"3baf7844-04e2-4936-a726-c1455336c7d8"@en . "CONTENTdm"@en . "Delgamuukw Trial Transcripts"@en . "British Columbia. Supreme Court"@en . "2013"@en . "1990-04-10"@en . "In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial."@en . ""@en . "https://open.library.ubc.ca/collections/delgamuukw/items/1.0018522/source.json"@en . "application/pdf"@en . " 2407? Proceedings 1 APRIL 10, 1990 2 SMITHERS, B.C. 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia, this 10th day of April, 1990. In the matter 6 of Delgamuukw versus Her Majesty the Queen at bar, my 7 lord. 8 THE COURT: Mr. Rush. 9 MR. RUSH: Yes, my lord, before Mr. Jackson commences the 10 argument, I wanted to make reference to certain 11 volumes that I made submissions to you on yesterday. 12 THE COURT: Yes. 13 MR. RUSH: We tendered as part of the authorities. 14 THE COURT: I'm sorry, Mr. Rush, I don't have the outline of the 15 plaintiffs' argument. Do I need them for -- 16 MR. RUSH: For the purposes of what I am about to say, no, you 17 don't. 18 THE COURT: Well, go ahead please. 19 MR. RUSH: I tendered four volumes of a supplemental second 20 series of authorities yesterday. 21 THE COURT: Yes. 22 MR. RUSH: And I made passing reference to them, but I wanted to 23 come back to them briefly and mainly to the index, my 24 lord. You needn't refer to the volumes. There are 25 four additional volumes, and they contain additional 26 cases, and -- 27 THE COURT: I'm sorry, is this what you call your second series? 28 MR. RUSH: Yes, that's right. What I wanted to advise you of, is 29 that during the course of the argument, which I 30 addressed to Your Lordship on Friday of last week, at 31 that time I made reference to a number of authorities, 32 including, for example, the case of Sammut and 33 Strickland. I made reference to Treatise by Chitty, a 34 treaty on the laws of the prerogatives of the Crown. 35 I made reference, for example, to an article by Barry 36 Dale Keith and so on. And what I wanted to advise 37 Your Lordship is that at that time I didn't have those 38 authorities, but I now have them, and they are in the 39 second series. 4 0 THE COURT: All right. 41 MR. RUSH: And so that the references that I drew Your Lordship's 42 attention to at that time, they are now contained 43 within the second series. And I believe that we have 44 all of the additional authorities as well as the page 45 references. And there were some statutes as well to 46 which I drew Your Lordship's attention, and they too 47 are contained in the statute volume of this second 24079 Submissions by Mr. Jackson 1 series. So I should advise Your Lordship as well, 2 that I think there were one or two authorities to 3 which I drew Your Lordship's attention, in particular 4 the -- I think it was the Roberts-Wray authority, and 5 there were certain pages that were not -- that I 6 didn't have at that time. I now have them, and I will 7 pass them up to the Registrar for insertion in the 8 first series. 9 THE COURT: Yes. Now, are those -- that second series, how many 10 volumes were there? 11 MR. RUSH: There are four. 12 THE COURT: And can they conveniently be given the Roman numeral 13 numbers in succession to the first series? 14 MR. RUSH: And they have been given those numbers. They are 15 actually Roman XVIII, XVIIII, XX and XXI. 16 THE COURT: All right. Thank you. 17 MR. RUSH: Thank you, my lord. 18 THE COURT: Mr. Jackson, I have been given a very inviting pile 19 of outline here, a meager 486 pages -- oh, it starts 20 at 311. Do they belong in any particular volume? 21 MR. JACKSON: They should fit conveniently, my lord, in the end 22 of the binder you presently have been using. 23 THE COURT: In volume 2. I think they will. I think if you 24 don't mind, I will just take it -- take a moment and 25 see if I can successfully insert them. 26 MR. JACKSON: My lord, the last page of the material Mr. Rush 27 dealt with yesterday ended at page 305. 28 THE COURT: That's correct, yes. 29 MR. JACKSON: Then there is a long very pregnant pause to 311, 30 at which point the materials I'll be addressing pick 31 up. 32 THE COURT: Thank you. Mr. Justice Wood said to a jury one time, 33 after hearing Mr. Ken Young for four days, he thought 34 the best thing the jury should have is a moment of 35 silence. Maybe a few pages wouldn't be such a bad 36 thing. I'm not sure I am going to succeed in that. 37 All right. Thank you, Mr. Jackson. Starting at 310, 38 is it? 3 9 MR. JACKSON: 311. 40 THE COURT: I have it, thank you. 41 MR. JACKSON: My lord, you will recall last week when I first 42 addressed Your Lordship, I started in 1492 with the 43 first voyage of Christopher Columbus. By the end of 44 today I hope to have reached 1990, in terms of this 45 sketch of the way in which fundamental principles or 46 fundamental process of treaty making has been a legal 47 paradigm for the accommodation of the relationships 24080 Submissions by Mr. Jackson 1 between aboriginal peoples and the Crown. 2 The point at which I am going to start is the 3 point at which Mr. Rush finished yesterday. Having 4 given Your Lordship the benefits of our submissions on 5 the scope, interpretation of the Royal Proclamation, I 6 wish you to go back for a moment and to see the way in 7 which the Royal Proclamation was implemented initially 8 in the years after 1763, and then through into what is 9 now Canadian territories. 10 And starting at page 311. 11 It is our submission that the central importance 12 of the principle of consent and treaty making in the 13 determination of Indian-Crown relations with respect 14 to territorial issues is evidenced by the Crown's 15 conduct in the post-Proclamation period. At the same 16 time as the Lords of Trade were asked to prepare the 17 Royal Proclamation, they had also been requested to 18 consider and prepare a general plan, upon which His 19 Majesty's subjects are to carry on a free trade with 20 all the Indians of North America. 21 And Mr. Rush has already made submissions in 22 relation to the plan, and it's referenced to Indians 23 with whom they are connected. 24 The plan dealt with many matters other than those 25 connected with fur trade, particularly matters arising 26 from the Royal Proclamation dealing with the boundary 27 to be established between colonial settlements and the 28 Indian territory. 29 And Your Lordship may recall that John Pownall in 30 his sketch had anticipated that the boundary along the 31 Appalachians was not intended to be an inflexible one, 32 but would be modified to take into account both the 33 pattern of English settlement and also Indian claims 34 to territories east of the line. 35 In furtherance this policy, the 42nd clause of the 36 plan had the following provision: 37 38 \"The proper measures be taken with consent and 39 concurrence of the Indians to ascertain and 40 define the precise and exact boundary and 41 limits of the lands which it may be proper to 42 reserve to them and where no settlement 43 whatsoever shall be allowed.\" 44 45 Although this plan was never submitted to 46 Parliament, the extent to which Clause 42 was acted 47 upon is revealed in the series of treaties which were 24081 Submissions by Mr. Jackson 1 negotiated by the Indian superintendents with various 2 Indian Nations for the specific purpose of negotiating 3 the boundary contemplated by the Proclamation. That 4 is the boundary between colonial settlements and the 5 Indian country. 6 And at the bottom of page 312 I refer to a report 7 of the Lords of Trade dated March the 7th, 1768: 8 9 \"In a plan for the management of Indian Affairs 10 prepared by this Board in 1764, the fixing a 11 boundary between the settlements of your 12 Majesty's subjects and the Indian country was 13 proposed to be established by compact with the 14 Indians ...\" 15 16 And I emphasize those words, my lord. And you 17 will see over on page 313 that with their report the 18 Lords of Trade enclosed a number of treaties which 19 were in fact the best evidence of the implementation 20 of the consentual negotiation of the Proclamation 21 Line. 22 And you will see that there is a treaty with the 23 Cherokee Nation. It's a treaty to which I will come 24 back to when I deal with the seminal Cherokee cases 25 cited by Chief Justice Marshall in the 1830's. 26 And on page 314 another treaty with the Creek 27 Nation, the Treaty of Picolata. 28 And Your Lordship should be reminded of a point 29 Mr. Rush made yesterday in relation to these 30 particular treaties. They were the subject of express 31 comment by Mr. Justice Baldwin in the Mitchell case, 32 one of the Marshall cases decided in 1835, and I would 33 refer your lordship back to page 301 of the materials, 34 where you will see at the bottom of the page Mr. 35 Justice Baldwin in characterizing these treaties 36 stated: 37 38 \"By thus holding treaties with these Indians 39 accepting of cessions from them with 40 reservations and establishing boundaries with 41 them, the King waived all rights accruing by 42 conquest or cession and thus most solemnly 43 acknowledged that the Indians had rights of 44 property which they could cede or reserve.\" 45 46 And of course Mr. Rush referred Your Lordship to 47 the Mitchell case as being judicial -- a judicial 24082 Submissions by Mr. Jackson 1 affirmation that the Proclamation in itself affirmed 2 and guaranteed proprietary interests. 3 Page 315, my lord. The report of the Board of 4 Trade also sheds significant light on that aspect of 5 the Royal Proclamation which was designed to affirm 6 imperial control of Indian policy, particularly in 7 relation to land issues. As I submitted last week, 8 this was the progressive thrust of imperial 9 initiatives following Hendrick, the Iroquois chief's 10 threatened termination of the Covenant Chain as a 11 result of the lack of response of New York to Indian 12 complaints about encroachments on their lands in the 13 1750's. 14 The Lords of Trade in addressing the issue of the 15 importance of imperial authority stated: 16 17 \"The giving all possible redress to the 18 complaints of the Indians in respect to 19 encroachments on their lands, and a steady and 20 uniform attention to a faithful execution to 21 whatever shall be agreed upon for that salutary 22 purpose, is a consideration of very great 23 importance. It is a service of a general 24 nature in which Your Majesty's interest as Lord 25 of the Soil of all ungranted lands which the 26 Indians may be inclined to give up, is deeply 27 and immediately concerned, and with which the 28 general security of Your Majesty's possessions 29 there is in some measure connected; it is an 30 object comprehensive of the variety of cases, 31 to which the separate authority and 32 jurisdiction of the respective colonies is not 33 competent, and it depends upon negotiation, 34 which has always been carried on between 35 Indians and officers acting under your 36 Majesty's immediate authority, and has 37 reference to matters, which the Indians would 38 not submit to the discussion of particular 39 colonies.\" 40 41 And I draw Your Lordship's attention to that 42 passage, because in our submission it is further 43 evidence of the point which Mr. Rush made that the 44 Royal Proclamation in addressing issues of high 45 national importance directed to the guarantee of 46 Indian lands and entitlements was a Proclamation of a 47 higher order. And Mr. Rush addressed you on that 24083 Submissions by Mr. Jackson 1 matter. This statement by representatives of the 2 Crown in 1768 we submit is further confirmation of 3 that. 4 It is also, of course, the basis upon which the 5 Americans themselves pass the Trade and 6 Non-Intercourse Act again to centre the -- in a 7 unified way the determination of the rights of 8 aboriginal peoples and their relationships to the 9 Atlantic states. 10 And furthermore we say, and this is a point which 11 we will come back, the sentiments on policy expressed 12 in that statement by the Lords of Trade also explains 13 the constitutional arrangements in Canada almost 100 14 years later in terms of the vesting of exclusive 15 authority in relation to Indians and land reserves for 16 Indians in the federal government under Section 9124. 17 THE COURT: Mr. Jackson, I don't know if you can respond to 18 this, but perhaps your greater reading than mine can 19 be something I can take advantage of. I am always 20 troubled when I read these things where people sitting 21 in comfortable houses write high flown phrases, and I 22 wonder if they really represent what's happening in 23 the field. And I don't know if there is any 24 literature on this question. It seems to me that 25 there is a lot of, for want of a better term, a lot of 26 triple talk going on here on both sides. For example, 27 your submission the other day suggested very clearly 28 that Chief Hendrick really wrote off the Covenant 29 Chain at Fort George, yet almost immediately 30 thereafter he's attending another meeting a year 31 later. We have the Lords of the Trade and Secretaries 32 of State writing nice phrases about all these things, 33 and I wonder if it is really representative of what's 34 happening on the frontier. 35 MR. JACKSON: Your question is a perceptive one, my lord. And 36 one of the things I sought to do last week in bringing 37 to your attention Dr. Hurley's work, was that he 38 indeed sought to go behind diplomatic assertions 39 traded between the English and the French vis-a-vis 40 their respective rights over the Iroquois, and he 41 sought to look at what in fact was happening on the 42 ground, the extent to which diplomatic assertions were 43 simply that, rhetoric sounding and fury, but 44 signifying very little else. 45 And Your Lordship may also recall when I referred 46 you to the formulations of the British in 1632, when 47 they captured the Dutch ship and they said, \"You have 24084 Submissions by Mr. Jackson 1 no right to trade in New England\", and how that in 2 fact was an assertion which was based upon the fact 3 the Indians have no rights to give to the Dutch. 4 Immediately thereafter the English made treaties with 5 the very same Indians to acquire rights. 6 I also made the point that in the Nootka sound 7 controversy 150 years later, where certainly the 8 purposes -- the British used the very same arguments 9 which the Dutch had sought to use against them. 10 And we are not asserting these propositions simply as 11 diplomatic assertions. We are seeking to show, and I 12 will endeavour to do that immediately, my lord, the 13 extent to which these assertions by the Crown 14 corresponded to the reality on the frontier. 15 THE COURT: You say they do? 16 MR. JACKSON: They do sometimes, but I think Your Lordship is 17 correct to subject to some close scrutiny. 18 We also say, my lord, however, that the assertions 19 by the Crown may be evidence or they may not be 20 evidence of what we say the fundamental principles 21 are. And whatever the Crown might say, my lord, if it 22 is not consistent with this fundamental principle in 23 the same way as the practice of the Crown, if it is 24 not consistent with those fundamental principles, may 25 in fact be the subject of characterization as a legal 26 activity. The practise of the Crown does -- is not, 27 in our submission, the touchstone of the legitimacy 28 and legal validity of what the Crown does. And so we 29 are seeking to provide Your Lordship a conjunction of 30 statements of what we say are high principle, and a 31 record of action by the Crown which we say is 32 consistent with that, and reflective of those high 33 principles. 34 In particular in regard to your point about 35 Hendricks, I would just revisit that for a moment. 36 Hendricks, as Your Lordship remembers, walks out of 37 the Treaty of Albany, having been flung down the 38 gauntlet, as it were, indicating to the colonial 39 authorities that the Covenant Chain was indeed broken. 40 That was contingent very much upon the British 41 colonial authorities giving Hendricks in the Six 42 Nations the kind of assurances to which they have 43 journeyed to Albany to receive. That is guarantees 44 that the British would in fact do something about 45 encroachments on their lands, and that that guarantee 46 reflected in actual action, rather than vague 47 promises, was the condition qua known of continuing of 24085 Submissions by Mr. Jackson 1 a renewal of the Covenant Chain. 2 And Your Lordship will recall that in the years 3 after 1753 immediately, it was because of that spectre 4 of the Iroquois breach that the colonial authorities 5 in London did in fact take action, that they did in 6 fact send instructions to the colonial governors, and 7 that marked the beginning of the period in which the 8 British authorities, the Imperial authorities made it 9 very clear that they would respect the land rights of 10 the Indian people, and that in fact is what culminated 11 in the Royal Proclamation. 12 And so, my lord, when I read to you the statements 13 of the Lord of Trade in 1768, I am reading not the 14 diplomatic assertions of armchair diplomats sitting in 15 Whilehall, I am reading to you statements which 16 reflect a considered, consistent and persistent theme 17 of imperial law and practise, which goes back to the 18 decades before the Royal Proclamation. 19 And what I am doing is to show how in fact that 20 consistent, persistent and principled application of 21 the law characterized the actions of the Crown in the 22 period after the Royal Proclamation. 23 THE COURT: Did you say that Hendrick said that the Covenant 24 Chain was broken at Fort George or at Albany? 25 MR. JACKSON: I think it was Fort George, my lord. Yes. 26 THE COURT: I think so too. I just wasn't sure. All right. 27 Thank you. I have always been suspicious of staff. I 28 think they snow management on a regular basis in just 2 9 about every endeavour I have ever been involved in, 30 and I have that distinct flavor of something like that 31 happening here. In any event, whatever Hendrick said 32 at Fort George didn't mean that the Covenant Chain was 33 broken. He said it was, but it turned out later that 34 it wasn't, I gather. 35 MR. JACKSON: In the next treaty thereafter, as I recall, my 36 lord, the Iroquois having been given the guarantees 37 which they were not given by the colonial authorities 38 renewed the Covenant Chain. 39 THE COURT: Yes, all right. Thank you. You're back on page 40 315? 41 MR. JACKSON: Yes, my lord. We say at the top of page 316, my 42 lord, that the Royal Proclamation makes no provisions 43 regarding the exercise of jurisdiction within the 44 Indian country beyond declaring the area a free trade 45 zone and authorizing the removal by the military of 46 fugitives from justice who flee into the Indian 47 country. Neither the Proclamation nor any of the 24086 Submissions by Mr. Jackson 1 preceding preparatory material sought to change the 2 existing state of affairs whereby the jurisdiction of 3 each Indian nation within its territory to determine 4 its own affairs in accordance with its own laws was 5 respected, subject to the terms of any particular 6 treaties with the Crown. Nothing in the Proclamation 7 suggests any intention to trench upon this internal 8 self-government of the Indian Nations. 9 My lord, the treaty making referred to by the 10 Lords of Trade in their 1868 report furnishes what we 11 say is evidence of the continuing rights of internal 12 self-government of the Indian Nations. The first 13 negotiations of the Proclamation Line, dividing the 14 Indian country from the English settlements, took 15 place in the southern colonies and were formalized in 16 the Congress of Augusta in November, 1763, which was 17 attended by the Governors of Georgia, North and South 18 Carolina and Virginia, together with the 19 Superintendent of Southern Indian affairs, John 20 Stuart. And Your Lordship will recall Sir William 21 Johnson's counterpart. The resulting treaty reached 22 at the Congress of Augusta, in addition to confirming 23 the Proclamation Line, dealt with a number of other 24 agenda items, and in particular, my lord, if you turn 25 to page 317, the very bottom of the page, you will see 26 I refer to Article 3 of the Treaty of Augusta, which 27 contains explicit recognition of the continuing 28 jurisdiction of the Indian Nations in matters of 29 internal self-government. And I set out there the 30 relevant part of Article 3. 31 32 \"The English governors and superintendent engage 33 for themselves in their successors, as far as 34 they can, that they will always give due 35 attention to the interests of the Indians and 36 will be ready, on all occasions, to do them 37 full and ample justice. And the several Indian 38 parties do expressly promise and engage for 39 themselves severally and for their several 40 nation and tribes pursuant to the full right 41 of power which they have so to do, that they 42 will in all cases and upon all occasions do 43 full and ample justice to the English.\" 44 45 In effect, my lord, a clause of reciprocal 46 recognition, almost full faith and credit to each 47 other's justice systems. And the treaty goes on and 24087 Submissions by Mr. Jackson 1 has a particular article which defines the 2 Proclamation's Line, and seats certain lands on the -- 3 on each side of the line. 4 The task of settling the Proclamation Line fell 5 principally to the two Indian superintendents. The 6 treaty negotiation conducted by Sir William Johnson in 7 the north and John Stuart in the south in the 8 post-Proclamation period provide what we say is 9 compelling evidence of the central importance of 10 Indian consent as a prerequisite to the acquisition by 11 the Crown of rights over lands within the 12 proprietorship of the Indian Nations. 13 And I want to refer your lordship here to a number 14 of treaties in particular which speak to your 15 lordship's observation, is this assertion by the Lord 16 of Trade, how does it correspond to the realities on 17 the ground in North America? 18 And going to the realities on the ground in North 19 America, in the north Sir William Johnson, in November 20 1768, at a congress held at Fort Stanwix, with the Six 21 Nations and their tributaries, negotiated a northern 22 boundary line which involved large cessions by the 23 Indian Nations of lands to the west of the Appalachian 24 which were within the boundaries of Pennsylvania and 25 Virginia, while at the same time other lands east of 26 the Appalachians were retained. 27 And this is a very good example, my lord, of how 28 that line was negotiated. There were certain lands 29 which the Iroquois and other nations wished to retain 30 east of the line, there were lands which the English 31 wished to have west of the line, and so the line was 32 negotiated, as it were, as a shake down the core of 33 the Appalachians, taking into account the respective 34 interests of Indian Nations on the one hand and the 35 British colonies on the other. 36 The principle reason why the British had requested 37 the cession from the Indians west of the line was the 38 advancing agricultural frontier, particularly in 39 Pennsylvania. And I refer there to Kenneth Narvey's 40 article to which Mr. Rush has already referred you, 41 which in a very painstaking way goes through all the 42 treaties negotiated in this period to show how the 43 Proclamation Line was negotiated by consent by compact 44 with the Indians in accordance with what we say are 45 the fundamental principles embodied in the 46 Proclamation. 47 MR. WILLMS: My lord, I note in all those there is an exhibit 240? Submissions by Mr. Jackson 1 reference there, and the exhibit is for identification 2 only. It's not -- 35 as a full exhibit. It's just 3 for identification. 4 THE COURT: All right. 5 MR. JACKSON: My lord, that exhibit is a law review article in 6 the Saskatchewan law review. 7 The language of the Fort Stanwix Treaty is 8 significant, we say, in terms of the legal 9 characterization. 10 THE COURT: It's quite a recent article, is it not? 11 MR. JACKSON: Yes, my lord. 12 THE COURT: Two years ago. 13 MR. JACKSON: No, I think it's longer than that. I seem to 14 first remember reading it with some horror when I saw 15 its length in the mid-seventies. 16 THE COURT: That long ago. 17 MR. WILLMS: 1974, my lord. 18 THE COURT: 1974, and there is another one more recent, probably 19 just as long. 20 MR. JACKSON: And we say the language is significant in terms of 21 how the rights of the Iroquois were characterized, and 22 you will see, in terms of the portion which I have 23 emphasized from the recital in the treaty, the 24 treaties are -- the Indians are stated to be the true 25 and absolute proprietors of the lands. So the 26 Indians' interest was seen by the Crown officials as 27 being one of proprietorship. 28 And I have also set out at the bottom of page 319 29 over to page 320, and if Your Lordship just looks at 30 again the material which I have emphasized on page 31 319, you will see that this is the language. And I 32 say this at page 320, this is the language of the 33 English common law conveyancer, and we say that this 34 treaty has a clear historical line of continuity with 35 the treaties I talked about last week, my lord, the 36 earliest treaties in North America where again I took 37 Your Lordship to the particular terms of the treaty 38 and showed how they were the words of conveyances. 39 They were the words of lawyers who were seeking to 40 infuse with legality these documents. And we say that 41 the Treaty of Fort Stanwix is part and parcel of that 42 line of documents which we say bespeak legal 43 recognition of legal rights of aboriginal peoples to 44 their territories. 45 At page 320, the last paragraph. Shortly before 46 Sir William Johnson met with the Six Nations at Fort 47 Stanwix, his counterpart, John Stuart, met with 24089 Submissions by Mr. Jackson 1 representatives of the Cherokee Nation at the Congress 2 of Hard Labor in South Carolina to settle the boundary 3 line as it pertained to the Cherokee Nation. Stuart 4 had negotiated in 1766 and '67 a number of cessions 5 relating to the boundary, and the purpose of the 6 Treaty of Hard Labor was to ratify those treaties and 7 to negotiate further modifications to the Proclamation 8 Line. Article 1 sets out the details of the boundary 9 line. I want to refer Your Lordship, however, 10 particularly to article 2, and I would ask Your 11 Lordship to look at the Exhibit 1244, tab 72. 12 THE COURT: Yes, I have it. Thank you. 13 MR. JACKSON: If Your Lordship would go to page 329, which is 14 several pages in. And you will see in the middle of 15 page 329 article second. 16 THE COURT: Yes. 17 MR. JACKSON: I have set article second out in the body of the 18 text. 19 THE COURT: Yes. 20 MR. JACKSON: And what it says, my lord: 21 22 \"And it is further agreed upon and stipulated by 23 the contracting parties, that no alteration 24 whatsoever shall hence forward be made in the 25 boundary lines, above recited, and now solemnly 26 agreed upon, ratified and confirmed as 27 aforesaid, except such as may hereafter be 28 found expedient and necessary for the mutual 29 interests of both parties, and which alteration 30 shall be made with the full consent of the 31 superintendent, or such other person or persons 32 as shall be authorized by His Majesty's, as 33 well as with the consent and Approbation of the 34 Cherokee Nation of Indians, at a congress or 35 public meeting of Indians to be held for said 36 purpose, and not in any other manner.\" 37 38 Now, My Lord, we say that Article 2, at the bottom 39 of page 321, Article 2 of the Treaty of Hard Labor is 40 a restatement of two of the fundamental principles 41 which we assert governs as a matter of law the 42 relationship between Indian Nations and the Crown 43 regarding the acquisition by the Crown of proprietary 44 rights in Indian lands. And they are that such rights 45 can only be acquired with the consent of the Indian 46 Nations, and that the consent must be given in a 47 public treaty making forum. And of course those are 24090 Submissions by Mr. Jackson 1 embodied in the Royal Proclamation. 2 At page 322 we document how a point of some 3 controversy arose out of the two treaties negotiated 4 at Fort Stanwix and Hard Labor, and the problem was 5 that the lands which had been ceded by the Six Nations 6 at Fort Stanwix were lands which were claimed by the 7 Cherokees and which had been guaranteed or affirmed to 8 them by the Treaty of Hard Labor. So the treaties, as 9 it were, dealt with the same lands, but in different 10 ways. And Virginia was particularly concerned about 11 this conflict, because a number of settlements had 12 been established within the areas retained by the 13 Cherokees. And accordingly the Governor of Virginia 14 pressed John Stuart to amend the Treaty of Hard Labor 15 by shifting the boundary line to the west, in order to 16 include Virginia's settlements. 17 And, my lord, I want to bring your attention to 18 what then ensued. Again what happened on the ground 19 rather than what happened in Whitehall. 20 In October 1770 Stuart met with about 1,000 21 Cherokees at Lochaber in South Carolina and negotiated 22 a new boundary. And in his speech to the assembled 23 Cherokees he made it clear what was the reasons for 24 the renegotiation. And referring to the Treaty of 25 Hard Labor he said: 26 27 \"I was then in hopes that we would have no 28 further occasion to meet and talk about lands, 29 but it appeared that by said Line, the lands 30 upon which a great number of families are 31 settled between the Great Kanhaway and Holstons 32 River which would have been cut-off from the 33 province of Virginia and determined to belong 34 to the Cherokees ... the line I am directed to 35 propose will cover the inhabitants and prevent 36 their ruin by securing to them their 37 possessions while it will not deprive you of 38 one foot of your hunting ground for you know 39 you never hunted in the ground, that is 40 proposed to be given up to His Majesty by this 41 line. It is not His Majesty's intention that 42 you should injure yourselves by giving up your 43 hunting grounds ...\" 44 45 And accordingly the Cherokees were prepared to 46 accommodate the British, and therefore on October the 47 20th, 1770, by the Treaty of Lochaber, the Cherokee 24091 Submissions by Mr. Jackson 1 ceded additional lands and agreed to redefine the 2 boundary line between the province of North Carolina 3 and the Cherokee hunting grounds. And of significance 4 the Treaty of Lochaber provided for its further 5 amendment in the exact same terms as the original 6 Treaty of Hard Labor. That is, the treaty could not 7 be amended in any other manner than in accordance with 8 the consent of the Crown's representatives, and that 9 of the Cherokee Nation in public council assembled. 