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