685 Submissions by Mr. Grant 1 Vancouver, B.C. 2 May 14, 1992. 3 4 CORAM: Taggart, Hutcheon, Macfarlane, Lambert, Wallace, JJA. 5 6 7 THE REGISTRAR: In the Court of Appeal for British Columbia, 8 Thursday, May 14th, 1992. In the matter of Delgamuukw 9 versus Her Majesty the Queen, at bar, my lords. 10 MR. ARVAY: My lord, I just want to introduce Mr. Glen Bell as 11 counsel. 12 TAGGART, J.A.: Mr. Bell. 13 Mr.Grant? 14 MR. GRANT: Thank you, my lord. 15 Yesterday I was at Appendix "C", page eight of the 16 oral history, and I just should advise the court of 17 our intention this morning is that I will -- I am 18 going to very much minimize references. I will take 19 you to one in R-23 right away, but I am going to be 20 minimizing that and try to complete this appendix and 21 deal with tab 5 before the morning break. So I am 22 going to be expeditious. But if I am speaking too 23 fast, I will try to keep track of your lordships that 24 you are not -- that you're following me. 25 First of all, I would like to say with respect to 26 paragraph 18 of the factum, Appendix "C", I referred 27 you yesterday to a number of the authors and writers, 28 and I should just complete my answer to Mr. Justice 29 Lambert, that another reference of Duff is Exhibit 30 901-30 in which Duff critiques Barbeau's dating of 31 totem poles and social organization. And that's at 32 Exhibit 901-30. It's in one of our reference books. 33 I will be coming to it and I will mention it in 34 passing and, of course, we will provide you with the 35 Appeal Book references. Apparently we don't have the 36 updated index ourselves yet but we are checking that. 37 HUTCHEON, J.A.: These are for Duff and the others? 38 MR. GRANT: For Duff, all of these Duff references that Mr. 39 Justice Lambert asked me. 40 Now, I would like to -- as I mentioned, I would 41 just ask you to note in tab 18 at the front is the -- 42 is Dr. Daly's explanation of oral history, and at -- 43 and that's in -- I am not going to take you to it. 44 But at pages 11928 to 11930, which are in there, he 45 explains Trigger, because -- and doctor -- and the 46 trial judge relies on Trigger's apparent rejection of 47 oral history at page 180 of the reasons. Dr. Daly 686 1 knows Trigger, he explains Trigger, Trigger is a 2 historian who studied the Huron. The Huron documents 3 do not include oral history, they include the 4 documents -- the best documents of them are the Jesuit 5 Relations, which are ethnohistorical documents, like 6 the Brown records. And Dr. Daly in those pages 7 answers the questions about Trigger. 8 I would like to take you, to reflect on the last 9 commentary, it's in volume R-23, the very end, just 10 before tab C-19, and this is Dr. John Cove, an extract 11 from his book published in 1987. And at page 43 -- 12 TAGGART, J.A.: I am sorry, tab? 13 MR. GRANT: If you go to R-23, my lord, and just before tab 14 C-19, it's the last reference under C-18, actually, so 15 that you see that tab C-19, it's just three pages 16 before that tab. 17 Page 43 of Shattered Images, Dr. Cove's book. Dr. 18 Cove's another anthropologist who studied with Dr. 19 George McDonald, the Barbeau-Beynon records. And here 20 he says, at page 43, the first -- the second full 21 paragraph: 22 23 "Although an anthropologist might be willing to 24 accept narratives collected at the turn of the 25 century as representative of the era defined, 26 there is obvious reasons for being suspect of 27 ones recorded later. Again, my own field 2 8 work..." 29 30 And he did field work among the Gitksan, 31 32 "...indicates that much of their oral tradition 33 has remained unchanged. Many narratives which 34 I heard are virtually identical to those 35 collected almost 100 years earlier. Part of 36 the reason for consistency is the connection of 37 oral tradition to important rights and 38 prerogatives and also to the centrality of the 39 feast or potlatch up to the present day." 40 41 And there is other references on pages 44 and 45, 42 the last paragraph on 44 going to the end of the 43 paragraph on 45 that I just ask you to note for 44 reference. 4 5 MR. MACAULAY: My lords, I wonder in my friend could inform us 46 what exhibit number he is referring to? 47 MR. GRANT: As my friend knows, this is not an exhibit, it's a 687 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 WALLACE, J.A. : he? MR. GRANT: Dr WALLACE, J.A.: MR. GRANT: No WALLACE, J.A.: MR. GRANT: Dr publication of Dr. Cove in 1987, and my friend is fully aware of that, and I tell the court that. It's not an exhibit. It is a publication of Dr. Cove. Now, one other point I wanted to say regarding this binder, is if you just flip to the very front of it you will see the first reference is to the document book of Dr. Richard Daly. And in that -- volume two. And that listing is listings of a series of the adaawk or oral history from the Barbeau-Beynon records from which Dr. Cove prepared a document, which I will refer you to later this morning, in which he analyzed all of the different resources utilized by the Gitksan and the coastal Tsimshian, in trade and for other purposes, and he listed them, and the purposes for which they are used. He analyzed these oral histories for that purpose. Now, I am going to return you to my factum. Just so I am clear, Dr. Cove was a witness, was Cove? Yes. Was his material adopted by a witness? Cove's -- what I am referring you to in Dr. Cove's publication, Shattered Images, is that he is another anthropologist. His book came out in 1987. It may have been referred to in one of the bibliographies, and I will check that for your lordsip. WALLACE, J.A.: I am just wondering, did any witness adopt what he had to say and was it cross-examined or not cross- examined on? MR. GRANT: Well, his opinion with respect to the validity of the oral history is the same opinion as Dr. Daly had, as Dr. George McDonald had, in the material that was filed with the court, as Drucker had -- WALLACE, J.A.: Well, they were witnesses. MR. GRANT: Drucker is not a witness, Dr. George McDonald is not a witness. These are other anthropologists in the field who Dr. Daly relied upon. I am referring you only to yet another reference to this particular body of material, and another anthropologist who has come to these conclusions regarding that material. MACFARLANE, J.A.: It wasn't in evidence at the trial? MR. GRANT: Dr. Cove did not give evidence at the trial. TAGGART, J.A.: I say the report was not in evidence at trial? MR. GRANT: His book was not in evidence. Not in evidence? What you have just referred to is not in 1 MACFARLANE, J.A. 2 MR. GRANT: No. 3 MACFARLANE, J.A. 4 evidence? 5 MR. GRANT: It's not in evidence at the trial. 6 MACFARLANE, J.A.: How can you refer to it here? 7 MR. GRANT: Well, as I say, my lord, it was my recollection it 8 was referred to in one of the bibliographies, that is 9 one of the sources relied upon. And I will advise the 10 court of that, if it was or was not. 11 LAMBERT, J.A.: How about Mr. Drucker's book or Wilson Duff's 12 book, are they in as exhibits? 13 MR. GRANT: Yes, all of those are exhibits, all except this 14 reference of Cove's. 15 LAMBERT, J.A.: You're going to keep telling us every time 16 you're referring to something whether it's in evidence 17 or not? Because we should have that clearly in mind. 18 MR. GRANT: Yes, my lord. And I regret that I had not said that 19 at the beginning. I should have said that at the 20 beginning with respect to Dr. Cove. The only 21 reference I have given you that is not in evidence is 22 the Cove reference. 23 LAMBERT, J.A.: There is a recent decision of the Supreme Court 24 of Canada, as I understand it, that talks about 25 historical matters as evidence, and taking judicial 26 notice of historical facts. And I believe it sets out 27 the different tests for history than it does in 28 relation to knowledge of current events, which must be 29 notorious before judicial notice can be taken of them. 30 If you get a chance as you go along to refer us to 31 that, that would be a help. 32 MR. GRANT: I will, yes. 33 Now, if I can take you to paragraph 19, the trial 34 judge dismissed this 70 years of collection and 35 analysis. And in paragraph 19 and 20 we refer to his 36 finding and, with respect, the appellants submit the 37 only correct part of the statement is that the oral, 38 body of oral histories is vast. And I believe I 39 demonstrated to you that it is certainly not 40 uncharted, nor are they terra incognita. They have 41 been well reviewed and analyzed by many, many scholars 42 in the field. Not to say that is still -- not still 43 pursuing. 44 And as I refer you to in 21, the northwest coast 45 oral histories were collected over a 40-year period by 46 William Beynon, and was highly regarded by Barbeau, 47 Drucker and Duff. And here Drucker and Duff, the 689 1 references are provided and they are exhibits. 2 I would like to just briefly refer you to paragraph 3 24, and refer you to the trial judge's reliance, at 4 page 180 -- I am not going to take you to it -- on a 5 statement by Bishop and Ray. Now this was Dr. Ray who 6 gave evidence. He, in an article advocating inclusion 7 of historical documents among research tools of 8 anthropologists and archeologists and discussing the 9 limitations of "memory ethnography". Their comments 10 were taken out of their geographic and temporal 11 context. Now, I have just, as a note for your 12 lordships, Bishop and Ray is in the -- and I am not 13 going to take you to it -- is in the reference books, 14 at tab C-25, and it's Exhibit 1191A-47. And I have 15 put in pages 116 to 128. What you can see when you 16 look at that reference that the trial judge relied 17 upon, and what was significant, there is a couple of 18 points significant that we raise there, he is 19 talking -- they are analyzing the subarctic east of 20 the Rockies, where there was protocontact, that is, 21 indirect contact influence, for between 3 or 400 22 years. That's what they were talking about. That's 23 significantly different than here. The second 24 significant point is that Dr. Ray was called to the 25 stand by the appellants, Dr. Ray was never questioned 26 by the respondents on this article. He was never 27 asked anything about it by the respondents as to how 28 it applied, even though he was available, and then 29 they relied upon it and questioned other witnesses on 30 that point. 31 Now, in -- I refer you to paragraph 27, where Dr. 32 Daly refers to and considered the Bishop and Ray 33 article, and he directly in this reference here, and 34 in the material, he refers to the oral histories. And 35 he was cross-examined on Bishop and Ray and whether he 36 relies on them. He agreed with their cautions, the 37 cautions in analyzing oral history, and he said he 38 took them into account. 39 Paragraphs 25 to 32 of this factum deal with an 40 analysis of oral histories of the Iroquois. William 41 Fenton, who has analyzed oral histories, unlike 42 Trigger, who is a learned historian but not a person 43 relying on oral histories. Fenton did a careful 44 analysis of the Iroquois oral histories. And I just 45 want to say that in these subsequent paragraphs, 46 paragraphs 28 to 32, he -- that is dealt with. And 47 Dr. Daly, and I remind you that, of course, Dr. Daly's 690 1 evidence was, as we say, disregarded by the trial 2 judge for the reasons he set out and that Mr. Adams 3 referred to, but he, as a scholar in the field, came 4 to this conclusion regarding the Gitksan and 5 Wet'suwet'en oral history. I am referring to 6 paragraph 33: 7 8 "The oral tradition is a worthy historical 9 source material when it is treated as a whole, 10 a corpus of linked and overlapping records of 11 events that have been reiterated down through 12 the generations. Individual tellings of one 13 chief's history must be compared with one 14 another and then with the accounts of the same 15 or related events from the viewpoint of other 16 chiefs. When this is done carefully, the oral 17 tradition can be treated as a valid historical 18 source." 19 2 0 And I want to make a comment on Dr. Daly in 21 response to Mr. Justice Lambert's question yesterday, 22 that Dr. Daly, his Social Sciences and Humanity 23 Resource Council grant, which was an independent grant 24 from the government, was to do research on West Coast 25 native tribes. And that research, that project he had 26 was with respect to the Gitksan specifically. So that 27 was independent of the work he was doing involved in 28 the case. That was the work he got in 1988. 29 But what Dr. Daly is saying here is consistent 30 with Barbeau, Duff, Drucker, Jenness, and as I have 31 referred to, the more recent author. 32 I would like to now take you to what's key here, 33 and that is the question of specific lands. The trial 34 judge accepted oral histories admissible in 35 principle -- I am at paragraph 34, my lords -- but he 36 found, erroneously, that: 37 38 "...they are not sufficiently precise as to 39 location to found a conclusion of specific 40 long-term occupation... [The events described] 41 could have happened almost anywhere." 42 43 And I would like to, with reference to that, take 44 you to R-24, and in specifics take you to tab C-36, 45 and if everything is as it should be, at the end of 46 that tab there is a sketch map of the Tenimgyet 47 territories which has some highlighting on it like 691 1 this. 2 LAMBERT, J.A.: The volume number is? 3 MR. GRANT: R-24. I am sorry, my lord, R-24. 4 LAMBERT, J.A.: Then the tab? 5 MR. GRANT: Tab C-36, the last, very last page, so just before 6 tab C-39. Here what I am referring you to, 7 geographically-speaking, is -- you have Gitwangak 8 here, you have the Skeena River going down here, this 9 small area of Tenimgyet here, this large area of 10 Tenimgyet there. 11 Now, when we advised the court we were going to 12 give evidence of oral histories, the court expressed 13 some concern, especially when Mr. Mathews, Tenimgyet, 14 gave I believe it was four different oral histories in 15 four adaawk over the course of two days, as to how 16 lengthy it would be, what we did is we exemplified 17 through an oral witness how it tied to geography. 18 Now, I am going to just summarize for you this map. 19 What his evidence is, and it's referred to at 20 paragraphs 35 and 36, and the transcript references 21 are all in the reference book ahead of this map. 22 Mr. Rush explained to you about this particular 23 adaawk, called Wii Hloots. Now, this map, the trail 24 you see is in blue. I have highlighted some of the 25 names along the route in yellow, and the outer 26 boundaries of both territories are in yellow. If you 27 start on this map where at the far -- where the blue 28 line first is shown, the trail indicates that he and 29 his brother, Wii Hloots, he and his brother went out 30 and they followed that line all the way over to the 31 number four on the map, and under there, at the far 32 left in that territory, you see that name, it's down 33 in the corner. That's where they hunted the Caribou, 34 they chased the caribou up to that place called 35 Loklo'obit, that's going along that outer boundary, 36 and that's where they caught the caribou. They used 37 caribou traps which are described in the oral history 38 and that Loklo'obit is the island that Mr. Rush 39 referred you to where the man was buried in the later 40 part of the last century, that trespassed on the Nisga 41 territory. This is where the brother killed Wii 42 Hloots, because they fought over the caribou. This is 43 all described in the oral history. He then travels 44 back with the caribou to his brother Tenimgyet at 45 Wilson Creek, and I am going to that territory on the 46 far right, the little triangular one I will refer to 47 as the Wilson Creek territory. And then famine 692 1 arises, the man who killed his brother, they saw this 2 as a punishment, travels out again with his mother, 3 and he travels along this same route and he goes to 4 these places. And what's significant here is that 5 these places are physical locations on the territory 6 told in the oral history, and they are specifically 7 located. Mr. Mathews has been to them. The first one 8 is that place on the map, An sagan tsaltwit. They 9 were looking for a grizzly bear, because they knew 10 were the grizzly dens were, and these were markings of 11 grizzly dens on this map. There was no grizzly there. 12 They were starving. He continued to Gisak loot, that 13 other line, next to the blue, no grizzly there. He 14 goes up to what's called Wilp dagan, and that's that 15 triangle there, he leaves his mother there and he goes 16 up along Luu lax sooxsit, which is again highlighted. 17 It's up in the north end there. He finds a grizzly 18 there and he brings it back down and his mother has 19 died. I am sorry, he doesn't find it there, he goes 20 along and over to Loklobit. He finds a grizzly there, 21 brings it back to his mother who is waiting. She has 22 died in the interim. Then he burns the body and it's 23 described in the adaawk what he does. And then he 24 goes back to his brother. Now, what's significant 25 about this oral history, described in detail by Mr. 26 Mathews, is that geographic locations specifically at 27 places on the ground are described. And that's what 28 is demonstrative about the oral histories. With the 29 greatest of respect, the learned trial judge erred and 30 had to have disregarded the evidence. 31 Now, maybe he had the view, and he mentions that 32 the appellants did not put in a lot of these. And 33 that was true. We endeavored to try to demonstrate it 34 through this particular oral history. But what we did 35 do, and I refer you to paragraph 38 and following, is 36 we referred to different -- 39 and following, 37 different oral histories. And I apologize, my lords, 38 but if you could go back to R-22 just for a moment, I 39 had a sticky placed, a yellow sticky placed in the 40 middle of that tab 18, because I think it's 41 demonstrative of the situation. And if you have that 42 in R-22, volume R-22, this is one of the oral 43 histories recorded in the 1920 -- in 1920 by William 44 Beynon. There is a yellow -- there should be a sticky 45 at the top to show you. It's at page 27, six -- five 46 green tabs into that big -- 47 WALLACE, J.A.: Is this reference noted in your factum? 693 1 MR. GRANT: My lord, it is — no, it should be noted at 2 paragraph 39. 3 WALLACE, J.A.: How would I note it? 4 MR. GRANT: You would would note it as the — 5 WALLACE, J.A.: R-22? 6 MR. GRANT: R-22, tab 18, maybe page 27, and if you keep the — 7 because it's page 27 of this particular reference. 8 That would be the best way to do that. And if you 9 kept it -- I had the sticky put in to make it easier 10 to find. 11 Now, if you go to next -- to the middle line. Now 12 this is oral history of the Wolf Clan battle, which 13 Mary McKenzie -- it's summarized. And Mary McKenzie 14 describes it in her evidence, which is referred to in 15 tab C-39. It's the same oral history. But if you 16 look here, you can see in the second paragraph down -- 17 the third paragraph down: 18 19 "Nooks and his wife came up down to Ax lexh tsim 20 dehk village leaving Suuwiigos called Guywos. 21 Went up the mountain to hunt ground hog. The 22 mountain was called Wii'tsomski." 23 24 And I have given Madam Reporter this reference 25 should go into tab 39. I have given her the map which 26 is Exhibit 486. And it — 27 TAGGART, J.A.: That should go in at tab — 28 MR. GRANT: C-39. 29 TAGGART, J.A.: C-39. And where? 30 MR. GRANT: Probably at the back of that tab, my lord. I can 31 arrange with the reporter at the break to put it in. 32 The point I would like to make about it, is if you 33 look on this map up at the top, up at the top left 34 hand corner, this is the Antgulilbix territory, and 35 you see Xsi Wis An Skit. In 1920, Isaac Tens told 36 William Beynon the same oral history that Mary 37 McKenzie gave in evidence. In the oral history in 38 1920 he described, he described a location that was 39 testified to in evidence in this case, and was marked. 40 In other words, this is exactly what these scholars 41 are saying, when you compare the early century's 42 descriptions of these oral histories to what's being 43 told today, they are remarkably alike. What we are 44 talking about there, and I took the liberty of putting 45 stickies on here, is up in this area here is where the 46 Suuwiigos adaawk or oral history occurred that Mary 47 McKenzie describes. The mountain that's being 694 1 described on that map is at this sticky here. So you 2 have specific locations described here. In the 3 following paragraphs of that section, I refer to 4 Martha Brown's evidence of the settlement for this 5 territory here, which is in the oral history. 6 Yesterday or the other day, Mr. Rush showed you David 7 Gunanoot's crest -- 8 LAMBERT, J.A.: When you say this territory here, it doesn't get 9 transcribed. If you give the name it would help. 10 MR. GRANT: Thank you, my lord. I appreciate that. I 11 overlooked that. The reference that Martha Brown made 12 was to the Kliiyem Lax Haa territory at the very north 13 end, where I have made this marking. And that's 14 described in the oral history. The reference that Mr. 15 Rush made the other day to David Gunanoot, Nii Kyap, 16 was to this territory at Thutade, and that oral 17 history was described or referred to in evidence. 18 I refer there in the paragraph to -- I will give 19 you the paragraph reference in a moment -- to Stanley 20 Williams' description of how Luulak obtained his 21 territory at a place called Little Oliver Creek. His 22 territory is specifically described in that oral 23 history. 24 With respect to the Wet'suwet'en, Madeline Alfred 25 described in the oral history particular lakes in this 26 vicinity of the Wah tah keg'ht territory around 27 Moricetown. And that's referred to in the references. 2 8 And then I have given you the reference there to the 29 description of Nuu'tseni, or with the Wet'suwet'en at 30 the Goosley territory in the south, which is the 31 territory of Namox. What I tried to show here by 32 these examples is that in each of those these cases, 33 and there are more, you show that the oral history 34 refers to specific geographic locations. And as you 35 can see, it includes geographic locations outside of 36 the map drawn by the trial judge, Exhibit 5, and 37 outside in the south of the map drawn by the trial 38 judge in Exhibit 5. With respect, I submit, the trial 39 judge was in error when he said the oral histories did 40 not refer to specific locations. 41 And I would ask you to note, there is another 42 reference, one green sheet ahead in that tab R-23, to 43 the Beynon note of the Miluulak territory, which I 44 have not put a sticky on, and the oral history of the 45 Bear Lake dispute with Miluulak, which would be this 46 territory right down on the eastern -- northeastern 47 boundary, the Miluulak territory. 695 1 Those references are in paragraphs 40 is the 2 Kliiyemlaxha reference; paragraph -- this is in tab 3 C -- paragraph 41 is the Luulak history; paragraph 42, 4 I referred you to these two references from Barbeau- 5 Beynon; paragraph 43 is the area of Moricetown; 6 paragraph 46 is the area on the Namox territory. 7 Now, the last section here is in reply to the trial 8 judge's answers on historical references. He 9 argued -- he suggested and adopted an outline of the 10 province that they filed at -- guns, moose, the 11 Hudson's Bay were historic references. The argument, 12 I submit, is clear. I just want you to note that at 13 paragraph 49 I have added the evidence of Dr. Daly, 14 Tr.185, pages 11906 and 11907. And that's Dr. Daly's 15 evidence on that point that Dr. Daly, Miss Marsden and 16 others rely on the historical references. There is no 17 suggestion that the oral histories ended at contact. 18 In fact, to the contrary. 19 Paragraph 51 I deal with the moose and principally 20 the point is that the moose have been around in North 21 America for 10,000 years, and there is fossil remains 22 of moose found near this area at least a thousand 23 years old. And Dr. Hatler explained that the 24 historical records suggest the moose may have been in 25 the area of this territory before 1800, left and came 26 back. 27 Paragraphs 52 and 55 deal with the reliance on 28 Legaic, and Legaic was -- there were at least four 29 Legaics, both pre-contact and post-contact, so it 30 doesn't help at all. Schedule four, which he put in 31 his judgment from the province's argument, with 32 respect, does not dispute, does not answer the issue. 33 Your lordships, the Duff reference in terms of 34 Barbeau's misreading of the dating is at paragraph 60 35 here, Exhibit 9. And it would be at C-60. 36 I just take you to paragraph 71 and ask you to 37 refer there to the Supreme Court of Canada decision in 38 Simon, in which the Supreme Court of Canada pointed 39 out that: 40 41 "The Micmacs did not keep written records. 42 Micmac traditions are largely oral in nature. 43 To impose an impossible burden of proof would, 44 in effect, render nugatory any right to hunt 45 that a present day Micmac Indian would 46 otherwise be entitled to invoke..." 47 696 1 I submit that, in conclusion on this point, is 2 that the learned trial judge erred, and I set it out 3 in paragraph 74, in failing to accord the oral 4 histories any weight. 