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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-04-27] British Columbia. Supreme Court Apr 27, 1989

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 16344  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 VANCOUVER, B.C.  2 April 27, 1989  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, Vancouver, this Thursday, April 27, 1989.  6 Calling Delgamuukw versus Her Majesty the Queen at  7 bar.  And I caution the witness, you're still under  8 oath.  9 MS. MANDELL:  My lord, I have one more question and a few  10 housekeeping matters if your lordship will bear with  11 us.  12 THE COURT:  Yes.  13 MS. MANDELL:  Mr. Morrison, are you aware or have you been able  14 to find any historical documents which would indicate  15 that the Crown and/or the Imperial officials took a  16 definitive position as to the boundaries expressed in  17 the Charter to Hudson's Bay Company of 1670.  18 MR. GOLDIE:  I'm sorry, there are two questions there.  One was  19 "Are you aware", and the other was "Have you been able  20 to find documents".  I object to the "Are you aware",  21 I take no objection to the document question.  22 MS. MANDELL:  All right, I'll go with that.  23 THE COURT:  All right.  24 A   I've been unable to find historical documents which  25 indicate that the Crown took a definitive -- or  26 Imperial official took a definitive position as to the  27 boundaries expressed in the Charter of the Hudson's  28 Bay Company.  I think it's a well known historical --  29 MR. GOLDIE:  Excuse me, that's what I object to, because when  30 the witness talks about well known historical facts, I  31 want the documents, otherwise I'm completely at sea.  32 MS. MANDELL:  Well, there will be, we'll make reference to the  33 documents he'll be speaking about, my lord.  34 THE COURT:  All right.  There are documents, are there, that you  35 have in mind and the answer you hope to give us?  36 A   The answer I'm going to give is basically, in my view,  37 negative evidence.  That is yesterday I was referring,  38 for example, to the Prince Regent's Proclamation in  39 1817 to the Statute of 1821 granting exclusive right  4 0 of trade to the Hudson's Bay Company or the company  41 formed from the merger of the Hudson's Bay Company and  42 the Northwest Company, and what I'm saying simply is  43 that for the 200-year period of its existence the  44 boundaries of Rupert's land were hotly disputed, I  45 think, and that's what I meant by a sort of accepted  46 view of historians, and at each time that the question  47 arose and where Crown officials were obliged or were 16345  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 asked to take a position on those boundaries, they did  2 not do so.  3 MR. GOLDIE:  I think it's incumbent upon the witness to specify  4 what he is talking about.  It he's talking about some  5 general treatise, let him identify it.  If he's  6 talking about the, for instance, the negotiations with  7 respects to the Treaty of Utrecht, there are  8 documents.  That's all I'm asking.  9 THE COURT:  What is the Prince Regent's Proclamation?  10 A   That was in 1817, and that was -- I believe it's at  11 tab --  12 THE COURT:  We dealt with it, didn't we?  13 A  We dealt with it yesterday, yes.  14 THE COURT:  By another name?  15 A   It's in volume 4 at tab 16.  And it's at the time of  16 the so-called Red River troubles and the other areas  17 of dispute between the trading companies, and this is  18 of course mentioned in the course of the Proclamation.  19 And what I'm simply saying is that the Crown officials  20 were obviously at the time of this dispute asked to  21 take a position as to the boundaries expressed in the  22 charter, and those officials continually refused to do  23 so.  24 MR. GOLDIE:  Well, I repeat my request, my lord.  If the Royal  25 Proclamation is the evidence that he relies upon that  26 the officials refused to do so, well and good, but if  27 he's referring to correspondence between the Hudson's  28 Bay Company and the Crown, I think it's incumbent upon  29 him to specify the documents that he relies upon.  30 THE COURT:  Well, I think he's doing that, isn't he, in a  31 negative way.  32 A   That's what I meant by negative evidence, that's what  33 I'm referring to.  34 MR. GOLDIE:  If his evidence is "I haven't been able to find  35 anything", that's one thing, but if he says "There's  36 this dispute", that implies there is correspondence  37 or documents.  38 THE COURT:  I'm not sure it's quite that narrow.  One can refer,  39 as the witness has already, to the -- this  40 Proclamation of 1817 and the Statute, and by reference  41 to that and historical facts an inference can be drawn  42 that no position has been taken when it might have  43 been taken.  44 MR. GOLDIE:  Yes.  