10 Now, my lord, I want to, in the next section of 11 the material, deal with the recognition of the 12 pre-existing rights of the aboriginal peoples in what 13 is Canadian territories. Initially from the period 14 1763 to Confederation, and then in a later section, 15 which I will get to later today, in the period from 16 Confederation to the present time. 17 Now, before I start this, my lord, I wanted to 18 make the point that the province in its submissions 19 says that the history of the Indian peoples in the 20 American colonies prior to the American revolution 21 provides no or little evidence of the policy of the 22 Crown in what is now Canada. And they say that it is 23 misleading to focus, as the plaintiffs have, to this 24 point on the experience on the application of what we 25 say are fundamental principles in the original 26 colonies. And they further say that if you look at 27 what happened in Canada, Your Lordship will conclude 28 that the acknowledgement of aboriginal title was a 29 matter of grace on the part of the Crown. 30 Now, we will, of course, have submissions to make, 31 and we already made submissions on the general 32 characterization of the provinces, that aboriginal 33 title exists, is created, is extinguished at the 34 pleasure of the Crown. And it will be an important 35 theme. The rejection of that proposition will be an 36 important requirement of our submissions, but what the 37 material will now turn to, my lord, is the addressing 38 of the application on the ground of what we say are 39 the fundamental principles to what is clearly Canadian 40 territory. And we will endeavour to demonstrate that 41 far from being misleading, the evidence of what 42 happened in the colonies pre-American Revolution is 43 part of a continuous theme in Canadian territories. 44 That is not to say that there are not exceptions. 45 One of the hallmarks, I suppose of every 46 fundamental principle, is there are some exceptions. 47 Certainly the hallmark of many of our legal 24092 Submissions by Mr. Jackson 1 principles. But we will in fact seek to address those 2 exceptions, and we will suggest to Your Lordship that 3 those are not demonstrations of the lack of principle 4 in law, they are rather demonstrations of abberations 5 which are not precedent upon which this court should 6 render judgment. 7 So, my lord, with that preface I would turn to the 8 material at page 323. 9 The common law principles of recognition of 10 aboriginal rights reflected in the Royal Proclamation 11 of 1763 provided the legal framework in the post-1763 12 period within which the Crown negotiated for the 13 acquisition of lands in Canada in possession of the 14 aboriginal peoples which was required for settlement 15 and development. This framework was applied in what 16 is now Ontario, and as colonial expansion pushed 17 westwards, in what is now Manitoba, Saskatchewan, 18 Alberta and in parts of British Columbia and the 19 Northwest Territories. Most recently, this framework 20 has been applied in northern Quebec, the Yukon and 21 parts of the Northwest Territories not hitherto 22 covered by the Treaties of Cession. The unifying 23 principle, we say, in this acquisition of aboriginal 24 rights has been the principle of Indian consent, and 25 the unifying process has been one in which that 26 consent is expressed through treaties or land claims 27 agreements. 28 And I would turn first, my lord, to the old 29 Province of Quebec. 30 In the period after 1763, the government of the 31 Province of Quebec made clear its resolve to enforce 32 the provisions of the Royal Proclamation both within 33 the boundaries of the province, which themselves were 34 relatively circumscribed, and in the Indian country as 35 well. And you will recall, my lord, that Mr. Rush has 36 made submissions that the land purchase provisions of 37 paragraph 4 of the Proclamation applied both within 38 the old colonies and as well, of course, within the 39 defined Indian country. 40 The instructions given to Governor James Murray in 41 1763 are significant evidence in relation to the 42 extent to which the Proclamation was to apply in its 43 fullness within Quebec. And I would refer you, in 44 particular, to paragraph 61 and 62. 61 requires 45 Governor Murray to inform himself with the greatest 46 exactness of the number, nature and disposition of the 47 several bodies or tribes of Indians, of the manner of 24093 Submissions by Mr. Jackson 1 their lives, and we emphasize this, and the rules and 2 constitutions by which they are governed or regulated. 3 And you are upon no account to molest or disturb them 4 in the possession of such parts of the said province, 5 as they at present occupy or possess. 6 And article 62 goes on to recite the Proclamation. 7 8 \"Whereas we have by our Proclamation, the 7th 9 day of October strictly forbid on pain of our 10 displeasure all our subjects from making any 11 purchases or settlements whatever or taking 12 possession of any of the lands reserved to the 13 several nations of Indians, with whom we are 14 connected, and who live under our protection, 15 without our special leave for that purpose 16 first obtained.\" 17 18 We say these instructions are important, not only 19 because they demonstrate a recognition by the Crown of 20 the pre-existing rights of the aboriginal peoples to 21 ownership of traditional lands, but also, as can be 22 seen from the passage which I have underlined, also 23 because they acknowledge as pre-existing the internal 24 governments of the Indian Nations. And in that sense 25 we have some continuity on the ground between the 26 provisions of the Treaty of Augusta, which I read to 27 Your Lordship, and the Canadian territories of Quebec. 28 The relationship between the pre-existing 29 proprietary rights of the Indian Nations in lands 30 which they had not ceded to the Crown and the Crown's 31 dominion can be seen from applications made for land 32 grants by settlers in Quebec. And as an example, we 33 cite the executive council of the province, with 34 Lieutenant-Governor Guy Carleton presiding, its 35 hearing of a petition of a certain Marie Joseph 36 Phillipot for a grant of 20,000 acres of land, which 37 His Majesty in council had already authorized to be 38 taken up in such part of the said province as the said 39 Joseph Phillipot shall choose, not already granted or 40 surveyed to others. And Monsieur Phillipot wanted the 41 lands to be assigned at Restigouche on the eastern 42 border of Quebec. And the Committee's opinion, as 43 stated by Chief Justice William Hey, was to this 44 effect: 45 46 \"The lands so prayed to be assigned are, or are 47 claimed to be the property of the Indians, and 24094 Submissions by Mr. Jackson 1 as such by His Majesty's express command as set 2 forth in his Proclamation in 1763, not within 3 their power to grant.\" 4 5 And I ask Your Lordship to pay particular 6 attention to the words emphasized. 7 The extent to which legal protection was to be 8 given to Indian territorial rights is further 9 illustrated by other events in Quebec in the period 10 1766 to 1767. Prior to the Conquest, the French 11 authorities, with the consent of the Indians, had 12 established a number of trading posts known as the 13 King's domain along the north shore of the St. 14 Lawrence River, and had leased trading rights to 15 individuals. And this practise had been continued by 16 the British. A number of Quebec merchants, however, 17 interpreting the Royal Proclamation stipulation of 18 free trade with the Indians as a challenge to such 19 leases, set up their own posts in the King's domain, 20 which was now in the province of Quebec. 21 And the -- over at page 327, my lord. Again the 22 executive council having considered this matter came 23 to the following decision: 24 25 \"Ordered that if Mr. Allsop ...\" 26 27 Was one of the traders. 28 29 \"... or any other person erect buildings upon 30 the lands reserved to the savages in this 31 province by His Majesty's Proclamation, they 32 shall be prosecuted with the utmost rigour of 33 the law.\" 34 35 We have already discussed that the prohibition on 36 making grants, purchases or settlements in the Indian 37 country was not absolute but was qualified by the 38 phrase \"without our especial leave and licence for 39 that purpose first obtained\". And a contemporary 40 example from this period illustrates the circumstances 41 under which the King would grant his especial leave 42 and licence, and provides further evidence of the 43 crucial significance of Indian consent. The fact that 44 the example involves resource development makes this 45 example of particular importance because, as we will 46 demonstrate this later today, much of the subsequent 47 treaty making in Canada has been seen as a legal 24095 Submissions by Mr. Jackson 1 prerequisite to both the renewable and non-renewable 2 resource development. 3 So, we say, my lord, this early example in 4 Canadian territories in itself is a pre-figuration of 5 the treaty making which took place after 6 Confederation. 7 I should advise Your Lordship, Mr. Rush has 8 already dealt with this matter in another context, and 9 I will be going over it again with a rather different 10 focus. I would, however, refer Your Lordship to where 11 Mr. Rush dealt with it in his previous materials. It 12 is at pages 187 to 189, and I should also advise Your 13 Lordship that at pages 187 to 189 the documents which 14 are common documents to the ones I am referring to in 15 the matter I am now going to address, at page 187 to 16 page 189 of the exhibit is mismarked. It says Exhibit 17 1027. The exhibit reference should be 1029. 18 THE COURT: That's at page 187? 19 MR. JACKSON: 187 to 189. A series of exhibit references which 20 should all be 1029. And when Your Lordship gets our 21 disk, that change will have been made on the disk. 22 THE COURT: All right. Thank you. 23 MR. JACKSON: And the episode, my lord, was initiated in 1768 24 when the Crown had received a petition from certain 25 individuals praying a grant under certain conditions 26 of all copper mines in the country circumjacent to 27 Lake Superior. And I should say Mr. Rush had referred 28 to this material to show that trading companies, 29 chartered companies were subject to the terms of the 30 Proclamation. 31 The Board of Trade to whom the petition was 32 referred, and at the top of page 328, my lord, 33 reported to His Majesty that all reasonable 34 encouragement should be given to the discovery and 35 working of such mines, as copper is an article of 36 great importance to the manufacture and commerce of 37 Great Britain. However, because the system adopted by 38 Your Majesty's Proclamation does preclude all 39 establishments in the interior country adjacent to the 40 Great Lakes, their lordship's recommended that no 41 action be taken until both the Commander-in-Chief in 42 North America and Superintendent had reported by what 43 means the Indians might be induced to consent to such 44 establishments. 45 And General Gage and Superintendent William 46 Johnson, while agreeing with the mining proposal, 47 stressed that no project shall be undertaken until, in 24096 Submissions by Mr. Jackson 1 General Gage's words: 2 3 \"The Indians are fully apprised of everything 4 that is intended to be done, and that they 5 shall give their free and full consent thereto 6 ...\" 7 8 And on page 329, my lord, we recite how in fact 9 the chartered company or its representatives on behalf 10 of the mining adventurers secured the consent to the 11 proposed operations of several of the Indian Nations 12 concerned. And this agreement was confirmed by other 13 chiefs from Lake Superior. 14 And furthermore, we recite how the necessity for 15 and the form of any such consent was specifically set 16 out in the terms of the Royal Charter to the mining 17 adventurers. And there is the citation there that the 18 beneficiaries of this charter are to take and purchase 19 from the Indians or other natives of the said 20 countries all such lands, islands and places as are or 21 shall be necessary to work and carry on such mines. 22 My lord, I want to emphasize here again the 23 continuity between this and what we say happened in 24 the original colonies prior to the revolution. 25 Because we say they bespeak a common policy, a common 26 reflection of fundamental principles which ripened 27 into a common law rule, which we will be dealing with 28 when we get to the Marshall decisions. And if Your 29 Lordship will recall, last week when I was dealing 30 with the patents granted by the Earl of Sterling to 31 early colonists on Long Island, eastern Long Island, 32 those, even though they weren't dealing with copper 33 mines, but the patents granted by the Earl of Sterling 34 to English colonists were and required them to 35 purchase from the Indians lands required for 36 settlement. And so far from there being 37 discontinuity, far from there being the American 38 experience, which Your Lordship can put to one side as 39 a historical interest, which is the province's 40 position and our position, which is that there is a 41 continuous theme here reflecting fundamental 42 principles. This -- what otherwise would be a small 43 incident in the interior of Canada, we say reflects a 44 reflection on the ground of a very large principle. 45 At the bottom of page 329 the Crown also received 46 petitions for its especial leave and licence to settle 47 at military posts in the interior country. In 1767, 24097 Submissions by Mr. Jackson 1 Lieutenant George McDougall asked for a grant of Hog 2 Island, which was situated in the Detroit River 3 opposite the military garrison. And as with the 4 mining grant, the Board of Trade advised His Majesty 5 of the major impediment of such disposal. 6 And at page 330 it follows that no absolute grants 7 of the same can be made consistently with the terms 8 and reservations of the said Proclamation. 9 But the commissioners advised that for a number of 10 reasons Lieutenant McDougall's proposal to grow 11 provisions for the garrison at Detroit was one that 12 should be encouraged. And accordingly His Majesty and 13 council directed the Commander-in-Chief to allow the 14 petitioner a temporary occupation. 15 Now, the way in which this directive was 16 interpreted on the ground by the Commander-in-Chief 17 can be seen in the order which General Gage gave to 18 Captain Turnbull, the Post Commandment. \"As Mr. 19 McDougall's occupying these lands depends upon the 20 sufferige of the Indians who have claims thereto\". 21 You will recall, my lord, the province's position, 22 Indian rights exist at the sufferance of the Crown. 23 Here is a Crown official describing a character of the 24 relationship between the rights of the Crown and the 25 rights of the Indians as Mr. McDougall's occupying 26 these lands depends upon the \"sufferige of the Indians 27 who have claims thereto\". \"It will be necessary that 28 these Indians should...publicly signify to you or 29 rather give a written acknowledge of their consenting 30 to the cession of these lands in favour of Mr. 31 McDougall.\" 32 And, my lord, you might note that this particular 33 transaction was the subject of specific comment by Mr. 34 Justice Gwynne in St. Catherine's Milling case. 35 Again, as evidencing to His Lordship the fact that the 36 Proclamation and its principles were applied 37 vigorously and rigerously within the old province of 38 Quebec. 39 And accordingly an indenture was made in Detroit 40 on May the 5th, 1769 between Captain Turnbull and 41 certain chiefs of the Ottawa and Chippewa Nations who 42 signed for themselves and by the consent of the whole 43 of the said nation of Indians. 44 THE COURT: My trouble with that, Mr. Jackson, looks to me like 45 they are just getting around to the prohibition for 46 which you contend by calling a grant a temporary 47 occupation and telling them to go ahead anyway. 2409? Submissions by Mr. Jackson 1 MR. JACKSON: Well, my lord, the temporary occupation is on 2 conditions that -- 3 THE COURT: How long did it last, I wonder? 4 MR. JACKSON: Well, let's see. The document was signed in 1769, 5 and it seems that this occupation began in 1768. So 6 it was a relatively short temporary occupation prior 7 to the consent being granted. 8 The bottom of page 331, my lord. 9 While within the Indian territory settlement was 10 in exceptional cases permitted with His Majesty's 11 leave and licence, and subject to obtaining the 12 consent of the Indians, without that permission 13 private purchases were null and void. And this point 14 was made very clear by General Gage in 1771 in 15 relation to a number of individuals who were claiming 16 lands on both sides of the Detroit River by the 17 military posts on the basis of grants from past French 18 and British commanders. General Gage advised the 19 military commander at Detroit: 20 21 \"That the King has not invested any person 22 whatever with the power of granting lands in 23 America, except to his governors within the 24 limits of their respective provinces; and under 25 certain forms and restrictions, and where any 26 purchase is made of the Indians though within 27 the limits of the provinces, they are not 28 valid, unless permission is given so to do, and 29 purchase is made in the presence of the 30 governor.\" 31 32 And I would turn, my lord, to page 333 for some 33 further evidence of the way in which Crown 34 representatives sought to ensure respect for the 35 integrity of Indian lands and for the provisions of 36 the Royal Proclamation. And this is in the form of 37 a -- the action of Frederick Haldimand, who was 38 General Gage's successor, who being apprised of the 39 fact that various individuals purchased lands in the 40 territories of the Illinois Indian nation, issued a 41 further Proclamation in 1774 which, after repeating 42 the provisions of the original Proclamation stated 43 that \"all purchases made of the Indians of any part of 44 the lands reserved to them by the said Royal 45 Proclamation will be considered as void and 46 fraudulent, and no one will be permitted to establish 47 themselves there unless the said lands are purchased 24099 Submissions by Mr. Jackson 1 in the manner prescribed in the aforesaid 2 Proclamation.\" 3 Mr. Rush has previously recited to Your Lordship 4 how the Quebec Act in 1774 shifted the boundaries of 5 Quebec westward to the Mississippi, and how pursuant 6 to Royal instructions civil government was introduced 7 into the territory. Whereas hence before the 8 administration of justice within the territory had 9 been left under a general mandate of the governor of 10 the forces, the armed forces, General Gage. 11 We say, my lord, at the bottom of page 334 that 12 these provisions establishing civil government within 13 the new expanded Province of Quebec, that from 14 contemporary documents it is apparent that the 15 provisions of the civil government in the expanded 16 territory were intended to be for whites and not 17 Indians. Thus, in September 1774 Thomas Gage, the 18 Commander-in-Chief, replied to a query from Sir 19 William Johnson's successor Guy Johnson about the 20 application of the Act to Indians. He said: 21 22 \"I imagine there must be some mistake in what 23 you mention respecting the Indians of Canada 24 being subject for the future in all things to 25 the law of England, Indians are commonly left 26 to their own useages and customs in most 27 things, perhaps they may have been informed 28 that in case of murder or robbery they would be 29 tried agreeable to English law. You will know 30 before this reaches you, that the French laws 31 in most instances are to have force in Canada, 32 but I don't imagine the Indians are much 33 interested in this matter.\" 34 35 It was the view of Quebec government officials 36 that, within the new portions of the province of 37 Quebec, the land purchase provisions of the Royal 38 Proclamation of 1763 still applied. And Mr. Rush in 39 his submissions to you has already addressed the 40 opinion of the Court of Appeal of Ontario in the Bear 41 Island case, and we have taken the position that to 42 the extent the Ontario Court of Appeal expressed the 43 opinion without reasons, that the land purchase 44 provisions of the procedural provisions of paragraph 45 4, a requirement that Indian lands be acquired only in 46 public council with the Indians, their opinion that 47 that was repealed by the Quebec Act is in fact per 24100 Submissions by Mr. Jackson 1 incuriam, and it is not something which Your Lordship 2 should follow. 3 We make the further submission at the bottom of 4 page 335 that an analysis of contemporary documents 5 shows that while the Proclamation was amended so far 6 as Quebec was concerned to the extent that it provided 7 for the exercise of several jurisdictions within those 8 areas which hitherto had been part of the Indian 9 reserve, it did not alter the application of the legal 10 requirement for the purchase of lands still in the 11 possession of the Indians in accordance with the 12 Proclamation's protocol of treaty making. And the 13 plaintiffs' submissions on this matter are supported 14 by the detailed and extensive analysis of Mr. Justice 15 Gwynne in St. Catherine's Milling. 16 As an example of such contemporary documents, in 17 August 1778 Frederick Haldimand, by then Governor of 18 Quebec, criticized the Lieutenant-Governor and 19 Superintendent of Detroit, one of the areas brought 20 within the Province of Quebec by the 1774 legislation, 21 for allowing settlers who were fleeing the 22 revolutionary war, to take up lands at the post. 23 Haldimand stated that grants of lands cannot be made, 24 but in a regular manner through the governor general. 25 And we go on to give some indication of what the 26 regular manner contemplated in that response was. 27 And this is Mr. Hamilton's response: 28 29 \"I am to observe to your Excellency I have never 30 taken upon me to grant lands at this place, on 31 the contrary, I convened the principle 32 inhabitants, and the chiefs of the neighbouring 33 nation, read to them the Proclamation relative 34 to purchases from the Indians and told them 35 that no deeds should be considered valid until 36 passed by the authority of the chief governor, 37 registered at Quebec and entered at the office 38 in this place, further that they should be 39 drawn out fair on parchment, and publicly 40 witnessed by the chiefs of the respective 41 nations.\" 42 43 And the application of the land provision is also 44 clearly seen in purchases of Indian lands made in 1780 45 and 1781. Thus in July 1780 Governor Haldimand 46 directed Colonel Guy Johnson of the Indian department 47 to purchase for the King, upon the most advantageous 24101 Submissions by Mr. Jackson 1 terms in your power to obtain, the tract of land 2 belonging to the Messessaugas opposite Fort Niagara. 3 Stated reasons for the purchase was, among other 4 things, to provide for the better accommodations and 5 support of His Majesty's loyal subjects who, drawn 6 from their homes, take refuge at Niagara. 7 The fort itself was situated on the west side of 8 the Niagara River, in what is now New York state, on 9 grounds purchased in 1764 from the Seneca Indians. 10 The deed which Colonel Johnson obtained from the 11 Mississaga and Chippeweigh Indians on May 9th, 1781 12 was designed to make and perfect the earlier cession, 13 these particular Indian Nations not having taken part 14 in it, as well as to acquire the additional lands 15 required by Haldimand. 16 And on page 338. In forwarding the cession to 17 Governor Haldimand, Colonel Johnson stated that it was 18 made out in the usual form. And in fact the form, 19 which is that of a contract for the sale of land, is 20 taken from the Treaty of Fort Stanwix of 1768, and 21 like that earlier treaty, this deed was executed in 22 accordance with the Royal Proclamation of 1763. Thus, 23 the meeting was public and the agreement was made by 24 various Sachems and Chiefs of the Chippewa and 25 Mississagas inhabiting at or near Wegh-queta at the 26 head of Lake Ontario in the vicinity of Niagara on 27 behalf of ourselves and all our people here convened 28 by Colonel Guy Johnson. The cession was made to the 29 Crown, and the deed is in standard conveyancing terms 30 as Your Lordship saw in the Fort Stanwix's deed. 31 On May the 22nd, 1784, the Crown obtained a 32 further cession, which included most of the Niagara 33 Peninsula - from other sub-groups of the Missisaga 34 Nation. In this deed certain \"Sachems War Chiefs and 35 Principal Women of the Mississaga Indian Nation\" 36 agreed to \"grant, bargain, sell, alien, release and 37 confirm under His ...\" 38 THE COURT: That should be \"unto\", shouldn't it, instead of 39 \"under\", or is it \"under\"? 40 MR. JACKSON: We'll have to check the original, my lord, but 41 Your Lordship is probably right. 42 THE COURT: Could be either. 43 MR. JACKSON: We'll check that and advise Your Lordship 44 accordingly. 45 We say that this deed also bears close scrutiny 46 because in it there is a clear characterization again 47 of the nature of the Mississagas' interest in the 24102 Submissions by Mr. Jackson 1 lands they are ceding. 2 And you will see at page 338 and 339 the nature of 3 that interest is the true, lawful and rightful owners 4 of the lands. So again we have language executed, 5 drafted by the British which reflects a legal 6 characterization, and with which describes the Indian 7 interest in what are unambiguously legal 8 characteristics. 9 As Mr. Morrison testified before Your Lordship, 10 the treaty council leading up to execution of this 11 deed with the Mississagas was attended not only by the 12 Mississagas themselves, but also by the chiefs of the 13 Six Nations. And the treaty council was executed, was 14 conducted in accordance with the same protocol as 15 characterized pre-Proclamation Covenant Chain 16 treaties. And the reason for the attendance of the 17 Six Nations was one to which we will return. It was 18 in fact to obtain a cession from the Mississagas to 19 the Crown of lands which in turn were granted to the 20 Six Nations as their new homelands within Canada 21 following their becoming refugees from the United 22 States as a result of the American Revolution. And we 23 will be coming back to that shortly. 24 We say at the bottom of page 339 that the 25 requirement of Indian consent at every stage of 26 European penetration into the province of Quebec's 27 immediate hinterland is further demonstrated by the 28 instructions given by Lieutenant Governor Henry 29 Hamilton, to the Deputy-Survey -- that should be 30 Surveyor General John Collins to survey the 31 communication between the Bay of Quinte and Lake Huron 32 by way of Lake Simcoe in 1785. Collins was directed 33 to determine the Indian tribes on the communication, 34 their numbers, disposition, as well as what tract of 35 land it may be necessary to purchase and at what rate. 36 Collins met with the Mississaga at Lake Simcoe and 37 according to the minutes of that conference it was 38 unanimously agreed: 39 40 \"That the King shall have a right to make roads 41 through the Missisaga country, that the 42 navigation of the rivers and lakes shall be 43 open and free for all his vessels and those of 44 his subjects ...\" 45 4 6 And as Mr. Morrison gave evidence from the 47 analysis of contemporary documents, this purchase 24103 Submissions by Mr. Jackson 1 required two agreements. The first is embodied in the 2 indenture and is identical in wording to the Niagara 3 purchase of 1784. 4 Of some significance, my lord, a crucial part of 5 this document, the delineation of the proposed 6 boundaries was not filled in, and this omission caused 7 the government of Upper Canada considerable anxiety a 8 decade later. 9 And on January -- in January of 1794 Lord 10 Dorchester declared the deed of 1787 of no validity. 11 Although he stated that no fraud was intended, it was, 12 however, an omission which will set aside the whole 13 transaction and throw us entirely upon the good faith 14 of the Indians for just so much lands as they are 15 willing to allow. 16 And accordingly, in 1806, a further indenture was 17 signed by the chiefs, warriors and people of the 18 Mississauga Nation, which recited that the previous 19 deed was defective and imperfect and confirmed the 20 previous cession in what has become known to history 21 as the Toronto purchase. 22 My lord, I would like you to look at these 23 documents. They are to be found in Exhibit 1207, my 24 lord. Is a selection of treaties made between the 25 British Crown and Indian Nations in what is now 26 Canada. From 1779 down to 1870. And the particular 27 treaty we are talking about can be found in tab 5. 28 And if Your Lordship has tab 5 on page 32 under the 29 heading number 13. 3 0 THE COURT: Yes. 31 MR. JACKSON: You will see that the indenture -- of course this 32 has been typed up from the original handwritten 33 document. You will see that if you go over to page 34 33, in the second blank: 35 36 \"All that tract or parcel of land laying and 37 being,\" 38 39 And then there is a blank. 40 41 \"Together with the woods, ways, paths ...\" 42 43 What was not put in there was the description of 44 the land. And it was this lack of a description of 45 the territory which Lord Dorchester drew attention, 4 6 and which led to the further deed. And the further 47 treaty or deed is set out at page 34. And you will 24104 Submissions by Mr. Jackson 1 see it's a full version and it has a proper 2 description of the territory to be ceded. 3 THE COURT: Where is that? 4 MR. JACKSON: This is at page 34 to 35. 5 THE COURT: Yes. 6 MR. JACKSON: Which is the 1806 so-called Toronto purchase. 7 THE COURT: Yes. 8 MR. JACKSON: And Your Lordship will note the third paragraph of 9 the deed, which begins \"and whereas in pursuance of 10 that agreement\". 11 THE COURT: Yes. 12 MR. JACKSON: At the very end of the recital says \"which said 13 instrument\", this is the earlier, \"did not ascertain 14 or describe that parcel of land meant and intended to 15 be conveyed thereby and was and is in other respects 16 defective and imperfect.\" And it was to rectify and 17 redress that legal imperfection. 18 THE COURT: And then the next paragraph there is a metes and 19 bounds description? 2 0 MR. JACKSON: That's right, my lord. 21 THE COURT: Yes. This is not for the City of Toronto. 22 MR. JACKSON: It's around Lake Ontario, my lord, but I don't \u00E2\u0080\u0094 23 THE COURT: I thought it said Lake Simcoe. It was Quinte Bay 24 and Lake Huron by way of Lake Simcoe. So it's -- 25 MR. JACKSON: Some distance from Toronto. 26 THE COURT: I don't know how far that would be. 300 miles from 27 present Toronto? 200? Ms. Koenigsberg would know. 28 MS. KOENIGSBERG: Simcoe isn't 200 miles, probably within 100 2 9 miles. 30 THE COURT: 100 miles. All right. Its been called the Toronto 31 purchase. 