5 TAGGART, J.A.: Could you give me the reference to the Simon 6 case, please? 7 MR. GRANT: The Simon case? 8 TAGGART, J.A.: Yes, where is that found in the volumes? 9 TAGGART, J.A.: It's referred to in paragraph 70 but — 10 MR. GRANT: Yes, I see that the A reference is not in the 11 volumes. A-l, tab 20. 12 Now, my lords, if I could I would like to move 13 straight into -- I will not be referring further to 14 Appendix "C". I would like to move to tab 5. And I 15 will be referring very, very briefly only to a couple 16 of the references in R-ll and R-12, which you have. 17 This is not in the factum itself, my lords. 18 This argument goes to the issue of the appellants' 19 social and economic organization did extend beyond the 20 villages and was not the product of the fur trade. 21 And I refer you at page -- at the beginning of tab 5, 22 paragraph 504, to the trial judge's findings with 23 which we are taking issue. My first point here is, 24 and I think this is an important point, you may 25 wish -- it's apparent in paragraphs 505 and 506, is 26 that this is an alternative argument. We say we don't 27 have to prove a long, long time test, but if you find 28 that the trial judge was right in terms of this long, 29 long time test, we say we have proven it. First of 30 all, and most importantly, this is an alternative, if 31 you find that the long time test is necessary. 32 LAMBERT, J.A.: I am not sure I understand that. Your position 33 is that you have to show it before sovereignty, before 34 1846? 35 MR. GRANT: That's right. 36 LAMBERT, J.A.: So your position is then that as far as trapping 37 is concerned, that trapping is before 1846, at least 38 to the extent that it is before 1846, it confers the 39 rights you are asserting rather than otherwise? 40 MR. GRANT: That's correct. 41 LAMBERT, J.A.: But, before, when we discussed this the other 42 day, we said that there are -- there may well be 43 relevance to the before contact events, as well as the 44 before sovereignty events, for different purposes. 45 So, I know that the trial judge says a long, long 46 period before contact. But what you're talking about 47 in this is, presumably, immediately before contact. 697 1 That is, you are saying that there was evidence of 2 social and economic organization beyond the villages 3 that was not the product of the fur trade and was in 4 existence before contact? 5 MR. GRANT: That's right. You remember the trial judge in map 5 6 cut off the north and the south, on the basis that 7 those territories became important at the time of 8 contact. If you accept that what territory did the 9 appellants have at the assertion of sovereignty, even 10 on his findings we have established that. We say that 11 the far north and the far south. But if you say we 12 want to see what happened before contact in terms of 13 the nature of the rights, this is -- this deals with 14 that point. 15 LAMBERT, J.A.: Yes. 16 MR. GRANT: Now, I would just like to say that also with respect 17 to paragraph 504, the finding of the trial judge at 18 page 434 of his judgment is germane, where he made the 19 comment that: 20 21 "The social and economic organization of these 22 people was likely a response to the fur trade 23 which I have already discussed." 24 25 And he is talking there with reference Goldman, 26 Stewart, Kobrinsky, Jenness, Robinson and Father 27 Morice. And I want to point out that in fact these 28 people's theory was that the social organization moved 29 from the coast inland, which is a hotly-disputed 30 issue. As Mr. Adams said yesterday, that's really not 31 an issue, an academic issue that you have to make a 32 legal finding on. But it was characterized, it was 33 characterized by the province that if the social 34 organization moved from the coast inland it moved in 35 with the fur trade. And as Mr. Adams said with 36 respect to Jenness, and I will show with respect to 37 Morice, Father Morice, in fact they said the social 38 organization moved inland. Those two did not say that 39 it arose out of the fur trade. They just said that it 4 0 came in that way. 41 Now, at paragraph 505, the Pasco reference should 42 should be to page 412, just for your own narrative. 43 TAGGART, J.A.: 412? 44 MR. GRANT: 412, yes. 45 Taking you to paragraph 507, I point out the trial 4 6 judge's finding that: 47 69? 1 "There was no need for the Indians in early 2 times to go very far for such purposes and I 3 know of no reason to suppose they did." 4 5 And we submit that he was wrong in fact and law, 6 to find European influence in the form of the fur 7 trade was responsible for presence on distance 8 territories; wrong in fact and law to find that the 9 fur trade quickly transformed social organization; and 10 wrong in law to hold that they have no aboriginal 11 rights in respect to those territories. 12 Now, the first area in section B, I set out in 509 13 A, B and C, the three main points. Going to A -- or I 14 mean B, the land tenure, feasting and trade, I would 15 just like to refer you to Dr. Ray's opinion, which 16 is -- which was not directed to you before, in 17 paragraph 512. He says at line ten of page 224 of the 18 factum: 19 20 "I still would submit that even 40 years is 21 probably premature, is not long enough, given 22 what we are talking about. We are not just 23 talking about little cultural details, the 24 adoption of a pot or a gun or a knife. We are 25 talking about a fundamental social/political 26 organization." 27 28 Now, my lords, with the greatest of respect, the 29 theory advanced by the province, through Dr. Robinson, 30 and apparently accepted by the trial judge, is what I 31 would, with respect, call a Coca-Cola bottle theory. 32 For those who have seen the movie The Gods Must Be 33 Crazy, it's that when something drops in from the sky, 34 an iron pot or a coke bottle, all of a sudden the 35 social organization changes. The first pot, the first 36 gun, the first disc or maybe the 10th or the 100th, 37 changed the social organization. What Dr. Ray and 38 what other -- and Mr. Brody, I will refer to in a 39 minute -- say, is it couldn't have happened in 40 40 years. It just couldn't have happened. You can't 41 have such a revolutionary changes of a social 42 organization in such a short period of time. 43 And I refer you to Mr. Brody's comments at 44 paragraph 515, where he says: 45 46 "It would take a very long time for an 47 institution as complicated as that to establish 699 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 WALLACE, 16 MR. GRANT 17 18 HUTCHEON, 19 MR. GRANT 20 21 LAMBERT, 22 23 24 25 26 MR. GRANT 27 28 LAMBERT, 29 30 31 32 33 34 MR. GRANT 35 36 37 LAMBERT, 38 MR. GRANT 39 40 41 42 43 44 LAMBERT, 45 MR. GRANT 46 47 LAMBERT, itself at the centre of an another culture's way of organizing itself." And you see that, just for your note, you may note the Morice references at tab 514, I am not going to take you to it, but at the top of page 225, Dr. Ray refers to the system ethnographers began to describe with Morice some 60 years later, is a system that essentially Brown has just given us the bone outline for in 1820. What I have added there is -- what I have added there is that Morice -- I have put in the Morice reference there where he talks about that they had ownership. And I have put that reference in the authorities so that what -- J.A.: Where are you now? : At line four of page 225. You see where Dr. Ray's referring to Morice's opinion? J.A.: Where did you put it in? : It's at tab 514 of the reference book, the Morice reference where he talks about it. J.A.: Can I ask you, I remember being shown maps with village sites marked on them, but I don't remember that those maps encompassed the whole of the area that's encompassed by the map that's standing up on the board. : Are you referring to the McDougall map, that sketch map of the -- J.A.: Yes, that's the only one I think that does have village sites, and it's only an area of this. That is, it would be easier to understand this argument if there were a map of the whole territory that showed all the village sites on it. Perhaps there isn't such a map. : Well, I was intending to take you to the McDougall map and show what it really does refer to in terms of the village sites in conjunction with that map. J.A.: How big an area is covered by the McDougall map? : The McDougall map, my lords, I have -- I took the liberty of having added to your appellants' maps, at the very last tab, the McDougall map and an enlarged version of it, and if you take a look at it -- the McDougall map only covers the Wet'suwet'en territories. So it's from here down. J.A.: To the bottom? : To the bottom. And it goes all the way to Ootsa Lake, which is at the very bottom here. J.A.: All right. I don't want to take you out of your 700 1 argument, I just want to know what you have. We don't 2 have anything for the Gitksan territories showing the 3 village sites and their distribution throughout the 4 whole territory. 5 MR. GRANT: No, we don't, except -- and the evidence -- because 6 the Gitksan did not use winter hunting villages, as I 7 referred to, like the Wet'suwet'en did, you have 8 principal villages. One of them -- and they are shown 9 on the trial judge's map five, as I recall. One is at 10 Gitangas, then you have the one at Kisgagas, and there 11 is a series of villages that Brown found along the 12 Babine River. They are going along the Babine and up 13 to the junction. Then he describes villages down to 14 the forks and another three villages. But, my lord, 15 there is not evidence -- that description of Brown is 16 not mapped in evidence where those are. 17 LAMBERT, J.A.: We have got to understand why and for what 18 purposes the house would use the territories at the 19 north end, that they would be a long way from where 20 they were at any time of the year. 21 MR. GRANT: Yes. But what we say, and this is what the argument 22 in this tab endeavours to establish, is that it's 23 because of the multiplicity of resources that they 24 required that they would travel to the north end, not 25 just fur-bearing resources. And that goes directly to 26 the question of the trade. And this is where, with 27 respect, the trial judge was in error where he says it 28 was subsistence when he means for or survival or 29 rudimentary, because once you have trade, what you 30 have is gathering surplus. You're getting surplus, 31 whether you use it for cash economy commerce is based 32 on surplus. To access that surplus, as these maps, 33 the resource maps show, they had to have access to 34 widespread areas. That's part of our submission. 35 That, combined with the evidence of what the first 36 traders saw that they were doing and what they had, 37 the combination of the resources were there for them 38 to be had. That's what Dr. Hatler and Miss Housser 39 described, the first trader said, when we got here 40 they were using all these resources, they had to go 41 further afield than just adjacent to the villages. 42 You see, Dr. Hatler -- let's just take the mountain 43 goat, for example, it's referred to in this tab, my 44 lord. Dr. Hatler says the evidence of the prevalence 45 of the mountain goat throughout the area at contact 46 demonstrates that this resource was not over- 47 harvested in any of these areas, but it is very 701 1 vulnerable to being over-harvested. If, for example, 2 they harvested all the mountain goat by the villages 3 there would have been none left there. But there was. 4 And his conclusion is that they had to have been able 5 to harvest -- there was some kind of conservation 6 method. Then you go to Brown and Brown says, well, 7 they certainly were using the mountain goat. You go 8 to Dr. McDonald in the map atlas, the Historical Atlas 9 of Canada, and what was the principal thing the 10 Gitksan were trading? It was goat skin blankets to 11 the coast for coastal goods. So you suddenly see, 12 just taking any one resource, that they had to be able 13 to access over a wide area. They could not access in 14 a concentrated form without depletion of the resource. 15 LAMBERT, J.A.: Thank you. 16 MR. GRANT: Now, I refer you -- and that the institution at 17 paragraph 16, 516, that Brody is referring to, is 18 found in Feasting - the practice of travelling to 19 distance villages, et cetera, you have heard all that 20 evidence and we have reiterated it with respect to the 21 resources in paragraphs 516 right through to 22 paragraphs 522 or 521. And in 521 and 22, we refer to 23 the evidence that they had resources for trapping 24 the -- they used traps before there were European 25 traps. This is discovered by Harmon in 1810 and 26 Fenton in 1825. Paragraphs 523 to 528 demonstrate, 27 through the historical evidence, as well as through 28 Dr. Ray, that even as late as 1833, the Gitksan had 29 very little -- I am quoting from 524, Simon 30 McGillivray, "...very little of European goods among 31 them." And he never saw Indians so destitute of 32 European manufacture. He said similar comments about 33 the Wet'suwet'en. 34 In 527, we refer to Dr. Ray's evidence about the 35 dearth of European goods as observed by Bount and the 36 relative independence of the Gitksan and Wet'suwet'en 37 from reliance on such goods. 38 I would like to take you to 529. In the face of 39 this evidence that I have referred to, the trial judge 40 concluded that the fur trade had: 41 42 "...converted and materially changed the life of 43 the Gitksan and Wet'suwet'en in the short time 44 between the advent of European influence and 45 the early years of the century and the start of 46 Brown's observations in 1822." 47 702 1 He nowhere referred to Harmon's observations a 2 dozen years earlier. This proposition is so unlikely 3 on the facts that it was soundly rejected by the 4 historical geographer, Prof. Ray, and the 5 anthropologists, Drs. Daly, Mills and Brody. And, 6 with respect, the trial judge mis-characterized the 7 theory of coastal influence on social organization 8 with -- coastal influence being fur trade -- derived 9 coastal influence. 10 Now, at 530, paragraphs 530 to 543, and you heard a 11 little yesterday about Dr. Robinson. Dr. Robinson's 12 speculative theory, and it's her own term, it was 13 speculation, was quoted at 530, that: 14 15 "Classic patterns of Gitksan and Wet'suwet'en 16 resource use and ownership are post-contact 17 phenomena." 18 19 And I refer there back to the reasons at page 434. 20 And I just want to say, as set out in 531, that Dr. 21 Robinson, who, my lords -- I just will summarize 22 what's said in these paragraphs -- she did not study 23 any of the maps, Exhibit 358 that you have before her, 24 even though they were provided to her. She hadn't 25 looked at them. She didn't look at any of the Brown 26 records, except, as I recall, two extracts reflected 27 in her evidence. She didn't do any of the analysis of 28 all of the records, such as Dr. Ray did. She didn't 29 do any of the analysis or any ethnographic work. And 30 Mr. Adams referred you to the rest of it. 31 She, in her own evidence, was, I submit, an 32 advocate for the province. She stated in her early 33 letters that she would assist in marshalling -- and 34 this is referred to in appendix E, paragraph 124 -- 35 she referred to the fact that she would assist the 36 province to marshall an army of support against the 37 Gitksan theory. That was early on. That was her 38 approach. 39 Now, the trial judge accepted Dr. Ray on this 40 point, at paragraph 534. He called the Bay records "a 41 rich source of historical information" and he had no 42 hesitation accepting information in them, unlike Dr. 43 Robinson's theory that they were relatively new. 44 Now, if I can take you to paragraph 544 of this 45 factum here. As I said in answer to basically this is 46 the bio-physical evidence established that the 47 resources required to sustain pre-contact Gitksan and 703 1 Wet'suwet'en economies were widely distributed 2 throughout their territories, in some cases nowhere 3 else but great distances from their villages. I am 4 here referring to the map atlas. And I just want 5 to -- maybe your lordship's can make a note. I don't 6 want to go through them all here, but I am worried 7 because of the effect of Exhibit 358-22, that I am 8 going to come to very briefly, but all of the other 9 maps, except 22 and 23, the commentary is part of the 10 evidence, all of the other -- 11 HUTCHEON, J.A. : Except for 22 and 23? 12 MR. GRANT: Yes. And, my lord, in the index to the map atlas 13 you have, we have got that marked that -- 358-22 and 14 23 is without editorial comment. So all of the rest, 15 the whole commentary is there, is part of the 16 evidence. 17 HUTCHEON, J.A.: I see. 18 MR. GRANT: Now, the trial judge, at 546, did not really refer 19 to the bio-physical evidence except to say none of the 20 wildlife evidence is unequivocal. Now, Dr. Hatler, in 21 analyzing that wildlife evidence, refers to 1860, but 22 his evidence goes back to archaeological finds of 23 these resources. What's significant, except for the 24 mountain goat, which he concluded it must have been -- 25 and in the evidence it demonstrates the hunting 26 practices, you do the de-boning of the mountain goat 27 on the mountain, not down at the village site. But 28 caribou, marmot, beaver, these are the resources, are 29 all found dated 3500 years ago at Kitsalas Canyon, 30 which is just outside the territory, a major 31 archaeological find at Kitsalas Canyon. 32 Now, I would like to take you to paragraph 549, and 33 this is in answer to Mr. Justice Hutcheon's question, 34 and I have an insert that I provided to Madam 35 Reporter. Instead of going to the reference like I am 36 going to do, you could refer to the insert, and it 37 goes in -- it will go in R-ll, tab 549. And I will 38 assist in getting it placed in there at the break. 39 This is the evidence of Mr. Mathews. It is not the 40 only evidence about boundaries, but it is one 41 evidence. I provided copies of this. It should go at 42 the front of that tab. 43 TAGGART, J.A.: The first document in that tab? 44 MR. GRANT: Yes, it could be the first document in the tab. I 45 would just like to go through this with you because it 46 does show the complexity of the organization. The 47 bottom of page 4767, it is the first page, I refer him 704 1 to earlier questions. 2 3 "Now when you looked at Exhibit 31..." 4 5 This is the map of fishing sites. 6 7 "Q "...and what you have just described indicates 8 that you have fishing sites along the river 9 where your territory is located and on the 10 other shore the river? 11 A Our rights only include those fishing sites but 12 does not go over the bank. It belongs to 13 somebody else. Just our sites I mentioned 14 belong to us." 15 16 Now he is describing here where he has a fishing 17 site in the territory of another chief, the only right 18 he has -- his house has, is to that fishing site. 19 This is with respect to map 358-22. 20 21 "Q What shore are you talking about? 22 A Both banks." 23 24 Then I refer down to the smokehouse. Then I go: 25 26 "Q My question to you is in that area under 27 Gitksan law you described fishing sites that 28 you have on the left bank and on the right 29 bank. Now looking downstream on the right bank 30 have you described that; is that right? 31 A Yes. 32 Q Who under Gitksan law owns the middle of the 33 river between the fishing sites on the right 34 and left bank? 35 A We say we own the whole. Where it goes across 36 if covers the middle, there is no opening 37 there, it goes across to the bank on the other 38 side." 39 40 And he is talking about the opposite shore. 41 42 "Q Is that your boundary? 43 A Yes. 44 Q Is that understood by other chiefs? 45 A Yes. 46 Q That that's your territory? 47 A Yes. 705 1 Q Do you know, does that apply to other Gitksan 2 territories in the western part of the Gitksan 3 territory? 4 A Yes, they apply -- only it doesn't apply when I 5 was showing you the photos of Tsihl Gwelii when 6 I claim one side and Gisax iit..." 7 8 This is the Tsimshian. 9 10 "... on the other side then you don't claim the 11 whole river. 12 Q Do you claim any part of the river? 13 A Yes, you might then split the river in half." 14 15 Now here the court interjects to clarify this. 16 17 "THE COURT: Well, then you are saying this applies 18 to the Skeena, but not to other rivers? 19 A Yeah, where any kind of river, your lordship, 20 if you have fishing sites on both sides 21 naturally you own right across. But when you 22 just claim one side, then just that bank side. 23 Q Well, in that case where you only claim one 24 side and another house claims the other side, 25 what chief or chiefs claim the middle? 26 A I would claim the middle half on my bank and 27 this guy would claim the bank on the other 28 half. 29 Q So the river would be divided? 30 A Yes. 31 THE COURT: So there is a difference between river 32 as a boundary and river as a fishing site? 33 A Yes. 34 THE COURT: In other words, if a river is a 35 boundary between two houses the real boundary 36 is the middle of the river? 37 A If they were opposite banks from each other, 38 yes." 39 4 0 Now going two pages over, comes to the example and 41 I put the whole extract in, because he talks about his 42 own house owning fishing sites. 43 Now at line 29 at page 4771, he is talking about a 44 fishing site owned by we Wii hlengwax and Lelt and the 45 territory around it by Wii hlengwax. And he says: 46 47 "Q And they are both Frog chiefs from Gitwingax? 706 1 A Yes. 2 Q They both form part of your 'Nii Dil? 3 A Yes. Likewise if it was inside our territory, 4 if you see Ax tii hiikw..." 5 6 That's a chief in his house, 7 8 "...it will be the same thing what I am trying 9 on get across. If you have Ax tii Hiikw name 10 mentioned here, there is no problem because me 11 and him are side by side and we are chiefs in 12 the house, in our house." 13 14 15 So there is no problem if it's in the same house. 16 17 "Q Okay. But which house would own the river 18 there, the house of Lelt or the house of Wii 19 hlengwax?" 20 21 The territory is Wii hlengwax's, the fishing 22 site is Lelt's. It's explained. 23 24 "A The house of Wii hlengwax. 25 Q And would the house of Wii hlengwax own the 26 river on both sides? 27 A Yes. 28 Q And that would be recognized by the other 29 Gitksan chiefs? 30 A Yes." 31 32 The law with respect to the boundaries, as it 33 applies to fishing sites, and this evidence was not 34 disputed by others, that law is that the fishing site 35 is owned but the rest of the river and the territory 36 is with the house territory. And that's the evidence 37 of Mr. Mathews, and that's the evidence that Mr. 38 Morrell endeavoured to summerize in the commentary 39 that was excluded. 40 Now, I can just advise your lordships that the 41 balance of this section is tied to those maps. And I 42 would ask you only to note a couple of points, and 43 that is that the evidence -- that at paragraph 554, I 44 refer to Exhibit 887, and it's an added insert there, 45 and I would ask you to review that. That's Dr. Daly's 46 references to resources based on the oral histories, 47 the resources used from throughout the territory. I 707 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 HUTCHEON, MR. GRANT would then like to highlight for you, at paragraph 563 to 565, the evidence of caribou traps, caribou traps that were pre-contact, and that's described by Pete Muldoe at 565. The balance of this part of the argument deals with specific resources, including the berries, which are referred to in Exhibits 358-3 to 358-9, and that's in your map atlas. And all of that commentary is included. And then the medicines referred to by Dr. Daly, rocks and natural resources. And I only want to point out with respect to paragraphs 578 through to paragraphs 581, that the evidence that's in those references, my lords, demonstrate that these resources were site-specific, they are not throughout the territory. And if fact there were special laws, recognized in the Wet'suwet'en case by the Wet'suwet'en, in the Gitksan case by the Gitksan, that other houses and chiefs could access them but they had to pay the owner of the territory. And that's reflected in the evidence of Alfred Joseph in 578 and 579, and in Mary MacKenzie in 581. And those citations are given. I ask you when you consider exhibit or paragraphs 583 to 584, the Wet'suwet'en resources, to look at the McDougall map at the back of your map atlas, because that map shows how the Wet'suwet'en went out on the territory and the trails. And that map, of course, was the one not a political statement, but their descriptions to McDougall of where they were going. With respect to the question of pre-contact trade, I would like to highlight for your lordships -- I would like to find out -- point out to your lordships paragraph 587, where the Supreme Court of Canada held in Horsman that Indian people have aboriginal rights to carry on commerce or commercial activity is or becomes an integral part of their way of life. And the trial judge dismissed the trade in the territory as mere bartering in sustenance goods. J.A.: Excuse me, wasn't Horsman based on a treaty of 1890? : The Horsman case was based on a treaty and the relevance of the treaty, my lord, in our submission, is that the treaty tells you the time in that case at which the rights are looked at. And in that case, Dr. Ray's evidence, I believe, that there was certainly commerce in the goods at the time, so that here, of course, the date we are arguing is 1846, because there is no treaty. So that's the difference. 