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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-11] British Columbia. Supreme Court Jun 11, 1990

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 28126  Submissions by Mr. Goldie        1  Vancouver, B.C.  2 June 11th, 1990  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 11th day of June, 1990.  Delgamuukw versus Her Majesty  8 the Queen, at bar, my lord.  9 THE COURT:  Mr. Goldie.  10 MR. GOLDIE:  My lord, before I start on Part X may I refer  11 briefly to Volume 4 that was before your lordship on  12 Saturday.  13 THE COURT:  Yes.  14 MR. GOLDIE:  And at that time I did not refer to section or Tab  15 X, and I do so now.  Your lordship will see that it's  16 entitled "Supplement to Submission of the Province in  17 Response to the Plaintiffs' Final Argument Entitled  18 'Law Applicable to Aboriginal Title in British  19 Columbia'".  Volume 7 is of the plaintiffs' final  20 argument, and this reply -- it's not reply really,  21 it's a supplement to our submission, deals with the  22 Introduction and Parts I and IV of that volume.  And  23 Section A of what is now before your lordship relates  24 to the introductory section to Volume 7, pages 1 to 8,  25 which was handed up on May the 8th, 1990.  Section B  26 relates to Part I which is entitled "Recognition of  27 Aboriginal Title:  Pre-1871", pages 8 to 158, handed  28 up May the 8th, 1990.  And Section C relates to Part  29 IV, "Union with Canada", 1871, handed up on May 9th,  30 1990.  And I'm not going to go into this in any  31 detail, my lord, it is simply handed up as a  32 supplement.  And the organization I think is apparent  33 from it.  It makes reference to a specific argument  34 followed by a comment.  And the argument in some cases  35 is always identified by the page number in the  36 plaintiffs' Volume 7, and sometimes reference is made  37 to a transcript.  But apart from that I don't propose  38 making any further observation, my lord, and I now  39 return to -- return to Volume 3 of the plaintiffs',  40 I'm sorry, of the province's written summary of  41 argument.  42 THE COURT:  Are you going to be arguing from something in this  4 3 Volume 4?  44 MR. GOLDIE:  No.  Just in 3.  45 THE COURT:  So I can put 4 away for the moment?  46 MR. GOLDIE:  Yes.  And I will be referring to yellow binder 21  47 initially, but I have handed up -- 28127  Submissions by Mr. Goldie        1 My lord, this  submission deals with the  2 counterclaim.  And your lordship has already been  3 introduced to the counterclaim, if I may put it that  4 way, when I dealt with Part VIII of the province's  5 submission.  However, there is a considerable  6 background which leads up to the discussion of the  7 Dominion order in council.  And the purpose of the  8 parts that I'm now going to deal with is to provide  9 your lordship with that background.  And I will seek  10 to avoid any repetition, although some of it will  11 become obvious it is necessary.  12 Turning to in Volume 3 the introduction to the  13 counterclaim, a couple of pages preceding tab 1 I say,  14 the counterclaim, as pleaded, seeks the following  15 relief:  16 1.  A declaration the plaintiffs have no right, title  17 or interest in and to the claim area, and the  18 resources thereon, thereunder or thereover;  19 2.  Alternatively, a declaration that the plaintiffs'  20 cause of action, if any, in respect of their alleged  21 aboriginal title, right or interest in and to the  22 claim area and the resources thereof, thereunder or  23 thereover is for compensation from Her Majesty the  24 Queen in Right of Canada.  25 Now, my lord, it is not necessary for me to use  26 the word compensation.  As I said to your lordship  27 when I was dealing with Part VIII there is no part in  28 my case to characterize whatever claim the plaintiffs  29 may have against Canada as a result of British  30 Columbia being discharged from further responsibility.  31 Prayer one -- just to note this a bit further, prayer  32 one, of course, flows from the defence.  Prayer two is  33 in the alternative and is assumed that there is some  34 form of aboriginal right surviving union in 1871.  35 And, of course, the claim area means the lands  36 within the claim area as defined in paragraph 8.B of  37 the statement of defence excluding Indian reserves.  38 I say in paragraph 3, as has been stated --  39 THE COURT:  I'm sorry.  Any significance in your reference to 8B  40 as opposed to 9A and B?  41 MR. GOLDIE:  Well, that's to the defence, my lord.  I'm sorry  42 the statement of claim.  And the particular paragraph  43 in the statement of claim makes reference to 9A and  44 9B.  4 5  THE COURT:  Yes.  46  MR. GOLDIE:  It reads as follows.  47 28128  Submissions by Mr. Goldie 1                   "The lands  delineated by the external boundary  2 on Exhibit 6469-A and 6469-B together and other  3 lands claimed by the plaintiff from time to  4 time in this proceeding are hereinafter  5 referred to as the claim area."  6  7 Well, I think it's now accepted that 9A and 9B are  8 exhaustive of the claims.  9 THE COURT:  And you're not referring to anything different when  10 you refer to paragraph 8B, are you?  11 MR. GOLDIE:  No.  That paragraph is the paragraph that makes  12 reference to 9A, maps 9A and 9B.  13 Continuing with my summary.  As has been stated in  14 earlier sections of this summary it is the position of  15 the province that the plaintiffs' claim as pleaded is  16 a claim to ownership and jurisdiction, rather than a  17 claim to aboriginal title, or the non-proprietary  18 claim of use and occupancy, and that as such it fails  19 on the evidence and on the law.  It may be argued that  20 the counterclaim, by seeking declaratory relief in  21 respect of right, title or interest and aboriginal  22 title, right or interest has placed aboriginal title  23 in issue where the statement of claim did not.  The  24 answer to that suggestion is that for the purposes of  25 the counterclaim the issue is not whether the  26 plaintiffs' alleged rights ought properly to be  27 described as ownership and jurisdiction or as  28 aboriginal title, but rather that, whatever their  29 nature, claims to such rights are not, for the reasons  30 submitted below, maintainable against the province.  31 This is because, either, in my submission,  32 (a) the aboriginal interest, howsoever defined, was  33 completely extinguished by reason of, among other  34 things, the matters pleaded in paragraph 41 of the  35 statement of defence, or alternatively, the aboriginal  36 interest which survived Confederation in respect of  37 lands outside reserves consisted only of equitable  38 claims against Canada.  39 Now, I repeat with respect to the word equitable  40 what I said with respect to the word compensation.  41 I'm not seeking to characterize the nature of a claim  42 that the plaintiffs may have against Canada.  43 Continuing with paragraph 4 of my summary.  The  44 counterclaim is directed against the plaintiffs.  45 Accordingly, no constitutional issue with respect to  46 the jurisdiction of this court over the Federal Crown  47 arises because no relief is sought against it, but the 28129  Submissions by Mr. Goldie        1 Federal Crown will be  bound by any findings made by  2 your lordship in this action.  3 Now, I go to a summary of the argument.  I say,  4 the counterclaim, and here I am speaking of prayer  5 number two, is primarily an argument concerning the  6 proper construction of the constitutional instruments  7 pursuant to which, upon Confederation with Canada, the  8 Dominion assumed responsibility for Indian affairs,  9 while British Columbia assumed a concomitant  10 obligation under term 13 in respect of the allocation  11 and transfer of lands for Indian reserves.  It will be  12 submitted that the pertinent instruments, construed in  13 their historical context, wholly negative any  14 suggestion that the lands of British Columbia were,  15 after Confederation, burdened by anything which might  16 be described as an Indian interest.  17 I am excluding, of course, those lands which were  18 set aside for reserves and were subsequently  19 transferred to Her Majesty the Queen in Right of  20 Canada for the use and benefit of the Indian peoples.  21 And I will be submitting, if I may add to that  22 paragraph, I will be submitting that there is -- that  23 this history negatives any claim of jurisdiction which  24 could be sustained against the province, and I will be  25 relying upon the Sparrow case in that respect.  26 Paragraph 6, it will be submitted that any of a  27 number of junctures in the history of the relationship  28 among the Indians of British Columbia, the Government  29 of British Columbia and the Government of Canada since  30 1871, the question of aboriginal title in British  31 Columbia was settled once and for all.  32 And this process culminates, of course, in Order  33 in Council PC 1265.  34 The basis for paragraph 41 of the statement of  35 defence is simple and straight forward.  It rests upon  36 constitutional provisions embodied in the  37 Constitution Act, 1867 and the British Columbia Terms  38 of Union, 1871.  Those provisions include:  39 a.)  Except as they were varied by the British  40 Columbia Terms of Union, 1871, the provisions of the  41 Constitution Act, 1867 apply to British Columbia in  42 the same way and to the like extent as they apply to  43 the other provinces of the Dominion.  And then I quote  44 Term 10 of the Terms of Union which supports the  45 statement I've just made.  46 b.)  Canada has exclusive powers over Indians and  47 lands reserved for them.  Section 91 of the 28130  Submissions by Mr. Goldie        1 Constitution Act, 1867  reads in part, and then I set  2 out the -- the first part of Section 91 and then head  3 24.  4 c.)  From and after July 20, 1871, the date of the  5 union of British Columbia with Canada, only Canada had  6 the authority to enter into land cession agreements  7 with the Indians of British Columbia or to extinguish  8 aboriginal title otherwise, if it chose to do so.  9 d.)  Unalienated lands in British Columbia belong to  10 the Crown in Right of British Columbia, and the Crown  11 owns the underlying title in all lands within the  12 province.  And then I quote Section 109 of the  13 Constitution Act of 1867.  14 Now, my lord, I say that Section 109, which, of  15 course, was in the original 1867 act is, in its  16 application to British Columbia, merely declaratory in  17 the sense that British Columbia already owned its  18 public lands at the time it joined Confederation.  And  19 this, of course, is in contrast with the provinces of  20 Manitoba, Saskatchewan and Alberta which did not own  21 their public lands until 1930.  22 e.)  The only restraint on the alienation by the Crown  23 of lands in British Columbia was contained in Term 11  24 of the Terms of Union, under which British Columbia  25 was bound to convey lands to Canada in aid of the  26 construction of a railway to the Pacific coast, an  27 undertaking of national importance.  And then I quote  28 Term 11 in part.  29  30 "... that until the commencement, within two  31 years ... from the date of the union of the  32 construction of the said railway, the  33 Government of British Columbia shall not sell  34 or alienate any further portion of the public  35 lands of British Columbia, in any other way  36 than under right of pre-emption, requiring  37 actual residence of the pre-emptor on the land  38 claimed by him."  39  40 That put a species, if I may put it this way, of  41 freeze for two years after -- for two years from July  42 1871.  43 Paragraph f --  44 THE COURT:  That wasn't in any way related to any right-of-way,  45 because they didn't know where it was?  46 MR. GOLDIE:  They didn't know where it was going to be, that's  47 correct, my lord.  There were survey parties that were 28131  Submissions by Mr. Goldie        1 exploring routes  through the Yellowhead, survey  2 parties that went to the head of Bute Inlet, survey  3 parties that eventually found the Kicking Horse Pass  4 route, but at the time of 1871 there was no fixed  5 route.  6 THE COURT:  What were they contemplating, in your understanding,  7 that this would reduce the amount of land in private  8 hands that they would have to deal with when they  9 selected their route?  10 MR. GOLDIE:  Yes.  And it had a double aspect.  The concept of  11 lands along the right-of-way was intended to provide  12 the railroad company itself with funds.  13 THE COURT:  Yes.  I'm just thinking what was the thinking behind  14 the Federal Government when it said you can still  15 alienate based by pre-emption based upon actual  16 residence even though that may land right in the  17 middle of our eventual right-of-way.  You say they  18 would expropriate that?  19 MR. GOLDIE:  Yes.  Railway -- when the company, the Canadian  20 Pacific, when it was incorporated had the powers of  21 expropriation.  22 THE COURT:  I guess it wasn't incorporated at this time, was it?  23 MR. GOLDIE:  No.  No.  I have the original act of incorporation  24 which -- well, I shouldn't be quite so hasty in saying  25 it wasn't incorporated.  26 THE COURT:  Yes.  It might have had an earlier emanation of some  27 kind.  28 MR. GOLDIE:  Yes.  I know we are going to come to it, but I have  29 a recollection that in 1868 there was an  30 incorporation.  31 THE COURT:  All right.  32 MR. GOLDIE:  The whole of Term 11 is under tab — in the yellow  33 binder number 21, my lord, under tab 10/Intro-7e.  And  34 it may be useful to read it in full, because it does,  35 I think, answer one of your lordship's questions.  36 THE COURT:  What number did you say again?  37 MR. GOLDIE:  7e.  38 THE COURT:  Yes.  Yes.  39 MR. GOLDIE:  And does your lordship have that?  4 0 THE COURT:  Yes.  Yes.  41 MR. GOLDIE:  42 "The Government of the Dominion undertake to  43 secure the commencement simultaneously within  44 two years from the date of Union, of the  45 construction of a railway from the Pacific  46 towards the Rocky Mountains, and from such  47 point as may be selected, east of the Rocky 28132  Submissions by Mr. Goldie 1                   Mountains,  towards the Pacific, to connect the  2 seaboard of British Columbia with the railway  3 system of Canada; and further, to secure the  4 completion of such railway within ten years  5 from the date of the Union.  6  7 And the Government of British Columbia agree to  8 convey to the Dominion Government, in trust, to  9 be appropriated in such manner as the Dominion  10 Government may deem advisable in furtherance of  11 the construction of the said railway, a similar  12 extent of public lands along the line of  13 railway throughout its entire length in British  14 Columbia, not to exceed, however, 20 miles on  15 each side of said line, as may be appropriated  16 for the same purpose by the Dominion Government  17 from the public lands in the north-west  18 territories and the Province of Manitoba.  19 Provided, that the quantity of land which may  20 be held under pre-emption right or by Crown  21 grant within the limits of the tract of land in  22 British Columbia to be so conveyed to the  23 Dominion from contiguous public lands".  24  25 Now, that was one way of ensuring that the source  2 6            of funds for the railway company was kept whole.  And  27            then the second proviso:  28  29 "That until the commencement, within two years,  30 as aforesaid, from the date of the Union, of  31 the construction of the said railway, the  32 Government of British Columbia shall not sell  33 or alienate any further portions of the public  34 lands of British Columbia"  35  36 Et cetera.  And then the final clause.  37  38  39 "In consideration of the land to be so conveyed  40 in aid of the construction of the said railway,  41 the Dominion Government agree to pay to British  42 Columbia from the date of the Union, the sum of  43 100,000 dollars per annum, in half-yearly  44 payments in advance."  45  46 Now, that was the only restraint on the alienation  47 of public lands when Canada -- when British Columbia 28133  Submissions by Mr. Goldie        1 joined the Union.  2 THE COURT:  How long did that hundred thousand dollar payment  3 continue?  Is it still in force?  4 MR. GOLDIE:  It continued for a long time, but I can't tell your  5 lordship what happened to it, or whether it's still  6 being paid.  7 THE COURT:  All right.  8 MR. GOLDIE:  Diminishing annually with the rate of inflation.  9 Item f on page five of my summary.  British  10 Columbia was obligated to provide lands for Indians.  11 And then there's Term 13.  12  13 "The charge of the Indians and the trusteeship  14 and management of the lands reserved for their  15 use and benefit, shall be assumed by the  16 Dominion Government, and a policy as liveral as  17 that hitherto pursued by the British Columbia  18 Government, shall be continued by the Dominion  19 Government after the Union.  20  21 To carry out such policy, tracts of land of  22 such extent as it has hitherto been the  23 practice of the British Columbia Government to  24 appropriate for that purpose, shall from time  25 to time be conveyed by the Local Government to  26 the Dominion Government in trust for the use  27 and benefit of the Indians, on application of  28 the Dominion Government, and in case of  2 9 disagreement between the two Governments  30 respecting the quantity of such tracts of land  31 to be so granted, the matter shall be referred  32 for the decision of the Secretary of State for  33 the Colonies."  34  35 British Columbia has performed its obligation  36 under Term 13.  And I there refer to Dominion Order in  37 Council PC 1265 and the British Columbia Order in  38 Council of 1036 under which the reserves were  39 transferred to the Dominion.  40 h.)  If on the day of union the lands of British  41 Columbia were burdened by unextinguished Indian title,  42 which was not then and not now admitted by the  43 Province of British Columbia, that burden was a  44 liability assumed by Canada under the Term 1 of the  45 Terms of Union, which reads very simply:  46  47 "Canada shall be liable for the debts and 28134  Submissions by Mr. Goldie        1 liabilities of  British Columbia existing at the  2 time of the union."  3  4 My lord, the documentary history relating to the  5 counterclaim confirms and illustrates the arguments  6 stated above, and demonstrates, in my submission, that  7 that argument has at numerous times in the past, been  8 acknowledged and accepted by Canada as dispositive.  9 This history is essential to the court's  10 understanding what has gone before, and of why, in  11 1990, it should not, in my submission, overturn what  12 has been decided by past governments.  13 A survey of the documents is also important  14 because of allegations which have been made against  15 British Columbia by the plaintiffs and by others.  16 One of the gravest of these is that, when British  17 Columbia joined Canada in 1871 under the eye of Sir  18 John A. Macdonald, it did so under false pretences,  19 that the Colony's representatives knowingly and  20 deliberately deceived and misled Canada with respect  21 to its policies respecting Indians and Indian land.  22 This allegation is not new.  It was first made in  23 1874 during the administration of Alexander Mackenzie,  24 and it has been repeated many times since.  It has, in  25 my submission, taken on the aspect of a revealed truth  26 for some, despite or perhaps because of the absence of  27 any supporting evidence whatsoever.  And then I'll  28 deal with Lord Dufferin's famous speech.  29 But then I go on in paragraph 11.  Perhaps the  30 most important fact demonstrated by the counterclaim  31 exhibits was noted earlier.  The documents in evidence  32 go beyond the short legal disposition of the question  33 of British Columbia's power or responsibility for the  34 extinguishment of aboriginal title, a question which  35 is easily disposed of by reference to Canada's  36 constitutional arrangements, to establish that, in my  37 submission, notwithstanding intermittent impressions  38 to the contrary, the question at large has been  39 resolved in a sense which is final, at least so far as  40 it concerns the Province of British Columbia.  That  41 resolution appears to have been forgotten and needs to  42 be reaffirmed.  43 My lord, before I turn to the section of the  44 counterclaim may I say a word about the exhibits.  45 Your lordship may recall that a number of volumes were  46 filed in red binders which constituted the exhibits in  47 the counterclaim.  They were given the number 1203- 28135  Submissions by Mr. Goldie        1 with a volume number,  and they are arranged basically  2 in a chronological order.  The index to those volumes  3 of documents is so arranged that it is in sections  4 with a Roman numeral and each section is now going to  5 be dealt with by me.  The yellow binders follow the  6 same principle that we have followed from the  7 beginning.  That is to say where there is a reference  8 to a document in the text of the summary the extract  9 of that document is under the appropriate paragraph  10 number.  That means that in many cases there is a  11 repetition of extracts from the same document which  12 will lend an air of bulk to the yellow binders which  13 is not necessarily intimidating.  14 THE COURT:  Oh, I can assure you it's intimidating.  I'm easily  15 intimidated.  16 MR. GOLDIE:  I will, of course, be concluding by urging your  17 lordship to read the original exhibits.  18 THE COURT:  Yes.  19 MR. GOLDIE:  My lord, the popular history —  20 THE COURT:  Before you start.  You said that the red binders are  21 arranged chronologically in Roman sections?  22 MR. GOLDIE:  Yes.  23 THE COURT:  Do they start at Roman ten or do they start at Roman  24 one?  25 MR. GOLDIE:  They start at Roman one.  26 THE COURT:  And so does that equate your Roman one at the start,  27 second line of page 9 here?  28 MR. GOLDIE:  Yes.  Yes.  2 9 THE COURT:  All right.  30 MR. GOLDIE:  Now, that doesn't mean that there is a section in  31 each volume, because the sections take up varying --  32 but, for instance, Exhibit 1203-1, which is the first  33 volume, section 1, is entitled "Awareness of Canada  34 and Colonial Office of Indian Title Prior to the Union  35 of Canada with British Columbia" and tabs 1 to 17  36 constitute the documents in that.  37 THE COURT:  Yes.  38 MR. GOLDIE:  Now, I say with respect to section 1, which is  39 taken up with the Awareness of Canada and the Colonial  40 Office of claims of Indian title prior to union of  41 Canada and British Columbia, I say with respect to  42 that that the conclusion I will be asking your  43 lordship to come to after looking at these documents  44 is that the existence of Indian title was well-known  45 to Canada when it entered into union with British  46 Columbia in 1871.  And I say, the popular history of  47 Indian affairs in British Columbia is rife with 28136  Submissions by Mr. Goldie        1 misunderstandings borne  of a highly selective reading  2 of the documentary record.  This section of the  3 counterclaim argument is directed to three such  4 misunderstandings which may be expressed as follows:  5 (a)  It was the uniform policy and practice of the  6 Imperial government, derived from the Royal  7 Proclamation of 1763, to recognize Indian title in  8 newly acquired territories and to secure the cession  9 of such title in return for adequate compensation.  10 I emphasize that these are misunderstandings, and  11 that I am dealing with it not with the substance of  12 them, but with the knowledge of the people at the time  13 that runs to the contrary.  14 (b)  This policy was universally adopted by the  15 Colonial governments in the colonies which united to  16 form the Dominion in 1867.  17 (c)  The Dominion netotiated the Terms of Union  18 with British Columbia in ignorance of the policies  19 followed by the Colonial government in relation to  20 Indian matter, policies which people say were much  21 less liberal than the wording of Term 13 suggests.  22 And then in paragraph 2 I note two examples of  23 publications which reflect these propositions.  24 And I say, what will be demonstrated in my  25 submission is the following:  First, Imperial policy  26 was not uniform, Canadian policy was not uniform, both  27 Canada and the Colonial Office were aware of the  28 concept of aboriginal title, and the British Columbia  29 Terms of Union were negotiated in that knowledge.  30 My lord, if I could interject at this point.  It  31 will be seen that a major part of this section relates  32 to the acquisition of Rupert's Land by Canada.  Now,  33 this took the form of a surrender by the Hudson's Bay  34 Company to the Imperial Crown, but the agreement which  35 led to that surrender was in reality negotiated by Sir  36 George Cartier and Mr. McDougall of the Canadian  37 government with the Hudson's Bay Company, but through  38 the Colonial Office.  39 THE COURT:  Cartier and?  40 MR. GOLDIE:  And McDougall.  M-C-D-O-U-G-A-L-L.  41 THE COURT:  And when you said it was a surrender was it to the  42 Imperial Crown?  43 MR. GOLDIE:  To the Imperial Crown, yes.  4 4 THE COURT:  Yes.  45 MR. GOLDIE:  And then the Imperial Crown or the Imperial  46 government caused Rupert's Land in the North-West  47 Territories to be incorporated in Canada, or to become 28137  Submissions by Mr. Goldie        1 part of Canada.  Now,  this was an object of Canada  2 from a very early time, and reference will be made to  3 the Joint Address of the Senate and House of Commons  4 to the Queen which alluded to the desirability of  5 Rupert's Land being incorporated in Canada.  The  6 negotiations which led to the surrender and the  7 eventual incorporation took place in 1868 and 1869.  8 Now, another major part that I will come to  9 relates to the fact that two sets of delegates came to  10 Ottawa at almost the same time.  Those from the Red  11 River settlement in March of 1870, and those from  12 British Columbia in May of 1870.  Now, they had, of  13 course, my lord, a very different status.  The people  14 from the Red River settlement came to urge upon the  15 Dominion authorities provisions to be incorporated in  16 the Constitution of the new Province of Manitoba, and  17 against the background of the Riel rebellion.  The  18 other group came from the Crown Colony of British  19 Columbia, who brought a set of terms reflecting the  20 interests of that Colony.  And I will be suggesting to  21 your lordship that we can find in these two events  22 which overlap to some extent, the antecedents of two  23 very different policies with respect to Indians to be  24 followed by the Dominion, one east and the other west  25 of the Rockies.  26 That, my lord, is just by way of an introduction  27 to this section, and then I turn to paragraph 4.  28 Before Confederation the Provinces of Canada, Nova  29 Scotia and New Burnswick in 1867, only the Province of  30 Canada had entered into land cession treaties with  31 Indians, and only in Upper Canada, now the Province of  32 Ontario.  Amongst these agreements were the  33 Robinson-Huron and Robinson-Superior treaties of 1850,  34 and the Manitoulin Island Treaty of 1862.  35 And at the top of page 11 I have a note.  And note  36 also the order in council of the old Province of  37 Canada with supporting documents.  That is the order  38 in council dealing with the lease that Mr. Hewitt  39 Bernard, then solicitor for the Indian Department of  40 the old Province of Canada, reported on in terms of  41 its acceptability under the Royal Proclamation.  I  42 referred to that the other day.  43 I say, in 1857 the Province of Canada sent a  44 representative, Chief Justice Draper, to observe the  45 proceedings of the Select Committee of the House of  4 6 Commons on the Hudson's Bay Company.  In testimony  47 before the committee, Chief Justice Draper referred to 28138  Submissions by Mr. Goldie        1 past treaties made by  the Province of Canada, and the  2 need of dealing justly with the Indians by not  3 depriving them of their property without a reasonable  4 compensation.  And under that tab beneath I refer to  5 the questions and answers that were put to Chief  6 Justice Draper and given by him when he was giving  7 evidence.  8 Six, when asked if the Hudson's Bay Company had  9 extinguished the Indian title to land formerly granted  10 to Lord Selkirk, Edward Ellice, a Member of Parliament  11 and a major shareholder in the company, replied:  12  13 "We are getting into a question about Indian  14 title, which is very difficult altogether.  The  15 English Government never extinguished the  16 Indian title in Canada when they took  17 possession; the Americans, while they have been  18 extending their possessions, have extinguished  19 the Indian title, but in Canada there has never  20 been any treaty with the Indians to extinguish  21 the title; The Crown, retaining certain  22 reserves for the Indians, has always insisted  23 upon the right to occupy the lands, and to  24 grant the lands."  25  26 Some months after the committee's deliberations  27 Mr. Corbett, a clergyman from the Red River  28 settlement, who had appeared twice before the  29 committee to give evidence, wrote to the Secretary of  30 State for the Colonies to suggest, among other things,  31 that land cession treaties should be entered into with  32 the Indians along the route of a Canadian survey then  33 underway in Rupert's Land.  34 Now, the exhibits, my lord, are -- your lordship  35 has already been referred to those exhibits.  And then  36 I have already referred to the minute of Mr. Merivale  37 who said, and I set out some of what is contained in  38 his minute, and I won't repeat that.  39 I say, it is difficult to reconcile such  40 observations by a senior administrator with the  41 contention that Imperial policy was uniformly  42 consistent with the policy said to be embodied in the  43 Royal Proclamation.  44 And then I make reference in paragraph 8 to the  45 letter from Mr. Kennedy to the Colonial Office  46 inquiring in December of 1859 whether the Imperial  47 government intended to recognize the proprietary 28139  Submissions by Mr. Goldie 1            rights of the Indians  in the soil should a Crown  2 Colony be established there.  And it too is minuted by  3 Mr. Merivale, and I have read that to your lordship,  4 and the emphasis is added to the extract from his  5 minute.  6 Now, my lord, I come to the Joint Address in  7 December of 1867 of the Parliament of the Dominion of  8 Canada, that is to say less than six months after  9 Confederation, which requested that steps be taken to  10 unite Rupert's Land and the North-Western Territory to  11 Canada.  12 I'm going to refer to that document, my lord.  13 It's under Tab X/I-9.  And this, of course, is just an  14 extract, but this is the the Joint Address to Her  15 Majesty and the recitals include the desire of  16 extending westward to the shores of the Pacific Ocean,  17 the colonization of the fertile lands of the  18 Saskatchewan, the Assiniboine and the Red River  19 districts, and so on.  And reference is made to the  20 146th section of the British North America Act, and  21 then the terms of the prayer:  22  23 "That we do therefore ..."  24  25 This is one, two, three, four, five lines down --  2 6 five paragraphs down.  27  28 "That we do therefore most humbly pray that  29 your Majesty will be graciously pleased, by and  30 with the advice of your most Honorable Privy  31 Council, to unite Rupert's Land and the  32 North-Western Territory with this Dominion, and  33 to grant to the Parliament of Canada authority  34 to legislate for their future welfare and good  35 government; and we most humbly beg to express  36 to your Majesty that we are willing to assume  37 the duties and obligations of government and  38 legislation as regards those territories."  39  40 And then the second paragraph below that.  41  42 "And furthermore, that, upon the transference  43 of the territories in question to the Canadian  44 government, the claims of the Indian tribes to  45 compensation for lands required for purposes of  46 settlement will be considered and settled in  47 conformity with the equitable principles which 28140  Submissions by Mr. Goldie        1 have uniformly  governed the British Crown in  2 its dealings with the aborigines."  3  4 Now, in paragraph 10 the next event that I make  5 reference to is on July 31st, 1868 the Queen was  6 empowered by the Rupert's Land Act, an act of the  7 Parliament of the United Kingdom, to accept a  8 surrender of Hudson's Bay Company lands and to annex  9 them to Canada.  10 And that's the next document, my lord, and I refer  11 to paragraphs two and three.  