:  39  40 "The Government of British Columbia, both while  41 it was a Crown Colony and since, has always  42 dealt with the lands in that Province as  43 belonging to the Crown, the Indians being as  44 little disturbed as possible and allowed to  45 pursue their accustomed avocations.  That when  46 British Columbia joined the Dominion the  47 General Government assumed the charge of the 28302  Submissions by Mr. Goldie 1                   Indians, and an  arrangement was made by which  2 sufficient reserves should be set aside for the  3 native tribes.  That in accordance with this  4 arrangement Commissioners have been appointed  5 and many reserves have been laid out and  6 sanctioned by the Government of British  7 Columbia.  That every disposition has been  8 shown by both Governments to protect the rights  9 of the Indians, although in some cases the  10 central Government felt itself bound to differ  11 from that of the Province, but these cases have  12 been or will be, the Minister has no doubt,  13 satisfactorily adjusted, and the Aborigines  14 Protection Society may rely upon it that  15 sufficient areas will be provided for the use  16 and comfort of the Indian Bands.  17  18 The Minister states further that it is to  19 be regretted that either Mr. Duncan or any one  20 else should endeavor to induce the Indians to  21 contend for the exclusive ownership of the  22 soil of British Columbia.  That claim has  23 never been recognized by -- "  24  25 And then in the Order in Council the words "Her  26 Majesty's Government or" has been stroked out as it is  27 not typescript.  28  29 "the Provincial Authorities, and it is quite  30 certain that it will be resisted by both the  31 Government and the Legislature of the Province.  32 All that the Dominion Government can do is to  33 see that the Reserves as laid out are  34 sufficient for the maintenance and comfort of  35 the native bands occupying them, and to  36 procure the sanction of the Province to the  37 establishment of such reserves according to  38 the agreement between the Dominion and British  39 Columbia."  40  41 Now, my lord, that was in response to the  42 representations of the Aborigines' Protection Society.  43 It is November of 1886 and it was after events at  44 Metlakatla which directly and explicitly raised the  45 aboriginal title of it.  46 I say in paragraph 37:  The Superintendent General  47 of Indian Affairs had earlier asked the Premier of 28303  Submissions by Mr. Goldie        1 British Columbia for a  copy of Lord Dufferin's speech  2  3 "... on the Indian question and title.  I  4 should like also to have some authority showing  5 that Lord Dufferin stated that he was  6 authorized by the government or Mr. Mills to  7 speak as he did."  8  9 Now, I have already dealt with the Governor General's  10 lack of authority.  In paragraphs 38 to 46 --  11 THE COURT:  3 8 to 47.  12 MR. GOLDIE:  I beg your pardon, my lord?  13 THE COURT:  38 to 47.  14 MR. GOLDIE:  I am sorry.  38 to 46.  15 THE COURT:  Yes.  16 MR. GOLDIE:  I say there is other evidence of the Dominion's  17 policy respecting Indians lands in British Columbia  18 gleaned from correspondence and papers relating to the  19 survey of the Metlakatla reserve in 1886.  2 0 Attempts were made to do that.  There was  21 resistance.  Macdonald urged that the survey be  22 carried forward.  I make reference to the annual  23 report of the Department of Indian Affairs for 1886  24 where the Superintendent General wrote that the  25 Indians who interfered with the survey at Metlakatla  26 had, quote, "become imbued with an idea, fostered  27 among them by evil advisers, that they were the legal  28 owners of the entire country..."  29 And in 1887 the question of these grievances  30 continued and there was a long report of a meeting in  31 February with delegates from the Naas, who were  32 Nishga, and they expressed an interest in treaty and  33 complained about encroachments and European  34 interference.  35 Now, the appointment of the Cornwall/Planta  36 Commission is noted as occurring on -- in July of  37 1887, but earlier that year, and I am at paragraph 46.  38 Earlier in 1887, the Dominion's attention had been  39 directed to the British Columbia Indian Land Question  4 0 by inquiries from the Imperial Government and from  41 private individuals.  In my submission, it is clear  42 from the responses to these inquiries that the  43 constitutional, historical and legal aspects of the  44 question were carefully considered by federal  45 officials.  46 First, in February of that year, Sir John A.  47 Macdonald referred to the Indian land question in a 28304  Submissions by Mr. Goldie        1 private letter.  He  said it was:  2  3 "... the position of Indians in [British  4 Columbia] in a very unsatisfactory state.  The  5 British Government, when B.C. was a Crown  6 Colony, treated the Indians with liberality,  7 but did so merely as a matter of grace.  The  8 Indian title to the soil had never been  9 admitted there, and before and since the union  10 with Canada Reserves were laid out by the  11 Government there for various tribes or Bands of  12 Indians according to the Govts discretion."  13  14 And so on.  15 In February of 1887, the Secretary of State for  16 the Colonies transmitted to the Governor General of  17 Canada a letter from the Aborigines' Protection  18 Society respecting the events at Metlakatla.  The  19 Society lamented, amongst other things, that "the  20 Indian title was... never recognized in British  21 Columbia."  That quotation is from -- from page ten of  22 the letter itself which is attached to the Order in  23 Council under tab V-48.  Now, I have quoted the Order  24 in Council and which was adopted in response to that  25 letter and this is the 13th of June, 1887:  26  27 "1st.  That there is no intention on the  28 part — "  29  30 THE COURT:  I am sorry, I am at tab 48 but I am not sure where  31 you are.  32 MR. GOLDIE:  It should be right in the first page, my lord,  33 V-48.  34 THE COURT:  Yes.  35 MR. GOLDIE:  And —  36 THE COURT:  Page one?  37 MR. GOLDIE:  Page one.  38 THE COURT:  Yes, all right.  39 MR. GOLDIE:  And the paragraph first.  4 0 THE COURT:  Yes.  I have it.  Thank you.  41 MR. GOLDIE:  42  43 "That there is no intention on the part of  44 either the Dominion Government or the  45 Government of British Columbia to depart from  46 the arrangement approved of by Order in Council  47 issued in the year 1871 and recited in part in 28305  Submissions by Mr. Goldie        1 the letter from  the Aborigines' Protection  2 Society."  3  4 Now, that, of course was Term 13.  And that in itself  5 was a clear statement that firstly, that the  6 obligation of British Columbia was limited to the  7 provision of reserves and secondly, that the Dominion  8 despite these representations with respect to title  9 did not intend to depart from that.  And then  10 paragraph two refers in greater detail to the  11 situation at Metlakatla.  And I go over to the fourth  12 page and that dealt -- he deals there with the  13 allegation that somehow British Columbia has alienated  14 part of the reserve in question.  And I say that that  15 was a complete answer, a forthright answer to the  16 committee, the Aborigines' Protection Society  17 allegations or comments with respect to Indian title.  18 And I'm at page 203, and I say on July 27, 1887,  19 the Governor in Council responded to another inquiry.  20 Now, this is not from the Imperial Government.  This  21 is from the Canadian High Commissioners.  So if your  22 lordship would stroke out "Imperial Government."  23 "Again respecting submissions from the" but substitute  24 "Canadian High Commissioner."  And in the first line  25 below the reference to the exhibit it should be this  26 time it defended the "Province's" action in sending a  27 gunboat to lend assistance to the survey of the Indian  28 reserve at Metlakatla in 1886, because "the  29 Indians..., apparently acting under the evil counsel  30 of others, would not allow the Surveyor to proceed..."  31 It repeated its intention to protect Indian reserves:  32  33 "2d.    That the Dominion Government has every  34 desire to protect the Indians in the possession  35 of their reserves in British Columbia as  36 elsewhere, and every protection that it is in  37 the power of the Dominion Government to afford  38 them will be extended to them."  39  40 Also referred to the Indians as "wards" of the  41 Dominion.  42 THE COURT:  Did British Columbia have gunboats or was that a —  43 MR. GOLDIE:  No.  That was a request made to the Navy in  44 Esquimalt.  It was primarily for transportation of  45 the -- of people to protect the surveyor.  46 Page 204 I say just before -- just a week before  47 the Order in Council referred to in the preceding 28306  Submissions by Mr. Goldie        1 paragraph, the Governor  in Council concurred in  2 recommendations of the Superintendent General who had  3 represented, quote:  4  5 "...  that several important questions remain  6 unsettled between the Dominion Government and  7 Government of British Columbia and it is  8 desirable that a satisfactory conclusion should  9 be arrived at as early as possible."  10  11 Because attempting to settle the outstanding issues  12 through correspondence had proved difficult, the  13 Government of British Columbia was invited to send a  14 representative "clothed in full powers to settle all  15 such out of standing questions."  The principal  16 matters at issue were listed in the Order in Council.  17 None related to Indian title.  18 The Government of British Columbia responded by  19 appointing the Provincial Secretary, John Robson, as  20 its delegate to settle all the matters listed, "and  21 also any other matters relating to Indian Affairs."  22 The results of Robson's mission to Ottawa were  23 stated by the Superintendent General of Indian Affairs  24 (at that time Thomas White) in a 28 October, not 18,  25 28 October, 1887 letter to Robson which was silent as  26 to Indian title.  27 Meanwhile -- I shouldn't say meanwhile.  28 Immediately subsequently, Cornwall and Planta  29 submitted the Report of their findings on November 30,  30 1887.  31 The Province's Commissioner had been instructed by  32 the Attorney General of British Columbia  33  34 "... not to give undertakings or make promises,  35 and in particular you will be careful to  36 discountenance, should it arise, any claim of  37 Indian title to Provincial lands.  I need not  38 point out that the Provincial Government are  39 bound to make, at the request of the Dominion,  40 suitable reserves for the Indians; and it will  41 be advisable, should the question of title to  42 land arise, to constantly point this out, and  43 that the Terms of Union secure to the Indians  44 their reserves by the strongest of tenures."  45  46 A copy of these instructions were sent to the  47 Dominion's Commissioner. 28307  Submissions by Mr. Goldie 1                When in the course  of the inquiry the title  2 question was raised, they found that the question was  3 of concern to some Indians and not to others -  4 depending, apparently, upon the Christian missionaries  5 they were in contact with.  6 They were not able to meet with Indians "... on  7 the Skeena, where disaffection is known to have  8 spread..."  That's a quotation.  9 Indians from Greenville and the Upper Naas, and  10 the Tsimpseans of Port Simpson asserted an aboriginal  11 title claim.  "They also professed to speak for the  12 Upper Skeena people."  13 The Commissioners reported that such claims  14 "...require attention by the Government, and the  15 sooner the better."  16 The Dominion's Commissioner sent a copy of the  17 Report to the Superintendent General, and expressed  18 his confidential opinions in the accompanying letter.  19 And then he -- this is an excerpt from that letter on  20 page 207 where Mr. Cornwall says:  21  22 "...  the whole affair is disastrous in its  23 consequences."  24  25 He's referring to the dispute between Duncan and his  26 Bishop.  27  28 "...  It has unsettled Indian's minds  29 throughout the whole of the N.W. of British  30 Columbia.  It has led to any amount of so  31 called religious animosity and strife even  32 between members of the same tribe.  The idea  33 first started at Metlakatlah during the contest  34 between the Bishop and Duncan that the title to  35 all Provincial lands was vested in the Indians  36 has spread to an alarming extent, and is now  37 really the basis upon which the natives found  38 their complaints and demands."  39  40 He went on to describe the manner in which the  41 existence of a claim to aboriginal title seemed to  42 depend upon which religious group -- that should be  43 five, my lord, page five to seven.  He mentioned, in  44 particular, Tomlinson.  And on the question of Indian  45 title, I am at page 208, paragraph 60, he says:  46  47 "... It has long been determined that 28308  Submissions by Mr. Goldie        1                   Government  cannot in any way allow this.  There  2 is no ground for the assertion that the fee of  3 the lands ever rested in the natives.  Although  4 in many parts of the old Province of Canada the  5 Indian title was, as it is called, extinguished  6 by the farce of purchasing the same for  7 infinitesimally small sums, and a like course  8 has been pursued in the North West Territories,  9 yet it has not by any means been done all over  10 those provinces,"  11  12 And then he refers to the Indians' nature -- Indian  13 interest in the land and the very nature of that  14 interest, and makes a further recommendation that is  15 set out in paragraph 62.  16 The Superintendent General noted in the annual  17 report that:  18  19 "The Indians of Port Simpson and at other  20 points on the coast becoming disaffected by the  21 evil example set them by those who left  22 Metlakatla, have made extravagant demands for  23 more land than their extensive reserves now  24 contain, claiming also substantial recognition  25 of their title to all land not included in  26 their reserve."  27  28 Now as I note, my lord, Duncan had left for Alaska by  29 this point.  30 THE COURT: I think I should depart for lunch at this point.  31 MR. GOLDIE: Sounds as if you are being summoned, my lord.  32 THE COURT: Yes.  All right.  Two clock.  33  34 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON  35 ADJOURNMENT)  36  37 I hereby certify the foregoing to  38 be a true and accurate transcript  39 of the proceedings transcribed to  40 the best of my skill and ability.  41  42  43  44  45 Laara Yardley,  46 Official Reporter,  47 UNITED REPORTING SERVICE LTD. 28309  Submissions by Mr. Goldie        1 (PROCEEDINGS RESUMED  PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, I was at page 209 of my summary.  6 THE COURT:  Yes.  7 MR. GOLDIE:  And I had made reference to the report of the  8 Superintendent General of Indian Affairs for 1887 in  9 which he noted the departure of Mr. Duncan and his  10 adherents for Alaska.  And he described the  11 Cornwall-Planta Commission.  And I note that no notice  12 was taken, no reference was made to the recommendation  13 of the Cornwall-Planta inquiry respecting Indian  14 title.  15  16 And if I may just pause there and remind your  17 lordship that the Commissioners, Mr. Cornwall and Mr.  18 Planta found that there was a considerable divergence  19 of opinion.  Some of the people whom they took  20 evidence from were -- did not assert a title to the  21 country at large, accepted the provisions of the  22 Indian Act, and were quite happy with the appointment  23 of an Indian agent.  On the other hand, there was the  24 view taken by those who asserted that Indian title to  25 the whole country and rejected the Indian Act and  26 rejected any Indian agent.  So they had that  27 divergence.  And it was with respect to that situation  28 that they said, the commissioner said some action  29 should be taken.  30 THE COURT:  Is this statement that is attributed to the  31 commissioners on page 208 on the bottom, is that the  32 source of a statement made by one of the judges of the  33 Court of Appeal in Calder?  Did he say anything like  34 that:  "But beyond that the beasts of the field have  35 as much ownership in the field as he has"?  36 MR. GOLDIE:  That may be —  37 THE COURT:  It seems to me that I have seen that —  38 MR. GOLDIE:  That may be so.  39 THE COURT:  I think it is.  40 MR. GOLDIE:  Yes.  I can't recall whether it is Mr. Justice  41 Tysoe or the Chief Justice --  42 THE COURT:  I think it might have been Mr. Justice McLean.  Was  43 he on that?  44 MR. GOLDIE:  Yes, he was.  But this was Mr. Cornwall.  45 THE COURT:  This was Cornwall, is it?  46 MR. GOLDIE:  Yes, it is.  47 THE COURT:  And he was the representative of the — 28310  Submissions by Mr. Goldie        1  MR. GOLDIE:  Of the Dominion.  2 THE COURT:  Of the Dominion.  3 MR. GOLDIE:  And this is in his covering letter transmitting his  4 report, I believe.  I just want to -- yes, that's  5 under tab 58.  There is a typescript of that letter.  6 THE COURT:  That would be tab 61?  7 MR. GOLDIE:  Tab 58.  8 THE COURT:  Is it not tab 61?  9 MR. GOLDIE:  Well, the letter starts off at tab 58.  