70? 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 HUTCHEON, J.A.: So that that becomes — it doesn't mean 1910 or anything like that. Your statement is where commercial activity is or becomes, and that's what I am querying. MR. GRANT: Here, of course, the evidence -- if you decide that -- and I say that the trial judge erred here, because the commercial activity was -- and this section deals with that trade -- but that the commercial activity became an important event after 1820, we say, still the key time is 1846 HUTCHEON, J.A. : After 1820, up to 1846? MR. GRANT: Yes. But we say that the commercial activity was very active before. And I would like to conclude the section, because the argument is there, by taking you to the one map that really demonstrates that from the 1987 publication The Historical Atlas of Canada. And for convenience, your lordships, I have put in at the end of your map atlas as well in the folder, if you could just take that one out, I will quickly refer you to that. It's at the very end of the last tab. MACFARLANE, J.A.: Which map? MR. GRANT: It's this map here out of the map atlas? MACFARLANE, J.A.: Where is it? MR. GRANT: My lords, we did -- we did provide the judge with this, so that he could see the map. It's a little larger that you can see in the original atlas. This was published in 1987. If you just look at this for a moment -- TAGGART, J.A.: Is this headed "The Coast Tsimshian"? MR. GRANT: Yes, approximately 1750. But if you look up in the upper middle you see Gitksan, right in the top there? TAGGART, J.A.: Wait until I get the first thing out. Okay. MR. GRANT: And in the chart you see trade goods and trade routes, and I just want you to note, I have done this for you, at least on my copy, when you look at the trade goods and trade routes, they are listed by number and the trade routes are there. And I am going to mark -- tell you the numbers that are -- that move into and out of the Gitksan and the Wet'suwet'en area. Number 1, number 2, number 7, 8, 9, 10, 11, 12, 13 and 14, are all trade routes into and outside of the Gitksan and the Wet'suwet'en area. And if you look under the boundary there on that map, you see 10, 11 and 12, those are all going into the Wet'suwet'en territory. And the Wet'suwet'en territory is not separately marked on this. Now if you go to -- because that's a reduction, if 709 1 you go to paragraph 614 of the factum, at page 254, it 2 refers to and quotes this. Dr. Ray referred to this 3 map in his evidence. And that's quoted at paragraph 4 613. But we have taken an extract from the legend on 5 the map, and it's in paragraph 614. Now, this is 6 George McDonald, Gary Coupland and David Archer, three 7 scholars who were retained on this project, which was 8 a major national project. It covers all of Canada. 9 And they say, regarding the Gitksan: 10 11 "On the eve of European contact, the Tsimshian 12 had lived along the Skeena and Nass Rivers and 13 adjacent the north Pacific coast for thousands 14 of years. There may have been 10 to 12 15 thousand Tsimshian in three linguistic and 16 cultural groups. The coast Tsimshian, the 17 Gitksan and the Nisga. The Tsimshian depended 18 on the intensive exploitation of salmon, 19 supplemented by other fishing and by hunting 20 and gathering. For at least part of the year 21 they lived in villages and their economies 22 relied on regular, seasonal migrations to other 23 locations for specific resources. All 24 Tsimshians were members of hierarchical kinship 25 groups in which status differences were 26 inherited. Kinship groups from the same 27 village owned contiguous territories for 28 fishing, hunting and gathering. At elaborate 29 potlatches the giving of luxury goods validated 30 status and title. The system was financed by 31 the corporate, that is, the kinship group." 32 33 In anthropological terms that means a kinship 34 group. 35 36 "Production of surplus goods that could be 37 exchanged or traded over long distance. 38 Raiding for property and slaves was common." 39 40 I would just ask you to make a note, going back 41 five pages to page 250, of Chismore's contract that 42 Mr. Rush referred you to. When you see what Chismore 43 described in 1870 terms of the detailed trade trail 44 and the trail, basically worn out of the rock, how 45 long -- out of solid granite by the feet of succeeding 46 generations, you can see that this trade was not 47 something recent, not something new, it was something 710 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 that had been going on a long, long time. And, as I say, these are independent scholars who came to this conclusion, completely outside of the ambit of this case. I would ask you as well to highlight and refer to, when you have an opportunity, Dr. Daly's figures seven and eight. They were cited and referred to in paragraph 615. J.A.: Before we leave this map, where would they get their boundaries for houses? Sorry, on this map? J.A.: Yes, Gitksan. Aren't they boundaries of the houses in there? No, this -- these boundaries here -- no. The boundaries here are of the Gitksan territory. That dark line, you see? Sorry, the lines on the map are the boundaries of the houses. J.A.: That's what I am asking, where -- I am sorry, of the territories. I see what you're referring to. What they have done is they have drawn approximately boundaries of the villages. I see what you're referring to. There is the thinner line -- J.A.: Well, Kitwancool is shown as a village and then there is a territory described as Kitwancool. Yes. What he is referring to there, the quote that I gave you, he is referring to the village territories. He is saying kinship groups from the same village own contiguous territories for fishing, hunting and gathering. J.A.: Well, that's what the trial judge said didn't happen. That's what -- that's why I wonder where they got this information. What was the basis for Mr. McDonald, and the others, using these boundaries? MACAULAY: My lord, this document, this exhibit was not marked for the truth of its contents. HUTCHEON, J.A.: Was not marked for the truth of the contents? MR. MACAULAY: I have a copy of page 12020 of volume 186 of the transcript. And it refers to the -- this map, historical atlas. Mr. Grant asked that the document -- that's the map -- be marked as an exhibit, and Mr. Willms then said: "My lord, if it is being marked just as something that the witness can identify, that's fine. But if it's being marked for the truth of the contents, I object." HUTCHEON, MR. GRANT: HUTCHEON, MR. GRANT: HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT HUTCHEON, MR. 711 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 And the court said: "Well, it Grant?" can only be the former, can't it, Mr. Mr. Grant said "certainly." HUTCHEON, J.A.: What does he mean the former? What does that refer to? MR. MACAULAY: Marked as something the witness can identify. HUTCHEON, J.A.: You mean that this is a book? MR. GRANT: I can respond to that now, and it's right in the factum. My friend may have overlooked this. Dr. Ray, who was called as an expert by the plaintiffs, adopted this map, he adopted it as part of his opinion and that's set out in paragraph 613. HUTCHEON, J.A.: This is so contrary to the trial judge's findings, and that's why -- at least it seems to me it is -- and that's why I am pausing over it. It says circa 1750. So I assume this is supposed to reflect what's happening in 1750. MR. GRANT: Right. HUTCHEON, J.A.: And we have boundaries shown in the Gitksan territory, not villages only. MR. GRANT: Well, what the trial judge — HUTCHEON, J.A.: Am I misreading this document? MR. GRANT: Well, when we deal with the territories back to it, but I can just tell you this, what the trial judge had trouble with, and what the trial judge did not accept, were the internal house boundaries. HUTCHEON, J.A.: I know he didn't. He said that the only territory they had were the villages. That's what he said. MR. GRANT: The trial judge said the villages and adjacent areas which is what this argument goes to, that he was wrong on the evidence on that point. HUTCHEON, J.A.: But the adjacent areas, isn't this what's described here? MR. GRANT: Exactly, my lord. In terms of the trial judge's findings, his adjacent areas were something unclear but in the vicinity. But map 5, my lord, shows that he adopted, substantially -- in fact, if you look at this map, he concluded that all of the area in this map marked as Gitksan would be an area covered by aboriginal rights in map 5. He made that finding in terms of what he described the option of map 5. He I will come my lord, 712 1 excluded area south of the Wet'suwet'en. 2 HUTCHEON, J.A.: Yes, you told us that. 3 MR. GRANT: And the north. But I am talking about the trial 4 judge's map 5. 5 HUTCHEON, J.A.: I must have a different impression, wrong 6 impression of what the trial judge found. I thought 7 he said it was only the villages that were affected by 8 the ownership. 9 MR. GRANT: He went to this map, and I am sorry I don't have -- 10 it is unrecorded. But map five where he dropped this 11 out, you see he goes up north of Gitangas and he goes 12 up -- and cuts off part of the south area. 13 HUTCHEON, J.A.: I have got that, but what about the internal — 14 MR. GRANT: He said there were aboriginal rights, this is the 15 area that it's covered by. And of course he narrows 16 what those rights are. 17 LAMBERT, J.A.: Are you saying this is on the basis that his 18 finding is wrong about the nature of that aboriginal 19 rights, isn't this an alternative on the assumption 20 his findings about aboriginal rights are wrong? 21 MR. GRANT: About extinguishment. 22 LAMBERT, J.A.: About extinguishment, is it? 23 MR. GRANT: That's right. 24 LAMBERT, J.A.: His finding about aboriginal rights is not that 25 they are confined as far as interest in land is 26 concerned to village sites and areas contiguous to 27 village sites. A misunderstanding I have, and it may 28 be shared by my colleagues, is that the trial judge's 29 finding about aboriginal rights is a finding that 30 aboriginal rights exist, but whatever they are, they 31 are, in territorial scope, confined to village sites 32 and the areas immediately contiguous to the village 33 sites. 34 HUTCHEON, J.A.: That's my understanding. 35 MR. GRANT: Right. That's one of his findings, yes. 36 LAMBERT, J.A.: If that's a finding then that whole area that 37 you show as dark shaded is not represented by the 38 trial judge to be the area of where aboriginal rights 39 exist. What he is saying is that outside that area 40 they don't exist, and in that area, subject to his 41 finding about this extent of them, they may exist. He 42 is not saying they do exist in that area. 43 MR. GRANT: He was dealing, as I recall, with the aboriginal 44 subsistence activities that could go on, and he said 45 they would not have to be confined to what he found 46 immediately adjacent to the villages. And then he 47 refers to this map 5 as his alternative that he takes. 713 1 So that when he does that fiduciary, he talks about 2 that area in terms of subsistence activities. It does 3 not go -- those activities could be going on in larger 4 areas. 5 LAMBERT, J.A.: But this is all in the latter part of his 6 judgment. 7 MR. GRANT: Yes, it is an alternative. 8 LAMBERT, J.A.: And, to my view, I have always thought of it as 9 being an alternative, that finding, based on the 10 assumption that he wasn't right in the earlier part. 11 MR. GRANT: Right. The only point, my lord, Mr. Justice 12 Hutcheon, I want to be clear, is that the -- is that 13 the boundaries on Exhibit 893, which I refer to 14 what -- that Dr. Ray adopted as part of his opinion, 15 that the boundaries there are village areas, the 16 contiguous village areas, that are not individual 17 house territories as you see on this large map. So 18 they are the areas of particular house groups. The 19 point that we are making on this map, and what 20 specifically is, is it was a trade, active trade. And 21 what I would say is that we will speak to this in 22 terms of our territorial argument when we deal with 23 the findings on the territories, which I will come 24 back to you on. 25 TAGGART, J.A.: It's 20 past 11, Mr. Grant, would it it be 26 appropriate to take the break at this time? 27 MR. GRANT: My lord, basically I have concluded tab 5 and will 2 8 move into the next section when we come back from the 29 break. 30 31 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS) 32 33 MR. MACAULAY: My lords, before the appellants continue I want 34 to come back again to that map from the historical 35 atlas of Canada, Exhibit 893, plate 13 of the 36 historical atlas. 37 I have been provided with transcript of further 38 portions of the evidence of the witness Ray, which I 39 submit shows that he would -- he didn't, and indeed he 40 wasn't in a position to, adopt the text in the 41 contents of the map. But it was used by him for a 42 limited purpose. I am referring now to volume 203 of 43 the transcript, page 13484 and 5. 44 MR. GRANT: My lords, that is in the reference. In fact, we 45 cite that specific page. I was going to refer you 46 directly to that as tab 613, it's the first reference, 47 there are those pages. 714 1 MR. MACAULAY: And then they came back to it again in volume 2 205, this is in re-examination by Mr. Adams. 3 WALLACE, J.A.: 205? 4 MR. MACAULAY: Volume 205, pages 13720 and 13721. And from a 5 reading of those pages, it's my submission that it's 6 clear that this was not -- the map itself and all its 7 contents were not adopted as the witness and the 8 witness wasn't in a position to do that. 9 MACFARLANE, J.A.: Do I understand correctly, I am reading from 10 the factum, 613, and your reference to Prof. Ray's 11 evidence, and do I understand correctly that his 12 evidence is that the map shows trade routes, and that 13 that was the limited purpose to which he referred to 14 the map and adopted the map, is that your submission? 15 MR. MACAULAY: That's my submission. 16 MACFARLANE, J.A.: Do you agree with that? 17 MR. GRANT: As I say, we have put in those two pages that my 18 friend referred to in the reference. 19 MACFARLANE, J.A.: But that's the purpose, it's a limited 20 purpose, it's not that he accepted the internal 21 boundaries as shown on that map? 22 MR. GRANT: The internal boundaries is not the purpose for which 23 that map went in. But the point I wanted to direct 24 your lordships before my colleague commences, there 25 were two points I wanted to complete the answer on 26 this, and that is that the references that George 27 McDonald uses in the historical atlas, and this 28 legend, and these references are at the end which were 29 put in later on, are to Barbeau-Beynon field notes, 30 the very material I was discussing with you, which 31 were all exhibited at trial, are to Allaire, from the 32 Skeena River Pre-History, which is an exhibit at 33 trial, Exhibit 1190; Coupland, Prehistoric Cultural 34 Change at Kitsalas Canyon, which is an exhibit at 35 trial; and Englis and McDonald, Skeena River 36 Prehistory, which is an exhibit at trial. All of the 37 material upon which he relies in support of the trade 38 and trail networks, and in support of the drafting of 39 the map with respect to the Gitksan, is in evidence. 40 And I think I would leave it to your lordships -- 41 there was certainly no suggestion to try to add 42 something more. The references Mr. Macaulay referred 43 you to are at tab 613, and they are there for you to 44 look at. 45 The only other point I want to be clear of Mr. 46 Justice Lambert, you raised, and this will be dealt 47 with in more detail in the territories, but I do 715 1 believe you might have misread what the trial judge's 2 finding was. At page 115, regarding the boundaries, 3 in his outline at paragraph 42, this is the 4 introduction, and he said -- and he is talking about 5 subsistence rights. Remember he narrowed down what 6 the rights were. 7 MACFARLANE, J.A.: 115. 8 MR. GRANT: Page 115 and 116 of the reasons. 9 10 "These aboriginal rights, if any, would attach 11 not to the whole territory but only to the 12 parts that were used by the plaintiffs' 13 ancestors at the time of sovereignty. The 14 parts so used by each of the plaintiff people 15 are defined in part 16 and they are shown on 16 map 5." 17 18 It is map 5 I showed you where he says these 19 aboriginal sustenance rights would apply to the right 20 of occupancy and residence he found was in villages, 21 the right of aboriginal sustenance activities was in 22 map 5. I thought I ought to bring that to your 23 attention right away as you may have overlooked it. 24 LAMBERT, J.A.: Yes. 25 MR. GRANT: And that's subject, of course, to the issue of the 26 extinguishment of those rights which my colleague, Ms. 27 Mandell, is going to be addressing you. 28 MR. MACAULAY: I have one more submission to make about the 29 maps. I made objection to map 20, that's the fishing, 30 one of the fishing maps. And it appears, my objection 31 and Mr. Goldie's comments, appear in volume 207, pages 32 13905 and 6. 33 WALLACE, J.A.: Would you give me that reference again? 34 MR. MACAULAY: 207, at pages 13905 and 13906. The Chief Justice 35 appears to have, from my reading of the transcript, 36 struck some portions out in the original exhibit. At 37 least his copy of the exhibit. And there may be more 38 of that kind of thing. We will collect the relevant 39 passages about these maps and hand them up in due 40 course. But it wasn't -- they weren't all marked as 41 exhibits, including what's sometimes called the 42 editorial comment. An example of so-called editorial 43 comment, of course, is what was just read by my 44 friend, Mr. Grant, from the McDonald map, the map from 45 the historical atlas of Canada. So we will be back to 46 that a little later as we can get the material 47 together. 716 1 TAGGART, J.A.: All right. Mr. Grant, you have now completed 2 section five of the factum in volume one? 3 MR. GRANT: Because of time I am not reviewing the conclusion 4 with you, but it's there. 5 TAGGART, J.A.: All right. And, Ms. Mandell, you are about to 6 begin and where? 7 8 SUBMISSIONS BY MS. MANDELL: 9 10 MS. MANDELL: My lords I was going to ask you to find volume 11 three, which is appendix K. 12 My lords, the only two volumes you are going to 13 need before you, I have handed up to you a reference 14 book, R-40, which will be the reference series for 15 this volume. And you will also be referred to 16 appendix K, which is in volume three. Those are the 17 only two volumes which your lordships are going to be 18 needing. 19 HUTCHEON, J.A.: We don't need the factum volume? 2 0 MS. MANDELL: You don't. And I have handed up speaking notes to 21 your lordships, which I would recommend you insert at 22 the beginning of appendix K. And largely I will be 23 making my oral submissions through the guide of the 24 speaking notes, and I will only take you into the 25 paragraphs of appendix K occasionally. So I would ask 26 you to turn to the speaking notes, and to have 27 available the volume R-40, and I think between those 28 two sets of documents we will be able to proceed. 29 My lords, while you're getting organized, I have 30 been sitting here this morning, knowing now what the 31 fishermen at Lillooet feel like with all their fish 32 are the last in line to take. And I am going to have 33 to abbreviate somewhat the submissions which I was 34 intending to make to you. 35 I am going to address you for the next day and a 36 half on Royal Proclamation, and also on the colonial 37 instruments and the issue of blanket extinguishment. 38 And this morning, for what remains of it, I am going 39 to begin the Royal Proclamation and hopefully finish 4 0 it today. There may be some carry-over. And tomorrow 41 I will proceed into the colonial period. I wanted to 42 advise you -- 43 LAMBERT, J.A.: May I stop you for a moment? Madam Registrar? 44 MS. MANDELL: My lords, I have broken the pattern somewhat in 45 terms of the manner in which I have organized your 46 materials in volume R-40. I have -- I haven't 47 indicated that they are going to follow a particular 717 1 paragraph. I have organized them in chronological 2 order as to how I intend to refer to them. But you 3 will see in your speaking notes what I have done is I 4 have indicated for every of the propositions that I am 5 going to address to you, that I tell you where in the 6 tab, that is in your volume R-40, which tab it is that 7 we are going to be dealing with. And also in appendix 8 K I have indicated the paragraph number. But I am 9 not, as I mentioned to you, I don't intend to take you 10 into appendix K. I have consolidated the submission 11 in the speaking notes to the references, which I have 12 set out for you. 13 I would like to begin now by asking your lordships 14 to turn to the speaking notes, and I want to begin by 15 saying that this is a case on the Royal Proclamation 16 not concerning what was known in 1763. We say that 17 there was evidence before the trial judge, and 18 extensive argument, good legal reason we say to find 19 that the entirety of modern Canada was authoritatively 20 ceded to Britain by France in 1763. But for the 21 purposes of this appeal, we leave aside the question 22 of what lands were known to the drafters in 1763, and 23 precisely the geographic reach of the land ceded by 24 France and received by Britain by the Treaty of Paris. 25 We say assuming, without arguing the point that 26 British Columbia was not brought under the Crown's 27 dominions and territories until some time after 1763, 28 it's our submission, and one which we will be 29 advancing, that the Royal Proclamation applied 30 prospectively and the trial judge erred in finding to 31 the contrary. 32 If I could ask your lordships to turn to tab 1 of 33 your materials, I would like to take you to the 34 findings of the trial judge on this point. In tab 1, 35 at page 211, I set out what is Mr. -- the Chief 36 Justice's beginning on the Royal Proclamation. He 37 says: 38 39 "It is therefore with much hesitation and with 40 the greatest possible respect to the witnesses 41 and to counsel, who expended so much skill and 42 energy on this question, that I find myself 43 able to dispose of it quite summarily. For 44 reasons which I shall endeavour to state, I do 45 not find it necessary to do more than outline 46 the principal facts and to state my conclusions 47 which result mainly... 71? 1 2 And this is his language and his analysis, 3 4 "...mainly from the language of the Proclamation 5 construed in its historical setting." 6 7 So if I could ask your lordships to turn to page 8 228, which is your next page in tab 1, he begins at 9 the top of the page by stating what he believes the 10 purpose of the Proclamation is: 11 12 "I have no doubt that apart from setting up 13 governments for the new colonies, the 14 underlying purpose of the Proclamation was 15 firstly to pacify the frontier for defensive or 16 military purposes, and secondly to secure the 17 markets of the North American colonies for the 18 manufactured products of the mother country." 19 20 And I can just pause here to remind your lordships 21 that my colleague, Mr. Jackson, addressed you as to 22 another purpose, which we say also was part of the 23 Proclamation, and that is the consolidation of English 24 Crown relations in respect of the Indian people. 25 And if I could go drop down to the second to the 26 last paragraph on the page, he says: 27 28 "I do not propose minutely to consider every 29 word of the Proclamation because I am satisfied 30 that its language demonstrates beyond any 31 question that it applied only to the benefit of 32 certain lands and specified Indians. 33 As to the lands, I have no doubt that the 34 lands of North America, north and west of the 35 headwaters of the Mississippi were not lands 36 over which the British Crown had any authority 37 in 1763, except for Rupert's Land, which was 38 not within the reach of the Proclamation." 39 40 Then if you will turn the page, my lords, this is 41 now in respect to Indians, he says: 42 43 "The first mention of Indians in the 44 Proclamation is in the preamble, Pt. IV, which 45 describes 'the several Nations or Tribes of 4 6 Indians, with whom We are connected and who 47 live under Our Protection.' Every reference to 719 1 Indians in the balance of the Proclamation 2 refers to 'the said Indians', indicating that 3 the only Indians embraced by the Proclamation 4 are those with whom the Crown was connected and 5 who lived under the protection of the Crown." 6 7 Then if you will turn to the next page, 230, the 8 next page in the judgment, he says, at the second 9 paragraph: 10 11 "I have given this question much careful 12 thought, particularly the plaintiffs' argument 13 that the Royal Proclamation should be given a 14 prospective construction so as to include 15 tribes of Indians with whom the Crown later 16 became connected and who later found themselves 17 under its protection. 