The first paragraph  12 defines Rupert's Land as "including the whole of the  13 lands and territories held or claimed to be held by  14 the said Governor and Company."  Now, what that did  15 was include Hudson's Bay lands beyond technically  16 Rupert's Land.  Rupert's Land being defined by the  17 drainage area of the Hudson's Bay Company.  But this  18 meant that all of the Hudson's Bay lands beyond the  19 drainage areas of Hudson's Bay would fall within the  20 definition.  21 Now, then the paragraph 3:  22  23 "It shall be competent for the said Governor  24 and Company to surrender to Her Majesty, and  25 for Her Majesty by any instrument under Her  26 Sign Manual and Signet to accept a surrender of  27 all or any of the lands"  28  29 Et cetera.  And then on paragraph 5:  30  31 "It shall be competent to Her Majesty by any  32 such Order or Orders in Council as aforesaid on  33 Address from the Houses of Parliament of  34 Canada, to declare that Rupert's Land shall,  35 from a Date to be therein mentioned, be  36 admitted into and become part of the Dominion  37 of Canada."  38  39 Now, returning to my summary --  4 0  THE COURT:  No mention of Indians?  41 MR. GOLDIE:  Not in this act.  No, my lord.  The reference to  42 the Indians was in the Joint Address which, of course,  43 preceded this.  4 4  THE COURT:  Yes.  45 MR. GOLDIE:  And I say in paragraph 11, and I get into some  46 detail here just to indicate the nature of the  47 discussion and knowledge, anticipating the annexation 28141  Submissions by Mr. Goldie        1 to Canada of the  Hudson's Bay Company lands and  2 territories to the north and west, the Aboriginies'  3 Protection Society, in August of 1868, addressed a  4 memorial to the Prime Minister of Great Britain, then  5 Disraeli, which noted Canada's recognition of "the  6 expediency of extinguishing the native title" and  7 urged "that in transferring these territories to  8 Canada, such stipulations may be made as will ensure  9 the peaceful extinction of the native title."  10 I make reference to this, my lord, because it was,  11 as far as I can make out, that the -- it was here that  12 the word title was injected into the discussion.  The  13 reference in the Joint Address of 1867 being to the  14 claims of the Indian tribes to compensation for lands  15 required for the purposes of settlement, which is not  16 quite the same thing.  17 The Prime Minister promised to consider the  18 memorial.  That page number should be 80, my lord, not  19 81 in that exhibit.  And I note that during the last  20 stages of the negotiations, and I'm now referring to  21 the negotiations leading up to the surrender, during  22 the last stages of the negotiations in 1869 a copy of  23 the same memorial was presented to Lord Granville,  24 Secretary of State for the Colonies, by a delegation  25 from the Aborigines' Protection Society, which again  2 6 urged upon the Imperial government the importance of  27 extinguishing native title in Rupert's Land.  28 Now we step back a bit.  In October 1868, Sir  29 George Cartier and William McDougall were delegated by  30 Canada to participate in the negotiations with the  31 Imperial government and the Hudson's Bay Company.  32 Cartier, who was Minister of Militia and Defence,  33 later played a leading role in securing the passage of  34 the Manitoba Act in May of 1870.  The Manitoba Act was  35 an act of the Parliament of Canada, and May, of  36 course, of 1870 was the month before the delegates  37 from British Columbia arrived.  And as I note in the  38 next clause, and in negotiating the Terms of Union  39 from delegates of the Colony of British Columbia in  4 0 June of the same year.  41 McDougall was the Canadian Minister of Public  42 Works.  As Commissioner of Crown Lands, and ex officio  43 Superintendent General Indians Affairs, for the  44 Province of Canada, he had negotiated the Manitoulin  45 Island Treaty in 1862.  That is to say, McDougall was  46 an official of the former Province of Canada in that  47 part of the province which became Ontario. 28142  Submissions by Mr. Goldie        1 During the  negotiations, officials in the Colonial  2 Office, and on behalf of the Imperial government,  3 acted as a channel of communication between the  4 Canadian delegates and the Hudson's Bay Company.  My  5 lord, the paragraph 5 should be paragraph 6.  The  6 document from which extracts are taken is a rather  7 voluminous collection of papers relating to Rupert's  8 Land, and the whole of the document is an exhibit --  9 is part of the exhibit that is identified there.  10 The negotiations with the Hudson's Bay Company  11 were, as I've said, three-cornered.  The Colonial  12 Office was the conduit and in favour, of course, of  13 Rupert's Land being transferred to Canada, but Canada  14 was going to be responsible for the compensation  15 payable to the Hudson's Bay Company so it had a pretty  16 direct interest.  The Hudson's Bay Company wanted a  17 million pounds to begin with, and they finally settled  18 for 300,000 pounds.  19 Preliminary correspondence between the Colonial  20 Office and the Hudson's Bay Company respecting terms  21 of the proposed surrender contemplated only that lands  22 would be set aside and reserved for Indians.  23 And that is apparent, my lord, in the document  24 under -- the documents, I should say, under tab 13.  25 On the first page, which is a letter from Sir Frederic  26 Rogers, who was the senior official in the Colonial  27 Office, to Northcote, who was the Governor of the  2 8 Hudson's Bay Company.  Rogers forwards a copy of a  29 letter which Lord Granville had received from Sir G.  30 Cartier and Mr. McDougall who were in London at the  31 time.  And then he goes on to say about midway down  32 the page:  33  34 "It is, of course, obvious that this  35 negotiation for the purchase of the Hudson's  36 Bay Company's Territory is really between the  37 seller and the buyer, the Company and the  38 Colony; and Lord Granville is of the opinion  39 that if the negotiation is revived on this or  40 any other basis, Her Majesty's Government can  41 at present do no good by assuming to frame or  42 suggest terms of accommodation, but can merely  43 offer to act as a channel of communication  44 between these two real parties to the  45 transaction, using its best endeavors to remove  46 any difficulties."  47 28143  Submissions by Mr. Goldie        1 And then I go on to  the last document beginning at  2 page, in the upper right-hand corner, 119, number 11,  3 copy of a letter from the Right Honorable C.B.  4 Adderley, MP, to the Earl of Kimberley.  And Adderley  5 was as noted, the Parliamentary Undersecretary of  6 State for the Colonies.  And the Earl of Kimberley at  7 that time was associated with the Hudson's Bay  8 Company.  And then there is a series of terms set out  9 which the Hudson's Bay Company had either put forward  10 or were interested in.  And then at the bottom of page  11 121, the paragraph begins with these words:  12  13 "These conditions his Grace cannont accede to;  14 his Grace would, however, recommend Her  15 Majesty's Government to agree to a surrender on  16 the following conditions:"  17  18 THE COURT:  I haven't found that, Mr. Goldie.  19 MR. GOLDIE:  Oh, the page number that I'm referring to, my lord  20 is 121 in the upper right-hand corner.  21 THE COURT:  Yes.  22 MR. GOLDIE:  And the paragraph is the last one on that page  23 beginning with the words "these conditions".  24 THE COURT:  Oh, yes.  Thank you.  25 MR. GOLDIE:  26 "... his Grace would, however, recommend Her  27 Majesty's Government to agree to a surrender in  28 the following conditions:"  29  30 And then I go over the page.  31 THE COURT:  His Grace is who?  32 MR. GOLDIE:  His Grace is the Secretary of State for the  33 Colonies, Lord Granville.  34 THE COURT:  Oh, all right.  Yes.  35 MR. GOLDIE:  This isn't — this isn't the end of the negotiation  36 but the 12th term is significant.  37  38 "Such lands as Her Majesty's Government shall  39 deem necessary to be set aside for the use of  40 the native Indian population shall be reserved  41 altogether from this arrangement, and the  42 Company shall not be entitled to the payment of  43 any share of receipts, or any royalty  44 therefrom, or right of selection in respect  45 thereof, under previous articles, unless for  46 such part, if any, of these lands as may be  47 appropriated, with the consent of the Crown, to 28144  Submissions by Mr. Goldie 1                   any other  purpose than that of the benefit of  2 the Indian natives."  3  4 And then I say the negotiations went on.  And I  5 say in paragraph 13 what I have referred to there as  6 preliminary correspondence between the Colonial Office  7 and the Hudson's Bay Company respecting terms of the  8 proposed surrender contemplated only that lands would  9 be set aside and reserved for Indians.  10 14, in February 1869, Cartier and McDougall  11 addressed a long letter to the Colonial Office,  12 setting out Canada's position with respect to the  13 current state of negotiations.  And that is found  14 under tab 14.  Their letter averted to the terms and  15 conditions incorporated in the December 1867 Joint  16 Address of Parliament, and referred to the  17 representation respecting compensation for Indian  18 lands which would be required for settlement.  19 And the page references in my summary relate to the  20 page number directly opposite the title papers  21 relating to Rupert's Land.  So it's page 53 of that  22 pagination, and in the upper right-hand corner it's  23 145.  And the reference to the Joint Address is in the  24 first paragraph, and the third item is the reference  25 that I make to the claims of the Indian tribes for  26 compensation for lands required for purposes of  27 settlement.  And then reference is made to the  28 situation which has arisen in terms of the  29 negotiations.  30 THE COURT:  They speak of the uniform equitable principles that  31 are governing.  32 MR. GOLDIE:  The House of Commons did, yes.  33 THE COURT:  Yes.  34 MR. GOLDIE:  I mean, sorry, the Joint Address did.  And Sir  35 George Cartier and Mr. McDougall went through the  36 positions being taken by the Hudson's Bay Company, and  37 were very critical of them.  They weren't prepared to  38 accept the terms that had been laid down by that  39 company, and they questioned the value that the  40 company was putting on its interests, and in so doing  41 they made a number of references to the evidence of  42 the -- of the Select Committee in the Hudson's Bay  43 Company in 1867.  44 In paragraph 15, on March 8th, 1869, towards the  45 close of the negotiations, a deputation from the  46 Aborigines' Protection Society presented Lord  47 Granville with a copy of the memorial referred to in 28145  Submissions by Mr. Goldie        1 paragraph 9 above, and  urged upon him the importance  2 of the extinguishing native title in the lands soon to  3 be acquired Canada.  It will later be seen that,  4 commencing in August 1869, Lord Granville directed and  5 supervised the steps taken towards the union of  6 British Columbia and Canada.  7 The next day, on March 9th, on Granville's  8 instructions, a memorandum of proposed terms, drafted  9 by Sir Frederic Rogers, Under-Secretary of State for  10 the Colonies, was delivered to the Canadian delegates.  11 This particular memorandum was silent as to Indians  12 and aboriginal title.  13 The terms and conditions eventually agreed upon by  14 the company and Canada's delegates were set out in two  15 memoranda dated 22 and 29 March 1969.  16 The eighth paragraph in the 22 March memorandum,  17 headed "Details of Agreement between the Delegates of  18 the Government of the Dominion and the directors of  19 the Hudson's Bay Company", dealt indirectly with the  20 Canadian Parliament's representation respecting  21 compensation for Indian lands.  It did not pledge the  22 Dominion to adopt any particular course of action; it  23 merely relieved the company from liability respecting  24 any such claims.  And paragraph 8 reads as follows:  25  26 "It is understood that any claims of Indians to  27 compensation for lands required for purposes of  28 settlement shall be disposed of by the Canadian  29 government, in communication with the Imperial  30 Government, and that the Company shall be  31 relieved of all responsibility in respect of  32 them."  33  34 And that eventually became clause 14 of the Deed  35 of Surrender.  And I say, note that the Imperial  36 government was to be consulted respecting the  37 disposition of any such claims.  38 This term respecting liability for claims of  39 Indian title was ultimately incorporated as clause 14  40 in the Deed of Surrender.  And I might --  41 THE COURT:  Well, you use the term Indian title, but clause 8  42 doesn't use that term.  43 MR. GOLDIE:  No, it doesn't, my lord.  And, as I say, the word  44 title is one that the Aborigines' Protection Society  45 has used in its petitions or submissions to the  46 Colonial Office and to the Prime Minister, but when we  47 look at the documents the interest of the Indians is 28146  Submissions by Mr. Goldie        1 expressed either as  being that in lands required for  2 the purposes of settlement or saving the Hudson's Bay  3 Company harmless in respect of such requirements.  4 Now, in April of 1869, and I'm now referring to  5 the document under tab 18, my lord, Lord Granville  6 wrote to the Governor General of Canada, Sir John  7 Young.  And he's talking about the Hudson's Bay  8 Company and Rupert's Land, and in the third, fourth  9 paragraph he says this:  10  11 "On one point, which has not been hitherto  12 touched upon, I am anxious to express to you  13 the expectations of Her Majesty's Government.  14 They believe what whatever may have been the  15 policy of the Company, and the effect of their  16 chartered right upon the progress of  17 settlement, the Indian tribes, who form the  18 existing population of this part of America,  19 have profited by the Company's rule.  They have  20 been protected from some of the vices of  21 civilization; they have been taught, to some  22 appreciable extent, to respect the laws and  23 rely on the justice of the white man, and they  24 do not appear to have suffered from any causes  25 of extinction beyond those which are  26 inseparable from their habits and their  27 climate.  I am sure that your Government will  28 not forget the care which is due to those who  29 must soon be exposed to new dangers, and, in  30 the course of settlement be dispossessed of the  31 lands which they are used to enjoy as their  32 own, or be confined with unwontedly narrow  33 limits.  34  35 This question had not escaped my notice while  36 framing the proposals which I laid before the  37 Canadian Delegates and the Governor of the  38 Hudson's Bay Company.  I did not, however, then  39 allude to it, because I felt the difficulty of  40 insisting on any definite conditions without  41 the possibility of forseeing the circumstances  42 ..."  43  44 And so on.  And then he goes on to say at the last  45 part of that paragraph:  46  47 "That Government ..." 28147  Submissions by Mr. Goldie        1 That is to say the  Government of Canada.  2  3 "... I believe, has never sought to evade its  4 obligations to those whose uncertain rights and  5 rude means of living are contracted by the  6 advance of civilized man.  I am sure that they  7 will not do so in the present case, but that  8 the old inhabitants of the country will be  9 treated with such forethought and consideration  10 as may preserve them from the dangers of the  11 approaching change."  12  13 Now, that was -- that dispatch contained no  14 direction or even a suggestion respecting claims of  15 and aboriginies' title.  16 In May of 1869, the Parliament of Canada adopted  17 the terms and conditions agreed upon, including clause  18 8 of the 22 March 1869 memorandum, and also resolved  19 inter alia:  20  21 "That upon the transference of the territories  22 in question to the Canadian government, it will  23 then be the duty of the Government to make  24 adequate provision for the protection of the  25 Indian tribes whose interests and well-being  26 are involved in the transfer."  27  28 Now, that tends to reflect the language of Lord  29 Granville's dispatch of April of 1869.  30 Now, the Joint Resolution of the Parliament of  31 Canada, which as I say was adopted on May 28th, 1869,  32 included the paragraph numbered eight which I read to  33 your lordship, because it is taken straight out of the  34 March 22nd, 1869 agreement.  And then on the next  35 page, which is the fourth page of the document under  36 tab 18 — tab 19, I'm sorry.  37 THE COURT:  No.  I think 20.  38 MR. GOLDIE:  Beg pardon, my lord?  39 THE COURT:  I'm sorry.  You're right.  19, yes.  40 MR. GOLDIE:  It's -- if one follows the page numbers in the  41 bottom centre of the page it's 268.  42 THE COURT:  Yes.  43 MR. GOLDIE:  The resolution that I read to your lordship "that  44 upon the transference of the territories in question  45 to the Canadian government", et cetera.  46 So the company -- I'm sorry.  Canada had a  47 contractual term, which I'll call a save harmless 28148  Submissions by Mr. Goldie        1 term, and it had a  resolution which expressed the  2 intention and a direction to the government to make  3 adequate provision for the protection of the Indian  4 tribes whose interests and well-being are involved in  5 the trade.  6 THE COURT:  In transfer.  7 MR. GOLDIE:  In the transfer.  I'm sorry.  8 I say at page 20 of my summary, the Joint  9 Resolution of the Parliament of Canada was  10 incorporated into the Joint Address to Her Majesty  11 praying for the union of Rupert's Land and the  12 North-Western Territory with the Dominion of Canada.  13 Thirteen months later, on June 22nd, 1870, the  14 executed Deed of Surrender was accepted by Her  15 Majesty, and by virtue of the Imperial Order in  16 Council dated June 23rd, 1870, Rupert's Land and the  17 North-Western Territory were admitted into union with  18 Canada.  19 Now, my lord, that delay reflected the fact that  20 the Riel rebellion had broken out in November of 1869,  21 and it wasn't until that was controlled that Canada  22 was prepared to pay the 300,000 pounds to the Hudson's  2 3 Bay Company.  24 THE COURT:  Well, Mr. Goldie, is it your submission or  25 understanding that this transfer included any parts of  26 the lands of British Columbia as it is now?  27 MR. GOLDIE:  No, my lord, because nothing west of the Rockies  2 8 was -- could be claimed by the Hudson's Bay Company.  29 They had an exclusive licence to trade, but they  30 didn't have any proprietary claim.  31 THE COURT:  The Peace River district —  32 MR. GOLDIE:  But the Peace River district and the drainage area  33 of -- of -- well, the drainage area of Hudson's Bay,  34 and they laid some claim to the area drained --  35 draining into the Arctic.  36 THE COURT:  I suppose what's lacking in my understanding of this  37 is a definition of the North-Western Territories.  38 MR. GOLDIE:  Yes.  And there is — there is one available.  And  39 when I say available it I think --  40 THE COURT:  If North-Western Territories included the drainage  41 area of the Mackenzie then, of course, it caught the  42 Peace River district?  43 MR. GOLDIE:  Yes.  Yes.  44 THE COURT:  Do you understand that it did?  45 MR. GOLDIE:  That's my — see, the Rupert's Land Act of the  46 Imperial government was very coy about this.  It  47 simply said for the purposes of this act the term 28149  Submissions by Mr. Goldie        1 Rupert's Land shall  include the whole of the lands and  territories held or claimed to be held by the said  Governor and company.  COURT:  Yes.  GOLDIE:  And by 1868 when that was passed the Colony of  British Columbia had been in being for ten years, and  clearly that was excluded from the claim of the  Hudson's Bay Company.  COURT:  Well —  GOLDIE:  But the North-Western Territory included everything  to the west and north of Rupert's Land, and in respect  of British Columbia, the north of British Columbia  that included what has become the Yukon Territory.  So  to that extent there was territory west of the  Rockies.  COURT:  At this time did British Columbia have a northern  boundary?  COURT:  Yes, it did, my lord.  COURT:  The Stikine resolution or —  GOLDIE:  The Stikine territory was incorporated in British  Columbia in 1862, so the northern boundary had been  fixed at the 60th parallel.  RUSH:  I believe, my friend is making an argument here, my  lord, as opposed to directing you to a particular  document, because I think this is disputed.  GOLDIE:  Well, I'm not sure who disputes it.  RUSH:  I do.  GOLDIE:  Well, I'll go to this Territorial Evolution of  Canada, my lord.  RUSH:  With my objection.  GOLDIE:  Your lordship will see, and I say that this can be  consulted by your lordship, and I can use it for the  purposes of demonstrating my submission.  COURT:  Yes.  I think you can.  GOLDIE:  The North-Western Territory by 1825 — well, the  better one is 1849 -- now still better is 1866,  because then British Columbia is fully developed, and  Rupert's Land is the drainage area, and the  North-Western Territory is north of British Columbia  and west of Rupert's Land.  COURT:  So it would include the drainage areas of the  Mackenzie River and the Hudson's Bay?  GOLDIE:  And I think the Yukon River.  COURT:  And the Yukon River.  GOLDIE:  Yes.  There is a document which is an exhibit, my  lord, and I'll get it during the break, which purports  to show the area of the Hudson's Bay Company  2  3  4  THE  5  MR.  6  7  8  9  THE  10  MR.  11  12  13  14  15  16  THE  17  18  THE  19  THE  20  MR.  21  22  23  MR.  24  25  26  MR.  27  MR.  28  MR.  29  30  MR.  31  MR.  32  33  34  THE  35  MR.  36  37  38  39  40  41  THE  42  43  MR.  44  THE  45  MR.  46  47 28150  Submissions by Mr. Goldie        1 territories as of 1857.  2 THE COURT:  Does all of our beloved territory known sometimes as  3 the Yukon drain into either the Mackenzie or the  4 Yukon?  No, it can't.  5 MR. GOLDIE:  No.  There would be part of it would drain directly  6 into the arctic.  7 THE COURT:  Into the arctic and some directly into the Pacific.  8 Or does it?  Perhaps not.  9 MR. GOLDIE:  I think not, my lord.  I think that is what led to  10 the fixing of the boundary of Alaska.  11 THE COURT:  Yes.  12 MR. GOLDIE:  My lord —  13 THE COURT:  Yes.  When one drives from Whitehorse to Skagway one  14 crosses a height of land one of which drains into the  15 Yukon running from Whitehorse and one draining into  16 the Pacific.  17 MR. GOLDIE:  Into the Pacific, yes.  18 THE COURT:  I think when one gets into the area of draining into  19 the Pacific one is in the United States, but I'm not  20 sure about that.  21 MR. GOLDIE:  The Alaska boundary arbitration I always had in the  22 back of my mind fixed upon a height of land except one  23 or two exceptions.  24 THE COURT:  Yes.  Thank you.  25 MR. GOLDIE:  My lord, in paragraph 20 I make reference to the  26 Riel rebellion, and I won't make any further  27 discussion -- give your lordship anything further on  28 that.  29 But on paragraph 21 I now come back to British  30 Columbia and I say, in a period substantially  31 overlapping that relating to the surrender of Rupert's  32 Land, the attention of governments of Canada and Great  33 Britain returned also to the union of the Colony of  34 British Columbia with the Dominion of Canada.  35 The first formal communication on this matter from  36 the Secretary of State, which was Granville, to the  37 Governor of British Columbia was the dispatch of  38 August 14th, 1869, informing the Governor that, as  39 terms for the annexation of the Hudson's Bay Company  40 had been agreed to, the union of British Columbia with  41 Canada could be considered.  Musgrave was informed  42 that Her Majesty's government was content to leave  43 most of the terms and conditions respecting the  44 proposed union to the wishes of the people and the  45 legislature of the Colony, but the subject of Indians  46 was one of two matters reserved for the Governor's  47 personal attention.  That dispatch has been read to 28151  Submissions by Mr. Goldie        1 your lordship.  2 THE COURT:  Sounds almost like Meech Lake.  3 MR. GOLDIE:  Yes.  4 Other contemporary documents relating to the union  5 of B.C. and Canada which refer to the impolicy of  6 leaving relations with Indians to the vagaries of  7 popular sentiment are, and then I set out a number of  8 quotations which indicate that the Colonial Office in  9 particular was concerned about leaving the care and  10 attention of the Indian peoples to the local  11 legislature.  And I say only with respect to those  12 three that head 24 of Section 91 of the British North  13 America Act of 1867 was already in place, and that  14 ensured that the -- that the attention to the Indian  15 peoples was a matter for the central government.  16 THE COURT:  Sorry.  That was 91.24?  17 MR. GOLDIE:  91.24, yes.  18 And the last document cited on -- under para Roman  19 one on page 23 is the Report of the Select Committee  20 on Aborigines of 1837 where Suggestion I is:  21  22 "The protection of the Aborigines should be  23 considered as a duty peculiarly belonging and  24 appropriate to the Executive Government, as  25 administered either in this countryor by the  26 Governors of the respective Colonies.  This is  27 not a trust which could conveniently be  28 confided to the local Legislatures."  29  30 So that there's a pattern of both parliamentary  31 exortation and recognition within the Colonial Office  32 itself that the affairs of the Indian -- of indigenous  33 peoples should be either monitored or actually  34 supervised by the central government.  35 And then in paragraph 22 I refer to the  36 Aborigines' Protection Society complaint about affairs  37 in Vancouver Island which have been brought to the  38 society's attention by Mr. Sebright Green.  And then  39 Mr. Green made reference to the Cowichan Indians, and,  40 of course, as we know, the Secretary of State for the  41 Colonies sent copies to Musgrave and asked for his  42 observations.  And that, of course, gave rise to the  43 memorandum of Mr. Trutch.  And Musgrave endorsed  44 Trutch's memorandum with the words "from other sources  45 of information I have every reason to believe Mr.  46 Trutch's statements to be correct."  And Trutch's  47 memorandum which -- as I said, was sent by Sir Anthony 28152  Submissions by Mr. Goldie        1 Musgrave to the  Colonial Office in January of 1870,  2 made the statement which has been referred to in a  3 number of times.  4  5 "... the title of the Indians in the fee of the  6 public lands, or any portion thereof, has never  7 been acknowledged by Government, but, on the  8 contrary, is distinctly denied."  9  10 And then I have a couple of other observations on  11 that, but I go down to paragraph 27 and I say, the  12 Secretary of State for the Colonies sent copies of  13 Musgrave's dispatch, including Trutch's memorandum, to  14 the Aborigines' Protection Society.  15 My lord, that page reference should be 149 to 150.  16 THE COURT:  Instead of 151?  17 MR. GOLDIE:  Yes.  18 THE COURT:  Thank you.  19 MR. GOLDIE:  And both the dispatch and the memorandum were  20 published in the society's publication, The Colonial  21 Intelligencer.  22 And I say in paragraph 28, what is demonstrated by  23 the foregoing is that the Colonial Office was aware of  24 claims of Indian or native title, considered the  25 necessity of dealing with it in the vast region of  26 Ontario and British Columbia, and was  27 contemporaneously put on notice that so far as the  28 Colony of British Columbia was concerned there was no  29 aboriginal title.  Or as Mr. Trutch put it there was a  30 denial of Indian title in the fee of the public lands.  31 And that denial was published widespread in England.  32 And by November 1869, Lord Granville's August 1869  33 dispatch to the Governor of British Columbia  34 respecting the proposed union of the Colony had been  35 made public both in Canada and in British Columbia.  36 That is to say, it was published both in the Colony  37 and made public in Canada.  The proposed union was  38 under active discussion by Canada's Privy Council in  39 December 1869.  Your lordship will see how closely the  40 Manitoba and British Columbia matters were  41 overlapping.  The interested governments, British  42 Columbia, Canada and Great Britain, continued to  43 communicate among themselves.  And I set out a number  44 of the documents.  45 And on paragraph 30, on February 20th, 1870,  46 Governor Musgrave sent to the Governor General of  47 Canada a copy of the resolution embodying his 28153  Submissions by Mr. Goldie        1 government's  recommended Terms of Union with Canada,  2 which was to be introduced to the Legislative Council.  3 In the last paragraph of this dispatch Musgrave wrote,  4 and I quote:  5  6 "In Lord Granville's Dispatch No. 84 of 14th of  7 August which was communicated to your Your  8 Excellency he mentioned the condition of the  9 Indian Tribes as among some questions upon  10 which the constitution of British Columbia will  11 oblige the Governor to enter personally.  I  12 have purposely omitted any reference to this  13 subject in the terms proposed to the  14 Legislative Council.  Any arrangements which  15 may be regarded as proper by Her Majesty's  16 Government can I think best be settled by the  17 Secretary of State; or by me under his  18 direction, with the Government of Canada.  But  19 'Indians, and lands reserved for Indians' form  20 the twenty-fourth of the classes of subjects  21 named in the 91st Section of the Union which  22 are expressly observed to the Legislative  23 authority of the Parliament of the Dominion."  24  25 Now, that, my lord, that dispatch of -- of  26 Musgrave to the Governor General of Canada was in fact  27 communicated to the Canadian Privy Council on the 18th  28 of March, 1870.  And that document is -- under Tab  29 1-30 your lordship will find the dispatch in question.  30 THE COURT:  I'm sorry.  Which book?  31 MR. GOLDIE:  In the yellow book.  32 THE COURT:  Yes.  30?  33 MR. GOLDIE:  Tab 1-30, yes.  And the dispatch has minuted on it  34 right up at the top of the page "Received 16 March  35 acknowledge receipt.  Done.  Transmit to clerk for  36 consideration of council.  Done 18th of March, 1870."  37 THE COURT:  I haven't found that yet.  What page of your tab  38 number is it, Mr. Goldie?  39 MR. GOLDIE:  It's the first page of the 1-30 page one.  And —  40 THE COURT:  Oh.  It's these handwritten notes?  41 MR. GOLDIE:  Yes.  42 THE COURT:  Received 16th March?  43 MR. GOLDIE:  Yes.  And then the word "Ach", which I take to be  44 acknowledged.  Acknowledge receipt.  And then  45 underneath that is done.  Then the words "transmit to  46 clerk of" something "for consideration of council.  47 Done." 28154  Submissions by Mr. Goldie        1  THE COURT:  Is that 18th March?  2 MR. GOLDIE:  1870.  3 THE COURT:  That's a seven 0, is it?  4 MR. GOLDIE:  Yes.  5 THE COURT:  Yes.  Thank you.  6 MR. GOLDIE:  Turning back to my summary I say in paragraph 31,  7 the terms proposed by the Governor of British Columbia  8 were debated in the Colony's Legislative Council in  9 March of 1870.  And that reference, my lord, is to the  10 print, British Columbia Legislative Council.  Debate  11 on the Subject of Confederation with Canada.  12 The amendment respecting Indians:  13  14 "... that they receive the same protection  15 under Confederation as now ... in being allowed  16 to occupy land and enjoying equally with white  17 people the protection of the law ..."  18  19 Was briefly considered, but was defeated.  Some  20 members thought that Canada's policy should be  21 embraced instead because:  22  23 "... the Canadian government occupies the  24 position of guardians to Indians.  They are  25 treated as minors ..."  26  27 On April 12, 1870, Musgrave sent the Legislative  28 Council's resolution respecting the proposed terms,  2 9 together with proposed amendments and supplementary  30 resolutions to the Governor General of Canada.  He  31 also enclosed printed reports of the Legislative  32 Council's debate.  33 I say, my lord, that the Dominion was thus fully  34 aware of the points of view expressed in the debate.  35 And here I wish to refer to my friend's argument at  36 transcript 334 for May the 9th, 1990 at page 25919,  37 lines 22 to 27.  38 THE COURT:  I'm sorry.  I've lost you, Mr. Goldie.  Where are  39 you now in your text?  40 MR. GOLDIE:  I'm injecting a comment following paragraph 32.  41 THE COURT:  Yes.  All right.  And what is the reference?  