10 THE COURT:  Oh, all right.  11 MR. GOLDIE:  That identifies it.  And then tab 61 is an extract  12 from it.  13 THE COURT:  Yes.  14 MR. GOLDIE:  And your lordship will see the quotation from it in  15 the middle of the page there.  16 THE COURT:  All right.  Thank you.  17 MR. GOLDIE:  Then on page 210 reference is made to Mr. Robson's  18 mission to Ottawa.  And that was referred to back in  19 paragraph 50.  And what follows is the reference in  20 the annual report to that matter, to Mr. Robson's  21 mission to Ottawa.  And that begins with the words:  22  23 "Several unsettled matters affecting the  24 Indians of this Province which required the  25 co-operation of the Governments of the Dominion  26 and of the Province to bring them to a  27 satisfactory conclusion formed subjects for  28 consideration and adjustment last Autumn."  29  30 And then the concluding sentence:  31  32 "It may, therefore, be stated that there are  33 now no outstanding questions which have not  34 either been settled or which are not in course  35 of settlement on a basis agreed to by the  36 Dominion and the Provincial Governments."  37  3 8 And then —  39 THE COURT:  Can I take you back, Mr. Goldie, to the top of that  40 page?  41 MR. GOLDIE:  Yes.  42 THE COURT:  What was the recommendation of the Cornwall-Planta  43 Commission?  44 MR. GOLDIE:  It was that action should be taken to -- I was  45 going to say disabuse the --  46 THE COURT:  Is that in the first quote on page 209?  That's Mr.  47 Cornwall's view, is it, that the governments should 28311  Submissions by Mr. Goldie        1 confer together and  decide on some course?  2 MR. GOLDIE:  Under paragraph 62?  3 THE COURT:  Yes.  4 MR. GOLDIE:  That's Mr. Cornwall's recommendation.  5 THE COURT:  Did Mr. Planta make a separate recommendation?  6 MR. GOLDIE:  Not to the Dominion Government, no.  His was a  7 Provincial appointment.  8 THE COURT:  Yes.  9 MR. GOLDIE:  And he — he said with respect to the title  10 question, he said:  The natives have asked a number of  11 questions about title.  They expect answers, and he  12 recommended strongly that answers be given.  13 THE COURT:  All right.  Thank you.  14 MR. GOLDIE:  My submission on page 210, my lord, is that with  15 respect to Mr. Robson's visit to Ottawa and the nature  16 of the agenda that if Indian title had been considered  17 to be an outstanding question, and I say that there is  18 no evidence that it was even discussed.  But if it was  19 an outstanding question as between the Dominion and  20 the Province, some sort of understanding respecting it  21 must have been reached.  If not must have, should have  22 been.  If it was not one of the questions discussed,  23 it was not because the Dominion Government was unaware  24 that there were claims respecting it.  25  26 Now, my point there is a very simple one.  The  27 Province's view with respect to aboriginal title is  2 8            well known and it never changed.  If the Dominion  29 didn't share that view then that would have been, in  30 my submission, an item to be settled.  If the  31 Superintendent General of Indian Affairs was to say  32 that there are no -- there are now no outstanding  33 questions which are not in the course of settlement or  34 have been agreed to, the inference that I ask your  35 lordship to draw is that there was no difference of  36 opinion between the two governments that aboriginal  37 title, despite the prominence it had been given by  38 virtue of the Metlakatla controversy and the two  39 commissions of inquiry which arose out of that  40 controversy, had given the concept of Indian title.  41  42 In paragraphs 64 and 65 I make reference to some  43 correspondence of Dr. Helmchen.  One was a letter  44 written in 1887 and another is -- one of which was  45 found in Sir John A. Macdonald's papers.  And another  46 was apparently written in the same year but that date  47 is fixed by internal reference only. 28312  Submissions by Mr. Goldie        1 Passing then to  paragraph 67, in May of 1988 the  2 Governor in Council responded January 1887 Despatche  3 from the Secretary of State for the Colonies enclosing  4 a report from the Admiralty and a letter from the  5 Aborigines' Protection Society respecting the  6 protracted difficulties on the northwest coast of  7 British Columbia, and requesting from the Dominion's  8 Ministers "...any observations they may wish to  9 make..."  10  11 Their response was, I state, perfunctory, stating  12 simply that the difficulties which had arisen on the  13 northwest coast had culminated in Duncan's withdrawal  14 to Alaska.  15  16 Copies of the papers transmitted by the Secretary  17 of State for the Colonies are attached to the Order in  18 Council.  The Admiralty report contains a summary of  19 events relating to the survey of the Indian reserve at  20 Metlakatla in 1886, as well as a short history of the  21 events which led to it.  22  23 And the Commander of the ship sent to reinforce  24 the survey party received the following petition from  25 "the people of Metlakatla and Fort Simpson."  I am not  26 going to read that, my lord.  It is the same vein as  27 the assertions made at Metlakatla generally.  And that  28 is that nobody -- they haven't ceded their land.  They  29 weren't conquered, and their land belongs to them.  I  30 only draw your lordship's attention to the second  31 paragraph which reads:  32  33 "Lord Dufferin when Governor General of Canada  34 told us that in every other province of Canada  35 the Indian title had always been acknowledged  36 and that no Government either Provincial or  37 Central had ever claimed a right to deal with  38 an acre until a treaty had been made."  39  40 At page 215, the paragraph number should be 70, my  41 lord, not 67.  The Aborigines' Protection Society's  42 letter which was another enclosure, the other  43 enclosure to the despatch from the Colonial Office is  44 dated December 20, 1886.  And it appealed to the  45 Colonial Office to intervene so as to prevent the  46 departure of Indians to the United States.  It  47 enclosed a copy of a letter from Mr. David Leask, one 28313  Submissions by Mr. Goldie        1 of Duncan's adherents,  expressing frustration and  2 disappointment "because Chief Justice Begbi denied our  3 title to our land".  My lord, that must refer to the  4 Chief Justice's comments in 1886.  5  6 I have noted the response of the federal -- the  7 Dominion Government.  8  9 And then at paragraph 72 I say the Indian title  10 question had not, however, been put to rest in the  11 minds of some of the Indians who remained on the  12 northwest coast.  13  14 As a result, the Cornwall-Planta Commission  15 findings, the Indian Reserve Commissioner went there  16 in August and September of 1888 to allot reserves and  17 resolve complaints.  Claims to aboriginal title were  18 put forward at meetings on August 31st and September  19 3rd and 4th.  And there is the references there.  20  21 Commissioner O'Reilly told the Indians that the  22 Government did not recognize their claims, and fully  23 explained the policy respecting reserves and lands  24 outside reserves to them.  25  26 Some of the Indians complained that they had not  27 received an official answer to the title claim they  28 had submitted to the Cornwall-Planta Commission.  29 Those page references are 1369 and 1378.  30  31 O'Reilly sent a copy of the transcripts of these  32 meetings to the Superintendent General of Indian  33 Affairs, and reported what had transcribed --  34 transpired, including the complaints that no answer  35 had been received to representations respecting title  36 which had been made to Cornwall and Planta.  37  38 Mr. Planta, the Provincial Commissioner, also  39 thought the Dominion Government should give some  40 answer to the complaints heard and reported upon by  41 the Commissioners.  And he stated that he had, on  42 behalf of the Provincial Government:  43  44 "... emphatically and definitely refused to  45 entertain the Indian claims to ownership of the  46 whole country, and in this the Honourable Mr.  47 Cornwall on behalf of the Dominion Government 28314  Submissions by Mr. Goldie        1 fully concurred  and so expressed himself to the  2 Indians so that on that question, or grievance,  3 the Indians have received an unmistakeable  4 answer from both Governments but certain of the  5 Indians demurred to it and reiterated their  6 claims of 'Indian Title', and these are  7 probably awaiting a further and what they may  8 regard as a more direct answer from the  9 Government."  10  11 The Deputy Superintendent General of Indians  12 Affairs in Ottawa then advised the Superintendent  13 General that the local Indian agent should be asked to  14 communicate the Dominion's views.  And that suggestion  15 was approved by the Superintendent General, who  16 suggested that a copy of the resulting communication  17 should be sent to the provincial government.  18  19 My lord, that memorandum of the Deputy  20 Superintendent General is one that I have referred to  21 before.  It is under tab 75.  It is addressed to Mr.  22 Dewdney who was then Superintendent General of Indian  23 Affairs.  And it states that the Dominion was not  24 aware that the Indians were expecting a further  25 communication.  But they then go into the question --  26 he, the deputy, goes into the question.  And that  27 forms the substance of a letter that he was authorized  28 to write to the Acting Indian superintendent.  29  30 That paragraph 77 on page 217 should be 76.  The  31 Dominion's response then was sent to the Acting Indian  32 Superintendent in Victoria on October 23, 1888, with  33 instructions to transmit the Dominion's replies to the  34 local Indian agent for the information of the Indians.  35  36 The reply dealt first with the claim to aboriginal  37 title.  Now, as I have said, I have already referred  38 to this, but I emphasize that at this point in this  39 sequence:  40  41 "As regards the Indian title to the territory  42 outside of the Reserves allotted to them by the  43 Indian Reserve Commissioner, the Dominion  44 Government does not propose to recede from the  45 agreement entered into with the Government of  46 British Columbia at the date of the admission  47 of that Province into the Dominion of Canada 28315  Submissions by Mr. Goldie        1 under the  British North America Act, in  2 accordance with which agreement suitable  3 Reserves were to be allotted to the various  4 Bands of Indians in British Columbia, and the  5 residue of the public lands were to be handed  6 over to the Provincial Government to be  7 disposed of in such manner as by that  8 Government might be considered proper."  9  10  11 A copy of this letter was sent to the Lieutenant  12 Governor.  And the statement -- this statement, in my  13 submission, made by the Dominion Government, expresses  14 clearly and unequivocally what is implicit in the  15 Terms of Union negotiated by the Dominion under  16 Macdonald's first administration.  17  18 The Department of Indian Affairs Report for 1888  19 noted, amongst others, the crisis involving Kitwancool  20 Jim on the Upper Skeena River and the persistence of a  21 "confused idea" of Indian title on the part of Indians  22 on the northwest coast of British Columbia.  Now, my  23 lord, by that juxtaposition I do not mean to suggest  24 that the Kitwancool Jim episode in itself was one  25 arising out of Indian title.  That was not the case.  26 These are just two of the matters referred to in the  27 annual report.  28  29 Paragraph 80 of my summary, as he had in 1887, the  30 Provincial Secretary of British Columbia travelled to  31 Ottawa in the fall of 1888 at the Dominion  32 Government's request to discuss a number of matters,  33 including Indian affairs, and "any other questions  34 that may arise for discussion or adjustment".  35  36 The report adopted by the Governor in Council  37 included, amongst others, the costs of the expedition  38 to the Upper Skeena River and the costs of the  39 Davie-Ball and the Cornwall-Planta Commissions.  40  41 The Executive Council of British Columbia approved  42 a companion report on 8 June 1889.  But in neither  43 Order in Council is there any question of Indian  44 title, or any suggestion that Indian title was amongst  45 the topics suggest -- discussed.  46  47 In July of 1889, following a request by the 28316  Submissions by Mr. Goldie        1 Government of British  Columbia that an Indian agent be  2 appointed to reside on the Upper Skeena River, the  3 Dominion appointed Mr. Loring.  4  5 In the long Memorandum dated 3rd July 1889  6 responding to a letter from the Missionary Society of  7 the Methodist Church critical of the conduct of the  8 Department of Indian Affairs and the conduct of its  9 officers in British Columbia, the Deputy  10 Superintendent General of Indian Affairs addressed the  11 question of Indian title at length.  12  13 Now, the document, my lord, is under tab 84.  And  14 the page -- the references that will be made to it are  15 the pages numbered in the lower right-hand corner.  16 I'm sorry, the lower right-hand corner has 2, 3, 4 and  17 5, and 6, 7, all of which -- and 8 all of which are  18 sidelined, and all of which are relevant.  19  20 I say the Deputy Superintendent General refuted  21 each allegation respecting Indian title in turn,  22 beginning with the Hudson's Bay Company purchases on  23 Vancouver Island.  24 THE COURT:  Now, who was the Deputy Superintendent General at  25 that time?  26 MR. GOLDIE:  That is Mr. Vankoufneit, I believe.  Yes, Mr.  27 Vankoufneit.  28 THE COURT:  And he is a federal official?  29 MR. GOLDIE:  He was a federal official.  He was the deputy -- he  30 was the senior civil servant in the department, the  31 Deputy Superintendent.  And as will be seen, his  32 report which was sent out to his -- to the Indian  33 Superintendent of British Columbia was concurred in by  34 the latter.  But this is a Dominion official speaking  35 in response to issues raised by a communication from  36 the Methodist Church who had missionaries in the  37 northwest coast, some of whom had been criticized in  38 the Metlakatla proceedings.  39  40 Now, at paragraph 85 the Deputy Superintendent  41 characterizes the agreements that Douglas negotiated:  42  43 "... as Agent of the Hudson's Bay Company with  44 a view no doubt to facilitate the trading  45 relations of that Company with the aborigines  46 of the country..."  47 28317  Submissions by Mr. Goldie        1 Those are the last  three lines of that quotation.  2  3 He then went on to point out that the Dominion's 4  4 November 1874 Order in Council, that is Mr. Laird's  5 report which was adopted on that date.  And which in  6 December of 1874 was sent by Lord Dufferin to London.  7 And your lordship will recall with the -- seeking to  8 invoke the interference of the Colonial Secretary.  9  10 Vankoufniet went on to point out that the  11 Dominion's 4 November 1874 Order in Council "did not  12 deal with the question of the Indian title to the  13 lands generally..."; that there was little or no  14 evidence that any idea or claim of Indian title in  15 British Columbia existed before Lord Dufferin's speech  16 in 1876; that there was no suggestion in William  17 Duncan's 1875 letters to the provincial and Dominion  18 governments on the subjects of Indian reserves that  19 Indian title was a consideration.  20  21 If I may pause there, my lord, it was Duncan's  22 1875 letters which were used by both the province and  23 the Dominion in arriving at the agreement which  24 resulted in the Indian Reserve Commission.  25  26 And then he goes on, and that the allotment of the  27 reserves by the Indian Reserve Commissioner "was as  28 practical an answer as could have been given to the  29 Indians claiming  ... additional territory."  30  31 The Acting Indian Superintendent in Victoria  32 endorsed the Deputy Superintendent General's  33 "admirable and exhaustive report".  34  35 It is submitted that the correctness of his  36 perceptions has not diminished in the intervening one  37 hundred years.  38  39 Now, in 1891, the Superintendent General of Indian  40 Affairs reported, and I quote from the Annual Report  41 for the year ended 31 December 1891.  42  43 "From one end of British Columbia to the other  44 properity and contentment reigned among the  45 Indians during the past year.  Even on the  46 northwest coast, where but a few years since  47 considerable difficulty was experienced in 28318  Submissions by Mr. Goldie 1                   managing the  Indians, owing to exaggerated  2 ideas instilled into their minds as to their  3 lands rights by evil counsellors and  4 mischief-makers, actuated no doubt by sinister  5 motives, the Indians having become passified  6 and assured that the Department was doing all  7 it could for them, tranquility undisturbed  8 prevailed during the year."  9  10 Compelling evidence that the Dominion government  11 did not  recognize Indian title in British Columbia  12 (and, consequently, that the lands of the province  13 were not subject to an interest other than that of the  14 province within the meaning of section 109) can be  15 seen in an 1895 Dominion Order in Council which  16 responded to a complaint to the Government of British  17 Columbia of Indians squatting on lands outside their  18 reserves.  