32 MR. JACKSON: Its been called the Toronto purchase. 33 THE COURT: All right. I think we are almost halfway through 34 the adjournment we are going to take -- halfway 35 through the morning, so we'll adjourn now please. 36 THE REGISTRAR: Order in court. Court stands adjourned for a 37 short recess. 38 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS) 39 I HEREBY CERTIFY THE FOREGOING TO BE 40 A TRUE AND ACCURATE TRANSCRIPT OF THE 41 PROCEEDINGS HEREIN TO THE BEST OF MY 42 SKILL AND ABILITY. 43 4 4 4 5 LORI OXLEY 4 6 OFFICIAL REPORTER 47 UNITED REPORTING SERVICE LTD. 24105 Submissions by Mr. Jackson 1 (PROCEEDINGS RESUMED AT 11:15 a.m. PURSUANT TO AN 2 ADJOURNMENT) 3 4 THE REGISTRAR: Order in court. 5 THE COURT: Mr. Jackson. 6 MR. JACKSON: Thank you, my lord. Before we took the break, we 7 were dealing with the 1086 Perfection of the 1787 Deed 8 and there were several comments I wish to make 9 regarding that deed, my lord. And at page 341 in the 10 last paragraph we say that the process of perfecting 11 the previous Deed because of legal irregularities is 12 one which parallels the process which we have already 13 documented in the early days of colonial settlement on 14 the Eastern Seaboard in the 17th century. There is a 15 process which speaks clearly and unequivocally to the 16 legal significance of Indian consent to the 17 acquisition by the Crown of Indian lands. 18 And again, my lord, I point to the continuity 19 between free revolutionary American experience in 20 British colonies and the post-Proclamation experience 21 in British Canadian colonies. 22 The comments of Lord Dorchester, which I have 23 previously recited and I would take your lordship back 24 to them at page 341, where Lord Dorchester, in 25 expressing his concerns about the effects about the 26 imperfection of the 1787 cession said that this was an 27 omission which will set aside the whole transaction 28 and throw us entirely upon the good faith of the 29 Indians for just so much lands as they are willing to 30 allow. And I would like your lordship to raise the 31 question in your mind of how that can be squared with 32 the characterization of aboriginal rights of Indian 33 peoples as being dependent upon the good will of the 34 sovereign. The extent to which Lord Dorchester 35 understood the effects of the Proclamation as being 36 ones which -- where they were not complied with in pit 37 and substance the Crown did not acquire title to those 38 lands such as to permit it to make grants and to 39 proceed with settlement. Lord Dorchester saw that 40 cession in perfect form as a condition, a legal 41 condition precedent to the acquisition by the Crown of 42 rights, not at the pleasure of the Crown. 43 THE COURT: All right. Well, you have asked me a question and 44 with typical lawyer-like skepticism for which we are 45 so famous. Let me ask you whether these were lands 46 which were occupied by the Indians as a building site 47 or were they hunting lands? 24106 Submissions by Mr. Jackson 1 MR. JACKSON: It is my understanding, my lord, that these were 2 hunting lands. 3 THE COURT: That seems to me that that might on some view of the 4 evidence make a difference. Unlike the land alongside 5 the Detroit, this isn't the same category of a 6 well-known waterway I wouldn't think though, but I 7 don't know that. But you understand these are hunting 8 lands. 9 MR. JACKSON: I understand in terms of the area ceded, my lord, 10 that they would have included hunting lands although 11 they may include other lands. We can endeavour to 12 make some further inquiries on that but it would be 13 our submission that nothing would turn on the 14 difference in terms of the necessity for the Crown to 15 obtain Indian consent to develop or settle those 16 lands. 17 THE COURT: Well, there are so many things to inquire about, Mr. 18 Jackson, I will leave it with you. 19 MR. JACKSON: I think not in terms of your lordship having to 20 direct immediate scrutiny to the question but as a 21 question to which I will return on more than one 22 occasion. 2 3 THE COURT: Thank you. 24 MR. JACKSON: And in fact the next occasion, my lord, is 25 immediately. 26 THE COURT: Usually is. 27 MR. JACKSON: And I refer your lordship to the statements made 28 by Mr. Justice Steele, in the Bear Island case 29 wherein, referring to the treaty-making during this 30 very period, he characterized it as matters of policy 31 and not of law. And his lordship said: 32 33 \"There was a great deal of evidence introduced 34 relating to the Crown's policy of enforcement 35 of the Royal Proclamation in the early years 36 after the proclamation. This evidence shows 37 that the Crown had a policy of leaning over 38 backwards to accommodate the Indians so as to 39 prevent any misunderstandings. For example, 40 with respect to the treaties in the Niagara 41 Peninsula and south-western Ontario, where 42 errors in description were found, the Crown 43 went back and made a new treaty. I am of the 44 opinion that this was done primarily because 45 the Crown did not want to have another Pontiac 46 rebellion on its hands, and therefore it was 47 prudent policy to act in this manner.\" 24107 Submissions by Mr. Jackson 1 2 Now, my lord, we say that Mr. Steele is wrong. We 3 say that his attempted recharacterization of the 4 Crown's lawful obligations to acquire Indian lands by 5 consent as merely prudent policy is wrong in law and 6 is controverted by the evidence which has been placed 7 before this Court. And I ask your lordship again to 8 question why, if this was mere policy, would a further 9 deed be made in the specific ways in which it was, if 10 it is mere policy? If it's mere -- 11 THE COURT: You say it was done because the previous one was 12 null and void? 13 MR. JACKSON: We say it was done because the previous one was 14 null and void and as a matter -- as a legal 15 requirement to perfect the Crown's title the further 16 deed was done. If it was policy, if it was mere 17 prudence, the Indians believed they had sold the land 18 already. Why was it necessary to go back and to get a 19 perfect form document unless, unless that was the 20 route of the Crown's title, unless that was the 21 document needed as a matter of law for the Crown to 22 show it had acquired the lands in accordance with what 23 we say are fundamental principles in accordance with 24 the Royal Proclamation? It bespeaks legality, it is 25 infused with the language of the law. We say that Mr. 26 Justice Steele, in characterizing this as mere matters 27 of policy, is simply wrong. It is wrong as a matter 28 of a historical record and we will say that it's wrong 29 as a matter of characterizing the nature of the 30 Crown's obligations. 31 THE COURT: Of course even then the deed could have been 32 rectified. 33 MR. JACKSON: The deed could have been rectified. 34 THE COURT: By the omission \u00E2\u0080\u0094 by filling in the omitted 35 description if the evidence was available. 36 MR. JACKSON: The Crown \u00E2\u0080\u0094 my point, my lord, is I think the 37 extent that this was policy, one would have thought 38 the Crown would have resorted to the least legalistic 39 methods of perfecting to the extent that it is law. 40 One would suspect they did exactly the way they did 41 which was to go to the most legalistic way out of 42 abundant caution to ensure that the Crown had the 43 right as a matter of law to these lands, and this 44 again is the situation which we say was reflected in 45 the early colonial period. You may recall, my lord, I 46 gave your lordship one example of where a settler had 47 acquired land; dispute arose as to whether or not the 2410? Submissions by Mr. Jackson 1 particular Indian settler had title and there was an 2 inquiry as to whether or not the title was split, and 3 the document recited very carefully the chain of 4 title. And I say to your lordship it reminded me of 5 when I was doing my articles in a solicitor's firm and 6 the way in which we had -- and the old English system 7 traced the route of title and something thankfully 8 people don't have to do in British Columbia anymore. 9 This document I would submit is meant to be part of 10 the tracing of that route of title. It is not a 11 matter of policy, it is a matter of law. 12 THE COURT: This reminds me of a mortgage, million dollar 13 mortgage without a charging section that I recall in 14 time had to be rectified. Some embarrassment of some 15 lawyers but it was straightened out. 16 MR. WILLMS: My lord, it should be noted the quote doesn't end 17 on 341 where my friend ends it. It does carry on. 18 There should be three dots there. 19 THE COURT: Mr. Justice Steele's? 20 MR. WILLMS: No, at 341, the quote from Lord Dorchester after 21 the word \"allow\", there should be three dots because 22 there is something that follows which may answer some 23 of my friend's questions. 24 THE COURT: Well, look forward to hearing you from about that, 25 Mr. Willms. 26 MR. JACKSON: My lord, at page 343, Mr. Morrison, in his 27 evidence, referred to a number of other exchanges and 28 transactions which provide further evidentiary support 29 for the Crown's recognition of the pre-existing rights 30 of Indian Nations and the need for strict adherence to 31 the legal procedures for the acquisition of these 32 lands for settlement and development. And the bottom 33 of page 343, we recite the documentary record of the 34 Land Committees of the Executive Council of the 35 Province of Quebec 1788 also reveal applications by 36 Loyalist soldiers for grants of lands still in the 37 possession of the Indians. The prayers or the 38 grants -- the prayers of the grants were founded on a 39 presumption the Government will shortly purchase that 40 tract and distribute it among the loyalists. 41 And in relation to one such petition, the 42 committee stated: The petitioner states that the land 43 he applies for is the Indian property. The Committee 44 cannot recommend a grant of lands which do not 45 appertain to the Crown. 46 The last Indian purchase made by the Crown before 47 the division of the Province of Quebec took place in 24109 Submissions by Mr. Jackson 1 1790. In April of the previous year, Lord Dorchester 2 appointed a Board for receiving applications for 3 grants of parcels of the waste lands of the Crown in 4 the district of Hesse, which encompassed that part of 5 the province west of Long Point on Lake Erie, 6 including the old French enclave at Detroit. The 7 board, having received various petitions or grants, 8 advised the Governor: 9 10 \"They cannot comply with the general scope of 11 those Instructions by reason that in their 12 competence, the Crown is actually possessed of 13 no waste Lands free from claims of Indians or 14 others and to state their opinion that a 15 purchase be made as soon as may be from the 16 Indians of the Lands from Long Point in Lake 17 Erie to Lake Huron, suggesting as the Grounds 18 of such opinion the uniform reserve of His 19 Majesty in Council not to grant any waste 20 Lands within the Province without a previous 21 treaty with the Natives as proprietors of the 22 Soil...\" 23 24 And page 345, following the Land Board's advice, the 25 treaty was indeed made. By its terms, the principal 26 Village and War Chiefs of the Ottawa, Chippewa, 27 Pottawatomy and Huron Indian Nations of Detroit sold 28 to His Majesty by and with the consent of the whole of 29 the said Nation of a defined area. And the bottom of 30 that paragraph, my lord, among its various 31 stipulations, the deed states that the said Nations 32 ... have put His said Majesty in full possession and 33 seizin by allowing houses to be built upon the 34 Premises. And that again is a document which was not 35 only put in evidence in this case, it is a document 36 which is relied upon by Mr. Justice Gwynne, in the 37 judgment of St. Catherine's Milling. 38 In August of 1791, the same month as the Province 39 of Quebec was divided into Upper and Lower Canada, 40 Lord Dorchester addressed an assembly of the 41 Confederated Indian Nations of the Ottawas, Chippewas, 42 Pottowatomy, Huron, Shawnee, Delaware and the Six 43 Nations in Quebec. And this is a very important 44 speech, my lord, and in the course of it, Lord 45 Dorchester directed himself to the recent war with the 46 United States and the rumours that had circulated 47 among the Indian Nations regarding the effect of the 24110 Submissions by Mr. Jackson 1 outcome of the war on their territories. Lord 2 Dorchester, in addressing the assembled Indians said: 3 4 \"You have told me there were people who say, 5 that the King, Your Father, when he paid peace 6 with the United States, gave away your lands to 7 them. 8 Brothers, 9 I cannot think that the Government of the 10 United States would hold that language; it must 11 come from ill-informed individuals; you know 12 well, that no man can give, what is not his 13 own. 14 When the King made peace and gave independence 15 to the United States, he made a treaty in which 16 we marked out a line between them and him; this 17 implies no more than that beyond this line he 18 would not extend his interference... 19 The King's rights with respect to your 20 territory were against the Nations of Europe; 21 these he resigned to the States. But the King 22 never had any rights against you but to such 23 parts of the Country as had been fairly ceded 24 by yourselves with your own free consent by 25 Public convention and sale. How then can it 26 be said that he gave away your lands? 27 28 Now, my lord, it is our submission that Lord 29 Dorchester was an honourable man. He was not only an 30 honourable man, in this statement he also demonstrated 31 that he had a sound grasp of the common law. We say 32 that within that statement is an affirmation of what 33 we say are the fundamental principles of the common 34 law. He goes on: 35 36 \"So careful was the King of your interests, so 37 fully sensible of your rights, that he would 38 not suffer even his own people to buy your 39 lands without being sure of your free consent 40 and of ample justice being done you. He 41 therefore ordered his Superintendent General, 42 Sir William Johnson, the father of your friend, 43 to be present at all treaties between you and 44 his colonial Government to see that you were 45 fairly dealt with; bargains with private 46 individuals were forbid, and considered as 47 void.\" 24111 Submissions by Mr. Jackson 1 2 And we say this is again an authoritative assertion by 3 a representative of the Crown of the position 4 governing relationships between Indian Nations and the 5 Crown. We say, my lord, that it is particular 6 authority because it is mirrored in turn by similar 7 assertions made by American commissioners much -- at 8 much the same time. 9 Page 347. The legal proposition that the 10 assertion of sovereignty by a European power did not 11 negate the pre-existing proprietary interests of the 12 indigenous population and the treaties between 13 European nations regarding territory in North America 14 did not derogate from the rights of the Indian Nations 15 was also affirmed in a speech of the Commissioners of 16 the United States made in 1793 on the American side of 17 the Detroit River by the Commissioners of the United 18 States. These Commissioners addressed the same 19 assembly of the Confederated Indian Nations who had 20 been addressed by Lord Dorchester. They dealt with 21 similar concerns of the Indian Nations regarding the 22 effect of Anglo-American negotiations on their 23 territories and confirmed Lord Dorchester's 24 interpretation that the Treaty of Versailles only 25 dealt with the rights of the European nations as 26 between themselves. Referring to the King's rights, 27 the Commissioners stated: 28 29 \"...As he had not purchased the Country of you, 30 of course he could not give it away. He only 31 relinquished to the United States his claim to 32 it. That claim was founded on a right acquired 33 by treaty, with other White Nations to exclude 34 them from purchasing or settling in any part of 35 your country; and it is a right which the King 36 granted to the United States. Before that 37 grant, the King alone had a right to purchase 38 of the Indian Nations any of the lands between 39 the Great Lakes, the Ohio and the Mississippi 40 ... and the King by the Treaty of Peace, having 41 granted this right to the United States, they 42 alone had now the right of purchasing. So that 43 now, neither the King nor any of his People 44 have any right to interfere with the United 45 States in respect to any part of those lands. 46 Your brothers, the English, know this to be 47 true; and it agrees with the declaration of 24112 Submissions by Mr. Jackson 1 Lord Dorchester, to your deputies at Quebec two 2 years ago.\" 3 4 At page 348, my lord, the Commissioners, at the end of 5 their speech, speaking on behalf of the President of 6 the United States, restated what they understood to be 7 the legal rights of the Indian Nations and the claims 8 of the Crown and the United States. 9 10 \"We now concede this great point; we by the 11 express authority of the President of the 12 United States, acknowledge the property or 13 right of soil, of the great Country above 14 described, to be in the Indian Nations so long 15 as they desire, to occupy the same. We only 16 claim particular tracts in it, as before 17 mentioned, and the right granted by the King, 18 as above stated, and which is well known to 19 the English and Americans, and called the 20 right of pre-emption, or the right of 21 purchasing of the Indian Nations disposed to 22 sell their lands, to the exclusion of all 23 other White People whatever.\" 24 25 Now, the significance of that passage, my lord, is 26 that those very propositions are the propositions 27 which Chief Justice Marshall in a series of case 28 decided in the 1820s and '30s, stated to be the 29 fundamental principles of the common law; that the 30 assertion of sovereignty by European nation only gives 31 right of pre-emption against other European nations, 32 it is a right to purchase of the Indian Nations those 33 lands they are disposed to sell. And of course, my 34 lord, that is also the fundamental propositions which 35 we say is reflected in the Royal Proclamation. And so 36 on both sides of the border, on the American side and 37 on the British side, we have ringing declarations of 38 the rights of the Indians enunciated by 39 representatives of the Crown which reflect what was 40 happening on the ground but, more important, which 41 reflect what we say are the fundamental principles 42 which had been evolving and which had by this time 43 ripened into rules of the common law. And the 44 symmetry, my lord, of the principles is not 45 happenstance, it is a symmetry which reflects the fact 4 6 that they are common principles emerging from a common 47 heritage. And as Chief Justice Marshall says in 24113 Submissions by Mr. Jackson 1 Worcester v. Georgia and as Mr. Justice Gwynne 2 re-affirms in his judgment in the St. Catherine's 3 Milling case, those principles were a common set of 4 principles in both American and the British colonies. 5 My lord, for your note, at the first quote from the 6 American Commissioners, which is not referenced, the 7 top of page 348, that is at page 408 of Exhibit 1029 8 tab 24. 9 THE COURT: Yes, that's mentioned here. 10 MR. JACKSON: That's for the second quote, my lord. If you go 11 to the very top of the page 348, that should be page 12 408, and the second quote is 408 to 409. 13 THE COURT: Thank you. 14 MR. JACKSON: I want to turn now, my lord, to the experience in 15 Upper Canada. And at page 348, we say that in 1791 16 the Province of Quebec was divided into two separate 17 provinces. In the 1791 Constitution Act, in providing 18 the 10,000 or so Loyalist settlers of Western Quebec 19 now Upper Canada, with among other things, an elected 20 Assembly and English property laws, did not affect the 21 manner in which the lands were to be acquired for 22 settlement. The lands in possession of the Indians 23 had to be purchased from them in accordance with the 24 principle of consent is clear from the despatch from 25 the Lieutenant-Governor of Upper Canada, John Simcoe, 26 to the Secretary of State for the Home Office. Simcoe 27 was anxious for the Secretary's directions, it appears 28 to me to be of infinite importance to the Prosperity 29 of colony of Upper Canada to purchase a tract of Land 30 from the Indians of which I shall subjoin a more 31 particular description. And that tract, which lay on 32 Lake Huron, is marked on a map which Simcoe included 33 in his despatch, which he described in the following 34 terms: 35 36 \"I do myself the Honour of enclosing to you a 37 Sketch of part of Upper Canada by which you 38 will see where the Indian Title is extinct by 39 British purchases and where it exists in its 40 original possessors....\" 41 42 At the bottom of the page: On the map itself, the -- 43 and that is page 118 to 119 of Exhibit 1029-25, my 44 lord. On the map itself, the lands purchased from the 45 Indians represent the various tracts acquired by the 46 Crown between 1783 and 1790; the Indian lands covered 47 the rest of that part of Upper Canada shown on the 24114 Submissions by Mr. Jackson 1 map, basically up to the North Shore of Lake Huron. 2 And we say that when Governor Simcoe wrote of 3 preserving unceded Indians lands from encroachment, he 4 had in mind the provisions of the Royal Proclamation. 5 And we cite there the response which the 6 Surveyor-General of Upper Canada made, Joseph Brant, 7 who applied for certain grants on Burlington Bay and 8 was informed that those lands are not purchased from 9 the Mississauga Nation, and that the King's 10 Proclamation in 1763 totally prohibits any of His 11 Majesty's Subjects from settling on Indian Lands, and 12 that correspondence was previously referred to by Mr. 13 Rush at page 277 of his submissions earlier in the 14 volume you have before you, my lord. 15 The area in which Captain Brant had unsuccessfully 16 sought a land grant, Burlington Bay, was also an area 17 in which there was a series of contested claims to 18 lands, the resolution of which illustrates the effect 19 of a Crown grant of unsurrendered Indian lands. In 20 1784, the lands around Burlington Bay, along with most 21 of the Niagara Peninsula, had, as we have already 22 seen, been purchased by the Crown from the Mississauga 23 Indians. By 1792, most of the lake front areas had 24 been surveyed and lots granted to Loyalist settlers by 25 the Land Board by the District of Nassau. But as lots 26 near Burlington Bay were parcelled out, it became 27 clear that the description of the lands surrendered in 28 1784 was erroneous and that lands which had been 29 granted were not included within the original cession. 30 And therefore in December 1792, Governor Simcoe 31 obtained a fresh deed from the Mississaugas which 32 explained and confirmed the original cession and 33 established a line drawn northwest from the outlet of 34 Burlington Bay for a distance of 50 miles as the 35 eastern boundary. An issue arose as to the legal 36 status of the lands already granted in the areas not 37 included in the original 1784 Deed of Cession. And at 38 the bottom of the page, my lord, I go on to recite how 39 that issue is resolved. 40 The acting Surveyor-General addressed this issue 41 of the validity of grants made in the disputed area 42 and expressed the following opinion: 43 44 \"A short time after the purchase was extended to 45 a northwest line from the outlet of Burlington 46 Bay, His Excellency the Lieutenant-Governor 47 directed information to be given to the 24115 Submissions by Mr. Jackson 1 Gentlemen claiming Lands on the North side of 2 the said Bay, saying he had not the least 3 objection to their having these lands, but they 4 must petition the Council for their Grants, as 5 they could not hold them by any former 6 assignments made by the Land Board for that 7 place, they being illegal when given owing to a 8 mistake in the original deed.\" 9 10 In other words, these were applications for lands 11 which were not included in the original deed. And 12 therefore the land grant, in making grants, had no 13 jurisdiction to do so. 14 In October of 1796, the Joneses, Augustus and 15 Ebeneezer, petitioned the Executive Council for 16 confirmation after their original assignments from the 17 Land Board of Nassau. The same lands had been the 18 subject of a further grant in June of 1794 to the 19 McDonells. The Executive Council ruled in favour of 20 the earlier grant on the following ground: 21 22 Reference being had to the Surveyor-General's 23 Report by which it appears that the lot ... 24 originally granted to the Jones's ... falls 25 within the land allowed by the Messessagues to 26 have been purchased from them in 1784, and 27 consequently within the jurisdiction of the 28 Land Board. 29 30 In other words, this was a grant which was within the 31 original cession and therefore this was a valid prior 32 grant which took precedence. 33 But in other cases in which there was a dispute 34 between those claiming under a grant between 1784 and 35 1792, and those claiming under a post-1792 grant, the 36 Council ruled in favour of the later grantee on the 37 basis that the former could not receive a valid title 38 from the Crown, the lands at the time not being within 39 the jurisdiction of the Land Board, because they were 40 not included in the original cession of 1784. 41 Now, my lord, again is this consistent with Mr. 42 Steele's characterization all this was a mere matter 43 of policy? This has nothing to do with legal 44 recognition of land rights, this meticulous attention 45 to the legal niceties and technicalities of the 46 validities of the routes of title derived from Indian 47 deeds. We say again it bespeaks only an infusion of 24116 Submissions by Mr. Jackson 1 legal recognition of pre-existing legal rights. 2 In December 1794, Lord Dorchester issued 3 additional instructions to the Superintendent General, 4 Sir John Johnson, which elaborated in considerable 5 detail on the purchase procedure set out in the Royal 6 Proclamation. These additional instructions were 7 necessitated by some examples we have already 8 documented of sloppy drafting of some of the earlier 9 deeds. For example, the so-called Toronto purchase. 10 Lord Dorchester, in a letter to the Secretary of 11 State, noted that these new instructions were also 12 necessary because of the dissatisfaction of the 13 Indians with regard to persons who had taken 14 possession of lands which were still claimed by them. 15 Lord Dorchester indicated that these new instructions 16 would require officers of the Crown: 17 18 To attend all such purchases to see that all 19 the principal Chiefs are present, and the 20 bargain made with persons duly authorized on 21 the part of the provincial government, the 22 whole to be conducted with the ancient 23 solemnity as practised by the late Sir William 24 Johnson and according to the King's 25 instructions. 26 27 And those articles, my lord, are set out at page 353 28 and page 354. I would refer you specifically to 29 Article III and IV at page 354. Article III says: 30 31 \"All purchases are to be made in Public Council 32 with great solemnity and ceremony, according to 33 the ancient usages and customs of the Indians. 34 The Principal Chiefs and Leading Men of the 35 Nation or Nations to whom the Lands belong, 36 being first assembled. 37 38 After explaining to the Indians the nature and 39 extent of the bargain, the situation and bounds 40 of the Land and price to be paid, regular Deeds 41 of Conveyance, original, duplicate and 42 triplicate are to be executed in Public Council 43 by the Principal Indian Chiefs and Leading Men 44 on the one part, and the Superintendent-General 45 of the Indian Department...\" 46 47 Again, my lord, the reference to duplicate, triplicate 24117 Submissions by Mr. Jackson 1 deeds is, we submit, a reference not to policy but to 2 legal requirements. We say that these regulations 3 were not limited to Upper Canada. At the time of 4 their issuance in 1794, Lord Dorchester was not only 5 governor of Upper and Lower Canada, but also 6 Commander-in-Chief of His Majesty's forces and 7 Governor of New Brunswick and Nova Scotia. We will be 8 addressing separately at a later point today the 9 colonial record in the Atlantic Provinces. 10 Article II of these instructions is expressed in 11 broad terms, not limited to any particular province. 12 It requires that: 13 14 \"When Indian Territory shall be wanted by any of 15 the King's Provinces...\" 16 17 My lord, over to page 355. 18 The legal conclusion that Indian lands not 19 purchased in accordance with the Royal Proclamation of 20 1763, as affirmed by the Dorchester Instructions of 21 1794, were not within the category of waste lands of 22 the Crown open to grant is supported in minutes of the 23 Executive Council of Upper Canada, 1798. In the 24 course of the report which he presented to Mr. 25 President Russell, John Elmsley, the Chief Justice of 26 Upper Canada, urged, on behalf of the other Council 27 members: 28 29 \"The propriety of making an extensive addition 30 to the waste lands of the Crown by purchase 31 from the Indians, before any steps are taken 32 for carrying the plan into execution.\" 33 34 And Chief Justice Elmsley was anxious to promote such 35 purchases before the Indians found out how much their 36 lands were actually worth and urged that the 37 promulgation of the plan be suspended until we make a 38 purchase sufficiently large to secure to us the means 39 for extending the population and increasing the 40 strength of the province. 41 My lord, with all respect to Chief Justice 42 Elmsley, that comment doesn't seem to be entirely 43 consistent with the honour of the Crown but it is 44 nevertheless consistent with the legal recognition by 45 the Crown of the need for Indian purchases before 46 settlement can proceed. 47 Page 356. Mr. President Russell, in his reply to 2411? Submissions by Mr. Jackson 1 the Report of Council, concurred with the idea of 2 suspending the proposed plan until the government had 3 obtained a sufficient stock of land by additional 4 purchases from the Indians to enable us to proceed. 5 He stated that he would request the Governor General 6 to give directions to the proper officers for treating 7 with the Indian proprietors for an immediate purchase 8 from them to the extent of about 20 townships. In the 9 meantime, the acting Surveyor-General was ordered to 10 prepare for the Council's information a report of the 11 ungranted lands in this province. 12 As Mr. Morrison testified, although the 13 Surveyor-General's report cannot be found in the 14 Archives, some sense of its contents can be gleaned 15 from a map of Upper Canada prepared by the 16 Surveyor-General, published in 1800. 