42 MR. GOLDIE:  And I am going to refer to the transcript 334 for  43 May the 9th.  4 4 THE COURT:  Yes.  45 MR. GOLDIE:  Page 25919, lines 22 to 27 where my friend —  46 THE COURT:  That's not in your yellow book?  47 MR. GOLDIE:  It's not in my yellow book, no. 28155  Submissions by Mr. Goldie        1  THE COURT:  Yes.  2 MR. GOLDIE:  But my friend is commenting upon this debate, and  3 he says, and I quote:  4  5 "Public discussion of the Indian policy it  6 seems was sought to be prevented.  The content  7 of the debate was never publicized within the  8 Indian community, let alone in the public  9 press."  10  11 Well, my lord, not only was the -- were the  12 debates sent to Ottawa, but they were printed in the  13 British Columbia Gazette, and made public.  And that  14 is apparent, my lord, from what is found under tab  15 1-31, which is a sessional paper reprinted from the  16 Government Gazette Extraordinary of March, 1870.  17 And my friend went on to say, and I quote:  18  19 "There is no evidence of communication of this  20 debate in Ottawa.  Not of the fact of the  21 debate, but of the debate itself."  22  23 In fact the very document that I'm talking about  24 was transmitted to the Governor General and made  25 available to the Canadian cabinet.  26 Members of the Canadian Privy Council had read the  27 Legislative Council's debates before British  28 Columbia's delegates arrived in Ottawa to negotiate  29 the Colony's Terms of Union.  And that -- I should  30 before I turn to that turn to the document under tab  31 1-32, which is Musgrave's dispatch to the Governor  32 General of the 12th of April 1870.  And he says:  33  34 "Referring to my Despatch, No. 11, of 20th  35 February, I have the honour to forward to your  36 Excellency the Resolution passed by the  37 Legislative Council of this Colony on the  38 subject of union of Canada, with certain  39 proposed amendments in the terms, and some  40 supplementary recommendations from the Council  41 in respect of matters which they deem to  42 require consideration in the special  43 circumstances of this Colony.  I also enclose  44 printed reports of the debate upon the  45 introduction of the resolution."  46  47 And then under the same tab, my lord, is an 28156  Submissions by Mr. Goldie        1 extract from Mr.  Helmcken's diary, he being one of the  2 three delegates.  And I have marked by a sideline an  3 exchange which he reports with Sir George Cartier.  4 And Cartier has said:  5  6 "'Now we have to make up the money somehow.  7 Suppose we give them $100,000.00 per annum for  8 the Railway belt.'  I smiled.  'Oh,' said Sir  9 George, 'I know what you are smiling about, you  10 promised to give us the land for the railway  11 for nothing.  We have read the Debates of your  12 House on these matters, know all your reasons  13 and opinions.'"  14  15 So not only were these debates a matter of public  16 knowledge, they were a matter which had been marked by  17 the negotiators in Ottawa.  18 Now, I move to the paragraph 33, my lord, and I  19 now come back to the Red River situation.  And I say,  20 before the British Columbia Terms of Union were  21 negotiated, however, delegates from the Red River  22 Colony went to Ottawa, and this was in March of 1870,  23 carrying with them a list of rights to be used as a  24 basis for negotiating with the Canadian government the  25 terms under which the self-styled Province of  26 Assiniboia, later Manitoba, would join Confederation.  27 Now, this is taken from -- the document in  28 question is taken from Alexander Begg's History of the  29 North-West, and the letter of instructions starts at  30 page 475 and the list of rights so-called is those  31 which were handed to the delegates.  32 Now, item 13 on that list of rights, which is page  33 477 of --  34 THE COURT:  Yes.  35 MR. GOLDIE:  36 "That treaties be concluded between Canada and  37 the different Indian tribes of the Province of  38 Assiniboia, by and with the advice and  39 co-operation of the Local Legislature of this  40 province."  41  42 Now, the delegates were instructed that this  43 article was one of those which were "peremptory".  44 THE COURT:  When will it be convenient to take the morning  45 adjournment, Mr. Goldie?  46 MR. GOLDIE:  That is as good as any.  47 THE COURT:  All right.  We'll take the adjournment. 28157  Submissions by Mr. Goldie        1  THE REGISTRAR:  Order in court.  Proceedings adjourned for a  2 short recess.  3  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 Peri McHale,  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 28158  Submissions by Mr. Goldie        1        (PROCEEDINGS RESUMED  PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  My lord, I was at page 29 and I had just noted that  5 in the list of rights which the delegates from the Red  6 River Settlement, then calling themselves the Province  7 of Assiniboia, took with them to Ottawa in March of  8 1870, was the item 13, which I have set out in page  9 29.  And I have noted that they were instructed that  10 this article was one of those which was peremptory.  11  12 The capacity in which those delegates were  13 received in Ottawa, that is to say as delegates chosen  14 by the people of Red River and not as envoys of Riel,  15 is set out in a secret memorandum, which I needn't  16 refer to.  But the Governor General reported that two  17 of the delegates have urged upon him:  18  19 "The propriety of quieting the possession of  20 their holdings in the lands of those who had  21 squatted upon or occupied lands within limits  22 where the Indian title had not been  23 extinguished."  24  25 On this point, the Governor General stated to the  26 Secretary of State for the Colonies:  27  28 "... it seems quite within the competency of  2 9 the Canadian Government to deal with it - i.e.  30 to engage to buy up or satisfy the Indian title  31 and then assure the quiet possession of their  32 holdings to bona fide holders."  33  34 And, of course, the Manitoba Act, which was given  35 Royal Assent only three weeks earlier, has  36 particularly relevant provisions in it.  It's under  37 Tab 35.  And this is the Act of the — of the  38 Dominion.  And I have made reference to sections  39 32(3), which is on page 255, referring to the page  40 number at the bottom of the page:  41  42 "All titles by occupancy with the sanction" --  43  44 Well, it starts off -- Section 32 starts off:  45  46 "For the quieting of titles, and assuring to  47 the settlers in the Province the peaceable 28159  Submissions by Mr. Goldie 1                   possession of  the lands now held by them, it is  2 enacted as follows:  3 (3)  All titles by occupancy with the sanction  4 and under the license and authority of the  5 Hudson's Bay Company up to the eighth day of  6 March aforesaid, of land in that part of the  7 Province in which the Indian Title has been  8 extinguished, shall, if required by the owner,  9 be converted into an estate in freehold by  10 grant from the Crown."  11  12 And then I also make reference to Section 30 itself in  13 the preceding page:  14  15 "All ungranted or waste lands in the Province  16 shall be, from and after the date of the said  17 transfer, vested in the Crown, and administered  18 by the Government of Canada for the purposes of  19 the Dominion, subject to, and except and so far  20 as the same may be affected by, the conditions  21 and stipulations contained in the agreement for  22 the surrender of Rupert's Land by the Hudson's  23 Bay Company to Her Majesty."  24  25 Now, that was -- that was the one in which there was  26 the contractual -- I call it contractual undertaking  27 to save harmless the Hudson's Bay Company in respect  28 of Indian title or claims.  29 There is no provision in the Act relating to  30 Indian treaties, but Section 31, marginally captioned  31 "Provisions as to Indian Title", refers to the  32 expediency of extinguishing Indian title to lands in  33 the new province, and to that end, it provided for the  34 appropriation of 1,400,000 acres of ungranted lands  35 for the benefit of half-breed or Metis residents.  And  36 then I quote the section itself.  Then I quote Section  37 30.  38 Paragraph 36.  The Prime Minister, Sir John A.  39 Macdonald, who introduced the Manitoba Bill on May  40 2nd, 1870, referred to the provisions respecting Crown  41 lands, Indian title and the reservation of lands for  42 half-breeds.  And he said:  43  44 "... with respect to the lands that are  45 included in the province, the next clause  46 provides that such of them as do not now belong  47 to individuals, shall belong to the Dominion of 28160  Submissions by Mr. Goldie        1 Canada ... There  shall, however, out of the  2 lands there, be a reservation for the purpose  3 of extinguishing the Indian title, of  4 1,200,000."  5  6 Later, my lord, that was amended to 1,400,000 acres.  7  8 "This reservation, as I have said, is for the  9 purpose of extinguishing the Indian title and  10 all claims upon the lands within the limits of  11 the Province ... It is, perhaps, not known to a  12 majority of this House that the old Indian  13 titles are not extinguished over any portion of  14 this country, except for two miles on each side  15 of the Red River and the Assinniboine."  16  17 And then Sir George Cartier also spoke about these  18 provisions, and I quote what he said on Hansard, and  19 Macdonald's further references to the lands and Deed  20 of Surrender to the Hudson's Bay Company and his  21 reference at the top of page 33 about the clauses in  22 the Act.  Last sentence he says:  23  24 "Those clauses referred to land for the  25 half-breeds and go toward extinguishing the  26 Indian title."  27  28 One Member of Parliament asked about "the care and  29 guardianship of the Indian tribes" and whether the new  30 Province would be responsible for paying treaty  31 annuities, "or did the Dominion Government intend to  32 retain in its own hands the power of dealing with  33 those Indians and seeing whether contracts or  34 undertakings, made with them should be faithfully  35 carried out."  36 Macdonald noted in reply that the 1.2 million acre  37 reservation was not for the purpose of buying out the  38 full blooded Indians and extinguishing their titles.  39 There were very few such Indians remaining in the  40 Province, but such as there were, they would be  41 distinctly under the guardianship of the Dominion  42 Government.  43 My lord, it has to be born in mind that the  44 province of Manitoba, which is being referred to here,  45 was a very, very small area, just around -- virtually  4 6 around the Red River Settlement.  And that is shown on  47 the -- this map, the Territorial Evolution of Canada, 28161  Submissions by Mr. Goldie        1 where the original  province of Manitoba is almost of a  2 postage stamp size.  3 THE COURT:  But it's more than 1,200,000 acres.  4 MR. GOLDIE:  Yes.  It's not postage stamp in our terms, my lord,  5 postage stamp in terms of the present province of  6 Manitoba.  7 THE COURT:  What is 22,000 square miles times 640?  What are  8 they talking about?  Couple million?  9 MR. GOLDIE:  I did it about five years ago and I've forgotten  10 what the number is.  11 THE COURT:  When I have a moment, I'll multiply it.  12 MR. GOLDIE:  One of the Dominion's concerns, evident throughout  13 the debate on the Manitoba Bill -- that word "debate"  14 can be struck out, the second word -- was to secure  15 peaceful passage through the newly acquired lands for  16 settlers and for the contemplated railway to the  17 Pacific.  18 Now, that appears from the extract from Hansard,  19 and under Tab 1 - 38, column 1309, Hansard, the  20 left-hand column, the debate for May 2nd, 1870, Sir  21 John A. Macdonald is -- is responding to questions and  22 about a third of the way from the bottom of his  23 comments are these words:  24  25 "He pointed out that the territory had been  26 purchased for a large sum from the Hudson's Bay  27 Company, that settlement had to be made with  28 the Indians, the guardianship of whom was  29 involved, that the land could not be handed  30 over to them, as it was of the greatest  31 importance to the Dominion to have possession  32 of it, for the Pacific Railway must be built by  33 means of the land through which it had to  34 pass."  35  36 THE COURT:  Of course, there was no deal with British Columbia  37 at that time, was there?  38 MR. GOLDIE:  No.  But the — he's referring to the Canadian  39 Pacific Railway, the incorporated company.  4 0 THE COURT:  Yes.  41 MR. GOLDIE:  At least I think that's the case, because your  42 lordship is quite right.  There wasn't any --  43 THE COURT:  Some railway.  44 MR. GOLDIE:  Yes.  Another — then I go on at para 39.  Before  45 the Bill was passed, Macdonald fell gravely ill and,  46 in his absence, Cartier led the debate, which returned  47 to questions of the control of Crown lands, the need 28162  Submissions by Mr. Goldie 1            for peaceful passage  for the railroad, the reservation  2 of lands for the extinguishment of half-breed title,  3 and provision for Indian claims.  4 Just before I go on, the railroad had been  5 partially built to Winnipeg because some of the troops  6 that were used to resist the Riel rebellion were  7 carried partway and in the partially completed  8 railway.  9 Another participant in the Manitoba Bill debate  10 was Sir Francis Hincks, Minister of Finance, who with  11 two other Dominion Privy Councillors (Cartier and Sir  12 Leonard Tilley), was soon charged with negotiating  13 Terms of Union with the delegates from the Colony of  14 British Columbia.  15 Now, turning to that delegation, as your lordship  16 knows, the delegates from British Columbia were  17 Trutch, Helmcken and Carrall, members of the Executive  18 and Legislative Councils of the Colony, nominated by  19 Musgrave to discuss Terms of Union with the Dominion's  20 Governor in Council.  21 And the governor himself, although charged with  22 personal responsibility for making arrangements  23 respecting Indians, was unable to accompany the  24 delegates.  He did, however, set out his views on May  25 the 9th in a minute which he addressed to Mr. Trutch.  26 I interject here, my lord, to note that my friend  27 took the position in his written argument that there  28 was no evidence that either Musgrave or the Imperial  29 Government participated in the Ottawa negotiations.  30 And with that in mind, I'd like to read his  31 instructions to Mr. Trutch of May the 9th, 1870:  32  33 "The administration of Indian Affairs is a  34 matter to which my attention has been called by  35 Lord Granville as requiring special care in  36 respect of the arrangements for Union.  But  37 under the provisions of the British Columbia  38 North America Act, it is one of a class of  39 subjects specially confided to the Government  40 of the Dominion.  It will be necessary,  41 however, that I should be acquainted, for the  42 information of the Secretary of State, with the  43 mode in which the Government of Canada propose  44 to deal with this subject."  45  46 Just pausing there, I note that he required to be  47 informed for the benefit of the Imperial Government, 28163  Submissions by Mr. Goldie        1 and we know that he was  in telegraphic communication  2 to both from San Francisco.  3  4 Continuing:  5  6 "You will be able to point out to them the  7 policy which has been hitherto pursued with  8 considerable success."  9  10 Then he goes on to talk about the nature of the people  11 and the necessity of the magistrates being directly  12 under the authority of the Lieutenant Governor  13 himself, who will be responsible to the government at  14 Ottawa.  15  16 In a private letter of May the 10th, my lord, to  17 Sir John A. Macdonald, Musgrave expressed his  18 confidence in each of the delegates, but especially in  19 Trutch, whom he described as "an able and cautious  20 man, who would be a valuable public servant anywhere".  21 He informed the prime minister that he had given  22 Trutch a minute of his views "respecting the  23 arrangement of Indian Affairs".  And that -- that  24 minute which I have read from was in fact given to the  25 Dominion people upon Trutch's arrival.  26  27 Only a few days before the British Columbia  28 Confederation delegates arrived in Ottawa, the  29 Secretary of State for the provinces, the ex officio  30 Superintendent General of Indian Affairs in Canada,  31 wrote to the Lieutenant Governor of Ontario with  32 respect to lands which Indian title had not been  33 extinguished.  The lands were identified and described  34 in relation to lands which had already been the  35 subject of treaties with Indians in that province.  36 I bring that in, my lord, because of the  37 juxtaposition in time of the -- on the one hand, the  38 Dominion Cabinet Minister was Mr. Howe, I believe,  39 writing to the Lieutenant Governor of Ontario saying,  40 in effect, don't forget to extinguish title to certain  41 lands, and on the other, a delegation coming from  42 British Columbia where it was known to the Dominion  43 that title in the fee of the lands had been denied.  44 This is -- all of this is out in the open.  There's  45 nothing hidden about this at all.  Only a few days --  46 well, I've read that.  47 Paragraph 43.  The only record which has been 28164  Submissions by Mr. Goldie        1 found regarding the  substance of the negotiations  2 between the Colony and the Dominion in June 1870 is a  3 diary kept by Helmcken.  The negotiations were  4 constitutional in nature and, therefore, were kept  5 strictly secret and confidential.  Helmcken noted in  6 his reminiscences that the understanding with the  7 Canadian Privy Council was that "whatever took place  8 was not to be divulged".  9  10 There is clear evidence that Governor Musgrave  11 participated in the negotiations by telegraph.  And  12 that, my lord, is referred to in 43, Tab 43, at the  13 page number that's referred to there, 355, where at  14 the top of the page Helmcken says:  15  16 "The council have sat four hours then  17 adjourned, but not before the subject of  18 government responsibility, i.e. responsible  19 government, had been talked over, but we were  20 obliged to wait for telegram from Governor."  21  22 And the footnote at the bottom:  23  24 "No explanation of this reference seems to be  25 available."  26  27 But, of course, it's obvious that if they were obliged  28 to wait for a telegram from the governor, that's not  29 the first communication they had from him.  And I  30 say --  31 THE COURT:  I haven't found that.  32 MR. GOLDIE:  Oh, it's page -- does your lordship have the diary  33 itself?  34 THE COURT:  Yes.  345?  35 MR. GOLDIE:  355.  36 THE COURT:  55.  37 MR. GOLDIE:  Yes.  38 THE COURT:  Yes.  I see that.  Thank you.  39 MR. GOLDIE:  And I say that there is clear evidence that he  40 participated in the negotiations by telegraph.  And in  41 my submission it is implicit in the wording of Term 6  42 (respecting pensions for Colonial officers) and Term  43 13 (respecting Indian matters) that the Imperial  44 Government was also consulted, because the  45 arrangements agreed upon in each of those terms  46 required its knowledge and consent.  Then he makes  47 reference to the secret and confidential despatches 28165  Submissions by Mr. Goldie 1            which Musgrave sent  back to London and other  2 subsequent destruction.  3 And I'm at paragraph 45.  The only direct evidence  4 of the discussions concerning Term 13 comes from  5 Helmcken's diary and from the text of Term 13 itself.  6  7 The only reference to Term 13 in Helmcken's diary  8 is the entry for June 27, 1870, the last day of  9 negotiations, where he wrote:  10  11 "The clause about Indians was very fully  12 discussed.  The ministers thought our system  13 better than theirs in some respects, but what  14 system would be adopted remained for the future  15 to determine."  16  17 I interject there, my lord.  The only body  18 constitutionally able to determine what system would  19 be adopted in the future was, of course, Canada.  20  21 Continuing:  22  23 "I asked about Indian wars and Sir George  24 Cartier said that it depended upon the  25 severity, as a rule the expense would have to  2 6 be borne by the Dominion Government."  27  28 And that excerpt is under Tab 45.  29  30 The preamble of Dominion Order in Council P.C.  31 155B of 1 July, 1870, which incorporated the terms  32 agreed upon by the Governor in Council and the  33 delegates from British Columbia, noted that there had  34 been "several interviews" and "full discussion" of the  35 terms between the Privy Council Committee and the  36 delegates.  37  38 And then I set out Term 13 as it appears in that  39 Order in Council of 1 July, 1870, and the Order in  40 Council is signed by Sir George Cartier.  41  42 The Dominion Government had the sole  43 constitutional responsibility for Indians and lands  44 reserved for Indians.  This alone makes it more than  45 probable that the Dominion fully considered Indian  46 title, and that it drafted Term 13, containing as it  47 did the interesting quick solution in time of 28166  Submissions by Mr. Goldie        1 impasse - a reference  to the Secretary of State for  2 the Colonies.  3  4 It is inconceivable, in my submission, that the  5 delegates from British Columbia would have attempted  6 to deceive Dominion officials on any point related to  7 Indians.  The Imperial Government, whose approval of  8 the terms would have to be obtained, had overseen and  9 knew all about British Columbia's policy.  10  11 Moreover, as will be seen later, Sir John A.  12 Macdonald, under whose first administration the terms  13 were negotiated, appointed Joseph Trutch the  14 Dominion's confidential agent in British Columbia  15 during his second administration.  Also during that  16 administration, the Dominion frequently and  17 consistently declined to entertain the question of  18 Indian title in British Columbia and stated its  19 intention not to recede from the terms of union.  I'll  20 be coming to the Order in Council which asserts that,  21 my lord.  22  23 These actions would be inexplicable if Macdonald  24 and the Dominion government considered that Musgrave  25 or his delegates had perpetrated a fraud by  26 misrepresenting the facts as to British Columbia's  27 policy respecting claims of Indian title.  28  29 If the Dominion disagreed with British Columbia's  30 approach and considered that the public lands of  31 British Columbia were burdened by Indian title (that  32 is, that they were subject to an interest other than  33 that of the province within the meaning of Section 109  34 of the Constitution Act, 1867), it would have placed  35 some restraint on the alienation of Crown lands in the  36 province pending extinguishment of that burden.  It  37 did not do so.  The only restraint on alienation is in  38 respect of the anticipated Railway Belt - see Term 11.  39  40 Now, that reference, my lord, should be to Exhibit  41 1200 - 1.  42  43 Now, we have noted, my lord, in respect of Term 11  44 that there was a partial alienation to actual  45 settlers.  This, of course, would ensure that lands  46 speculation was not indulged, but the subject of that,  47 there was a restraint of alienation.  And I say that's 28167  Submissions by Mr. Goldie        1 wholly inconsistent  with the Dominion's view that  2 there was an extinguished Indian title.  3  4 Copies of the terms agreed upon were sent to the  5 Secretary of State for the Colonies and to the  6 Governor of British Columbia.  7  8 The Colonial office minutes concerning the  9 proposed terms raised no concern respecting the  10 arrangements made for Indians or the resolution of any  11 claim of Indian title.  Excuse me, my lord.  I think  12 there's a -- an addition to be made here, just if your  13 lordship will excuse me for a minute.  Well, I'll come  14 back to that.  15  16 The procedures necessary to accomplish the union  17 were not completed until July -- that should be 20th,  18 not 21st, a year during which all three governments -  19 Colonial, Dominion and Imperial - could consider the  20 terms agreed upon in July of 1870.  21  22 My point there, my lord, is that there was lots of  23 time for people to have second thoughts and, in fact,  24 in respect to some of the financial arrangements,  25 there were some attempted second thoughts.  But there  26 was none with respect to suggestion of Indian title.  27  28 In the meantime, the Dominion government proceeded  29 with the establishment of governmental institutions in  30 Rupert's Land and the Northwest Territories, which  31 were formally annexed to Canada on June 23rd, 1870 by  32 Imperial Order in Council.  33  34 Three Dominion Orders in Council, all touching  35 upon the management of Crown lands in the province of  36 Manitoba and in the Northwest Territories, and each  37 signed by Sir George Cartier, were approved on August  38 2nd, 1870.  And I go through these.  39  40 The first Order in Council approved preliminary  41 instructions for the Lieutenant Governor of the  42 Province of Manitoba, A.G. Archibald, which provided,  43 amongst other things:  44 - that immigrants were to be restrained from any  45 lawless intrusion upon the settlers or upon Indian  46 tribes;  47 - that pursuant to Section 31 of the Manitoba Act, the 28168  Submissions by Mr. Goldie        1 Lieutenant Governor was  to select lands for the  2 extinguishment of half-breed title;  3 - and that a full report should be made:  4  5 "... upon the state of the Indian tribes now in  6 the province, their numbers, wants and claims;  7 the system heretofore pursued by the Hudson's  8 Bay Company in dealing with them - accompanied  9 by any suggestions you may desire to offer with  10 reference to their protection and to the  11 improvement of their condition."  12  13 The Lieutenant Governor was also reminded that a  14 military force had been sent to the North West "with a  15 view to protect Her Majesty's subjects from the  16 possible intrusion of roving bands of Indians by whom  17 they are surrounded and to give stability to the civil  18 government" which he was to organize.  19  20 P.C. 42 approved preliminary instructions for the  21 Lieutenant Governor of the North West Territories - a  22 position also held by the same individual.  In these  23 instructions he was told that he was to open up  24 communications with the Indian bands occupying the  25 country lying between Lake Superior and the Province  26 of Manitoba with a view to establishment of such  27 friendly relations as may make the route from Thunder  28 Bay to Fort Garry secure at all seasons of the year,  29 and to facilitate the settlement of such portions of  30 the country as it may be practicable to improve.  31  32 Your lordship will see that the so-called  33 Northwest Territories at that point actually included  34 the land lying between Lake Superior and what was then  35 the Province of Manitoba.  36 Continuing:  37  38 "You will also turn your attention promptly to  39 the condition of the country outside of the  40 Province of Manitoba on the North and West, and  41 while assuring the Indians of your desire to  42 establish friendly relations with them, you  43 will ascertain and report to His Excellency the  44 course you may think most advisable to pursue,  45 whether by treaty or otherwise, for the removal  46 of any obstructions that might be presented to  47 the flow of population into the fertile lands 28169  Submissions by Mr. Goldie        1 that lie between  Manitoba and the Rocky  2 Mountains...  3  4 You will also make a full report upon the state  5 of the Indian tribes now in the territories,  6 their numbers, wants and claims," so on.  7  8 The third relevant Order in Council of 2 August,  9 1870 approved a memorandum by Cartier recommending  10 that Archibald be appointed "administrator on behalf  11 of the Government of Canada of the ungranted or waste  12 lands" in Manitoba, and suggesting that he submit a  13 report "... as to such lands in the province as it may  14 be desirable to open up at once for settlement..."  15 and suggesting regulations under Section 31 of the  16 Manitoba Act for the selection of lands for the  17 children of half-breeds, and the mode and conditions  18 of settlement for such lands.  19  20 Paragraph 50.  On November -- that should be  21 November 18th, my lord — 1870, Sir John A. Macdonald  22 wrote privately to Lieutenant Governor Archibald:  23  24 "We are looking anxiously for your report as to  25 Indian titles both within Manitoba and without;  26 and as to the best means of extinguishing the  27 Indian titles in the valley of the  28 Saskatchewan.  Would you kindly give us your  29 views on that point officially and  30 unofficially.  We should take immediate steps  31 to extinguish the Indian title somewhere in the  32 fertile belt in the valley of the Saskatchewan  33 and open it for settlement."  34  35 And he talks about -- and his last sentence:  36  37 "I have a strong idea that in order to relieve  38 you from your numerous and harassing duties  39 that a special commissioner to deal with Indian  40 treaties should be appointed."  41  42 There was no equivalent concern or direction to  43 officials in British Columbia either before or after  44 British Columbia joined Canada on July 20th, 1871.  45  46 I just pause there.  While the actual union didn't  47 take place until that date in 1871, the negotiation 28170  Submissions by Mr. Goldie        1 and settlement of the  Terms of Union with British  2 Columbia had taken place only a month before the  3 Orders in Council which Sir George Cartier had signed,  4 and the letter that Sir John A. Macdonald wrote to the  5 Lieutenant Governor and the Northwest Territories, of  6 course, took place in the year in which the Terms of  7 Union with British Columbia were under consideration  8 with all concerned.  9 THE COURT:  Mr. Goldie, is there a dichotomy that I haven't  10 fully grasped in Manitoba as to whether the  11 constitutional provisions respecting Indians applied  12 or did not apply to Metis, or was it assumed that the  13 responsibility of the Dominion extended to the Metis?  14 MR. GOLDIE:  I don't know whether at that time they were  15 regarded in the same light as what I'll call the full  16 blooded Indians.  In fact, at some point the Metis  17 were to be given a choice, whether they wished to live  18 with the band -- with a band that they identified with  19 or whether they wished to be given script for land  20 independently.  But certainly at this time there were  21 two separate -- two separate modes of treatment.  The  22 Metis, who were numerous and very influential in the  23 Province of Manitoba, were specifically referred to in  24 the -- in the Manitoba Act.  The Indians were less  25 specifically referred to, but they -- Canada had --  2 6 had given an undertaking to the Hudson's Bay Company  27 that it would, so to speak, ensure that there were no  28 claims made.  That would include claims for title.  29 THE COURT:  I'm just wondering if it was thought at the time  30 that 91(24) applied or didn't apply to Metis.  31 MR. GOLDIE:  I don't think it did, my lord.  There's — there  32 was -- the Dominion Government kept in its hand all  33 public lands, but it obtained Parliamentary sanction  34 for setting aside 1,400,000 acres for the Metis.  If  35 it was -- if it was acting under 91(24), it wouldn't  36 have required Parliamentary sanction, in my view.  37 THE COURT:  That would be executive responsibility, would it  38 not?  39 MR. GOLDIE:  Yes.  And, in fact, when it came to -- to dealing  40 with the numbered treaties, the Dominion purported to  41 set aside reserves and to deal with the Indians in a  42 way that -- at that time it wasn't dealing with the  43 Metis.  But there was -- in some cases there were very  44 strong links between the Indians and Metis, in other  45 cases not -- not to the same extent.  46 THE COURT:  You say that Canada retained control of waste land  47 in Manitoba in the Northwest Territories and -- 28171  Submissions by Mr. Goldie        1  MR. GOLDIE:  Yes.  2 THE COURT:  In the Northwest Territories and Manitoba.  3 MR. GOLDIE:  Yes.  Yes.  4 THE COURT:  Until —  5 MR. GOLDIE:  1930.  6 THE COURT:  Yes.  All right.  7 MR. GOLDIE:  The — the — yes.  And I make reference to that  8 later on when I speak about Ontario and Quebec.  9  10 In paragraph 51 I note that there was no  11 equivalent concern or direction to officials in  12 British Columbia either before or after British  13 Columbia joined Canada.  However, the Governor of  14 British Columbia was concerned about the future  15 position of stipendiary magistrates who, in addition  16 to their other duties, acted as Indian agents in the  17 colony.  He wrote to the Governor General on November  18 22, 1870.  