19  20 Now, my lord, I referred to this Order in Council  21 in my submission with respect to the South African War  22 Land Grant.  But its importance is seen in the  23 sequence that I have before your lordship now.  24  25 The Order in Council itself proves a report of the  26 Superintendent General of Indian Affairs that for  27 several years Indian agents in British Columbia had  28 been instructed, and I quote:  29  30 "...to discourage the settling of Indians on  31 land other than their reservations, and to  32 advise the Indians that they should, as much as  33 possible, confine themselves to the reserves  34 allotted for their use, endeavouring to make  35 them understand that they could be summarily  36 ejected without compensation from land squatted  37 upon unlawfully."  38  39 He observed, moreover, and I quote:  40  41 "...that it is open to the Provincial  42 Authorities to put the law in operation against  43 the offending Indians and to have them expelled  44 from the land which they have squatted upon,  45 that he does not consider that the right of the  46 province in the matter, is open to question..."  47 28319  Submissions by Mr. Goldie        1 Now, a copy of is  that Order in Council was sent  2 to the Government of British Columbia on 17 December  3 1895.  4  5 Now, just by way of putting outside events into  6 this sequence, it should be noted that Chancellor  7 Boyd's reasons in the St. Catherine's Milling case  8 were handed down on 10 June 1885; the Ontario Court of  9 Appeal's judgment on 20 April, 1886; the Supreme Court  10 of Canada's judgment on 20 June 1887; and the Judicial  11 Committee's judgment on 12 December, 1888.  12  13 So the Dominion Order in Council saying that it  14 would not recede from the arrangements entered into  15 with British Columbia on its union with the -- with  16 Canada which is referred to in paragraph 48, that  17 Order in Council was June 13, 1887.  18  19 The Dominion Order in Council on the fact that  20 Indians who settle on lands other than reserve lands  21 without any compliance with the local laws were  22 squatters and subject to ejectment was made in 1895 in  23 MacKenzie Bowell's administration after -- some time  24 after Macdonald had died, a coalition of  25 administration.  So that we have on either side of the  26 Privy Council's judgment in St. Catherine's Milling, a  27 rejection, in my submission, of claims to aboriginal  28 title in British Columbia.  Rejection by Canada, that  29 is.  30  31 Now, my lord, I come to the next section which is  32 number 6.  And that takes us into the next volume of  33 documents.  This deals with Treaty 8.  34  35 Before I go onto Treaty 8, my lord, and just to  36 put that last Dominion Order in Council of 1895 in  37 perspective, your lordship may recall that Mr. Justice  38 Hall in the Calder case suggested that the idea of  39 Indians being trespassers was an absurdity.  Well, in  40 1895 the government, the Dominion government said that  41 in law that was so if they did not comply with the  42 local laws outside the reserves that is.  43 THE COURT:  But why would they be trespassers if there was a  44 policy that they could live off the reserve and use  45 lands the same as anyone else?  46 MR. GOLDIE:  Well, they wouldn't be if, for instance, they  47 pre-empted. 28320  Submissions by Mr. Goldie        1  THE COURT:  I see.  2 MR. GOLDIE:  And the example that I gave in the South African  3 War Land Grant case was Mr. Thomas George who  4 pre-empted lands, as it happens, in the middle of the  5 area claimed by the House of Gisdayway of which he was  6 a member.  And he sold that when he was -- had no  7 further use for it.  The restriction on pre-emption  8 arose out of the concern for speculation that they  9 would be made instruments of speculation.  But there  10 were a number of Orders in Council authorizing  11 pre-emption.  They could buy land from anybody.  And a  12 number of them did.  13 THE COURT:  When were they prevented from pre-emption?  14 MR. GOLDIE:  It was a colonial ordinance, my lord.  And it was  15 one of the ones that I examined.  And I will get the  16 reference to it.  It was not a question of preventing  17 them.  It was a question of requiring them to get the  18 authorization of the Lieutenant Governor in Council,  19 or at that time the Governor.  And the Attorney  20 General of the day gave the reason for it.  21 THE COURT:  There was no impediment on pre-emption at this time,  22 or was that still continuing?  23 MR. GOLDIE:  At this time being in 1895?  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  I think the same situation prevailed then.  2 6 THE COURT:  Yes.  27 MR. GOLDIE:  What this Order in Council recognized is that they  28 were in no different position than any white man who  29 came along and settled on land without any colour of  30 right.  As Douglas referred to the miners in 1858:  31 "You're squatters.  We don't recognize you."  And that  32 prevailed until a pre-emption law had been passed or  33 proclamation had been made.  34 THE COURT:  All right, sir.  Thank you.  35 MR. GOLDIE:  Now, turning to section 6, Treaty 8.  I don't  36 propose making any introductory remarks.  I think that  37 is sufficiently covered in the first paragraphs.  38  39 Treaty 8 is the only land cession treaty affecting  40 any part of the mainland of British Columbia.  The  41 precise western boundary of the lands encompassed by  42 it is disputed, but it can be said generally to cover  43 the north eastern portion of British Columbia east of  44 the Rocky Mountains, the northern half of Alberta, a  45 corner of northwestern Saskatchewan, and a small part  46 of the central northwest territories.  It does not  47 touch the Yukon. 28321  Submissions by Mr. Goldie        1 Although the  Government of British Columbia was  2 informed by the Dominion that it intended to negotiate  3 a Treaty with Indians residing in the area east of the  4 Rocky Mountains, the Province was not consulted about  5 the treaty's terms or territorial extent, nor was it  6 asked to provide any financial contribution towards  7 the initial or continuing costs of the treaty.  8  9 The arrangements made by the Dominion for the  10 negotiation of Treaty 8 in 1899 will be contrasted  11 with those made for Treaty 9 in the Province of  12 Ontario a few years later.  The differences are  13 significant because, like British Columbia and unlike  14 the prairie provinces, Ontario had control of the  15 Crown lands within its borders.  However, unlike the  16 case in British Columbia, Ontario and the Dominion had  17 agreed that Ontario would participate in the  18 negotiation and share the costs of future treaties.  19  20 The circumstances surrounding the negotiation of  21 Treaty 9 are also of interest because the Dominion  22 decided to exclude territory in the Province of Quebec  23 from its reach for the reason that Quebec, like  24 British Columbia, did not consider its lands to be  25 burdened by Indian title.  26  27 Canada negotiated the first seven "numbered"  28 treaties with Indians in Manitoba and the Northwest  29 Territories between 1871 and 1877.  Treaty No. 8 was  30 not concluded until 1899, although as early as 1891  31 the Dominion contemplated negotiating a treaty in the  32 District of Athabaska (now northern Alberta) and in  33 the Mackenzie River area because of the discovery of  34 "immense quantities of petroleum" and other minerals  35 in those regions, and also because of "several Railway  36 projects" then under consideration.  37  38 That Order in Council, my lord, is under tab 2,  39 that is 6-2.  And that is the Order in Council of  40 January 1891.  41  42 "On a Report dated 7th of January 1891 from the  43 Superintendent General of Indians Affairs  44 stating that the discovery in the District of  45 Athabaska and in the Mackenzie River Country  46 that enumberable quantities of petroleum exist  47 within certain areas of those regions as well 28322  Submissions by Mr. Goldie        1 as the belief  that other minerals and  2 substances of economic value...",  3  4 et cetera".  And in the next page:  5  6 "It is desirable that a treaty or treaties  7 should be made with the Indians who claim those  8 regions as their hunting grounds with a view to  9 the extinguishment of the Indian title in such  10 portions of the same as it may be considered in  11 the interests of the public to open up for  12 settlement."  13  14 That was in 1891.  15  16 In the view of the Governor in Council, and I have  17 just read part of that, no part of British Columbia  18 was included in the description of lands to be  19 encompassed by the contemplated treaty.  Your lordship  20 will see that the centre of gravity was more to the  21 Mackenzie Valley than to the east.  22  23 However, the question of a new treaty arose again  24 late in 1897 following representation to the  25 Department of Indian Affairs by the North West Mounted  26 Police Commissioner, amongst others, who, apprehending  27 a danger of violence from Indians resentful of any  28 interference "with what they considered their vested  29 rights" by the anticipated influx of gold miners and  30 settlers into the Athabasca and the Peace and Liard  31 River areas, now, that is shifting west, suggested  32 that a treaty should be made with Indians in those  33 places.  34  35 And the enclosures or the documents are found  36 under tab 3, my lord.  And it starts with the  37 Department in Ottawa sending to the Indian  38 Commissioner at Winnipeg a communication from a Major  39 Walker who had been a former North West Mounted  40 Policeman suggesting that:  41  42 "From all appearances there will be a rush of  43 miners and others to the Yukon and the mineral  44 regions of the Peace and Liard and other rivers  45 in Athabasca during the next year."  46  47 And Major Walker was seeking employment.  But 28323  Submissions by Mr. Goldie        1 Commissioner Herchmer,  writing from Regina in December  2 1897, says:  3  4 "I have the honour to draw your attention to  5 the advisability of the Government taking some  6 immediate steps toward arranging with the  7 Indians not under Treaty, occupying the  8 proposed line of route from Edmonton to Pelly  9 River."  10  11 Pelly River is I think the Yukon, my lord.  12  13 "These Indians although few in number, are said  14 to be very turbulent, and are liable to give  15 very much trouble when isolated parties of  16 miners and travellers interfere in what they  17 consider their vested rights."  18  19 And then he goes on to make some other observations.  20 And as a result, Mr. Forget, the Commissioner in  21 Winnipeg, the federal officer, recommended to the  22 Department of Indians Affairs that a treaty be  23 negotiated with Indians in the District of Athabasca  24 and in northeastern British Columbia.  25  26 And if your lordship would look to the -- under  27 tab 4 which is Mr. Forget's letter of the 12th January  28 1898, you will see on page 2 beginning with the second  29 complete paragraph:  30  31 "With regard to the attitude of the Indians of  32 the Lower Peace and Nelson Rivers and the  33 Nahanni and Sicanie tribes, referred to by  34 Commissioner Herchmer, I have no information  35 and am therefore not in a position to speak,  36 but as their territory is already the scene of  37 considerable activity an mining matters and as  38 Commissioner Herchmer is through recent Police  39 parole throughout the district occupied by  40 these Indians, doubtless obtained accounts and  41 reliable information, I can only conclude that  42 the same necessity for extinguishment of the  43 native title exists there as at Lesser Slave  44 Lake and vicinity.  Beyond these points however  45 I do not consider that the Government would be  46 justified in undertaking the negotiation of  47 treaties which would involve very heavy outlay 28324  Submissions by Mr. Goldie        1 for  comparatively inadequate returns in-so-far  2 as the territory to be ceded where, or the  3 rights of the Indian owners, are concerned.  4 I would therefore recommend that for the  5 present the territory which the Indians should  6 be asked to cede be confined to the Provisional  7 District of Athabasca and North Western British  8 Columbia, marked "A" and "B" in the  9 accompanying map."  10  11 And then your lordship will see the marginal note by  12 Mr. McLean who was the Secretary of the Department of  13 Indian Affairs stating:  14  15 "Indians of B.C. already dealt with by  16 arrangement with B.C. Government in 1876."  17  18 Now, that date, of course, was the date of the  19 establishment of the Joint Indian Reserve Commission  20 which was embodied in the Dominion and Provincial  21 Orders in Council of 10 November 1875 and 6 January  22 1876.  23  24 And I say on page 228 of my summary, the clear  25 implication of McLean's note is that the Dominion  26 considered that the only thing necessary to be done  27 respecting Indians and lands reserved for Indians in  28 British Columbia was to ensure that reserves were in  29 fact provided.  This was the arrangement provided for  30 in Term 13 of the Terms of Union and modified only  31 slightly by the 1875-1876 Joint Indian Reserve  32 Commission agreement.  In my submission, neither  33 government considered there was an obligation to  34 extinguish Indian title because neither had  35 acknowledged that aboriginal title existed in British  36 Columbia.  37  38 In June of 1898, the Governor in Council approved  39 the proposed arrangements, including the appointment  40 of Commissioners, for the negotiation in the summer of  41 1899 of a treaty with Indians occupying territory  42 north of the area encompassed by Treaty 6.  43  44 Now, all of this is set out in the documents, the  45 Order in Council in question.  And I am going to deal  46 with this in a fairly summary way.  The Commissioners  47 were given discretion "as to the territory to be 28325  Submissions by Mr. Goldie        1 ceded", but the  territory to be treated for was:  2  3 "in a general way  ... restricted to the  4 Provisional District of Athatbaska",  5  6 and that is wholly within what is now Alberta, my  7 lord,  8  9 "...and such as the country adjacent thereto as  10 the Commissioners may deem it expedient to  11 include within the treaty."  12  13 One of the Commissioners was Mr. McKenna, who  14 later became better known for his participation in the  15 McKenna-McBride agreement.  16  17 In December 1898, the Governor in Council adopted  18 a recommendation by the Minister of the Interior to  19 include the northeastern corner of British Columbia  20 within the territory to be treated for by the  21 Dominion's Commissioners.  22  23 And that Order in Council is under tab 6.  And  24 there is, my lord, a printed version of that under the  25 same tab but following the blue separator sheet.  It  26 is Order in Council number P.C. 2749.  The map which  27 is referred to, or perhaps I should refer to the Order  2 8 in Council.  And I am going to read from the  29 transcript or the typescript, my lord, or the print.  30 After making reference to the report of the 30th of  31 November, 1898, and the authorization of the  32 Commissioners to negotiate a treaty, and the reference  33 to the report of the Commissioner of the North West  34 Mounted Police setting forth that:  35  36 "...the desirability of steps being taken for  37 the making of a treaty with the Indians  38 occupying the proposed line of route from  39 Edmonton to Pelly River."  40  41 And then the next paragraph is the Commissioner's  42 views are concurred in.  And then the third paragraph:  43  44 "The Minister, in this connection, draws  45 attention to the fact that that part of the  46 territory marked "A" on the plan attached is  47 within the boundaries of the Province of 28326  Submissions by Mr. Goldie 1                   British  Columbia."  2  3 The "A" to the map in question, my lord, is appended  4 to the -- to the photocopy of the handwritten Order in  5 Council.  And it is the page immediately preceding the  6 blue separator sheet.  And it shows the corner of  7 British Columbia which would be affected if they took  8 the recommendation of the Mounted Police Commissioner,  9 which they propose doing.  10  11 Continuing with the Order in Council:  12  13 "...and that in the past no treaties such as  14 have been made with the Indians of the North  15 West have been made with any of the Indians  16 whose habitat is west of the Mountains.  An  17 arrangement was come to in 1876 under which the  18 British Columbia Government agreed to the  19 setting aside by a Commission subject to the  20 approval of the Government, of land which might  21 be considered necessary for Indian reserves in  22 different parts of the Province, and later on  23 the agreement was varied so as to provide that  24 the setting apart should be made by a  25 Commissioner appointed by the Dominion  2 6 Government whose allotment would be subject to  27 the approval of the Commissioner of Lands and  28 Works of the Province.  