If that's his evidence, that "I draw an  45 inference from this document".  4 6 THE COURT:  Yes.  47 MR. GOLDIE:  But if he draws an inference from other documents, 16346  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1  2  THE  COURT:  3  4  1  5  6  A  7  ]  8  9  THE  COURT:  10  A  11  THE  COURT:  12  A  13  THE  COURT:  14  A  15  16  1  17  18  19  20  21  THE  COURT:  22  A  23  THE  COURT:  24  A  25  THE  COURT:  26  A  27  28  THE  COURT:  29  30  A   '  31  32  33  34  MR.  GOLDIE  35  1  36  37  1  38  39  40  41  THE  COURT:  42  43  MR.  GOLDIE  44  ]  45  46  A  47  I want to have them identified.  I don't think there's anything between us on this, I  think we'll get to that.  What else -- by the way, how  does the Prince of Wales come into making the  Proclamation?  Because George III, the expression would be non compos  mentis, and he dies in 1820, but Prince Regent, who  later became George IV, was acting instead.  All right.  And you also mentioned the Statute of --  1821.  Yes, and 1838?  And 18 3 8.  Anything else?  The various discussions, I would say again as a  general historical point that the Hudson's Bay Company  Charter had been challenged in the 1740's by Arthur  Dobbs and a group of people connected with them,  including Henry Ellis, who had been referred to in  some of the historical documents, the former Governor  of Georgia.  How do you spell Ellis again?  E-L-L-I-S.  E-L-L-I-S?  Yes.  Yes?  And that their challenge to the Charter itself was  unsuccessful.  But --  Well, they couldn't get anyone to pay attention,  could they?  Well, there was an investigation.  The house of Lords  and -- there are a number of historical documents  connected with that challenge, and one of the points  that the --  :  Well, unless the witness is going to produce the  documents I prefer him not to have one of the points.  If he's going to produce the document and do as he's  done with us before, say "I wish to draw your  attention to that", that's fine, but I must say, my  lord, that I don't want to have to deal with  generalities.  Well, I don't know, Mr. Goldie, it seems to me we're  getting pretty good specificity here.  :  Well, I would like to have the document in front of  me now before he starts talking about one of the  points.  I'm raising the Dobbs challenge because, again, it's  an -- I believe it's a well known historical fact, and 16347  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MS.  COURT  A  COURT  A  the conclusion of course was against Dobbs.  He was  unsuccessful in challenging it, but that the true  extent of the charter, as I said at the beginning, ]  don't believe was ever definitively settled, and  that's my simple point.  Anything else you want to refer to?  No.  MR.  MS.  MR.  MS.  THE  MS.  THE  THE  THE  Positively or negatively?  No.  I don't propose to refer to either.  MANDELL: The only other area I would ask you to refer to,  if you have any further documents which you're aware  of with respect to the fur trade history. Are there  documents to tell us whether by 1763 the fur traders  had -- the fur traders from the Hudson's Bay Company  had been exploring in the area which is construed as a  potential western limit of the Hudson's Bay Company  Charter?  GOLDIE:  Well, are we -- what is the western limit that  they -- the witness having said the limits has never  been definitively --  MANDELL:  In the area of a western limit.  GOLDIE:  What is the western limit that my friend is asking  the witness to assume?  There's a hypothetical  question here.  I'm sorry, the hypothesis hasn't been  explained.  MANDELL:  How —  COURT:  Well -- I'm sorry, you ask the question.  MANDELL:  Q   All right.  Had the Hudson's Bay Company fur traders  at 1763, according to the documentary record that  you've been able to explore, penetrated into the  Canadian prairies?  A   The -- other than a trip made by Henry Kelsey, an  employee of the Hudson's Bay company in the late 17th  Century, and the well known explorations of Samuel  Hearne, H-E-A-R-N-E, to the north.  Well, he went up to the copper mine?  Yes.  He went up to the copper mine.  Did he make a trip into the prairies?  COURT  A  COURT  A  COURT  A  No.  No.  I didn't think so.  The Hudson's Bay Company basically maintained posts on  the coasts of James and Hudson's Bay and did not begin  to build inland posts until after 1763.  The  boundaries of their Charter claim were -- of course  various versions of those boundaries were asserted by  the Crown as part of international negotiation and 1634?  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 dispute.  The boundary was of course a matter of  2 dispute at the time of the Treaty of Utrecht of 1713,  3 which did provide that commissioners would be  4 appointed to establish the boundary, and the  5 commissioners did not agree.  