Before reading this, I remind your lordship  19 this was a matter that was raised by Musgrave in his  20 minutes of instruction to Trutch of May the 9th on the  21 eve of the negotiations and then in this particular  22 document to the Governor General of Canada, he says:  23  24 "As the supreme government of the Colony, as  25 well as the administration of all affairs  26 relating to the Indian tribes, will rest with  27 the Dominion, I regard it as of the greatest  28 importance to the tranquility of the province  29 and the success of the Union, that these  30 officers should be officers of the Dominion and  31 not be transferred to the control or caprice of  32 local party government, who, through mistaken  33 motives of economy, by the substitution of or  34 unpaid irresponsible magistrates, or some such  35 policy, might entail upon the Government at  36 Ottawa an amount of trouble and expense not  37 easily to be computed."  38  39 So that in the same month that Sir John A.  40 Macdonald was writing about title to the Lieutenant  41 Governor of Manitoba, the Governor General, who would  42 no doubt pass it on to the cabinet, was receiving  43 communication from Governor Musgrave his concern with  44 respect to the administration of the affairs relating  45 to Indian tribes, the status of the stipendiary  46 magistrates who had been the colony agents, amongst  47 other things. 28172  Submissions by Mr. Goldie        1 On December 20th,  1870, the Lieutenant Governor of  2 Manitoba sent to the Dominion his observations  3 respecting the disposal of Crown lands in the province  4 in accordance with his instructions.  He first  5 described and discussed the lands in respect of which  6 the Indian title had been extinguished, that is small  7 areas of land along the Red and Assinniboine Rivers  8 which had been the subject of Lord Selkirk's disputed  9 1817 Treaty.  He next listed other lands, including  10 the half-breed grant, which would be excluded from  11 lands subject to survey and disposal.  Finally, he  12 discussed the merits of survey and disposal schemes.  13 He also referred to the cost of extinguishing Indian  14 title and to the possibility of performing preliminary  15 surveys prior to extinguishment.  16  17 Archibald viewed with favour certain U.S.  18 provisions for the survey and disposal of public lands  19 appending several sections of an 1841 U.S. statute to  20 his report.  Section 10 of the U.S. statute did not  21 admit of settlement on public lands to which Indian  22 title had not been extinguished.  Now, that, my lord,  23 is an important point because that turns up in  24 subsequent Dominion Lands Act provisions and was the  25 means of ensuring that there be no settlement prior to  26 extinguishment and also exempted from its operation  27 Indian reserves and certain other lands acquired by  28 Indian treaties.  And there was a proviso in an Act to  29 establish the Territorial Government of Oregon to the  30 same effect.  31  32 It will be seen that in 1872 the Dominion made  33 similar provisions in its first statute relating to  34 the regulation and administration of Dominion lands,  35 which would include all of the waste or vacant lands  36 and the province of Manitoba and the North Western  37 Territories.  38  39 Arrangements for making land cession treaties with  40 Indians in Manitoba and the Northwest Territories were  41 being pressed forward at the same time.  On 19  42 December 1870, Mr. S.J. Dawson, a surveyor and  43 engineer familiar with the country between Lake  44 Superior and the Red River Settlement, addressed a  45 long and detailed memorandum to Langevin, Canadian  46 Minister of Public Works, concerning the negotiation  47 of a treaty for the cession of the territorial rights 28173  Submissions by Mr. Goldie        1 of the Saulteaux  Indians who occupied lands "on the  2 line of route now being opened between Lake Superior  3 and the Red River Settlement".  4  5 On April 14th, 1871, Sir John A. Macdonald wrote  6 to Sir Francis Hincks, Minister of Finance, about the  7 details of arrangements then being made for "payments  8 to Indians in the North West for the right of way or  9 for the surrender of lands..."  Arrangements for such  10 payments were approved by Dominion Order in Council.  11 Now, that should be Exhibit 1201-1, my lord, of 2.  12  13 Dawson's report, along with copies of an April 25,  14 1871 Dominion Order in Council appointing the first  15 treaty commissioners -- and stroke out the words "and  16 their instructions", Exhibit 1201-1, Tab 42, if your  17 lordship would just take those out.  It's the Order in  18 Council -- was sent to the colonial office by the  19 Governor General on May 17th, 1871.  20  21 So there was -- it is clear that the Dominion had  22 embarked upon the first steps towards the treaties on  23 the Prairies.  And this, of course, was before the  24 Terms of Union had been approved by the Imperial  25 Government.  The Terms of Union with British Columbia  2 6 had been approved by the Imperial Government and the  27 Imperial Government was receiving information with  28 respect to the situation on the Prairies.  29  30 The Order in Council, instructions, and many other  31 of the documents relating to the numbered Treaties 1  32 and 2, which were concluded in August of 1871, were  33 printed in the Report of the Indian Branch of the  34 Department of the Secretary of State for the Provinces  35 for 1871.  36  37 This report also referred briefly to British  38 Columbia, which had become a province on July 20,  39 1871, all the necessary steps having been taken  40 earlier in the year.  And the chronological sequence  41 is the terms were approved in British Columbia on  42 January 20th, 1871 and adopted an Address to Her  43 Majesty asking that British Columbia be admitted into  44 Canada.  45  46 The Governor General in February 27th, 1871  47 presented to the House of Commons a collection of 28174  Submissions by Mr. Goldie 1            "papers relative to the  proposed union of British  2 Columbia with the Dominion of Canada", including the  3 Address to the Queen from the Members of the  4 Legislative Council of British Columbia.  These were  5 printed as Sessional Paper Number 18 of 1871.  6  7 I interject, my lord, that Sessional Paper Number  8 18 contain many of the despatches and letters leading  9 up to the negotiations of June 1870.  In other words,  10 they provided a background to the debate which took  11 place in the House of Commons in March of 1874, to  12 which I now refer.  13  14 Debate on the proposed terms was opened by Sir  15 George Cartier in the House of Commons.  Concerning  16 Term 13, he said:  17  18 "... a certain portion of the public lands had  19 been reserved for the Indians, and the only  20 guarantee that was necessary for the future  21 good treatment of the Aborigines was the manner  22 in which they had been treated in the past."  23  24 Now, that, my lord, was stated by somebody who  25 knew all about the claim of -- or the concern with  26 respect to aboriginal title in -- on the Prairies and  27 had signed Orders in Council relating to it and  28 participated in the negotiations for the acquisition  29 of Rupert's Lands in which aboriginal title was raised  30 explicitly on a number of occasions.  31  32 Then on April the 1st, 1871 the House of Commons  33 adopted an Address to the Queen similar to that  34 adopted earlier by the Legislative Council of British  35 Columbia.  36  37 The Senate of Canada followed suit on April the  38 5th, 1871.  39  40 Officials in the colonial office were kept  41 informed of the legislative progress of the terms,  42 which they were confident would be approved.  43  44 The Queen approved the "terms and conditions set  45 forth" in the Addresses from the Legislative Council  46 of the Colony of British Columbia and from the House  47 of Commons and Senate of Canada by Imperial Order in 28175  Submissions by Mr. Goldie        1 Council dated May 16,  1871, which set July 20th as the  2 date upon which the colony of British Columbia would  3 be admitted.  4  5 My lord, my submission is that the Government of  6 Canada and the Government of the United Kingdom were  7 aware of native claims to interests in land which were  8 generically called "aboriginal" or "native" or  9 "Indian" title at the time British Columbia entered  10 confederation, and were equally aware that so far as  11 the Colony of British Columbia was concerned, there  12 was no such title.  I add the word acknowledged.  13  14 Furthermore, there was a year in which all  15 concerned could take stock during which the question  16 of title was raised on a number of occasions, both in  17 respect of the Prairies and as I have noted in respect  18 of the new province of Ontario.  19  20 It is further submitted that it is necessarily  21 implicit in the Terms of Union that the Dominion  22 agreed that there was no aboriginal title in British  23 Columbia.  And I'm going to emphasize the fact that --  24 that there was nothing in the Terms of Union which  25 required extinguishment of title for railway purposes,  26 a subject-matter which was referred to by Sir John A.  27 Macdonald in the debates on the Rupert's Land  28 acquisition on March -- May of 1870.  29  30 And I say after July 20th, 1871 it was, of course,  31 always open to Canada to negotiate land cession  32 agreements with Indians in British Columbia should it  33 decide to do so for policy reasons - as it did with  34 Treaty 8.  35  36 My lord, that is the --  37 THE COURT:  Well, is that an accurate statement of your  38 position, Mr. Goldie, as it did with Treaty 8?  Are  39 you saying Treaty 8 was a policy decision and not a  40 recognition of the same right that seems to have been  41 discussed so freely in relation to union with  42 Manitoba?  43 MR. GOLDIE:  The — the basis for my statement is the Order in  44 Council -- the Dominion Order in Council, and it -- it  45 refers only to the anticipated difficulty that might  46 be experienced by people who are going after gold  47 discoveries and also to a concern over relations 28176  Submissions by Mr. Goldie        1 between people at  Lesser Slave Lake and the police.  2 There are about three or four points that are raised  3 by the commissioner of the mounted police by the  4 report of the then Superintendent General to the  5 Cabinet, none of which refer to the extinguishment of  6 Indian title as a reason for it.  7  8 Now, my lord, I am saying that Treaty 8, however,  9 for the most part was within the area that was subject  10 to Canada's undertaking to the Hudson's Bay Company of  11 22nd of March, 1869, I guess it was, that it would  12 save harmless the Hudson's Bay Company from any claim  13 made by Indians.  And that, as we will see, was  14 considered at least by the -- some officials of the  15 Dominion to be the reason for the numbered treaties.  16  17 My lord, before going to Part II, may I go back to  18 the question of the extent of the Hudson's Bay's  19 territories?  2 0 MR. RUSH:  As claimed.  21 MR. GOLDIE:  By whom?  22 MR. RUSH:  Well, that's what it says on this map, as claimed by  23 the Hudson's Bay.  24 MR. GOLDIE:  Yes.  Well, what else?  25 The -- your lordship asked me if the Peace River  26 block was within the territory owned by the -- or  27 claimed by the Hudson's Bay Company.  28 THE COURT:  I wasn't limiting it to the Peace River block; the  29 Peace River area generally.  30 MR. GOLDIE:  Yes.  It is, of course, east of the Rockies.  31 THE COURT:  Yes.  32 MR. GOLDIE:  And it is in British Columbia, because the border  33 between British Columbia and the other territories  34 takes off from the Rockies and goes up --  35 THE COURT:  Yes.  36 MR. GOLDIE:  — 123rd.  But —  37 THE COURT:  And it's in the drainage area of the Peace which  38 flows into the Mackenzie.  39 MR. GOLDIE:  Into the Mackenzie.  40  41 Now, I'm going to hand up to your lordship what is  42 AGBC 26A, which is a -- a map that was printed in 1857  43 at the time of the select committee hearings on the  44 Hudson's Bay Company.  The first thing I note is that  45 the greenish tint is the drainage area of the Hudson's  46 Bay, and that's Rupert's Land in its May 1670 Charter  47 sense. 28177  Submissions by Mr. Goldie        1  MR. RUSH:  In Canada above the  49th.  It's not correct to say  2 that it's the drainage area.  It goes below the 49th.  3 THE COURT:  The drainage area of the Hudson's Bay.  4 MR. RUSH:  Yes, my lord.  5 THE COURT:  Does it?  I guess it does.  6 MR. GOLDIE:  It goes marginally below the 49th.  My lord, I'm  7 referring to the map "Lakes, Rivers and Glaciers",  8 which shows drainage areas in Canada.  And it is  9 pretty close to that map.  And there is a very small  10 portion of it which might -- which drops below the  11 49th parallel.  12 MR. RUSH:  Dr. Farley did it and that map shows it quite well.  13 MR. GOLDIE:  Yes.  I think it does.  The — the area that was  14 carved out of the western part of British North  15 America or British Columbia is very difficult to  16 discern on that map, but it's -- it is identified as  17 Caledonia.  18 THE COURT:  Yes.  19 MR. GOLDIE:  And it will be seen, my lord, that that area to the  20 north -- I shouldn't say that area because that  21 implies I'm referring to British Columbia.  I'm  22 referring to the area north of what became British  23 Columbia, and that is drained by the Pelly or Yukon  24 River plus rivers flowing into the arctic, and there  25 appears to be at least one which drains through what  26 is marked on that map as Russia Alaska.  27 THE COURT:  Well, the area that's claimed by the Hudson's Bay  28 Company on this map is the area in green, is it?  29 MR. GOLDIE:  That was the original Rupert's Land.  30 THE COURT:  Yes.  And the red areas are Her Majesty's other  31 territories, are they?  32 MR. GOLDIE:  Her Majesty's other territories.  The Hudson's Bay  33 Company possessed an exclusive right to trade in some  34 of them.  35 THE COURT:  Yes.  Thank you.  36 MR. GOLDIE:  37 Q   My lord, I'm turning to Tab Roman II.  And the heading  38 of this is Indian land matters from the date of union  39 to the end of Sir John A. Macdonald's first  40 administration.  That is from July 20th, 1871 to  41 November 5th, 1873.  My lord, if I can just interject  42 and give your lordship a slight sketch of what is  43 being dealt with in this section.  The highlights of  44 the period, apart altogether from Macdonald's  45 resignation over the railway -- so-called railway  46 scandal which terminated his ministry, would, in my  47 submission, be first a visit by Langevin to B.C. in 28178  Submissions by Mr. Goldie        1 September, 1871, which  led to a long report of his;  2 second, the appointment of a Dr. Powell, as Indian  3 Superintendent of B.C.; third, the fire at  4 Kitseguecla, about which your lordship has heard a  5 good deal; and the apprehension of difficulties in the  6 Chilcotin area over a railway survey to the head of  7 Bute Inlet; fourth, there was the creation of boards  8 of Indian commissioners, one for British Columbia and  9 one for Manitoba, the Northwest Territories.  And,  10 finally, there was the acknowledgement on the part of  11 the Dominion that B.C. was free to alienate lands  12 without the restraint on alienation in Term 11 and the  13 two-year period stated in that term expired.  Those  14 are the things that occurred in this period.  15  16 And I turn now to the summary itself.  I say in  17 paragraph 1 that while Helmcken and his fellow  18 delegates had been told in June of 1870 that the --  19 while the Colony's Indian policy was better than the  20 Dominion's in some respects, what policy the Dominion  21 would apply would remain for the future.  22  23 However, soon after British Columbia's admission  24 to union on July 20th, 1871, Canada's Minister of  25 Public Works, Hector Langevin, was sent out with the  26 mission of acquiring knowledge about the new province  27 and its requirements.  He reported his findings and  28 recommendations in a report printed as a Session Paper  29 of Parliament in 1872.  My lord, that -- that is in  30 the next yellow binder.  31 THE COURT:  Am I finished with this one?  32 MR. GOLDIE:  We're finished with this one, my lord.  There are  33 many fascinating documents in it, my lord, and I have  34 skipped over them very quickly.  35 THE COURT:  I'm looking forward to meeting them all.  36 MR. GOLDIE:  The report of Langevin is found under Tab Roman  37 II-2.  I should say the excerpt from it is found under  38 Tab II-2.  It contains one section and several  39 appendices relating to Indians.  The Indian session,  40 pages 23 to 31, incorporated a lengthy memorandum by  41 Chief Justice Begbie describing his understanding of  42 Indian land matters in the province.  He wrote in  43 part:  44  45 "I am not aware of any treaty having been made  46 with any tribe on the mainland.  I believe that  47 some sort of arrangement as, binding in honour 28179  been  made  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 as a treaty, has  at different times  with different tribes in Vancouver Island.  I  am not aware that it has been reduced to  writing; I believe it has generally (where it  exists) been in the form of a declaration of  intentions by the local government.  Reserves have been laid out both here and  on the mainland, in the vicinity of tribal  families, of land reserved for their use; but I  am not aware of anything in the nature of a  treaty.  No general treaty would be possible,  for there are a vast number of tribes, mutually  more jealous and unintelligible than are the  whites to them.  They are in that state of powerlessness and  respect for the superior power, numbers, and  acquirements of the governing race, that any  arrangements which that race would,  consistently with self-respect and humanity,  think proper, would readily be adopted by the  native.  Their chief anxiety is always about their  reserves of lands which, perhaps necessarily,  have not always been made in accordance with  their wishes"...  At the end of his memorandum, the Chief Justice  noted that Indians in British Columbia were  "exceedingly well disposed" to "the government and to  the authorities".  Of course, Begbie was mistaken in thinking that  what he called "some sort of arrangement, as binding  in honour as a treaty" with Indians on Vancouver  Island had never been written down, but his ignorance  of the Hudson's Bay Company's written agreements with  Indians there strongly reflects the fact that, in  neither of the separate Colonies, nor in the united  colony of British Columbia was there a government  policy to enter into treaties with the Indians.  Langevin declined to express an opinion on what  policy should be adopted towards Indians in British  Columbia.  Instead, in a section headed "Their  Treatment, Present and Future", he referred to two  documents appended to his report.  One was Trutch's  January 1870 memorandum (to which reference has 28180  Submissions by Mr. Goldie        1 already been made) and  the other was a letter from the  2 Catholic Bishop of British Columbia.  3  4 With respect to aboriginal title, the two  5 appendices pointed in opposite directions.  Trutch's  6 memorandum, of course, said:  7  8 "... the title of the Indians in the fee of the  9 public lands, or any portion thereof, has never  10 been acknowledged by government, but on the  11 contrary, is distinctly denied."  12  13 The Bishop, on the other hand, recommended that  14 treaties should be made with the Indians to extinguish  15 their title, although he disparaged the suggestion  16 that the United States' reservation system be adopted.  17  18 That, my lord, appears from -- from the section of  19 the -- of the Langevin report, which is under Tab 3.  20 And it is the third page in, but which is actually  21 page 153 of the document.  And Appendix AA is -- is  22 Trutch's 1870 memorandum.  Appendix BB is a letter  23 from the Bishop of British Columbia to Langevin.  And  24 he says in the first -- or the left-hand column after  25 acknowledging the interest that Langevin's visit has  26 aroused, he says in the fourth paragraph:  27  28 "With regard to the system which might be  2 9 adopted by the government in connection with  30 the Aborigines, opinion is divided; some  31 persons speak of compelling the Indians of this  32 Province, to collect on certain general  33 reserves which would be set apart for them ad  34 hoc; if I do not mistake, that is the system  35 which the Americans have adopted in their  36 dealings with the Indians who inhabit the  37 territory bordering upon this Province."  38  39 And he says :  40  41 "I am astonished, sir, that those who know, or  42 who have been in a position to know the  43 deplorable consequences of such a system, can  44 be desirous of seeing it adopted and carried  45 into operation in British Columbia."  46  47 And then in the last paragraph he makes reference to 28181  Submissions by Mr. Goldie 1            the cost of the  American system.  He says:  2  3 "It is an historical fact that the system  4 adopted by the Americans in their relations  5 with the Indians has cost them millions of  6 dollars, and has been productive of barely a  7 single good result."  8  9 And then he goes on to speak in terms of his own  10 views.  At the top of the right-hand page he begins  11 with these words:  12  13 "To attain this most desirable end, it would be  14 sufficient, it appears to me:  1st.  That the  15 Federal Government should set apart in each  16 Indian village, a reserve of land proportionate  17 to the number of the inhabitants.  2nd.  That a  18 treaty should be made with the Indians for the  19 extinction at the earliest possible period of  20 their titles to their lands.  3rd.  That the  21 sum of money to be allowed to the Indians by  22 the government should be applied to supplying  23 them, annually, either with agricultural  24 implements and others such as axes, large saws,  25 planes, et cetera, or with clothing and  26 blankets as they may require and select."  27  28 So I say that Langevin's set forward two exactly  29 opposite points of view.  He -- under the heading  30 "Treaties with the Indians" -- I'm back in my  31 summary -- Langevin confirmed that there had been what  32 he termed "treaties" on Vancouver Island, but none  33 appeared to have been made with Indians on the  34 mainland.  35  36 Appended to his report were copies of two of  37 Douglas' 1850 agreements and a list of all of the  38 Vancouver Island transactions under the heading  39 "Return of Treaties" made Hudson Bay Company with  40 Indian tribes showing lands conveyed and sums paid.  41  42 Mr. Langevin was not content to accept Begbie's  43 recollection that nothing had been written down.  He  44 also appended British Columbia's 1870 Land Ordinance.  45  46 So I say in paragraph 4 that the Dominion was thus  47 presented with two distinct policy choices with 28182  Submissions by Mr. Goldie        1 respect to aboriginal  title in British Columbia:  It  2 could choose to recognize and extinguish it by  3 entering into treaties with the Indians, or it could  4 follow the long-established colonial policy -  5 described by Begbie and Trutch - of reserving lands  6 for their use.  The latter course would require  7 nothing more than the implementation of Term 13.  8  9 I say that Trutch's January 18 --  10 THE COURT:  Mr. Goldie, didn't the Archbishop also include  11 setting aside some lands for their villages?  12 MR. GOLDIE:  Oh, yes.  Yes, indeed.  He put it -- he put the two  13 things together.  This is on page --  14 THE COURT:  Is his suggestion and Begbie's so different?  15 MR. GOLDIE:  Well —  16 THE COURT:  One recognizes title and says recognize their title  17 and make a treaty and the other says recognize their  18 occupation and set it aside for them.  19 MR. GOLDIE:  Yes.  I think they're at one at recognizing actual  20 occupation.  21 THE COURT:  Yes.  22 MR. GOLDIE:  The villages.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  But the Bishop goes on to say -- and he puts it in  25 sequence, my lord.  He says, first, that the federal  26 government should set a part in each Indian village a  27 reserve of land proportionate to the number of  28 inhabitants; second, that a treaty should be made with  29 the Indians for the extinguishment for the earliest  30 possible period for titles to their lands.  Now, it's  31 not quite clear whether he -- he equates the two as  32 referring to the same geographic feature, but he has  33 opened his discussion by stating that -- in the first  34 page, he says:  35  36 "With regard to the system which might be  37 adopted by the Government in connection with  38 the Aborigines, opinion is divided; some  39 persons speak of compelling the Indians of this  40 Province to collect on certain general  41 reserves."  42  43 And he says he doesn't like that idea.  But what I'm  44 getting at, my lord, is that there is no -- there is  45 no doubt that the Bishop is raising the question of  46 title.  47 THE COURT:  Yes.  That's the difference between them. 28183  Submissions by Mr. Goldie 1  MR. GOLDIE:  That's the  difference between them.  And that  2 Trutch is denying that they have an interest in the  3 fee, which inferentially, of course, denying the need  4 for a treaty.  5 THE COURT:  All right.  Thank you.  6 MR. GOLDIE:  And I'm at paragraph 5, my lord.  7  8 Trutch's January 187 0 memorandum came to the  9 notice of Dominion officials by other means in 1871.  10 On 21 July, the day after Union, the Secretary of  11 State for the Provinces asked for the Lieutenant  12 Governor's views respecting allegations by the  13 Anglican Bishop of British Columbia that insufficient  14 funds were available for improving the education and  15 welfare of Indians in the Province, and asking for a  16 grant of money to be dispensed through missionary  17 societies.  Now, this -- this came, as I say, a day  18 after the province was admitted to the union.  19  20 The Lieutenant Governor's response of September  21 26, 1871 reflected the constitutional changes which  22 had been brought about two months earlier.  Trutch  23 wrote:  24  25 "I regard the charge of the Indians in this  26 Province as among the most critical and direct  27 responsibilities, as well as among the foremost  28 and most pressing duties of the Dominion, as it  29 has been of the colonial government; and I  30 rejoice in the hope and confident expectation  31 that the increased financial means which it may  32 be anticipated will now be appropriated for the  33 improvement of the condition of our Indian  34 population, may be so applied as to promote in  35 reality their welfare, spiritual and temporal."  36  37 And then he suggests that it was imprudent to delegate  38 it to the -- any expenditures or any monies to the --  39 to the -- to the missionaries.  40  41 And in partial answer to the Bishop's charges of  42 neglect, Trutch sent to the Secretary of State for the  43 Provinces a copy of his January 1870 memorandum which,  44 he noted, had been published in the Colonial  45 Intelligencer.  And he concluded:  46  47 "... that this system"... 28184  Submissions by Mr. Goldie        1 And I'm reading from  midway down in paragraph 9 of his  2 dispatch:  3  4 "... this system needs not change or reform,  5 but only increased means to bring out its real  6 merits and capabilities" and that the  7 responsibility "should not be devolved on  8 others."  9  10 Now, in April, 1872 Parliament enacted the  11 Dominion Lands Act, which applied only to Federal  12 Crown lands in Manitoba and the Northwest Territories.  13 And that, my lord, is referred to in -- under Tab 7.  14 And your lordship will see in paragraph 1:  15  16 "This Act shall apply exclusively to the lands  17 included in Manitoba and the Northwest  18 Territories, which lands shall be styled and  19 known as Dominion Lands; and this Act shall be  2 0 known and may be cited as the Dominion Lands  21                   Act."  22  23 And that was assented to on April 14th of 1872.  And  24 it, of course, contains section 42, which is on the  25 next page:  26  27 "None of the provisions of this Act respecting  28 the settlement of agricultural lands, or the  29 lease of timber lands, or the purchase and sale  30 of mineral lands, shall be held to apply to  31 territory the Indian title to which shall not  32 at the time have been extinguished."  33  34 Now, that was the means by which settlement was  35 controlled, because the provisions of the Act with  36 respect to settlement of agricultural lands, lease of  37 timber lands, or the purchase and sale of mineral  38 lands was -- were all controlled by the provisions of  3 9 the Act.  40  41 Now, I say with respect to that, that Canada's  42 policy of extinguishing Indian title in lands  43 purchased from the Hudson's Bay Company - a policy  44 born in Clause 14 of the company's Deed of Surrender,  45 and by that time already implemented in part by Canada  46 in Treaties 1 and 2, was given statutory support by  47 Section 42, which I have just read. 28185  Submissions by Mr. Goldie        1 Now, this provision  retained - with differing  2 section numbers and slightly varied text - in  3 succeeding Dominion Lands Acts until 1908, when it was  4 deleted because (according to the explanatory notes in  5 the amending Bill) -- I have read this to your  6 lordship sometime ago, but I emphasize it here:  7  8 "... it created a question as to whether the  9 Act applied to the Yukon territory where no  10 extinguishment of Indian title was ever  11 effected, for the reason that the same policy  12 was followed in regard to Indians there as was  13 followed on the Pacific coast.  The only object  14 conceivable for the provision was the making of  15 a statutory guarantee that the condition of the  16 deed of surrender from the Hudson's Bay Company  17 to the Dominion, which provided that the Indian  18 claim should be extinguished within the tract  19 ceded, would be carried out; but as the  20 territory covered by the deed of surrender has  21 been ceded by the Indians there is no longer  22 reason on that score for perpetuating the  23 section."  24  25 I have drawn to your lordship's attention before  26 that the Yukon territory, which was originally part of  27 the Northwest Territories, did not attract any of the  28 numbered treaties, was never included in a numbered  29 treaty until, I think, part of Treaty 11, 1921.  Very  30 small part of the Yukon was then included.  But in  31 1908, Section 42 and its descendants was removed from  32 the Dominion Lands Act.  33  34 And the same explanation was found in the Bill No.  35 21 for the previous session of Parliament.  36  37 I'm at paragraph 8.  It will be seen later that  38 the extinguishment provision in the Dominion Lands Act  39 was applied to Dominion lands in British Columbia,  40 only very briefly, from 1875 to 1880.  41  42 Now, it was applied during Mackenzie's  43 administration and removed -- well, Mackenzie's  44 administration and removed in Macdonald's second  45 administration.  46  47 It is sufficient for present purposes to point out 28186  Submissions by Mr. Goldie 1            that in 1872, when the  provision was first introduced,  2 it was not applied to Dominion lands in British  3 Columbia, even though by Clause 11 of the Terms of  4 Union the Dominion would acquire a large area of land  5 in the Province for the proposed Canadian Pacific  6 Railway."  7  8 And I won't bother reading to your lordship  9 paragraph 9.  It is the -- records the incorporation  10 of the Canada Pacific Railway Company, incorporated by  11 a statute in 1872, only two months after the Dominion  12 Lands Act went into force.  It incorporated by  13 reference the Railway Act, 1868, which -- in which  14 there was a section which required compensation to be  15 paid where a railway passed "through any land  16 belonging to or in possession of any Tribe of Indians  17 in Canada".  18  19 The C.P.R. Act gave the Governor in Council rights  20 of way "over any unimproved lands of the Dominion, or  21 any lands acquired for stations or other necessary  22 purposes of the Company, in the Province of Manitoba  23 or British Columbia, or in the North West  24 Territories."  25  26 And I say, page 61, it is submitted that with the  27 prospective application of the C.P.R. Act, 1872 to  28 lands in British Columbia which had not yet been  29 acquired by the Dominion under Term 11, and the  30 simultaneous failure to apply prospectively the  31 Dominion Lands Act, 1872 to the same lands, clearly,  32 in my submission, indicates that the Dominion did not  33 think it would be necessary to compensate Indians in  34 British Columbia for lands through which the railway  35 would pass, provided, of course, that the provisions  36 of Term 13 were met.  Now, we come to --  37 THE COURT:  Is it convenient to adjourn for lunch, Mr. Goldie?  38 MR. GOLDIE:  Yes, my lord.  39 THE COURT:  Thank you.  Two o'clock.  