29 As the Indians to the west of the Mountains  30 are quite distinct from those whose habitat is  31 on the eastern side thereof, no difficulty ever  32 arose in consequence of the different methods  33 of dealing with the Indians on either side of  34 the Mountains.  But there can be no doubt that  35 had the division line between the Indians been  36 artificial instead of natural, such difference  37 in treatment would have been fraught with grave  38 danger and have been the fruitful source of  39 much trouble to both the Dominion and  4 0 Provincial Governments.  41 The Minister submits that it will neither  42 be politic nor practicable to exclude from the  43 treaty Indians whose habitat is in the  44 territory lying between the height of land and  45 the eastern boundary of British Columbia, as  46 they know nothing of the artificial boundary,  47 and being allied to the Indians of Athabasca, 28327  Submissions by Mr. Goldie 1                   will look for  the same treatment as is given to  2 the Indians whose habitat is in that district.  3 Although the rule has been laid down by the  4 Judicial Committee of the Privy Council,"  5  6 I interject there that is the St. Catherine's Milling  7 case, my lord.  8  9 "...that the Province benefitting by a  10 surrender of Indian title should bear the  11 burdens incident to that surrender, he the  12 Minister after careful consideration does not  13 think it desirable that any demand should be  14 made upon the Province of British Columbia for  15 any money payment in connection with the  16 proposed treatment."  17  18 Now, this, of course, was before the Privy Council  19 decided in the Annuities case that the Province should  20 not have to bear any of the financial burden even  21 though it succeeded to the benefit of the  22 extinguishment.  23  24 And then in the second -- the third to last  25 paragraph, he says:  26  27 "...the Minister would suggest that the  28 Government of British Columbia be apprised of  29 the intention to negotiate the proposed treaty  30 ... and recommends that the Government of  31 British Columbia be asked to formally acquiesce  32 in the action taken by Your Excellency's  33 Government in the matter and to intimate its  34 readiness to confirm any reserves which it may  35 be found necessary to set apart within the  36 portion of the Province already described."  37  38 Well, of course the latter point was unnecessary as  39 the Province was already obligated to set aside  40 reserves when required.  41 THE COURT:  Well, was the Peace River block designated a  42 reserve?  43 MR. GOLDIE:  No, never.  It simply came under the Dominion Lands  44 Act which at one time precluded -- well, it still was  45 at this time.  The Peace River block was still subject  4 6 to the Dominion's Lands Act.  And that provided that  47 no settlement would take place before extinguishment 28328  Submissions by Mr. Goldie        1 at title.  2 MR. RUSH:  Well, portions of it were set aside as reserves.  3 THE COURT:  They were?  4 MR. RUSH:  Yes.  5 MR. GOLDIE:  Well, I don't think at 1898.  I may be wrong.  6 MR. RUSH:  Oh, no.  Not at this time, but subsequent.  7 MR. GOLDIE:  Well, yes, of course.  But not in 1898.  I am at  8 page 230 of my summary, my lord --  9 THE COURT:  I am looking at this map.  Is it 700,000 square  10 miles, or is it 200,000 or 100?  11 MR. GOLDIE:  100,000 square miles.  12 THE COURT:  100, is it?  That is the area of the Peace River  13 block, is it?  14 MR. GOLDIE:  No, the Peace River block -- if one was to place  15 the Peace River block in this area --  16 THE COURT:  I'm sorry, I don't mean the Peace River block.  What  17 does that 100,000 square miles refer to?  18 MR. GOLDIE:  It is the triangle bounded on the east by the  19 boundary between British Columbia and Alberta, and on  20 the west by the height of land.  21 THE COURT:  All right.  22 MR. GOLDIE:  The Rockies.  And the north, the 60th parallel.  23 THE COURT:  All right.  Thank you.  24 MR. GOLDIE:  I should say that the eastern -- I'm sorry, the  25 western boundary is a matter of some dispute.  2 6 THE COURT:  Thank you.  27 MR. GOLDIE:  But on page 230 I have just set out what I have  28 just read from the Order in Council and identified the  29 reference to the St. Catherine's Milling case and the  30 Annuities case.  31  32 And on page 231 I say the Minister's mistaken  33 interpretation of Lord Watson's dictum, which is that  34 the Province benefitting by a surrender of Indian  35 title should bear the burdens incident to that  36 surrender, that dictum was not accepted in the  37 Annuities case.  38  39 I say the Minister's mistaken interpretation of  40 Lord Watson's dictum, however, lends even greater  41 weight to the recommendation adopted by the Governor  42 in Council respecting Treaty 8.  And that is that they  43 would not ask British Columbia for any contribution.  44 The page references to that should be added pages 3 to  45 4 of the printed version.  6 to 7 of the handwritten  46 version.  47 The Governor in Council ordered that the Province 28329  Submissions by Mr. Goldie        1 be informed.  I have  referred to the request that it  2 acquiesce.  3  4 On December 5, 1898, Mr. McKenna (who had been  5 appointed a Treaty Commissioner in June) wrote to Mr.  6 Laird (the former minister of the Interior, who was  7 then an Indian Commissioner in Winnipeg) respecting  8 the treaty arrangements then being made, stating that  9 the Government of British Columbia was to be advised  10 of the proposed treaty and that it would be asked "to  11 intimate it acquiscence and its willingness to confirm  12 any reserves which" it might be necessary to set apart  13 in the province.  14  15 The next sequence of events is summarized in the  16 following paragraphs.  The Dominion Order in Council  17 was sent to the Lieutenant Governor of British  18 Columbia, with the request that the Government of  19 British Columbia "formally acquiesce".  20  21 In paragraph 10 I note that that was no new  22 obligation.  23  24 Paragraph 11, the Lieutenant Governor acknowledged  25 the receipt of the Secretary of State's letter.  And  26 that reference type note in the upper left-hand corner  27 is to the Exhibit 1203-7.  I just want to check  28 whether that is the one that -- yes, my lord, it is  29 the one under tab 11.  And the reference is to an  30 acknowledgment in the upper left-hand corner.  31 THE COURT:  My copy is not clear.  It says, "Acknowledged  32 September" --  33 MR. GOLDIE:  "December 20th."  34 THE COURT:  And that would be 1898?  35 MR. GOLDIE:  1898, yes.  36 THE COURT:  All right.  37 MR. GOLDIE:  And that was -- the next step in the chain was from  38 the Lieutenant Governor to the Provincial Secretary.  39 And that was acknowledged for December 27th.  But  40 there is no -- nothing has been found in our research  41 to indicate that the Government of British Columbia  42 ever formally acquiesced.  Whether it did or not, its  43 obligation under the 1876 agreements remain.  44  45 And I note that in 1920 the then Deputy  46 Superintendent General of Indian affairs wrote that  47 there was no agreement between the Province and the 28330  Submissions by Mr. Goldie 1            Dominion respecting  Treaty 8.  2  3 That's a memorandum addressed to the Honourable  4 Sir James Lougheed, who at that time I believe was the  5 government leader in the Senate.  And the Deputy  6 Superintendent General says:  7  8 "I observe that the Honourable Senator Hostock  9 in the debate on Bill 13  ... mentioned a  10 treaty having been made with certain Indians of  11 British Columbia.  The reference is to what is  12 known as Treaty No. 8 by which there was a  13 cession of the Indian title to a vast area of  14 land in the Peace River and Great Slave Lake  15 regions.  There was no agreement between the  16 Province and the Dominion, but an Order in  17 Council was passed and so on."  18  19 THE COURT:  Can we take the afternoon adjournment, Mr. Goldie?  20 MR. GOLDIE:  Yes, that will be fine.  21 THE REGISTRAR:  Order in court.  Courts stands adjourned.  22 (PROCEEDINGS ADJOURNED AT 3:00)  23  24 I hereby certify the foregoing to  25 be a true and accurate transcript  26 of the proceedings transcribed to  27 the best of my skill and ability.  28  29  30  31  32  33 Lisa Franko,  34 Official Reporter,  35 UNITED REPORTING SERVICE LTD.  36  37  38  39  40  41  42  43  44  45  46  47 28331  Submission by Mr. Goldie        1        (PROCEEDINGS RECONVENED AT  3:23 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Thank you, Mr. Goldie.  5 MR. GOLDIE:  My lord, before continuing at page 234, when I had  6 made reference to the Dominion Order in Council of  7 1895, your lordship asked me about the restrictions on  8 pre-emption.  My understanding is that prior to 1866  9 there had been no restrictions on pre-emption, and, in  10 fact, when the first question first came up -- when  11 the question first came up, the instructions were  12 given that there should be no restrictions on the  13 Indians acquiring land by pre-emption or purchase.  In  14 1866 the Colonial Act, an ordinance -- the pre-emption  15 ordinance 1866 was passed, which is found at Exhibit  16 1186, tab 68, and that stated that:  17  18 "The right conferred under Clause 12 of the Land  19 Ordinance, 1865, on British Subjects, or aliens  20 who shall take the oath of allegiance, of pre-  21 empting and holding in fee simple... shall not  22 (without the special permission thereto of the  23 Governor first had in writing) extend to or be  24 deemed to have been conferred on Companies  25 whether Chartered, Incorporated, or otherwise,  26 or, without the permission aforesaid, to or on  27 any of the Aborigines of this Colony or the  28 Territories neighbouring thereto."  29  30 Under tab 69 is found the Attorney-General's  31 report to the acting governor of the 21st of April,  32 1866.  He makes reference to these restrictions by  33 stating that:  34  35 "The attempts of Companies to take up and  36 hold pre-emption Claims in what might almost be  37 termed mortmain, has called for legislative  38 enactment in order to define the limits of what  39 was intended to be the personal act of pre-  4 0 empting."  41  42 Then he goes on to say:  43  44 "The question of Indians pre-empting is a  45 still more serious one.  46 Already large reserves have been made for  47 them... 28332  Submission by Mr. Goldie        1 Were they  allowed in addition to the  2 existing Indian Reserves, to pre-empt 160 acres  3 each and buy as much adjacent land as they  4 chose, they would become ready tools in the  5 hands of designing men who upon any rush for  6 the limited quantity of land in the Colony  7 available for settlement would either shut out  8 altogether, or levy black Mail upon incoming  9 bona fide settlers.  10 Indeed the process has already begun..."  11  12 And then he goes on to say:  13  14 "Individual cases of fitness of Indians for  15 pre-emption privileges, such as that of St.  16 Paul at Kamloops do and will occur and it is  17 hoped increase.  For all such the Governor's  18 permission forms a ready means of obtaining the  19 desired end."  20  21 And that provision was carried through after union  22 with Canada in 1871.  23 Now if I may go back to page 234 of my summary, my  24 lord.  25 THE COURT:  You don't know how long it remained in the law?  26 Surely not till the Charter?  27 MR. GOLDIE:  No.  I think — I'll find out when it was removed.  2 8 THE COURT:  All right.  Thank you.  29 MR. GOLDIE:  It lasted well into the twentieth century.  30 THE COURT:  I'm sure it did.  Probably to the Second World War.  31 MR. GOLDIE:  I'm at paragraph 13 on page 234, my lord.  32 Negotiated during the summer of 1899, Treaty 8 was  33 approved by the Governor in Council on 20 February  34 1900.  Although the treaty purported to cover  35 territory in British Columbia east of the central  36 range of the Rocky Mountains, the Commissioners had  37 not yet, in fact, then secured the adhesion of any  38 Indians who lived in the province.  39 And then there is a reference to the adhesion of  40 some Beaver Indians taken at Fort St. John on the 30th  41 of May, 1900.  This adhesion was approved in 1901.  42 And the Commissioner's Report of December 11th,  43 1900, is attached to the adhesions -- is attached to  44 the Order in Council.  45 I make reference to a pamphlet that has been  46 printed containing a number of these documents, and I  47 say it appears that only one other formal adhesion to 28333  Submission by Mr. Goldie        1 Treaty 8 was taken from  Indians residing within the  2 boundaries of British Columbia.  Because the Indians  3 at Fort Nelson were reportedly "becoming troublesome,"  4 the Governor in Council - without reference to the  5 Government of British Columbia - appointed a  6 Commissioner to take their adhesion to the treaty on  7 December 18th, 1909.  8 The Fort Nelson adhesion was taken on August 15,  9 1910, and approved by the Governor in Council on  10 November 11th, 1910.  11 Now, my lord, I have in paragraph 17 to 28  12 compared the situation in Ontario and in British  13 Columbia, and I note in paragraph 17 statutes which  14 were passed by Ontario and Canada enabling them to  15 enter into an agreement which would provide for the  16 allotment of reserve lands and which would also  17 provide, and I quote:  18  19 "6.  That any future treaties with the Indians  20 in respect of territory in Ontario to which  21 they have not hitherto surrendered their claim  22 aforesaid, shall be deemed to require the  23 concurrence of the government of Ontario."  24  25 By 1901-1902 Department of Indian Affairs  26 officials were considering plans for a treaty which  27 would cover unceded territory in both Ontario and  28 Quebec.  And there is under that tab, my lord, a  29 typescript of a memorandum prepared by a law clerk,  30 and that -- his memorandum begins under the heading  31 "Proposed New Treaty in Ontario and Quebec" about  32 midway down the page.  33 THE COURT:  You're in?  34 MR. GOLDIE:  Tab 18 of the yellow book, and there's a  35 typescript.  3 6 THE COURT:  Yes.  37 MR. GOLDIE:  And midway down the page "Proposed New Treaty in  38 Ontario and Quebec."  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  And he is reviewing the law and the problems that  41 might occur with respect to treaties in the two  42 provinces.  He said:  43  44 "According to the plan on file the territory  45 covered by the suggested Treaty lies partially  46 in the Province of Ontario and partly in that  47 of Quebec.  The question referred to me is 28334  Submission by Mr. Goldie        1 whether the  Provinces named should be made  2 parties to the Treaty."  3  4 Paragraph 2.  5  6 "In my opinion the Government would be borrowing  7 trouble if it entered into a treaty without the  8 Province of Ontario joining so far as the  9 Treaty affects territory in Ontario, and the  10 Province of Quebec joining so far as the Treaty  11 affects territory in that Province.  The  12 Government would be repeating the error made in  13 the case of Treaty 3 without the justification  14 which existed in that case owing to the fact  15 that the western boundary of Ontario was in  16 dispute."  17  18 Now, this, of course, gets us back into the origin  19 of the dispute which wound up in St. Catherine's  20 Milling.  Continuing:  21  22 "In my opinion the only interest which the  23 Dominion Government represents in the  24 negotiation of a surrender of Indian rights  25 over territory in either of the Provinces is  26 that of the Indians.  All territorial rights of  27 the Crown are vested in the Provinces, under  28 Section 109 of the B.N.A. Act...and in order to  29 bind the Provinces to the conditions of a  30 Treaty, creating reserves to be held on any  31 tenure other than Indian title and providing  32 for the payment of monies, the provincial  33 governments would be necessary parties."  34  35 Then he goes on to talk about what was said in the St.  36 Catherine's Milling.  And his conclusion is that the  37 provinces should be approached and bound if they are  38 going to be in any way responsible for any of the  39 consequences of a treaty.  40 THE COURT:  But if it was just a treaty involving compensation  41 without a reserve out of those ceded lands, then there  42 would be no need for the province.  43 MR. GOLDIE:  No need for the province at all.  44 THE COURT:  No.  All right.  45 MR. GOLDIE:  Then in paragraph 19 I say in 1903 it was  46 considered by the Department of Indian Affairs that no  47 treaty should be made with Indians in Quebec because: 28335  Submission by Mr. Goldie        1 "The Indian title  in the Province of Quebec has  2 never been recognized or surrendered as in the  3 Province of Ontario..."  4  5 and it was not proposed to change policy in that  6 regard.  And that's under tab 19, a document headed  7 "Report on Treaty in Northern Ontario and Quebec," a  8 memorandum to Mr. Sifton, who I believe was the  9 Superintendent General of Indian Affairs at that time.  10 And after a review of the history of the matter on  11 page 5 the author of the memorandum states:  12  13 "The Indian title in the Province of Quebec has  14 never been recognized or surrendered..."  