17 The various surveyed townships are shown, among 18 them the Shawnee Township and at Township of London 19 covering those lands acquired from the Chippewas in 20 1796. On the map a huge tract of land north of Lake 21 Simcoe, extending to what is now northeastern Ontario 22 is identified as Chippewa Hunting Territory. 23 What that suggests, my lord, to me in relation to 24 your previous question is that some of those earlier 25 cessions were for townships and some of them obviously 26 were for hunting territories. So the cessions I think 27 were a combination of both types of Indian lands. 28 A final piece of evidence demonstrating the Crown 29 officials did not understand unceded Indian lands to 30 be within the jurisdiction of the province to grant is 31 a Report of the Vacant Lands in Upper Canada prepared 32 by the Surveyor-General in 1815. The Surveyor-General 33 had been requested to report upon all such vacant 34 lands of the Crown in this province as may be most 35 eligibly selected and divided for grants of land to 36 military settlers at the close of the 1812 War with 37 the United States and to industrious families 38 emmigrating from Europe. 39 Annexed to that report is a sketch of the province 40 showing the situation of the Districts with their 41 respective townships, and by a line coloured brown, 42 note the limits of the Indian cessions to the Crown, 43 so far as they are known to this office. A perusal of 44 the sketch shows that all of the townships, as well as 45 the additional vacant lands eligible for grant, fall 46 within the limits of the Indian cessions to the Crown. 47 The Surveyor-General, having set out the 24119 Submissions by Mr. Jackson 1 categories of land which are available for grant, 2 because they had been the subject of Indian cessions, 3 then addressed himself to certain tracts of lands yet 4 in possession of the Native Indians and unconceded, 5 but which from their contiguity to our former 6 possession, may be considered as desirable 7 acquisitions for future extensive settlements. 8 In identifying these lands, he refers to them as 9 lands of which the Indian rights have not been 10 extinguished. 11 We say, my lord, that Lord Dorchester's additional 12 instructions in 1794 confirmed the legal principle and 13 process mandated for the acquisition of Indian lands, 14 Indian consent expressed through treaty. That 15 principle and process remained fundamental in the 16 future development of what is now Ontario. At each 17 stage of the advance of the settlement frontier, the 18 lands required for settlement were purchased from the 19 Indian Nations through the treaty process. And I have 20 referred your lordship already to Exhibit 1207 which 21 sets out the major treaties in this period. 22 The implementation of the principles of process 23 embodied in the Royal Proclamation and the extent to 24 which it was applied with the advance of westward 25 settlement is summarized in the Report of the Royal 26 Commission appointed by the Government of the Province 27 of Canada to inquire into the Affairs of the Indians 2 8 in Canada. 29 And the commissioners, in referring to the Royal 30 Proclamation of 1763, stated: 31 32 \"The subsequent Proclamation of His Majesty 33 George III, issued in 1763, furnished them (the 34 Indian Nations) with a fresh guarantee for the 35 possession of their hunting grounds and the 36 protection of the Crown. This document, the 37 Indians look upon as their Charter. They have 38 preserved a copy of it, to the present time, 39 and have referred to it on several occasions in 40 their representations to the Government.\" 41 42 The Committee summarized this period from 1763 to 43 1845: 44 45 \"Since 1763 the Government adhering to the Royal 46 Proclamation of that year, have not considered 47 themselves entitled to dispossess the Indians 24120 Submissions by Mr. Jackson 1 of their lands, without entering into an 2 agreement with them, and rendering them some 3 compensation. For a considerable time after 4 the conquest of Canada, the whole of the 5 western part of the Upper Province, with the 6 exception of a few military posts on the 7 frontier, and a great extent of the eastern 8 part, was in their occupation. As the 9 settlement of the country advanced, and the 10 land was required for new occupants, or the 11 predatory and revengeful habits of the Indians 12 rendered their removal desirable, the British 13 Government made successive agreements with them 14 for the surrender of portion of their lands.\" 15 16 I will conclude this review of the prospective 17 application of the Proclamation by reference to the 18 Crown's dealings with the Six Nations of Iroquois 19 Confederacy in the post-Proclamation period. We have 20 already addressed parts of that history culminating in 21 the Treaty of Fort Stanwix in 1768 and the fixing of 22 the Proclamation Line, but it is also necessary to 23 consider subsequent developments in the years after 24 the American Revolution. At the outbreak of the 25 American Revolution in 1775, the Six Nations were 26 unable to reach a consensus about the role they should 27 play. Some of the Mohawks and Senecas and a majority 28 of the Oneidas either maintained a neutral posture or 29 campaigned actively alongside the Americans. However, 30 many other members of the Confederacy eventually 31 allied themselves to the British cause, upon giving 32 the assurances by the Governors of Quebec, Sir 33 Carleton and later Sir Frederick Haldimand, that their 34 rights and property in western New York would be fully 35 restored after the War. 36 When hostilities terminated, those members of the 37 Six Nations who had honoured their alliance with Great 38 Britain were anxious to have their lands and rights 39 restored. To their great dismay, they discovered that 40 the Treaty of Versailles in 1783, which brought the 41 war to its conclusion, made no mention of the rights 42 of the Indians. Joseph Brant, a leading Mohawk Chief 43 who had been educated at white schools and had 44 received a commission in the British army in 1783, 45 made known the Iroquois concerns in a speech addressed 46 to Governor Haldimand. In that speech, Joseph Brant 47 traced the historical origins of the Iroquois' 24121 Submissions by Mr. Jackson 1 alliance with the British in the Covenant Chain and he 2 described the Royal Proclamation as the culmination of 3 that process in ways which parallel the ways in which 4 the plaintiffs have urged upon your lordship that the 5 Royal Proclamation is the culmination and confirmation 6 of a pre-existing process and reflects fundamental 7 principles. Joseph Brant said: 8 9 \"Brother, we, the Mohawks, were the first Indian 10 Nation that took you by the hand like friends 11 and brothers, and invited you to live amongst 12 us, treating you with kindness upon wore 13 debarkation in small parties. The Oneidas, our 14 neighbours, who are equally well-disposed 15 towards you and as a mark of our sincerity and 16 love towards you we fastened your ship to a 17 great mountain at Onondaga, the Center of our 18 Confederacy, the rest of the Five Nations 19 approving of it. We were then a great people, 20 conquering all Indian Nations around about us, 21 and you in a manner but a handful, after which 22 you increased by degrees and we continued your 23 friends and allies, joining you from time to 24 time against your enemies, sacrificing numbers 25 of our people and leaving their bones scattered 26 in your enemies country. At last we assisted 27 you in conquering all Canada, and then again, 28 for joining you so firmly and faithfully, you 29 renewed your assurances of protecting and 30 defending ourselves, lands and possessions 31 against any encroachment whatsoever, procuring 32 for us the enjoyment of fair and plentiful 33 trade of your people, and sat contented under 34 the shade of the Tree of Peace, tasting the 35 favour and friendship of a great Nation bound 36 to us by Treaty, and able to protect us against 37 all the world.\" 38 39 And, my lord, your lordship will see in that 40 description the language, the metaphor, and the 41 discourse of Chief Cansatago (ph.) addressing the 42 British at the Congress of Lancaster in 1774. 43 Brant then reviewed the post-Proclamation period 44 and the establishment of the Proclamation boundary 45 between white settlements and at Iroquois hunting 46 territories. 47 24122 Submissions by Mr. Jackson 1 \"Wherefor, we on our side have maintained an 2 uninterrupted attachment towards you, in 3 confidence and expectation of a Reciprocity, 4 and to establish a Perpetual Friendship and 5 Alliance between us, of which we can give you 6 several instances, to wit, when a few years 7 after the Conquest of Canada, your people in 8 this country thought themselves confined on 9 account of their numbers with regard to a 10 Scarcity of Land, we were applied to for giving 11 up some of ours, and fix a Line or mark between 12 them and Us. We considered upon it, and 13 relinquished a great Territory to the King for 14 the use of his Subjects, for a Trifling 15 consideration, merely as a Confirmation of said 16 Act and as a proof of our sincere regard 17 towards them. This happened so late as the 18 year 1768 at Fort Stanwix...\" 19 20 Brant requested clarification of Haldimand as to 21 whether the Six Nations were included in the Treaty of 22 Peace with the Americans as faithful allies and 23 whether their ancient lands were to be secured to 24 them. In the following months, Brant pressed the 25 British for lands on the Canadian side of the border 26 for those members of the Six Nations who chose not to 27 return to their home lands on the American side. 28 Brant sought a large grant from the Valley of the 29 Grand. Bottom of the page, my lord. Haldimand, 30 responding to that request, instructed the Lieutenant 31 Colonel Butler to purchase the lands required from the 32 Mississauga Indians. 33 The point here, my lord, is the Iroquois come to 34 Canada leaving their home lands, they request lands in 35 Canada. Those lands are lands which are within the 36 proprietorship of the Mississauga Indians. The Crown 37 arranges for a cession from the Mississauga to the 38 Crown in order to make a grant to the Six Nations. 39 On May 22, 1784, at a meeting held in Niagara, 40 attended by the Six Nations, the -- that's congress we 41 previously referred to, the Mississauga announced 42 their willingness to transfer the sought after 43 territory to the Six Nations and an indenture was 44 drawn up in accordance with the provisions of the 45 Royal Proclamation whereby the chiefs of the 46 Mississauga ceded to the Crown the designated lands. 47 And then, my lord -- 24123 Submissions by Mr. Jackson 1 MR. WILLMS: My lord, the references on these three pages to 2 Johnson are all references to an exhibit that's only 3 been marked for identification. It doesn't say that 4 when this all starts on page 360, but it's Johnson, 5 the Valley of the Six Nations, Exhibit 1249-11 and our 6 note is that all of Volume 1249 has only been marked 7 for identification. 8 THE COURT: What was the reference 1249? 9 MR. JACKSON: 11, my lord, it is at page 360 of the text. 10 THE COURT: Yes. All right, thank you. 11 MR. JACKSON: In October 1784, my lord \u00E2\u0080\u0094 I should tell you that 12 reference, my lord, Johnson in the Valley of the Six 13 Nations is a standard historical text which brings 14 together all of the relevant historical documents 15 relating to this particular period, but my friend is 16 correct, it has only been marked for identification at 17 this point. 18 In October 1784, having obtained a cession from 19 the Mississaugas. Governor Haldimand, by a 20 Proclamation, formally granted the Grand River tract 21 to the Six Nations and the terms of the grant are set 22 out at page 363. And it is important to realize, my 23 lord, that these are not lands held by the Iroquois by 24 virtue of aboriginal title. These are lands which are 25 granted to them which were originally lands held by 26 aboriginal title by the Mississaugas, so the Six 27 Nations in terms of their lands within Canada are the 28 recipients of a Crown grant. 29 This original tract granted to the Iroquois 30 encompass some 57,000 acres. By 1795, close to 2,000 31 of the Iroquois had settled in small tribal villages 32 along the shores of the Grand River. 33 THE COURT: Does anybody know where the Grand River is? 34 MR. JACKSON: Southwestern Ontario, my lord. 35 THE COURT: Thank you. 36 MR. JACKSON: I am advised by my friend, Mr. Rush, that it runs 37 through Kitchener and Waterloo. 3 8 THE COURT: Thank you. 39 MR. JACKSON: The Haldimand grant soon posed problems for 40 colonial authorities in that not only were the exact 41 boundaries ill-defined but Brant viewed the grant as 42 entitling the Six Nations to alienate the land to 43 third parties. When John Simcoe arrived in Upper 44 Canada in 1792, as its first Lieutenant-Governor, he 45 was faced with a problem of defining the exact 46 boundaries of the Grand River reserve and this was 47 done in a new surrender with the Mississaugas. And 24124 Submissions by Mr. Jackson 1 Simcoe, in turn, regranted the lands to the Six 2 Nations. So you had the Haldimand original grant and 3 the Simcoe regrant in 1793. 4 At the bottom of page 364, Brant, in selling and 5 leasing portions of the 1784 grant, had taken the 6 position that the grant constituted the creation of an 7 estate in fee simple for the Indians and that 8 therefore they were fully entitled to dispose of it as 9 they saw fit. The sale of Indian lands to third 10 parties without going through the process of surrender 11 to the Crown was contrary to the provisions of the 12 Royal Proclamation and Simcoe's regrant of 1793 sought 13 to re-assert the principles and process of the 14 Proclamation. And thus, it says: 15 16 It is our Royal will and pleasure that no 17 transfer, alienation, conveyance, sale, gift, 18 et cetera shall at any time be given -- made or 19 given of the said district or territory ... by 20 any of the said Chiefs, Warriors ... but that 21 any such transfer shall be null and void and of 22 no effect whatever ... provided that if at any 23 time the said Chiefs should be inclined to 24 dispose of and surrender their use of interest 25 in the said District ... the same shall be 26 purchased for Us at some public meeting or 27 assembly of the chiefs to be holden for the 28 purpose of the governor. 29 30 In other words, the land was granted to the Six 31 Nations on condition that the provisions of the Royal 32 Proclamation be adhered to and, if the Six Nations 33 wished to transfer any rights to third parties, they 34 had to do so by surrendering the land back to the 35 Crown and the Crown would then authorize the sale. 36 And the Simcoe Patent tracks the language of the Royal 37 Proclamation. 38 Despite these provisions, however, Joseph Brant 39 continued to sell and lease Indian lands to white 40 settlers in order to provide the Iroquois treasury 41 with additional sources of income to supplement the 42 hunting and agricultural economy. What followed, my 43 lord, was a series of validations by the Crown of 44 these grants which were made in violation of the 45 Proclamation. 46 At page 366. Problems continued to arise in 47 relation to the Grand River reserve; for example, in 24125 Submissions by Mr. Jackson 1 1819 the Six Nations took issue with certain grants 2 made to settlers in relation to land which they 3 claimed to be within the limits of their reserve. The 4 Six Nations complained to the Imperial Government that 5 these lands were within the original Haldimand grant. 6 The reply of Lord Bathurst was to the effect that the 7 lands in dispute were not within the reserve because 8 at the time of the grant these lands had not been 9 purchased from the Indians and therefore were not 10 within the Crown's power to grant to the Six Nations. 11 Lord Bathurst said: 12 13 \"It is evident from the Proclamation (the 14 Haldimand Proclamation of October 1784) that 15 the land which General Haldimand intended to 16 assign to the Indian Nations, was that which 17 the colonial government had a few months before 18 purchased from other Indian Nations resident in 19 the Province of Canada; and that whatever 20 disposition he may be presumed to have had to 21 confer advantages on the Five Nations by giving 22 them lands belonging to His Majesty, he could 23 not intend (for he had not the power) to make 24 over any Indian Lands to which His Majesty had 25 not then acquired a title. The description 26 therefore of the Land which is given in the 27 close of the Proclamation must be taken with 28 reference to what the King had at the time a 29 power to grant.\" 30 31 And this response we say, my lord, parallels the 32 position taken by the District Land Boards and the 33 Executive Council in relation to the disputed lands -- 34 disputed titles on the Burlington Bay which had also 35 been the subject of purchases from the Mississaugas. 36 Although the surrender to the Crown in 1798 of 37 lands which had been previously sold to private 38 individuals had been intended to bring an end to the 39 private sale of reserve lands, these continued to be 40 made and it was not until 1835 that many of these 41 titles were confirmed by the government. And we say 42 in relation to this period, my lord, the bottom of 43 page 367, that, in relation to these lands, the Crown 44 acted throughout in accordance with the conditions set 45 out in the Royal Proclamation of 1763, first requiring 46 the surrender of lands to the Crown and then granting 47 them to the private parties who had bought them from 24126 Submissions by Mr. Jackson 1 the Indians. A final surrender of land from the Grand 2 River reserve was made to the Crown in 1841, as a 3 result of which the Six Nations retained some 20,000 4 acres, and that reflects, my lord, the present 5 reserves of the Six Nations within Canada. 6 Now, I wish to turn now to the period from 1850 to 7 1867, in what is the combined province of Canada. In 8 Upper Canada, treaty making continued to be the 9 exclusive means by which the Crown acquired Indian 10 lands required for settlement and development. 11 However, whereas most treaties prior to 1850 were for 12 relatively small areas of land, the post-1850 treaties 13 dealt with considerably larger areas. The Robinson 14 treaties of 1850 are of especial legal significance in 15 the -- they refer to as the Robinson Treaties, my 16 lord, because of the commissioner who negotiated them. 17 The Robinson Treaties of 1850 are of especial legal 18 significance in the pre-Confederation era insofar as 19 they provided precedents for the so-called numbered 20 treaties negotiated in western Canada, the Northwest 21 Territories and northern Ontario in the 22 post-Confederation period. In 1846, after the 23 discovery of minerals along the north shores of Lakes 24 Huron and Superior, the Ojibway Indians petitioned the 25 Governor of Canada, asking that no mining development 26 take place until after suitable arrangements had been 27 made with them. As a result, the government of the 28 late Province of Canada, deemed it desirable, to 29 extinguish the Indian title, and in order to that end, 30 in the year 1850, entrusted the duty to the late 31 Honourable William B. Robinson who discharged his 32 duties with great tact and judgment, and succeeding in 33 making two treaties, which were the forerunners of the 34 future treaties and shaped their course. 35 My lord, that quote comes from a publication by 36 Alexander Morris, who in fact negotiated the first 37 numbered treaties and who in 1880 put together a 38 volume entitled \"The Treaties of Canada with the 39 Indians\" which describes the treaty-making in Canada 40 including the numbered treaties in which he 41 participated and the Robinson Treaties, and that is 42 Exhibit 1246-1 which I believe again is an Exhibit for 43 Identification. It's not. Oh, that's out of an 44 abundance of caution. It is an exhibit. I will at 45 some point be taking you to that exhibit, my lord, but 46 I think that can wait until after the lunch break. 47 The Robinson Superior Treaty and the Robinson 24127 Submissions by Mr. Jackson 1 Huron Treaty were both negotiated at an open and 2 public meeting in accordance with the principles and 3 the fundamental principles set out in the Royal 4 Proclamation. Under the terms of the treaties that 5 were exempted from the cessions to the Crown a number 6 of specified reserves to be held and occupied by the 7 said chiefs and their tribes in common for the purpose 8 of residence and cultivation. And the treaties 9 provided for annuities to be paid to each member of 10 the tribe with the Chiefs and principal men receiving 11 greater amounts. A special feature of the Robinson 12 Treaties was the adjustment of a claim made by the 13 Indians to be paid by the amount received by the 14 Government for the sale of mining locations. This was 15 arranged by the Treaty Commissioner who agreed to pay 16 the Indians the sum of L4,000 and an annuity of about 17 LI,000. A final provision in the Treaty guaranteed to 18 the Indians the full and free privilege to hunt over 19 the territory now ceded by them, and to fish in the 20 waters thereof, as they have heretofore been in the 21 habit of doing, saving and excepting such portions of 22 the said territory as may from time to time be sold or 23 leased to individuals or -- of individuals and 24 occupied by them with the consent of the provincial 25 government. And, my lord, you may recall when I dealt 26 with some of the early treaties in the 17th century on 27 the Eastern Seaboard, I draw your Lordship's attention 28 to the reservations in those treaties of the right to 29 hunt and fish over unoccupied Crown lands and I 30 suggested that they reflected forward to Canadian 31 treaties negotiated in the 19th century and the 32 Robinson Treaties provide that link and continuity as 33 do the numbered treaties to those early treaties 34 negotiated considerable distance in time and place 35 from these Canadian treaties. And I would draw your 36 attention, in particular, my lord, to the Robinson 37 Treaties, that there was special arrangements made in 38 relation to the value of the territories ceded by 39 reference to their mineral rights. When we come back 40 to address the test for aboriginal title in the 41 content of aboriginal rights, we will be urging upon 42 your lordship a view of aboriginal rights which is not 43 frozen in time to a particular economic use or benefit 44 to be derived from the territory. And the earlier 45 reference to mining concessions in these treaties we 46 say reflects an understanding by the Crown that 47 aboriginal rights includes rights to minerals and 2412? Submissions by Mr. Jackson 1 resources regardless of whether those are rights, 2 which at the time of the cession, were ones which the 3 Indians were making beneficial use after in terms of 4 available technology or available market conditions. 5 That's a point to which I will be coming back later, 6 my lord. 7 THE COURT: Do I understand the Superior and the Huron Treaties 8 were assigned two days apart from this note at the 9 bottom of page 369? 10 MR. JACKSON: Yes, my lord. 11 THE COURT: All right, thank you. 12 MR. JACKSON: I believe they were. Page 370. 13 Some years after the completion of the Robinson 14 Treaties, the Government of the old Province of Canada 15 deemed it desirable to effect a treaty with the 16 Indians dealing upon the Great Manitoulin Island. 17 That must be \"living upon\". 18 THE COURT: \"Dwelling\" probably. 19 MR. JACKSON: \"Dwelling\" perhaps ... upon the Great Manitoulin 20 Island in Lake Huron, as a complement to the former 21 treaties, with the object of rendering available for 22 settlement the large tract of good land upon the 23 Island. 24 The treaty negotiations were conducted on behalf 25 of the Crown by William McDougall, then 26 Superintendent-General of Indian Affairs. The Indians 27 of Manitoulin Island were summoned to a public meeting 28 and the Treaty Commissioner explained the wishes of 29 the government in regard to the settlement of the 30 island and proposed the terms for the treaty as 31 specified in the Order of Council authorizing 32 negotiations. 33 As appears from the Treaty Commissioner's Report 34 to the Governor-General, the Indians initially 35 rejected the terms offered them. As a result of 36 further deliberations, it became apparent to the 37 Treaty Commissioner that the Indians living on the 38 east of the island were unwilling to consent to the 39 cession and as a result, the Treaty Commissioner 40 determined to modify the propositions of the 41 Government, so as to meet in some degree the 42 objections from that quarter. 43 In the event the treaty embraced a cession of only 44 those parts of Manitoulin Island which the Indians 45 were prepared to cede. 46 The treaty negotiations for the cession of 47 Manitoulin Island, we say, provide evidentiary support 24129 Submissions by Mr. Jackson 1 for the proposition that Indian consent was viewed by 2 the Crown as a legal prerequisite to the acquisition 3 of Indian lands for settlement and that the Crown did 4 not claim or exercise a right of expropriation in 5 regard to the Indian lands. 6 And, my lord, when we come to St. Catherine 7 Milling I will ask you to reflect back on this treaty 8 in looking at the way in which Chancellor Boyd 9 characterized these treaties as does Mr. Justice 10 Steele that they were mere policy. The Crown could 11 have proceeded to settle without regard to a treaty 12 and these treaties do not bespeak any recognition of 13 legal rights on behalf of the Indian peoples. 14 My lord, I now wish to turn to \"Treaty Making In 15 The Post-Confederation Period\", initially in the 16 period 1867 to 1923. And as of course your lordship 17 is aware, pursuant to the British North America Act, 18 the Constitution Act 1867, jurisdiction over lands 19 \"Indians and Lands Reserved for the Indians\" was 20 allocated to the Federal Government. We say that this 21 constitutional arrangement was a continuation of the 22 principle of central control over Indian affairs which 23 was designed to ensure the discharge of the Crown's 24 protectorate role in safeguarding Indian interests 25 against the competing interests of the local colonial 26 and now provincial settler population. As we have 27 previously submitted, it was this policy which led to 28 the Imperial government taking charge of Indian 29 Affairs following the breaking of the Covenant Chain 30 in 1753, and it was this policy of Imperial protection 31 which received its fullest expression in the Royal 32 Proclamation of 1763. 33 THE COURT: I am not sure that I understand that reference to 34 1753. 35 MR. JACKSON: 1753, my lord, was the point we referred to before 36 when Hendrix went to -- 37 THE COURT: Fort George. 38 MR. JACKSON: Fort George and announced the breach of the 39 Covenant Chain following which the Imperial government 40 issued instructions to the colonial governments. 41 THE COURT: You are taking his threat as a breach. 42 MR. JACKSON: Yes, my lord. 43 THE COURT: Yes, all right. 44 MR. JACKSON: Perhaps we should say the threatened breach of the 45 Covenant Chain, my lord. 4 6 THE COURT: Yes. 47 MR. JACKSON: The continuity of this organizing principle for 24130 Submissions by Mr. Jackson 1 the administration of Indian Affairs is reflected in 2 the Address of the House of Commons to the King, in 3 1834, which states: 4 5 \"That His Majesty's faithful Commons in 6 Parliament assembled, are deeply impressed with 7 the duty of acting upon the principles of 8 justice and humanity in the intercourse and 9 relations of this country with the native 10 inhabitants of its colonial settlements, of 11 affording them protection in the enjoyment of 12 their civil rights, and of imparting to them 13 that degree of civilization, and that religion, 14 with which Providence has blessed this nation, 15 and humbly prays that His Majesty will take 16 such measures, and give such directions to the 17 governors and officers of His Majesty's 18 colonies, settlements and plantations, as shall 19 secure to the natives the due observance of 20 justice and the protection of their rights...\" 21 22 This address, my lord, is one of the sources cited 23 in the Report of the Select Committee on Aborigines 24 which was laid before the Houses of Parliament in 1837 25 which endorsed the importance of maintaining and 26 affirming the central responsibility for the 27 administration of Indian affairs. 28 And, my lord, just to reflect back on my comments 29 earlier this morning. The 1768 Report by the Lords of 30 Trade is part of these chain of official recognition 31 that Indian administration, the recognition of Indian 32 rights is a matter of high public importance which 33 should remain with a central authority rather than 34 being diffused amongst colonial governments. That 35 very point, my lord, is one which is made by Mr. 36 Justice Idington in his judgment in Attorney General 37 of Ontario against Attorney General of Canada, where 38 His Lordship explored some of the reasons for 39 assigning to the Federal Government a centralized and 40 uniformed jurisdiction over Indians and their lands. 41 His lordship said: 42 43 \"The case as it presents itself to my mind is 44 that the Dominion was assigned by ... the high, 45 honourable, and onerous duties of the guardians 46 of the many races of Indians then within or 47 that might at any future time fall within the 24131 Submissions by Mr. Jackson 1 borders of Canada.\" 2 3 The prospective application, my lord, of the 4 B.N.A. Act, we say, is one which also characterizes 5 the prospective application of the Royal Proclamation: 6 7 \"...that these duties were to be discharged as 8 occasion called for, having in mind always the 9 peace, order and good government of Canada...\" 10 11 And later down, my lord: 12 13 \"...these high duties of national importance 14 they were discharged all the better by being 15 freed from the trammels of being confined 16 within the narrow views that the provincial 17 range of vision might have restricted action 18 to, in the needs and wishes of the single 19 province were to be considered, or even the 20 dominant factor used as a guide, perhaps to the 21 detriment of national interests.\" 22 23 And of course we say that that also furthers and 24 buttresses our argument of the Royal Proclamation is 25 to be viewed as a Proclamation of a higher order as 26 reflecting matters of national concern to the Imperial 2 7 Crown. 28 Between 1871 and 1921, the federal government 29 negotiated what are referred to as the Numbered 30 Treaties. They are referred to simply because they 31 have a reference number 1, number 2, number 3, it is 32 not a terribly imaginative way of referencing the 33 treaties. 