18 I am unable to accept this submission. The 19 tenor of the Proclamation in its historical 20 setting clearly relates to the practical 21 problems facing the Crown in its then American 22 colonies. Two of the Indian clauses of the 23 Proclamation actually state they are prescribed 24 for 'the present' and a fair reading of the 25 document makes it clear that it relates to and 26 applies for the use of the said Indians, who 27 are those with whom the Crown was connected, 28 etc., and over whom the Crown then exercised 29 sovereignty. It must be remembered that 30 Britain had just obtained sovereignty of all of 31 North America east of the Mississippi, but its 32 new and old colonial governments had 33 jurisdiction over peoples and territories which 34 were much more limited." 35 36 Then he says: 37 38 "It is the Indians in these extra lands which 39 were included within the reach of the 40 Proclamation." 41 42 That is, the Indians not within the old colonies, 43 which were in lands east of the Mississippi. 44 45 "The Crown had no connection with the Indian 46 people west of the Rockies who owed the Crown 47 no actual or even notional allegiance and were 720 1 in no way under its protection." 2 3 Dropping down to the final paragraph of the same 4 page: 5 6 "In a proper case I think it is appropriate to 7 apply a purposive approach to the language of 8 the instrument Royal Proclamation which is much 9 closer to a statute than to a treaty. As I 10 have said, its principal purposes were to 11 establish new governments, to settle present 12 and anticipated difficulties on the frontier 13 and to encourage British mercantilism by 14 limiting the spread of settlement too distant 15 from coastal trade. The extension or 16 application of the Proclamation to unknown 17 Indians in unknown lands beyond or northwest of 18 the Mississippi, particularly with the terra 19 incognita of the 'Canadian west', in no way 20 served those purposes." 21 22 Now, if I could return your lordships to the 23 speaking notes, the principal arguments which we will 24 address in respect to the trial judge's errors are set 25 out at the bottom of page one. We say that the Royal 26 Proclamation calls for a prospective application, and 27 these are the three principal reasons, and we will be 28 addressing them each in turn. We say that the land 29 provisions have been judicially considered to have the 30 force of statute analogous to the status of the Magna 31 Carta which has always been considered to be the law 32 throughout the empire. It was the law which followed 33 the flag as England assumed jurisdiction over 34 newly-acquired territories. 35 We say, secondly, that the words of the land 36 provisions taken together both with authorities which 37 have considered the prospective application, and also 38 with evidence of the Jurisdiction Acts, compel a 39 prospective application. 40 And we say, thirdly, that to the extent that 41 intrinsic evidence is relevant, such evidence supports 42 the view that the drafters intended to leave the 43 western boundary open-ended and to extend commerce to 44 all the Indians of the continent known and to be 45 discovered by the Crown. The trial judge improperly 46 used documents to add a western boundary to language 47 of the Proclamation where no such term appears on the 721 1 face of the instrument. 2 Finally, we say if ambiguity can be found on the 3 face of the instrument or having regard to relevant 4 extrinsic evidence, that ambiguity ought to have been 5 resolved in the appellants' favour and it was not. 6 And I will take you to the trial judge's, in our 7 submission, misconstruing of the Mitchell and the 8 Nowegijick principles. 9 My lords, I would like to ask you to turn to tab 10 two. I have set out here the Proclamation, and I am 11 going to this is taken from the back of the 12 judgment but I do that so it will be somewhat easier 13 for us to see the wording. I would like to take you 14 through the language of if. First, though, for your 15 lordships review, a Proclamation is an official public 16 announcement of an Act of the Crown. It's effected by 17 order-in-council and to be valid it has to pass 18 through the Great Seal. And this Proclamation was. 19 Royal Proclamations as public acts of the Great Seal 20 are considered to be prerogative instruments of a high 21 order, and like commissions and charters, they are 22 susceptible of operating as colonial constitutions. 23 In fact, this Royal Proclamation performed this 24 function for Quebec, and the basic constitution of 25 Trinidad for many years was a Royal Proclamation. So 26 that's the legal force of the document. 27 I would like to take your lordships through the 28 terms of it. Your lordships will be aware that there 29 are four parts to the Proclamation, each with its own 30 preamble. And the parts vary in subject matter and 31 scope, and they range in coverage from a single colony 32 to the entirety of the British territories in North 33 America. 34 And I am going to begin with Part I. There is 35 numbers, B, C, D 1) and 2) beside them, and for the 36 purposes of the first three parts, I will be referring 37 to the letters, when I speak of the paragraphs. The 38 preamble of Part I announces measures for exposing of 39 the former French and Spanish territories which were 40 acquired in the Treaty of Paris. And I will just read 41 to your lordships: 42 43 "Whereas We have taken into Our Royal 44 Consideration the extensive and valuable 45 acquisitions in America, secured to Our Crown 46 by the late definitive Treaty of Paris...and 47 being desirous that all Our loving subjects as 722 1 well as Our Kingdoms as Our colonies in 2 America, may avail themselves, with all 3 convenient speed of the great benefits and 4 advantages which must accrue therefrom to their 5 commerce, manufactures and navigation." 6 7 So they are announcing now "We have thought fit 8 to", and what they do then is they create four new 9 colonies. And that's described just before the big 10 letter D, Quebec, East Florida, West Florida and 11 Grenada. So this section of the Proclamation brings 12 four new colonies, organizes them inside the ambit of 13 the Proclamation. 14 Now, paragraphs D, E, F and G will all describe 15 the boundaries, precise boundaries of each of those 16 four new colonies, and your lordships when you read it 17 will be aware that paragraphs H, I and J cover the old 18 colonies, but they annex some territories unto them. 19 So that's what is taking place within the first part 20 of the Proclamation. We have got the creation of four 21 new colonies with boundaries and annexation of lands 22 to some of the old ones. 23 Now, Part II is devoted to the constitution of 24 these new governments in their four colonies, and it 25 begins: 26 27 "Whereas it will greatly contribute to the 28 speedy settling of Our said new governments, 29 that Our loving Subjects should be informed of 30 Our Paternal Care for the security of the 31 liberties and properties of those who are and 32 shall become inhabitants ..." 33 34 You can see a forward-reaching language here. And 35 what the next section does is in terms of the 36 constitution of the new governments, I will summarize 37 that paragraph beside paragraph M, the governors are 38 empowered to summon assemblies under -- between the 39 pargraphs between M and N, the governors are empowered 40 to make laws as near as agreeable to the laws of 41 England, and meanwhile the inhabitants will enjoy 42 English law. 43 Between the paragraphs N and 0, the governors are 44 empowered to create courts, again the law as near as 45 agreeable to the laws of England. 46 Between 0 and P, the power to appeal to the Privy 47 Council is maintained. And I want to note and read to 723 1 you paragraph P, it's a function which is being left 2 now to the governors of the new colonies: 3 4 "We also thought fit with the advice of Our 5 Privy Council as aforesaid, to give unto the 6 governors and councils of Our three new 7 colonies upon the continent, full power and 8 authority to settle and agree with the 9 inhabitants of Our said new colonies, or with 10 any other persons who shall resort thereto, for 11 such lands, tenements and hereditaments..." 12 13 And again this forward-reaching language, 14 15 "...as are now or hereafter shall be in Our 16 power to dispose of." 17 18 So the colony governors are given power to settle 19 land matters with the Indians and the phrase which is 20 forward-reaching "...as are now or hereafter shall be 21 in Our power to dispose of." 22 Now, Part III of the Proclamation is the free land 23 to the military, and these provisions are directed 24 both to the governors of the new colonies and also, 25 and I am going to read the language: 26 27 "We do hereby command and empower the governors 28 of the said three new colonies, and all other 29 Our governors of Our several provinces on the 30 continent of North America..." 31 32 This is in order to give free land to the 33 military. It extends beyond the colonies and to all 34 the other governors within the North American British 35 Empire. 36 Now if I could ask your lordships to drop down to 37 Part IV, this is the provision dealing with a variety 38 of matters relating to Indians. It's longer and it's 39 more complex than the other sections. And it begins 40 with the preamble: 41 42 "And whereas it is just and reasonable and 43 essential to Our interest in the security of 44 Our colonies, that the several Nations or 45 Tribes of Indians with whom We are connected 46 and who live under Our protection, should not 47 be molested or disturbed in the possession of 724 1 such parts of Our Dominions and territories as 2 not having been ceded to or purchased by Us are 3 reserved to them." 4 5 I just want to pause, my lords, and go through 6 that language carefully. The Indians are the several 7 Indians, "...the several Nations or Tribes of Indians 8 with whom We are connected and a who live under Our 9 protection." The protection is that they shall not be 10 molested or disturbed and the territory which is 11 contemplated by the preamble, "...in the possession of 12 such parts of Our Dominions and territories as not 13 having been ceded to or purchased by Us are reserved 14 to them." And your lordships will note that the -- 15 they are not speaking of reserving land to the 16 Indians, but to the justice of protecting Indians from 17 being disturbed in the possession of their pre- 18 existing land rights. So which lands are reserved, 19 the language is, "...lands not ceded to or purchased 20 by Us." 21 And if your lordships will turn past the 22 Proclamation in your materials to the first, past the 23 first pink divider, I have introduced in this, this is 24 still in tab 2, my lords, just go past the 25 Proclamation for a minute, and I have included a 26 paragraph from tab 7, which Mr. Jackson didn't stress 27 but which I wanted to in this context. And it is 28 this, that the recital in Part IV, which describes the 29 lands, "...such parts of Our Dominions and Territories 30 as not having been ceded to or purchased by Us or in 31 Indian possession...". These words are not chosen 32 without care, as a perusal of the final working draft 33 of the Proclamation shows. In each case they owe 34 their presence in the text to amendments of the draft 35 Proclamation, most likely made by John Pownall, who 36 was the secretary to the Board of Trade. The preamble 37 to Part IV as originally phrased refers to: 38 39 "Indians in possession of such parts of our 40 Dominions and Territories as are occupied by or 41 reserved to them as their hunting grounds." 42 43 And it was very late in the day that those words 44 were changed to the wording that you see in the 45 Proclamation. This was altered to read: 46 47 "...such parts of our Dominions and Territories 725 1 as not having been ceded to our purchased by Us 2 are reserved to them." 3 4 And then we will see as we go along that in 5 various other paragraphs of the Proclamation, the 6 language was changed accordingly. 7 Now, my lords, I say that the preamble recognizes 8 Indians, "...for the several Nations and Tribes of 9 Indians..." who the Proclamation refers to, the land 10 which is being referred to in the preamble recognizes 11 Indians holding rights to un-ceded land in their 12 possession in North America. 13 Now paragraph one, and I am going to now speak of 14 this in terms of paragraphs one, two, three and four 15 and not the letters, because it's more -- I am more 16 used to doing that. Paragraph one, the first 17 paragraph: 18 19 "We do therefore, with the advice of Our Privy 20 Council, declare it to be Our Royal will and 21 pleasure that no governor or Commander in Chief 22 in any of Our colonies of Quebec, East Florida 23 or West Florida, do presume upon any pretense 24 whatever, to grant Warrants of Survey or pass 25 any Patents for lands beyond the bounds of 26 their respective governments as described in 27 their commissions; as also that no governor or 28 Commander in Chief in any of Our other colonies 29 or plantations in America do presume for the 30 present and until our further pleasure be known 31 to grant warrants of survey or pass Patents for 32 any lands beyond the heads or sources of rivers 33 which fall into the Atlantick Ocean from the 34 West and North-west, or upon any Lands 35 whatever, which, not having been ceded to, or 36 purchased by Us as aforesaid, are reserved to 37 the said Indians, or any of them." 38 39 So what you have operating in paragraph one is 40 that is the King is prohibiting the governors of these 41 new colonies from granting land beyond their 42 boundaries, and no governor "in any of the colonies 43 and plantations in the Americas..." so now they are 44 going beyond the three new colonies, "...shall grant 45 Patents upon which land any land which is not ceded to 46 or purchased by Us." 47 So you have the same territorial reach for the 726 1 lands in paragraph one and you do in the preamble, 2 which we say is to do with unceded lands in the 3 possession of the Indians in North America. 4 And I just refer your lordships to the word "as 5 aforesaid", at the bottom of paragraph one, which can 6 refer to no other but the lands which have already 7 been described in the preamble. 8 Now, my lords, you will see that there is a barrier 9 then which has been put on settlement, but the barrier 10 is not permanent, because as the paragraph said, it's 11 "until Our further pleasure be known." So what -- 12 this is referring to the barrier that Mr. Jackson 13 referred to in his material, where the Appalachian 14 line is now going to be for the present, not a 15 permanent one, but for the present, will become a 16 barrier to settlement. 17 Now, paragraph 2: 18 19 "And We do further declare it to be Our Royal 20 will and pleasure for the present as aforesaid, 21 to reserve unto Our sovereignty, protection and 22 Dominion for the use of the said Indians, all 23 the lands and territories not included within 24 the limits of Our said three new governments or 25 within the limits of the territory granted to 26 the Hudson's Bay Company as also all the lands 27 and territories lying to the westward of the 28 sources of the river which fall into the sea 29 from the west and northwest as aforesaid; and 30 We do strictly forbid, on pain of Our 31 displeasure, all Our loving subjects from 32 making any purchases or settlements whatever, 33 or taking possession of any of the lands above 34 reserved, without Our especial leave and 35 licence for the purpose first obtained." 36 37 So what paragraph 2 is describing, my lords, is an 38 exclusive Indian territory which has been reserved for 39 the Indians. It's held "under Our sovereignty, 40 protection and Dominion..." and it's comprising all 41 the lands and territories not included within the new 42 governments or the Hudson's Bay Company, and all the 43 lands west of the Appalachian divide, as aforesaid, 44 which refers back, in our submission, to the preamble. 45 And it's creating an Indian territory where British 46 subjects cannot make purchases or settlements without 47 British licence. 727 1 We note, my lords, that there is no western 2 boundary which is put to this Indian reserve, and in 3 fact the boundary is defined negatively, that is, it's 4 not the boundaries of the existing colonies. It's 5 defined negatively. It's all the other land which 6 falls outside of the boundaries and, in our 7 submission, that's logical, because the pressure to 8 colonize will be coming from the east. So this is 9 actually a fence to the settlers, that this is a line 10 beyond which, for the present, it's temporary, as was 11 the paragraph above it, a temporary halt is being 12 placed on the movement into the American hinterland, 13 and it's reinforced by paragraph one, where the 14 governors can't grant grants in that area. Well, for 15 the same area neither can settlers make -- place 16 themselves. 17 Now, paragraph 3 is -- 18 TAGGART, J.A.: On that question of scope and the lack of a 19 western boundary, how do you construe the opening 20 words of the Proclamation "...secured to Our Crown by 21 the late definitive Treaty of Peace concluded at Paris 22 the 10th day of February last"? 23 MS. MANDELL: My lord I will be addressing — 24 TAGGART, J.A.: What did the Treaty of Paris do? 25 MS. MANDELL: What did it do? My lord, I will be addressing 26 that in detail. I will be taking you to the Treaty of 27 Paris, but what it did, in general, was that France 28 ceded, in the most general language, talk about 29 quitclaim language, in the broadest term, France ceded 30 to Britain all our her dependencies and claims and 31 interests to the territory, which is the territory 32 which France had claimed in North America, reserving 33 only to herself what has been referred to as her 34 colony in Louisiana, which is a specific territory 35 west of the Mississippi, but not the northwest of the 36 American continent. So, this -- I will take you to 37 the language. But it's a very encompassing quitclaim 38 of all her claims, all of her lands in North America. 39 And I will show you the reach of that when I get to 40 that portion of the argument. Britain got what France 41 had and also what France claimed. That's what the 42 Treaty of Paris did. 43 My lords, under paragraph 3: 44 45 "And We do further strictly enjoin and require 46 all persons whatever who have either wilfully 47 or inadvertently seated themselves upon any 72? 1 lands within the countries above described, or 2 upon any other lands, which, not having been 3 ceded to, or purchased by Us, are still 4 reserved to the said Indians as aforesaid, 5 forthwith to remove themselves from such 6 settlements." 7 8 So paragraph 3 is really the teeth to paragraph 2, 9 it orders the removal of anyone who has settled into 10 Indian country, or "...upon any lands not ceded, which 11 are reserved as aforesaid." So that, in our 12 submission, comes back to the general language of the 13 preamble. 14 And, again we note that there is no western 15 boundary placed to paragraph 3. 16 Now paragraph 4) a) : 17 18 "And whereas great frauds and abuses have been 19 committed in the purchasing lands of the 20 Indians, to the great prejudice of Our 21 interest, and to the great dissatisfaction of 22 the said Indians; in order therefore to prevent 23 such irregularities in the future, and to the 24 end that the Indians may be convinced of Our 25 justice, and determined resolution to remove 26 all reasonable cause of discontent, We do with 27 the advice of our Privy Council strictly enjoin 28 and require that no private person do presume 29 to make any purchase from the said Indians of 30 any lands reserved to the said Indians within 31 those parts of the Our colonies where We have 32 thought proper to allow settlement; but that if 33 at any time any of the said Indians should be 34 inclined to dispose of the said land, the same 35 shall be purchased only for Us, in our name, at 36 some public meeting or assembly of the said 37 Indians, to be held for that purpose by the 38 Governor or Commander in Chief of Our colonies 39 respectively, within which they shall lie; and 40 in case they shall lie within the limits of any 41 proprietary government..." 42 43 That would be for the Hudson's Bay Company, 44 45 "...they shall be purchased only for the use and 46 in the name of such proprietaries, conformable 47 to such directions and instructions as We or 729 1 they shall think proper for that purpose." 2 So what 4)a) is dealing with in more detail is the 3 purchase of Indian lands which are mentioned in 4 paragraph one. What the paragraph is referring to is 5 the frauds and abuses, and the King is forbidding 6 persons of making, 7 8 "...purchases of any land reserved to the said 9 Indians within thoughts parts of our colony 10 where We have thought fit to allow settlement." 11 12 Again, it's applying both to the proprietary and 13 non-proprietary colonies. Such lands are to be 14 purchased with the consent and in an open meeting, and 15 again we say that the lands is the lands reserved, and 16 the language is the same language as paragraph one in 17 the preamble, and paragraph 3, that is "...lands which 18 have not been ceded or purchased by Us." 19 My lord, I think that the relationship between 20 paragraphs two, three and four might be described this 21 way, that the preamble acknowledges Indian rights to 22 unceded land in their possession in North America. 23 And what paragraph 2 does, this is the Indian reserve, 24 in regions closed to settlement, the Imperial Crown is 25 the one who will permit settlement through the leave 26 and licence. But where the King opens up the interior 27 to settlement, and creates a colony there, then the 28 purchase provisions relating to areas "...where We 29 have thought proper to allow settlement..." would 30 become applicable, and special leave and licence will 31 be replaced by the colonial officials' freedom to 32 negotiate land treaties, and that the difference is 33 really the degree of control which the Crown will 34 exert within the Indian country on one hand, where 35 they exert great control through the leaves of 36 licence, and in the colonies where the King will 37 directly have littler control left, where the colonies 38 and the governors themselves, through the section 4)a) 39 provisions, will be able to take land surrenders. 40 4)b): 41 42 "We do, by the advice of Our Privy Council 43 declare and enjoin that the trade with the said 44 Indians shall be free and open to all Our 45 subjects whatever, provided that every person 46 who may incline to trade with the said Indians 47 take out a licence for carrying on such trade 730 1 from the Governor or Commander in Chief of Our 2 colonies respectively and where such person 3 shall reside and also give security to observe 4 such regulations and We shall at any time think 5 fit by Ourselves or our commissioners to be 6 appointed for this purpose, to direct and 7 appoint for the benefit of the said trade." 8 9 So, what's happening here is that Indian trade is 10 being opened up to all British subjects with a 11 licence, and 4)b) is authorizing the governors of the 12 colonies to grant licences, and the provision appears 13 to apply to all British colonies in North America. 14 And finally the last provision: 15 16 17 "And We do hereby authorize, enjoin and require 18 the Governors and Commanders in Chief of all of 19 Our colonies respectively as well as those 20 under Our immediate government, as those under 21 the government and direction of proprietaries, 22 to grant such licences without fee or reward, 23 taking special care to insert therein a 24 condition that such licences shall be void, and 25 the security forfeited, in case the person to 2 6 whom..." 27 28 I am sorry, 29 30 "...the same is granted." 31 32 This is still part of the pay provision. I meant 33 to take you to paragraph 5 at the top of the page. 34 35 "And We do further expressly enjoin and require 36 all officers whatever, as well military as 37 those employed in the management and direction 38 of Indian affairs within the territories 39 reserved as aforesaid for the use of the said 40 Indians, to seize and apprehend all persons 41 whatever, who, standing charged with treasons, 42 misprisions of Treason, murders or other 43 felonies or misdemeanors, shall fly from 44 justice, and take refuge in the said territory, 45 and to send them under the proper guard to the 4 6 Colony where the crime was committed of which 47 they stand accused, in order to take their 731 1 trial for the same." 2 3 So what the text does is make provisions for the 4 apprehension of persons who have charge -- they are 5 charged and they take refuge in the territory as 6 aforesaid, and these people can be returned to the 7 colony. 