15  16 THE COURT:  That's on your page 5?  17 MR. GOLDIE:  It's page 5 at the top of the page, my lord.  It's  18 page 6 in the pagination under the --  19 THE COURT:  Oh.  20 MR. GOLDIE:  — yellow binder.  21 THE COURT:  Yes, I see it.  22 MR. GOLDIE:  And it's in the last paragraph.  2 3 THE COURT:  Yes.  24 MR. RUSH:  Who is the author of this document?  Is it Sifton?  25 MR. GOLDIE:  No, no, it's not Mr. Sifton.  It's addressed to  26 him.  And it's my understanding that it was the  27 deputy, but apart from that I am unable to assist you.  2 8 THE COURT:  "mhb."  29 MR. GOLDIE:  Yes.  In 1904 — I'm at paragraph 20 of my  30 summary -- the Dominion sought Ontario's concurrence  31 in the proposed treaty which was considered to be  32 "...in the best interests of the Dominion generally as  33 well as the Province of Ontario..."  That is a letter  34 addressed to Aubrey White, Assistant Commissioner of  35 Crown Lands in Toronto, and it is sent on behalf -- or  36 the copy is marked Frank Pedley, Deputy Superintendent  37 General of Indian Affairs.  And towards the bottom of  38 the first page, the last eight lines of the first  39 paragraph:  40  41 "It is not thought advisable by the Government  42 of the Dominion to enter into this Treaty  43 without a clear understanding with your  44 Province.  At the same time it is obvious that  45 there is a degree of urgency in the matter and  46 that it is in the best interests of the  47 Dominion generally as well as the Province of 28336  Submission by Mr. Goldie        1 Ontario that the  treaty should be speedily  2 concluded.  3 It is the fixed policy of this Government  4 to pave the way for exploration, location and  5 construction of railway lines by the extinction  6 of all aboriginal rights in the territory to be  7 exploited..."  8  9 And I say that can only refer to policy respecting the  10 existing provinces of Ontario and Manitoba and the  11 soon-to-be created provinces of Saskatchewan and  12 Alberta, since no land cession treaties had been  13 entered into in Quebec, the Maritime provinces, or in  14 British Columbia west of the Rocky Mountains.  15 Now, pursuant to the 1891 enabling statutes, which  16 had authorized the agreements between the two  17 governments, there was an agreement entered into  18 respecting the proposed treaty on July 3rd, 1905.  19 Under this agreement Ontario agreed to appoint one of  20 the treaty commissioners and to set aside reserves and  21 to reimburse the Dominion for payments made to  22 Indians.  Now, that was before the Privy Council  23 decided that even payments were not required from the  24 provinces.  25 The main treaty was concluded in 1905 and 1906.  26 The Treaty Commissioners' Report for 1906 recounts a  27 meeting with Indians who lived and hunted in Quebec  28 who were told that the Commissioners had no authority  29 to treat with them, although they were to be given  30 reserves.  The Commissioners explained:  31  32 "The policy of the province of Ontario has  33 differed very widely from that of Quebec in the  34 matter of the lands occupied by the Indians.  35 In Ontario, formerly Upper Canada, the rule  36 laid down by the British government from the  37 earliest occupancy of the country has been  38 followed, which recognizes the title of the  39 Indians to the lands occupied by them as their  40 hunting grounds, and their right to  41 compensation for such portions as have from  42 time to time been surrendered by them."  43  44 And then it goes on to talk about Quebec.  45 Paragraph 24 I say the passage cited above makes  46 it quite clear that officials in the Department of  47 Indian Affairs were well aware of the fact that there 28337  Submission by Mr. Goldie        1 was no uniform policy  respecting the extinguishment of  2 aboriginal title in Canada.  3 One of the Treaty 9 Commissioners was Duncan  4 Scott, who subsequently became Deputy Superintendent  5 General of Indian Affairs in 1913.  6 And then we come to the Ontario and Quebec  7 Boundaries Extension Acts, and these were passed in  8 anticipation of the proposed northward extension of  9 the boundaries of Manitoba, Ontario and Quebec.  And  10 under tab 25 this is an Order in Council, and it  11 recites the background for what is proposed.  Page 2  12 there is reference to Manitoba.  13  14 "As by the terms of the Resolution the Province  15 of Manitoba is not to enjoy the public lands as  16 a source of revenue the extinction of the  17 Indian interest therein devolves upon the  18 Government of Canada and has already been  19 arranged for."  20  21 Then reference is made to the proposed addition of  22 territory to Ontario.  And then Quebec, and this again  23 makes reference to the situation in Quebec, that there  24 has been no treaties there.  And over on page 3 of the  25 Order in Council signed by -- not 3, but rather 5.  At  26 the top of the page:  27  28 "The Province of Quebec to perfect its title to  29 this domain,"  30  31 that is to say to the added --  32 THE COURT:  I'm sorry, where are you?  33 MR. GOLDIE:  I'm at the last page of the Order in Council, my  34 lord, under tab 25.  35 THE COURT:  Yes.  36 MR. GOLDIE:  And at the top of the page.  And this follows  37 recitals dealing with the way things were in the  38 Province of Quebec.  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  The committee -- the recommendation or the report  41 contains these words:  42  43 "The Province of Quebec to perfect its title to  44 this domain should adopt the established  45 practice and agree with the Dominion upon the  46 terms and conditions of a Treaty..."  47 28338  Submission by Mr. Goldie        1  THE COURT:  I'm sorry, Mr. Goldie,  I don't see that.  2 MR. GOLDIE:  Oh.  3 THE COURT:  On your pagination page 5?  4 MR. GOLDIE:  Yes.  It's under tab 25, my lord.  5 THE COURT:  Yes, I think so.  Yes.  6 MR. GOLDIE:  And at the top of it there's handwritten numbers  7 2626.  8 THE COURT:  Yes.  9 MR. GOLDIE:  And then line 3.  10 THE COURT:  Oh, I see it.  Yes.  Thank you.  11 MR. GOLDIE:  And this is referring to land which has been added  12 to Quebec.  13 THE COURT:  Yes.  14 MR. GOLDIE:  And the thrust of the report, of the Order in  15 Council is that because Quebec is acquiring new  16 territory it should fall in with the general practice  17 of negotiating treaties or joining in the negotiation  18 of treaties, and the -- there was a -- I go to  19 paragraph 26.  20 On May 2nd, 1910, the Governor in Council,  21 reverting again to the position that Lord Watson's  22 dictum in St. Catherine's Milling rendered the  23 provinces liable for payments made to Indians for the  24 extinguishment of aboriginal title, attempted to  25 impose terms on the Province of Quebec respecting such  2 6 payments.  And that's under tab 26.  And it winds up  27 by suggesting that the Province of Quebec should bear  2 8 some cost.  29 However, it was only three months later that the  30 Judicial Committee held that the Indian land cession  31 treaties were made by the federal government under its  32 exclusive constitutional powers for the public welfare  33 and in the interest of the country as a whole, and  34 that no contribution in respect of them was payable by  35 the Province receiving the benefit.  So finally -- so  36 that put a spoke in the Dominion's wheel so far as  37 extracting money from Quebec was concerned.  38 Finally, in 1912 the Dominion enacted statutes  39 which transferred lands from what was the Northwest  40 Territories to the Provinces of Ontario and Quebec on  41 stipulated terms and conditions.  One of the statutory  42 terms and conditions was that each province would  43 recognize the rights of Indians living in the  44 transferred territory.  45  46 "...to the same extent, and will obtain  47 surrenders of such rights in the same manner, 28339  Submission by Mr. Goldie        1 as the Government  of Canada has heretofore  2 recognized such rights and has obtained  3 surrender thereof..."  4  5 Each province was to bear the expense of obtaining  6 such surrenders - although no surrender could be  7 obtained without the approval of the Governor in  8 Council - and:  9  10 "...the trusteeship of the Indians in the said  11 territory, and the management of any lands now  12 or hereafter reserved for their use, shall  13 remain in the Government of Canada subject to  14 the control of Parliament."  15  16 Now, those references, my lord, to the Ontario act  17 should be 2(a) in brackets and (c) in brackets and in  18 the Quebec act 2(c) in brackets and (e).  19 For each province the consent of the legislature  20 to the increase in area and to the terms, conditions  21 and provisions of the respective Boundaries Extension  22 Acts had to be obtained before the acts could be  23 proclaimed by the Governor in Council.  And so far as  24 I am aware that was done, but there has been no  25 numbered treaty in Quebec.  26 In summary, the foregoing demonstrates, firstly,  27 that Treaty 8 was concluded by the Dominion for its  28 own reasons and without British Columbia's consent;  29 two, there was no policy significance so far as the  30 province was concerned; three, that the Dominion  31 followed different policies in different provinces.  32 As your lordship has seen, the Dominion in the case of  33 Ontario and Quebec with the addition of lands took a  34 very distinct position that the provinces were to be  35 involved, while in respect of British Columbia it  36 decided not even to ask for a contribution to the  37 annuities.  Ontario and Quebec became liable for  38 extinguishment costs only because they so agreed; and  39 British Columbia was not at any time considered to be  40 liable to make contributions.  41 My lord, there is an addendum that I wish to add  42 to that which deals with another aspect of Treaty 8,  43 and I would ask your lordship to place it in your  44 binder following the last page that I have just  45 referred to.  And this is, my lord, intended to answer  46 my friend's submission that by standing by, so to  47 speak, and providing reserves in the Treaty 8 area 28340  Submission by Mr. Goldie        1 that British Columbia  recognizing in some way  2 aboriginal title in British Columbia.  And I give the  3 transcript reference for the plaintiffs' submissions  4 with respect to that.  5 And I say that Term 13 of the Terms of Union  6 obliged British Columbia to provide Indian reserves  7 from its Crown lands and to convey them to the  8 Dominion for the use and benefit of Indians anywhere  9 and everywhere in the province.  Term 13 is not  10 geographically limited in any way, shape or form.  11 I make reference here to Ontario's agreement to  12 provide Indian reserves, and I say it was under no  13 obligation to provide them until it consented to do so  14 in 1894.  15 THE COURT:  Was it not under — no.  I'm sorry.  Yes, the Term  16 13 was of the Terms of Union, so Ontario had no  17 similar obligation.  18 MR. GOLDIE:  That's correct, my lord, and it didn't have until,  19 firstly, 1894, and then that was followed again in  20 1905.  These are the agreements and statutes that I  21 have just finished referring to.  And Ontario  22 specifically concurred in the making of Treaty 9 and  23 agreed to allot reserves in the proportion of not  24 greater than one square mile per family of five.  25 And there is in the yellow binder under tab 30 a  26 copy of the Treaty 9 or -- I'm sorry -- a copy of the  27 agreement between Canada and Ontario of 1905, and it  28 recites the 1894 agreement on page 26, and on page 27,  29 the second paragraph from the top, Ontario "concurs in  30 the setting apart and location of reserves within any  31 part of the said territory, as surrendered or intended  32 to be surrendered, in area not greater than one square  33 mile for each family of five."  34 And then I say although the Dominion decided to  35 confine the limits of Treaty No. 9 to the Province of  36 Ontario rather than extending it into Quebec, where  37 Indian title had never been recognized, the Treaty  38 Commissioners, while refusing to treat with a band of  39 Quebec Indians, undertook "to secure, if possible" a  40 reserve for them in that province.  41 The Commissioners observed that Quebec Indian  42 reserves had been provided in a variety of ways.  43 And then paragraph 32, and I'm back to Treaty 8.  44 The Dominion decided to include the northeastern  45 corner of British Columbia in the area covered by  46 Treaty 8 for policy reasons and on its own initiative.  47 And I refer to P.C. 2749 and the part of it which 28341  few minutes ago  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  Submission by Mr. Goldie        1 I read to your lordship  Now, the  same treatment as is given to the Indians whose  habitat is in that district, which is referred to in  the Order in Council, is, in my submission, that which  was considered appropriate for those whose habits were  more nomadic than fixed.  The reasons for making the treaty in the first  place are also stated in P.C. 2749.  They are policy  reasons of the Dominion which have nothing to do with  British Columbia.  Similar policy reasons were behind  Treaty No. 9.  British Columbia was bound by Term 13 to provide  reserves for Indians in the area encompassed within  the limits of Treaty 8 in any event.  The 1875-76 Dominion-Provincial agreement  respecting the implementation of Term 13 did not  contain an acreage-per-capita formula.  That agreement  provided:  "That in determining the extent of the reserves  to be granted, no basis of acreage be fixed,  but that each nation of Indians be dealt with  separately."  And the fourth paragraph, which is set out at the top  of the next page.  There was, however, an acreage-per-capita formula  in Treaty 8:  for bands, one square mile per family of  five, which works out to be 128 acres per person, at  least that's the assumption; and (b) for families or  individuals who chose not to live on band reserves,  160 acres per person.  British Columbia was not bound to provide reserves  according to this formula.  It was bound only by Term  13 and the Indian Reserve Commission agreement.  And  this was acknowledged in P.C. 2749, which makes  reference "may properly be set aside under the  agreement of 1876..."  British Columbia was not a party to Treaty 8.  It  was not consulted about, and did not agree to, the  acreage formula in the treaty.  Pursuant to P.C. 2749 British Columbia was asked  by the Dominion to acquiesce.  There is no evidence  that it responded.  Now, my lord, I come to the Royal Commission on  Indian Affairs for British Columbia, which noted in  its Interim Report No. 91 of 1 February 1916 that the 28342  Submission by Mr. Goldie 1            Dominion had set aside  reserves for bands within the  2 Peace River Block.  3 THE COURT:  Is that McKenna-McBride?  4 MR. GOLDIE:  Yes, it is, my lord.  5 THE COURT:  Yes.  6 MR. GOLDIE:  And that Interim Report No. 91 is under tab 38, and  7 after stating that:  8  9 "...the provision of lands for Indians resident  10 in that portion of British Columbia covered by  11 Treaty 8 for whom Reserves have not already  12 been constituted...comes within the scope of  13 this Commission's duties, inquiry was early  14 instituted...It was found that the country  15 wherein these Indians are found is so difficult  16 of access, and information as to the  17 location... so indefinite that visitation of the  18 territory by the Commission would not, under  19 existing circumstances, have resulted in the  20 obtaining of detailed and specific  21 information."  22  23 And then they go on in the next page to talk about the  24 provision -- a recommendation, a resolution consisting  25 of a recommendation to the Province of British  26 Columbia.  27 The Commission declined to allot reserves for the  28 remaining bands, that is to say other than the Fort  29 Nelson bands, because of insufficient information.  It  30 recommended that British Columbia should provide the  31 outstanding reserves in accordance with the terms of  32 Treaty 8 upon application by the Dominion supported by  33 census figures.  Now, that was the recommendation of  34 the Commission as a -- in its interim order.  35 By Order in Council 911 of 1923 British Columbia  36 approved the Royal Commission's Report of 30 June,  37 1916 (which included Interim Report No. 91) as  38 fulfilling the McKenna-McBride agreement and Term 13  39 except for the provision of Treaty 8 reserves, which  4 0 would be done some time later.  41 British Columbia transferred reserves for the  42 outstanding bands in accordance with the Treaty 8  43 formula to Canada in 1961.  Now, in my submission, it  44 did so having regard to the recommendation of the  45 Royal Commission, which it accepted and which had  46 nothing to do with title.  47 These transfers were accepted by the Governor 28343  Submission by Mr. Goldie        1 General in Council as  being in accordance with the  2 treaty on 20 October 1966, and that Order in Council  3 is under tab 40.  