34 THE COURT: It's not bad. 35 MR. JACKSON: It is simple, my lord, and perhaps it has 36 something to commend it. 37 THE COURT: Any order at all is better than none I suppose. 38 MR. JACKSON: These treaties were made with the Indian Nations 39 in the northern and western parts of Canada. And in 40 1923 a further series of treaties were negotiated to 41 deal with the last large areas of unceded land in 42 southern Ontario. We say that in negotiating and 43 concluding these treaties, the federal government 44 re-affirmed fundamental principles and policies 45 governinging Indian Crown relationships in recognizing 46 that there was a legal obligation on the Crown to 47 obtain, through the treaty protocol, Indian consent 24132 Submissions by Mr. Jackson 1 for the settlement and development of lands in the 2 possession of the Indians. The continuity of this 3 policy, we say, is accurately summarized in the 4 following passage taking from Mr. Harper's \"Canada's 5 Indian Administration: the Treaty system: 6 7 \"The policy followed by Canada in the North-West 8 was a continuation of that which had governed 9 the relations between the Whites and the 10 Indians since the days of Sir William Johnson. 11 Western Indian history was merely the 12 application of these well-founded principles to 13 a new problem, the acknowledgement of the 14 Indian title, and the formal negotiation for 15 the surrender of the same.\" 16 17 Now, my lord, perhaps I could just go for a few 18 more minutes to get to the point where I would start 19 with the first numbered treaty. 20 THE COURT: I think you should finish the next paragraph. I 21 think madam reporter has had a long morning. 22 MR. JACKSON: Okay, as your lordship wishes. It may be then I 23 should finish at this point because the next section 24 would take five minutes. 25 THE COURT: Before we go, is there a list of the identification 26 of the 11 numbered treaties somewhere? I am sure 27 there is. 28 MR. JACKSON: Yes, my lord, there is. 29 THE COURT: Perhaps that could be given an indication where it 3 0 is sometime. 31 MR. JACKSON: Yes. 32 THE COURT: All right. Two o'clock. Thank you. 33 THE REGISTRAR: Order in court. Court stands adjourned until 34 two o'clock. 35 36 (PROCEEDINGS ADJOURNED AT 12:30 p.m.) 37 38 I hereby certify the foregoing to be 39 a true and accurate transcript of the 40 proceedings herein, transcribed to 41 the best of my skill and ability 42 43 44 45 46 TANNIS DEFOE, Official Reporter 47 United Reporting Service Ltd. h2 24133 Submissions by Mr. Jackson 1 Submissions by Mr. Jackson 2 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT) 3 4 THE REGISTRAR: Order in court. 5 THE COURT: Mr. Jackson. 6 MR. JACKSON: Yes, my lord. My lord, there was just one point 7 arising from before the lunch that I would refer your 8 lordship to, and your lordship doesn't have to get the 9 exhibit, but it's Exhibit 1256, tab 35, and that is an 10 opinion, my lord, of the solicitor to the Department 11 of Indian Affairs addressed to the crown and land 12 department which form the basis of a report to the 13 executive council of Canada that was signed by John A. 14 MacDonald which expresses the opinion that the 15 Proclamation applied to lands within what was then 16 Canada and had the effect of avoiding any grants made 17 in disregard of the Proclamation's terms. 18 THE COURT: Where should it most conveniently be inserted into 19 your outline, please? 20 MR. JACKSON: Perhaps I could advise you of that at the break, 21 my lord. 22 THE COURT: Yes. 23 MR. JACKSON: I was at page 374 \u00E2\u0080\u0094 2 4 THE COURT: Yes. 25 MR. JACKSON: \u00E2\u0080\u0094 my lord, and I had just quoted from Mr. 26 Harper's statement that the application of the 27 Proclamation and the treaty making in Canada in the 28 years after Confederation were part of a continuous 29 process of treaty making in accordance with the 30 principles of acknowledgement of the Indian title and 31 obtaining the surrender thereof through a process of 32 consent. 33 I want now to turn to the first days of 34 Confederation, and I make the point that further 35 Imperial and constitutional affirmation was given to 36 the continuing legal obligation of the federal 37 government to negotiate with Indian nations for the 38 acquisition of their lands required for settlement. 39 And I refer to Rupert's Land Act 1868, whereunder 40 the Imperial Parliament enabled Her Majesty to accept 41 a surrender, upon terms, of the lands, privileges, and 42 rights of the Hudson's Bay Company. Section 5 of that 43 Act gave the crown power, by Order-in-Council, to 44 declare that Rupert's Land be admitted as part of the 45 Dominion of Canada. Section 146 of the Constitution 46 Act 1867 had also allowed for the admission of 47 Rupert's Land into the Union, stating that: 24134 Submissions by Mr. Jackson 1 2 \"And the provisions of any Order-in-Council in 3 that behalf shall have effect as if they had 4 been enacted by the Parliament of the United 5 Kingdom of Great Britain...\" 6 7 On November 19th, 1869, the Hudson's Bay Company, 8 by deed, surrendered all its rights to the crown and 9 by Imperial Order-in-Council it was ordered that 10 Rupert's Land was to become part of Canada: 11 12 \"...upon the following terms and conditions, 13 being the terms and conditions still remaining 14 to be performed of those embodied in the said 15 second Address of the Parliament of Canada, and 16 approved by Her Majesty as aforesaid.\" 17 18 And section 14 of that document says: 19 20 \"Any claims of Indians to compensation for lands 21 required for purposes of settlement shall be 22 disposed of by the Canadian Government in 23 communication with the Imperial government;\" 24 25 My lord, the Order-in-Council had been preceded by 26 two Addresses presented to Her Majesty, and the first 27 Address prayed for the transfer of Rupert's Land to 28 Canada, and stated: 29 30 \"...that, upon the transference of the 31 territories in question to the Canadian 32 Government, the claims of the Indian tribes to 33 compensation for lands required for purposes of 34 settlement will be considered and settled in 35 conformity with the equitable principles which 36 have uniformly governed the British crown in 37 its dealings with the aborigines.\" 38 39 In both the resolutions and the second Address, 40 the Senate and House of Commons approved the terms of 41 the agreement between the government of Canada and the 42 Hudson's Bay Company relating to the transfer. Among 43 those provisions it was repeated that: 44 45 \"It is understood that any claims of Indians to 46 compensation for lands required for purposes of 47 settlement shall be disposed of by the Canadian 24135 Submissions by Mr. Jackson 1 Government in communication with the Imperial 2 government.\" 3 4 My lord, all these documents are set out in Native 5 Rights in Canada, Cumming and Mickenberg, and they 6 also are extensively referred to in the provincial 7 defendant's argument. 8 We say, my lord, that this affirmation of the 9 rights of the Indians to their lands and the 10 obligation to negotiate the cession of those lands is 11 of special significance insofar as it is incorporated 12 in the Imperial Order-in-Council which is expressly 13 stated to have the same effect as if it had been 14 enacted by the Parliament of Great Britain. And that 15 was the conclusion drawn by Mr. Justice Morrow in the 16 Paulette case. 17 My lord, at page 377 -- 18 THE COURT: But, Mr. Jackson, if, assuming for the purposes of 19 the debate, that Canada had always dealt with Indians 20 in what might be described as -- 21 MR. JACKSON: The equitable principles. 22 THE COURT: -- the equitable principles, and then Canada in its 23 wisdom decided that any particular case it was going 24 to deal with it differently, would you say that Canada 25 could not do that? Let's put it at its highest, and 26 say that it's done by an act of Parliament. 27 MR. JACKSON: My lord, we say that to the extent that the 28 Proclamation is applicable within Canadian 29 territories, then that could not be interfered with by 30 an act of the Canadian Parliament, only could it be 31 interfered with by an act of the Imperial Parliament. 32 THE COURT: You're talking about pre-1982? 33 MR. JACKSON: Or actually pre-statute of West Minister. 34 THE COURT: All right, statute of Westminster. 35 MR. JACKSON: And that position is in fact affirmed, we say, in 36 the Constitution Act of 1982. 37 THE COURT: So you say that the -- you really say then that the 38 Royal Proclamation takes precedence over the B.N.A. 39 Act up to 1932. 40 MR. JACKSON: No, my lord, in some ways we say that the Royal 41 Proclamation is read into the B.N.A. Act. 42 THE COURT: Well, you can read it in or describe it any way you 43 want, but in the specific case I mentioned -- 44 MR. JACKSON: Yes, my lord, we do say that \u00E2\u0080\u0094 45 THE COURT: Canada couldn't do that. 46 MR. JACKSON: -- Canada could not abrogate the provisions of the 47 Royal Proclamation. 24136 Submissions by Mr. Jackson 1 THE COURT: Yes. All right. Thank you. 2 MR. JACKSON: My lord, at page 377 we say that the further 3 acknowledgement of the legal rights of the aboriginal 4 peoples is found in the Manitoba Act of 1870. Section 5 31 provided for the granting of 1.4 million acres of 6 land to the Metis towards the extinguishment of the 7 rights of the Metis which they had by virtue of their 8 Indian ancestry. The recital to section 31 provides: 9 10 \"And whereas, it is expedient, towards the 11 extinguishment of the Indian Title to the 12 lands, in the Province, to appropriate a 13 portion of such ungranted lands...\" 14 15 And it goes on. After the transfer of Rupert's 16 Land, the federal government enacted, in 1872, the 17 Dominion Lands Act, the first federal statute to deal 18 with the sale and disposition of federal crown lands. 19 And it provided: 20 21 \"None of the provisions of this Act respecting 22 the settlement of agricultural lands, or the 23 lease of timber lands, or the purchase and sale 24 of mineral lands, shall be held to apply to 25 territory the Indian title to which shall not 26 at that time have been extinguished.\" 27 28 And, my lord, with reference to your most recent 29 question, that we say is some considerable evidence 30 that the Parliament of Canada itself understood that 31 its power to deal with Indian lands was, as it were, 32 constitutionally inhibited. 33 And we say that, summarizing the various documents 34 surrounding the admission or the addition of Rupert's 35 Land to the territories of Canada, these documents 36 alongside with the Dominion Lands Act had been 37 summarized by Mr. Justice Berger, as he then was, in 38 this way: 39 40 \"All of these instruments acknowledge the rights 41 of the native people. They illustrate that the 42 recognition of aboriginal title was deeply 43 embedded in both the policy and the law of the 44 new nation.\" 45 46 And that is from Mr. Justice Berger, as he then 47 was, in his report of the Mackenzie Valley pipeline 24137 Submissions by Mr. Jackson 1 inquiry in 1977. 2 And now I'm going to turn, my lord, to the -- 3 again the application on the ground of these 4 principles in the prairie provinces, what are now the 5 prairie provinces, and I will deal first of all with 6 treaties 1 to 7 negotiated between 1871 and 1876. 7 The Indian nations were fully alive to the 8 necessity for a mutual accommodation of their and the 9 crown's interests. This was made manifest in 10 exchanges soon after the transfer of the Hudson Bay 11 territories. 12 13 \"In 1870 it had been deemed necessary to 14 despatch two agents to inform the Indians of 15 the Government's intention to send troops to 16 Red River, and to arrange with them a right of 17 way through their country. At a pow-wow with 18 Colonel Wolseley at Fort Frances, the Indian 19 chief, Crooked Neck, refused to accept the 20 presents offered him, gaudy red shirts, coats 21 and caps, and declared 'Am I a pike to be 22 caught with such a bait as that? Shall I sell 23 my land for a bit of red cloth? We will let 24 the pale-faces pass through our country, but we 25 will sell them none of our land, nor have any 26 of them to live amongst us.' Other bands 27 expressed similar views. 'We believe what you 28 tell us when you say that, in your land, the 29 Indians have always been treated with clemency 30 and justice... but do not bring settlers and 31 surveyors amongst us, to measure and occupy 32 our lands, until a clear understanding has 33 been arrived at, as to what our relations are 34 to be in the time to come.\" 35 36 Beginning in 1871, the federal government, 37 pursuant to its legal obligations, initiated treaty 38 making with Indian nations in the newly acquired 39 territories. And the following review of treaties 1 40 to 7 we say demonstrates the continuity of the crown's 41 recognition of its lawful obligations to obtain Indian 42 consent through the treaty process for the acquisition 43 of western lands needed for settlement and 44 development. 45 Treaties 1 and 2 were negotiated in 1871 with the 46 Indians of Manitoba. The Chippawas in 1870, concerned 47 about the influx of settlers, petitioned the 2413? Submissions by Mr. Jackson 1 Lieutenant-Governor to commence treaty negotiations 2 and Mr. W.M. Simpson was appointed treaty 3 commissioner. Simpson, in July 1871, met with 4 approximately 1,000 Indians to negotiate the first 5 post-Confederation treaty at Lower Fort Garry. The 6 negotiations were conducted with the chiefs and 7 principal spokespersons for the Indians. The treaty 8 negotiations lasted eight days and the treaty, in its 9 general contours, followed the precedent of the 10 Robinson treaties \"its principal features being the 11 relinquishment to Her Majesty of the Indian title\", 12 the reserving of tracts of lands for the Indians, 13 sufficient to furnish 160 acres of land to each family 14 of five, providing for the maintenance of schools, the 15 prohibition of the sale of intoxicating liquors on the 16 reserves, and an initial payment of $3 per person and 17 a yearly annuity of $15 per family. 18 At the beginning of the negotiations of treaty 19 number 1, my lord, Lieutenant-Governor Morris, in 20 addressing the Indians, stated: 21 22 \"Your Great Mother, the Queen, wishes to do 23 justice to all her children alike...But the 24 Queen, though she may think it good for you to 25 adopt civilized habits, has no idea of 26 compelling you to do so. This she leaves to 27 your choice, and you need not live like the 28 whiteman unless you can be persuaded to do so 29 of your own free will.\" 30 31 This is of some significance, my lord, in that it 32 supports an interpretation of the treaty that, one 33 which we will come back in dealing with the issue of 34 Indian jurisdiction, an interpretation of the treaty 35 that the crown did not purport to interfere with the 36 internal self-government of the Indians in the 37 negotiation of these treaties. 38 At page 380 and 381, my lord, I make reference to 39 the so-called outside promises in the context of these 40 treaty negotiations. The Indians negotiated for and 41 were offered by the treaty commissioners certain 42 additional provisions not in the text of the treaty. 43 These were not followed through by the government. 44 There was protest by the Indians. At page 381 I make 45 the point that these outside promises, which were at 46 the time of the treaty reduced in writing in a 47 memorandum by the commissioners, were by 24139 Submissions by Mr. Jackson 1 Order-in-Council made part of the original text of 2 treaty number 1. 3 Treaty number 2 at the bottom of page 381 was 4 negotiated at Manitoba Post on August the 21st and was 5 in the same terms as treaty number 1. The continuity 6 with the treaty protocol mandated by the Royal 7 Proclamation and the explicit recognition of the 8 necessity for Indian consent is evident from the first 9 recital in these treaties, a recital which appears 10 with small variations in all of the numbered treaties. 11 And at page 382 I set out the nature of that 12 recital, and you'll note, my lord, the passage 13 underlined: 14 15 \"that it is the desire of Her Majesty to open up 16 to settlement and immigration a tract of 17 country bounded and described as hereinafter 18 mentioned, and to obtain the consent thereto of 19 her Indian subjects inhabiting the said tract.\" 20 21 And the last paragraph, my lord, you'll see, 22 again, the treaty Proclamation protocol: 23 24 \"And whereas the Indians of the said tract, duly 25 convened in Council as aforesaid, and being 26 requested by Her Majesty's said Commissioner to 27 name certain Chiefs and Headmen who should be 28 authorized on their behalf to conduct such 29 negotiations...\" 30 31 The explicit recognition of consent in the public 32 treaty making council process. 33 And I've given you there, my lord, the relevant 34 citations to the similar recital in all of the other 35 treaties from 1 to 7. 36 In 1873 -- 37 THE COURT: These are references to a book by Morris are they? 38 MR. JACKSON: This is the reference to Exhibit 1246. 39 THE COURT: All right. 40 MR. JACKSON: Tab 1, which is the Morris text. 41 THE COURT: Thank you. 42 MR. JACKSON: In 1873, treaty number 3 was concluded with the 43 Saulteaux nation. It is oftentimes referred to as the 44 North-West Angle treaty because the area ceded by the 45 Indians ran from the watershed of Lake Superior to the 46 North-West Angle of the Lake of the Woods. 47 And I will be spending some time on treaty number 24140 Submissions by Mr. Jackson 1 3, my lord, because treaty number 3 constitutes the 2 factual matrix of the St. Catherine's Milling case. 3 It was treaty number 3 which was the subject matter, 4 as it were, of the St. Catherine's Milling case, and 5 the issue there was who benefited from the cession by 6 the Saulteaux nation to the crown, whether it was the 7 federal crown or the provincial crown. And so 8 understanding the process and the principles which can 9 be found in treaty number 3, we say, will assist your 10 lordship in interpreting and responding to our 11 submissions on the nature of the findings in St. 12 Catherine's Milling. 13 Treaty number 3, it had been the federal 14 government's intention that treaty number 3 would have 15 been the first treaty negotiated since the area lay on 16 the route west known as the \"the Dawson route\". The 17 treaty was also \"to enable the government to throw 18 open for settlement any portion of the land which 19 might be susceptible of improvement and profitable 20 occupation.\" And, again, those are the words of the 21 treaty commissioner Alexander Morris. 22 As I say, it had been the government's intention 23 to commence treaty making with the Saulteaux, but the 24 commissioners appointed to negotiate the treaty, at 25 the top of page 383, when they met with the Saulteaux 26 in 1871 and 1872, found that the Saulteaux were not 27 prepared to accept the government's terms. Finally, 28 in September 1873 \"after protracted and difficult 29 negotiations (the government) succeeded in effecting a 30 treaty with them.\" 31 For most of the numbered treaties we do not have 32 the benefit of a detailed documentary record of the 33 conduct of the negotiations, unlike that which exists 34 for the Covenant Chain Treaty Councils of the 18th 35 century. There was no Benjamin Franklin, as it were, 36 of the Canadian west, to write down and to publish the 37 text of these events. However, in the case of treaty 38 number 3, we do have, in addition to the report of one 39 of the treaty commissioners, Alexander Morris himself, 40 a more detailed report of the various speeches made 41 during the course of treaty negotiations. 42 And these contemporary reports give a sense of the 43 treaty protocol and the nature of the negotiations. 44 And again, my lord, I'm seeking to make a connection 45 of historical and legal continuity between the 46 experience in the eighteenth century and experience in 47 Canada in the nineteenth century. 24141 Submissions by Mr. Jackson 1 THE COURT: Excuse me, Mr. Jackson, I think that I should 2 recognize the presence in court here of Mr. Gordon 3 Hanson, I think, it's hard to see from here, a very 4 distinguished member of the Legislature for Victoria, 5 and I believe the opposition critic on Indian and 6 Aboriginal Affairs. Welcome to our courts, Mr. 7 Hanson. Mr. Jackson. 8 MR. JACKSON: Thank you, my lord. 9 Taking this then from contemporary reports, my 10 lord, of the negotiation of treaty number 3, we find 11 that some 800 Indians representing the 11 bands which 12 made up the Saulteaux nation were in attendance at 13 Fort Garry, the site designed for the treaty 14 negotiations -- the site designated for the treaty 15 negotiations. After the arrival of the treaty 16 commissioners the Indians performed a dance in honour 17 of Alexander Morris -- in addition to being the treaty 18 commissioner he was also the Lieutenant-Governor of 19 Manitoba -- and presented to him the pipe of peace, a 20 ceremony which your lordship will recall was also part 21 of the Covenant Chain protocol. The treaty 22 negotiations did not start for several days because 23 \"the Chiefs were not ready to treat - they had 24 business of their own to transact, which must be 25 disposed of before they could see the Governor\". It 26 appears from the contemporary account that it had been 27 some years since the Saulteaux nation had had a 28 general council involving all bands and there was 29 initial difficulty in agreeing upon who should be the 30 principal chiefs with whom the governor should 31 negotiate. 32 When negotiations did start on October the 1st, 33 Indian negotiators indicated that they were not 34 prepared to treat in relation to the land unless the 35 government settled with them in relation to what they 36 asserted were unfulfilled promises arising from 37 government activities in completing the Dawson route, 38 in particular, that they had not been paid for the 39 wood used in building the steamers nor for the use of 40 the waterway. Commissioner Morris, in response to 41 this proposition, stated. Wood and water were the 42 gift of the Great Spirit, and were made alike for the 43 good of both the white man and red man. 44 The Indian spokesman responded that he was 45 determined not to go on with the treaty negotiations 46 until the issue was disposed of, asserting that: 47 24142 Submissions by Mr. Jackson 1 \"What was said about the trees and rivers was 2 quite true, but it was the Indians' country, 3 not the white man's.\" 4 5 The Indians, however, were prepared to have the 6 treaty commissioners outline the treaty propositions. 7 Commissioner Morris, in introducing the proposed 8 treaty terms, stated: 9 10 \"I told you I was to make the treaty on the part 11 of our Great Mother, the Queen, and I feel it 12 will be for your good and your children...1 13 want to settle all matters, both of the past 14 and the present, so that the white and the red 15 man will always be friends. I will give you 16 lands for farms, and also reserves for your own 17 use. I have authority to make reserves such as 18 I have described, not exceeding in all a square 19 mile for every family of five or thereabouts. 20 It may be a long time before the other lands 21 are wanted, and in the meantime you will be 22 permitted to fish and hunt over them. I will 23 also establish schools whenever any band asks 24 for them, so that your children may have the 25 learning of the white man. I will also give 26 you a sum of money for yourselves and every one 27 of your wives and children for this year. I 28 will give you $10 per head of the population 29 and for every other year, $5 a head. But to 30 the chief men, not exceeding two to each band, 31 we will give $20 a year forever. I will give 32 to each of you this year a present of goods and 33 provisions to take you home, and I am sure you 34 will be satisfied.\" 35 36 When proceedings were resumed the following day -- 37 and in this regard, my lord, you will recall in the 38 Covenant Chain proceedings the Iroquois were always 39 careful to deliberate overnight before responding to 40 the statements made by the British colonial 41 spokespersons. When proceedings were resumed the 42 following day, the chief of Fort Francis, 43 Ma-we-do-pe-nais, addressed the treaty commissioners 44 in this way: 45 46 \"What we have heard yesterday, and as you 47 represented yourself, you said the Queen sent 24143 Submissions by Mr. Jackson 1 you here, the way we understand you as a 2 representative of the Queen. All this is our 3 property where you have come. We have 4 understood you yesterday that Her Majesty has 5 given you the same power and authority as she 6 has, to act in this business; you said the 7 Queen gave you her goodness, her charitableness 8 in your hands. This is what we think, that 9 Great Spirit has planted us on this ground 10 where we are as you were where you came from. 11 We think where we are is our property. I will 12 tell you what he said to us when he planted us 13 here; the rules that we should follow, us 14 Indians, he has given us rules that we should 15 follow to govern us rightly.\" 16 17 And it is our submission, my lord, and we don't 18 know of any lawyers or missionaries lurking in the 19 bushes to put these words into the minds and hearts of 20 the Saulteaux nation, it is our submission that the 21 statement of Chief Ma-we-do-pe-nais in asserting the 22 Saulteaux nation's rights of ownership and 23 jurisdiction, is done so in terms which are linked to 24 the statement of Chief Canassatego at the Treaty of 25 Lancaster in 1744, and we say it is linked to the 26 statements of the hereditary chiefs of the Gitksan and 27 Wet'suwet'en in 1987 and 1990. 28 The Saulteaux, in arguing for better terms, were 29 aware that gold had been discovered in parts of their 30 country. Thus, in proposing that the compensation 31 should be greater than the amounts initially offered 32 by a sum amounting to $125,000 per annum, one of the 33 spokesmen reminded the commissioners: 34 35 \"The sound of the rustling of the gold is under 36 my feet where I stand; we have a rich country; 37 it is the great spirit who gave us this; where 38 we stand upon is the Indian's property and 39 belongs to them... 40 It was your charitableness that you spoke of 41 yesterday - Her Majesty's charitableness that 42 was given you. It is our chiefs, our young 43 men, our children, and great grandchildren and 44 those that are to be born, that I represent 45 here, and it is for them I ask for terms. The 46 white man has robbed us of our riches, and we 47 don't wish to give them up again without 24144 Submissions by Mr. Jackson 1 getting something in their place.\" 2 3 THE COURT: What do you understand he was referring to there, 4 the wood and the water? 5 MR. JACKSON: Yes, my lord, I think that must be the reference. 6 THE COURT: All right. Thank you. I suppose there might have 7 been something else. 8 MR. JACKSON: I wasn't able to glean anything from the -- as I 9 said, the treaty account is a much compressed 10 version -- 11 THE COURT: Yes. 12 MR. JACKSON: \u00E2\u0080\u0094 of what we have for the Covenant Chain 13 treaties. 14 THE COURT: Yes. 15 MR. JACKSON: The Indians willingness to reach an accommodation 16 with the government by sharing their resources was 17 conditioned not only upon appropriate financial 18 considerations but also upon economic assistance in 19 the development of new opportunities to supplement the 20 traditional economy. And this perspective of mutual 21 accommodation and the sharing of resources which the 22 Indian people brought to the treaty making process is 23 well reflected in the speech of the chief of Lac 24 Seule: 25 26 \"We are the first that were planted here; we 27 would ask you to assist us with every kind of 28 implement to use for our benefit, to enable us 29 to perform our work; a little of everything and 30 money. We would borrow your cattle; we ask you 31 this for our support; I will find whereon to 32 feed them. The waters out of which you 33 sometimes take food for yourselves, we will 34 lend you in return. ...If you give what I ask, 35 the time may come when I will ask you to lend 36 me one of your daughters and one of your sons 37 to live with us; and in return I will lend you 38 one of my daughters and one of my sons for you 39 to teach what is good, and after they have 40 learned, to teach us.\" 41 42 The commissioners, in responding to the counter 43 proposals of the Indians, characterized their role as 44 representatives of the crown in this way: 45 46 \"I wish you to understand we do not come here as 47 traders, but as representing the Crown, and to 24145 Submissions by Mr. Jackson 1 do what we believe is just and right. We have 2 asked in that spirit and I hope you will meet 3 me in that spirit and shake hands with me today 4 and make a treaty forever.\" 5 6 Now, the commissioners, in terms of the monetary 7 consideration, said that they were not authorized nor 8 could they pay the large amount required, but they 9 were prepared to increase the per capita share to be 10 signed on the signing of the -- to be paid on the 11 signing of the treaties. 12 And at page 388 I set out some of the further 13 negotiations which were undertaken. At the bottom of 14 the page, my lord, half-way down that paragraph. 15 The Indians also brought up issues relating to future 16 developments. Thus, with some prescience, although it 17 would not have been a lasting privilege, as it turns 18 out they asked for free passage for Indian people on 19 the forthcoming railway and they raised their concern 20 about the effect of white settlement on the fishery 21 resource, requesting that the river should be left as 22 it was. On both these issues -- 23 THE COURT: I'm sorry, what year are we in, 1882? 2 4 MR. JACKSON: No, we're in 1873. 25 THE COURT: Oh, a long way from the railroad. All right. It 26 had of course been promised. 27 MR. JACKSON: I think the Indians were well informed, my lord, 28 of the government's intentions with the railway. 2 9 THE COURT: All right. 30 MR. JACKSON: On both these issues the commissioners said that 31 they were not able to make any promises for the 32 future. 33 During the course of the negotiations it appeared 34 that there was some disagreement between different 35 bands on the advisability of accepting the proposed 36 treaty. Commissioner Morris indicated that he would 37 sign the -- while he would sign the treaty with those 38 bands who were prepared to do so, his principal 39 purpose was to \"treat with them as a nation and not as 40 separate bands\" 41 And eventually the Saulteaux nation was able to 42 arrive at a consensus and the treaty was duly 43 concluded after four days of negotiations, 44 negotiations which Commissioner Morris described 45 himself in his report to Government House as \"a very 46 difficult and trying one\". 