8 Now, it's also to be noted that paragraph 5 is the 9 same open-ended provision as paragraph 2. There is no 10 boundaries put to this. It's simply if the fugitive 11 moves into Indian territory then they can be brought 12 back. 13 My lords, in summary on this point, we say that the 14 Part IV of the Royal Proclamation recognizes that 15 lands possessed by Indians anywhere in North America 16 are reserved to them, unless those lands are ceded and 17 purchased by the Crown. The provisions protect land 18 from grants, settlements and purchase, it temporarily 19 closes the American frontier, and your lordships will 20 notice that for the present the temporary words are 21 only used in the two paragraphs respecting the 22 boundary line which will govern the temporary 23 settlement, it temporarily closes the American 24 frontier and if reserves it for Indian use and for the 25 skin trade, because there is going to be licences 26 which will be given by the colonies for the fur 27 traders to move into this area in order to do their 28 fur trade. It temporarily restricts settlement to the 29 new colonies, Rupert's Land and the area east of the 30 Appalachian Mountains. 31 My lords, just before completing an introduction to 32 the Proclamation, I want you to be aware of two 33 things: One is that at the very back of the tab where 34 I have put the Proclamation, I have also enclosed a 35 letter from Halifax, who was then the Secretary of -- 36 the Colonial Secretary to the Lords of Trade. It's 37 the September 19th letter. And I do this just to 38 illustrate to your lordships that -- and I will be 39 referring to this history in more detail -- that the 40 discussion as to what to do with this land which was 41 claimed from the Treaty of Paris, in terms of the 42 Lords of Trade, was ongoing from at least January of 43 1763. And the focus between January and September, 44 was how do we organize our relationships with the 45 Indians. And that was primarily the focus. And very 46 late in the day, this is September, the Proclamation 47 was pronounced in October, the Lords of Trade, Halifax 732 1 is writing to the Lords of Trade, and I am not going 2 to take you through the letter, but to make your 3 lordships aware that it was only at this very late day 4 that the Lords of Trade decided to expand the purpose 5 of the Proclamation beyond merely the Indian 6 provisions and to include, and your lordships will see 7 in you will turn over the first page of the letter, at 8 the bottom of the first column, they were directed to 9 expand the Proclamation's purpose to make known the 10 establishment and limits of the four new colonies, to 11 declare the constitutions of the new colonies, to 12 prohibit private purchases of lands from Indians, to 13 declare free trade, to empower all military officers 14 to take Indian -- to take people, fugitives, back into 15 Indian territory. So the actual purposes for which 16 the Proclamation was intended to be drafted expanded 17 at a fairly late stage to include a number of other 18 provisions which formerly the King had not been -- 19 believing that he will be addressing through the 20 Proclamation. 21 And finally, before I leave, your lordships, I 22 wanted to ask you to turn to tab 3. And there are a 23 number of cases where the lands reserved for the 24 Indians clause has been interpreted judicially, and I 25 wanted to draw your lordships to the decisions which 26 support the interpretation which I have submitted to 27 your lordships, and that is that the lands are lands 28 which have not been -- reserved lands are lands which 29 have not being ceded or purchased. That broad 30 category of lands. 31 The first decision is Mr. Justice Strong in St. 32 Catherines Milling, and I if I could take you to the 33 middle the last paragraph, he says: 34 35 "Thus using the text of the Proclamation as a 36 glossary, we find that in 1763 lands reserved 37 for the Indians meant lands not ceded or 38 surrendered by them to the Crown." 39 40 And, my lords, if you will turn to the next case 41 after the pink divider, the Privy Council accepts 42 this, and I will refer you to the middle of the full 43 paragraph beginning "whilst there have been 44 changes..." it's right after the pink slip: 45 46 "Whilst there have been changes in the 47 administrative authority, there has been no 733 1 change since the year 1763 in the character of 2 the interest which its Indian inhabitants had 3 in the lands surrendered by the treaty. Their 4 possession, such as it was, can only be 5 ascribed to the general provisions made by the 6 Royal Proclamation in favour of all Indian 7 tribes then living under the sovereignty and 8 protection of the British Crown." 9 10 Then at the next page, if your lordships will turn 11 to it, the Indian interest was described as a general 12 burden. 13 14 "It appears to them to be sufficient for the 15 purposes of this case that there has been all 16 along vested in the Crown a substantial and 17 paramount estate underlying the Indian title 18 which became a plenum dominium whenever that 19 title was surrendered or otherwise 20 extinguished." 21 22 If your lordships can turn to the next case, just 23 after the pink divider, this is a decision of our 24 Supreme Court of Canada involving lands which the St. 25 Regis band had alienated, contrary to the terms of the 26 Proclamation, and the grant was struck down. And in 27 the course of the judgment, the court said: 28 29 "There is no evidence whatsoever as to what were 30 the powers or authority of the British Indian 31 Chiefs of St. Regis, but it is admitted that 32 the premises, being Crown Lands, had not been 33 ceded or surrendered to the Crown by the 34 Indians; and, therefore, as a matter of law, 35 the Chiefs could not dispose of the reserve or 36 any part of it or any state therein." 37 38 And St. Catherines was quoted. 39 And finally, my lords, if I could ask you to turn to 40 the next case under the pink slip, this is Mr. Justice 41 Norris quoting with approval in White and Bob from the 42 Ontario Mining and Seybold case, and if I could just 43 drop down to the last paragraph of the quote: 44 45 "And as to the scope of 'lands reserved for 46 Indians', it is laid down that the phrase is 47 sufficient to include all lands reserved upon 734 1 any terms or conditions for Indian occupation. 2 That is to say, the expression is to be traced 3 back to the Royal Proclamation is not to be 4 limited to reserves set apart under the 5 provisions of a treaty, but is of larger scope 6 covering all wild and waste lands in which the 7 Indians continue to enjoy their primitive right 8 of occupancy even in the most fugitive manner. 9 But no doubt the phrase does include a treaty 10 reserve." 11 12 Now, we disagree with the description of 13 aboriginal title but agree with the fact that it's not 14 a reserve which has been specifically set out. 15 My lord I think that this is as far as I can get. 16 TAGGART, J.A.: Very well. 2 o'clock. 17 18 LUNCH BREAK 19 20 21 22 23 I hereby certify the foregoing to be 24 a true and accurate transcript of the 25 proceedings herein to the best of my 26 skill and ability. 27 28 29 30 31 Wilf Roy 32 Official Reporter 33 United Reporting Service Ltd. 34 35 36 37 38 39 40 41 42 43 44 45 46 47 735 1 (PROCEEDINGS RESUMED) 2 3 THE REGISTRAR: Order in court. 4 MR. ARVAY: My lords, the new person on our side of the counsel 5 table is Miss Jennifer Hocking. 6 TAGGART, J.A.: You're welcome. I had been hoping to wish your 7 former student a fond farewell for about 20 minutes to 8 be called tomorrow and then come back and illuminate 9 these proceedings. 10 MR. ARVAY: Maybe she will do that. 11 TAGGART, J.A.: We'll have an opportunity to wish her well when 12 she returns. Yes, Miss Mandell. 13 MS. MANDELL: Well, my lord, we're trying to get the 14 Proclamation of British Columbia. I would like to 15 take you to tab 4 of the materials. Mr. Chief Justice 16 McEachern in the discussion of the Proclamation, 17 between pages 217 and 223, set out what he thought 18 were the important historical moments within which the 19 Proclamation occurred, and I would like to highlight 20 three significant, in our submission, historical 21 events which were all coming together at the time of 22 the enactment of the Proclamation. 23 The first is one which was referred to in detail 24 by Mr. Jackson, and that is that in the period just 25 prior to the Proclamation the French and the English, 26 in their fight for control of the continent, had 27 their -- the British success was very much involved 28 with the fact that the Indian people had become their 29 allies, and Mr. -- and the Chief Justice reflected 30 that fact, and I won't read you the passage, but it's 31 these first -- it's the paragraph on page 217 32 beginning "The ultimate British success", and I will 33 just refer your lordships to the fact that that 34 historical detail of some note was reflected by the 35 Chief Justice. 36 The second historical fact, which in our 37 submission is very important, and while it wasn't 38 highlighted in any detail by the Chief Justice, it 39 certainly was referred to a number of times during 40 these pages, and that is that after the war with 41 France was over the British did not remove themselves 42 from the outposts which they had put in Indian 43 territory in the country of the Indian people during 44 their rivalry with the French, and at the same time 45 westward settlement was occurring, and the Indian 46 people then waged war against the British, and Chief 47 Pontiac, who was a chief and a profit, the son of a 736 1 chief, led the war against the British, which occurred 2 between 1760 and 1763. And by 1763, just before the 3 Proclamation was enacted, seven of the ten British 4 outposts were taken over -- overtaken by the Indian 5 people. And this fact is reflected a number of times, 6 and it certainly came to the attention of the Lords of 7 Trade when they were drafting a Proclamation. And if 8 I could just ask your lordships to turn to page 223 of 9 this account, I'll highlight one important letter 10 which reflects the fact that the Pontiac wars were 11 well understood by the Lords of Trade. This is a 12 discussion of a letter of July 1763, where Egremont 13 was responding to a report advising that it had been 14 laid before the King in terms of what to do with the 15 territory, and at the top of page 223: 16 17 "The Lords also suggested further information 18 should be obtained, not apparently then knowing 19 that most of the military forts in the 20 interior, except Detroit, had been captured by 21 Indians in Pontiac's rebellion. The Lords 22 concluded their response: 23 'In the meantime, we humbly propose that a 24 Proclamation be immediately issued by Your 25 Majesty as well on Account of the late 26 complaints of the Indians, and the actual 27 Disturbances in Consequence.'" 28 2 9 And so there was knowledge at that time among the 30 Lords of Trade as to the fact that these rebellions 31 were actually almost at this stage defeating the very 32 British possessions which the British had so long 33 struggled to gain control of against the French. And 34 it was this point that drove the British to consider 35 what then will be their response to the Indian people 36 in some kind of major way. And I turn your lordships 37 to page 220, although there are many other examples of 38 it, what the Lords of Trade considered was that rather 39 than to try and, if they could, win the North American 40 continent as against the Indians with warfare, instead 41 what they decided to do was to entrench a mutually 42 agreeable set of principles which would be the 43 foundation upon which they could then colonize. And 44 that was reflected in Egremont's letter of May 5th to 45 the Lords of Trade. And I'm reading from the bottom 46 of the page, of page 220: 47 737 1 "On 5th May Egremont wrote to the Lords of Trade 2 requesting a report on the various problems 3 associated with the newly acquired territories 4 in America. He framed one of his principal 5 questions in the following terms: 6 'The second question, which relates to the 7 security of North America, seems to include two 8 objects to be provided for; the first is, the 9 security of the whole against any European 10 power; the next is the preservation of the 11 internal peace and tranquility of the country 12 against Indian disturbances. Of these two 13 objects, the latter appears to call more 14 immediately for such regulations and 15 precautions as your lordships shall think 16 proper to suggest." 17 18 And Egremont proposes the following suggestion, which 19 has been historically called "Lights": 20 21 "Tho' in order to succeed effectually in this 22 point, it may become necessary to erect some 23 forts in the Indian country, with their 24 Consent, yet His Majesty's Justice and 25 Moderation inclines him to adopt the more 26 eligible method of conciliating the minds of 27 the Indians by the Mildness of his Government, 28 by protecting their Persons and Property and 29 securing to them all the Possessions, Rights 30 and Privileges they have hitherto enjoyed, and 31 are entitled to, most cautiously guarding 32 against any Invasion or Occupation of their 33 Hunting Lands." 34 35 And I say to your lordships that's exactly the policy 36 which in fact was formalized in the Royal 37 Proclamation. And, my lords, what I say about this is 38 that the land provisions in Part 4 are actually the 39 very foundation upon which our country has been 40 founded. It's been the first Constitution between the 41 Crown and the Indians upon which this country was 42 finally able itself to grow to full statehood, and 43 it's because of that that when reports have looked at 44 the Royal Proclamation they have considered it as 45 having the force of statute, and, as the courts have 46 said, analogous to the status of the Magna Carta, 47 which has always been considered to be the law 73? 1 throughout the empire. It was the law that followed 2 the flag as England asserted jurisdiction over newly 3 discovered or acquired lands or territories. 4 And if I could ask your lordships to go to tab 5, 5 I've assembled the very very many cases which have 6 looked at the Royal Proclamation as being like the 7 Magna Carta. And I begin in the very first case of 8 Mr. Justice Hall, and I'm going to read from the 9 sentence that is following "Campbell and Hall" from 10 the paragraph beginning "Paralleling", and he begins: 11 12 "Its force as a statute is analogous to the 13 status of Magna Carta which has always been 14 considered to be the law throughout the empire. 15 It was a law which followed the flag as England 16 assumed jurisdiction over newly-discovered or 17 acquired lands or territories." 18 19 And if I can drop down to the next -- 20 LAMBERT, J.A.: Can I just — am I right in saying that 21 parliament could only make laws applicable within the 22 United Kingdom? 23 MS. MANDELL: The Imperial Parliament? 24 LAMBERT, J.A.: The Imperial Parliament. Sometimes that must 25 have changed, because what used to be called the 26 British North America Act of 1867 was an Act of the 27 Imperial Parliament. 2 8 MS. MANDELL: Yes. 29 LAMBERT, J.A.: Which had force in Canada. 30 MS. MANDELL: Yes. 31 LAMBERT, J.A.: But I would not be surprised to find out that at 32 an earlier stage the whole government of the colonies 33 was done through acts like this Royal Proclamation, 34 rather than through the Parliament of the United 35 Kingdom. 36 MS. MANDELL: That's right. My lord, as I best understand it, 37 the King's prerogative, this is without an Act of 38 Parliament, extended to constituting Constitutions and 39 empowering governments and creating the Constitution 40 of colonies. This is something which could be done 41 without an Act of Parliament. 42 LAMBERT, J.A.: Not only that, it was the only way to do it. 43 MS. MANDELL: That's right. Well, I should say it was the major 44 way to do it, and I will get to that in one minute. 45 However, once the prerogative was passed a 46 prerogative instrument could always be amended or 47 repealed by an Act of Parliament. The Royal 739 1 Proclamation, for example, is always subject to an 2 Imperial Act of Parliament, which we would say clearly 3 and plainly would have to extinguish or intefere with 4 the rights which were expressed. The prerogative is 5 the first law which is applicable without an Act of 6 Parliament, but thereafter parliamentary supremacy 7 will take its hold, and I will get into this a bit 8 later, but the Quebec Act, which was enacted 9 immediately after the Royal Proclamation, which was an 10 act of the Imperial Parliament, expressly repealed 11 certain sections of the Royal Proclamation as it 12 related to the boundary of Quebec, and so certainly an 13 Act of the Imperial Parliament could do that. 14 Now, your question about whether or not this is a 15 valid exercise of the prerogative to create an 16 instrument such as this outside of the bounds of the 17 Imperial Parliament; the answer is yes, it could be 18 done. I can point your lordship to Hogg and some of 19 the other writers that -- Chitty, a number of them 20 speak about the prerogative power, Campbell and Hall 21 speak about it, most directly as to the fact that this 22 is a valid exercise of the prerogative. The test was 23 whether it came under the great seal. 24 LAMBERT, J.A.: Why would the Lords of Trade, particularly on 25 the plantations, why would they choose this route 26 rather than introduce the bill in parliament? 27 MS. MANDELL: Well, in the case of — your lordship was right 28 when you said earlier that this is the normal way they 29 did it, when -- when a colony was being annexed or 30 there was territory being claimed, this is very much a 31 part of the prerogative of the King or the Queen, this 32 is four square in the prerogative jurisdiction, and 33 thereafter we move into parliamentary supremacy. 34 LAMBERT, J.A.: When it's being claimed, it's an Executive Act 35 of the Sovereign rather than an Act of Parliament? 36 MS. MANDELL: That's right. 37 LAMBERT, J.A.: When it's being regulated after it is claimed, 38 it's appropriate that it be regulated by parliament? 39 MS. MANDELL: Exactly. 40 LAMBERT, J.A.: Is that right? 41 MS. MANDELL: It's exactly right. I was reading to you, your 42 lordships, the cases that have said that of this 43 exercise of the prerogative in respect of the Royal 44 Proclamation, its force as a statute is analogous to 45 the status of the Magna Carta. That's how it's been 46 described. And I'm dropping down to Mr. Justice 47 Hall's comments in Calder: 740 1 "In respect of this Proclamation, it can be said 2 that when other exploring nations were showing 3 a ruthless disregard of native rights England 4 adopted a remarkably enlightened attitude 5 towards the Indians of North America. The 6 Proclamation must be regarded as a fundamental 7 document upon which any just determination of 8 original rights rests. Its effect was 9 discussed by Mr. Idington, J., in this court in 10 The Province of Ontario v. Dominion of Canada 11 case" -- 12 13 Where he described the Proclamation as: 14 15 "A line of policy begotten of prudence, humanity 16 and justice adopted by the British Crown to be 17 observed in all future dealings with the 18 Indians in respect of such rights as they might 19 suppose themselves to possess was outlined in 20 the Royal Proclamation of 1763 erecting, after 21 the Treaty of Paris in that year, amongst 22 others, a separate government for Quebec, ceded 23 by that treaty to the British Crown. 24 That policy adhered to thenceforward, by those 25 responsible for the honour of the Crown led to 26 many treaties whereby Indians agreed to 27 surrender such rights as they were supposed to 28 have in areas respectively specified in such 29 treaties." 30 31 And if I could ask your lordships to turn to the 32 case after the pink divider. This is the case of Lord 33 Denning, his last decision on the bench, in the case 34 of Secretary of State. And he, of the Royal 35 Proclamation, said this, and I'm reading from page 647 36 under "The Effect of the Proclamation": 37 38 "The Royal Proclamation of 1763 had great impact 39 throughout Canada. It was regarded as of high 40 constitutional importance. It was ranked by 41 the Indian peoples as their Bill of Rights, 42 equivalent to our own Bill of Rights in England 43 80 years before." 44 45 I'm going to drop down to the paragraph that begins: 46 47 "To my mind the Royal Proclamation of 1763 was 741 1 equivalent to an entrenched provision in the 2 constitution of the colonies in North America. 3 It was binding on the Crown, 'so long as the 4 sun rises and the river flows'. I find myself 5 in agreement with what was said a few years ago 6 in the Supreme Court of Canada" -- 7 8 And I've already read you the passage where he agrees 9 with Mr. Justice Hall in Calder. And if I could turn 10 over the page to 648, he says: 11 12 "The Proclamation of 1763 governed the position 13 of the Indian peoples for the next 100 years at 14 least. It still governs their position 15 throughout Canada, except in those cases where 16 it has been supplemented or superseded by a 17 treaty with the Indians. It still is the basis 18 of the rights of the aboriginals in those 19 provinces of Nova Scotia and New Brunswick." 20 21 And he was quoting in that from the cases of Isaac and 22 Polchies. If I can drop down to the end of the page 23 on the paragraph that says "Save for that reference", 24 I'm going to read: 25 26 "But I have no doubt that all concerned regarded 27 the Royal Proclamation of 1763 as still of 28 binding force. It was an unwritten provision 29 which went without saying. It was binding on 30 the legislature of the Dominion and the 31 provinces just as if there had been included in 32 the statute a sentence: 'The aboriginal 33 peoples of Canada shall continue to have all 34 their rights and freedoms as recognized by the 35 Royal Proclamation of 1763." 36 37 And, my lords, if I could ask you to turn to the next 38 case beyond the pink divide, this is the proposition 39 that the Royal Proclamation was like an entrenched 40 provision of the Constitution within the meaning of 41 Section 91(24), which, as stated by Judge Denning, was 42 not a new one, it had been stated in the Seybold case, 43 and reference is made of that by Mr. Justice Norris in 44 White and Bob, beginning with the passage: 45 46 "In Ontario Mining v. Seybold, Chancellor Boyd 47 emphasizes the importance of uniformity of 742 1 administration of Indian affairs and points out 2 that the Proclamation of 1763 has been carried 3 forward into Section 91(24) of the B.N.A. Act, 4 and that the provisions in favour of the 5 Indians are to be construed broadly in their 6 favour." 7 8 And then if I could ask you to turn over the page, Mr. 9 Justic Norris concludes: 10 11 "I am in complete agreement with the statement 12 of Sissons, J., to the extent that it applies 13 to the respondent Indians on this appeal." 14 15 And quoting from the Koonungnak case, he says: 16 17 "This Proclamation has been spoken of as the 18 'Charter of Indian rights.' Like so many great 19 charters in English history, it does" -- 20 21 That should be: 22 23 "-- does not create rights but rather affirms 24 old rights. The Indians and Eskimos had their 25 aboriginal rights and English laws has always 26 recognized these rights." 27 28 And I'm going to ask your lordships to turn over 29 to the next case. These following cases are not cases 30 where the Royal Proclamation itself was directly 31 addressed, but the principles of the Proclamation are 32 relied upon as fundamental principles in the course of 33 decision-making. In the case of Sioui, I'm reading 34 from the paragraph which begins "The appellant then 35 argued", and I'm going down to the sentence beginning: 36 37 "The purpose of the Proclamation was first and 38 foremost to organize, goegraphically and 39 politically, the territory of the new American 40 colonies, namely Quebec, East Florida, West 41 Florida and Grenada, and to distribute their 42 possession and use. It also granted certain 43 important rights to the native peoples and was 44 regarded by many as a kind of charter of rights 45 for the Indians." 46 47 And the court cites White and Bob and Calder and the 743 1 Secretary of State. And if I could ask your lordships 2 to turnover to the next case, this is the Mitchell 3 case, a decision which came out in the Supreme Court 4 of Canada trilogy of Mitchell, Sparrow and Sioui, at 5 the same time. I'm reading from the paragraph "In 6 summary": 7 8 "In summary, the historical record makes it 9 clear that ss. 87 and 89 of the Indian Act, the 10 sections to which the deeming provision of s. 11 90 applies, constitute part of a legislative 12 'package' which bears the impress of an 13 obligation to native peoples which the Crown 14 has recognized at least since the signing of 15 the Royal Proclamation of 1763." 