4 And paragraph 41 I say Provincial Order in Council  5 1036 of 1938 (the conveyance to Canada of reserves as  6 recommended by the Royal Commission) is silent with  7 respect to Treaty 8 reserves because reserves inside  8 the Peace River Block were retained by the Crown in  9 right of Canada when it re-transferred the Railway  10 Belt and Peace River Block to British Columbia in  11 1930, and no reserves for bands in the area outside  12 the Block had been allotted by 1938.  So it's only the  13 1961 transfer which has taken place in lands outside  14 the old Peace River Block.  And as to that, in my  15 submission, the size was determined by the acceptance  16 of British Columbia of the Interim Report.  And as  17 your lordship knows, there's no reference to title in  18 that respect.  19 Now, my lord, I go on to section 7, which is  20 headed "Dominion Lands Act amendments:  1906-1908."  21 Now, I have covered these amendments, my lord, in  22 the -- but here we -- I simply bring them all  23 together, and they allow your lordship or this section  24 allows your lordship to see how the stipulation that  25 no settlement would take place in territories in which  26 the Indian title had not been extinguished was in the  27 Dominion Lands Act, it was applied briefly to British  28 Columbia, it was repealed in respect to British  29 Columbia, and finally in 1906 in the proposed  30 amendment to the Dominion Lands Act it was proposed to  31 remove the requirement of extinction -- or  32 extinguishment because of its relationship to the  33 agreement with the Hudson's Bay Company or the  34 surrender -- or agreement preceding the surrender of  35 the Hudson's Bay Company's territories, and that that  36 undertaking had been fully complied with.  So I'm not  37 going to deal with this in any detail.  38 I have a replacement page for page 246 and 247,  39 which I -- there were a series of typographical  40 mistakes in those pages, and this is the best way to  41 tidy them up.  42 And at page 249 I have set out the draughtsman's  43 note of why the repeal was being undertaken, and your  44 lordship has heard me read that before.  And that note  45 appeared on two occasions:  one, the draft amendment  46 of 1906; and secondly, the amendment as finally made  47 in 1908. 28344  Submission by Mr. Goldie        1 And I note in  paragraph 12 on page 251 that the  2 amended --  3 THE COURT:  I'm sorry, are you on page 251?  4 MR. GOLDIE:  Yes, my lord.  5 THE COURT:  Oh, yes.  All right.  6 MR. GOLDIE:  I say the -- this just completes the review, and I  7 say in the event, the amended and consolidated  8 Dominion Lands Act of 1908 did not contain a section  9 respecting the extinguishment of Indian title.  So the  10 bill was passed through parliament in the bill form,  11 and the Dominion continued to have sole authority and  12 control over lands in the Railway Belt until 25 March  13 1930.  14 THE COURT:  I've never been exactly clear what happened.  Did  15 Canada grant portions of the Railway Belt to the  16 company building the railway?  17 MR. GOLDIE:  Yes, it did, for the purposes of right of way.  18 THE COURT:  How about for other purposes?  19 MR. GOLDIE:  And for other purposes.  And it provided grants to  20 settlers, and it -- there were certainly in the --  21 yes, in the Railway Belt there were reserves created  22 by the Dominion in which it retained title, and, of  23 course, when the Railway Belt was handed back to  24 British Columbia, those reserves were excepted from  25 that.  2 6 THE COURT:  And then when the Railway Belt was reconveyed to the  27 province --  28 MR. GOLDIE:  Yes.  29 THE COURT:  — that was the residue of lands in the belt that  30 hadn't been otherwise used for reserves or given to  31 the company.  32 MR. GOLDIE:  Yes.  33 THE COURT:  Or I suppose otherwise sold to settlers.  34 MR. GOLDIE:  It was what was there minus the alienations.  35 THE COURT:  Yes.  At some point I've seen, not in the course of  36 this trial, maps where the railroad got a square mile  37 on alternate sides of the right of way.  Did that  38 extend through British Columbia or was that only in  39 the prairies?  40 MR. GOLDIE:  Well, it was certainly in the prairies.  I'm not  41 sure whether it was extended into British Columbia.  I  42 believe it was, but I couldn't be certain of that.  43 THE COURT:  Is that how they got the waterfront in Vancouver or  44 did that come later because of the extension of the  45 railroad?  46 MR. GOLDIE:  I think that came under the heading of that the  47 Dominion would grant lands necessary for the railway 28345  Submission by Mr. Goldie        1 and its immediate  purposes. There were two categories  2 of land grants contemplated.  One was for the railway  3 as such.  4 THE COURT:  Yes.  5 MR. GOLDIE:  And the other was for -- to assist the railway  6 company in financing.  7 THE COURT:  That was land that they acquired for, as you say,  8 for financing, such as Shaughnessy, which they sold to  9 their executives --  10 MR. GOLDIE:  That's —  11 THE COURT:  — and others?  12 MR. GOLDIE:  That's the origin, my understanding, of town sites.  13 There were town sites that were conveyed that the  14 railway company could use for its own purpose.  15 THE COURT:  But none of that was involved in the reconveyance to  16 the province in 1930?  17 MR. GOLDIE:  No.  If anything had been -- if anything had been  18 set aside for the railway company, my understanding is  19 it was excepted from the reconveyance.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  But I have to say that the history of that contains  22 some fairly complex provisions, and I don't purport to  23 know --  24 THE COURT:  No.  All right.  25 MR. GOLDIE:  -- all or even a majority of them.  2 6 THE COURT:  I'm not sure we need to know that.  27 MR. GOLDIE:  My lord, that brings me to section VIII, which is  28 entitled "P.C. 1081 and the McKenna-McBride  29 Agreement."  Now, P.C. 1081 is a federal Order in  30 Council which was passed in 1911, and it was the  31 culmination of representations made to the Dominion  32 government by the native peoples of British Columbia  33 and their advisers.  When I say culmination, I mean  34 that it was triggered by a petition presented to the  35 Crown by the Cowichan Indians in 1909.  36 Now, that's not to say that nothing was happening  37 with respect to aboriginal title before 1909.  Your  38 lordship has heard evidence of protests in the land  39 claims area at Kispiox and arising out of survey  40 parties, but in my submission the triggering event was  41 the 1909 Cowichan petition.  42 Now, I dealt with a good deal of this in Part VIII  43 of the written summary, events in British Columbia  44 after union with Canada, but here I endeavour to focus  45 on the events which led up to the McKenna-McBride  46 agreement and eventually to the Order in Council which  47 I say discharges British Columbia from further 28346  Submission by Mr. Goldie        1 responsibility in  respect of Indian land claims.  2 Now, starting at my summary at page 252 I say --  3 THE COURT:  I think, Mr. Goldie, we're going to change reporters  4 again.  I think we'll take a short adjournment.  What  5 are your plans for the rest of the day?  6 MR. GOLDIE:  I'd like to go to five o'clock, my lord, and then I  7 propose to avail myself of my friend Mr. Wolf's  8 agreement to give me an hour of Mr. Macaulay's time  9 tomorrow morning, and if we could start at 9:00.  10 THE COURT:  I can't start at 9:00.  I'm sorry, I have something  11 I've got to deal with.  12 MR. GOLDIE:  I see.  13 THE COURT:  I can't start until 9:30.  14 MR. GOLDIE:  If that's the case, I would like to get an hour  15 this evening or unless I take an extra hour tomorrow  16 morning.  17 THE COURT:  I'll adjourn, and you speak to Mr. Wolf about that.  18 THE REGISTRAR:  Order in court.  Court stands adjourned.  19  2 0 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  21  22 I hereby certify the foregoing to  23 be a true and accurate transcript  24 of the proceedings transcribed to  25 the best of my skill and ability.  26  27  28  29  30  31 Leanna Smith  32 Official Reporter  33 UNITED REPORTING SERVICE LTD.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28347  Submissions by Mr. Goldie        1 (PROCEEDINGS RESUMED  PURSUANT TO AN ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, Mr. Macaulay would be prepared to give me  6 this extra hour but he would like to ascertain whether  7 your lordship might be free to sit to 5:00 p.m. on  8 either Wednesday or Thursday or, if necessary, both.  9 THE COURT:  Yes, that's satisfactory.  Both is available.  10 MR. GOLDIE:  Thank you.  11 THE COURT:  That means we won't have to sit tonight?  12 MR. GOLDIE:  That's correct.  13 THE COURT:  Yes, all right.  Does Mr. Macaulay have any plans  14 about Saturdays, Mr. Wolf, do you know?  15 MR. WOLF:  Not this Saturday.  We don't intend to sit on this  16 Saturday.  17 THE COURT:  I am agreeable with that.  18 MR. GOLDIE:  My lord, I am at page 252 of my summary.  19 THE COURT:  Yes.  20 MR. GOLDIE:  I say in paragraph 2 under paragraph 1:  From 1909  21 until 1927,there was virtually no cessation in the  22 consideration of the Lands Question by Indians and  23 their representatives, by Dominion officials,  24 including especially the Ministers of Justice and  25 Interior, by Members of Parliament and,  26 intermittently, by Provincial and Imperial officials.  27 Only a representative few of the dozens of related  28 documents have been put into evidence in this case.  29 I interject here, my lord, that I am virtually  30 ignoring the Province's claim to a reversionary  31 interest in the reserves which arose out of Mr.  32 Duncan's suggestion way back in 1875, although it was  33 a substantial reason why the reserve allotment process  34 was almost brought to a standstill in the period in  35 the early 1900s.  I am concentrating on the title  36 question.  And in the next paragraph --  37 THE COURT:  I am not sure I understand what you are saying in  38 that paragraph.  From 1909 to 1927, there was  39 virtually no cessation in the consideration of the  40 question by Indians.  41 MR. GOLDIE:  And their representatives, by Dominion officials,  42 and so on.  There were petitions and I am going to be  43 starting with the petition in 1909.  4 4 THE COURT:  Yes.  45 MR. GOLDIE:  There were petitions, there were trips to Ottawa,  46 meetings with delegations, there were at least two  47 meetings with the Premier of British Columbia. 28348  Submissions by Mr. Goldie        1  THE COURT:  What you mean by  cessation there is they never  2 stopped?  3 MR. GOLDIE:  They never stopped.  4 THE COURT:  Yes, all right.  I wasn't sure if you were using it  5 in that sense.  6 MR. GOLDIE:  Yes, it was a -- it was a hive of activity.  7 THE COURT:  Yes, all right.  8 MR. GOLDIE:  Now, paragraph 2, I attempt to provide a very quick  9 summary.  10 In 1909, the Cowichan Indians of Vancouver Island  11 lodged petitions respecting Indian title in British  12 Columbia with the Colonial Office and with the King.  13 In 1911, because of British Columbia's refusal to  14 consent to a joint reference, I ask your lordship to  15 note that word "joint" reference of the question to  16 the Supreme Court of Canada --  17 THE COURT:  I am sorry, "joint" isn't here, is it?  18 MR. GOLDIE:  No, I am inserting it.  19 THE COURT:  Yes, thank you.  20 MR. GOLDIE:  And I am inserting it because it was always within  21 the power of the Dominion to refer a question to the  22 Supreme Court of Canada unilaterally, but it was --  23 the attempt that was made was to have a joint  24 submission.  And I add these words "or to become  25 involved in the title question directly", and I add  26 those words because of McBride's refusal to do so.  27 The Dominion determined, and I insert these words "in  28 P.C. 1081 of the 17th of May, 1911" to institute an  29 action against a provincial grantee or licensee in the  30 Exchequer Court.  To this end the Indian Act was  31 amended, but the amendment was never utilized despite  32 reminders from the Department of Justice that it was  33 available should the Superintendent General of Indian  34 Affairs wish to employ it.  35 In 1912, the Dominion and Provincial governments  36 entered into an agreement which provided machinery and  37 a framework for completing the implementation of Term  38 13, that's the McKenna-McBride Agreement.  39 In 1913, the Nishga tribe, claiming "tribal title"  40 in certain lands in British Columbia, lodged a  41 petition with the Privy Council, the Imperial Privy  42 Council.  43 In the same year, the Royal Commission on Indian  44 Affairs in British Columbia commenced deliberations  45 respecting Indian reserves.  It was not empowered to  46 consider Indian title which, the Dominion agreed, was  47 a separate matter. 28349  Submissions by Mr. Goldie 1                In 1914, by Order  in Council P.C. 751, the  2 Dominion government acknowledged explicitly what had  3 been implicit from the beginning:  that British  4 Columbia's entire obligation towards Indians was  5 encompassed in Term 13 of the Terms of Union, and  6 that, if Indian title existed in British Columbia, the  7 Dominion alone was responsible for and had the power  8 to extinguish it.  Thereafter, by word and deed,  9 Canada, in my submission, adhered to this position.  10 In 1915, after an intensive effort to persuade it  11 otherwise, the Dominion reaffirmed the policy made  12 explicit in P.C. 751.  13 In 1916, the Royal Commission on Indians Affairs  14 in British Columbia issued its Report.  15 In 1919, the Province enacted legislation enabling  16 it to adopt the Commission's Report.  17 And, in 1920, the Dominion enacted reciprocal  18 legislation.  19 In 1921 and 1922, the Royal Commission's findings  20 were reviewed by representatives of the Province, the  21 Dominion, and the Indians.  22 In 1923, British Columbia adopted the Royal  23 Commission's Report (as reviewed in 1921-22), and the  24 Dominion attempted to find a basis upon which it could  25 negotiate a treaty with Indians in British Columbia.  26 In 1924, the Dominion adopted the Royal  27 Commission's Report (as reviewed), acknowledging that  28 once the reserves specified therein were conveyed to  29 Canada, British Columbia would be released from any  30 further obligation respecting Indian lands.  That's  31 P.C. 1265.  32 In 1925, a special federal cabinet committee  33 considered how to resolve the question of Indian title  34 in British Columbia.  35 In 1926, a petition was lodged with the Parliament  36 of Canada on behalf of Indians in British Columbia who  37 wished to take their case directly to the Judicial  38 Committee of the Privy Council.  They were not the  39 first to urge that.  It was a continuing refrain.  40 In 1927, a Special Joint Committee of the Senate  41 and House of Commons considered the 1926 Petition.  It  42 found that no claim to aboriginal title had been  43 established by the Petitioners, and recommended that  44 in lieu of annuity payments made to treaty Indians, an  45 additional grant of monies be voted for expenditure on  46 Indians in British Columbia.  Money was thereafter  47 appropriated and spent for this purpose. 28350  Submissions by Mr. Goldie        1 Throughout all  these years, Indians -- I say that  2 Indians in British Columbia and their representatives  3 mounted an intense and unceasing effort to alter the  4 course adopted by the Government of Canada in 1870,  5 and reaffirmed from time to time thereafter, I say:  6 in 1875, 1886, 1887, 1895, and in 1914, in 1915, in  7 1920, and in 1924.  8 The question received the considered attention of  9 politicians and senior civil servants; the issues were  10 gone into with painstaking thoroughness; voluminous  11 files containing exhaustive reports on the subject  12 were created in both the Departments of Justice and  13 Indians Affairs.  14 In the result, it was determined, in my  15 submission, that British Columbia was obliged to  16 provide land reserves for Indians who lived inside its  17 boundaries, and that if anything further were  18 required, the Dominion alone had the responsibility  19 and the power.  20 This result is exactly what was provided for in  21 Term 13 of the Terms of Union and by head 24 of  22 section 91 of the Constitution Act, 1867.  Nothing  23 whatever had changed in the years from 1870 to 1924,  24 despite the fact that several cases relating to Indian  25 lands and the distribution of powers in Canada had  26 been judicially decided in the intervening years.  I  27 interject there, my lord, that those decisions were  28 important as determining the precise relationship  29 of -- in the case of St. Catherine's Milling, Indian  30 Interest and Royal Proclamation lands, in other cases,  31 the responsibility for -- for the financial  32 responsibility in relation to surrenders and these  33 were important but, nevertheless, they didn't change  34 the basic relationship created by Term 13 and by head  35 24 of section 91.  I say the answer was as clear in  36 1924 as it had been in the summer of 1870 when the  37 Terms of Union were negotiated:  British Columbia  38 would provide Indian reserves, and the Dominion would  39 exercise its constitutional responsibility and fulfil  40 its obligations in all other respects.  