47 At the conclusion of the negotiations, Chief 24146 Submissions by Mr. Jackson 1 Ma-we-do-pe-nais made a final address, and what he 2 said to Commissioner Morris was: 3 4 \"Now you see me stand before you all; what has 5 been here today has been done openly before the 6 Great Spirit, and before the Nation, and I hope 7 that I may never hear anyone say that this 8 Treaty has been done secretly.\" 9 10 You'll recall, my lord, Canassatego once 11 castigating the Delawares for daring to treat with 12 colonial representatives in the dark. 13 14 \"And now, in closing as council, I take off my 15 glove, and giving you my hand, I deliver over 16 my birth-right and lands; and in taking your 17 hand, I hold fast all the promises you have 18 made, and I hope they will last as long as the 19 sun goes round and the water flows, as you have 20 said.\" 21 22 And Commissioner Morris, taking Chief 23 Ma-we-do-pe-nais' hand stated: 24 25 \"I accept your hand and with it the lands, and 26 will keep all my promises, in the firm belief 27 that the treaty now to be signed will bind the 28 red man and the white together as friends 29 forever.\" 30 31 And we say, my lord, of passing interest, treaty 3 32 concluded with an exchange in many ways resembling the 33 exchange a century before at the Treaty of Lancaster 34 between the Six Nations and the British regarding the 35 differences between French and British glasses. It 36 had been the practice at treaty making to provide the 37 chiefs and headmen with medals. One of the Saulteaux 38 chiefs in referring to this practice made the 39 following pointed observations to the treaty 40 commissioners: 41 42 \"I will now show you a medal that was given to 43 those who made a treaty at Red River by the 44 Commissioner. He said it was silver, but I do 45 not think it is. I should be ashamed to carry 46 it on my breast over my heart. I think it 47 would disgrace the Queen, my mother, to wear 24147 Submissions by Mr. Jackson 1 her image on so base a metal as this.\" 2 3 And the commentator notes: 4 5 \"Here the chief held up the medal and struck it 6 with the back of his knife. The result was 7 anything but the 'true ring' and made every man 8 ashamed of the petty meanness that had been 9 practiced.\" 10 11 The chief continued: 12 13 \"Let the medals you give us be of silver - 14 medals that shall be worthy of the high 15 position our Mother the Queen occupies.\" 16 17 My lord, the area ceded by treaty number 3 was 18 some 55,000 square miles. Treaty number 4, commonly 19 referred to as the Qu'appelle treaty, having been 20 negotiated and signed at Qu'appelle Lakes the year 21 later in 1874, involved an area of some 75,000 square 22 miles of what is now Manitoba and Saskatchewan. 23 THE COURT: Going back to treaty 3, are those annual stipends 24 still paid? 2 5 MR. JACKSON: Yes, my lord. 26 THE COURT: They haven't been at present value been paid off? 27 MR. JACKSON: No, there was no inflation clause and they are 28 still paid at the same rate as of 1873. 2 9 THE COURT: Thank you. 30 MR. JACKSON: Treaty number 5, also referred to as the Winnipeg 31 treaty, was signed initially at Lake Winnipeg with the 32 Saulteaux and the Swampy Cree Indians and resulted in 33 an even larger cession of some 100,000 square miles. 34 And I refer your lordship on page 391 to the 35 rationale, or in his own terms, the necessity for the 36 treaty as it was articulated by William Morris: 37 38 \"The lake...\" 39 40 That is Lake Winnipeg. 41 42 \"...is a large and valuable sheet of water, 43 being some 300 miles long. The Red River flows 44 into it and the Nelson River flows from it into 45 Hudson's Bay. Steam navigation has been 46 successfully established by the Hudson's Bay 47 Company on Lake Winnipeg. A tramway of five 24148 Submissions by Mr. Jackson 1 miles in length was being built by them to 2 avoid the Grand Rapids and connect that 3 navigation with steamers on the river 4 Saskatchewan. On the west side of the lake, a 5 settlement of Icelandic immigrants had been 6 founded, and some other localities were 7 admirably adapted for settlement. Moreover, 8 until the construction of the Pacific Railway 9 west of the City of Winnipeg, the lake and 10 Saskatchewan River are destined to become the 11 principal thoroughfare of communication between 12 Manitoba and the fertile prairies in the 13 west...For these and other reasons, the 14 Minister of the Interior reported 'that it was 15 essential that the Indian title to all the 16 territory in the vicinity of the lake should 17 be extinguished so that settlers and traders 18 might have undisturbed access to its waters, 19 shores, islands, inlets and tributary streams.\" 20 21 And, again, we say, my lord, that that bespeaks a 22 recognition by the crown of the legal requirement for 23 the extinguishment of Indian title before settlement 24 and development can proceed. 25 THE COURT: Do you know the date of treaty 5? 26 MR. JACKSON: Yes, my lord, treaty 5 was signed in 1875 I 27 believe. 2 8 THE COURT: Thank you. 29 MR. JACKSON: I'll look that up for you, my lord, at the break. 3 0 THE COURT: Thank you. 31 MR. JACKSON: And I say somewhat elliptically, my lord, one year 32 after the signing of treaty number 5, which I think 33 will be 1876, treaty number 6 was concluded at Fort 34 Carlton and Fort Pitt, and these cessions emblazed 35 some 120,000 square miles inhabited by the Cree and 36 Assiniboine Indians. As William Morris notes in his 37 summary of the negotiation of treaty number 6 \"The 38 Crees had, very early after the annexation of the 39 North-west Territories to Canada, desired a treaty of 40 alliance with the government\". 41 And the reasons for the Crees' desire, my lord, is 42 set out at the bottom of page 392. The Cree nation's 43 desire to enter into a treaty with Canada was 44 heightened by the fact that in 1870 they had been 45 struck with a smallpox epidemic and this, coupled with 46 the diminution of the buffalo, their principal source 47 of meat, and the subsequent starvation that ensued, 24149 Submissions by Mr. Jackson 1 caused them to look to Canada for much needed economic 2 assistance. Alexander Morris, who was appointed 3 lieutenant-governor in December 1872, had urged Ottawa 4 to open negotiations with the Cree, but it was not 5 until the Cree stopped geological survey crews in the 6 summer of 1875 and also halted construction of the 7 telegraph line, that instructions were finally sent to 8 Morris to enter into treaty with the Cree. 9 And I note there, my lord, just by way of 10 reference back, that in 1752, a hundred and twenty 11 years before this, it was the stopping of surveyors in 12 the valley of the Ohio that had led to renegotiations 13 and the Treaty of Logstown. And I would refer your 14 lordship to Volume 1 of our materials at tab 2, page 15 121. 16 Based therefore on a mutual and reciprocal need 17 and desire for treaty making, in 1875 Alexander Morris 18 sent out the Reverend George McDougall to give advance 19 notice to the Cree of the government's intentions to 20 open treaty negotiations with them the following year. 21 McDougall informed Morris that both the Cree and the 22 Assiniboines with whom he met were united on two 23 points, the first of which was: 24 25 \"That they would not receive any presents from 26 Government until a definite time for treaty was 27 stated. 28 29 2. Though they deplored the necessity of 30 resorting to extreme measures, yet they were 31 unanimous in their determination to oppose the 32 running of lines, or the making of roads 33 through their country, until a settlement 34 between the government and them had been 35 effected.\" 36 37 Commissioner Morris and two other Commissioners 38 first met with the Cree at Fort Garry. The account of 39 the treaty negotiations recorded by the secretary to 40 the commission gives a clear indication of the extent 41 to which the Indian protocol was part and parcel of 42 the negotiating process, just as it had been in the 43 Covenant Chain treaty making era the century before: 44 45 \"The Cree Indians ... had selected a site about a 46 mile and a half from the Hudson's Bay Fort. 47 There were about 250 lodges, containing over 24150 Submissions by Mr. Jackson 1 2,000 souls. The Governor's tent was pitched 2 on a piece of rising ground about 400 yards 3 from the Indian camp, and immediately facing 4 it.\" 5 6 And the next page, my lord: 7 8 \"In about half an hour they were ready to 9 advance and meet the Governor; this they did in 10 a large semi-circle; in their front were about 11 20 braves on horseback, galloping about in 12 circles, shouting, singing and going through 13 various picturesque performances. The 14 semi-circle steadily advanced within 50 yards 15 of the Governor's tent, when a halt was made 16 and further peculiar ceremonies commenced, the 17 most remarkable of which was the 'dance of the 18 stem'. This was commenced by the Chiefs, 19 Medicine Men, Councillors, singers and drum 20 beaters, coming a little to the front and 21 seating themselves on blankets and robes spread 22 for them. The bearer of the stem, 23 Wah-wee-kah-nich-kah-oh-tah-mah-hote, the man 24 you strike on the back, carrying in his hand a 25 large and gorgeously adorned pipe stem, walking 26 slowly along the semi-circle, and advancing to 27 the front, raised the stem to the heavens, then 28 slowly turned to the north, the south, the east 29 and the west, presenting the stem at each 30 point; returning to the seated group he handed 31 the stem to one of the young men, who commenced 32 a low chant, at the same time performing a 33 ceremonial dance accompanied by the drums and 34 singing of the men and women in the 35 background.\" 36 37 And I should just perhaps pause there for a 38 moment, my lord. This version of this ceremony was 39 performed most recently in May last year to judges of 40 the Western Judicial Council at their annual meeting 41 at Cecil Green Park in Vancouver as a demonstration of 42 the protocol which the Indians observed in a meeting 43 between their people and others with whom they -- 44 others whom they hold in high respect. There was no 45 horses, but the nature of the ceremony was one which 46 is directly referable to the ceremony performed at the 47 negotiations of treaty number 6. 24151 Submissions by Mr. Jackson 1 2 \"This was all repeated by another of the young 3 men, after which the horseman again commenced 4 galloping in circles, the whole body slowly 5 advancing. As they approached his tent, the 6 Governor, accompanied by the Honourable W.J. 7 Christie and the Honourable Jas McKay, 8 Commissioners, went forward to meet them and to 9 receive the stem carried by its bearer. It was 10 presented first to the Governor, who in 11 accordance with their customs, stroked it 12 several times, then passed it to the 13 Commissioners who repeated the ceremony.\" 14 15 And this is Morris' statement, my lord: 16 17 \"The significance of this ceremony is that the 18 Governor and Commissioners accepted the 19 friendship of the tribe.\" 20 21 My lord at page 395, Commissioner Morris in his 22 first address to the Indians, emphasized the public 23 nature of the treaty process. 24 25 \"What I say and what you say, and what we do, is 26 done openly before the whole people.\" 27 28 It is clear from the treaty negotiations that a 29 principal concern of the Indian negotiators was to 30 secure the means for their economic survival in light 31 of the depletion of the animal resources and they were 32 anxious to know what economic assistance the Governor 33 could offer. Commissioner Morris, for his part, was 34 also acutely aware of the difficult circumstances 35 facing the Indians on the prairies and in his speeches 36 to the Indians made it clear that the government 37 assistance which was being offered to develop an 38 agricultural-based economy was not intended to 39 interfere with the Indians' hunting economy. The 40 following passages reflect the supplementary rather 41 than replacement theme of the government's treaty 42 proposals. 43 44 \"Understand me, I do not want to interfere with 45 your hunting and fishing. I want you to pursue 46 it through the country, as you have heretofore 47 done; but I would like your children to be able 24152 Submissions by Mr. Jackson 1 to find food for themselves and their children 2 that come after them. Sometimes when you go to 3 hunt you can leave your wives and children at 4 home to take care of your gardens... 5 6 What I have offered does not take away your 7 living, you will have it then as you have now, 8 and what I offer now is put on top of it...\" 9 10 And Morris shared with the Indians his vision of 11 their future in the context of what the plaintiffs' 12 witness, Dr. Richard Daly, referred to as the mixed 13 economy. 14 15 \"I see the Queen's Councillors taking the Indian 16 by the hand saying we are brothers, we will 17 lift you up, we will teach you, if you will 18 learn the cunning of the white man. All along 19 that road I see Indians gathering, I see 20 gardens growing and houses building; I see them 21 receiving money from the Queen's Commissioners 22 to purchase clothing for their children; at the 23 same time, I see them enjoying their hunting 24 and fishing as before, I seem them retaining 25 their old mode of living with the Queen's gift 26 in addition.\" 27 28 It is readily apparent that the Queen's 29 councillors, in 1876, envisaged the development of a 30 mixed economy and a process of cultural accommodation 31 taking place within the framework of treaty rights and 32 the protectorate responsibility of the crown. It is, 33 my lord, surely ironic that 100 years later one of the 34 Queen's counsels, Mr. Macaulay, in advancing the 35 position of the federal crown, points to this cultural 36 accommodation and the plaintiffs' participation in the 37 mixed economy as evidence of the abandonment of their 38 rights. It is the plaintiffs' submission, however, 39 that this is more than ironic. It is submitted that 40 it demonstrates the extent to which the federal 41 crown's position in this case is not only legally 42 flawed, but also derogates from the honour of the 4 3 crown. 44 My lord, at page 397 \u00E2\u0080\u0094 45 THE COURT: Are you talking about, when you say one of the 46 Queen's counsels, Mr. Macaulay, in advancing the 47 position of the federal crown? Are you talking about 24153 Submissions by Mr. Jackson 1 Mr. Macaulay in this case or are you talking about -- 2 MR. JACKSON: No, Mr. Macaulay in this case. 3 THE COURT: I don't think you spelled his name right. 4 MR. JACKSON: I beg his pardon. It's a typographical error. 5 The sentiment, however, remains. 6 THE COURT: Distinguished counsel appeared at the Privy Council 7 and said to be talking nonsense. That was read 8 yesterday. 9 MR. JACKSON: And of course, my lord, the reference there I was 10 making wasn't intended to be elliptical, was to the 11 federal government's position of abandonment, 12 extinguishment, whereby, as we understand it, they say 13 that the plaintiffs, by participating in a modern 14 economic society and taking some of the benefits of 15 that society, have given up their rights because they 16 have not maintained in its pristine quality the 17 economic modes of their predecessors. That was a 18 position which clearly the Queen's councillors in the 19 mid-nineteenth century envisaged as being exactly the 20 accommodation which would take place and which would 21 in fact be guaranteed by the treaty rights. 22 At page 397 and 398 I give some detailings of 23 further negotiations of treaty number 6, and at 398 I 24 conclude at the top of the page. On August the 26th, 25 1875, after six days of negotiations, treaty 6 was 26 signed. 27 THE COURT: Treaty 5 was in 1874? 28 MR. JACKSON: So treaty number 5 was in 1874, my lord. I'm 29 having as much difficulty with the dates as I did with 30 the location of Toronto, my lord. 31 THE COURT: It's not easy. 32 MR. JACKSON: My friend Mr. Rush will put the record right. 33 At page 399 we say that by 1875 treaties had now 34 been negotiated for lands extending from Lake Superior 35 to the slopes of the Rocky Mountains, encompassing the 36 whole of the prairie region except for what is now 37 southern Alberta. In 1876, treaty number 7 was 38 negotiated with the Blackfoot, Blood, Peigan, Sarcee, 39 and Stony Indian nations for lands lying west of the 40 Cypress Hills (the border of treaty number 4) and east 41 of the Rocky Mountains and south of Red River (the 42 boundary of treaty number 6), an area encompassing 43 some 50,000 square miles. 44 Alexander Morris had strongly recommended to the 45 government in Ottawa, following the conclusion of his 46 negotiation of treaty number 6, that similar 47 negotiations should be entered into with the Blackfoot 24154 Submissions by Mr. Jackson 1 who had a reputation as bold warriors and who had 2 close relationships with the Sioux Indian nation who 3 were involved in warfare with the United States 4 cavalry. Unlike the Saulteaux, Cree and Prairie 5 Assiniboine, the Indian nations of southern Alberta 6 were not on the main travel route through the 7 north-west and they had remained largely outside the 8 major British fur trade network. Their relative 9 isolation has been broken, however, by the American 10 traders from the south. The decade prior to the 11 signing of treaty number 7 had caused unprecedented 12 problems for the Blackfoot. The major item in the 13 American buffalo robe trade was whiskey and its 14 introduction had had a demoralizing effect amongst the 15 Blackfoot. Then, in 1870, smallpox swept across the 16 prairies taking a terrible toll. The combined effect 17 of epidemics, alcohol abuse and the undermining of 18 their hunting economy through the wholesale slaughter 19 of the buffalo by American hunters had major impacts 20 upon Blackfoot society. The arrival of the north-west 21 mounted police into the region in 1874 had effectively 22 stopped the whiskey trade, but following the mounted 23 police came the first white settlers. Furthermore, in 24 1876, the Blackfoot food supply was further threatened 25 by the arrival on the edge of their territory of 5,000 26 Sioux Indians refugees from the wars with the United 27 States. Thus, both from the Blackfoot's recent 28 experience and the government's interest in opening up 29 the region for white settlement, treaty negotiations 30 were a priority. 31 At page 401 I note, my lord, that Morris, although 32 he'd urged the signing of this treaty, was not to 33 preside over its negotiation. He was elevated and 34 while he remained lieutenant-governor of Manitoba and 35 of Keewatin, David Laird, the former minister of the 36 interior, was appointed governor of the territories 37 and also Indian commissioner. It was to Laird that 38 the task of negotiating treaty 7 therefore fell. 39 And my lord, David Laird was referred to in my 40 friend's opening at last Monday for his ringing 41 statement and contemplation of British Columbia in not 42 recognizing the legitimate rights of the Indians west 43 of the Rockies. Mr. Laird's statement will be 44 referred to later on in Mr. Rush's further 45 submissions. 46 Another commissioner who was appointed for the 47 negotiation of treaty number 7 was James McCleod, a 24155 Submissions by Mr. Jackson 1 commissioner of the north-west mounted police, who, by 2 virtue of his ridding the country of the American 3 whiskey traders, was held in high regard by the Indian 4 people and had received from them the name of 5 Stamixotokon, an honorific title much like the titles 6 which the Six Nations had accorded representatives of 7 the colonial governments in the 18th century. 8 You'll recall, my lord, the Six Nations referred 9 to the governor the propriety of Pennsylvania, William 10 Penn, as owners. 11 The treaty negotiations took place at Blackfoot 12 Crossing on the Bow River, one of the principal 13 camping grounds of the Blackfoot nation. The 14 seriousness with which the treaty negotiations were 15 approached by both the crown representatives and the 16 Indian nations concerned is reflected in the following 17 contemporary account from the Toronto Globe, the 18 predecessor in history, if not in title, of the Globe 19 and Mail. 20 21 \"On Wednesday, the commissioners met the chiefs 22 at the great council house. A guard of honour 23 of 50 mounted men accompanied them, commanded 24 by Major Irvine. The police band received 25 them, and at one o'clock the guns fired a 26 salute as the governor and colonel McCleod, 27 took their seats. There were present at the 28 opening of the treaty a number of ladies and 29 gentlemen who had come long distances to 30 witness this novel spectacle (including) the 31 whole white population of Fort McCleod.\" 32 33 You will recall, my lord, the similar spectacles 34 in great town council hall of Philadelphia. I'm not 35 suggesting that Fort McCleod was the western 36 equivalent to Philadelphia, but we have a similar 37 recognition of the importance of this event. 38 THE COURT: I don't know, I've been in Philadelphia and I'm not 39 sure you're right on that. 4 0 MR. JACKSON: 41 42 \"Nearly all of the chiefs and minor chiefs of 43 the Blackfeet, Blood, Peigan, Stony, and Sarcee 44 tribes were seated directly in front of the 45 council house and forming a semi-circle of 46 about one third of a mile beyond the chiefs, 47 about 4,000 men, women and children were 24156 Submissions by Mr. Jackson 1 squatted on the grass, watching with keen 2 interest the commencement of the proceedings.\" 3 4 Commissioner Laird, in addressing the assembled 5 Indian nations, adopted the discourse which had been 6 used by Governor Morris in the earlier treaties, and 7 referring directly to the problems facing the 8 Blackfoot, he said in that passage cited at page 402: 9 10 \"In a very few years the buffalo will probably 11 be all destroyed, and for this reason the Queen 12 wishes to help you to live in the future in 13 some other way. She wishes you to allow her 14 white children to come and live on your land 15 and raise cattle, and should you agree to this 16 she will assist you to raise cattle and grain, 17 and thus give you the means of living when the 18 buffalo are no more.\" 19 20 The proposed treaty terms, which were accepted by 21 the Indian representatives, were basically similar to 22 those in the previous treaties with some modifications 23 to the provisions dealing with agricultural aid. 24 Thus, the terms directed to the Blackfoot and Blood, 25 emphasized cattle rearing, whereas the Stony Indians 26 were expected to take up the cultivation of field 27 crops. 28 After Crowfoot, the principal chief of the 29 Blackfoot, indicated his willingness to sign the 30 treaty on behalf of his people, the other chiefs 31 signified their concurrence. And I've cited at page 32 403 the address of Colonel McCleod, one of the treaty 33 commissioners, former commissioner of north-west 34 place, and we cite it for the significance and the 35 light which it throws on the principles upon which the 36 treaty negotiations were based. 37 Colonel McCleod in addressing the assembled chiefs 38 said: 39 40 \"The chiefs all here know what I said to them 41 three years ago, when the police first came to 42 the country - that nothing would be taken away 43 from them without their own consent. You all 44 see today that what I told you then was 45 true...You say that I have always kept my 46 promises. As surely as my past promises have 47 been kept, so surely shall those made by the 24157 Submissions by Mr. Jackson 1 commissioners be carried out in the future. If 2 they were broken, I would be ashamed to meet 3 you or to look you in the face; but every 4 promise will be solemnly fulfilled as certainly 5 as the sun now shines down upon us from the 6 heavens. I shall always remember the kind 7 manner in which you have today spoken of me.\" 8 9 The preceding review, my lord, of treaties 1 to 7 10 based upon the documentary record compiled by crown 11 officials and white observers, demonstrates the 12 continuity of the crown's recognition of its lawful 13 obligations to obtain Indian consent through the 14 treaty process for the acquisition of western lands 15 needed for settlement and development. In the past 16 decade, research has been undertaken on behalf of the 17 various Indian nations who participated in this period 18 of treaty making to gather the Indian oral history 19 surrounding treaty making. The research done by the 20 Saskatchewan and Alberta Indian nations suggests that 21 these post-Confederation treaties were viewed by the 22 Indian nations involved as establishing a compact to 23 deal with issues of territorial and political 24 integrity within the framework of a protectorate 25 relationship with the crown. To the Indian nations, 26 in the context of negotiations in which their tribal 27 governments negotiated with the government of the 28 Queen, the recognition of the chiefs by the treaty 29 commissioners, as reflected in such protocol as the 30 investing of the chiefs with medals and uniforms, 31 affirmed the authority of these tribal governments. 32 Thus, in Commissioner Laird's official report on 33 treaty 7, he states: 34 35 \"After their names were called over, I gave the 36 head chiefs of the Blackfeet, Blood, Peigans, 37 and Sarcees, their flags and uniforms, and 38 invested them with their medals. While I was 39 shaking hands with them, acknowledging their 40 chiefs in the name of the great Mother, the 41 band played 'God save the Queen.'\" 42 43 THE COURT: Is it convenient to take the afternoon adjournment? 44 MR. JACKSON: That would be an appropriate time, my lord. 45 THE REGISTRAR: Order in court. Court stands adjourned for a 46 short recess. 47 2415? Submissions by Mr. Jackson 1 2 3 4 5 6 (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS) 7 8 I hereby certify the foregoing to be 9 a true and accurate transcript of the 10 proceedings herein transcribed to the 11 best of my skill and ability. 12 13 14 Tanita S. French 15 Official Reporter 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 24159 Submissions by Mr. Jackson 1 THE REGISTRAR: Order in court. 2 THE COURT: Mr. Jackson. 3 MR. JACKSON: As I understand, Your Lordship has been acquainted 4 with the bad news that we will be going on late 5 tonight. 6 THE COURT: Well, not really. 7 MR. JACKSON: Subject to Your Lordship's wishes, I would propose 8 to go until 5:00. 9 THE COURT: Yes, that's \u00E2\u0080\u0094 10 MR. JACKSON: Take a break \u00E2\u0080\u0094 I spoke to Madam Reporter, and she 11 said we should break at 4:15 for a short time. 12 THE COURT: Yes, we'll do that. 13 MR. JACKSON: Top of page 405, my lord. And I was very briefly 14 reviewing the Indian oral history relating to the 15 negotiations of these -- of this series of treaties, 16 and according to that, the Indian Nations view 17 themselves as having created an ongoing relationship 18 with the Crown with respect to social and economic 19 development in exchange for lands surrendered. The 20 Indian Nations do not view themselves as having given 21 up their jurisdiction over their people and those 22 resources upon which their livelihoods depended. The 23 Indian Nation, in agreeing to the annuity provisions, 24 established a political protocol for the annual review 25 of the implementation of the treaty promises. 26 In this way the oral history shows that the 27 principles embodied in the post-Proclamation treaties 28 are consistent with those embodied in the treaties 29 concluded with the Six Nations and the Crown a century 30 before. But while there is a clear line of continuity 31 in the principles and processes underlying the 32 Covenant Chain and Post-Confederation treaty making, 33 what had changed in the intervening centuries had been 34 the balance of power between the Indian Nations and 35 the Crown and the actual condition of the Indians. 36 More specifically, as we have shown, the Indians of 37 the prairies were facing increased white settlement, 38 devastating epidemics, the influx of whiskey traders 39 into the northwest, and the disappearance of the 40 buffalo. This is reflected in the different ways in 41 which the protectorate role of the Crown is embodied 42 in the Post-Confederation treaties. It is not 43 confined to preserving the Indian Nations territorial 44 and political integrity within the unceded lands, but 45 also extends to the protection of the traditional 46 Indian economy and assistance in the development of 47 new forms of Indian economic self-sufficiency. 24160 Submissions by Mr. Jackson 1 The Indian oral history has also revealed very 2 significant differences between the text of the 3 treaties negotiated in the 1870's and the Indian 4 understanding. The most -- 5 THE COURT: I'm sorry, Mr. Jackson, I am not following this. 6 What is the significance of the oral history in this 7 connection? There is a written history, and is there 8 a difference? 9 MR. JACKSON: Well, my lord, the difference is what I am just 10 getting to. 11 THE COURT: All right. 12 MR. JACKSON: In the sense -- and as I will point out, this is 13 not an issue before Your Lordship as to the 14 difference. There is a point of significance we say 15 in terms of the nature of the Indian rights which were 16 the subject of treaty making. And very briefly at 17 page 406 and 407 I have indicated the main elements of 18 the difference, in terms of the extent of the rights 19 ceded. 20 At the bottom of page 406 the oral history which 21 has been assembled in relation to Treaties 4 and 6 has 22 revealed that the elders believed that their ancestors 23 understood the treaty as providing for a limited 24 surrender or sharing of territorial rights. The 25 anticipated white settlement was agricultural. 26 And over on page 407, the elders' understanding is 27 that the cession did not extend to resources not 28 necessary for agriculture but vital to the Indian 2 9 economy. 30 And you will see at the bottom of page 407, my 31 lord, I make the point that the issue of the 32 differences between the written text of the treaties 33 and the Indians' understanding of them, according to 34 the oral traditions is not an issue before this court. 35 And as Your Lordship has observed, there was a common 36 understanding, and that common understanding of both 37 the Crown and the Indian Nation was that Indian 38 consent was a necessary prerequisite to the 39 acquisition by the Crown of rights to settle and 40 develop Indian territory. 