40 THE REGISTRAR:  Order in court.  Court stands adjourned.  41  42 (PROCEEDINGS ADJOURNED)  43  44  45  46  47 28187  Submissions by Mr. Goldie 1  2  3  4  5  6  7 I hereby certify the foregoing to be  8 a true and accurate transcript of the  9 proceedings transcribed to the best  10 of my skill and ability.  11  12  13  14 Kathie Tanaka, 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 28188  Submissions by Mr. Goldie        1  2 THE REGISTRAR:  Order in court.  3 THE COURT:  All right, Mr. Goldie.  I informed Mrs. Thompson  4 that 5:00 o'clock is satisfactory tonight.  5 MR. GOLDIE:  That would be helpful, my lord.  6 My lord, when I was at paragraph 48 of Section 1,  7 I had a note that there was a page to be added, and I  8 have done that.  I have given it to my friends, and I  9 have given it to -- it goes into the yellow book, my  10 lord.  I am not going to refer to it.  11 I was at page 61 of Part II, and having nothing  12 better to do over the noon hour than to be instructed  13 in such matters, I am informed that 22,000 square  14 miles is the equivalent of 14,080,000 acres.  15 THE COURT:  14,080,000?  16 MR. GOLDIE:  Yes.  And I have confirmed over the noon hour that  17 my aide-memoire, which is entitled "Territorial  18 Evolution of Canada", will provide in graphic form  19 what can be described in a wordy form "The Evolution  20 of the Northwestern Territories and the excursion of  21 the Colony of British Columbia in what is called the  22 Northwestern Territories".  23 But, my lord, of course, in the Act of 1821 the  24 granting of the Hudson's Bay exclusive trading  25 licence, the Crown reserved a right to erect a colony,  26 and it did in 1858.  And that was the colony of  27 British Columbia which was later extended by the  28 addition of the Stikene territory.  29 THE COURT:  But the 1821 exclusive trading licence was for a  30 limited term, was it not?  31 MR. GOLDIE:  It was for a limited term, but it was extended.  I  32 think it was to expire the second time around about --  33 THE COURT:  '65, I think?  34 MR. GOLDIE:  Yes, it was certainly later than 1858.  35 Now, if I could turn, my lord, to page 61 of  36 Section II.  I was just about to refer to paragraph  37 10, and here I am going to be referring to the first  38 time that British Columbia applied to the Dominion for  39 a relaxation of the restraint, the partial restraint  40 on alienation of Crown lands which imposed by virtue  41 of set Term 11.  42 The request was made in January 1872, which means  43 that the two-year term, of course, had not expired,  44 and the request was not granted by the Governor in  45 Council, which, however, promised to give a tentative  46 consideration to any sufficiently defined scheme which  47 the province proposed, and in my submission that the 28189  Submissions by Mr. Goldie        1 Dominion had considered  that the public lands in  2 British Columbia were subject to a trust or interest  3 other than that of the province within the meaning of  4 Section 109 of the Constitution Act, the Governor in  5 Council should not have invited further proposals from  6 the province.  7 Paragraph 11.  I make reference here to the  8 concern that was expressed with respect to the  9 surveying of the Bute Inlet, route of the railroad  10 through the Chilcotin, and this was before railroad  11 construction began in British Columbia, and  12 exploratory surveys were being made to determine the  13 best routes.  14 On June 24th, 1872, the Lieutenant-Governor of  15 British Columbia, that is to say Mr. Trutch, wrote to  16 Ottawa regarding rumours that the safety of a survey  17 party was threatened by Indians in the Chilcotin area,  18 who were reported to be dissatisfied because they had  19 been told that:  20  21 "... the lands in the District which they claim  22 as their own are about to be appropriated by  23 the white people without any consideration  24 being rendered to them in compensation therefor  25 and themselves restricted to today certain  26 limited reserves."  27  28 The Lieutenant-Governor recommended that a  29 Dominion Government send an agent to the district to  30 set the minds of the tribe at rest as to the  31 apprehension above alluded to.  32 Following the Dominion's authorization, the  33 Lieutenant-Governor appointed a Magistrate, Mr.  34 O'Reilly, to confer with the Chilcotin Indians.  35 And he recommended to the Dominion:  36  37 "... it certainly appears very desirable that an  38 authoritative settlement of the boundaries of  39 the lands to be reserved for the use of these  40 Indians should as soon as possible be made and  41 a definite understanding come to with them for  42 the determination of their claims to the  43 remainder of the District of country they  44 consider theirs.  But as I am not apprised of  45 the wishes of the government in this respect -  46 I have felt unable to include any commission to  47 that effect in my instructions to Mr. O'Reilly 28190  Submissions by Mr. Goldie        1 as it would  otherwise have been very desirable  2 to have done."  3  4 The Lieutenant-Governor enclosed with his 6th July  5 despatch a copy of the instruction he issued to  6 O'Reilly, and in part they read as follows:  7  8 "... for the purpose of conferring with the  9 Indians, making enquiries into the cause of  10 disturbances, and doing all you can to  11 establish friendly relations between them and  12 the white people who are desirous of settling  13 in their country.  14 You will be careful to explain to them, as  15 fully as possible, the changed system of  16 government consequent upon confederation, as it  17 regards the Indian population, that the care of  18 them now belongs to the Dominion Government,  19 who will at an early date appoint some person  20 to take charge of their affairs, and arrange  21 for their continued occupation and enjoyment of  22 such a portion of the country as maybe  23 necessary to them; and further that such agent  24 of the Dominion Government will take such other  25 steps as well be expedient to ameliorate their  26 condition ...  27 You will also explain to them the object  28 of the survey now being made from Bute Inlet  29 through the Chilcotin country ..."  30  31 My lord, that page number should be -70, not -69.  32 The document is a handwritten copy, photocopy of  33 the instructions to O'Reilly, and the page numbers are  34 in the upper right-hand corner.  They are at the top  35 of the page I should say.  36 Continuing -- two other enclosures in the  37 Lieutenant-Governor's despatch to the Dominion  38 authorities were copies of letters from Chief Justice  39 Begbie.  Now, the first one, my lord, is at --  40 referring to those page numbers at the top of the  41 page, 183776 to 89.  That's the first, Chief Justice  42 Begbie's letters.  And in that he recommended that  43 exclusive reserves should be laid out right away to  44 alleviate difficulties caused by a white man whose  45 pre-emption claim in the Chilcotin area encroached on  46 lands occupied by Indians.  Begbie indicated a  47 considerable amount of knowledge about the actual 28191  Submissions by Mr. Goldie        1 condition there, and he  blamed a white man by the name  2 of Salmon (?) for a good deal of it.  3 Now, the second letter is from page 183791 to 96,  4 91 to 96.  Now, in that letter, which was also an  5 enclosure in a despatch to the Dominion, the Chief  6 Justice advised that while the Chilcotin Indians  7 should not be allowed to think they could dictate  8 where whites could settle, the situation might be  9 improved if the survey party were to be delayed for a  10 short time.  11 My lord, my submission with respect to this July  12 6th, 1872 despatch with its enclosures, is that it  13 demonstrates, first, that the government of the  14 province, that is to say through the office of the  15 Lieutenant-Governor, was concerned to see the Dominion  16 take charge of Indian affairs in the province.  17 That the Lieutenant-Governor, Mr. Trutch, was not  18 hostile to the concept of agreements being made with  19 Indians respecting lands they claimed, but on the  20 contrary, urged the Dominion to consider such a step.  21 Third, that the Dominion, which was committed to  22 commencing construction of the railroad through  23 British Columbia no later than July 20, 1873, as  24 things then stood, was aware that Indian disturbances  25 threatened to disrupt the crucial surveys which had to  26 be completed before construction could begin.  27 The fourth, that the Dominion was on notice that  28 entering into treaties with Indians in British  29 Columbia was an option it could adopt, without  30 opposition from the province, at least from the  31 Lieutenant-Governor, if it chose to do so.  32 Fifth, that Mr. O'Reilly, whom the Dominion  33 Government had authorized be sent to the -- speak to  34 the Indians, was instructed to tell the Indians that  35 arrangements would be made for their continued  36 occupation and enjoyment of such a portion of the  37 country as might be necessary to them.  38 In my submission this was a continuation of the  39 old colonial policy.  40 And finally, that Chief Justice Begbie, who had  41 been in British Columbia since 1858, was concerned to  42 protect lands occupied by Indians, but did not  43 consider that they had any rights or proprietary  44 interests in large areas.  45 Now, following Mr. O'Reilly's assurances to the  46 Chilcotin Indians that they would not be disturbed in  47 the possession of their homes, and their hunting and 28192  Submissions by Mr. Goldie        1 fishing grounds, the  province reserved from settlement  2 all the lands in the area until instructions could be  3 obtained from Ottawa respecting Indian reserves.  4 That's under Tab 15.  And under that tab, my lord,  5 I have put pages 110, 111, 112 of the relevant  6 documents which are collect -- collect in Exhibit  7 1182.  And this is -- the first letter is from the  8 Provincial Chief Commissioner of Lands and Works to  9 the Superintendent of Indian Affairs, which would be a  10 federal official.  And he says:  11  12 "Shortly after your appointment as  13 Superintendent of Indian Affairs in November  14 last, I had the honour of drawing your  15 attention to the position of the Chilcotin  16 Reserve, and the desirableness of some steps  17 being at once taken to map out the Indian  18 Reservations, and throw the country open to  19 intending settlers.  20 On the 20th August, last, Mr. O'Reilly  21 reported to His Excellency the  22 Lieutenant-Governor the result of his  23 conference with the three principal Chilcotin  24 Chiefs.  They were then assured of protection,  25 and that their tribes would not be disturbed in  26 the possession of their homes, and their  27 hunting and fishing grounds; and that the  2 8 Dominion Government would provide them with the  29 means of education, and assist them in their  30 agricultural pursuits.  The nature, also, of  31 the Railway Survey, then initiated, was  32 explained to them ..."  33  34  35        And then the second -- the last paragraph:  36  37 "On the 26th of August, a despatch was forwarded  38 to the Dominion Government urging immediate  39 action, and yhe appointment of a Superintendent  40 with instructions to define the reservations  41 necessary.  It was also stated that all the  42 lands had been reserved for this purpose."  43  44 And then the subsequent correspondence is found on  45 page 111 and 112.  The letter from the Superintendent  46 of Indian Affairs, that is to say Dr. Powell to the  47 Chief Commissioner of Land and Works of December 6th, 28193  Submissions by Mr. Goldie        1 1872, acknowledges the  letter of the December 5th, and  2 then the -- that's followed by letter of 15th January,  3 1873 in which the then Chief Commissioner says:  4  5 "I have the honour to inform you that the  6 Government proposed taking off the reservation  7 on the Chilcotin Valley, and desire that you  8 will acquaint them officially with your views  9 as to the reservations ..."  10  11 And Powell replies on the same day.  He says in  12 the second paragraph:  13  14 "In reply I beg to state that I consider the  15 removal of the whole of the present reservation  16 would prove a fruitful source of Indian  17 difficulty, were no special Reserve provided  18 for the Native Tribes, and of danger to the  19 white settler who might be sufficiently  20 courageous to take up land in their country  21 previous to such Reserve being made."  22  23 And then he goes on to suggest a reserve of a  24 provisional character.  25 I am now back at paragraph 16 of my summary.  26 Besides Mr. Trutch's official communications with the  27 Secretary of State for the provinces, he carried on an  28 unofficial correspondence with Sir John A. Macdonald.  29 On July 16th, 1872 he wrote to Macdonald about several  30 matters, including Indian policy.  Adverting to the  31 recent difficulties at Kitsegukla and the delay  32 entailed by the necessity of obtaining authorization  33 from Ottawa to deal with Indian matters, he stressed  34 the urgency of appointing a Dominion officer to take  35 charge of Indian affairs in British Columbia.  And he  36 put it in these terms:  37  38 "... I consider the charge of our Indians the  39 most ticklish business and the gravest he is  40 responsibility of the Dominion Government  41 within this province ... Our Indians having  42 learnt that under confederation a new system  43 is to be adopted towards them are becoming  44 restless and dissatisfied at having to wait so  45 long for the good things which they are told  46 are in store for them -"  47 28194  Submissions by Mr. Goldie 1                I simply point out,  my lord, that the information  2 with respect to the changes in the administration and  3 the change in the system was one that obviously had  4 become widespread throughout the country.  5 Paragraph 17.  Trutch wrote to Macdonald again in  6 October of 1872.  Now, this is, of course, after the  7 Chilcotin, and indeed after the Dominion had appointed  8 Dr. Powell to the post of Indian Superintendent for  9 British Columbia, and offered advice respecting the  10 treatment of Indians in British Columbia, estimated to  11 number between 40,000 and 50,000.  12  13 "... As to Indian policy, I am fully satisfied  14 that for the present the wisest course would be  15 to continue the system which has prevailed  16 hitherto only providing increased means for  17 educating the Indians - and generally improving  18 their condition moral and physical - The  19 Canadian system as I understand it will hardly  2 0 work here - We have never bought out any  21 Indian claims to lands nor do they expect we  22 should - but we reserve for their use and  23 benefit from time to time tracts of sufficient  24 extent to fulfill all their reasonable  25 requirements for cultivation or grazing - "  26  27  28 Then he goes on to say:  29  30 "If you now commence to buy out Indian title to  31 the lands of B.C. you would go back of all that  32 has been done here for 30 years past and would  33 be equitably bound to compensate the tribes who  34 inhabited the districts no settled ..."  35  36 My friend referred to that letter, and my -- the  37 only point I emphasize is that it is after he has had  38 the experience of the two incidents I have referred  39 to; namely, Kitseguecla and the Chilcotin matter.  In  40 both cases he is the Lieutenant-Governor who is  41 required on behalf of the Dominion to take a  42 personal -- take personal steps.  43 The prime minister replied privately to Trutch's  44 letter on December 27th, 1872.  45  46 "... I quite agree with you in your view as  47 expressed in your letter of 14th October last 28195  Submissions by Mr. Goldie        1 respecting  Indian matters generally, and I hope  2 to inaugurate a system for the management of  3 the Indians both in British Columbia and  4 northwest which will be satisfactory."  5  6 And he went on to outline his idea of constituting  7 three-member boards of Indian Commissioners to direct  8 general policy and management in Manitoba and the  9 Northwest Territories and in British Columbia.  10 I say by the end of 1872, no Dominion legislation  11 relating to Indians had yet been extended to British  12 Columbia, Manitoba, and the Northwest Territories,  13 although a draft Bill to that end was printed during  14 that year.  According to its preamble, it was:  15  16 "... desirable and expedient that uniformity of  17 system and practice under the sanction of law  18 should prevail in all Provinces of the Dominion  19 of Canada alike."  20  21 Now, that draft legislation is found under Tab 19,  22 and I emphasize here that it was no more than a draft,  23 but it did contain in the preamble what I have just  24 read.  And the first section states that:  25  26 "From and after the passing of this Act, the Act  27 cited in the preamble to this Act, and all  28 other statutory provisions now in force in the  29 Province of Ontario and Quebec relating to  30 Indian affairs shall be, and be held in force  31 in all the provinces and territories of the  32 Dominion of Canada, in respect to Indians,  33 Indian Lands, and Indian Affairs, and in so far  34 as the same are applicable and varied by this  35 Act, to all lands in any part of Canada, not  36 surrendered to the Crown, subject nevertheless,  37 to the provisions hereinafter made."  38  39 And Section 5 would have provided, and I quote:  40  41 "All lands in territory unsurrendered and  42 unconveyed to the Crown, by the Indians  43 claiming to own the same, shall be under the  44 special charge of the superintendent general of  45 Indian Affairs."  46  47 And then sections 15 and 16, which are on the 28196  Submissions by Mr. Goldie        1 third page over,  provides:  2  3 "In case of any encroachments upon lands  4 reserved or set apart, for any Indians, or upon  5 lands which may not have been surrendered and  6 ceded to the Crown; it shall be lawful ..."  7  Et cetera.  9  10 And 16:  11  12 "Lands required for railway or other Public  13 purposes which have been or may be taken for  14 such objects with the consent of the  15 Superintendent General of Indian Affairs, and  16 the Band or Body of Indians interested therein,  17 may be conveyed by Letters Patent on payment of  18 such just value as may be determined by the  19 Superintendent General, or if objection is made  2 0 to the amount of compensation demanded ... by  21 arbitration."  22  23 My lord, I say with respect to that, that this  24 draft legislation, if it had been enacted, would have  25 recognized aboriginal title.  And I say that upon the  26 basis of the sections I have read.  27 Section 1 made the Bill applicable to all lands in  28 any part of Canada not surrendered to the Crown.  29 Stipulated that all lands in territory unsurrendered  30 and unconveyed to the Crown, by the Indians claiming  31 to own the same, shall be under the special charge of  32 the Superintendent General of Indian Affairs, and  33 rendered invalid any deed, lease or other instrument  34 purporting to affect such lands.  35 Section 10, which I have not read, and I'll just  36 summarize it here, contemplated that treaties would be  37 made with Indians in Manitoba and Northwest  38 Territories; other sections protected timber, metals  39 and minerals in unsurrendered lands and provided for  40 redress in case of encroachment on unsurrendered or  41 unceded lands.  42 Section 16 required the Indians' consents where  43 lands were required to be taken for railway or other  44 public purposes.  45 This Bill was not enacted in 1872.  It was  46 reconsidered and rejected again in 1874, when Indian  47 legislation was finally extended to the provinces of 28197  Submissions by Mr. Goldie        1 British Columbia and  Manitoba.  That legislation was  2 silent as to aboriginal title.  3 Now, my lord, the 1872 Bill is of academic  4 interest because it was never enacted, but it is  5 instinctive, however, of an attitude which wasn't  6 remedied, if I may put it this way, until St.  7 Catherine's Milling.  It purported to deal with  8 provincially owned Crown lands in British Columbia,  9 and I say for this the Dominion lacked any power under  10 Section 91 of the Constitution Act.  11 Now, on the 3rd of January, 1873, the Indian  12 Superintendent for British Columbia was told that his  13 powers were limited by the laws of British Columbia  14 because no Dominion Indian legislation applicable to  15 the province had been enacted - although it was in  16 contemplation to pass a Bill having for its object the  17 applying to it such statutory provisions as may be  18 suitable for its Indian population.  19 So it would appear that by January 1873 it was not  20 any longer thought desirable and expedient by Sir John  21 A. Macdonald's government to have uniform Indian  22 policy in all of the provinces of Canada as had been  23 contemplated in the 1872 Bill.  Instead, it would  24 appear the policy would be tailored to suit local  25 circumstances.  26 I say it should be noted that all the laws of  27 British Columbia that were in force on July 19th,  28 1817, the day before Union, continued in force until  29 they were altered by the Parliament acting in  30 accordance with its constitutional powers.  Existing  31 Dominion statutes, even in matters which were strictly  32 within the scope of Section 91, had no force in  33 British Columbia until they were applied specifically  34 by Dominion legislation.  Any such act of Parliament  35 would impliedly repeal an inconsistent provincial  36 statute.  37 Now, my lord, that is taken from Sir John A.  38 Macdonald's letter to Trutch of October the 27th,  39 1871.  That is to say we are back now in the fall  40 immediately succeeding the Union of British Columbia  41 and Canada, and right down to the very bottom of the  42 page, the last four lines:  43  44 "All the laws of British Columbia as they  45 existed on the 19th day of July last, are still  46 in force there, except as they are altered by  47 the said chapter 13 and by chapter 17, ilitia."  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  28198  Submissions by Mr. Goldie        1 respecting the  And 5:  "You are right in supposing that the Dominion  Laws, even on matters strictly within the scope  of federal legislation, can have no force in  your province until applied to you directly by  legislation here.  There need not be an express repeal of any  Act or ordinance of yours.  An Act of the  Dominion Parliament on any subject within its  competence, will, by new enactment impliedly  repeal any provincial act which is inconsistent  with it.  Thus Chapter 17, already referred to,  makes the Militia Law of Canada applicable to  British Columbia, and it therefore impliedly  repeals all your acts and ordinances relating  to the militia which are inconsistent with its  provisions."  Now, in paragraph 23 I jump forward again, this  time into June of 1873.  The Governor in Council  approved an order establishing boards of Indian  commissioners to manage Indian Affairs in British  Columbia and in Manitoba and the Northwest  Territories.  This Order in Council recognized that the Indian  population on the west side of the Rocky Mountains and  along the coast is bordering on the Pacific was about  double the number on this side of the Rocky Mountains.  Because of the great distances from Ottawa and the  difficulty of communication, it was decided to leave  the management of Indian affairs to local officials,  subject to the supervision of the Superintendent  General in Ottawa.  Now, that was under Tab 23, and the page reference  there, my lord, should be 1 to 3, as opposed to 1 to  2.  And that pretty well paraphrases what I have  just -- what I just said pretty well paraphrases what  is found starting on page 1.  The total population in  the prairie province or what became the prairie  provinces and British Columbia, that is to say all  west of Ontario, was thought to be 68,000, of which  23,000 were east of the Rockies, and the balance in  British Columbia.  The duties -- turning back to my summary.  The 28199  Submissions by Mr. Goldie 1            duties and  responsibility of the Northwest Territories  2 and Manitoba were to:  3  4 "... suggest the general principles under which  5 the Indians are to be dealt with, arrange  6 earned the directions of the Superintendent  7 General all negotiations and Treaties with the  8 Indian tribes, and report from time to time to  9 the bases upon which all questions of general  10 policy in Indian Affairs should be settled."  11  12 A board with similar powers would be constituted  13 in British Columbia.  14 What they did was to more or less spell out the  15 situation in Manitoba, and then recommend that a board  16 with similar powers would be constituted in British  17 Columbia.  There was no necessary -- in my submission,  18 there was no necessary implication that the same  19 policies were to be employed, or that treaties must be  20 negotiated in British Columbia.  21 The Order in Council does not say that the B.C.  22 Board had the same powers; it contemplates only that  23 the powers would be similar.  24 The composition of the Boards was to be different  25 as well.  The Manitoba and Northwest Territories Board  26 would consist of the Lieutenant Governnor, the Chief  27 Officer of the Dominion Land Granting Department at  28 Winnipeg, and an Executive Officer to be styled the  29 Indian Agent, while in British Columbia, the Board  30 would consist of the Lieutenant Governor and two  31 subordinate commissioners, one Protestant and one  32 Roman Catholic.  33 The duties spelled out for the subordinate  34 officers were also different.  The Indian Agent in  35 Manitoba and the Northwest Territories would be the  36 executive officer and should carry out the  37 instructions of the Board and the orders of the orders  38 of the Superintendent General, while in British  39 Columbia the subordinate officers should be jointly  40 the executive officers, one to remain in Victoria, the  41 other to act in the field.  42 In the section of this summary dealing with  43 Mackenzie's administration, it will be seen that the  44 Department of Justice was instructed to omit the power  45 to negotiate treaties from the commissions which were  46 then being drafted for the British Columbia Board.  47 However, because of difficulties experienced both 28200  Submissions by Mr. Goldie        1 in British Columbia and  on the prairies, the Boards  2 never functioned as they were intended.  The Order in  3 Council under which they were established was  4 cancelled by the Governor in Council in December  5 1875 - during the period when the terms of reference  6 for the Indian Reserve Commission in British Columbia  7 were being arranged between the two governments.  8 That's in MacKenzie's administration, and I'll come to  9 that.  But the reasons explained in the cancelling  10 Order in Council had to do with both boards.  And that  11 is apparent from the Order in Council under Tab 2-24.  12 THE COURT:  When is the British Columbia Board established?  13 MR. GOLDIE:  When, my lord?  14 THE COURT:  Yes.  15 MR. GOLDIE:  I think it was — I was going to say 1874.  Yes,  16 February 9th, 1874 the composition of the British  17 Columbia Board was completed by the appointment of its  18 third member.  And the Board was in effect cancelled  19 in --  2 0 THE COURT:  1875.  21 MR. GOLDIE:  1875.  The cancelling Order in Council says that  22 the -- this is page 8 of the document.  23  24 "The arguments which existed in favour of the  25 abolition of the Indian Board for the north  26 west are in his opinion equally applicable to  27 British Columbia and from and after February  28 1st, 1876 they be rescinded, the Orders in  29 Council."  30  31 One of the last acts of Sir John A. Macdonald's  32 first administration, which was forced out of office  33 in November, 1873, was the release of Crown lands in  34 British Columbia from the restraint on alienation  35 imposed by Term 11.  The Order in Council of October  36 21st, 1874 recognized:  37  38 "That as the two years within which the  39 Government of British Columbia were, by the  40 terms of the Union of that province with  41 Canada, prevented from making any conveyance of  42 land, have expired there does not seem to be  43 anything now to prevent the government from  44 granting conveyances ..."  45  46 And I say implicit in this order is the  47 recognition there was no trust or interest other than 28201  Submissions by Mr. Goldie        1 that of the province to  be considered in lifting Term  2 11 restraint.  It is submitted that this Order in  3 Council would not have been approved had it been  4 considered that Section 109 of the Constitution Act  5 operated to restrain alienation of Crown lands in  6 British Columbia pending the extinguishment of Indian  7 title.  8 And I conclude this section by saying neither this  9 Order in Council nor any other document put into  10 evidence, except for the 1872 Bill, which was never  11 enacted, suggests that during the period from July  12 20th, 1871 to November 1873, the Dominion considered  13 that aboriginal title existed in British Columbia, or  14 that means had to be taken - either by the province or  15 by the federal government to extinguish such title.  16 To the contrary, the Dominion acknowledged that  17 British Columbia had complete liberty to take actions  18 which were wholly inconsistent with the existence of  19 aboriginal title in its Crown lands.  20 Now, the principal and obvious action which is  21 inconsistent is the alienation of lands.  22 Section III, my lord, deals with Indian land  23 matters in British Columbia during Alexander  24 Mackenzie's administration, November 7th, 1837 to  25 October 8th, 1878.  And in this is included -- in this  26 period is included the disallowance of the 1874  27 British Columbia Land Act and the establishment of the  28 Indian Reserve Commission.  29 THE COURT:  That's a federal commission.  30 MR. GOLDIE:  Well, that's the joint commission, my lord.  As  31 established, it consisted of a joint commission, in  32 the sense of jointly appointed, and then one appointed  33 by the province and one appointed by the Dominion.  34 And this came about as the means of resolving a  35 dispute which had been brewing for about -- from about  36 the fall of 1873, and which came to a head in the fall  37 of 1874.  And it was a dispute which centered around  38 the question of acreage for reserves.  The Dominion  39 wished to apply a uniform policy of 80 acres per  40 family.  The province's first reaction to that was  41 that there should be no more than 10, and then there  42 was a compromise of 20, and even then -- even that  43 went by the boards.  And it was a conflict which has  44 been referred to a number of times, but here I  45 endeavour to set stage for a bit greater detail.  46 Now, at first, and when I say first, I am talking  47 about commencing with November 7th, 1873, the course 28202  Submissions by Mr. Goldie        1 followed by Mackenzie's  administration was that set by  2 the Sir John A. Macdonald's administration.  3 In February 9th, 1874, the composition of the  4 British Columbia Board of Indian Commissioners, which  5 is the one we have just been talking about, was  6 completed by the appointment of its third member, Mr.  7 Lenihan, the others being Lieutenant-Governor Trutch  8 and Dr. Powell.  9 The Dominion Order in Council appointing Lenihan  10 reiterated the duties set out in the June 1873 Order  11 in Council for the Northwest Territories Board, among  12 which was to arrange all negotiations and treaties  13 with the Indian tribes, under the direction of the  14 Superintendent General.  The earlier Order in Council  15 had directed only that the British Columbia Board was  16 to have similar powers.  17 Now, I say in apparent recognition of the error in  18 the Order in Council appointing Lenihan, the  19 Superintendent General of Indian affairs, David Laird,  20 instructed an official of the Department of Justice,  21 where commissions for members of both boards were  22 being drafted, that no provision for negotiating  23 treaties was necessary for the British Columbia  24 commissioners because:  25  26 "... the rights of the Indians to the lands of  27 British Columbia have never been recognized by  2 8 the local government."  29  30 And that document, my lord, is under Tab III-3,  31 and there is a typed script preceding a photocopy of  32 the archival document.  And the memo is addressed to  33 Mr. Richardson, Department of the Minister of Justice,  34 and in my submission this is from Mr. Laird, because  35 that's what the initials appear to be, "DL".  He says:  36  37 "I have looked over the draft commission of the  38 Indian commissioners of Manitoba and the  39 Northwest which you handed me this morning and  40 I would respectfully suggest that in preparing  41 the Commission for the Indian Commissioners for  42 British Columbia.  