6 THE COURT:  And when was that?  7 A   That was after 1713.  This was between Britain and  8 France as to the extent of -- the French of course  9 claimed that the Hudson's Bay Company only had rights  10 as far as just below James Bay, Hudson's Bay, and the  11 British, for the purposes of asserting British  12 dominion, at various times pushed the Hudson's Bay  13 claims down as far as -- almost as far as Lake  14 Superior and a considerable distance westward.  15 MS. MANDELL:  Those are my questions, my lord.  16 THE COURT:  Thank you.  17 MS. MANDELL:  I have a number of housekeeping matters which I  18 would like to draw to your lordship's attention.  19 First of all, there are pages missing which I shall  2 0 provide to the court in volume 3 tab 8 and volume 3  21 tab 6.  This is the Charter of the Hudson's Bay  22 Company, which your lordship was just hearing about --  23 evidence about, and also the Charter of Virginia, and  24 I noticed that there are a page missing from each  25 Charter and I'll provide them to the court.  The  26 second is that in volume 2 tab 16 the index  27 misdescribes the content of the tab, and if I could at  28 this time, my lord, give you the proper description of  29 the tab index for being used for your own or for the  30 Court's reference.  There's four items in the tab,  31 first is a letter from Haldimand to Guy Johnson of  32 July 13th, 1780.  33 THE COURT:  Just a moment, please.  July —  34 MS. MANDELL:  13th, 1780.  35 THE COURT:  Yes.  36 MS. MANDELL:  Second is a letter from Johnson to Haldimand --  37 sorry, Johnson to Holdon, H-O-L-D-O-N?  3 8 A   Haldimand.  39 MS. MANDELL:  May 9th, 1781?  4 0 THE COURT:  Yes.  41 MS. MANDELL:  The third is Haldimand to Bolton, B-O-L-T-O-N,  42 July 7th, 1780, and the fourth is a copy of an  43 agreement with the Mississagas, M-I-S-S-I-S-S-A-G-A-S,  44 in Niagara, May 9th, 1781.  45 THE COURT:  1771?  46 MS. MANDELL:  1781.  47 THE COURT:  All right, thank you. 16349  Discussion  1 MS. MANDELL:  And I've also agreed to attempt to provide better  2 copies for both the maps and one of the tabs where  3 everything is a bit obscure, and I'll do that.  4 THE COURT:  Was that map ever marked as an exhibit?  5 MS. MANDELL:  That's got a tab number, it's tab 27 of volume 1.  6 THE REGISTRAR:  29 and 30.  7 THE COURT:  All right, yes.  8 MS. MANDELL:  Yeah.  9 THE REGISTRAR:  Oh, you mean that map?  10 MS. MANDELL:  Yeah.  That map is tab 27.  11 THE COURT:  What's that map called?  12 MS. MANDELL:  It's the Bowen map, or it's a copy of —  13 THE COURT:  B-O-W-E-N?  14 MS. MANDELL:  B-O-W-E-N.  The map that's been colour coded, and  15 it is larger that's contained in the coding.  16 THE COURT:  All right, thank you.  17 MS. MANDELL:  Okay.  Those are my questions, my lord, thanks  18 very much.  19 THE COURT:  All right, thank you.  Mr. Goldie.  20 MR. GOLDIE:  No questions, my lord.  21 MS. KOENIGSBERG:  No questions, my Lord.  22 THE COURT:  All right.  Call your next witness.  Well, I suppose  23 we're dead in the water, are we?  You're not able to  24 proceed with anything?  All right.  We'll look forward  25 to seeing you all again in a week's time.  26 MS. MANDELL:  My lord —  27 THE COURT:  Sorry, it's two weeks' time.  28 MS. MANDELL:  I hadn't expected this.  I had been asked by Mr.  29 Rush to advise that there was some housekeeping  30 matters that he had expected to raise Friday morning,  31 and perhaps at this time I could be assisted by your  32 lordship with respect to that.  33 THE COURT:  Is it convenient for counsel to be here Friday  34 morning?  Do you know what it's about, Mr. Goldie?  35 MR. GOLDIE:  No, I don't.  36 MS. MANDELL:  I unfortunately don't either.  37 THE COURT:  I don't either.  I will make myself available on  38 Friday if it's convenient to all parties, if not it's  39 probably better --  40 MR. GOLDIE:  Well, if it has to be dealt with, I had certainly  41 not planned on being here tomorrow morning.  42 THE COURT:  Yes.  Well, I think we better arrange some other  43 time, Miss Mandell.  I will be sitting in the Court of  44 Appeal next week.  I'm not sure that -- I don't think  45 I will be sitting the following week, but I can make  46 myself available, or we can do it with the start of  47 the next witness, whichever is convenient.  All right. 16350  Discussion  1 MS. MANDELL:  Do it at the start of the next witness.  2 THE COURT:  Thank you.  You're excused, Mr. Morrison.  3 A   Thank you.  4 THE REGISTRAR:  Order in court.  Court is excused until May  5 15th.  6  7 (PROCEEDINGS ADJOURNED)  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein transcribed to the  12 best of my skill and ability  13  14  15  16  17 Graham D. Parker  18 Official Reporter  19 United Reporting Service Ltd.  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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