41 And that is the principle reason and purpose for 42 which this evidence is submitted and why these 43 submissions, we say, are relevant to understanding 44 what the fundamental principles governing Indian Crown 45 relationships are. 46 The relevance of the distinctive Indian 47 understanding of the limited nature of the cession and 24161 Submissions by Mr. Jackson 1 the retention of their rights to self-government is 2 that, we say, is that it is a historical link with the 3 treaty making in the 17th and 18th centuries, and 4 explains why Indian Nations in a contemporary 20th 5 century context forcibly argue that the entrenchment 6 of their existing treaty rights in Section 35 gives 7 constitutional recognition to Indian self-government 8 within the context of Canadian confederation and 9 Indian ownership and jurisdiction of the lands and 10 resources essential to Indian economic 11 self-determination. 12 And we will be coming back to that point, my lord, 13 when we deal with Section 35, and also when we deal 14 with the issue of whether or not these treaties 15 constitute a recognition of Indian jurisdiction. 16 I want to turn now, my lord, to Treaties 8 to 11, 17 negotiated in 1899 to 1921. And as Your Lordship will 18 observe, there was a 22 year hiatus between Treaty no. 19 7, the last of what we may call the settlement 20 treaties, treaties essentially designed to open up 21 territory for agricultural settlements, and Treaty no. 22 8 of the first of what can best be described as the 23 northern resource development treaties. 24 And Treaty 8 is, of course, of particular 25 relevance in this case, because it is the only one of 26 the numbered treaties which covers part of British 27 Columbia. When Treaties 1 to 7 were signed in the 28 1870's, the Canadian government knew little about the 29 land lying to the north of the fertile belt or about 30 the native people of the region. However, in the 31 years after 1876 the government became increasingly 32 aware of the potential for settlement of the area, its 33 natural resources and the situation of the Indian 34 Nation inhabiting the region. Missionaries in 35 particular petitioned the government to sign a treaty 36 to alleviate the economic hardships facing some of the 37 Indians. The government of the day, however, held to 38 the view that the making of a treaty may be postponed 39 for some years, or until there is a likelihood of the 40 country being requested for settlement purposes. 41 It was not, however, settlement possibilities, but the 42 anticipated wealth of the natural resources of the 43 north which fueled further initiatives for treaty 44 making. 45 As early as 1793, Alexander MacKenzie had 46 mentioned in his journals that tar and oil could be 47 found oozing from the banks of the Athabasca. 24162 Submissions by Mr. Jackson 1 However, it was not until the late 1870's and the late 2 1880's that government geologists and geographers 3 began to take serious notice. In 1888, the government 4 surveyors reported that there was oil in the MacKenzie 5 Valley. 6 By 1891, page 410, there was sufficient importance 7 attached to the mineral wealth of the north that 8 serious plans were made for signing a treaty with the 9 Indians in the summer of 1892. The Privy Council 10 report authorizing the treaty clearly indicated that 11 the government's primary motivation was to extinguish 12 the Indian title prior to the development of mineral 13 resources and the construction of railways. 14 THE COURT: That refers to the Canadian Privy Council? 15 MR. JACKSON: Yes, my lord. 16 THE COURT: Yes, thank you. 17 MR. JACKSON: 18 19 \"On a report dated 7 January, 1791, from the 20 Superintendent of General Indian Affairs, 21 stating that the discovery of the district 22 Athabasca and in the McKenzie River country, 23 that immense quantities of petroleum exist 24 within certain areas of these regions, as well 25 as the belief that other minerals and 26 substances of economic value such as sulpher 27 and salt are to be found therein, the 28 development of which may add materially to the 29 public wealth, and the further consideration 30 that several railway projects, in connection 31 with this portion of the dominion, may be given 32 effect to at no such remote date...appear to 33 render it advisable that a treaty or treaties 34 should be made with the Indians who claim these 35 regions as their hunting grounds, with a view 36 to the extinguishment of the Indian title in 37 such portions of the same, as it may be 38 considered in the interest of the public to 39 open up for settlement. The minister, after 40 fully considering the matter, recommends that 41 negotiation for a treaty be opened up during 42 the ensuing season.\" 43 44 My lord, again you can see the continuity here 45 between the Robinson treaties, where the treaties were 46 initiated as a result of discovery of mineral wealth 47 around Lake Huron, and this initiation of treaty 24163 Submissions by Mr. Jackson 1 making in 1891. 2 THE COURT: This date in the first line of that passage must be 3 1891. 4 MR. JACKSON: Should be 1891, my lord. 5 THE COURT: Thank you. 6 MR. JACKSON: As it turned out, my lord, while this was meant to 7 initiate treaty making, no such treaty negotiations 8 were opened up in 1892. The reasons have to do with 9 political instability followed by the death of Prime 10 Minister MacDonald, and we aren't terribly concerned 11 with those facts. 12 Paradoxically, it was the discovery of gold in the 13 Klondyke in 1896 which eventually precipitated the 14 negotiation of Treaty No. 8. The entry of large 15 numbers of white prospectors, mainly Americans, into 16 the MacKenzie Valley on their way to the Yukon gold 17 fields and the problems this posed for peaceful 18 relationships with the native people of the area led 19 to renewed calls for a treaty. In 1897 a report from 20 the Northwest Mounted Police referred to the intrusive 21 effects of white trappers, and that the Indians felt 22 it unjust the people who are not owners of the country 23 are allowed to rob them of their living. 24 In June of 1898, some 500 Indians from the Fort 25 St. John region of British Columbia asserted their 26 territorial rights by refusing to allow police and 27 miners to pass through the area until a treaty was 28 signed. They protested that some of their horses had 29 been shot, and that the influx of so many men would 30 drive away fur-bearing animals. 31 And I set out at the top of page 412 a report from 32 Charles Mair, who accompanied the so-called half-breed 33 commission, which went with the treaty commissioners 34 for Treaty No. 8, a document which gave the holder the 35 right to take up an acreage, which was the way in 36 which the Metis were dealt with as part of the 37 negotiation of Treaty No. 8. And Charles Mair notes 38 the congenital attempt, being his rights displayed by 39 the -- those on their way to making fame and fortune 40 in the Klondyke. He says: 41 42 \"An outcry arose in consequence, which 43 inevitably would have led to reprisals and 44 bloodshed had not the government stepped in and 45 forestalled further trouble by a prompt 46 recognition of the natives' title.\" 47 24164 Submissions by Mr. Jackson 1 Aside from conflicts between miners enroute to the 2 Yukon and the Indian people, the government was also 3 concerned that the gold rush would open other areas of 4 the north to both mining and agriculture. In 1980, 5 the Deputy Minister of Indian Affairs gave this 6 detailed explanation. 7 THE COURT: I'm sorry, in 1900. 8 MR. JACKSON: In 1900 the Deputy Minister of Indian Affairs gave 9 this detailed explanation of why negotiations for 10 Treaty 8 were initiated: 11 12 \"Although there was no immediate prospect of any 13 such invasion by settlement as threatened the 14 fertile belt in Manitoba and the Northwest 15 Territories and dictated the formation of 16 treaties with the original owners of the soil, 17 nonetheless, occasional squatters had found 18 their way at any rate into the Peace River 19 district. 20 While under ordinary circumstances, the 21 prospect of any considerable influx might have 22 remained indefinitely remote, the discovery of 23 gold in the Klondyke region quickly changed the 24 aspect of the situation. Parties of white men 25 in quest of a road to the gold fields began to 26 traverse the country, and there was not only 27 the possibility ahead of such travel being 28 greatly increased, but that the district itself 29 would soon become the feed of prospectors who 30 might at any time make some discovery which 31 would be followed by a rush of miners to the 32 spot. In any case, the knowledge of the 33 country obtained and diffused, if only by 34 people passing through it, could hardly fail to 35 attract attention to it as a field for 36 settlement. For the successful pursuance of 37 that human and generous policy which has always 38 characterized the dominion in its dealings with 39 the aboriginal inhabitants, it is of vital 40 importance to gain their confidence at the 41 outset, for the Indian character is such that, 42 if suspicion or distrust once be aroused, the 43 task of eradication is extremely difficult. 44 For these reasons it was considered that the 45 time was right for entering into treaty 46 relations with the Indians of the district, and 47 so setting at rest the feeling of uneasiness 24165 Submissions by Mr. Jackson 1 which was beginning to take hold of them, and 2 laying the foundation for permanent, friendly 3 and profitable relations between the races.\" 4 5 And \"permanent, friendly and profitable relations 6 between the relations\", my lord, was meant to be 7 underlined. 8 We say, my lord, that the contemporaneous evidence 9 surrounding the negotiation of Treaty 8 leaves little 10 doubt that the foundation for permanent, friendly and 11 profitable relationships between the races lay in a 12 compact, whereby the Indians would guarantee innocent 13 passage for whites in exchange for the Crown's 14 guarantee of non-interference with the Indians' 15 traditional economy and political autonomy. Although 16 Treaty 8 was conceived in part by the government of 17 Canada as one of peace and friendship, its actual 18 text, like that of its predecessors, contains the 19 standard clause whereby the Indian Nations cede all of 20 their legal interests in the lands comprised within 21 the treaty area. The text also contains that the by 22 now familiar provisions regarding payment of 23 annuities, provision of educational assistance and the 24 supply of agricultural implements and supplies -- 25 MR. WILLMS: My lord, my friend read \"the contemporaneous 26 evidence\", and I don't know what evidence at trial. 27 Maybe that's not what he means by evidence at trial by 28 \"contemporaneous evidence\". I don't recall any 29 evidence that supports those propositions. If my 30 friend knows of some he hasn't cited -- 31 MR. JACKSON: I wasn't referring to evidence given in this 32 trial, my lord. I was referring to the evidence which 33 we say is contained in the various treaties, which is 34 contained in the decision of Paulette surrounding the 35 negotiation of Treaty No. 8 was that reference, not to 36 any specific evidence which has been led in this 37 trial. 38 THE COURT: You are talking about learning. 39 MR. JACKSON: Learning, my lord. And we say, my lord, over at 40 page 414, and this is what I am referring to by what I 41 may -- there characterizes contemporaneous evidence. 42 At page 414 we say despite the explicit text of 43 Treaty 8, which as I say contains the standard clause 44 of the number of treaties whereby the Indians cede, 45 release, yield up their rights, the documenatary 46 record of the negotiation of the treaty and the Indian 47 oral history is to the effect that the Indian people 24166 Submissions by Mr. Jackson 1 did not see the treaty as a surrender of their 2 aboriginal rights. Rather they considered it as a 3 treaty of peace and friendship. 4 And Mr. Justice Berger in his report on MacKenzie 5 Valley Pipeline Inquiry, made note of the fact that 6 many of the witnesses that gave evidence before him 7 record the words that Chief Drygeese spoke when Treaty 8 8 was signed at Fort Resolution in the dying days of 9 the 19th century. Drygeese said: 10 11 \"If it is going to change, if you want to change 12 our lives, then it is no use taking treaty, 13 because without treaty we are making a living 14 for ourselves and our families ... I would like 15 a written promise from you to prove you are not 16 taking our land away from us ... there will be 17 no closed season on our lands. There will be 18 nothing said about the land ... my people will 19 continue to live as they were before and no 20 white man will change that ... you will in the 21 future want us to live like white man does and 22 we do not want that ... the people are happy as 23 they are. If you try to change their ways of 24 life by treaty, you will destroy their 25 happiness. There will be a bitter struggle 26 between your people and my people.\" 27 28 And at page 415 I set out a similar concern 29 expressed during the treaty negotiations at Lesser 30 Slave Lake. 31 At page 416, my lord, the treaty commissions 32 themselves in their report to the government on the 33 negotiation of Treaty 8 commented on the pervasiveness 34 of the Indian concerns that their way of life not be 35 interfered with, and the promises which they had to 36 give in order to assure the signing of the treaty. 37 38 39 \"Our chief difficulty was that the apprehension 40 that the hunting and fishing privileges were to 41 be curtailed. The provision in the treaty 42 under which ammunition and twine is to be 43 furnished went far in the direction of quieting 44 the fears of the Indians, for they admitted 45 that it would be unreasonable to furnish the 46 means of hunting and fishing if laws were to be 47 enacted which would make hunting and fishing so 24167 Submissions by Mr. Jackson 1 restricted as to render it impossible to make a 2 livelihood by such pursuits. But over and 3 above the provision, we had to solemnly assure 4 them that only such laws as to hunting and 5 fishing as were in the interest of the Indians 6 and were found necessary in order to protect 7 the fish and fur-bearing animals would be made, 8 and that they would be as free to hunt and fish 9 after the treaty as they would be if they never 10 entered into it ... the Indians were generally 11 averse to being placed on reserves. It would 12 have been impossible to have made a treaty if 13 we had not assured them that there was no 14 intention of confining them to reserves. We 15 had to very clearly explain to them that the 16 provisions for reserves and allotments of land 17 were made for their protection, and to secure 18 to them in perpetuity a fair portion of the 19 land ceded, in the event of settlement 2 0 advancing.\" 21 22 And, my lord, when we deal with the reserve 23 question in the context of British Columbia, we will 24 be addressing this issue of the extent to which 25 promises and guarantees of reserves were seen by 26 Indians in British Columbia outside of the treaty in 27 context as being a recognition of the full extent of 28 their rights to lands, or whether those reserves were 29 granted with the knowledge and assurances that this 30 did not foreclose claims and rights to areas outside 31 of the reserves. 32 Treaty 8 was first signed by Indians within 33 British Columbia in 1900 in Fort St. John. However, 34 for many years a number of Indian bands within the 35 territorial limits of Treaty 8 resisted the idea of 36 signing treaty. Thus, a report of the inspector for 37 Treaty No. 8, in 1903, noted in relation to one such 38 group: 39 40 \"The Indians at this place are very independent 41 and cannot be persuaded to take treaty. Only a 42 few families joined. The Indians there said 43 they did not want to take treaty, as they had 44 no trouble in making their own living. One 45 very intelligent Indian told me that when he 46 was old and could not work, he would then ask 47 the government for assistance, but until then 2416? Submissions by Mr. Jackson 1 he thought it was wrong for him to take 2 assistance when he did not really require it.\" 3 4 And I note at the bottom of page 417 and the top 5 of page 418 that it was some years before other 6 Indians were brought into the legal purview of Treaty 7 No. 8 in British Columbia. 8 At page 418 the boundaries of Treaty 8 were drawn 9 to include the areas likely to be opened up by miners 10 or settlers, and did not include the area inhabited by 11 the Indians north of Great Slave Lake, even though the 12 Indians in that area were in fact related very much to 13 Indians south of the lake. 14 In the words of the Indian commissioner Amedee 15 Forget. 16 17 \"That territory so far as it is at present known 18 is of no particular value and they very rarely 19 come into contact with whites.\" 20 21 That official position, my lord, was maintained 22 that there was no need to negotiate a treaty with the 23 Indians north of Great Slave Lake until a dramatic 24 moment in 1920. Page 419 you will note that dramatic 2 5 moment as the moment when the imperial oil company 26 struck oil on the MacKenzie River below Fort Norman. 27 And the government quickly moved to ensure that these 28 oil rich lands would be legally open for industrial 29 development and free of any Indian proprietary 30 interest. The dominion surveyor wrote: 31 32 \"The recent discovery of oil at Norman Wells 33 have been made on lands virtually belonging to 34 those tribes of non-treaty Indians. Until 35 treaty has been made with them, the right of 36 the mining lands and Yukon branch to dispose of 37 these oil resources is open to debate.\" 38 39 And, my lord, the significance of this, we say, is 40 that the delay of signing Treaty no. 11, there were 41 humanitarian reasons for negotiating the treaty 42 before, in terms of peaceful relationships with the 43 Indians. They were in considerable dire strait, as 44 reported by the Bishop of the Northwest Territories. 45 The Crown, however, determined that only when the 46 lands were -- it was necessary as it were to remove 47 the legal impediment to resource development, that 24169 Submissions by Mr. Jackson 1 treaty negotiations were opened up to remove that 2 impediment and as it were to remove any legal cloud on 3 the title of the Crown to develop those resources. We 4 say that is highly significant evidence that it was a 5 legal entitlement, aboriginal title was recognized and 6 that treaty making was the appropriate way in which 7 aboriginal title was extinguished in order to free the 8 Crown's rights to develop resources. And the 9 negotiation of Treaty 11, if not an example of the 10 honour of the Crown in responding to Indian needs, 11 certainly reflects the continuity of the principle 12 that an extinguishment of their rights is necessary 13 before lands can be developed by the Crown. 14 And page 419 at the bottom of the page I set out 15 the negotiations of Treaty no. 11. It was negotiated 16 in a remarkable short space of time following upon the 17 discovery of oil on the MacKenzie River, and I make 18 the point that as in the case of Treaty No. 8, the 19 Dene, the Indians of the Northwest Territories, 20 maintain that as they understand the treaty 21 negotiations, despite its very explicit text, they 22 ceded all their rights subject to certain guarantees 23 in relation to hunting and trapping, that the treaty 24 was one of peace and friendship, and that they did not 25 surrender either their right to self-government, nor 26 did they surrender the rights to territories upon 27 which their traditional economy is based. 28 And because, I say, my lord, at page 420 of the 29 relative proximity of time in Treaty no. 11, it's 30 1921, we have in fact an oral history of this treaty 31 which has been documented. And it has been documented 32 in it two ways. One through evidence which was 33 presented during the course of the hearings before Mr. 34 Justice Morrow in the Paulette decision in 1974 in 35 which Mr. Justice Morrow journeyed to a number of the 36 villages in which -- 37 THE COURT: Mr. Jackson, I can understand why you want me to 38 hear about these treaties and the economic 39 circumstances surrounding them, but I am a little 40 troubled about oral testimony that contradict the 41 terms of the treaties and how that can possibly be 42 relevant to this case. 43 MR. JACKSON: Well, my lord, the only point I wish to make in 44 relation to Treaties 8 and 11 is that the negotiation 45 of those treaties, as it's reflected in the oral 46 evidence, reflects an Indian understanding that those 47 treaties did not amount to a surrender of their rights 24170 Submissions by Mr. Jackson 1 to self-government. 2 THE COURT: Well, I can understand that being litigated someday, 3 but I am completely unable to understand how it can 4 have any relationship to this case. 5 MR. JACKSON: My lord, I don't \u00E2\u0080\u0094 I don't rely upon that 6 evidence for more than the proposition which I have 7 just asserted, that the treaty making of Treaty 8 and 8 11 -- 9 THE COURT: Recognized a legal obligation? 10 MR. JACKSON: Yes, my lord. 11 THE COURT: I have that point. 12 MR. JACKSON: I can move -- and in terms of the litigation, the 13 Paulette decision, of course, was a case in which the 14 question of Treaty 8 extinguish the aboriginal title 15 of the Indians was before the Court at an 16 interlocutary stage for the purpose of determining 17 whether or not a caveat could be issued against those 18 lands on the basis that the Dene had unextinguished 19 aboriginal title, and that the treaty was not legally 20 effective to extinguish that title for a variety of 21 reasons, one of which that there was not a consensus 22 ad item, and that's where the oral history came in, my 23 lord. And in that case Mr. Justice Morrow came to the 24 conclusion that based upon the oral history there was 25 a serious issue to be tried, as it were, and that on 26 that basis a caveat could be issued. 27 On that point, as I note at 422, the Northwest 28 Territories Court of Appeal and the Supreme Court of 29 Canada took the position not dealing with the issue of 30 treaty rights at all that a caveat could not be issued 31 against unregistered Crown lands. 32 At page 422, my lord, I deal with two other 33 treaties which were negotiated as part of the numbered 34 treaties. Chronologically they were negotiated in the 35 years between Treaty 8 and 11. Treaty no. 10 was 36 negotiated in 1906 and 1907 with the Chippewa and Cree 37 of Northern Saskatchewan, and dealings with part of 38 northeast Alberta, and northern -- and northern 39 Saskatchewan and part of northeast Alberta, and Treaty 40 no. 9, which is sometimes referred to as the James Bay 41 Treaty, was signed with the Ojibway and Cree of 42 Northern Ontario in 1905. 43 And you will see, my lord, that we say that the 44 negotiation of Treaty no. 9, as with the other 45 treaties we have considered, was undertaken with a 46 view to extinguish the Indian title in order to enable 47 development to proceed in northern Ontario. And the 24171 Submissions by Mr. Jackson 1 letter of transmission from the treaty commissioners 2 to the Superintendent General of Indian Affairs is 3 quite explicit: 4 5 \"Increasing settlement, activity in mining and 6 railway construction in that large section of 7 the Province of Ontario... render it advisable 8 to extinguish the Indian title.\" 9 10 At page 423, my lord, we note that Treaties 9 and 11 10 follow the standard model of the other numbered 12 treaties, save and except for the fact that one of the 13 three treaty commissioners for Treaty no. 9 was 14 selected by the provincial government. Like the other 15 treaties, Treaty 9 was drafted by the federal 16 government. Ontario took part in negotiations only at 17 the very end. The reason for Ontario's presence, 18 again takes us back to the Privy Council decision in 19 St. Catherine's Milling. For present purposes of 20 understanding Ontario's involvement in Treaty no. 9, 21 it's sufficient to note that following confederation a 22 dispute arose between the Dominion Government and the 23 government of Ontario over the provincial boundaries. 24 Ontario claimed that its western limit extends to the 25 Lake of the Woods, and its northern boundary to the 26 Albany River, and this territory was awarded to 27 Ontario in 1884 as a result of the decision of the 28 judicial council in another case. The Dominion, 29 however, still claimed the natural resources of the 30 disputed lands by virtue of Treaty no. 3, and granted 31 a licence to St. Catherine's Milling. And litigation 32 ensued, the legal effect of which was determined that 33 the benefits of Treaty no. 3 enured to Ontario. 34 Ontario continued to dispute the status of reserve 35 lands granted to the Indians by the Dominion Treaty 36 Commissioners in Treaty no. 3. And to resolve this 37 outstanding dispute, in 1894 both the federal 38 government and Ontario government signed an agreement 39 clarifying the question of Treaty 3 reserves. And 40 under that agreement it was provided that any future 41 treaties with the Indians in respect of territory in 42 Ontario, they should require the concurrence of the 43 government of Ontario. And was also a provision that 44 one member of any treaty commission should be 45 nominated and should represent Ontario. 46 At page 424, 425, my lord, I have set out in 47 summary form the judgment of the provincial court in 24172 Submissions by Mr. Jackson 1 Crown against Batisse, where the learned Judge 2 Bernstein rejected Ontario's argument that by virtue 3 of this federal provincial agreement, Ontario, as it 4 were, gained a legal footing in Treaty no. 9, and that 5 by virtue of Ontario's participation in the treaty, it 6 gained the right to regulate Indian hunting rights. 7 That argument was rejected. 8 At page 425 and 426 and 427 I note that there was 9 several other treaties, which although not part of the 10 numbered treaties, were negotiated in 1923 to complete 11 the extinguishment of Indian title in the last large 12 areas of unceded land in southern Ontario. And Your 13 Lordship will observe that it appeared that there were 14 certain areas in southern Ontario which were claimed 15 by the Chippewas, which had never been the subject of 16 a valid treaty, and as a result of a Royal Commission 17 looking into the matter, it was recommended that 18 further treaties be made with these Indian Nations in 19 order to quiet or perfect the Crown's title to those 20 lands. And those treaties were negotiated in 1923. 21 And what we say at page 427 is that these treaties 22 in 1923, like their predecessors, reflect the 23 continuity of the acknowledgement and recognition by 24 the Crown of its legal obligation to obtain a 25 surrender to the treaty process of the legal interest 26 of the aboriginal peoples in their territories prior 27 to the opening up of that territory for settlements 28 and agricultural or industrial development. 29 No more numbered treaties were signed, my lord, 30 after Treaty no. 11 in 1921, although over the years 31 there had been significant adhesions and extensions of 32 the existing treaties. I noted that, for example, 33 Treaty No. 8, even though it was signed initially in 34 1900, as the treaty commissioners would go and journey 35 through the areas on their annual treaty making 36 journeys, Indians would be brought into the treaty who 37 were not present in previous years, and therefore 38 there were a series of adhesions over the years in 39 B.C., and there were adhesions to the other numbered 40 treaties down to as late as 1956 for adhesions to 41 Treaty no. 6. 42 THE COURT: Did British Columbia join Treaty 8? 43 MR. JACKSON: British Columbia was not a participant to Treaty 44 No. 8. The question of British Columbia's involvement 45 in recognition of in relationship to Treaty no. 8 is 46 the subject, my lord, both of specific submissions by 47 my friends, and Mr. Rush will in fact also be dealing 24173 Submissions by Mr. Jackson 1 with that issue. 2 THE COURT: Yes, all right. 3 MR. JACKSON: It is our position, my lord, that British Columbia 4 agreed to and accepted the terms of Treaty No. 8. 5 MR. JACKSON: I want now, my lord, to turn to the last section, 6 and it is for the period 1975 to 1990, which I have 7 termed \"Modern Treaty Making\". 8 My lord, the over 300 year history of treaty 9 making with Indian Nations experienced a hiatus in the 10 years following the signing of Treaty no. 11 in 1921 11 and the last southern Ontario treaties in 1922. The 12 period after 1925 was also one in which, as we shall 13 show later in our submissions, after a century during 14 which the courts regularly were required to address 15 issues of aboriginal rights, the concept of aboriginal 16 rights itself went into legal partial eclipse. In 17 part, the relative lack of judicial consideration and 18 development of aboriginal rights during this period 19 can be explained by an amendment to the Indian Act 20 passed in 1927 which prohibited Indian people from 21 either raising money for the advancement of a land 22 claim or prosecuting claims to land. This provision 23 remained in force until a major revision of the 24 Indian Act in 1951. 25 During the 1950's and 60's a number of proposals 26 were made for the establishment of an Indian claims 27 commission to deal with both issues arising from 28 treaty and aboriginal rights claims paralleling the 29 Indian claims commission which had been established in 30 the United States. 31 And tomorrow or the next day, my lord, I think it 32 will be late tomorrow at the earliest, I will be 33 addressing the Indian claims process in the United 34 States, and it was the initiatives were based upon 35 that model. 36 However, in 1969 the post-war momentum behind the 37 resolution of claims based on aboriginal rights was 38 halted with the statement of the government of Canada 39 on Indian policy, the so-called 1969 white paper which 40 called for a dramatic shift in the historical 41 relationship between aboriginal peoples and the 42 Canadian government. Although the government 43 indicated that it would be prepared to resolve lawful 44 obligations, such as improper administration of Indian 45 funds and breach of treaty rights, including failure 46 to set aside reserves as promised in treaties, it did 47 not regard claims based on aboriginal rights as an 24174 Submissions by Mr. Jackson 1 important element of the proposed new policy. And 2 that policy essentially called for the termination of 3 the special rights and status of aboriginal peoples 4 within Canadian society. The destiny of Canada's 5 aboriginal peoples was to be no more and no less 6 than equal access to the ordinary rights and 7 opportunities of other Canadians. 8 And, my lord, at page 429 I have set out a speech 9 made by the again Prime Minister of Canada, Pierre 10 Elliot Trudeau, in August of 1969, which sets out the 11 government of Canada's position as of that point. And 12 I would just refer Your Lordship to several pages. 