It seems to me desirable to  43 modify the provisions of that Commission."  44  45 And then he goes on to state those.  He has  46 several reasons, and I won't read the first one.  Then  47 over the page: 28203  Submissions by Mr. Goldie        1  2 "Secondly, in the draft commission for M & N.W.  3 the commissioners are given power to negotiate  4 treaties with the Indians for the cession of  5 their lands."  6  7 And then there is the part which is set out in my  8 summary.  Now, back to my summary.  9 At the same time, the Dominion was reviewing for  10 possible disallowance Acts passed by the British  11 Columbia legislature during the previous year which  12 had been reserved as to their operation until the  13 expiration of the two-year restraint on alienation of  14 Crown lands in British Columbia imposed by Term 11.  15 And the Order in Council which reflects the  16 reservation and the legislation question is under Tab  17 III-4, and the second paragraph in the first page  18 reads, and I quote:  19  20 "The honourable the Minister of Justice to whom  21 said despatch with the Acts has been referred  22 reports upon the following acts as follows:  2 3 1.  An Act to amend the Land Ordinance  24 1870.  25 2.  An Act to amend the mineral ordinance  26 1869.  27 3.  An act to amend the gold mining  28 ordinance 1867 and the gold mining amendment  29 Act 1872."  30  31 He says:  32  33 "These acts are respectively reserved as to  34 their operation either ;by express enactment or  35 in effect until the 21st day of July 1873.  And  36 that date is evidently fixed as being at the  37 expiration of the period of two years by, which  38 under the terms under which British Columbia  39 entered the Union, lands were to be reserved by  40 the Government of British Columbia from sale  41 with a view to setting part such lands as are  42 requisite for the Canada Pacific Railway, as  43 such period of two years expired on the 21st  44 July the Province has the power to pass laws  45 and make other arrangements for the sale of  46 their lands and there is therefore no objection  47 for the passage of these Acts, and the minister 28204  Submissions by Mr. Goldie        1 recommends  therefore that they be left to their  2 operation."  3  4 Then he goes on to suggest that the province have  5 drawn to its attention the fact that it might cause  6 some inconvenience, however, if there were alienations  7 in the -- on the right-of-way.  8 And then at page 77 of my summary I say in the  9 second paragraph:  Far from raising any objection that  10 lands in the province were subject to a trust or  11 interest other than that of the province within the  12 meaning of Section 109 of the Constitution Act, 1867,  13 as would have been the case had they been burdened by  14 Indian title, the Minister of Justice noted only that  15 some practical inconvenience would eventually be  16 encountered, the kind that I have referred to.  17 And the report was approved in March of 1874.  And  18 that is similar to that given by the Dominion  19 Government under Sir John A. Macdonald's  20 administration.  21 Then I say in paragraph 5:  Increasing pressure  22 was brought to bear on the Dominion Government to  23 adopt a policy in British Columbia.  In April 1874,  24 the Minister of Interior, Mr. Laird, received a letter  25 from a British Columbia member of Parliament who  26 advised that:  27  28 "... the Indians in British Columbia were  29 beginning to complain that the Indians in the  30 North West Territory received an annual bounty  31 from the Dominion Government, and that they  32 received nothing ..."  33  34 And I understand annual bounty refers to the  35 annuity payments provided for in the numbered  36 treaties, of which three had by that time been  37 concluded with Indians in Manitoba and the Northwest  38 Territories.  39 And finally in May of 1874 a statement of the  40 policy which the government proposes to pursue towards  41 the Indians in British Columbia, particularly in the  42 matter of presents, was set out in an Order in Council  43 which reinforced Laird's February instructions to the  44 Department of Justice that no treaties would be  45 necessary in British Columbia.  Now, this Order in  46 Council, my lord, is one that I have referred to  47 beforehand, and it contains the paragraph that is set 28205  Submissions by Mr. Goldie        1 out in quotation marks:  2  3 "That it is assumed that the Government does  4 not contemplate giving the Indians of British  5 Columbia any compensation for their lands, as  6 has been done with the Indians of the North  7 West ..."  8  9 The Governor General, Lord Dufferin, signified his  10 approval of the Order, and appended this question:  11  12 "Why is a different system pursued in B.C. with  13 regard to Compensation to Indians from that in  14 the N.W. Territories?"  15  16 And I say and I submit that it is -- that the  17 answer which should have been given to the Governor  18 General's question is that no such compensation had  19 ever been made in British Columbia, and that the  20 Dominion was not obliged by any provision of the Terms  21 of Union, the Constitution Act, 1867, or any other  22 statutes or legal or equitable principle to institute  23 such a policy in British Columbia.  24 Now, I refer to four Dominion statutes that were  25 given Royal Assent just one week after this Order in  26 Council.  27 The most important of these was the Act which  28 applied Dominion Indian legislation to the provinces  29 of British Columbia and Manitoba.  And that Act is  30 found under Tab 7, and it contains a number of  31 provisions amending the Indian Act, and it contained  32 no provision respecting Indian title or  33 extinguishment, although by looking again at the 1827  34 Bill which was drafted for the same purpose as the  35 1874 Act, it is clear that such provisions had been at  36 least briefly considered in 1874.  37 Now, my lord, I am referring to that 1872 draft  38 Bill which I characterized as having, if it had been  39 enacted, would have recognized aboriginal title, and  40 it is clear there was also considered again in 1874  41 for the reasons that I note in paragraphs A and B of  42 my summary and page 80.  43 Now, returning now to the 1874 Indian Act which  44 extended the Dominion legislation respecting Indians  45 to British Columbia and Manitoba.  The definition of  46 "Indian" in Section 8 reads:  47 28206  Submissions by Mr. Goldie 1                  "An Indian is  hereby defined to be a person  2 within the definition contained in the  3 fifteenth section of the thirty-first Victoria,  4 chapter forty-two as amended by the sixth  5 section of the thirty-second and thirty-third  6 Victoria, chapter six, and who shall  7 participate in the annuities and interest  8 monies and rents of any tribe, band or body of  9 Indians."  10  11 Now, that imported into the definition of Indian  12 as someone who could only be receiving payments under  13 a treaty.  And I say that it was quickly recognized  14 that this definition was inapplicable to the Indians  15 in British Columbia, and so negated one of the stated  16 purposes of the Act.  17 An Order in Council was passed in August of 1874  18 authorizing a Proclamation to exempt Indians and  19 Indian lands in the Province of British Columbia from  20 Section 8, and:  21  22 "in as much as none such exist, in that Province  23 who participate in any annuities or interest  24 monies or rents."  25  26 Three other relevant Dominion statutes to which  27 Royal Assent was given at the end of May, 1874 were  28 first, the Canadian Pacific Railway Act, which  29 incorporated by reference the Railway Act of 1868, and  30 made provision for a number of matters, including the  31 grants of rights-of-way in British Columbia.  32 That should be Section 8, my lord, not Section 7.  33 It has already been noted that Section 9(37) of the  34 Railway Act required that Indian tribes be compensated  35 where a railway passed through any land belonging to  36 them or in their possession.  37 That an Act to amend the Dominion Lands Act, which  38 made a number of technical amendments, but left the  39 extinguishment section (42) of the 1872 Act unchanged.  40 And your lordship will recall that that was the  41 section that said unless title has been extinguished,  42 no settlement.  43 And finally an Act respecting the appropriation of  44 certain Dominion lands in Manitoba which appropriated  45 lands for the extinguishment of the Indian title of  46 half-breeds in Manitoba.  47 Now, my lord, in paragraph 10 I say:  Only days 28207  Submissions by Mr. Goldie        1 after these statutes  went into force, the Dominion, in  2 my submission, affirmed yet again that treaties would  3 not be necessary in British Columbia.  On June 8th Mr.  4 Trutch, Lieutenant-Governor, sent a telegram to the  5 Minister of the Interior, expressing concern that the  6 Dominion's failure to issue commissions and  7 instructions to the British Columbia Board of Indian  8 Commissioners would result in complications if  9 Superintendent Powell, who was to leave soon for the  10 Interior, undertook negotiation with Indians there.  11 Now, that tells us, my lord, that although the  12 board had been appointed, commissions had not been  13 issued, and Mr. Laird's response to that is -- the  14 first document is Trutch's telegram.  The second  15 document is Mr. Laird's response, and he states, and I  16 quote:  17  18 "Appointment with Indians at Kamloops must be  19 kept no treaties or special negotiations now  20 necessary.  Powell need not cause  21 complications.  Thought board would appoint  22 Powell visit coast and Lenihan Kamloops but not  23 then aware arrange might go at Kamloops."  24  25 I say in paragraph 11, the documents and statutory  26 enactments considered to August 1874 - made by both by  27 the Parliament of Canada and by the Governor in  28 Council under each of the first two Dominion  29 administrations, demonstrates, in my submission,  30 either explicitly or implicitly, one, that the  31 question of Indian title in British Columbia was  32 considered carefully on a number of occasions by the  33 Dominion Government and its officials in the  34 Department of Justice and Indian Affairs.  35 Now, what I have in mind when I say that is Mr.  36 Laird's memorandum to the Department of Justice about  37 the Commission, the wording of the Commissions of the  38 British Columbia Commissioners; the 1874 Dominion  39 Indian Act, which made no reference to title  40 whatsoever; the Proclamation exempting Indians from  41 the definition of Indian in that Act, the -- Mr.  42 Laird's response to Trutch's concern about Powell  43 going off to Kamloops; and finally the legislative  44 history of the Bill which would have required  45 consideration of aboriginal title, 1872 and 1874 Act.  46 That's what I had in mind there, my lord.  47 Number two, that the Dominion did not recognize or 28208  Submissions by Mr. Goldie        1 make any provision for  extinguishing aboriginal title  2 in British Columbia, while at the same time doing so  3 in Manitoba and the Northwest Territories.  That is,  4 treaties were busily being negotiated in the prairies,  5 while nothing of the kind was even contemplated in  6 British Columbia.  7 The Dominion saw no inherent contradiction in  8 applying different policies to meet different  9 circumstances.  10 And finally that Crown lands in British Columbia  11 were not considered by the Indians' guardian to be  12 subject to any trusts or any interest other than that  13 of the province within the meaning of Section 109 of  14 the Constitution Act.  15 And I have noted that the Dominion raised no  16 objection to the province resuming full alienation of  17 lands that had been restricted under Term 11.  18 Now, my lord, I come to the Dominion's 4th  19 November 1874 Order in Council.  And I should say at  20 this point that this is a very critical -- by critical  21 I mean it expressed criticism of the province in  22 relation to the acreage allotment for reserves.  It  23 was transmitted to the colonial office under cover of  24 a very strong despatch from the Governor General, and  25 it is one of the documents which is often referred to  26 as indicated, the niggardly policy of the province  27 with respect to reserves.  28 Paragraph 12 begins with the words:  The Dominion  29 Government wavered in its view over the course of the  30 next year, that is to say -- well -- however, no doubt  31 partly as a result of disagreements with the  32 Government of British Columbia about the  33 interpretation of Term 13 of the British Columbia  34 Terms of Union, and I set this out.  And the  35 dispute -- the details of the protracted dispute, the  36 acreage dispute between the governments about the  37 interpretation of Term 13 are largely irrelevant to  38 the issues of the case at bar.  However, a  39 consideration of some of the related documents is  40 necessary to an understanding of the full implications  41 of the 1875-76 agreement between the Dominion and  42 British Columbia governments by which the joint Indian  43 reserve commission was established.  44 Now, much of the correspondence and related Orders  45 in Council was printed in the 1876 sessional paper of  46 the legislature of British Columbia, entitled papers  47 relating to the Indian land question, Exhibit 1182. 28209  documents,  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 Some of the same  and others were printed by  the colonial office for its own use in May of 1875.  That is following receipt of the 4 November 1874  despatch and some matters which were connected with  that -- or said to be connected with that despatch,  primarily the disallowance of the B.C. Lands Act.  Now, the colonial office print, my lord, is under  Tab 111-13, and from time to time I will be referring  to that print, and when I do that, the extract of the  pages is under the appropriate tab, my lord.  Now, I say on page 85:  Although most of the  original documents have been found in the Department  of Indian Affairs, Privy Council, and other records in  the National Archives of Canada, or in Colonial Office  records, reference will be made, where possible, to  the documents as printed in the B.C. Sessional Papers,  Exhibit 1182, or in the Confidential Print.  However,  I should note here, an exception to that.  There  was -- there were some changes made in the wording of  the Order in Council, and when I come to that I am  going to make reference to the original documents  themselves.  Now, the background that we start with is on  September 23rd, 1874 at the request of the Dominion  Government Dr. Powell sent copies of his  correspondence with British Columbia officials on the  subject of Indian Reserves about which there were  several points of disagreement, mainly having to do  with the size of reserves to be allotted.  The page  reference for that number should be 19 to 33.  And  that's under that tab, and that's from the colonial  office printed.  Later in the fall of 1874 the Dominion received  other correspondence on the subject, including a clear  statement of the provinces view of Term 13:  "... that all that is 'reasonable and just' to  demand of the Provincial Government is that the  13th Section of the Terms of Union should be  faithfully observed.  Should the Dominion  Government be of opinion that concessions  beyond those provided for in the said section  are necessary it becomes the duty of that  government to make provisions accordingly."  That was a communication that Lord Dufferin  referred to adversely -- in an adverse way I should 28210  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 say.  And then I say:  This statement was written in  reply to Lenihan's 8 October 1874 letter with which he  had enclosed copies of letters written by two  missionaries expressing disappointment that Indians in  British Columbia would not receive the same treatment  as those in other parts of the Dominion.  The page  reference should be 37 to 43.  Another letter received in Ottawa in October 1874  was that written by Douglas, in which he outlined his  practise with regard to Indian reserves.  Dr. Powell  had written to him, and this was part of Douglas's  response.  And he said:  "... in laying out Indian Reserves, no specific  numbers of accused acres was insisted on.  The  principle followed in all cases was to leave  the extent and selection of the land entirely  optional with the Indians who were immediately  interested in the Reserve; the surveying  officers having instructions to meet their  wishes in every particular; and to include in  each Reserve the permanent village sites, the  fishing stations and burial-grounds,  cultivated land, and all the favorite resorts  of the tribes, and, in short, to include every  piece of ground to which they had acquired an  equitable title through continuous occupation,  tillage, or other investment of their labour.  This was done with the object of securing to  each community their natural or acquired  rights; of removing all cause for complaint on  the ground unjust deprivation of the land  indispensable for their convenience or support,  and to provide as far as possible against the  occurrence of agrarian disputes with the white  settlers."  As I say, that letter was written in 1874, Douglas  had been retired for something like 10 years, and he  died in 1877.  My lord, I think it would be fair to draw to your  attention the particular response to which -- the  letter to which Mr. Douglas was responding, which was  also found in the tab preceding the letter referred  to.  :  Tab 16.  MR. RUSH:  THE COURT 28211  Submissions by Mr. Goldie        1  MR. RUSH:  Yes, my lord, the  Powell request of October 9, 1874.  2 THE COURT:  All right.  I made a note of that.  3 MR. GOLDIE:  Thank you, my lord.  I say the language used by  4 Douglas in this letter is similar to that used by the  5 Hudson's Bay Company in its December 1849 instructions  6 to him regarding Indians lands on Vancouver Island  7 which in turn referred to the findings of the 1844  8 Select Committee of the House of Commons on the  9 affairs of the New Zealand Company, that aboriginal  10 people had a claim, not a proprietary interest, in  11 lands actually occupied.  In turn, those findings  12 reflected the experience in New Zealand to which  13 reference has been made.  14 I submit that Douglas's letter is inconsistent  15 with any assertion that his failure to extinguish  16 aboriginal title over most of Vancouver Island and in  17 all of the mainland was due to a lack of funds, and  18 not to policy considerations.  First, the passage from  19 Douglas's letter quoted in the paragraph above  20 recognizes possessory rights and note proprietary  21 rights, only in lands actually occupied and used.  22 Douglas's letter referred to the allotment of reserves  23 as grants and grants of lands, an inappropriate word  24 if it were considered that Indians already had title  25 or even a a proprietary interest in the lands.  26 Moreover, Douglas wrote that the title in the reserve  27 allotted should remain vested in the Crown so as to  28 inalienable by any of their own acts.  29 The first of these underlying passages recognizes  30 no title, past or present, other than that of the  31 Crown.  The restraints on alienation denies that the  32 Indian interest was similar to a title in fee simple,  33 one of the key attributes of which that it is freely  34 alienable.  Neither of the underlined phrases  35 consistent with the notion that the Indians had rights  36 in land which approached the incidents of ownership  37 recognized by Europeans.  These implications of  38 Douglas's 1874 letter do not appear to have been  39 considered in the steps which were subsequently taken  40 by the Dominion in its dispute with the province.  41 Now, Powell's reports and related correspondence  42 formed the base of a Dominion Order in Council dated 4  43 November 1874, to which was annexed a 2 November  44 memorandum of the Minister of the Interior, that is to  45 say Mr. Laird.  And that, my lord, is under Tab 18,  46 the first part being reproduction of the handwritten  47 despatch, and following the separator sheet is the 28212  Submissions by Mr. Goldie        1 print as it appeared in  the province's collection of  2 papers 1182 .  3 Now, two versions of that Order in Council were  4 printed.  The one sent to the --  5 THE COURT:  I think, Mr. Goldie, that perhaps before you start  6 with the two versions we will take the afternoon  7 adjournment please.  8 THE REGISTRAR:  Order in court.  This court stands adjourned for  9 a short recess.  10  11 (PROCEEDINGS ADJOURNED)  12  13 I HEREBY CERTIFY THE FOREGOING TO BE  14 A TRUE AND ACCURATE TRANSCRIPT OF THE  15 PROCEEDINGS HEREIN TO THE BEST OF MY  16 SKILL AND ABILITY.  17  18  19 LORI OXLEY  2 0 OFFICIAL REPORTER  21 UNITED REPORTING SERVICE LTD.  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 28213  Submissions by Mr. Goldie        1 (PROCEEDINGS RESUMED  PURSUANT TO SHORT RECESS)  2  3 THE COURT:  Thank you, Mr. Goldie.  Wait a minute.  Here's Mr.  4 Rush.  That's all right.  Go ahead.  5 MR. GOLDIE:  My lord, I'm at page 89 of my summary.  6 THE COURT:  Yes.  7 MR. GOLDIE:  And I am just about to deal with an episode which  8 originated with the Governor General himself and  9 resulted in two different versions of the order in  10 council.  One version was that which was sent to the  11 Province of British Columbia, and the other was the  12 version that was sent to the Colonial Office.  And if  13 your lordship would look at the bottom of page 89 I'll  14 indicate the differences and then I'll indicate to  15 your lordship how it came about.  16 THE COURT:  Well, why are they sending this sort of thing to the  17 Colonial Office at this stage?  18 MR. GOLDIE:  Well, the Colonial Office was the arbitor —  19 THE COURT:  Oh, yes.  20 MR. GOLDIE:  — In case of a dispute under Term 13.  21 THE COURT:  Yes.  All right.  It didn't have any other  22 responsibility, did they, the Colonial Office?  23 MR. GOLDIE:  Well, in 1874 the Dominion of Canada was still  24 technically subject to having its laws disallowed by  25 the -- by the United Kingdom government.  26 THE COURT:  And did the Colonial Office revise that?  27 MR. GOLDIE:  Well, the Colonial Office was the conduit through  2 8 which the communications flowed.  2 9 THE COURT:  All right.  30 MR. GOLDIE:  What was sent to the Lieutenant Governor of British  31 Columbia is in these words:  32  33 "When the framers of Terms of admission of  34 British Columbia into the Union inserted this  35 provision, Term 13, requiring the Dominion  36 Government to pursue a policy as liberal  37 towards the Indians as that hitherto pursued by  38 the British Columbia Government, they could  39 hardly have been aware of the marked contrast  40 between the Indian policies which had, up to  41 that time, prevailed in Canada and British  42 Columbia respectively."  43  44 Now, what went to the Secretary of State for the  45 Colonies was this:  46  47 "When the framers of the terms of admission of 28214  Submissions by Mr. Goldie        1 British Columbia  into the Union inserted this  2 provision requiring the Dominion Government to  3 pursue a policy as liberal towards the Indians  4 as that hitherto pursued by the British  5 Columbia Government, they could hardly have  6 been aware of the marked contrast between the  7 Indian policy which has always been pursued in  8 Canada and the policy which is sought to be  9 enforced in British Columbia."  10  11 That word respectively should be deleted, my lord.  12 Now, I say, the first version recognized that the  13 Indian policy in the Colony of British Columbia was  14 different from Canada's at the time of union.  The  15 altered version suggests that the province was seeking  16 to enforce a policy which was very different.  17 The documents are found under tab 18.  And if your  18 lordship would look first, and I'm going to refer to  19 the page numbers at the lower right-hand corner which  20 are arranged sequentially, and at page eight is the  21 photograph of a draft.  22 THE COURT:  I'm sorry.  Page eight?  23 MR. GOLDIE:  Yes.  At the lower right-hand corner it's — it is  24 under tab 8 at tab 18.  25 THE COURT:  Yes.  Mine's — oh, I'm sorry.  I'm not looking —  26 sorry.  I'm looking at the divider.  27 MR. GOLDIE:  Yes.  2 8 THE COURT:  Yes.  29 MR. GOLDIE:  On that page your lordship will see at the words  30 crossed out:  "Which had up to that time prevailed and  31 always been pursued".  32 And then if we turn to page 27 we're looking at  33 the papers printed by British Columbia, and about  34 two-thirds of the way down the page begins the  35 paragraph following a quotation:  36  37 "When the framers of the terms of admission of  38 British Columbia into the Union inserted this  39 provision requiring the Dominion Government to  40 pursue a policy as liberal towards the Indians  41 as that hitherto pursued by the British  42 Columbia Government, they could hardly have  43 been aware of the marked contrast which had up  44 to that time prevailed in Canada and British  45 Columbia respectively."  46  47 And then if your lordship would turn over to the 28215  Submissions by Mr. Goldie        1 print of the Colonial  Office at page 33, and it's the  2 second paragraph from the end, again it follows the  3 quotation of Term 13, and you'll see the words "the  4 marked contrast between the Indian policy which has  5 always been pursued in Canada and the policy which is  6 sought to be enforced in British Columbia".  7 THE COURT:  I haven't found that on page 33 yet.  8 MR. GOLDIE:  Oh, it's —  9 THE COURT:  Oh, yes, I have it.  I have it.  10 MR. GOLDIE:  Yes.  The only — this is not a particularly  11 significant change, but it was -- it was made by the  12 Governor General.  And that is apparent, my lord, if  13 your lordship would refer to tab 21, page three.  14 Again we're looking at a draft.  And the change that I  15 had referred to is midway, about a third of the way  16 down the page:  17  18 "They could hardly have been aware of the  19 marked contrast between the Indian policy which  20 had always been pursued".  21  22 Et cetera.  And then in the margin written at  23 right angles to it is the statement:  "These changes  24 were made in the copy of that sent to the Colonial  25 Office by something of Lord Dufferin 4/12/74", and  26 then the initials E.A.M..  Now, Mr. Meredith — there  27 was a Mr. E.A. Meredith who was Deputy Minister of the  28 Interior and Deputy Superintendent of Indian Affairs.  2 9 I'm not impugning the Governor General.  He was  30 undoubtedly seeking to make a point clear, but the  31 fact is that it got -- one version went to the  32 Colonial Office and the other version went to British  33 Columbia.  The version that went to the Colonial  34 Office went undercover of his dispatch of the 4th of  35 December, I think it was, in which he, as I say,  36 criticized the province in very harsh terms and said  37 that the papers were being sent to the Colonial  38 Secretary with a view to invoking his assistance under  39 Term 13.  40 It will be seen, my lord, that the people at the  41 Colonial Office when they read the order in council  42 saw that there was no such request for arbitration,  43 and they advised the Colonial Secretary accordingly.  44 Now —  45 THE COURT:  On the argument you've made both versions are wrong.  46 MR. GOLDIE:  Oh, they are.  That's true.  And this dispatch is  47 the source of a number of statements that the Dominion 28216  Submissions by Mr. Goldie        1 did not know what the  B.C. policy was.  Now, I have  endeavored to dispell that proposition in Section I of  the counterclaim.  Mr. Laird, whose report the Governor and Council  adopted, was of course in opposition at the time that  the negotiation of the Terms of Union.  But it's  clear, in my submission, my lord, that he could not  even have read the material in his own department to  have made the statement that he did make, whichever  one it is you take.  And the same proposition is made in a couple of  other changes.  And these are summarized -- I  shouldn't say a couple of other changes.  Another  change.  And these are summarized in page 92 of my  summary.  And if your lordship will look at the top of  the page, and the -- this is an extract from the order  in council or the report of Mr. Laird's which was  adopted.  And it reads:  "Whereas in British Columbia, ten acres of land  was the maximum allowance for a family of five  persons, in old Canada the minimum allowance  for such a family was 80 acres:  and a similar  contrast obtained in regard for grants of  education and all other matters connected with  Indians under the respective governments.  Read  by this light, the insertion of a clause  guaranteeing the aborigines of British Columbia  the continuance by the Dominion Government of  the liberal policy heretofore pursued by the  Local Government, seems little short of a  mockery of their claims."  And then the change is seen in the succeeding  paragraph, the one that went to the Colonial Office.  "Continuance by the Dominion Government of a  policy as liberal as now pursued by the Local  Government."  Again it implies that it was not a policy which  prevailed in Colonial times.  And that too has the  notation that the changes were made at His  Excellency's request.  The point, however, is that the apparent or the  suggested ignorance of the Dominion has gained  widespread ground, and was received in England as  olicy was  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 28217  Submissions by Mr. Goldie        1 being literally the  case by some of the people who  2 minuted the dispatch.  When I say -- I don't say they  3 minuted on the question of the Dominion's ignorance.  4 They simply minuted to the effect that affairs were  5 going very badly in British Columbia.  6 Now, I have skipped over a number of paragraphs in  7 my summary, and I don't mean to delete them, I'm  8 simply going to turn now to paragraph 25.  9 In the event, nothing seems to turn on the  10 Governor General's alterations.  What the evidence  11 outlined above does demonstrate, however, is that Lord  12 Dufferin took a very personal interest in this  13 controversy, and that he exceeded his powers as the  14 Queen's representative in Canada which, even in 1874,  15 was limited to acting upon the advice of his  16 responsible advisors.  17 And I will be submitting that he exceeded his  18 instructions or he exceeded his constitutional  19 authority again in Victoria in 1876.  20 I say in paragraph 30, the inclusion in Term 13 of  21 a mechanism for the settlement of disputes by means of  22 a reference to the Secretary of State for the Colonies  23 is compelling evidence that the possibility of a  24 disagreement was forseen.  And, in my submission, it  25 is a contingency that can only have been anticipated  26 if British Columbia's policies were known to be  27 different from that of the Dominion.  28 It should also be noted that in 1870 when the  29 Terms of Union were negotiated no formula relating to  30 reserve size had yet been fixed in Canada.  31 None of the pre-Confederation land cession  32 treaties, and I add in what became Ontario, contains a  33 formula for reserve size.  34 The first two of the so-called numbered treaties,  35 which did specify reserve size in the proportion of  36 160 acres per family of five, were not negotiated  37 until August of 1871, several weeks after B.C. joined  38 the Union, and more than a year after the Terms of  39 Union were agreed upon.  40 And paragraph 32, almost all of Laird's 2 November  41 1874 memorandum concerns the disagreement between the  42 governments regarding reserve size, and is irrelevant  43 to the issues in the case at bar.  But there are some  44 other -- other references which I make, and which I  45 needn't go into at the present time.  46 I go to page 100, my lord, in paragraphs -- well,  47 I'll start in paragraph 36 on page 99, the last 28218  Submissions by Mr. Goldie        1 paragraph.  2 As was noted in paragraph 35, the Privy Council,  3 that is of Canada, ordered that the memorandum and  4 related correspondence be sent to the Colonial  5 Secretary "to enable Lord Carnarvon to understand in  6 all its bearings a great national question now seeking  7 solution at the hands of the Dominion and British  8 Columbia Governments."  9 In paragraphs 4 and 14 of his dispatch to Lord  10 Carnarvon, however, Lord Dufferin wrote that his  11 responsible advisors wished to invoke the interference  12 and good offices of the Secretary of State for the  13 Colonies in settling the dispute.  14 I make reference to tab 38.  