16 17 And finally, my lord, I'm going to ask you to turn 18 over to the next case, which is the Sparrow case, and 19 I'm going to read from the paragraph which is 20 beginning: 21 22 "It is worth recalling that while British policy 23 towards the native population was based on 24 respect for their right to occupy their 25 traditional lands, a proposition to which the 26 Royal Proclamation of 1763 bears witness" -- 27 28 And then the court goes on to talk about co-existence 29 between the two titles. And later in the judgment, if 30 you could turn over the page, the court is talking 31 about the reassessment and recognition in government 32 policy: 33 34 "In the light of its reassessment of Indian 35 claims following Calder, the Federal Government 36 issued 'a statement of policy' regarding Indian 37 lands. By it, it sought to 'signify the 38 Government's recognition and acceptance of its 39 continuing responsibility under the British 40 North America Act for Indians and lands 41 reserved for Indians', which it regarded 'as an 42 historic evolution dating back to the Royal 43 Proclamation of 1763, which, whatever 44 differences there may be about its judicial 45 interpretation, stands as a basic declaration 46 of the Indian people's interests in land in 47 this country. 744 1 And finally, my lords, I'm going to ask you to 2 turn to the last section, which is Section 25 of the 3 Charter. And Section 25, as I understand it, operates 4 like a shield. It's not a sword like Section 35 is, 5 but it is a section which prevents the exercise of 6 individual rights of the Charter being interfering of 7 the rights which under Section 25 are recognized under 8 the Royal Proclamation: 9 10 "The guarantee in this Charter of certain rights 11 and freedoms shall not be construed so as to 12 abrogate or derogate from any aboriginal, 13 treaty or other rights or freedoms that pertain 14 to the aboriginal peoples of Canada including 15 a) any rights or freedoms that have been 16 recognized by the Royal Proclamation 17 of 1763." 18 19 And, my lords, what I say in summary, and I'm at page 20 4 of my speaking notes, is that the Royal Proclamation 21 should be given a prospective application because it 22 reflects principles of a constitutional nature which 23 is defining of the relationship between the Crown and 24 several nations of Indians who would come under the 25 Crown's sovereignty during the lifetime of the 2 6 instrument. 27 I have to say, my lords, they are principles which 28 have been speaking at the highest level for over 200 29 years. These aren't new principles and they're not 30 forgotten principles. I don't know of any other set 31 of principles in our constitution which have been so 32 long speaking and of such a basic nature. 33 My lords, the second point that I want to address 34 is that the words of the Proclamation and the judicial 35 authorities compel a prospective application, and I'm 36 now going to address the second main point, which is 37 beginning in the summary on page 4. As well as having 38 been recognized as representing fundamental 39 principles, the Proclamation has also been held to 40 have the force of statute in the colony. And if I 41 could ask your lordships to turn to tab 7, I'll run 42 you through a number of the higher court decisions 43 which have determined this. The first case in tab 7 44 is Easterbrook, and I've already advised your 45 lordships that it was a contest between somebody who 46 received a grant from the Indians contrary to the 47 terms of the Proclamation. And in the course of the 745 1 judgment, at page 217 the court said, and I'm at the 2 bottom of the page under the paragraph which begins 3 "The facts": 4 5 "...it seems to be clear enough that although 6 the lease was ineffective and void at law, by 7 reason of the absence, of any authority on the 8 part of the grantors to make it, and for 9 non-compliance with the peremptory" -- 10 11 HUTCHEON, J.A.: Where are we? 12 MS. MANDELL: I'm sorry, my lord, it's tab 7, Easterbrook, page 13 217: 14 15 "-- for non-compliance with the peremptory 16 requirements of the proclamation" -- 17 18 And these are the words: 19 20 "-- which have the force of statute." 21 22 And the court goes on to describe what the 23 significance of that is. And, my lords, if I could 24 turn you to the next case, which is after the pink 25 tab, which is Lady McMaster, and it's the same facts 26 as the other. Page 72, at the last paragraph of the 27 case: 28 29 "The Proclamation of 1763, as has been held, has 30 the force of a statute and so far therein as 31 the rights of the Indians are concerned, it has 32 never been repealed." 33 34 LAMBERT, J.A.: Can I just ask a point by way of clarification. 35 You may already have explained this and I missed it, 36 but all these cases you're referring to and just 37 giving us just a page of, have we got them elsewhere 38 in full -- 39 MS. MANDELL: Yes, my lords. You will see that at the top of 40 the page, every page, I've handwritten A-3, 64 at the 41 top of every tab where there's a case that's been set 42 out. I will let you know where you will find them in 43 your authorities. 44 LAMBERT, J.A.: Yes, thank you. Sorry to hold you up. 45 MS. MANDELL: Sorry I hadn't mentioned that. I'm reading now 46 from Calder, which is just behind the Lady McMaster 47 case, and this is Mr. Justice Hall: 746 1 Parallelling and supporting the claim of the 2 Nishgas that they have a certain right or title 3 to the lands in question is the guarantee of 4 Indian rights contained in the Proclamation. 5 This Proclamation was an Executive Order having 6 the force and effect of an Act of Parliament." 7 8 And then, my lords, if I could turn you to the next 9 case, which this is Mr. Justice Norris speaking in 10 White and Bob, and this is the second paragraph from 11 the bottom beginning: 12 13 "The effect of the judgment of Lord Chief 14 Justice Mansfield in Campbell and Hall, is that 15 the Royal Proclamation is declared to have been 16 the Imperial Constitution of Canada during the 17 years 1763-1774 and had the effect of a 18 statute." 19 20 Quoting Lady McMaster: 21 22 "The Proclamation of 1763, as has been held, has 23 the force of a statute, and so far therein as 24 the rights of the Indians are concerned, it has 25 never been repealed." 26 27 And finally, my lords, I'm reading from Mr. Justice 28 Strong in the St. Catherine's Milling case, and I'm 29 reading from the paragraph in the middle beginning: 30 31 "As I have already said, we are bound to regard 32 this proclamation as having all the force of a 33 statute, and as such it must be subject to the 34 established rules of statutory construction." 35 36 And, my lords, if I could ask you to turn to tab 37 8, I'm going to now talk about the established rules 38 of statutory construction. And I say that as a 39 general rule a public enactment employing general 40 words is usually understood to apply to all entities 41 falling within its scope at any time during its life, 42 even if new events are not anticipated. And this 43 is -- I'm citing Maxwell, which is at tab 8. He says: 44 45 "The language of a statute is generally extended 4 6 to new things which were not known and could 47 not have been contemplated when the Act was 747 1 passed, when the Act deals with a genus and the 2 thing which afterwards comes into existence was 3 a species of it. Thus the provision of Magna 4 Carta which exempted lords from the liability 5 of having their carts taken for carriage was 6 held to extend to degrees of nobility not known 7 when it was made, such as dukes, marquises and 8 viscounts. 9 So the Engraving Copyright Act, which imposed a 10 penalty for piratically engraving, by etching 11 or otherwise, or 'in any other manner' copying 12 prints and engravings, applied to copying by 13 photography, though that process was not 14 invented until more than a century after the 15 Act was passed. And Edison's telephone was 16 held to be a 'telegraph' within the meaning of 17 the Telegraph Act, even though it was unknown 18 in 1869. Similarly, bicycles were held to be 19 'carriages' within provision of the Highway Act 20 against furious driving, and tricycles capable 21 of being propelled by steam to be 'locomotives' 22 within the Locomotives Act, though not invented 23 when these Acts were passed. 24 Where an Act of 1790 exempted ferry proprietors 25 from assessment to any 'tax... whatsoever' in 26 respect of the ferry, it was held that the 27 exemption extended to income tax even though 28 that tax was first imposed considerably after 29 1790." 30 31 Those are cases, my lord, where, especially the 32 Edison Telegraph case, where I'm sure judges now would 33 read it and wish they never would have said half of 34 that. It's an analysis of why a telephone is a 35 telegraph. In any event, the principle I still rely 36 upon, and I turn your lordships to tab 9, which is our 37 Interpretation Act, and section 10 says that: 38 39 "The law shall be considered as always speaking, 40 and whenever a matter or thing is expressed in 41 the present tense, it shall be applied to the 42 circumstances as they arise, so that effect may 43 be given to the enactment and every part 44 thereof according to its true spirit, intent 45 and meaning." 46 47 I say that this makes sense. It would be awkward, 748 1 were it not so, as express words would be necessary in 2 each case for a lot of covert situations arising in 3 the future. 4 Now, my lords, I would like to -- I'm now in 5 the -- at tab 10, and in my speaking notes I'm 6 continuing: Where a non-prospective effect is 7 desired, specific words are employed. And I say 8 that's the rule. That's the rule in Canada and that's 9 been the rule in Britain for a long time. And I rely 10 upon what I believe to be the leading case, which is 11 the Associated Newspaper case, and it's extracted at 12 tab 10. And in this case the House of Lords 13 considered an exemption from taxation granted by 14 public statute, which was stated to apply to all taxes 15 and assessments whatsoever. It was contended that the 16 taxes applied only to those existing at the time of 17 the enactment, and the court stated that it referred 18 to taxes then existing or to be imposed. And Lord 19 Haldane, who wrote with the majority at page 444 at 20 the bottom of the page, under the -- beginning with 21 the paragraph: 22 23 "I have dealt with the relevant authorities thus 24 fully in order to make it clear that, in my 25 opinion, they do not preclude us from 26 attributing to the words of the Act of George 27 III what seems to me to be their natural 28 operation." 29 30 So the natural operation is to construe the words 31 prospectively: 32 33 "...an operation which extends to future as well 34 as to then existing rates. The result is it 35 becomes unnecessary to consider whether the 36 police rate or consolidated rate can be 37 regarded as being merely old rates imposed 38 under new statutory conditions and variations 39 which do not affect their identity with rates 40 existing antecedently to that statute." 41 42 And so he allows the appeal. And if your lordships 43 can turn over a page, this is the judgment of Lord 44 Parker, and he's also speaking with the majority. At 45 the bottom of page 457 he says: 46 47 "I can find no ground to imply any limitation on 749 1 the generality of the words 'all taxes and 2 assessments whatsoever' or to infer that there 3 was not an intention to maintain in perpetuity 4 the non-liability of the reclaimed lands to pay 5 local taxes and assessments, in return for the 6 perpetual charge placed upon them." 7 8 And, my lords, to that same effect is the case of 9 Beard v. Rowan, which you will find behind the pink 10 sheet in tab 10. And this is a case where a Kentucky 11 statute which provided any alien who shall have 12 actually resided within the commonwealth for two years 13 will be entitled to hold lands. And the question 14 before the court was whether or not that applied to 15 embrace aliens prior to the Act or whether the Act 16 applied prospectively. And at page 315, the number is 17 at the top of the page, and it's the second page from 18 the end of the tab. At the bottom of the page, 19 beginning: 20 21 "This is certainly too narrow an interpretation 22 of this law to meet the obvious intention of 23 the Legislature, even admitting that such is 24 the strict grammatical construction. 25 The preamble in the act may be resorted to aid 26 in the construction of the enacting clause, 27 when any ambiguity exists. That preamble 28 evidently shows that the intention of the 29 Legislature was to make a general provision for 30 removing the disability of aliens to hold real 31 estate, and this, founded upon state policy, 32 doubtless for the purpose of encouraging the 33 settlement of the country; and this object 34 would be in a great measure defeated by 35 restricting the act to aliens who shall have 36 resided two years in the State before the 37 passing of the act." 38 39 So he looks to the purpose of the statute. 40 And, my lords, I would like to go -- I would like 41 to have your lordships turn back to the Proclamation, 42 which is found at tab 2, and to section -- and to turn 43 to the part 4, because I say that applying these 44 considerations to the Proclamation, a proper 45 construction demands a prospective application. I say 46 there's nothing in the language of the Proclamation to 47 reverse the presumption favouring a prospective 750 1 operation. I say that the words of the broadest 2 application are employed and the language is uniformly 3 comprehensive. And if your lordships will turn, for 4 example, to paragraph 1, which is beside the Roman 5 Numeral T you will see that this is forbidding grants, 6 and on the words "on any land whatsoever", "whatever", 7 this is the fifth line down, on any lands whatever. 8 In paragraph 2, "reserved for Indians", and you will 9 see the words "all the lands and territories not 10 included within the limits of the government". 11 Paragraph 3, "described settlement upon any lands 12 within the countries above described or on any other 13 lands remaining unceded". And paragraph 4A, 14 "prohibits private purchase of any lands reserved to 15 the said Indians". And I say that there is no hint of 16 temporal restraints whatsoever within the language of 17 the Proclamation. And I referred your lordships 18 earlier to the part -- to Part 2 of the Proclamation, 19 where there's actually an expressed hereafter clause 20 where the Governors will take -- "have the power to 21 make treaties and grant lands which now or hereafter 22 shall be within our power to dispose". 23 Now, your lordships see that the preamble reads 24 that: 25 26 "It is essential to our interests and the 27 security of our colonies." 28 29 Now, this is the words: 30 31 "That the several nations or tribes of Indians 32 with whom we are connected." 33 34 Now, the question is does the -- do these Indians 35 indicate a fixed group of designated tribes, or does 36 it mean all tribes who may from time to time come 37 within the dominion of the Crown. And I say that 38 there's a neutral test, and that's paragraph 4B of the 39 Proclamation, and this is the one where there's the 40 proposition that the governors will grant licences for 41 those people who want to trade. And you will see 42 "with the said Indians". And, your lordships, you 43 will notice that "said Indians" repeats seven times, 44 they all come back to the preamble and, again, it 45 appears in the trade provision, and I say that the 46 date when a tribe first fell under British sovereignty 47 doesn't appear relevant to the underlying policy, 751 1 which was to regulate the entire Indian trade 2 conducted in that period. In my submission, it 3 strains the section to believe that the measures 4 adopted a fixed line, which is to represent the outer 5 limits of British dominion at the time of the 6 enactment beyond which unlicenced trading would be 7 permissible even in areas subsequently brought under 8 the Crown's domain. And I say that that assists us in 9 the interpretation of the several nations to be 10 Indians who from time to time will come under the 11 domain of the Crown. 12 I ask the question do the provisions regarding 13 Indian land apply only to those held by the Crown in 14 1763 or also to those acquired subsequently. And in 15 my submission you defeat the underlying policy of the 16 land provisions. The measures aren't novel, they 17 represent a consolidation of principles and practices 18 already prevailing in the old colonies. The intention 19 was to bring the various British holdings, both old 20 and new, under a uniform regime and to infuse the 21 whole with a global rather than a piece-meal policy, 22 and there's no indication in the Proclamation that the 23 Indian nations of British Columbia required less 24 protection by the just and reasonable policy from the 25 frauds and abuses which the Proclamation is designed 26 for. 27 And similarly, I say that the Indian territory 28 furnishes a residual category comprising the entirety 29 of British territory, and I say this flows from the 30 fact that there's no western boundary pronounced and, 31 finally, that with respect to the fugitive clause, in 32 our submission it makes the most sense to construe the 33 fact that the fugitives would be in Indian country 34 able to be brought back to the colonies, wherever out 35 west they may happen to have taken refuge. 36 And so, my lords, I would turn back to the 37 speaking notes. And I say that it's an improbable 38 interpretative consequence which would occur if a 39 western boundary to the Indian country is implied. 40 Settlers who are forbidden west of a frontier line 41 could leap-frog beyond Indian country as it existed at 42 the time of the enactment and colonize far western 43 areas. Fugitives could take safe haven in lands 44 beyond Indian country as it existed in 1763, fur 45 traders could trade without regulation as they 46 encountered Indians westward of the artificial line. 47 Indian nations beyond the implied line would be 752 1 unprotected by frauds and abuses. 2 My lords, the trial judge rested his decision 3 against prospective application on an assumption, 4 which I say is stated without reasons, that lands not 5 specifically known to the Crown in 1763 could not have 6 been British within the meaning of a British 7 enactment. And we've argued above, that the normal 8 rules of statutory construction extend the reach of 9 the statutes to apply to all entities falling within 10 its scope during its life. But the cases also hold 11 that an Imperial enactment drafted to apply to British 12 territories will cover colonies created subsequent to 13 its enactments. And the trial judge failed to give 14 effect to these decisions. 15 And, my lords, I would like to turn you now to the 16 first in what I think of as the leading of these 17 cases. It's found at tab 11, and it's the Post 18 Office and Estuary Radio case. This -- there were two 19 decisions based on parallel facts, Post Office and 20 Estuary and Kent Justice, I will refer you to both of 21 them. The question involved -- arose out of the fact 22 that the defendant was broadcasting from a disused 23 fort, which was three miles from the English coast, 24 without a licence, and this was unlawful under the 25 Wireless Telegraph Act. In 1949, when the Act was 26 made, the fort wasn't within U.K. territory or 27 territorial waters. It was by, again a prerogative 28 instrument through Order-in-Council, brought within 29 the British territorial waters in 1958, and these 30 defendants were broadcasting. And the question which 31 the court had to address was whether the geographic 32 extent of the United Kingdom territorial waters was 33 taken to be in 1949 when the Act was first passed or 34 subsequently. And Mr. Justice Diplock for the court 35 said at page 753, I'm reading at the paragraph which 36 begins "It still lies", but I'm dropping down to where 37 it begins: 38 39 "And so, when any Act of Parliament refers to 40 the United Kingdom or to the territorial waters 41 adjacent thereto those expressions must prima 42 facie be construed as referring to such area of 43 land or sea as may from time to time be 44 formally declared by the Crown to be subject to 45 its sovereignty and jurisdiction as part of the 46 United Kingdom or the territorial waters of the 47 United Kingdom, and not as confined to the 753 1 precise geographical area of the United Kingdom 2 or its territorial waters at the precise moment 3 at which the Act received the Royal Assent. 4 The area comprised within the United Kingdom 5 and its territorial waters varies in any event 6 from time to time by natural processes as parts 7 of the coastline change by erosion or 8 accretion. The accreting shingle bank at 9 Dungeness is no Alsatia in which a citizen 10 enjoys immunity from the law of the land. The 11 area to which an Act of Parliament of the 12 United Kingdom applies may vary too as the 13 Crown, in the exercise of its prerogative, 14 extends its claim to areas adjacent to the 15 coast of the United Kingdom in which it did not 16 previously assert its sovereignty. On the 17 construction of the Act of 1949 we agree with 18 the majority judgment of the Divisional Court 19 in Kent Justices." 20 21 My lords, I've put Kent Justices behind the next 22 divide, and I would like to take you to the judgment, 23 which was the majority of the court. It is Lord 24 Parker, who was writing for the court, at page 564. 25 And I'm going to read portions of his judgment, 26 beginning at the paragraph "For my part": 27 28 "For my part, I think that the proper approach 29 to this question is to look first at the 30 Wireless Telegraph Act 1949. The real issue, 31 as it seems to me, in the present case is what 32 Parliament meant by the expression 'territorial 33 waters'. Does it mean 'territorial waters' as, 34 to put it quite generally, accepted by this 35 country at that time, or does it mean 36 territorial waters from time to time according 37 to international law, or according to the 38 exercise of the sovereignty by the Crown? In 39 the absence of a definition, and there is none 40 in the Act, I have come to the conclusion that 41 that expression 'territorial waters' must mean 42 waters over which from time to time the Crown 43 may declare sovereignty." 44 45 And if I could drop down to the sentence which begins: 46 47 "I have come to that conclusion in the first 754 1 place because, as it seems to me, if it was 2 intended that the expression 'territorial 3 waters' was to be confined to a precise limit, 4 then known, it would have been perfectly easy 5 to provide, as indeed was provided in the Act 6 of 1878, for an express limitation of 7 territorial waters." 8 9 The same ratio, I say, is the Associated Press case, 10 where if you're not going to have it applied 11 prospectively the Act should say so. 12 13 "There is no limitation. Secondly, as it seems 14 to me, although I have said it is open to the 15 Sovereign to declare sovereignty over an area 16 greater than is strictly pemitted by 17 international law, international law will be 18 the framework within which that declaration of 19 sovereignty will in general be made, and it is 20 well known that international law in this 21 matter has been throughout in a state of flux." 22 23 And if I could drop down finally to the sentence that 24 begins: 25 26 "Thirdly, as it seems to me, this is a matter of 27 sovereignty; it is a matter of an extension of 28 sovereignty over the open seas, and as such is 29 peculiarly a matter for the Crown from time to 30 time under the prerogative to determine. One 31 would expect that to be done from time to time 32 without the need for specific legislation." 33 34 And, my lords, if I could just lastly ask you to turn 35 to the next divide, we had to get this off of 36 microfilm, but I tried to find what I was told was the 37 most authoritative general textbook on what "colonies" 38 might have meant in the mid-1800s, and I was led 39 finally to Clark, in a summary of Colonial law, and I 40 take from that what he says: 41 42 "Nor is every act of the British Parliament --" 43 44 My lords, it's after the divide, after the Kent 45 Justices, it's at the top of the page: 46 47 "Nor is every act of the British Parliament even 755 1 within the lawful compass of the legislative 2 authority binding on the colonies." 3 4 And then he goes down: 5 6 "But this is open to a very important exception, 7 that of all statutes which are manifestly of 8 universal policy, and intended to affect all 9 our transmarine possessions, at whatever period 10 they shall be acquired" -- 11 12 And then he cites the Navigation and the Slavery Act, 13 and then at page 16, beginning with the paragraph: 14 15 "Again, acts passed since the acquisition of a 16 colony" -- 17 18 That's not purely analogous to us, but the language is 19 important: 20 21 "-- or at least subsequent to the establishment 22 of its legal constitution by royal commission 23 or act of parliament, do not extend to it, 24 unless they appear to have been passed with the 25 intention of being so extended. This 26 intention, however, may appear either by 27 mentioning the colony by name, or by general 28 designation, such as 'colonies', or 'the West 29 Indies', or 'the Dominions of His Majesty', or 30 'the British possessions abroad'; or by 31 reasonable construction." 32 33 And although this is not a completely helpful on-point 34 description, I take it from it that the description 35 "colonies" or "the dominions of His Majesty" or 36 "British possessions abroad" are construed as 37 categories of territory to which the Acts -- in this 38 case they're talking about an Act of Parliament -- 39 would apply by virtue of that general description. 