41 Now, I begin with the details of that.  In 1906,  42 three Indian chiefs from British Columbia sought an  43 audience with King Edward VII in London.  Now, I say  44 paragraphs 5 to 15 take us up to the 1909 Cowichan  45 Petition, and your lordship is aware of the events  46 which took place in the claims area.  So I am going  47 to -- I am going to go over that rather quickly.  I 28351  Submissions by Mr. Goldie        1 note only, my lord,  that one of the exhibits has a  2 title which requires correction.  Under tab 5, there  3 is an Order in Council -- sorry -- yes, tab 5, there  4 is an Order in Council -- there is communications  5 between the Governor-General and the Secretary of  6 State for the colonies and, at the top of page 4,  7 that's lower right-hand corner 4, there is a heading  8 from Lord Elgin to Lord Grey.  9 THE COURT:  Yes.  10 MR. GOLDIE:  It should be from Lord Grey to Lord Elgin.  Your  11 lordship will see at the bottom of the page that Grey  12 is the sender.  And paragraph 6, I note that the  13 Governor in Council adopted a report from the  14 Superintendent General of Indian Affairs which, in  15 response to two petitions to the King which claimed  16 that Indians in British Columbia had been deprived of  17 lands long reserved to them, stated:  18  19 "...that so far as the Department of Indian  20 Affairs is aware no lands have been taken from  21 the Indians ... that reservations of lands for  22 Indians in British Columbia are made by a duly  23 appointed Indian Reserve Commission... These  24 reservations have been concurred in by the  25 Chief Commissioner of Lands and Works for  26 British Columbia and have given general  27 satisfaction to the Indians..."  28  29 That's 1907.  30 The Dominion received more petitions in 1908.  31 One, complaining of encroachments on reserves and  32 restrictions on hunting and fishing in southern  33 British Columbia, was handed directly to Sir Wilfrid  34 Laurier on June 11, 1908.  35 Another, claiming ownership of lands outside  36 reserves near Metlakatla and Fort Simpson, was  37 addressed to the Governor General, the Dominion  38 Government and the Department of Indians Affairs by  39 representatives of "various tribes of the northern  40 part of British Columbia".  That is under tab 8, my  41 lord, and that document is signed by Mr. Henry Pierce  42 and Joseph Bradley and, on the first page, just below  43 the side bar which is opposite the words "How we the  44 Simshean people or Fort Simpson people", if your  45 lordship would go down four lines to the sentence  46 beginning "For many years..."  4 7  THE COURT:  Yes. 28352  Submissions by Mr. Goldie  1  MR. GOLDIE:  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "...this trouble has been a bone of contention  between us and the provincial government. In  188. . . "  it looks like 8 but I think it would be earlier than  that, probably 2:  "...the discussion of the land question  commenced at Metlakatla."  THE COURT:  What is that next word I see?  MR. RUSH:  Is that B.C.?  MR. GOLDIE:  Metlakatla, B.C., my lord.  THE COURT:  All right, thank you.  The discontent manifested in part of the Claim  Area in 1909 (which was dealt with in the evidence of  Dr. Galois and Mr. Williams) was brought to the  Governor General's attention.  And the Department of Indian Affairs, which had  appointed two officials to investigate and report,  dismissed the claim to aboriginal title and attributed  blame for the unrest to:  "...leaders like Joe Capilano and others who  appear to have been endeavouring to create  within the minds of the Indians the impression  that a Treaty should be made with the Indians  of British Columbia and the title to their  lands extinguished in the North West  Territories."  The Governor General was told that the 1875 - 1876  Joint Indian Reserve Commission agreement was made  "...for the purpose of settling the Indian land  question..." in British Columbia.  He was also told that the Indians who had tried to  prevent white settlers from staking provincial Crown  lands:  "...have been informed that the Dominion  Government cannot prevent persons from staking  provincial lands, but will prevent land from  being staked on Indian reserves."  This reference is to the exchange of telegrams 28353  Submissions by Mr. Goldie        1 between Stephen Morgan  and the Prime Minister, Sir  2 Wilfrid Laurier, some two weeks before.  3 Morgan had sent a telegram on behalf of the  4 natives of the Skeena River, and these matters were  5 referred to by Mr. Williams.  6 And, in paragraph 14, Ottawa issued more pointed  7 instructions in this regard two weeks later.  Far from  8 supporting the Indians' claim to aboriginal title, the  9 Department advised that:  10  11 "...it would appear to be necessary to have  12 measures taken to prevent an outbreak amongst  13 the Indians, more particularly as regards those  14 in and around Hazelton."  15  16 In the event, it became necessary to use force to  17 prevent interference with surveyors and regain control  18 of the Kispiox road, as Mr. Loring reported in 1909.  19 Now, the Cowichan Petition of 1909.  Indians in  20 the Claim Area were not alone in their  21 dissatisfaction.  That has been apparent in what I  22 have already read, my lord.  The Cowichan Indians on  23 Vancouver Island sent a petition to the Secretary of  24 State for the Colonies and to King Edward VII in the  25 spring of 1909.  Their petitions brought to a head the  2 6 question of which government had the power and  27 responsibility to extinguish aboriginal title, if it  28 existed, in British Columbia.  29 Copies of the petition and of several other  30 related documents were and annexed to the Dominion  31 Order in Council P.C. 1081, of 17 May 1911, in which  32 the federal government, after two years of considering  33 the matter -- that two-year interval, my lord, relates  34 to the Cowichan Petition -- after two years of  35 considering the matter and after British Columbia  36 refused to consent to a joint reference of the  37 aboriginal title issued, stated its decision:  38  39 "...to institute proceedings in the Exchequer  40 Court of Canada on behalf of the Indians  41 against a provincial grantee, or licensee, in  42 the hope of obtaining a decision upon the  43 questions involved as soon as a case arises in  44 which the main points and difference can be  45 properly or conveniently tried."  46  47 My lord, under tab 17, is his P.C. 1081, and I am 28354  Submissions by Mr. Goldie 1            going to go into the  background of it or, I should  2 say, the documentary background of it in a little  3 greater detail in a minute.  But it commences with  4 these words:  5  6 "The Committee of the Privy Council have had  7 before them a report, dated 11th May, 1911,  8 from the Minister of Justice, stating, with  9 reference to Lord Crewe's despatch of the 31st  10 March 1909. . ."  11  12 which transmitted the Cowichan Petition to Canada:  13  14 "...and the subsequent correspondence with  15 regard to the claims of the British Columbia  16 Indians, that no settlement of these claims has  17 yet been reached, and that Your Excellency's  18 Government and the Government of British  19 Columbia in the negotiations which have  20 subsequently taken place have failed to  21 conclude any arrangement for the determination  22 of the questions involved."  23  24 That refers to the attempt to settle questions to be  25 jointly referred to the Supreme Court of Canada.  26  27 "The Minister further states that it is now  28 proposed, therefore, on the part of Your  29 Excellency's Government, to institute  30 proceedings..."  31  32 And then follows the part I have already read, and  33 then the last but one paragraph, and the next page:  34  35 "The Committee, on the recommendation of the  36 Minister of Justice, advise that Your  37 Excellency may be pleased to transmit a copy  38 hereof, together with the several documents  39 referred to herein, to the Right Honourable the  40 Principal Secretary of States for the  41 Colonies."  42  4 3 (CHANGE OF REPORTERS)  44  45  46  47 28355  Proceedings  the foreg<  oing  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  I hereby certify  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Tannis DeFoe,  Official Reporter,  UNITED REPORTING SERVICE LTD. 28356  Submissions by Mr. Goldie        1 (CHANGE OF REPORTERS)  2  3 THE COURT:  What would that signature be below Mr. Cartwright?  4 MR. GOLDIE:  That's Lord Grey, the Governor General, of Grey Cup  5 fame.  6 THE COURT:  I have heard of him.  7 MR. GOLDIE:  My lord, the documents attached to P.C. 1081 reveal  8 what happened in the period between the Cowichan  9 Petition and P.C. 1081.  They are commented on in  10 later paragraphs and they have been rearranged in  11 chronological order below.  And when I say  12 chronological order, they are not in chronological  13 order in their attachment to 1081.  They are all  14 attachments to 1081, but I just rearranged or they  15 have just been rearranged in chronological order.  The  16 pages are referable -- if lordship would look under  17 tab 18, the page numbers are referable to handwritten  18 columns in the lower right-hand corner.  If your  19 lordship would look at the first page there is a four  20 written there.  21 THE COURT:  Yes.  22 MR. GOLDIE:  These are the page numbers that are referred to in  23 the Summary.  For instance, the petition itself runs  24 from four to 12.  Sometimes these page numbers are not  25 easily seen but nevertheless they generally apply.  26 Now, that's the Cowichan Petition and it's dated  27 the 15th of March, 1909 and it's addressed to the  28 Secretary of State for the Colonies.  29 Next document, same date, is the Cowichan Petition  30 to the King and then we have the Despatch, Secretary  31 of State for the Colonies to the Governor General of  32 Canada, and so on.  And your lordship will see that  33 through 1909, 1910, 1911 right on down to the 3rd of  34 May, 1911 there are a series of documents and the last  35 one, the British Columbia Indian Land Situation is the  36 document that is actually referred to in the Order in  37 Council itself.  If your lordship will turn back to  38 tab 17, the last paragraph on page one reads:  39  40 "That meantime the Indians and their friends  41 are pressing the Government to make  42 representations on the subject to the Colonial  43 Office, and recently a memorial has been handed  44 in, signed by the Reverend A.E. O'Meara, on  45 behalf of the Conference of Friends of the  46 Indians of British Columbia, copy of which,  47 together with copies of the documents therein 28357  Submissions by Mr. Goldie        1 referred to, are  herewith submitted;  2 That the statement of facts contained in  3 Mr. O'Meara's memorandum is, so far as it is  4 within the knowledge of the Minister,  5 substantially correct."  6  7 Now, just to summarize the situation that arose with  8 the filing of the Cowichan Petition and the Colonial  9 Office and with the King.  In paragraph 19 I say that  10 relying on the Royal Proclamation of 1763, the  11 Cowichan petitions claimed "Indian title" to lands in  12 the Cowichan Valley on Vancouver Island.  13 In paragraph 20, the Secretary of State for the  14 Colonies sent the Petition to the Governor General and  15 requested a report.  16 October 1909, representatives of the Cowichan and  17 other bands claiming an interest in the lands of  18 British Columbia, asked the Governor General, the  19 Prime Minister, and the Minister of the Interior to  20 facilitate an early decision in the matter.  That was  21 through means of a letter from a solicitor to the  22 Minister of Interior with the Petition enclosed.  23 British Columbia refused to consent to a reference  24 to the Supreme Court of Canada, in which three of ten  25 proposed questions related to the nature of the  26 Indian's interest in provincial Crown lands outside  27 their reserves.  28 In August 1910, the "Conference of Friends of the  29 Indians of British Columbia" pressed the Prime  30 Minister of Canada for a judicial determination of the  31 Indian title question, and suggested that the Indians  32 be represented in the courts by independent counsel.  33 THE COURT:  Mr. Goldie, you have got in paragraph 22 a reference  34 to the Supreme Court of Canada.  Is that right?  Was  35 it the Exchequer Court?  36 MR. GOLDIE:  No.  The amendment to the Indian Act which provided  37 for a reference to the Exchequer Court followed on the  38 failure of British Columbia and Canada to agree on ten  39 questions to the Supreme Court of Canada.  40 THE COURT:  This 1081 was for —  41 MR. GOLDIE:  The Exchequer Court.  42 THE COURT:  This is for the Exchequer Court?  43 MR. GOLDIE:  Yes.  44 THE COURT:  Yes, all right.  45 MR. GOLDIE:  But prior to this —  4 6 THE COURT:  Oh, all right.  47 MR. GOLDIE:  -- there had been an attempt -- your lordship will 28358  Submissions by Mr. Goldie        1 appreciate that along  comes the Cowichan Petition in  2 1909.  3 THE COURT:  Yes.  4 MR. GOLDIE:  The P.C. 1081 isn't until 1911.  5 THE COURT:  Yes.  6 MR. GOLDIE:  Between those times is what we're dealing with.  7 THE COURT:  Yes, all right.  Yes, I have it now.  8 MR. GOLDIE:  Yes.  Now, in August of 1910, the "Conference of  9 Friends of the Indians of British Columbia" pressed  10 the Prime Minister for a judicial determination.  11 In October, the Prime Minister and the Minister of  12 the Interior received a deputation from the Moral and  13 Social Reform Council of Canada and they -- that  14 deputation urged the Dominion "as guardian of the  15 Indians" to press the issue.  16 The Prime Minister told the deputation that the  17 Dominion was prepared to go to court, and that they  18 should make representations to the Government of  19 British Columbia.  20 In December, the Premier of British Columbia and  21 other provincial officials met with a delegation from  22 the Friends of the Indians who urged him to consent to  23 a reference to the Supreme Court of Canada or the  24 Judicial Committee of the Privy Council.  That was  25 1910, December.  26 He responded on the 23rd of December in a letter  27 to the Bishop of Columbia, the Anglican Bishop:  28  2 9 "The Government has determined that there is no  30 issue with regard to Indian title to  31 lands...and that there is therefore no such  32 question to be adjudicated upon by the Courts."  33  34 A transcript of the delegation's meeting with the  35 Premier and a copy of McBride's reply were sent to  36 Wilfred Laurier.  37 After the Bishop asked him to reconsider the  38 government's position, Premier McBride and other  39 members of the Executive of British Columbia met with  40 a delegation of Indians, who presented a Memorial  41 signed by the "Chiefs and representatives of nearly  42 all the British Tribes throughout the Province of  43 British Columbia."  44 McBride told —  45 THE COURT:  Is that the Indian?  46 MR. GOLDIE:  I beg your pardon, my lord?  47 THE COURT:  Should that be Indian Tribes? 28359  Submissions by Mr. Goldie        1  MR. GOLDIE:  Yes.  Well, I am  sorry, I am not sure about that.  2 THE COURT:  British Columbia Tribes?  3 MR. GOLDIE:  29, it sounds as if there is a word missing there.  4 THE COURT:  Yes.  29 says "Conference of Friends of the Indians  5 of British Columbia."  6 MR. GOLDIE:  Yes.  It's on behalf of the Conference of Friends  7 of the Indians of British Columbia and a Memorial --  8 well —  9 THE COURT:  I don't think it matters, Mr. Goldie.  10 MR. GOLDIE:  No.  I'll — yes.  Oddly enough, my lord, it is  11 British Tribes.  12 THE COURT:  Is it?  13 MR. GOLDIE:  It's under tab 29, and it's page 46, using that  14 curious paging reference.  And it's addressed to the  15 Honourable Richard McBride:  16  17 "   We come before you to-day as the Chiefs and  18 representatives of nearly all the British  19 Tribes throughout the Province of British  20 Columbia.  21 We do not come to you as a body of settlers  22 but as the original inhabitants of this land."  23  24 etc.  25 THE COURT:  All right.  26 MR. GOLDIE:  McBride told the delegation that, as the British  27 Columbia Government had reached the conclusion that  28 "... the Indians had no title to the unsurrendered  29 lands...", there was no question to submit to the  30 courts.  And he sent a record of this interview to the  31 Prime Minister of Canada, and requested that a copy be  32 forwarded to the Imperial government.  My lord, we're  33 now into Volume 26.  34 THE COURT:  Is this the last?  35 MR. GOLDIE:  I beg your pardon, my lord?  36 THE COURT:  Is this the last?  37 MR. GOLDIE:  No.  38 THE COURT:  I am a terrible optimist.  39 MR. GOLDIE:  But it's much closer to the last than Volume 21, my  40 lord.  McBride's letter of March 25, 1911 to the Prime  41 Minister:  42  43 "Dear Sir Wilfred;-  44 I beg to enclose for your information a  45 copy of a Memorial from Chiefs and  46 Representatives of Indian Tribes in British  47 Columbia presented to the Provincial Executive 28360  Submissions by Mr. Goldie 1                   on March 3rd  last; also copy of a report of the  2 interview then held of the Government's reply  3 to the Indians.  