I'm sorry, 36.  And  15 the first document is the Earl of Carnarvon's covering  16 dispatch.  He starts off by saying:  17  18 "In transmitting for your Lordship's  19 consideration the enclosed Order in Council and  20 the papers accompanying it, on the present  21 position of Her Majesty's Indian subjects in  22 British Columbia, I regret to be obliged to  23 call your Lordship's attention to the very  24 serious controversy which has arisen between my  25 Government and the Local Administration of that  26 Province, as to the principle which should  27 determine the area of lands to be reserved for  28 the support and accommodation of the Indian  2 9 communities."  30  31 And then he recites Term 13, and brings to the --  32 his lordship's attention the three propositions.  33 And then paragraph 4:  34  35 "It is in virtue of this latter stipulation  36 that my Responsible Advisers now invoke your  37 Lordship's interference."  38  39 And then in paragraph 14 he says -- and that's on  40 page -- two pages over.  Yes, two pages over.  He  41 says:  42  43 "These are the general circumstances under  44 which my Government is anxious to avail  45 themselves of your Lordship's good offices and  46 co-operation as provided for under the terms of  47 the agreement I have cited." 28219  Submissions by Mr. Goldie        1 That's Term 13.  2 Now, my lord, with respect to the references on  3 page 100 it's to tab 16, pages one to three, and  4 delete "and 14".  5 THE COURT:  One to three?  6 MR. GOLDIE:  Yes.  Pages one to three and delete the words "and  7 14".  8 Now, I say no detailed analysis of Lord Dufferin's  9 dispatch will be made here, although it might be  10 pointed out that he was misinformed with respect, at  11 least, to paragraphs 4, 7, 8, 14 and 18.  The emphasis  12 he placed upon the extinguishment of Indian title in  13 the early paragraphs of the dispatch does not reflect  14 accurately the purport of the order in council and the  15 annexed memorandum of correspondence which dealt  16 mainly with the difficulities over Term 13 of the  17 Terms of Union, and only briefly and very indirectly  18 touched on any question relating to that topic.  19 In the last paragraph, number 22, Lord Dufferin  20 wrote that he forwarded a copy of the enclosed order  21 in council to British Columbia, but of course that was  22 not wholly accurate.  The copy sent to British  23 Columbia was different in two respects than the one  24 cent to the Secretary of State for the Colonies.  25 The extent of Lord Dufferin's interest in the  26 question of aboriginal title in British Columbia can  27 be seen from two private letters he sent to Lord  28 Carnarvon, one in November and one in December 1874.  29 In the first he announced that he would be sending:  30  31 "... a very important Dispatch covering an  32 Order in Council relative to the unsatisfactory  33 position of the Indian question in British  34 Columbia.  That Province appears to be treating  35 its Indian subjects with great harshness.  It  36 does not recognize any obligation to extinguish  37 the Indian title before dealing with the Crown  38 Lands."  39  40 Now, that's from his letter of the 26th of  41 November.  42 Parenthetically, my lord, there appears to be no  43 explanation as why the order in council which was made  44 the 4th of November was delayed until the 4th of  45 December except the drafting of it appears to have  46 continued right up until the 4th of December.  47 And continuing with his second private letter -- 28220  Submissions by Mr. Goldie        1  THE COURT:  What is this order in  council saying?  2 MR. GOLDIE:  The order in council which begins --  3 THE COURT:  It's in tab 38?  4 MR. GOLDIE:  It's — well, actually it's a better place to go to  5 it, my lord, is back at tab -- tab 13, because that's  6 the Colonial Office print in whole.  And at the end of  7 Lord Carnarvon's dispatch is a schedule of documents  8 accompanying the letter of the 19th of November from  9 the Department of the Interior.  A is the order in  10 council for the 4th November 1874, and then there  11 are --  12 THE COURT:  What page is that at tab 13?  13 MR. GOLDIE:  Page six using the numbers in the lower right-hand  14 corner.  15 THE COURT:  Yes.  Yes.  16 MR. GOLDIE:  Now, so that's — that's the first enclosure.  And  17 then if your lordship would go over to page seven and  18 the order in council is under the letter A.  19  20 "The Committee of the Privy Council have given  21 their attentive consideration from the  22 Memorandum from the Honorable the Minister of  23 the Interior in reference to the unsatisfactory  24 state of the Indian land question in the  25 Province of British Columbia, and they  26 respectively report their entire concurrence in  27 the views and recommendations submitted therein  28 and advise that a copy of this minute when  29 approved by Your Excellency be transmitted to  30 the Lieutenant Governor of British Columbia in  31 the hope that the views entertained by the  32 Dominion Government on this important question  33 as embodied in the said memorandum may meet  34 with an early and favorable consideration at  35 the hands of the Government of British  36 Columbia.  They further advise that a copy of  37 this minute and annexed memorandum be  38 transmitted by Your Excellency to the Right  39 Honourable Her Majesty's Secretary of State for  40 the Colonies, accompanied by copies of such of  41 the other documents submitted as the Honorable  42 the Minister of the Interior may think  43 necessary to enable Lord Carnarvon to  44 understand in all its bearings the great  45 national question now seeking solution at the  46 hands of the Dominion and British Columbia  47 Government." 28221  Submissions by Mr. Goldie        1 Now, that's the  entire order in council.  2 THE COURT:  All right.  And what does Mr. Laird's memorandum  3 say?  4 MR. GOLDIE:  That is what follows.  And he is — what he does is  5 say:  6  7 "I have been unable to persuade the provincial  8 authorities to give reserves of as many acres  9 as we think desireable."  10  11 Now, he goes through a great number of other  12 things pretty well all under heading of unsatisfactory  13 relations with British Columbia.  14 THE COURT:  Thank you.  15 MR. GOLDIE:  And he asserts that the -- that the Indians are  16 deeply discontented, but, my lord, neither in the  17 order in council itself nor in Laird's memorandum or  18 report which contains the assertions that the Dominion  19 government could hardly have known what the policy  20 was, does the question of title emerge.  21 THE COURT:  Yes.  Thank you.  22 MR. GOLDIE:  To repeat myself to some extent, the background of  23 it was the desire of the Indian Superintendent, Dr.  24 Powell, pursuant to instructions to allot 80 acres per  25 family head for each reserve.  The position taken by  26 the Provincial Government was that that was excessive.  27 THE COURT:  Was it 80 per head or 80 per family?  28 MR. GOLDIE:  I think it was per head of the family.  29 MR. RUSH:  I think it was per family of five.  30 MR. GOLDIE:  Yes.  31 THE COURT:  Okay.  Thank you.  32 MR. GOLDIE:  That was the sum and substance of the problem, that  33 the Dominion wished to impose a uniform policy and the  34 province resisted.  And, in my submission, the  35 province was perfectly entitled to resist it, because  36 an attempt to impose a policy that was uniform across  37 the length and breadth of British Columbia was just  38 simply nonsense.  What was required for a fishing  39 tribe on the west coast was wholly inappropriate for  4 0 people of a semi-nomadic temperament around Kamloops,  41 and the old reserves recognized that.  But be that as  42 it may, that was the state of affairs which had given  43 rise to this dispatch.  And your lordship will have  44 observed that the order in council itself directs that  45 the report should go to British Columbia in the hope  46 that the impasse can be resolved.  47 I note in paragraph 38 that in Lord Dufferin's 28222  Submissions by Mr. Goldie 1            second private letter  to Lord Carnarvon of the 21st of  2 December he says:  3  4 "I don't think I have written to you privately  5 on the subject of the long British Columbia  6 Indian dispatch I had to send you.  I don't  7 think that there is anything to add to the case  8 set forth in the official papers.  The B.C.'s  9 have evidently been behaving very badly, and  10 they certainly should be required to extinguish  11 the Indian title before assuming possession of  12 the lands, which is the universal principle  13 observed in every province of the Dominion, but  14 the truth is British Columbia is hardly a large  15 enough Community to have as yet developed a  16 conscience."  17  18 My lord, it's now been seen that his lordship made  19 incorrect assertions in both letters.  There's no  20 evidence that British Columbia had been treating  21 Indians with great harshness, and the extinguishment  22 of Indian title was by no means a principle observed  23 in every province of the Dominion.  24 Despite the Governor General's anxiety to  25 characterize the dispute as one relating to title, and  26 to obtain Lord Carnarvon's intervention, the Secretary  27 of State for the Colonies remained aloof.  On February  28 5th, 1875, in reply to Dufferin's long British  29 Columbia Indian dispatch, he wrote:  30  31 "I have read these papers with great though a  32 painful interest, as I cannot but regret that  33 there should be any difference of opinion on  34 such a subject, or indeed that there should be  35 any ground for believing that the provision  36 made for the Indian tribes is not fully equal  37 to their requirements.  It is not, therefore,  38 easy to overrate the importance of the question  39 to which these papers relate, but I do not  40 perceive that it is suggested that I should now  41 take any action in the matter, and, indeed, I  42 abstain from coming to any conclusion  43 respecting it, pending the receipt of the reply  44 to the representation addressed by the Dominion  45 Government to the Provincial Government, by  4 6 whom I cannot doubt that full and liberal  47 consideration will be given to all the 28223  Submissions by Mr. Goldie        1 considerations  of the case."  2  3 The Government of British Columbia's reply was  4 made on 18th of August 1875 in the form of an order in  5 council adopting a report of the province's Attorney  6 General, to which four documents, including Trutch's  7 January 1870 memorandum and two letters of William  8 Duncan, were annexed.  9 The order in council and annexed documents are  10 printed in Papers Connected with the Indian Land  11 Question, 1870-1875, which is Exhibit 1182, the  12 co-called yellow book.  13 The province's August 1875 report must be  14 considered in the light of two other actions taken by  15 the Dominion in the wake of the Term 13 dispute.  A  16 disallowance of the province's 1874 Crown Lands Act,  17 and the application to British Columbia of the  18 Dominion Lands Act.  19 Now, that brings me, my lord, to the disallowance  20 of the 1874 Crown Lands Act.  21 In 1874 British Columbia enacted legislation to  22 amend and consolidate the laws relating to Crown lands  23 in the province.  Among other things, it repealed the  24 Land Ordinance of 1870.  This act was disallowed by  25 order of the Governor in Council on March the 16th,  26 1875.  That means the disallowance was effective some  27 months after the November 1874 order in council had  28 been sent to British Columbia, but before British  2 9 Columbia had made any reply.  30 The reasons for the disallowance, in the form of a  31 report by the Deputy Minister of Justice Hewitt  32 Bernard, which was concurred in by the Minister of  33 Justice, had been approved by an earlier Dominion  34 order in council on 23 January 1875.  35 The January order in council and Bernard's report  36 were included in the Colonial Office Confidential  37 Print of May of 1875, to which subsequent references  38 in this summary will be made.  39 THE COURT:  Just a moment.  Could I go back to the top of page  40 103?  41 MR. GOLDIE:  Yes.  42 THE COURT:  I only have a vague recollection of this.  What was  43 the British Columbian's -- what was British Columbia's  44 reply?  You say it's a November 4th, 1874 order in  45 council.  What did the order in council say?  46 MR. GOLDIE:  Its reply is the 18th of August 1875.  4 7 THE COURT:  Yes. 28224  Submissions by Mr. Goldie        1  MR. GOLDIE:  To the 1874 order in  council.  2 THE COURT:  Yes.  All right.  3 MR. GOLDIE:  And it proposed what became with the Dominion's  4 amendments, which in turn the province accepted, that  5 a commission be set up to determine reserves without  6 reference to any specific acreage.  7 THE COURT:  Thank you.  8 MR. GOLDIE:  But before we get to that we've got to deal with  9 the disallowance of the Crown Lands Act and the  10 application of the Dominion Lands Act of British  11 Columbia.  12 My lord, the reasons for the disallowance in the  13 form of Mr. Hewitt Bernard's long report is something  14 which has been referred to on a number of occasions.  15 It is the report in which the reference to the Royal  16 Proclamation occurs.  17 And in paragraph 43 I say, in his report the  18 Deputy Minister of Justice concluded that the  19 province's 1874 Crown Lands Act was objectionable as  20 tending to deal with lands which are assumed to be the  21 absolute property of the province.  It was assumed,  22 instead, that Indian title existed in British Columbia  23 whether or not the Royal Proclamation of 1763 applied  24 to the province, because it was repeatedly and  25 erroneously asserted, in other parts of British North  26 America the Crown had invariably acted in accordance  27 withe the principles set out in that proclamation.  28 The report, dated 19 January 1875, began by  29 describing the general provisions of the province's  30 Crown Lands Act, and noted there was no:  31  32 "... reservation of lands in favour of the  33 Indians or Indian tribes of British Columbia,  34 nor are the latter thereby accorded any rights  35 or privileges in respect to lands or reserves  36 or settlements."  37  38 Now, I may interject there, that that was not  39 wholly accurate, because there continued in Section 3  40 the exemption from the lands open to settlement in the  41 form of not being an Indian settlement.  In other  42 words, those words "excluded from presumption"  43 anything which answered that description.  44 After pointing out -- my lord, if I could just  45 insert the page number to the report at page 49.  46 After pointing that the Indian reserve question  47 had been the subject of an earlier order in council, 4 28225  Submissions by Mr. Goldie        1 November 1874, the  report addressed the larger  2 question, the legal position of the public lands of  3 the province.  4 The Deputy Minister noted that, except for the  5 lands on the Vancouver Island surrendered to the  6 Hudson's Bay Company, no surrenders of lands in that  7 province have ever been obtained from the Indian  8 tribes inhabiting it.  He acknowledged that the policy  9 of obtaining surrenders at this elapse of time and  10 under the altered circumstances of the province may be  11 questionable, but felt it was his duty to assert such  12 legal or equitable claim as may be found to exist on  13 the part of the Indians.  14 He incorrectly stated that from the earliest times  15 England has always felt it imperative to meet the  16 Indians in Council, and to obtain surrenders of tracts  17 of Canada as from time to time such were required for  18 the purposes of settlements, and then went on to cite  19 the 1760 Articles of Capitulation of Montreal and the  20 Royal Proclamation of 1763.  21 Concluding that it was unnecessary to determine  22 whether the proclamation covered the land now known as  23 British Columbia, the Deputy Minister wrote:  24  25 "It is sufficient for the present purposes to  26 ascertain the policy of England in respect to  27 the acquisition of Indian territorial rights,  28 and now entirely that policy has been followed  29 to the present time, except in the instance of  30 British Columbia."  31  32 Why the Deputy Minister should have asserted with  33 such certainty that a policy of acquiring Indian title  34 had unfailingly been followed in England is a  35 mystery -- had been followed in Canada is a mystery.  36 There were not then, and except for Quebec are not  37 now, any land cession treaties between the Crown,  38 either in right of Great Britain or in right of  39 Canada, and Indians in the Provinces of Quebec, Nova  40 Scotia, New Brunswick, and Prince Edward Island.  Nor  41 were there any in Newfoundland and Labrador.  42 Only in what is now the Province of Ontario had  43 there been land cession agreements before 1871, when  44 negotiation of the numbered treaties began in the  45 former Hudson's Bay Company territories.  46 However, for whatever reason, the view of the  47 Minister and his Deputy was that the Crown Lands Act 28226  Submissions by Mr. Goldie        1 was:  2  3 "objectionable, as tending to deal with lands  4 which are assumed to be the absolute property  5 of the Province."  6  7 They assumed instead that Indian title existed in  8 British Columbia, and that it constituted some sort of  9 interest in the lands of the province.  And then I  10 quote the statement which supports that.  11 Paragraph 46, for this reason, the Minister of  12 Justice recommended that the act be disallowed, and  13 this was in January, but not until the last possible  14 date, and after consultation with the Lieutenant  15 Governor.  He noted that the disallowance would cause  16 no practical inconvenience as the previously existing  17 Crown Land Act will probably suffice to enable the  18 province to continue, in the meantime, disposal of  19 lands.  20 In my submission, it was as an afterthought, that  21 the Minister of Justice also pointed out that the  22 provincial act contained no reservation of lands for  23 the railway route, a circumstance that might be  24 embarrassing when the railroad was eventually  25 constructed.  26 As was noted earlier, the governments of both  27 Macdonald and Mackenzie had already formally  28 acknowledged that after July 21, 1873 Crown lands in  29 British Columbia were free from the restraint on  30 alienation imposed by Term 11.  31 Now, my lord, I might comment, that I say it was  32 as an afterthought, that really it was rather an  33 important point that the Crown Lands Act did not make  34 provision for the railway.  There I think they were on  35 sound ground.  36 Paragraph 48, the Governor General transmitted the  37 January 23rd, 1875 Dominion Order in Council approving  38 the report of the Minister of Justice on the "legal  39 position of the public lands in the province" to the  40 Secretary of the State for the Colonies.  That too was  41 included with his dispatch.  That is to say, Bernard's  42 report was included in the Colonial Office's  43 Confidential Print.  44 I just want to refer to -- well, we've got another  4 5 volume coming up, my lord.  4 6  THE COURT:  Are we through this one already?  47  MR. GOLDIE:  Yes.  I'll be referring, my lord, to tab 48. 28227  Submissions by Mr. Goldie        1 Now, this is part  of the Colonial Office print of  2 May of 1875.  And your lordship will see that Lord  3 Dufferin links the disallowance, or the report, I  4 should say, with respect to the B.C. Act to the  5 acreage dispute covered in his dispatch of November --  6 December 4th.  He says:  7  8 "With reference to my Dispatch, December 4th,  9 1874, transmitting a copy of an Order of the  10 Privy Council of Canada on the present position  11 of Her Majesty's Indian subjects in British  12 Columbia, I have the honour of forwarding a  13 further Minute of Council, to which is appended  14 a report prepared by Mr. H. Bernard, Deputy of  15 the Minister of Justice, in which the legal  16 aspect of the rights of the Government to  17 appropriate the entire lands of British  18 Columbia without reference to the claims of the  19 Indians, or the preliminary extinction of their  20 title is very ably treated."  21  22 That was acknowledged by Lord Carnarvon on  23 February 17th.  Now, that reference -- that page  24 reference, my lord, on page 109 that I've just read  25 from is not page 45 in the first line of the  26 reference, but 47.  27 I say in paragraph 49, that one other  28 communication from the Governor General was included  29 in the Confidential Print.  It was a statement  30 touching Indian policy and administration of British  31 Columbia, prepared at Lord Dufferin's request by the  32 Reverend J.B. Good, a missionary in British Columbia.  33 And that's under the next tab, my lord, in which  34 Lord Dufferin forwards to the Earl of Carnarvon Mr.  35 Good's statement.  And the covering letter states:  36  37 "I have the honour to forward a statement  38 prepared by Reverend J.R. Good, a Missionary,  39 who has for many years resided among the  40 Indians of British Columbia, in reference to  41 their present condition."  42  43 And then Mr. Good opens his letter with a  44 statement:  45  46 "I have the honour, in accordance with your  47 request, to present the following report of the 28228  Submissions by Mr. Goldie        1 condition of  Indian affairs in British  2 Columbia."  3  4 Now, Mr. Good's statement set out his views on a  5 number of matters, including the extinguishment of  6 Indian title with respect to which he concluded:  7  8 "... that since for so many years the Crown has  9 assumed a right to the possession of the  10 country without reference to Indian right or  11 title the question should not, if possible, be  12 now raised as to the legality of such right,  13 which would entail the most serious  14 consequences if disallowed."  15  16 THE COURT:  I'm sorry.  Where is that?  17 MR. GOLDIE:  That's on pages 46 to 47, my lord, beginning right  18 at the bottom of the page.  19 THE COURT:  Oh, yes, I see it.  Yes.  Because —  20 MR. GOLDIE:  Finally that —  21 THE COURT:  Oh, yes.  22 MR. GOLDIE:  23 "To this end I would respectfully beg to  24 suggest through Your Excellency that since so  25 many years the Crown has assumed a right ..."  26  2 7 And so on.  2 8 THE COURT:  Yes.  29 MR. GOLDIE:  And, again, Lord Carnarvon declined to express any  30 opinion until he had received the province's reply to  31 the November order in council.  32 So I say in paragraph 50, my lord, the two main  33 issues between the governments relating to Indians and  34 land in British Columbia were now truly engaged.  The  35 Dominion government under Alexander Mackenzie's  36 administration pressed both by means of Dominion  37 Orders in Council:  38 One - of 4 November 1874 - addressed the question what  39 actions were required of British Columbia to fulfill  40 its obligation to provide Indian reserve land under  41 Term 13.  42 And the other of 23 January of 1875, raised the  43 question whether the Crown lands of British Columbia  44 were burdened by aboriginal title, and were thus  45 subject to a trust or interest other than that of the  46 province within the meaning of Section 109 of the  47 Constitution Act. 28229  Submissions by Mr. Goldie        1 Questions about the  settlement of Indian land  2 issues in British Columbia were also raised in  3 Parliament.  I'm not going to comment on that except  4 to note Mr. Mackenzie's -- Prime Minister Mackenzie's  5 comment in the Commons during the debate.  6  7 "... we will probably require that the Columbia  8 Government shall extinguish the Indian title."  9  10 Those debates were on the 22nd of February, not  11 the 19th of February, my lord.  12 And then in the same debate the Minister of the  13 Interior announced that the Boards of Indian  14 Commissioners for British Columbia, for Manitoba and  15 the North-West Territories had not been successful,  16 because neither of the Lieutenant Governors was  17 willing to participate, and that other arrangements  18 for the management of Indian affairs would be made.  19 Now, my friends have suggested that it was only  20 Mr. Trutch, Lieutenant Governor of British Columbia,  21 who was unwilling to co-operate.  In fact, my lord, it  22 is clear that the difficulty of having a Lieutenant  23 Governor working with others in the administration of  24 Indian affairs was something which was a structural  25 problem in both British Columbia and Manitoba and the  26 North-West Territories.  27 Now, I come to the extension of the Dominion  28 Lands Act to British Columbia in April of 1875, which  29 was some three weeks after the Governor in Council  30 disallowed British Columbia's 1874 Crown Lands Act.  31 And the act itself which is found under tab 52 is very  32 short.  It says:  33  34 "The Act passed in the Session held in the  35 thirty-fifth year of Her Majesty's reign..."  36  37 Et cetera.  38  39 "... known as the Dominion Lands Act, and the  40 several provisions thereof, are hereby extended  41 and shall apply to all lands to which the  42 Government of Canada are now or shall at any  43 time hereafter become entitled, or which are or  44 shall be subject to the disposal of Parliament,  45 in the Province of British Columbia, whether  46 the title thereof be legally vested in Her  47 Majesty the Queen for the Dominion of Canada, otherwise  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  28230  Submissions by Mr. Goldie        1 or howsoever  Now, in the result that was a prospective  application to the 40-mile wide belt of lands known as  the Railway Belt, which the province was bound to  transfer to the Dominion for railway purposes, and to  the additional lands the province was bound to convey  to compensate the Dominion for lands within the belt  which had already been alienated.  These latter lands  were eventually located in the Peace River Block.  As was noted earlier, Section 42 of the Dominion  Lands Act, 1872 provided:  "None of the provisions of this Act respecting  the settlement of Agricultural lands, the lease  of Timber lands, or the purchase and sale of  Mineral lands, shall be held to apply to  territory the Indian title which shall not at  the time have been extinguished."  Your lordship will see that if that is applied to  the Dominion lands in British Columbia it would  require extinguishment of Indian title in the Railway  Belt before those lands were offered up for settlement  in accordance with what was planned.  Paragraph 53 of my summary I say, the application  of Section 42 of the Dominion Lands Act to Dominion  lands in British Columbia suggests two possible, but  in my submission, opposite consequences.  First, if the Dominion considered there was no  Indian title to be extinguished in British Columbia,  unlikely at least for the Mackenzie administration  considering the stated reasons for the disallowance of  the 1874 Crown Lands Act, Section 42 could be ignored.  THE COURT:  There would be no lands.  MR. GOLDIE:  Well —  THE COURT:  No lands to which it could apply.  MR. GOLDIE:  No lands to which it could apply.  THE COURT:  Yes.  MR. GOLDIE:  Otherwise, if the Dominion considered that Indian  title did exist in British Columbia, it had bound  itself to extinguish such title before settlement in  the lands it would acquire from the province under  Term 11.  Now, it will be seen, and I am now speaking as  your lordship will see looking ahead, it will be seen  that the application of the Dominion Lands Act was 28231  Submissions by Mr. Goldie        1 removed from British  Columbia by Sir John A.  2 Macdonald's second administration on May 7th, 1880,  3 the day before the first attempt to convey the Railway  4 Belt lands to the Dominion.  5 It will also be seen that in 1885, after the  6 effective transfer of the Railway Belt, the Dominion  7 imposed regulations for the management of those lands  8 which specifically excluded the Dominion Lands Act  9 provision for extinguishing aboriginal title.  10 Moreover, from December 19th, 1883, when control  11 and administration of lands in the Railway Belt was  12 vested in the Crown in Right of Canada, until 1930,  13 when the belt was transferred back to the province,  14 the Dominion government took no steps to extinguish  15 Indian title to those lands over which it, and it  16 alone, had control.  17 Now, I come to British Columbia's response to  18 the -- what I call the acreage order in council of the  19 Dominion.  20 THE COURT:  I think we are going to change reporters, and I'm  21 going to take a short walk.  22 MR. GOLDIE:  Very well.  23 THE COURT:  About ten minutes, please.  24 THE REGISTRAR:  Order in court.  Court stands adjourned for a  25 short recess.  26  2 7 (PROCEEDINGS ADJOURNED)  28  29 I hereby certify the foregoing to  30 be a true and accurate transcript  31 of the proceedings transcribed to  32 the best of my skill and ability.  33  34  35  36  37  38 Peri McHale,  39 Official Reporter,  4 0 UNITED REPORTING SERVICE LTD.  41  42  43  44  45  46  47 28232  Submissions by Mr. Goldie        1        (PROCEEDINGS RESUMED  PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  My lord, I'm at page 114 of my —  5 THE COURT:  Yes.  6 MR. GOLDIE:  -- summary, and I was just about to deal with  7 British Columbia's reply.  It is contained in Exhibit  8 1182, following page 170, and it is set forth in --  9 in — under Tab 111-55.  10  11 Two copies were sent to Ottawa - one for the  12 Dominion's consideration and one for transmission to  13 the Secretary of State for the Colonies.  14  15 The Order in Council adopted "as the expression of  16 the views of this government as to the best method of  17 bringing about a settlement of the Indian land  18 question" a memorandum of the Attorney General dated  19 17 August 1875.  I've quoted from that on a number of  20 occasions, my lord.  21  22 The Attorney General noted that the question at  23 issue between the two governments was "What assistance  24 in land shall British Columbia now give to enable the  25 Dominion to carry out her Indian policy?"  26  27 Now, if I may just pause there.  The Attorney  28 General then set out to describe what he perceived to  29 be the Dominion's land policy, which was the  30 concentration of Indians on very large reserves with  31 an acreage allotment of 80 acres per head, per family  32 head of 5.  And he contrasted that with the Colonial  33 policy and he -- he did so because partly to remove  34 what he described as  35  36 "... very unjust impressions respecting it  37 which had been created in the public mind by  38 the publication of the report of the Minister  39 of the Interior..."  40  41 And also because of the  42  43 "... undoubted right of the Imperial Government  44 (to whom the Indian correspondence has been  45 referred) to a full explanation respecting the  46 charges preferred in the report, of  47 mal-administration of a policy established 28233  Submissions by Mr. Goldie        1 under their  directing influence."  2  3 And:  4  5 "In justice also to the past and present  6 Governments of British Columbia, as well to its  7 people at large"...  8  9 And then he goes on to describe what the policy of the  10 Dominion as he understood it was.  And your lordship  11 will appreciate that it was quite the opposite of the  12 policy of the Colony, which was to establish reserves  13 where the village sites existed, whereas Mr. Walkem  14 perceived it:  15  16 "The policy of the Dominion aims at a  17 concentration of the Indians upon reserves."  18  19 THE COURT:  Is that an accurate statement of Dominion policy?  20 MR. GOLDIE:  No.  It -- if it was, it never was put into effect  21 as a result of the -- of the agreement reached between  22 the parties.  23  24 I say at the bottom of page 115 the Colony's  25 policy had been to treat Indians as British subjects,  26 subject to the requirements of the law and entitled to  27 its protection.  In general, no discriminatory  28 practices were followed.  29  30 Reserves embracing "the village sites",  31 settlements, and cultivated lands of the Indians" were  32 set apart, and Indian property was protected by  33 magistrates who acted as Indian agents.  34  35 Then he described the Colonial Indian policy, and  36 I have read that to your lordship on another occasion.  37  38 Paragraph 58.  Practical reasons as well as the  39 "common dictates of humanity" required that Indians be  40 afforded "kind and liberal treatment", but the  41 Province could not agree with the Dominion's views in  42 the matter of reserves, which failed to take into  43 account "the habits and pursuits" of the Indians and  44 the characteristics of the Province.  45  46 After discussing these features in some detail,  47 the Attorney General recommended the adoption of 28234  Submissions by Mr. Goldie        1 suggestions for  which were based  on recommendations submitted by Mr. Duncan.  