40 And lastly, my lords, at the end of this tab I've 41 included a passing remark by Lord Denning at page 647, 42 and in dealing with the Royal Proclamation I'm reading 43 from the paragraph which begins "The Royal 44 Proclamation", and then I'm reading from the sentence: 45 46 "Lord Mansfield emphasized that by it the King 47 made an immediate and irrevocable grant to all 756 1 who were or should become inhabitants." 2 3 And I just say at that -- by Lord Denning's language, 4 looking forward to people coming into the colonies as 5 it will be required. 6 My lords, I'm back to my speaking notes, and I'm 7 reading at the bottom of page 6: As colonies 8 expanded, Indian country was incorporated into 9 colonial boundaries and the absolute prohibition on 10 purchases, grants and settlements without leave was 11 substituted for the qualified regime where the 12 governors may purchase Indian land and granted them to 13 settlers. The cases have made it clear that the 14 transfer of land and Indians from Indian country to 15 within a colonial boundary did not per se affect the 16 existence or character of the Indian interests in the 17 unceded lands. Rather, the purchase provisions of the 18 Royal Proclamation applied. And I give for an example 19 the expansion of Quebec in 1774, which took in a large 20 tract of Indian country but did not modify the Indian 21 rights to the land. And this was the case of the St. 22 Catherine's Milling, where that territory had 23 initially been Indian country, and with the passage of 24 the Quebec Act it became part of the new province. 25 And if I could ask your lordships to turn to tab 12, 26 this point has been judicially considered and, in my 27 submission, it's been settled by the Supreme Court of 28 Canada and the Privy Council. Mr. Justice Strong, at 29 page 632 -- sorry, I'm going to have to skip -- I want 30 to take you to tab 13. I will come back to tab 12 31 later. Mr. Justice Strong at the Privy Council: 32 33 "I now proceed to consider the objections which 34 have been made on behalf of the respondent to 35 the arguments based on the Proclamation of 36 1763. First, it is said that the Proclamation 37 was wholly repealed by the Quebec Act." 38 39 Now, my lords, I'm not going to read you his analysis. 40 It's from page 629 to -- it's a very full analysis, 41 and it goes to page 635, but his conclusion is that 42 the Proclamation was repealed by the -- in respect of 43 the Colonial boundaries by the Quebec Act, but that 44 made no difference to the interests of the Indian 45 people in their lands, which was the same in both 46 cases. And Mr. Justice Taschereau, at page 649, says: 47 757 1 "From this result of my interpretation of it it 2 is unnecessary, for my determination of this 3 case, to consider how far the sections of the 4 proclamation to which I have alluded, have been 5 affected by the Act of 1774. I may, 6 nevertheless, remark, that any right the 7 Indians might have previously had could not, it 8 seems, have been affected by this act, as by 9 its third section it is specifically provided 10 and enacted that 'nothing in this act contained 11 shall extend, or be construed to extend, to 12 make void, or to vary any right, title, or 13 possession derived under any grant, conveyance, 14 or otherwise howsoever, of or to any lands 15 within the said Province." 16 17 So he relied upon the saving provision in the Quebec 18 Act and said that the Indian interest wasn't affected. 19 And the Privy Council, my lords, I'm not going to take 20 you back to the passages, but I've enclosed the 21 decision of Lord Watson at page 53 and 54. At 53 he 22 recites the discussion and then, as your lordships 23 know, he found that the Indian interest in the land 24 was one which was a burden on the title of the Crown. 25 And, finally, if I could ask you to turn to the last 26 case in the section, which is again Lady McMaster, and 27 I'm reading at the bottom of the page: 28 29 "I am unable also to concur in the defendant's 30 contention that the Quebec Act, which enlarged 31 the limits of the Province of Quebec, destroyed 32 the rights of the Indians in the lands reserved 33 under the proclamation. This I think has been 34 authoritatively settled." 35 36 And he's referring at that point to the St. 37 Catherine's Milling case. My lords, I would like to 38 then say -- Mr. Justice Wallace, you're nodding. 39 WALLACE, J.A.: No. I just thought you needed a break. 40 MS. MANDELL: I'm trying to make time up from this morning, so 41 If I move too fast, I hope you would stop me. 42 WALLACE, J.A.: I'm concerned about you, not myself. 43 TAGGART, J.A.: We've come to a pause, so maybe it would be a 44 good time to take five minutes. 45 MS. MANDELL: Okay. 46 THE REGISTRAR: Order in court. This court stands adjourned for 47 a short recess. 75? 1 AFTERNOON RECESS 2 3 THE REGISTRAR: Order in court. 4 MS. MANDELL: My lords, I just wanted to pause and answer, Mr. 5 Justice Lambert, your question about the prerogative 6 instruments and statutes applicable -- Imperial 7 statutes applicable to the colony. I was over the 8 break reminded, and it's true, that the Imperial 9 government could always, through their statutes, pass 10 acts applicable to the colony. That's what the 11 Colonial Laws Validity Act finally addressed, and that 12 was to constrain certain of those Acts which would be 13 applicable to the colony and, finally, by the Statute 14 of Westminster, that was no longer something which the 15 Imperial Parliament could do. But my answer to you 16 about the prerogative remains the same, there were two 17 ways that the Imperial government could legislate in 18 respect of the colony, and the most common in terms of 19 the government in establishing new colonies was 20 through the prerogative. 21 LAMBERT, J.A.: Thank you. 22 MS. MANDELL: I wanted to move into the Jurisdiction Acts. I'm 23 referring in my speaking notes to page 7, and I would 24 ask your lordships to turn to tab 14 of my material. 25 My lords, you will remember that paragraph 5 of the 26 Proclamation empowered the Governors of the Colonies 27 to reach into Indian country and grab fugitives and 28 bring it back to the Colony to be tried. But 29 immediately everyone realized that there were other 30 problems which that paragraph didn't address. For 31 example, what happens when there's crimes in Indian 32 country and how was that going to be dealt with. And 33 because of that particular problem we had a series of 34 Jurisdiction Acts which were passed beginning with the 35 Mutiny Act, which came in 1765, and it's found at tab 36 14, immediately after the Proclamation, where there 37 was acts passed to govern the question of justice or 38 the administration of justice in Indian country before 39 there was actually a colony established. And I'm not 40 going to take you into the Act, but to advise your 41 lordships that in this Act, Article 25, and I'll leave 42 it for your lordships' viewing, was providing for the 43 apprehending and committing to safe custody there to 44 be delivered to the civil magistrate of the next 45 adjoining province any persons who were not soldiers 46 committing crimes and offences. It was a fairly 47 straightforward provision. 759 1 Now, if your lordships could turn to tab 17. This 2 was the next of the Jurisdiction Acts, and your 3 lordships will see that it was passed in 1803 and it's 4 titled 43 George II, Chapter 138. That will become 5 significant to your lordships in due course. And this 6 was an Act where it was recited that crimes and 7 offences have committed -- have been committed in the 8 Indian territory and other parts of America not within 9 the Provinces of Lower and Upper Canada. And it 10 empowers through the Act, paragraph 11, that the 11 Governor may, by commission, authorize or empower 12 civil magistrates or Justices of the Peace, it says 13 for any of the Indian territories or parts of America 14 not within the limits of either of the said provinces. 15 And so there was actually the provision made to 16 provide for the -- for people commissioned to deal 17 with offences on the spot, and there was a provision 18 later that, in paragraph 3, that the offenders can be 19 tried by the courts in Upper and Lower Canada and 20 punished accordingly. And I can advise your lordship 21 that Duncan McGillivray was the civil magistrate and 22 justice of the peace which was appointed in Indian 23 territory, and his appointment was pursuant to this 24 Act, and that's found at Exhibit 1028-9. I'm not 25 going to take your lordships to it. 26 If I could turn you to tab -- see where I'm 27 going -- tab 19, this was the next of the Acts. This 28 was in 1821, and your lordships will notice that the 29 tab is -- or the Act is 1 and 2 George IV. And this 30 was an Act for the regulation of fur trade. The 31 Hudson's Bay Company and the Northwest Company traders 32 were fighting and causing problems and difficulties, 33 and it was within the context of this that this Act 34 was passed. And the Act empowered the King to make 35 grants to any company or persons for the exclusive 36 trade in furs and then with the Indians in all such 37 parts of North America as shall be specified in any 38 such grant or licence. And that is found at page 94. 39 Your lordships will see that provision. And if your 40 lordships will turn to 96, clause IV, they're 41 extending grants of exclusive trades, this -- the 42 first provision provided for the grant of exclusive 43 trades, and it was not -- this provision was that it 44 was not to interfere with citizens of the United 45 States beyond the Stony Mountains, and your lordships 46 will see that it's referring to a convention entered 47 into between His Majesty and the United States. And 760 1 that's the convention of 1818, and you will find it in 2 our Exhibit 1039-11, which provided for joint 3 occupancy of the territory which is British Columbia, 4 the whole northwest coasts, by Britain and the United 5 States, until a more permanent resolution could be 6 arrived at. And then there is provision in the next 7 paragraph that the courts of the adjudicator which 8 established an Upper and Lower Canada again can still 9 be used to try offenders and also to deal with the 10 crimes committed in Indian country. But I'm just 11 going to ask you to drop down and begin with the 12 passage that begins: 13 14 "Provided always that all such Suits and Actions 15 relating to Lands, or to any Claims in respect 16 of land, not being within the Province of Upper 17 Canada, shall be decided according to the Laws 18 of that Part of United Kingdom called England, 19 and shall not be subject to or affected by any 20 Local Acts, Statutes, or Laws of the 21 Legislature of Upper Canada." 22 23 The King is still -- or at least the Parliament is 24 still maintaining a hold on the laws that affects 25 land. 26 And then finally at page 98, the appointment of a 27 justice of the peace, paragraph VIII, your lordships 28 will see that this is being appointed the language 29 "within the said Indian territories or other parts of 30 America as aforesaid." And finally, my lords, if I 31 could ask you to turn to tab 21, this is the Act 32 which -- 33 HUTCHEON, J.A.: Before you leave that, in your speaking notes, 34 you say that -- 35 MS. MANDELL: Vancouver — 36 HUTCHEON, J.A.: You say that the Jurisdiction Acts were 37 formally brought within the terms of the Royal 38 Proclamation, formally brought. And I've been 39 expecting to see a reference to the Royal Proclamation 40 because of the way you frame your -- 41 MS. MANDELL: I'm sorry, I've made a leap which I hope it hasn't 42 been presumptuous, but what I've -- what I have done 43 is tracked the language of the Proclamation 44 conceptually in terms of Indian country, and I'm 45 tracing now the reach of Indian country into Vancouver 46 Island and the mainland. 47 HUTCHEON, J.A.: But you're not saying we'll find it. 761 1 MS. MANDELL: No, you're not going to find the words "Royal 2 Proclamation" in these Jurisdiction Acts. 3 HUTCHEON, J.A.: Oh, I was looking for that. 4 MS. MANDELL: But what you do have, in my submission, is you 5 have the paragraph V of the Proclamation being 6 extended in its operation through Indian country. 7 HUTCHEON, J.A.: Right. 8 MS. MANDELL: This is with respect to the justice and the 9 administration of Justice. 10 HUTCHEON, J.A.: Yes. 11 MS. MANDELL: And, my lords, if you will finally turn to tab 21. 12 This is an Act to provide for the administration of 13 justice on Vancouver Island, and at -- you will see in 14 the "whereas" clauses they're citing that all these 15 various Jurisdiction Acts have been passed, and if 16 your lordships will look in the column on the 17 second -- on page -- you can't really see it. There's 18 two columns, one is the title "An Act To Provide For 19 the Administration of Justice". The second column in 20 the side bar where they're explaining what it is that 21 this is doing, it's saying that 43 George III and 22 parts of 1 and 2 George the IV are repealed as to 23 Vancouver's Island. Well, those two Acts, the first 24 is the 1803 Jurisdiction Act, and the second is the 25 1821. And the text of this part is that it is: 26 27 "And whereas for the purpose of the colonization 28 of that part of the said Indian territories, 29 called Vancouver Island, it is expedient that 30 further provision should be made for the 31 administration of justice therein". 32 33 And then if you will drop down: 34 35 "-- that from and after the Proclamation of this 36 Act in Vancouver Island the said Act of" -- 37 38 And these are the other two Acts: 39 40 "-- shall cease to have force then and to be 41 applicable to Vancouver Island aforesaid." 42 43 And so what is going on at this point is that the 44 Jurisdiction Acts of 1803 and 1821, which are 45 providing for the administration of justice in Indian 46 country, are now no longer applicable to Vancouver's 47 Island and instead for Vancouver's Island the 762 1 administration of justice is going to take the form as 2 prescribed under this Act. And I say from that we 3 know that at least legislatively the Imperial 4 Parliament considered Vancouver's Island as part of 5 Indian country, at least by 1803. 6 Now, if your lordship will turn to the Act which 7 established the colony of the mainland, which is in 8 tab 22, again you will find that in the same column 9 the same two Jurisdiction Acts are being repealed, and 10 the clause which is doing it is beginning at Roman 11 Numeral IV, "and whereas an Act passed", and they go 12 through these Jurisdiction Acts, and if your lordships 13 will turn to page 188 at the bottom -- 14 TAGGART, J.A.: Tab? 15 MS. MANDELL: Same tab, my lord. I'm in the same case, this is 16 tab 22, the Act Which Establishes the Government of 17 British Columbia says: 18 19 "From and after the Proclamation of this Act in 20 British Columbia the said Act of the 21 forty-third Year of King George the Third, and 22 the said recited Provisions" -- 23 24 Et cetera: 25 26 "The Provisions contained in such Act for giving 27 Force, Authority and Effect within the Indian 28 Territories and other parts of America to the 29 Process and Acts of the said Courts of Upper 30 Canada, shall cease to have Force in and to be 31 applicable to British Columbia." 32 33 The same recital, although not in precisely the same 34 words, as with Vancouver Island. 35 My lords, if you could turn to tab 23, I want to 36 go through the decision which has actually looked at 37 the Jurisdiction Acts in this context, the only case 38 which has done it has been Mr. Justice Norris in 39 White and Bob, and you will see at page 644, 40 beginning: 41 42 "The Proclamation of 1763 had the effect of a 43 statute" — 44 45 And he says : 46 47 "-- and the following statutes show that 763 1 Vancouver Island was formally brought within 2 the terms of the Royal Proclamation for the 3 purposes of the administration of justice by 4 the statutory application of the provisions of 5 the last paragraph thereof to that Island as 6 part of the Indian territory." 7 8 And then he proceeds to look at the 1803 Act, the 1821 9 Act, at page 645, he refers to the 1849 Act, which is 10 the Vancouver's Island Act, and then at the top of 11 page 646 he says: 12 13 "Thus not only was the policy set out in the 14 last paragraph of the Proclamation carried 15 through the three statutes as affecting the 16 Indian Territories, but Vancouver's Island was 17 stated in exact words in the Statute of 1849 to 18 be part of the Indian Territories - the 19 territories referred to in the Proclamation. 20 In my opinion the conclusion is irresistible 21 that before and at the time of the execution of 22 Exhibit 8" — 23 24 Which was the treaty in question: 25 26 "-- and on and after April 1867 when Vancouver 27 Island was being reconveyed to the Crown the 28 Proclamation applied to Vancouver Island and so 29 far as the Indian hunting rights are concerned, 30 it has never been repealed." 31 32 And I'm not taking you to it, my lords, but in the 33 next -- after the divide Mr. Justice Hall, in the 34 Calder case, agrees with Mr. Justice Norris insofar as 35 the mainland is also concerned. So if I could -- 36 TAGGART, J.A.: Just before you pass on, in tab 19, this is the 37 Fur Trade Regulation. 38 MS. MANDELL: Right. 39 TAGGART, J.A.: Under paragraph 4 on page 96 there's a reference 40 to the convention entered into with the United States. 41 MS. MANDELL: Yes. 42 TAGGART, J.A.: By which it was agreed that any country upon the 43 northwest coast of America to the westward of the 44 Stony Mountains, I take it that that is the Rocky 45 Mountains. 4 6 MS. MANDELL: Yep. 47 TAGGART, J.A.: Should be free and open to the citizens and 764 1 subjest of the two powers for the term of ten years 2 from the date of the signature of that convention. So 3 what happened to the Proclamation, assuming that it 4 had application to the west at that point and from the 5 way you describe it, what happened in that ten years, 6 did it just get hoisted or did it apply only to Brits, 7 or did the Yankees get it too? 8 MS. MANDELL: This debate which is going on and reflected in the 9 1818 convention was not resolved until the Treaty of 10 Oregon in 1846. It was finally permanently settled 11 that it would -- the countries would divide out, as 12 your lordships are aware, and when we say that the 13 assertion of sovereignty measures from that date, it 14 was from British Columbia at the time when all 15 international claims were finally resolved. 16 Now, I'm going to submit to you in a minute -- in 17 fact, I could -- I will say that the question as to 18 whether or not a territory falls within the claim or 19 in the domain of a sovereign is one of claim, it's not 20 one of proof. I mean the country can claim it, and if 21 they do, as we saw with Post Office and Estuary, it's 22 an assertion by the Crown, and if they can -- if they 23 make that assertion internationally the domestic 24 courts aren't going to look behind it. And what we 25 had for this territory was that -- which became 26 British Columbia, is you had Britain claiming it and 27 you had the United States claiming it, and for the 28 purposes of international law both would have to find 29 their resolution, but for the purposes of domestic 30 law, the domestic court won't look behind what the 31 international claim of the sovereign is. It is for 32 the purposes of domestic law territory within the 33 British domain, and I will lead your lordships to the 34 cases and to the authorities which support that, but, 35 in our submission, in 1818 British -- this is Indian 36 territory for the purposes "or its other parts of 37 America", I probably should draw your lordships to the 38 fact that this phrase "or other parts of America" 39 hasn't been authoritatively looked at, but in any 40 event, we say that this is Indian territory, and that 41 it's part of the claim of Britain and that whether 42 Britain is able in 1846 to resolve that with the 43 United States or not, well that's going to be a matter 44 of international law for that resolution. That's how, 45 in our submission, it would occur. 46 My lords, I'm going to briefly take you to two 47 cases, they're American cases, they're analogies, 765 1 they're not being tendered for your lordships as 2 precedent, but in the United States after the Royal 3 Proclamation was passed many have said that it was one 4 of the impetouses for the American Revolution, because 5 they didn't want the -- many of the Americans didn't 6 want to live under the terms which the Proclamation 7 laid down. But, nevertheless, shortly after the 8 Revolution the first Trade and Intercourse Act was 9 passed and some but not all of the provisions of the 10 Royal Proclamation were enacted by the First Congress. 11 And I've set out at tab 24 the Trade and Intercourse 12 Act and I'm going to ask your lordships to look at 13 Section IV, which is found at page 138. And this is a 14 section which is enacted and declared that: 15 16 "No sale of land made by any Indians, or any 17 nation or tribe of Indians within the United 18 States, shall be valid to any person or 19 persons, or to any state, whether having the 20 right of pre-emption to such lands or not, 21 unless the same shall be made and duly executed 22 at some public treaty held under the authority 23 of the United States." 24 25 And recently cases have interpreted, well, what does a 26 nation or tribe of Indians mean under the Trade and 27 Intercourse Act. And they've also interpreted what 28 does the land, "such land" mean under the Trade and 29 Intercourse Act. Does it include all tribes of 30 Indians, does it include all unceded territory, or are 31 there exceptions which can be implied to the general 32 words. And the two cases which have been considered 33 in respect of those questions, I would like to take 34 your lordships to again for the analogies. The first 35 is the Passamaquoddy case, and it's found just past 36 your divider. This is a case where the issue to be 37 determined was whether or not Indians within the 38 Passamaquoddy tribe included -- are included under the 39 Nonintercourse Act, and it was submitted on behalf of 40 those that didn't want the Indian people included that 41 they had a unique relationship with the State of Maine 42 and with Massachusetts, which arose as a result of the 43 very treaty which was in issue, and that the federal 44 government had never recognized them as a tribe, that 45 their relationship had primarily been with the State, 46 and so it wasn't to be construed under the Trade and 47 Intercourse Act that they were a tribe. 766 1 And if I could turn your lordships to page 377 of 2 the decision, beginning with the paragraph: 3 4 "But while Congress' power to regulate commerce 5 with the Indian tribes, includes authority to 6 decide when and to what extent it shall 7 recognize a particular Indian community as a 8 dependent tribe under its guardianship." 9 10 And they cite Sandoval: 11 12 "Congress is not prevented from legislating as 13 to tribes generally; and this appears to be 14 what it has done in successive versions of the 15 Nonintercourse Act. There is nothing in the 16 Act" -- 17 18 Again, the same language as the cases we've already 19 seen: 20 21 "There is nothing in the Act to suggest that 22 'tribe' is to be read to exclude a bona fide 23 tribe not otherwise federally recognized. Nor, 24 as the district court found, is there evidence 25 of congressional intent or legislative history 26 squaring with appellants' interpretation. 27 Rather we find an inclusive reading consonant 28 with the policy and purpose of the Act. That 29 policy has been said to be to protect the 30 Indian tribes' right of occupation, even when 31 that right is unrecognized." 32 33 And then at page 378, the conclusion, which is just 34 above the first full paragraph: 35 36 "Under such circumstances, the absence of 37 specific federal recognition in and of itself 38 provides little basis for concluding that the 39 Passamaquoddies are not a tribe within the 4 0 Act." 41 42 The same -- my lords, the same kind of analysis ought 43 to prevail in respect of the several nations and 44 tribes of Indians which are dealt with in the Royal 45 Proclamation. 46 Now, if I could ask your lordships to turn to tab 47 25, this is the second of the cases, the Mohegan case, 767 1 and it deals with an interpretation, well what are the 2 lands that are involved. And in the -- this case it 3 was asserted that the only lands which were to be 4 governed by the Act were lands which were in Indian 5 country and not lands which were at that time included 6 with the existing colonies. And the court was asked 7 to see whether or not the phrase "land" was intended 8 to be the land rights of Indian people in North 9 America or had the restricted meaning of being just 10 land within Indian country. And, my lords, I'm just 11 going to ask you to turn to page 615, and under the 12 "History of Indian Relations", I'm not going to read 13 it to you, but to ask you to note that they bring the 14 Trade and Intercourse Act provisions in its roots to 15 the Royal Proclamation, and they -- the court spells 16 out what they believe the Royal Proclamation 17 protections were intended. And then if I could ask 18 you to turn to page 618, under "Statutory Language", 19 the court looks at the language of the Trade and 20 Intercourse Act, and I'm beginning with the sentence 21 that says: 22 23 Section 4 of the Act, the original 24 Nonintercourse statute, quoted above, contains 25 no language suggesting any geographical 26 limitation." 