4 I also enclose you similar copies which I  5 would feel obliged if you would have  6 transmitted to the Colonial Office as I  7 promised the Indians that copies would be sent  8 to your Government and to the Imperial  9 Government."  10  11 And the next is Mr. -- is Sir Richard McBride's letter  12 to Mr. R. P. Kelly of the Methodist Mission of  13 Hartley.  Mr. Kelly became the principal Indian  14 spokesman and was such at the Joint Committee hearings  15 in 1927, but in 1911 he received this letter from Sir  16 Richard McBride:  17  18 "   I am enclosing for your information notes  19 of the meeting of the Provincial Government  20 with the B.C. Indian Delegates at the  21 Provincial Buildings on Friday March 3rd, 1911.  22 The position taken by the Local  23 Administration is I trust made clear to you and  24 your Colleague, that the Government has decided  25 there is no question to submit to the Courts.  26 As promised by me two copies of the notes  27 have been forwarded to Ottawa with the request  28 that one might be submitted to the Imperial  29 authorities."  30  31 Paragraph 32 of my Summary:  Finally, the Prime  32 Minister of Canada and the Ministers of the Interior  33 and Justice met again with delegates from the Friends  34 of the Indians of British Columbia and the Moral and  35 Social Reform Council of Canada who maintained that  36 the province's position was "absolutely indefensible"  37 and "absolutely dangerous.":  38 The Dominion should either ask the Imperial  39 Government - this is their position - should either  40 ask the Imperial Government to allow the question to  41 be heard directly by the Judicial Committee of the  42 Privy Council, or it should submit a reference to the  43 Supreme Court of Canada despite the Province's  44 unwillingness.  And that's under tab 32 which is a  45 transcript report which is here extracted from not in  46 its entirety but it gives the sense of what I have  47 stated in that paragraph. 28361  Submissions by Mr. Goldie        1 The Prime Minister  told the delegation, quote:  2  3 "...  that the fact has been recognized... that  4 the Dominion Government is in the position of  5 guardian of the Indians.  If the rights of the  6 Indians are impaired it is for the Dominion  7 Government to look after them and protect  8 them...z'.  9  10 Unquote.  After adverting to the difficulty of  11 bringing the province into court against its will, the  12 Prime Minister said, quote:  13  14 "... We think it is our duty to have the matter  15 enquired into.  The Government of British  16 Columbia may be right or wrong in their  17 assertion that the Indians have no claim  18 whatever.  Courts of Law are just for that  19 purpose...But we do not know if we can force a  2 0 Government into Court.  If we can find a way I  21 may say we shall surely do so, because  22 everybody will agree it is a matter of good  23 government to have no one resting under a  24 grievance.  The Indians will continue to  25 believe they have a grievance until it has been  26 settled by the Court that they have a claim, or  27 that they have no claim."  28  29 Unquote.  My lord, my friend laid some emphasis on the  30 proposition that British Columbia could not be brought  31 into court against its will.  The section of the  32 Supreme Court Act is the same today -- same then as it  33 was today, and that is that Canada has the power to  34 make a reference to the court unilaterally, but then  35 as it is today, technically the judgment of the court  36 on an opinion is -- on a reference is simply an  37 opinion and does not purport to decide the rights of  38 parties.  And in my submission it was to meet that  39 very point that Canada wanted to have a joint  40 reference and failing agreement on the part of the  41 Province that it resorted to the amendment to the  42 Exchequer Court Act which we will -- to the Indian Act  43 which we will look at in a minute.  Because if that  44 route had been followed a judgment on the merits would  45 have been achieved.  46 Now, my lord, I want to refer very briefly to the  47 statement of facts by Mr. O'Meara which was referred 28362  Submissions by Mr. Goldie        1 to in the -- I just  want to refer to Volume 25 again  2 for a minute.  My lord, in Volume 25 under tab 18  3 there is collected the Order in Council and all of the  4 attached documents.  5 THE COURT:  I'm sorry?  6 MR. GOLDIE:  25, tab 18?  It is tab Roman VIII-18.  7 THE COURT:  Roman VIII?  8 MR. GOLDIE:  Yes.  It's towards the end of the book.  9 THE COURT:  Just a moment.  Yes.  Roman VIII?  10 MR. GOLDIE:  Yes.  11 THE COURT:  Oh, yes.  Yes.  12 MR. GOLDIE:  It's the very thick one, my lord.  13 THE COURT:  Yes.  Yes.  14 MR. GOLDIE:  And if your lordship would turn to the last five  15 pages.  16 THE COURT:  Yes.  17 MR. GOLDIE:  This is Mr. O'Meara's statement of facts which the  18 Minister and the Dominion Order in Council said that  19 so far as he was aware is accurate, and it provides  20 your lordship again with a snapshot of the activity.  21 THE COURT:  Is this the submission of the Supreme Court of  22 Canada or the Exchequer Court?  23 MR. GOLDIE:  No.  This is simply a memorandum placed with the  2 4 government.  25 THE COURT:  Oh.  All right.  Yes.  All right.  26 MR. GOLDIE:  Mr. O'Meara adopts the phrase statement of facts —  2 7 THE COURT:  Yes.  28 MR. GOLDIE:  -- perhaps in anticipation.  First, he recites the  29 fact of the petition in March of 1909.  He talks about  30 placing in the hands of the Department of Justice a  31 "Statement of Facts and Claims."  He says that:  32  33 "   It is understood that, after full  34 consideration of the above mentioned documents,  35 the Department of Justice came to the  36 conclusion that existing conditions render  37 necessary the securing of the judicial decision  38 desired by the Indians and so advised.  39 It is understood that, the advice so given  40 having been approved and adopted, it was and is  41 the desire of the Government of Canada that  42 such decision should be secured by means of a  43 reference to the Supreme Court of Canada and  44 with the consent and concurrence of the  45 Government of British Columbia."  46  47 And then in paragraph five he recites the negotiations 28363  Submissions by Mr. Goldie 1            with the Government,  and that they had almost reached  2 settlement on ten questions, and that the ten  3 questions were submitted to and approved by counsel  4 for the Indian Tribes.  Paragraph six, the government  5 objected to the first three, the Provincial  6 Government, that is.  Paragraph seven, in the month of  7 August 1910 in Victoria the Conference of Friends was  8 formed.  An organization was formed to present a  9 memorial to Sir Wilfred Laurier.  And he goes on to  10 recite all of the things which happened and the  11 documents which were presented and he concludes on  12 page four in paragraph 15 with this statement:  13  14 "On the 26th April last,"  15  16 that is to say 1911,  17  18 "a delegation representing both the Friends of  19 the Indians of British Columbia and the Moral  20 and Social Reform Council of Canada waited upon  21 the Prime Minister of Canada, the  22 Superintendent General of Indian affairs, and  23 the Minister of Justice.  24 A copy of the stenographic report of the  25 interview is in the hands of the Government.  26  2 7 STATEMENT OF REQUEST  28  29 1. That as soon as conveniently possible  30 there be sent to the Imperial Government a full  31 report of the whole matter including the facts  32 above stated.  33 2. That with such report there be sent  34 copies of the documents mentioned in the above  35 statement.  36 3. That all matters contained and views  37 expressed in these documents be submitted for  38 the consideration of his Majesty and the  39 Colonial Office and for such action as may be  4 0 deemed wise.  41 4. That together with the foregoing  42 there be sent a report of the Government of  43 Canada regarding the Petition of the Indians as  44 requested by the Imperial Government in April  45 1909."  46  47 Now, that was dated May 3 and it was May 17 that the 28364  Submissions by Mr. Goldie        1 Order in Council was  passed.  2 So I say in paragraph 34, the result of all of  3 this was that, on May 17, 1911, the Governor in  4 Council approved the proposal of the Minister of  5 Justice to institute proceedings.  6 Two days later, Royal Assent was given to an  7 amendment to the Indian Act which enabled the Dominion  8 to do what the Order in Council promised.  And then  9 there is -- I set out paragraph 37A which would enable  10 a case to be set up based upon adverse possession or  11 trespass.  12 I should note that throughout this, my lord, the  13 individual Indians did not lack capacity to sue in  14 trespass on their own behalf.  This action could have  15 been taken, but the provision is made that it is -- it  16 is to be undertaken by his Majesty on behalf of the  17 Indians or the band of Indians.  Such a provision I  18 say has been in force since 1876.  The section number  19 of the 1876 Act, the last line in that paragraph  20 should be section 67 in instead of 78.  21 Soon after P.C. 1081 was approved and transmitted  22 to the Colonial Office, there were meetings in London  23 between the Secretary of State for the Colonies, the  24 Premier of British Columbia, the Prime Minister and  25 Mr. O'Meara, a representative of the Friends of the  26 Indians.  27 The Colonial Secretary held out "no hope of  28 intervention under existing circumstances on the part  29 of the Imperial Government", and advised O'Meara to  30 approach the provincial and Dominion governments  31 again.  To the Governor General, he expressed hope  32 that British Columbia and the Dominion would "take  33 early steps to arrive at an equitable solution to this  34 troublesome question."  35 Now, my lord, we get here to the same part that I  36 covered in some degree in Part VIII of my written  37 Summary earlier.  And I say after the passage of  38 almost a year, after the meeting in the summer of 1911  39 in London, during which no solution had been found or  40 at least no apparent solution, the Deputy Minister of  41 Justice reminded the Department of Indians Affairs  42 about the 1911 Indian Act amendment permitting the  43 Superintendent General to have "the title of the  44 Indians determined in any case where their possession  45 is interfered with."  46 The Deputy Minister noted that, although the  47 Colonial Office had been informed of the Dominion's 28365  Submissions by Mr. Goldie        1 intention to institute  proceedings on behalf of the  2 Indians against a provincial grantee or licensee,  3 nothing had been done to that end.  And quote:  4  5 "... If there be no probability of negotiations  6 between your department and the local  7 Government tending to a satisfaction  8 arrangement, I do not see any better way of  9 having the matter determined than that  10 suggested by the said Order-in-Council of 17th  11 May, 1911."  12  13 Now, my lord, under the heading The McKenna-McBride  14 Agreement, we come to what was actually done in place  15 of the Exchequer Court action which was provided for  16 in P.C.1081 and the amendment to the Indian Act.  And  17 I say in paragraph 40:  Instead of following the  18 course provided for in the Indian Act and recommended  19 by the Department of Justice, the Governor in Council  2 0 appointed Mr. McKenna:  21  22 "...  to investigate claims put forth by and on  23 behalf of the Indians of British Columbia, as  24 to lands and rights, and all questions at issue  25 between the Dominion and Provincial Governments  26 and the Indians in respect thereto, and to  27 represent the Government of Canada in  28 negotiating with the Government of the British  29 Columbia..."  30  31 Four months later, McKenna, on behalf of the Dominion  32 government, and McBride, on behalf of the Government  33 British Columbia, reached an agreement toward a  34 settlement of the questions at issue.  Before that,  35 however, McKenna made a thorough investigation.  The  36 extent of his research and analysis can be seen in his  37 29 July 1912 letter to McBride.  That, my lord, is  38 under tab 41, and it's a very long letter, but it is  39 less the appendices.  And excerpts from that letter  40 are dealt with in the following paragraphs and those  41 excerpts are found under the tab -- the paragraph  42 numbers in the yellow binder.  43 He first set out the claims made on behalf of the  44 Indians:  45  46 "1.        That various natiosn or tribes have  47 aboriginal title to certain territories within 28366  Submissions by Mr. Goldie 1                   the Province,  which, to perfect the Crown title  2 in the right of the Province, should be  3 extinguished by treaty by providing for  4 compensation for such extinguishment;  5 2. That reserves set aside for Indians  6 should be 'conveyed by the local Government to  7 the Dominion Government in trust for the use  8 and benefit of the Indians', as provided in the  9 Terms of Union;  10 3. That Indians should be freely allowed  11 to pre-empt lands open for pre-emption by  12 others;  13 4. That Indians should be enfranchised."  14  15 He dealt with the claims in turn, beginning with the  16 first, and he said:  17  18 "...  I understand that you will not deviate  19 from the position which you have so clearly and  20 frequently defined, i.e., that the Province's  21 title to its land is unburdened by any Indian  22 title, and that your Government will not be a  23 party, directly or indirectly, to a reference  24 to the Courts of the claim set up."  25  2 6 And he said:  27  28 "As far as the present negotiations go, it is  2 9 dropped."  30  31 Now, my lord, I point out that it was within the power  32 of the Dominion Government to take the Province into  33 court through the trespass route provided for in the  34 amendment to the Indian Act.  35 McKenna shortly disposed of the third and fourth  36 questions and concentrated his attention on the  37 second: the resolution of outstanding matters relating  38 to Term 13 - the allotment and conveyance of Indian  39 reserves.  40 At that time, the allotment of reserves was at an  41 impasse because of disagreements respecting,  42 primarily, the reversionary interest clause in the  43 Joint Indian Reserve Commission agreement of 1875,  44 1876.  With a view to finding a solution, McKenna went  45 into the history and the policy of reserve allotment  46 in British Columbia, as a Colony and as a Province.  47 He canvassed policies followed in other parts of 28367  Submissions by Mr. Goldie        1 Canada.  And then there  is set out the statement that  2 he makes that there was nothing east of the 80th  3 degree of longitude to the Atlantic Ocean in which  4 there were treaties and there is nothing west of the  5 Rockies to the same mind -- to the same effect and  6 that in his view the Crown in British Columbia  7 followed the plan adopted in the eastern part of  8 Canada, that is to say east of the 80th longitude  9 which involves Quebec and the Maritimes.  10 THE COURT:  I am sorry, Mr. Goldie I have ran behind you there.  11 Where is that, please?  12 MR. GOLDIE:  That is — I'm —  13 THE COURT:  You are reading Mr. McKenna's long letter?  14 MR. GOLDIE:  I am at 274.  15 THE COURT:  Oh, I am sorry.  You are reading from your --  16 MR. GOLDIE:  Yes.  All right.  And if I go to — or if you  17 lordship goes to tab 45, your lordship will find the  18 extract of his letter.  19 THE COURT:  Yes.  20 MR. GOLDIE:  And at the bottom is the history that I have been  21 reading from.  22 THE COURT:  Yes.  All right.  23 MR. GOLDIE:  And I say that he was -- he was right, and just as  24 Hewitt Bernard, Lord Dufferin, David Mills and others  25 were wrong.  26 THE COURT:  I think, Mr. Goldie, I am going to have to adjourn.  27 MR. GOLDIE:  Yes, my lord.  28 THE COURT:  All right.  I might be able to be free a little  29 before 9:30 in the morning.  But perhaps the safest  30 course is to fix it for 9:30.  31 MR. GOLDIE:  Well, I was hoping, my lord, to get started a  32 little earlier if it was convenient for your lordship.  33 THE COURT:  Well, you may certainly come at 9:15 and I will do  34 my best.  I have to deal with a matter with the Chief  35 Justice Esson at nine o'clock and I am not sure -- we  36 won't be more than a half an hour.  If you want to fix  37 it for 9:15 I will be here as soon as I can.  38 MR. GOLDIE:  Well, I will be here, my lord.  39 MR. RUSH:  Well, we'll be here too, my lord.  40 THE COURT:  All right.  Well, set it for 9:15 and hope to get  41 started by 9:30.  42 MR. GOLDIE:  Thank you, my lord.  43  44 (PROCEEDINGS ADJOURNED UNTIL WEDNESDAY, JUNE 13, 1990  45 AT 9: 15 A.M. )  46  47 28368  Submissions by Mr. Goldie        1  2  3 I hereby certify the foregoing to  4 be a true and accurate transcript  5 of the proceedings transcribed to  6 the best of my skill and ability.  7  8  9  10  11    12 Laara Yardley,  13 Official Reporter,  14 UNITED REPORTING SERVICE LTD.  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

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