The  details of Duncan's recommendations (one of which was  the source of much difficulties later) and of the  Attorney General's suggestions based upon them are  largely irrelevant to the case at bar, but it should  be noted that neither Duncan's recommendations, nor  anything else in his two letters which were appended  to the attorney general's report, contains any  reference to aboriginal or native title.  His  self-interested conversion to that view would not come  about for another 7 or 8 years.  There were four appendices to the attorney  general's report:  Appendix A - an 1872 Order in Council permitting the  Indians to pre-empt land;  Trutch's January 1870 memorandum;  part of a May 1875 letter from Mr. Duncan  to the Minister of the Interior, and  which is the Dominion Minister; and  a July 1875 letter from Duncan to the  Attorney General of British Columbia.  settling  the matter 'ñ†  2  3  i  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  i  34  35  THE COURT:  36  MR. GOLDIE  37  38  39  40  41  42  43  44  45  46  47  Appendix B  Appendix C  Appendix D  And this introduces the process which resulted in the  agreement on the joint Indian reserve commission  agreement.  On November 10th, 1875, the -- in case I've slid  over too quickly, my lord, the suggestions that were  put forward by Walkem for the resolution of the  difficulty are found at Tab 111-55, page 9, where he  says -- does your lordship see that?  Yes.  :  He says:  "The following suggestions for the settlement  of the subject have been made by Mr. Duncan.  1st.  That no basis of acreage for Indian  Reserves be fixed for the Province as a  whole; but that each nation (and not  tribe) of Indians of the same language be  dealt with separately.  2nd.  That for the proper adjustment of Indian  claims the Dominion Government do appoint 28235  Submissions by Mr. Goldie        1 an agent  to reside with each nation.  2 3rd.  That Reserves of land be set aside for  3 each nationality of Indians.  Such  4 Reserves to contain, in addition to  5 agricultural land, a large proportion of  6 wild and forest land.  Every application  7 for a Reserve shall be accompanied by a  8 report from the agent having charge of  9 the nation for whom the Reserve is  10 intended; and such reports shall contain  11 a census and give a description of the  12 habits and pursuits, and of the nature  13 and quantity of land required for the use  14 of such nation.  15 4th.  That each Reserve shall be held in trust  16 for the use and benefit of the nation of  17 Indians to which it has been allotted;  18 and in the event of any material increase  19 or decrease hereafter of the members of a  20 nation occupying a Reserve, such Reserve  21 shall be enlarged or diminished as  22 the case may be, so that it shall bear a  23 fair proportion to the members of the  24 nation occupying it.  The extra land  25 required for any Reserves shall be  26 allotted from vacant Crown lands, and any  27 land taken off a Reserve shall revert to  28 the Province."  29  30 My lord, if I may ask your lordship to note that,  31 that is the origin of the so-called reversionary  32 interest of the province in Indian reserves, which  33 caused a great deal of difficulty and was only  34 resolved when Mr. McKenna negotiated an agreement with  35 Sir Richard McBride.  But even then it is -- its  36 shadows have cast themselves a long way.  37  38 5th.  "That the present local Reserves"...  39  40 I note that Mr. Duncan referred to them as the present  41 local reserves.  42  43 "... be surrended by the Dominion to the  44 Province as soon as may be convenient;  45 the Province agreeing to give fair  4 6 compensation for any improvements or  47 clearings made upon any Reserve which may 28236  Submissions by Mr. Goldie 1                         be  surrendered by the Dominion and  2 accepted by the Province."  3  4 Now, that proposition leans pretty heavily towards the  5 Dominion idea as perceived by Mr. Walkem of large  6 reserves upon which people are concentrated and  7 removed from their original village sites.  8  9 Now, the Dominion on November 10th, 1875 responded  10 to British Columbia's suggestions for the resolution  11 of the impasse by means of an Order in Council which  12 made alternate proposals for the Province's  13 consideration.  14  15 And that's under Tab 60.  And I — that Order in  16 Council, which is at page 321 of the papers relating  17 to the Indian land question, page 2 of the -- of the  18 tab, after reciting Mr. Walkem's memorandum and  19 reciting Mr. Duncan's advice and comparing the two,  20 has his own -- the Dominion have their own proposals  21 set out on page 4 of the tab:  22  23 1.  "That with the view to the speedy and final  24 adjustment of the Indian Reserve question in  25 British Columbia on a satisfactory basis, the  26 whole matter be referred to three  27 Commissioners, one to be appointed by the  2 8 Government of the Dominion, one by the  29 Government of British Columbia, and the third  30 to be named by the Dominion and the Local  31 Governments jointly."  32  33 And then they're to go around to each Indian nation  34 and after full inquiry, to fix and determine for each  35 nation separately the number, extent and locality of  36 the reserves.  And they go on from that.  37 THE COURT:  Without a formula.  38 MR. GOLDIE:  Without a formula.  39  40 Now, I summarize these on page 118.  I say none of  41 the Dominion's alternative proposals spoke of Indian  42 title, and some were inconsistent with such a concept.  43 Briefly, they were:  44  45 1)  That a three-member Commission, consisting  46 of representatives of both governments and a  47 joint commissioner be appointed. 28237  Submissions by Mr. Goldie        1 2)  The  commission would "fix and determine for  2 each Indian nation (i.e., all tribes speaking  3 the same language) separately, the number,  4 extent, and locality of the Reserve or Reserves  5 to be allowed to it.  6 3)  There would be no fixed basis for  7 determining acreage.  8 4)  The commissioners would be "guided  9 generally by the spirit of the Terms of Union  10 ... which contemplated a 'liberal policy' being  11 pursued", and they were to consider "the  12 habits, wants and pursuits" of each nation,  13 "the amount of territory available in the  14 region occupied by them", and "the claims of  15 the white settlers."  16 5)  Each reserve would be held in trust for the  17 use and benefit of the nation concerned, to be  18 enlarged or diminished as population  19 fluctuated.  Additional lands would be allotted  20 from Crown lands, and lands no longer required  21 would revert to the Province.  22  23 So the reversionary proposition that Duncan originated  24 has picked up in the final proposal.  25  26  27 6)  Certain existing reserves would be  28 surrendered to the Crown.  29  30 Like its predecessors, copies of this Order in Council  31 were sent to the Lieutenant Governor of British  32 Columbia and to the Secretary of State for the  33 Colonies.  In his November 17th, 1875 transmittal  34 despatch to the Secretary of State, Lord Dufferin  35 noted:  36  37 "... that the British Columbia Government have  38 taken into consideration the representations  39 submitted to them on behalf of the Indians by  40 the Dominion authorities and that there is a  41 fair prospect of a satisfactory issue to this  42 important controversy."  43  44 Lord Carnarvon noted on the Minute Paper that he  45 was satisfied that the Commission's "conclusions will  46 be dictated by an enlightened spirit of humanity and  47 regard for the best interests of the Indian 28238  Submissions by Mr. Goldie        1 population.  2  3 The government of British Columbia accepted the  4 Dominion's counter-proposals dated 6th January 1876.  5 And that's under Tab 62.  And there is a typescript  6 which follows it, my lord.  I shouldn't say a  7 typescript.  It is the -- it is the copy as printed in  8 the papers relating.  9  10 And copies were sent to the Dominion government  11 and to the Secretary of State for the Colonies.  12  13 The two Orders in Council - P.C. 1088 of 10  14 November 1875, which was the Dominion and the British  15 Columbia, one of the 6th of January, 1876 - formed the  16 agreement under which the Joint Indian Reserve  17 Commission was established.  18  19 Now, not long after putting forward its  20 counter-proposals respecting British Columbia Indian  21 reserves, the Governor in Council cancelled the June  22 1873 Order in Council which provided for Boards of  23 Indian Commissioners to manage Indian affairs in  24 Manitoba and British Columbia.  I've already alluded  25 to this, my lord, but in chronological sequence here  26 it is.  Citing the difficulties which had been been  27 encountered with boards, including the reluctance of  28 both Lieutenant Governor's to serve on them, the Order  2 9 in Council made fresh arrangements for the management  30 of Indian affairs west of Ontario.  31  32 Two features of this Order in Council are of  33 interest:  34 a)  It established new "superintendents" for British  35 Columbia and for Manitoba and the Northwest  36 Territories.  The areas for those in British Columbia  37 were described geographically, while those in Manitoba  38 and the Northwest Territories were described with  39 reference to areas covered by the treaties which had  40 so far been concluded.  41 b)  The duties of the Old Boards, including that of  42 arranging "all the negotiations and treaties with the  43 Indian tribes" were referred to, but the duties of the  44 new superintendents and agents were left unspecified.  45  46 Now, we come back to British Columbia Crown Lands  47 Act of 1875.  Now, I have said, my lord, that this is 28239  Submissions by Mr. Goldie        1 substantially the same  the Act which was  2 disallowed, and the only change of substance was to  3 recognize the obligations under Term 11 and Term 13.  4 And I say on November 10th, 1875 - the same day as the  5 Dominion's alternate proposals for settling the Indian  6 reserve matter were approved - the Governor in Council  7 approved a memorandum of the Minister of Justice  8 regarding objections to British Columbia's 1875 Crown  9 Lands Act.  10  11 It had received Royal Assent on the 22nd of April.  12  13 It replaced the 1874 Act which the Dominion had  14 disallowed on March 16, 1875, "as tending to deal with  15 lands which are assumed to be the absolute property of  16 the province" - the Minister of Justice holding the  17 opposing view that, in his words, "that which has been  18 ordinarily spoken of as the Indian title must of  19 necessity consist of some species of interest in the  20 lands of British Columbia".  21  22 The 1875 Act was substantially the same as its  23 disallowed predecessor, but Section 60 was altered to  24 provide specifically for reserves of unalienated lands  25 for Indian and for railway purposes.  It provided:  26  27 "The Lieutenant Governor in Council shall, at  28 any time, by notice, signed by the Chief  29 Commissioner of Lands and Works and published  30 in the British Columbia Gazette, reserve any  31 lands not lawfully held by record, pre-emption,  32 purchase, lease, or Crown grant, for the  33 purpose of conveying the same to the Dominion  34 government, in trust, for the use and benefit  35 of the Indians, or for railway purposes, as  36 mentioned in Article 11 of the Terms of Union,  37 or for such other purposes as may be deemed  38 advisable."  39  40 The view of the Dominion's Minister of Justice in  41 November, 1875 was that "The alterations made in this  42 Act are not such as to meet the difficulties which  43 resulted in the disallowance of the former Act."  And  44 it's no wonder that he had that view, my lord, because  45 the 1875 Act made no more concession to Indian title  46 than the 1874 Act did.  47 28240  Submissions by Mr. Goldie        1 Adopting these  views, the Governor in council  2 expressed the hope that the "grave questions" which  3 arose respecting the 1874 Act and "those under  4 discussion between the two governments as to the mode  5 of dealing with the Indians" would be settled before  6 the expiration of the disallowance period, but warned  7 that if there were no settlement, "the policy and line  8 of argument which led to the disallowance of the  9 former Act must lead to the disallowance of this one  10 also".  11  12 The Privy Council recommended that its views be  13 communicated to the Government of British Columbia.  14 And that was done.  So that the Governor in Council  15 expressed the view that the -- what had led to the  16 previous disallowance might also lead to the  17 disallowance of this one.  18  19 However, as was noted earlier, the Government of  20 British Columbia agreed to the Dominion's  21 recommendations respecting a joint Indian Reserve  22 Commission on January 6th, 1876.  That is to say after  23 the Order in Council in which the disallowance  24 prospect was raised.  The date of that Order in  25 Council, my lord, was 10 November, 1875.  26  27 The Province -- I'm back in paragraph 68.  The  28 Province maintained that the Dominion's objections to  29 its 1875 Crown Lands Act had been "removed by the  30 agreement for a settlement of the Indian land question  31 by commissioners", and on May 6th, 1876, the Dominion  32 decided against disallowing the 1875 Act.  33  34 And I say the position taken by the Province and  35 the Dominion is consistent with the Colonial policy of  36 British Columbia that Indians had an interest in lands  37 they actually occupied:  The very lands which I say  38 would -- I might better say which might be reserved to  39 them by the Joint Indian Reserve Commission.  40  41 In his report on the matter, the Minister of  42 Justice, Edward Blake, wrote that he could not concur  43 in the view that the objections had been removed  44 entirely by the agreement to establish an Indian  45 Reserve Commission.  He thought there were still  46  47 "serious questions as to whether the 28241  Submissions by Mr. Goldie        1 within the  competence of the provincial  2 legislature, yet since according to the  3 information of the undersigned, the statute  4 under consideration has been acted upon, and is  5 being acted upon largely in British Columbia,  6 and great inconvenience and confusion might  7 result from its disallowance and considering  8 that the condition of the question at issue  9 between the two governments is very much  10 improved since (November, 1875), the  11 undersigned is of opinion that it would be the  12 better course to leave the Act to its  13 operation."  14  15 That reference is pages 7 to 9, my lord.  16  17 The great inconvenience and confusion, about which  18 the Minister expressed concern, would have been little  19 greater in 1876 than in 1875, when the Dominion  20 disallowed the 1874 Act.  21  22 Although the Minister of Justice recommended that  23 the 1875 Act be left to its operation, he observed  24  25 "... that this procedure neither expressly nor  2 6 impliedly waives any right of the Government or  27 Parliament of Canada to insist that any of the  28 provisions of the Act are beyond the competence  29 of the local legislatature, and are  30 consequently inoperative."  31  32 Now, I say it is significant that neither the  33 Governor in Council nor Parliament ever attempted to  34 exercise the right claimed by the Minister of Justice  35 to disallow any of the provisions of the Province's  3 6 1875 Act.  37 THE COURT:  Well, there can't be piecemeal disallowance, can  38 there?  39 MR. GOLDIE:  At one time it was thought there could be.  4 0 THE COURT:  I would have thought that what he's talking there  41 about being inoperative, that they would argue in a  42 court of law that the provisions were inoperative.  43 Do you think he's talking about partial disallowance?  44 MR. GOLDIE:  Yes.  Your lordship may recall that in some of the  45 older Acts, the -- there used to be a provision that  46 if this Act or any part thereof --  47 THE COURT:  Yes.  But I thought there was a time limit.  Wasn't 28242  Submissions by Mr. Goldie        1 there a time limit when  they had to disallow --  2 MR. GOLDIE:  Oh, yes.  He's -  3 THE COURT:  I'm not even sure there is a time limit.  4 MR. GOLDIE:  There — there used to be.  I think of — that they  5 have to act within a certain period of time.  6 THE COURT:  That's what I thought.  It seemed to me to be  7 awkward to let a statute be left to its operation, as  8 he says, and then come along later and disallow it.  9 MR. GOLDIE:  There's no time limit on ulta vires by a Court.  10 THE COURT:  No.  11 MR. GOLDIE:  But that isn't what they seem to be talking about  12 here.  13  14 Now, we come to the establishment of the Joint  15 Indian Reserve Commission.  On the same day, that is  16 to say May the 6th, 1876, that the Dominion cabinet  17 declined to disallow British Columbia's Crown lands  18 Act, 1875, the Governor in Council appointed the  19 Dominion's representative on the Joint Indian Reserve  20 Commission.  21  22 By the end of October, 1876, all three Indian  23 reserve commissioners had been appointed and given  24 instructions by the two governments, the first Laird  25 to Anderson, being the Dominion appointee; Laird to  26 Sproat, Sproat being the joint appointee; and the  27 next, memorandum of instructions to McKinlay, being  28 the B.C. appointee; and Sproat received two sets of  29 memorandum of instructions.  30  31 David Mills, Laird's replacement as Minister of  32 the Interior -- now, I had a date for when Mills took  33 over that portfolio, my lord.  I don't see it here,  34 but he -- by this time he was the Minister of the  35 Interior and by this time I have in mind the fall of  36 1876.  But I'll check that.  Mills reported on the  37 Indian Reserve Commission appointments and  38 instructions in the 1876 annual report of the  39 Department of the Interior, and noted at the same  4 0 time:  41  42 "The question of the rights of the Indians in  43 all the lands in British Columbia in which  44 their rights have not been extinguished by  45 treaties between themselves and the Crown is  46 still unsettled."  47 28243  Submissions by Mr. Goldie        1 Now, this report or  this statement that I've just  2 read from that report reflects Mill's view that Indian  3 reserves and Indian title in British Columbia were  4 separate questions.  The first question, Indian  5 reserves, had been provided for by Term 13 and by the  6 subsequent 1875-1876 joint agreement to establish a  7 mechanism for carrying it out.  Mills considered that  8 the second question, Indian title, remained  9 unresolved.  He would express similar, but more  10 forceful, views in 1877.  These are the views that my  11 friends rely upon.  12  13 The Province, on the other hand, considered that  14 both questions were resolved by the joint agreement to  15 establish an Indian Reserve Commission.  And I have a  16 note to refer to Tab 68.  Under Tab 68, my lord, is an  17 Order in Council, which adopts a report dated 28th of  18 April, 1876 from the Minister of Justice with  19 reference to the two Acts of British Columbia, one of  20 them being the 1875 Act.  And they concur -- they  21 recommend that the Acts be left to their operation,  22 but attached to it is the report of the Department of  23 Justice, and at page 7 using the pagination in the  24 lower right-hand corner, your lordship will find in  25 the paragraph in the middle of the page:  26  27 "The Lieutenant Governor's communication upon  28 this" -- I can't make out the next word.  29  30 THE COURT:  Would that be these statutes?  31 MR. GOLDIE:  32 "... statues that the objections taken by  33 council to it are considered to be removed by  34 the agreement for a settlement of the Indian  35 land question by commissioners."  36  37 So the Province was saying all objections are resolved  38 by the provision that has been made for the joint  39 commission.  40  41 The purpose of Term 13 and of the joint Indian  42 Reserve Commission Agreement was to set aside such  43 lands.  That is to say reserving to Indians lands they  44 used and occupied.  Once this task was accomplished,  45 nothing would remain outstanding or unresolved so far  46 as British Columbia was concerned.  47 28244  Submissions by Mr. Goldie 1                It is significant,  in my submission, that  2 Parliament in 1876 saw no necessary conflict in  3 pursuing different policies respecting Indian title in  4 different parts of Canada.  And when I say different  5 policies, I mean treaty versus nontreaty, because by  6 1876 with the -- with the institution of the Joint  7 Reserve Commission, the Dominion was pursuing a policy  8 in British Columbia that did not involve treaties,  9 whereas in the Prairies they were pursuing the treaty  10 policy vigorously.  11  12 Section 3(4) of the Indian Act, 1876 placed  13 "nontreaty Indians", as well as "Indians" otherwise  14 defined, under the operation of the statute, thus  15 remedying the flaw which had rendered the 1874 Act  16 inapplicable to Indians in British Columbia until they  17 were exempted from the operation of the definition  18 section.  I made reference to that earlier, my lord,  19 but I -- I refer here to the -- to the amendment to  20 the Indian Act which was passed in April of 1876,  21 which defines Indian as any male person of Indian  22 blood reputed to belong to a particular band and so  23 on.  And then subsection (4) the term nontreaty Indian  24 means any person of Indian blood who is reputed to  25 belong to a regular band or who follows the Indian  26 mode of life.  That took care of the situation in  27 British Columbia and in Quebec for that matter.  28  29 Then I come to Lord Dufferin's speech in Victoria,  30 about much has been said, and that was in September of  31 1876.  Now, my friends have cited that as a statement  32 of Imperial and Canadian policy respecting aboriginal  33 title to land in British North America.  In my  34 opinion, there was no such thing.  It was made without  35 the advice or even without the knowledge of his  36 constitutional advisors and it was made in his -- in  37 his capacity as a visitor, a distinguished visitor,  38 the Governor General on a progress through British  39 Columbia.  40  41 Now, your lordship will recall that in that speech  42 Lord Dufferin asserted that the government of British  43 Columbia was in "error" in "neglecting to recognize  44 what is known as the Indian title", something, which  45 he said, had "always been done" in Canada.  46  47 I say the fact that Lord Dufferin was misinformed 28245  Submissions by Mr. Goldie        1 respecting policy in  practice in Canada is not the  2 point here.  What is significant is that his speech,  3 by far the greater part of which concerned the Pacific  4 Railway, was not made on instructions from his  5 responsible advisors in Canada or on instructions from  6 the home government, a fact acknowledged by the  7 Governor General in the speech itself, when he said  8 that he  9  10 "... had not come on a diplomatic mission, or  11 as a messenger, or charged with any  12 announcement, either from the Imperial or from  13 the Dominion government...  nor should it be  14 imagined I have come either to persuade or coax  15 you into any line of action which you may not  16 consider conducive to your own interests..."  17  18 Now, my friends say he was on a diplomatic mission  19 and I take issue with that, and I -- I will endeavour  20 to show to your lordship that that simply wasn't the  21 fact.  22  23 In his confidential report to the Secretary of  24 State for the Colonies about his visit to British  25 Columbia, Lord Dufferin reminded Lord Carnarvon that  26 his visit to British Columbia "had nothing of a  27 diplomatic character", and that he had "been charged  28 with no special message either from your lordship or  29 from my ministers".  And that is found at Tab 77.  The  30 first page under that tab is from the speech itself,  31 my lord, and is the sideline to the acknowledgement he  32 made that he was -- he was not on a diplomatic mission  33 or as a messenger, et cetera.  The second is from the  34 print in the colonial office, Lord Dufferin's report  35 of his visit to British Columbia, and at page 3, the  36 page headed "North American No. 93, number 1,  37 "Confidential - Draft Report of Lord Dufferin's isit  38 to British Columbia:  39  40 "Having now returned to Ottawa, I propose in  41 this Despatch to submit to your lordship the  42 impressions I have derived from my visit to  43 British Columbia.  44  45 Your lordship is aware that my journey to that  46 Province had nothing of a diplomatic  47 character." 28246  Submissions by Mr. Goldie        1 Now, this was  confirmed by Prime Minister  2 Mackenzie, who wrote that when the Governor General  3 went to British Columbia:  4  5 ".... it was quite understood that he should  6 not, and could not, have any mission from the  7 Dominion Government, or any ambassadorial  8 function even as an Imperial officer which  9 might conflict with his vice regal duties here,  10 and that his visit therefore was strictly a  11 progress as governor."  12  13 That, my lord, is from the publication the Dufferin --  14 no.  That's -- that is from a publication which  15 contains Mackenzie's accounts of meetings with Lord  16 Carnarvon at this time.  It's Appendix 3 of that  17 publication, page 409, and he's -- he's describing the  18 discussion he had with Lord Dufferin about the changes  19 to the railway commitment to British Columbia, and he  20 said -- he describes Lord Dufferin in line 3:  21  22 "He then commenced a general and excited  23 discussion of what was involved in his writing  24 of such a paper.  Mr. Blake replied, pointing  25 out what we had done when he left for Columbia,  26 when it was quite understood that he should  27 not, and could not, have any mission from the  28 Dominion Government, or any ambassadorial  29 function even as Imperial officer."  30  31 The Secretary of State for the Colonies  32 acknowledged receiving a copy of the Governor  33 General's speech "upon the subject of the construction  34 of the Pacific Railway".  As before, he made no  35 comment on Lord Dufferin's exhortations concerning  36 "Indian title" in British Columbia.  So my -- it is  37 clear, my lord, in my submission, that the Governor  38 General was acting on his own -- on his own and he was  39 pursuing an interest in Indian title which he had  40 developed previously, perhaps on reading Bernard's  41 memorandum.  42  43 In any event, I turn to Mr. Sproat's memorandum.  44 Now, Mr. Sproat was the joint commissioner appointed  45 by both, and as your lordship is probably aware, Mr.  46 Sproat was a gentleman who went out to the west coast  47 of Vancouver Island, I think, in about 1860 and 28247  Submissions by Mr. Goldie 1            managed a sawmill there  and held a number of  2 positions.  But he met with Lord Dufferin while he was  3 in British Columbia.  And soon after the Governor  4 General's departure, he sent a long memorandum on  5 Indian Affairs in British Columbia to the Minister of  6 the Interior.  It's a memorandum dated the 29th of  7 September, 1876.  And it is -- it was described by  8 McKenna when he wrote to Sir Richard McBride in 1912  9 as Sproat's unpublished memorandum.  At any rate, it  10 survived in his -- in the -- in the archives, but as  11 far as I'm aware, it has not had any extended  12 reference by people who have been writing in this  13 time.  14  15 He said in his covering letter, dated 30  16 September, 1876, Sproat noted that the first part of  17 his memorandum concerned the question "of the full  18 Indian title to the country, and the supposed  19 necessity of extinguishing such full title".  20  21 Now, that I refer to Tab 80, which is a typescript  22 of his covering letter to Laird under the date 30th of  23 September, 1876.  He says:  24  25 "I send you an official, though I fear a very  2 6 imperfect memorandum, on Indian Affairs out  27 here, an now beg leave to add a word or two for  28 your information on this matter, which is  29 larger and likely to be more costly than the  3 0 government imagined.  31 The first portion of the memo is on the  32 question of the full Indian title to the  33 country, and the supposed necessity of  34 extinguishing such full title.  This is a  35 question which the Governor General several  36 times referred to, when here, in conversation  37 and also publicly, and I said to His Excellency  38 that I would send a statement of my views on  39 the subject to Ottawa, and perhaps His  40 Excellency may find time to read at least that  41 portion of the memorandum.  42 Passing over the question of whether the  43 principle is a sound one, I must say frankly  44 that I think it should not have been  45 communicated here, because I have no hope that  46 the Canadian Parliament will vote money to give  47 effect to it.  If treaties are made here on the 28248  Submissions by Mr. Goldie        1 basis of some of  the Manitoba treaties, which I  2 have seen - $12 a head cash down, and so forth,  3 it will require an enormous sum of money, both  4 at once and prospectively, to be expended on  5 Indian account in this province.  When it was  6 paid, the Indians would be no more satisfied  7 than they were before it was paid.  It would  8 therefore be a waste of money.  The difficulty  9 now is that the new principle is known  10 everywhere.  The Indians in this province are  11 wide awake, half-breeds in Victoria read the  12 newspapers to Indians who transmit the news  13 from tribe to tribe, with a rapidity that  14 outstrips the mail; already the names and  15 characters of the commissioners"...  16  17 He's referring to himself and his two colleagues.  18  19 "... are known in all parts of the province.  20 The missionaries tell the Indians what is going  21 on.  It is therefore necessary that the  22 commissioners should know what the Dominion  23 really require, looking to these facts and to  24 the nonexistence of any nontreaty Indians at  25 all in British Columbia at present.  If Indians  26 ask about this new principle, what are the  27 commissioners to do?"  28  29 The full memorandum is a very lengthy one, my lord.  30 It's found under Tab 79.  And the note I have is that  31 it's addressed to the Minister of the Interior and  32 it's 29th of September, 1876.  The note I have is that  33 Mills came in on the 24th of October, '76.  Laird went  34 out on the 6th of October and it was an interim  35 appointment.  36 THE COURT:  I notice it's five o'clock, Mr. Goldie.  Is this  37 a --  38 MR. GOLDIE:  My lord, it was originally arranged that we would  39 start at nine o'clock tomorrow to allow Mr. Wilms and  40 my friends, Mr. Rush and Mr. Grant, to make some  41 submissions.  They have very kindly agreed to do that  42 on Thursday so that I might start at nine with your  43 lordship's endurance.  44 THE COURT:  All right.  ARe you going to be able to finish  45 tomorrow?  46 MR. GOLDIE:  I may take a few minutes on Wednesday morning if we  47 can start at nine o'clock then. 28249  Submissions by Mr. Goldie        1  THE COURT:  I have looked at my  scheduled, which is different  2 from what I thought it was.  I have a -- a reception  3 tomorrow.  I could, if necessary, sit tomorrow evening  4 after from about seven-thirty, I think, something like  5 that if that would --  6 MR. GOLDIE:  I think I better put my nomination in for that, my  7 lord.  8 THE COURT:  What do other counsel say about that sort of regime?  9 If it's just a few minutes that you're going to take  10 on Wednesday and if Mr. Macaulay and his people won't  11 be unduly inconvenienced, I think as it's often been  12 said, I'd just as soon be somewhere else, but I  13 think —  14 MR. WOLF:  I don't think there's any problem from our  15 prospective about starting at nine o'clock on  16 Wednesday morning if Mr. Goldie needs an hour, hour  17 and a half.  I don't think Mr. Macaulay would object  18 to that.  19 THE COURT:  All right.  Well, I'll leave it open.  But it should  20 be settled by noon tomorrow whether we're going to sit  21 tomorrow night or not.  I can sit for a couple of  22 hours tomorrow evening if necessary.  All right then.  23 You want to start at nine?  24 MR. GOLDIE:  Yes, my lord.  Thank you.  25 THE REGISTRAR:  Order in court.  Court stands adjourned until  26 nine o'clock tomorrow.  27  28 (PROCEEDINGS ADJOURNED UNTIL JUNE 12, 1990 at 9:00 A.M.)  29  30 I hereby certify the foregoing to be  31 a true and accurate transcript of the  32 proceedings transcribed to the best  33 of my skill and ability.  34  35  36  37 Kathie Tanaka, Official Reporter  38 UNITED REPORTING SERVICE LTD.  39  40  41  42  43  44  45  46  47


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