27 2 8 And then dropping down: 29 30 "This language makes plain that the statute was 31 intended to proscribe land conveyances to the 32 states, and therefore was not limited to 33 protection of land outside the boundaries of 34 any state." 35 36 And so the language of the Act is looked at. And if I 37 could ask you to turn to 619, beginning: 38 39 "The contention that the statute as well as all 40 the provisions of the various Acts was meant to 41 apply only to those parts of the original 42 states which were considered to be within 43 Indian country, while plausible, is amply 44 refuted by inspection of the language of other 45 sections of the various Acts and the structure 46 of the Acts as a whole." 47 76? 1 So again applying the normal -- the same normal 2 principles of statutory construction which I asked of 3 your lordships, they take a look at the whole of the 4 Act to see whether or not that interpretation could 5 stand up. And the court holds at page 621 on this 6 point: 7 8 "Thus, the conclusion to be drawn from the 9 language of the Nonintercourse statute and the 10 various Acts is that the statute was meant to 11 apply to Indian land throughout the United 12 States. In regulating relations with the 13 Indians, Congress imposed certain restrictions 14 on transactions occurring in Indian country and 15 certain others to those involving Indians 16 situated throughout the United States. The 17 Nonintercourse statute, containing no language 18 of limitation" -- 19 20 Similar to the Royal Proclamation, in our submission: 21 22 "-- must then be read as applying to all Indian 23 lands." 24 25 And I'm not going to ask your lordships to read 26 through with me to the next section, but I say it's 27 all consonant with the same argument which we've been 28 making, and that is that in the absence of express 29 language, reading the section as a whole, taking a 30 look at the purposes for which the section or 31 enactment was made, all those three things in this 32 case led to the conclusion that lands were not to be 33 construed as lands part -- only within Indian country. 34 My lords, I would like to move on to the next 35 point, I'm at page 8 of my speaking notes, and it's a 36 point which I'm going to advise your lordships can be 37 most easily made by reference to the -- a small 38 selection of material which I had set aside to deal 39 with on reply but which I feel I can better deal with 40 at this stage. And I've asked madam registrar to give 41 to your lordships the Reply Factum, Appendix A, which 42 is where we contain some of the evidence for the 43 Proclamation, and I've handed up to your lordship two 44 volumes which will correspond with the numbers in the 45 Reply Factum. I'm not going to be referring to much 46 of it, but as a matter of convenience for myself it 47 was assembled in this place and it's easier for me to 769 1 refer to a few of the paragraphs and references in 2 this way. 3 HUTCHEON, J.A.: You refer to Appendix A? 4 MS. MANDELL: Yes. 5 HUTCHEON, J.A.: Yes, I have it. Right at the back? 6 MS. MANDELL: Right at the back. You're also still going to 7 need, my lords, your K volume. You've been handed up 8 two volumes of authorities which accompany Appendix A. 9 WALLACE, J.A.: What is that, how are they noted? 10 MS. MANDELL: My lords, they read Appendix A, volume 1 of 1, 11 volume 2 of 1, they were handed up over the break. 12 HUTCHEON, J.A.: We should have Appendix K available? 13 MS. MANDELL: Yes. If you could also keep out your authorities 14 for Appendix A. I'm going to continue on that. 15 LAMBERT, J.A.: We've finished with Appendix K itself? 16 MS. MANDELL: No. 17 LAMBERT, J.A.: All right, thank you. 18 MS. MANDELL: In fact, I'm going to ask you to turn to Appendix 19 K first, my lords, to tab 26. This is the trial 20 judge's finding, and I wanted to set it up again for 21 your lordships' consideration. He found at page 228: 22 23 "The territorial reach of the Royal Proclamation 24 was the subject of a great deal of evidence and 25 argument at trial. There seems to be little 26 doubt that the eastern and western boundaries 27 of the affected lands were the Appalachians and 28 the Mississippi respectively. I am not 29 concerned with the north-east, that is north 30 and east of Quebec, but there is controversy 31 about the northwest. In 1763 neither the 32 northern limit or headwaters of the Mississippi 33 nor the southern boundary of Rupert's Land were 34 known." 35 36 I've already read to you, but I want to bring it back 37 into focus again, the last paragraph: 38 39 "As to lands, I have no doubt the lands of north 40 America north and west of the headwaters of the 41 Mississippi were not lands over which the 42 British Crown had any authority in 1763, except 43 for Rupert's Land, which was not within the 44 reach of the Proclamation." 45 46 And, my lords, we say first of all that we don't 47 believe that extrinsic evidence is necessary for your 770 1 lordships' consideration. I believe and I've pleaded 2 my argument essentially on the facts that the 3 Proclamation is an instrument, it speaks for itself, 4 you can apply normal rules of interpretation, and we 5 shouldn't have to look to extrinsic evidence to see 6 whether or not there is a western boundary to it, and 7 that's our first and our main argument. But we say 8 that if you do look to extrinsic evidence, if you feel 9 that must be done, that our submission is that the 10 western boundary was deliberately left open-ended by 11 Britain, and this was in order to accommodate the 12 English designs of western expansion and to preclude 13 the French claims in the far west. 14 We say by 1763 both Britain and France knew that 15 the Canadian northwest extended to the Pacific Ocean, 16 and both nations had claimed sovereignty over this 17 area. French explorers and fur traders have probably 18 reached the Rocky Mountains by overland routes. Most 19 of the valuable French trading posts were located in 20 the west and northwest. By the Treaty of Paris the 21 British gained all the French possessions and claims 22 to North America. Britain intended the Royal 23 Proclamation to consolidate an effective regime to 24 enable colonization and to achieve the benefits of the 25 fur trade to the furthest reaches possible in North 26 America. Britain also wished to gain effective 27 possession over the continent to avoid further 28 conflicts with the French over its control. And we 29 say that a western boundary to the Proclamation would 30 be self-defeating. 31 And, my lords, I would like to take you to some of 32 the references in respect of these propositions 33 asserted. And if I could first ask you in tab 26 to 34 turn behind the pink slip, I've included a chapter out 35 of Dr. Slattery's Ph.D. thesis, which, my lords, is in 36 the law library here in this building and also at 37 U.B.C. And he -- this is -- Mr. Justice Taggart, this 38 is really in response to the questions you've been 39 asking. The first question is how do you determine 40 whether a territory has been acquired. And he begins 41 the section by saying: 42 43 "What standards does a municipal court apply in 44 ascertaining whether, and at what date, the 45 Crown had acquired title to a territory? The 46 key to the matter can be stated simply. In 47 British law, the dominions of the Crown 771 1 comprise all those territories, and no more, 2 which are authoritatively claimed by the 3 Sovereign at a given time. Once the Crown has 4 asserted sovereignty over the area or performed 5 acts which presuppose its dominion that 6 territory is British for municipal purposes. 7 The question of whether international legal 8 criteria had been satisfied would not normally 9 arise at the domestic level, and in any case 10 would not entitle a municipal court to decline 11 to give effect to authoritative Crown claim." 12 13 And I will ask your lordships, in your own time, to 14 finish reading the chapter. It's a short chapter and 15 it really, in my submission, brings together all the 16 law that I've been able to find on this point and does 17 it in a very clear way. And if your lordships will 18 pass Dr. Slattery into the next -- past the pink slip, 19 you will see that Mr. Justice Norris in White and Bob 20 actually applied the principles which are being as 21 described by Dr. Slattery. And I'm beginning with the 22 page 639: 23 24 "The Proclamation is to be construed in 25 accordance with the common understanding of the 26 British expansionists of those days, who 27 claimed the extension of dominion not in the 28 terms of precise definition or of survey or of 29 British settlement. In considering the 30 applicability to Vancouver Island, we are not 31 concerned with the validity of such claim, but 32 merely that the territory was claimed and that 33 in its very terms the Proclamation covered all 34 this territory." 35 36 And if your lordships will turn over the page, this is 37 not found in any one part of his judgment, it repeats 38 throughout at the first paragraph after "God Save The 39 King": 40 41 "If the conception of the British claim and the 42 continual extension of exploration be kept in 43 mind, the use of the present tense in the 44 expression 'with whom We are connected, and who 45 live under our Protection' is easily understood 46 as referring to all the Indians on all 47 territory claimed. The use of the term 'for 772 1 the present' presages the anticipated 2 extension." 3 4 And then at page 644: 5 6 "The facts of actual surveys or settlements on 7 the west coast are not of importance. The 8 Proclamation was made on the basis of a claim 9 to dominion and its protective provisions 10 became applicable in fact to Indians as their 11 lands (the Indian Territory) came under the de 12 facto dominion of representatives of the 13 British Crown." 14 15 And it is that principle, my lords, that we say is the 16 guiding principle in your lordships' view as to 17 whether or not the drafters of the Proclamation, in 18 light of that principle, would include a western 19 boundary. The question is really did they intend to 20 preclude one, that's in our submission the question, 21 and in our submission there was no intention to 22 preclude expansion over the claimed area. It was 23 always intended, in our submission, that the west be 24 left open-ended. 25 And if I could ask your lordships to, in your 2 6 reply -- I'm going to now move into volumes A and B 27 and into the reply material. 28 I would like to begin by taking your lordships to 29 tab -- this is in -- this will be in your Appendix A, 30 and I'm going to for the most part refer you to very 31 selected paragraphs within this material. My lords, 32 at paragraph 4 I'm talking about the Treaty of Paris, 33 and again, Mr. Justice Taggart, this is in response to 34 your question. This is what the -- don't forget that 35 the French and the English have been fighting over 36 this country for years, and when Mr. -- when the Chief 37 Justice in the history referred to this dispute, and 38 I'm going to come back to it, it's been quite clear 39 that between the Treaty of Utrecht and the Treaty of 40 Paris the British thought they had settled it. They 41 had gained certain territory and the French came in 42 and encroached, and there was another round of 43 fighting. So when the Treaty of Paris was signed the 44 intention for the British was to get it in clear and 45 blanket terms once and for all that everything in the 46 west was going to be ceded by France, not just all of 47 of their territories but all of their claims: French 773 1 protections, French claims, French dominions, French 2 forts, everything was going to come under the British 3 by way of a treaty, and this is what the Treaty of 4 Paris stated, Article IV provided that: 5 6 "His most Christian Majesty cedes and guarantees 7 to his said Britannick Majesty, in full right, 8 Canada, with all its dependencies" -- 9 10 And I have to advise your lordships, although I won't 11 take you to it, there was a fight over getting that 12 word in, "with all its dependencies", it was meant to 13 be as inclusive as possible: 14 15 "-- as well as the island of Cape Breton, and 16 all the other islands and coasts in the gulph 17 and river of St. Lawrence, and in general, 18 everything that depends on the said countries, 19 lands, islands and coast, with the sovereignty, 20 property, possessions and all rights acquired 21 by treaty, or otherwise, which the Most 22 Christian King and the Crown of France have had 23 till now over the said countries, lands, 24 islands, places, coasts, and their inhabitants, 25 so that the Most Christian King cedes and makes 26 over the whole to the said King, and to the 27 Crown of Great Britain, and in the most ample 28 manner and form, without restriction, and 29 without any liberty to depart from the said 30 cession and guaranty under any pretence, or to 31 disturb Great Britain in the possessions above 32 mentioned." 33 34 You can see these men have had a lot of experience in 35 drafting quick claims. It is a very broad 36 it-all-includes-everything language, which was what 37 the Treaty of Paris was intending to do. 38 I say to you, my lords, that the first thing we 39 say is that when France ceded to Britain the 40 territories, the intention was to cede the whole 41 thing. And I say to you as well, and I've submitted, 42 that both Britain and France at that time knew that 43 there was a Pacific Ocean. I'm not saying they had 44 charted it, I'm not saying they knew how detailed it 45 was, but the territory they both had addressed their 46 minds to, that they both knew what they were talking 47 about, included right out to the ocean. And I would 774 1 like to turn your lordships to tab 27 of the materials 2 that I've handed up to you. 3 TAGGART, J.A.: Tab 27 of R-40? 4 MS. MANDELL: This would be of the two volumes, this is volume A 5 of the two volumes of materials that I handed up to 6 you come with the appendix. 7 HUTCHEON, J.A.: Volume 1? 8 MS. MANDELL: Yes. 9 HUTCHEON, J.A.: Is that the word Canada? 10 MS. MANDELL: Yeah. That's what the French called — that's 11 what they called their territory, yep. 12 HUTCHEON, J.A.: Canada. 13 MS. MANDELL: My lords, this is tab 40 — sorry, at tab 27, what 14 I'm reading to you from is the description by Nicholas 15 Bellin, he was a French map maker, and he mapped 16 around -- I'm going to turn you to a 1755 map that he 17 did, and this description of what was known in North 18 America was accompanying -- was the text or the -- his 19 own description of what ultimately was recorded on a 20 map. And if I could take you to the paragraph at the 21 beginning of -- sorry, it's about five paragraphs into 22 the extract under Bellin's description of the country 23 before 1755: 24 25 "We have long been aware of the existence of an 26 extensive chain of lakes and river connections 27 to the west and north-west of Lake Superior, 28 forming a convenient highway to the far West; 29 it was even supposed the ocean might be reached 30 in that direction; hence the later discoveries 31 of the French in those parts have only 32 confirmed our previous conjectures and almost 33 converted them into certainty." 34 35 And I've got in the next tab, you will see it's put in 36 tab 29, my lord, there's a map, and it's the Bellin 37 map of 1755. This is what the French thought was 38 there, and it comes in two parts. You will have to 39 assemble it. I make a simple point with it, my lords. 40 The colour coding was put on and certified by the 41 artist to be accurate, and you will see on the map 42 that the yellow is considered -- was considered at 43 that time to be primarily where the English were, 44 French possessions are coloured blue, and those of the 45 Spanish are coloured red. Now, my lords, you will see 46 that for the most part, I'm just going to hold up one 47 side of the map, that the French were trading at that 775 1 point in this area here, which is -- which was known 2 as La Mer De L'Ouest, and I will lead you into that 3 discussion in a minute. And their possessions are 4 portrayed as open-ended to the west. They were 5 primarily at a location which is -- I don't know if 6 it's possible for your lordships to see it this way, 7 but -- my lords, this was just west of Lake Winnipeg, 8 that's primarily where they were. You can see that 9 the English were primarily around Hudson's Bay and 10 around the eastern seaboard. And as I mentioned, the 11 French extended to about the limit of the west. My 12 lords, I'm not going to ask you, it's very difficult 13 to read this map, but I would like you in your own 14 time to look for the Mississippi. It's not in the 15 right place, but it is considerably east of Le Mer De 16 L'Ouest, it's somewhere in this region here, when you 17 do get around to looking for it. So from the French 18 perspective from Bellin's map, the French were 19 primarily trading in an area northwest and north of 20 the Mississippi and west of the Mississipi around 21 1755. This is -- this is not 1763, this is much 22 earlier than that, and the French traders are pushing 23 out constantly to try and move their trade further 24 west. They're looking for a route to the sea. 25 Now, the question is what did the British think 26 that they were getting. And if I could ask your 27 lordships to turn to tab 44, it's found in your second 28 volume. This is one of the letters which was part of 29 the material immediately before the signing of the 30 Proclamation. This is a letter from the Lords of 31 Trade to Egremont on June 8th. It's all still to do 32 with the drafting language. And your lordships will 33 see on page 99 of the letter, which is the third page 34 down into the letter -- 35 TAGGART, J.A.: Where are we now? 36 MS. MANDELL: You're in volume 2, tab 44, page 99. This is a 37 letter which is being sent -- it's an enclosure in a 38 letter from the Lords of Trade to Egremont, and it's 39 addressed to the King, and you will see at the bottom, 40 the next obvious benefit, they're talking about 41 consolidating the Treaty of Paris acquisitions. My 42 lords, do you all have it? It's at page 99 of the 43 letter. 44 WALLACE, J.A.: I appreciate that, but I wonder where it is in 45 your minutes or notes of argument. 46 MS. MANDELL: My speaking notes. My lord, I'm proving the point 47 which is at page 9. I'm leading you to some of the 776 1 evidence in support. 2 WALLACE, J.A.: But these references aren't set out there, and 3 this is part of it. 4 MS. MANDELL: No, they're not. 5 WALLACE, J.A.: This is volume 2, tab — 6 MS. MANDELL: 44. 7 WALLACE, J.A.: Tab 44. 8 MS. MANDELL: Yes. 9 10 "The next Obvious benefit acquired by the 11 Cessions made to Your Majesty is the fur and 12 skin trade." 13 14 And I'm directing you to this language, "of all the 15 Indians in North America". This isn't just the 16 several nations and tribes, they're saying all the 17 Indians in North America. 18 TAGGART, J.A.: Whereabouts on the page approximately? 19 MS. MANDELL: Sorry, right at the very bottom, my lord, and I'm 20 turning over to the page to 100 now. 21 TAGGART, J.A.: Okay. 22 MS. MANDELL: 23 "The first of these articles before the present 24 Cession, was enjoyed by the French almost 25 entirely." 26 27 And, my lords, I'm going to ask you in your own time 28 to read from there down to the sentence that begins 29 "But this trade with the French with the utmost 30 industry". What they're talking about is the point I 31 mentioned to you earlier that the French and the 32 English have been fighting about lands which the 33 French thought they had and the English -- or the 34 English thought they had and the French came around 35 the back and regained fur trading benefits. And there 36 was a complaint about this, but the English, in the 37 Lords of Trade letters, say: 38 39 "But this trade with the French with the utmost 40 Industry is carried to the greatest extent, by 41 means of numerous well chosen Posts and Forts 42 sufficient as well as to overawe as supply all 43 the Indians upon that immense Continent, is now 44 fallen entirely and exclusively into the Hands 45 of Your Majesty's subjects and May secured and 46 communicated it to all Your Majesty's Colonies 47 according to the Industry of each, by means of 777 1 those Posts and Forts with proper regulation 2 for trade with the Indians, under the 3 Protection of such a military force as may 4 preserve their tranquility, not only against 5 the Indian" -- 6 7 I can't read it: 8 9 "-- but be ready for their defence against any 10 European attack. 11 12 And if you can drop down to the next full sentence: 13 14 "Another obvious advantage of the Cession, will 15 be the supply of Indian Tribes upon the 16 Continent of North America with European 17 commodities immediately through the hands of 18 Indian traders." 19 20 HUTCHEON, J.A.: English. 21 MS. MANDELL: "English traders". So the language which is going 22 on is that you are now to supply all the Indians upon 23 that immense continent, upon the continent of North 24 America, all the Indians of North America. It's a 25 very all-encompassing view that the Lords of Trade 26 believed they had received from the Treaty of Paris. 27 And, my lords, if I could finally just turn you to 28 what the British understood about the continent 29 themselves at that time, first if I could turn you to 30 tab 63. This is the same kind of description of a map 31 which was in 1762 spelled out by Jefferys, who was the 32 King's map maker, and he says at the second-to-last 33 paragraph from the bottom: 34 35 "Canada, according to the English account, is 36 bounded on the north by the high lands which 37 separate it from the country about Hudson's 38 Bay, Labrador or New Britain, and the country 39 of the Eskimeaux and the Christeneaux; on the 40 east of the River St. Lawrence; and on the 41 south by the Outawais River; the country of the 42 six nations and Louisiana, its limits towards 43 the west extending over countries and nations 44 hitherto undiscovered." 45 46 That's what the British in 18 -- sorry, in 1762 47 believed that they had. And if I could ask your 77? 1 lordships to go back to tab 60, it's -- there's -- 2 this is the Jefferys map of 1762. Again, as I 3 mentioned to you, he's an official map maker for the 4 King, and I only make one point with it, my lords, and 5 that is to show that, according to their knowledge at 6 the time, there was definitely a coast and there was 7 definitely the Pacific Ocean. They weren't, the 8 British, all that knowledgeable about what was in 9 between where the west coast were and the ocean, they 10 hadn't explored that country well, but the map maker 11 to the King in 1762 was putting a map together which 12 included the Pacific Ocean and had marked the known 13 Spanish exploration up to this point and the known 14 Russian exploration up to this point. And you've got, 15 I'm not saying a great coast, but it's not bad for 16 people that were in the business of map making in that 17 early date. And so what I say, my lords, is this: 18 And that is that both the British and the French knew 19 that there was a continent out there which went out to 20 the Pacific Ocean, and that Britain thought she had 21 got, France thought she had ceded the whole of the 22 interest in the whole of the continent, and it would 23 be counter-productive to the British in light of the 24 June 8th letter and her designs to colonize and take 25 benefit of the fur trade, to put a western boundary in 26 the Proclamation, which would preclude her from going 27 out and realizing the full extent of her colonization 28 ambitions. 29 I have to stop. 30 TAGGART, J.A.: If you have an opportunity to go to New Orleans 31 sometime -- New Orleans, I should say, sometime and 32 take one of the bus tours of the city, they would 33 proudly present you with a map of the Louisiana 34 Purchase, and to my astonishment the Louisiana 35 Purchase, which was effected by the Americans from the 36 French I believe in the early 1800s, went well north 37 of the 49th Parallel to the north of Lake Superior and 38 included all of a good -- you could interpret it as 39 going half-way to James Bay. So the French must have 40 sold it twice, once to the Brits and once to the 41 Yanks. 42 MS. MANDELL: Maybe that is American expansionism that your 43 lordship stumbled upon on the bus. My lords, I am 44 behind at least half an hour, and I was wondering if 45 it's possible to start early tomorrow? 46 TAGGART, J.A.: No. We're not going to budge on our standard 47 sitting time, there's no point. By this time of day 779 1 we're getting more than plenty. 2 MS. MANDELL: I'll do my best. 3 TAGGART, J.A.: Ten o'clock. 4 THE REGISTRAR: Order in court. 5 6 (PROCEEDINGS ADJOURNED) 7 8 I hereby certify the foregoing to be 9 a true and accurate transcript of the 10 proceedings herein transcribed to the 11 best of my skill and ability 12 13 14 15 16 Graham D. Parker 17 Official Reporter 18 United Reporting Service Ltd. 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-