13 Before I start, my lord, I believe your lordship's 14 copy of this text is missing page 430 and 431. Is 15 that \u00E2\u0080\u0094 16 THE COURT: I have 430. I have them. 17 MR. JACKSON: There are new 430 or 431. These pages \u00E2\u0080\u0094 I am the 18 least conversant on our legal team with computers -- 19 and as these pages when they got reformated 20 disappeared, reappeared in a revised version, and I 21 have an almost correct version here. There are still 22 a couple of lines missing, which I will have to take 23 Your Lordship to, but if you can substitute these 24 pages for the ones you had, and tomorrow I will give 25 you a revised page 431. I apologize for this, my 26 lord. 27 THE COURT: You mean you are going to change 431 again? 28 MR. JACKSON: 431, when we get to the end of 431, my lord, there 29 is several lines which are missing. 30 THE COURT: I see. All right. 31 MR. JACKSON: But, in 1969 Mr. Trudeau, and I am going to the 32 bottom of the page, four lines up where he says: 33 34 \"One of the things the Indian bands often refer 35 to are their aboriginal rights. And in our 36 policy the way we propose it, we say we won't 37 recognize aboriginal rights. We will recognize 38 treaty rights, we will recognize forms of 39 contract which have been made with the Indian 40 people by the Crown, and we will try to bridge 41 justice in that area. And this will mean that 42 perhaps the treaties shouldn't go on forever. 43 It's inconceivable, I think, that in a given 44 society one section of society have a treaty 45 with the other section of society. We must be 46 all equal under the laws, and we must not sign 47 treaties amongst ourselves, and many of these 24175 Submissions by Mr. Jackson 1 treaties indeed would have less and less 2 significance in the future anyhow.\" 3 4 Then a few lines down, my lord. 5 THE COURT: This is just Mr. Trudeau talking making a speech, 6 isn't it? 7 MR. JACKSON: This is Mr. Trudeau making a speech, my lord, in 8 relation to a government policy. 9 THE COURT: That's surely not of any evidentiary value. 10 MR. JACKSON: My lord, we say it's not. My purpose in citing it 11 is to help Your Lordship tract through the various 12 shifts in government policy in this period, not in and 13 of themselves that they are significant. Government 14 policy, we say, is not necessary evidence, nor 15 sufficient evidence of lawful obligations, but we are 16 tracting through in a very brief way government policy 17 against what we say is a continuing process of treaty 18 making. 19 THE COURT: I just don't think I can give any legal effect to 20 something the prime minister makes in a speech. He 21 may well -- he was the prime minister, but that's not 22 how legal rights are decided. 23 MR. JACKSON: No, my lord, and as you will very shortly see, Mr. 24 Trudeau having given his opinion, and I take Your 25 Lordship's point, that it is his opinion, that opinion 26 was very quickly changed precisely because of a legal 27 adjudication in the form of the Calder case having in 28 1969 taken the case that Indians had no rights. 2 9 THE COURT: Well, go ahead. 30 MR. JACKSON: And the point I am seeking to get to is that in 31 1973, following the decision of the Supreme Court of 32 Canada in Calder, where six judges of the Supreme 33 Court who dealt with the merits in our submission took 34 the position that aboriginal rights did indeed exist 35 in law. They split on the question of whether in 36 British Columbia those rights continued to exist, and 37 of course that is the precise issue before Your 38 Lordship, but the judges of the Supreme Court having 39 taken the position that there was in fact a wealth and 40 depth of juris prudence on the issue of aboriginal 41 rights, the government in 1973 issued a new policy 42 position in which it acknowledged a continuing 43 obligation on the part of the government to negotiate 44 treaties or land claim settlements. And my point in 45 referring to this is only, my lord, because it is this 46 new policy statement in 1973 which marks the beginning 47 of what I say is the modern era of treaty making. And 24176 Submissions by Mr. Jackson 1 I don't cite the policy for anything more than that, 2 my lord, and I don't ask Your Lordship to take 3 judicial notice or to use the policy in any way in the 4 adjudication of the rights of the plaintiffs. 5 MR. WILLMS: My lord, I am concerned about the references to 6 policy to this extent. My friend seems to say that 7 they finally got the policy in accordance with the 8 legal rights, which is an invitation for us to look 9 through other policy statements to show that it was 10 just good grace. None of this was put in evidence. 11 My friend should say that it's political, and that 12 he's not relying on it, as Your Lordship, I think, 13 indicated, or he should say what the purpose of it is, 14 and what the legal effect is, so that we can deal with 15 it if need be. 16 THE COURT: Well, I am not going to stop you, Mr. Jackson, but I 17 have a lot of sympathy with what your friend has said. 18 I can understand all sorts of the comments that you 19 have read to me, because they provide the factual 20 other opinions for executive action creating legal 21 rights, but the politicians have their place of 22 ventilation and we have ours, and I really have 23 difficulty seeing how I can give any legal effect to 24 any of this. I think we are far enough along here 25 that I am not going to stop you. 26 I do say that in defence of my reporters, that you 27 are wearing them out at a very rapid rate, and I hope 28 you won't read anything that doesn't need to be read. 29 If you want my undertaking, I will certainly read it. 30 I haven't got to it yet, but I will read it. But I 31 don't think I see much point to reading it out loud, 32 but I will leave that in your hands to do as you think 33 you have to do. 34 MR. JACKSON: My lord, I will \u00E2\u0080\u0094 I intended to summarize this 35 part of the material in any event, and just addressing 36 myself to my friend's comments, we are not suggesting 37 here that the government's statements at this point, 38 recent statements, are the litmus test of whether Your 39 Lordship should acknowledge the plaintiffs have 40 aboriginal rights or their extent. In the same way, 41 my lord, in reading to you the statements of Crown 42 officials in the 19th century, I was not suggesting to 43 you here is a statement by a Crown official, that's 44 the law. 45 THE COURT: No, I understand that. 46 MR. JACKSON: I was reading those statements, my lord, to the 47 extent they reflect what we say are fundamental 24177 Submissions by Mr. Jackson 1 principles which have grown and ripened off into the 2 rules of the common law and to that extent are 3 reflective of it. And in addressing the shift in 4 government policy in recent years in Canada, it was 5 meant to show why in fact treaty making has been 6 ushered in its most recent modern format. It is our 7 point, my lord, that these recent treaties, the modern 8 land claims agreement, are in fact part of the 9 historical continuity of treaty making in Canada, but 10 these modern treaties are very much reflective and 11 responsive to the recognition of the fundamental 12 principles which we say govern Crown Indian 13 relationships, and to that extent are part of the 14 corpus of material which shows that the principles of 15 consent are essential to the development and 16 settlement of territories originally within the 17 proprietorship of Indian Nations. 18 And, my lord, at the bottom of page 431 I note 19 that since the policy statement of the federal 20 government in 1973 there had been a series of what we 21 refer to as modern land claims agreements. And the 22 ones which are in the text are the James Bay and 23 northern Quebec agreement, the northeastearn Quebec 24 agreement in 1978, the Inuvialuit Final Agreement in 25 1983. And the other agreements which have been left 26 off Your Lordship's copy are the Dene, D-E-N-E, Metis, 27 M-E-T-I-S, comprehensive land claim agreement in 28 principle in May of 1988, and the council for Yukon 29 Indians' comprehensive land claims agreement in 30 principle in May of 1989. 31 And what we say, my lord, is that the entrenchment 32 of aboriginal -- and then at page 432 continues as it 33 is, my lord. The entrenchment of aboriginal and 34 treaty rights in the Constitution Act of 1982 in fact 35 is the best reflection of the continuity of what we 36 say are fundamental principles, and the continuity in 37 the treaty making process between the modern land 38 claims agreements and the earlier treaties is 39 recognized in specifically in the constitution 40 amendment Proclamation of 1983, which provides that 41 treaty rights include rights which -- that now exist 42 by way of land claims agreements or may be so 43 acquired. 44 In other words, the constitution now recognizes, 45 my lord, modern land claims agreements as treaties. 46 And that's why we say these modern land claims 47 agreements are part of the historical chain of 2417? Submissions by Mr. Jackson 1 recognition. 2 And at page 432 through to pages 466 what I have 3 done, my lord, is to set out in a very abbreviated 4 form the main contours of these modern land claims 5 agreements. And I don't intend to take Your Lordship 6 through them, but Your Lordship will see that they 7 bear upon many of the principle themes of the original 8 numbered treaties. They, however, are negotiated with 9 the benefit of hindsight. They are negotiated with 10 the benefit of the way in which broadly based promises 11 in the numbered treaties were to the Indian conception 12 of the matter not implemented. How in fact promises 13 of economic assistance were not in fact sufficient to 14 the purpose. How evidence of protection of hunting 15 rights were not in fact the measure of Indian claims. 16 And these modern agreements seek both by virtue of 17 their complexity and their sophistication to work out 18 an economic and social accommodation, an accomodation 19 of the legal rights of the aboriginal peoples, and an 20 accommodation to the interests of the Crown in the 21 context of a modern complex industrial society. 22 And it is our submission, my lord, that modern 23 treaty making is in fact the principle vehicle for the 24 accommodation of aboriginal peoples and Crown's 25 interests in the same way as it was in the 17th 26 century, in the same way as it was in the 18th 27 century, in the same way as it was in the 19th 28 century. And we say that these modern land claim 29 agreements give Your Lordship a sense of the way in 30 which that accommodation is worked out. They deal 31 with joint management processes for Fisheries, for 32 enviromental protection, for hunting regimes. They 33 give up certain rights on the part of the aboriginal 34 people, certain rights are maintained, and they are 35 the working through of treaty making as we say in the 36 context of a modern complex society. 37 And I would, however, ask Your Lordship to read 38 those sections. I won't in fact be going through them 39 in any more detail. It this would be a convenient 40 time to take a short break, and I can finish probably 41 within half an hour. 42 THE COURT: Yes. All right. We'll take the next adjournment, 43 thank you. 44 45 46 47 24179 Proceedings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 I HEREBY CERTIFY THE FOREGOING TO BE A TRUE AND ACCURATE TRANSCRIPT OF THE PROCEEDINGS HEREIN TO THE BEST OF MY SKILL AND ABILITY. LORI OXLEY OFFICIAL REPORTER UNITED REPORTING SERVICE LTD. 24180 Proceedings 1 2 (PROCEEDINGS RESUMED PURSUANT TO A BRIEF ADJOURNMENT) 3 4 THE REGISTRAR: Order in court. 5 THE COURT: Mr. Jackson. 6 MR. JACKSON: My lord, the only further comment I wish to make 7 about the Modern Land Claims Agreements and, as I 8 said, I will leave it for your lordship in your own 9 reading, is to note the fact that the areas which are 10 covered by the Modern Land Claims Agreement, the James 11 Bay Agreement of 1975 covers some 400,000 square miles 12 of northern Quebec. The Inuvialuit Final Agreement of 13 1983 covers the western Arctic around the Mackenzie 14 Delta. The Dene/Metis Agreement in principle covers 15 the area which was originally the subject of Treaties 16 8 and 11 and therefore covers some approximately 17 450,000 square miles of the western Arctic. The Yukon 18 Agreement, and I understand the final Yukon Agreement 19 is in the process of being initialled, will cover the 20 whole of the Yukon Territory, and an agreement in 21 principle has now been signed between the Inuit of the 22 eastern Arctic and the Government of Canada. And so 23 the Modern Land Claim period is of significance not 24 only because of the way in which it reflects how 25 treaty-making has taken on a great deal of 26 sophistication in the context of the modern industrial 27 society, but also the areas which it now covers brings 28 within the pale of treaty-making most of Canada. 29 And with that, my lord, I want to turn to page 30 466. Before I do and before I forget again, I just 31 want, my lord, to return to the matter which I raised 32 after lunch at the Bernard opinion. That should go 33 into your material, my lord, by way of a note at page 34 371. You will see that there is a natural break at 35 371 beginning with \"Treaty-Making in the 36 post-Confederation Period\", immediately before that, 37 and the exhibit reference, my lord, is 1256. 38 THE COURT: This would be in the space immediately above 39 \"Treaty-making\"? 4 0 MR. JACKSON: Yes, my lord. 41 THE COURT: Yes. Exhibit? 42 MR. JACKSON: 1256-11 tab 35. 43 THE COURT: And that is the legal opinion of who, please? 44 MR. JACKSON: Hewitt Bernard, solicitor for the Department of 45 Indian Affairs. 4 6 THE COURT: And the date? 47 MR. JACKSON: 1866. 24181 Submissions by Mr. Jackson 1 THE COURT: Thank you. 2 MR. JACKSON: 466, my lord. 3 The two principal areas which still remain outside 4 the pale of land acquisition treaties are British 5 Columbia and the Atlantic Provinces. And as we will 6 be demonstrating in British Columbia, the rights of 7 aboriginal peoples were recognized by the colonial 8 authorities in the colony's early development and land 9 acquisition treaties were negotiated in the 1850s. 10 And also, as we have just considered, part of the 11 northeast of the province in the Peace River District 12 is within the boundaries of Treaty 8. In the case of 13 the Atlantic provinces, while the first recorded 14 treaties in what is now Canadian territory were made 15 with the aboriginal peoples of the Maritimes they 16 dealt principally with the question of political 17 relationships rather than land rights. We say, my 18 lord, that a review of treaty-making in the Atlantic 19 provinces and the subsequent historical development of 20 Indian policy in these provinces is relevant to the 21 issues in this case insofar as the position taken by 22 colonial officials in those provinces in many ways 23 parallels that taken by colonial officials in British 24 Columbia in the post Governor Douglas era. And a 25 further and perhaps more important reason for its 26 relevance is that some Canadian judges have taken the 27 position that the lack of land acquisition treaties in 28 the Maritimes is evidence that treaty-making was a 29 matter of policy and not law. And this argument is 30 reduced I think to its baldest form in the judgment of 31 Mr. Justice Steele in Bear Island and I have cited 32 there from his lordship's judgment where he says: 33 34 \"It is also clear that, where there was no 35 concern about Indian insurrection, the Crown 36 did not enter into treaties and paid no 37 attention to any aboriginal rights... In other 38 words, wherever the Crown felt that it could 39 defend its white citizens, it did not provide 40 for treaties with the Indians.\" 41 42 My lord, the Provincial Defendant in its 43 submission appears to us adopts Mr. Justice Steele's 44 position and in characterizing aboriginal rights as 45 rights which are created and which depend upon the 46 good will of the sovereign, adopts Mr. Justice 47 Steele's position and in its defence it points to the 24182 Submissions by Mr. Jackson 1 historical experience in Nova Scotia and the absence 2 of land cession treaties as being the best evidence 3 that in fact treaty-making was a matter of policy, not 4 a matter of legal obligation. And it points to the 5 Maritimes in particular to show that the nature of 6 aboriginal rights, whether arising under the 7 Proclamation or arising as a matter of common law, are 8 personal not propriety interests and are dependent 9 upon the good will of the sovereign and, furthermore, 10 it adopts as we understand it the argument of the 11 Attorney General, the province of Ontario in Bear 12 Island that, where the province grants or makes grants 13 to lands to the extent that those grants conflict with 14 the occupation of Indian peoples, those grants are a 15 revocation of the rights of the aboriginal people 16 because they in effect demonstrate that the pleasure 17 of the Crown has been exercised in a way inconsistent 18 with those continuing rights. 19 And so, my lord, a review of Nova Scotia and New 20 Brunswick we say is important in order for your 21 lordship to resolve that matter, and of course in no 22 way am I seeking to pre-empt my friends. It was an 23 argument which, even before we had their position, was 24 one which we saw was one which other judges had 25 identified for that particular proposition. And it is 26 therefore, my lord, that's the reason why we say we 27 have to look at Nova Scotia. 28 It is our submission, though, before I actually 29 deal with the history and I set it out at page 467, 30 that, as in British Columbia, the later policies in 31 Nova Scotia and New Brunswick placed in the context of 32 the legal and historical matrix of relationships 33 between aboriginal peoples and the Crown, as revealed, 34 my lord, by this long historical review I have engaged 35 upon from the 17th century to the 20th century, placed 36 in that legal and historical matrix are the experience 37 in the Maritimes, are illegal abberations rather than 38 precedents upon which a principled determination of 39 the recognition and content of aboriginal rights is to 40 be reached by this court. 41 Your lordship asks what happened on the ground. 42 This is what happened on the ground in Nova Scotia, 43 New Brunswick, my lord. 44 Although the British Crown asserted claims over 45 most of the Maritime region of Canada as early as 1620 46 in the New England Charter, until 1713 with the Treaty 47 of Utrecht the region had, with some interruptions, 24183 Submissions by Mr. Jackson 1 been under French hegemony. The Micmacs were the 2 first aboriginal peoples to come into contact with 3 Europeans and by the time the British arrived in their 4 lands they had 200 years of experience behind them in 5 dealing with the French. The Micmacs occupied a 6 territory of 50,000 square miles covering, in present 7 day terms, all of Nova Scotia and Prince Edward 8 Island, most of New Brunswick and the southern Gaspe 9 peninsula of the Province of Quebec. The first 10 Europeans the Micmacs came into contact with were the 11 fishermen, many of whom, but by no means all, were 12 from France. Trade with the coastal Indians was as 13 old as the North Atlantic Fishery and its beginning 14 cannot be placed more precisely than at some time in 15 the first quarter of the 16th century. The Micmacs 16 incorporated the seasonal arrival of the fishermen 17 into their annual economic cycle and the French trade 18 harmonized with Micmac life insofar as it required 19 nothing new of the people who already hunted and 20 traded through the medium of gift exchange. And my 21 sources for much of this, my lord, are work by 22 Professor Upton called \"Micmacs and Colonists, 23 Indian-White Relations in the Maritimes\" which have 24 become the standard historical text in the field. 25 It's part of Exhibit 1249 tab 15. It's a work also 26 which has been cited by the courts of Nova Scotia in a 27 number of decisions dealing with the issue of Micmac 28 rights. 29 My lord, at the bottom of page 468. Various 30 attempts by the French at colonization started in the 31 17th century but the European population was sparse 32 such as when Acadia passed into English control in 33 1713 there were just over, under the Treaty of 34 Utrecht, 1,500 Acadians with roots going back from two 35 to four generations. The French, when they took 36 possession of Acadia, did so under what is called the 37 seigneurial system. The King owned the lands and 38 could theoretically dispose of it at will. Although 39 no treaty for the cession of lands was made by the 40 French with the Micmacs, as Professor Upton points 41 out, this in large measure can be explained by the 42 fact that the Acadian settlers themselves scarcely 43 intruded into Micmac territory. As he describes it: 44 45 \"Farming on title flats...\" 46 47 That should be tidal flats: 24184 Submissions by Mr. Jackson 1 2 \"...that were diked to permit cultivation, they 3 were adding new land rather than destroying old 4 hunting grounds. As far as the Acadians were 5 concerned there could be no question of 6 dominating the Micmacs and bending them to 7 their will. Mere survival dictated that they 8 live in harmony with the natives. The King of 9 France might claim ownership of all the land, 10 but the realities of life made the claim 11 meaningless.\" 12 13 And then I describe how, under the Treaty of Utrecht, 14 the French ceded their rights to Acadia to the British 15 Crown. And thereafter, the English sought, through 16 the use of commissioners to obtain oaths of allegiance 17 from the Micmacs and that they would trade only with 18 the British. Upton describes the response of the 19 native chiefs at the bottom of page 468, 469, and I 20 refer your lordship to that. I won't read it. What 21 it reflects, however, is a refusal by the Micmacs to 22 accept English claims to the lands. Hostilities 23 ensued over a number of years which culminated in 24 19 -- in 1725 in a series of treaties which were 25 signed between the Micmacs, both Nova Scotia and of 26 Massachussetts with the British, and at 471, I have 27 set out the relevant text of those treaties. The 28 second one, half-way down the page, has specific 29 reference to Nova Scotia, and the chiefs undertake in 30 the Peace Treaty that the Indian shall not \"molest any 31 of His Majesty's subjects ... in their settlements 32 already made or lawfully to be made\". The Indians 33 further promised to release English prisoners and for 34 any \"robbery or outrage committed by any of the 35 Indians\" the tribe or tribes to which they belonged 36 undertook to give satisfaction and restitution to the 37 parties injured. And in case of any dispute, the 38 Indians promise that no private revenge shall be taken 39 but application would be made for redress according to 40 His Majesty's laws. 41 Page 472, my lord. We say that apart from 42 providing evidence as to the consensual nature of the 43 relationship between the Maritime Indian Nations and 44 the Crown, the 1725 treaties and their ratification in 45 1726 are significant insofar as they demonstrate that 46 the Indians were to be dealt with as an organized body 47 of people, with their own leaders and with their 24185 Submissions by Mr. Jackson 1 distinctive internal systems of government. And we 2 point out the comparison between the way the Micmacs 3 were dealt with as a national body compared to the way 4 in which Acadians were dealt with in terms of their 5 individual personal responsibility. And we say that 6 by necessary implication, in relation to those treaty 7 provisions for the resolution of certain conflicts 8 according to English law, disputes between and within 9 Indian Nations were left to be resolved according to 10 the Indian's own legal principles and process. And 11 page 473, my lord, I draw a comparison between the 12 treaties of Peace between the Micmacs and the colonial 13 authorities and the treaties entered into with the 14 Powhatan Confederacy in Virginia in the 17th century. 15 And, my lord, there is a reference there at the top of 16 page 473 to pages 44-7. That in fact should be 17 volume 1, tab 2, pages 62 to 63. 18 THE COURT: Volume 1 of what? 19 MR. JACKSON: Of the plaintiff's submissions. 20 THE COURT: Oh, I see, of the submissions. 21 MR. JACKSON: And you will note also, my lord, that a review of 22 the provisions of some of these treaties is contained 23 in the judgment of Chief Justice MacKeigan in the 24 Isaac case. 25 The treaties, however, did not bring about their 26 desired end and hostilities continued. There was a 27 formal declaration of war issued by the Micmacs, and I 28 have set out the position of the Micmacs in 1744, the 29 bottom of page 473. 30 At page 475 -- I am sorry, page 474, these hostilities 31 continued until 1752, when a further treaty or a 32 renewal of the treaty was signed under the heading of 33 \"Treaty or Articles of Peace and Friendship Renewed\", 34 renewed for 1725 and 1726 articles. And that treaty, 35 my lord, which has been the subject of judicial 36 comment in the Supreme Court of Canada decision in 37 Simon, a case to which we will be referring in another 38 context, that provision contained a specific guarantee 39 that the Micmacs \"shall not be hindered from, but have 40 free liberty from hunting and fishing as usual\". The 41 treaty as I have said of 1752 was the subject of 42 comment by Chief Justice Dickson in Simon, and at page 43 475, I have set out his lordship's comments about the 44 treaty. 45 46 The treaty was entered into for the benefit of 47 both the British Crown and the Micmac people, 24186 Submissions by Mr. Jackson 1 to maintain peace and order as well as to 2 recognize and confirm the existing hunting and 3 fishing rights of the Micmac. In my opinion, 4 both the Governor and the Micmac entered into 5 the treaty with the intention of creating 6 mutually binding obligations which would be 7 solumnly respected. It also provided a 8 mechanism for dispute resolution. The Micmac 9 Chief and the three other Micmac signatories, 10 would have possessed full capacity to enter 11 into a binding treaty on behalf of the Micmac. 12 Governor Hopson was the delegate and legal 13 representative of His Majesty the King. It is 14 fair to assume that the Micmac would have 15 believed that Governor Hopson, acting on behalf 16 of His Majesty the King, had the necessary 17 authority to enter into a valid treaty with 18 them. I would hold that the Treaty of 1752 was 19 validly created by competent parties.\" 20 21 Your lordship may recall that when I started my 22 submissions last week I referred to the comments in 23 the Syliboy, S-y-1-i-b-o-y, case in which the learned 24 judge in that case had referred to this treaty as 25 being one without legal significance because it was 26 signed by a handful of Indians who didn't have any 27 legal capacity to enter into treaties. This was the 28 treaty about which he was referring. It is held in a 29 place of great honour by the Micmacs, and at page 475, 30 I informed your lordship it is in the Micmac language 31 referred to as \"In the King's House Compact\". The 32 nature of this treaty, my lord, and the manner in 33 which the Micmacs saw the protectorate role of the 34 Crown as being expressed through the treaty is set out 35 at page 476, and this is a submission, my lord, taken 36 from the proceedings of the Royal Commission of the 37 Donald Marshall Jr. Inquiry, a submission made by the 38 Micmacs in which they sought to describe using the 39 words -- language of Lieutenant-Governor Jonathan 40 Belcher what they saw the treaties doing. 41 42 \"...President of His Majesty's Council and 43 Commander in Chief of the Province stated that 44 Treaties created a legal 'wall' and 'Hedge' 45 between the Mikmaq and the British settlers. 46 Belcher promised the Grand counsel members that 47 accession to the Compact on the wide and 24187 Submissions by Mr. Jackson 1 fruitful Field of English liberties. He 2 explained to the assembled leaders from all the 3 seven districts of the Mikmaq Nation that their 4 burying of the Hatchets was a sign of putting 5 them in full possession of English protection 6 and liberty. The Field of English liberties, 7 Chief Justice Belcher assured them, would be 8 free from the baneful weeds of Fraud and 9 Subtility. The laws, he continued, clearly 10 stating the Crown's intent to create legally 11 binding rights, will be like a great Hedge 12 about your rights and liberties...\" 13 14 THE COURT: \"Properties\". 15 MR. JACKSON: 16 17 \"...your rights and properties - if any break 18 this Hedge and hurt or injure you, the heavy 19 weight of the Law will fall upon them and 20 furnish their disobedience.\" 21 22 MR. WILLMS: Perhaps my friend could say where we could find 23 that in any of the documents that he's provided. 24 MR. JACKSON: My lord, my friend has already notified me that 25 two of the references in previous sections which were 26 intended to be in the series 2 of our materials are 27 not there. This was another document which was to be 28 included in series 2. We will in fact be 29 supplementing series 2, my lord, and this will be one 30 of the documents which we will provide my friend. 31 THE COURT: It is from the Royal Commission Report, is it? 32 MR. JACKSON: Yes, my lord. And I have given the reference to 33 the Royal Commission Report. At page 477, my lord, I 34 note that the 1761 Royal Instructions be issued to the 35 governors of various provinces, were also addressed to 36 the Governor of Nova Scotia. And on page 477 I set 37 out the actions of Lieutenant Governor Belcher 38 pursuant to those Royal Instructions. 39 At page 478, the bottom paragraph, we say, that 40 the pressure on Indian lands from settlers and 41 developers on the lands of the Six Nations, which were 42 the principal reason for the 1761 Royal Instructions, 43 was not anything like so intense in Nova Scotia in the 44 decades following the Halifax Treaties. As Upton has 45 described, land came third in importance after the 46 religious assistance of the French priests and the 47 economic support provided by the English. 241? Submissions by Mr. Jackson 1 Page 479, this was to change dramatically, 2 however, at the conclusion of the American 3 Revolutionary War when Nova Scotia was inundated with 4 Loyalist refugees from New York. Nova Scotia's 5 population tripled to 42,000 within one year. As 6 Upton describes \"In all the flood of correspondence 7 concerning the details of that great migration, there 8 is not one word about the Indians who would be 9 dispossessed by the new settlers\". 10 The spread of British settlement quickly led to 11 the division of Acadia into separate political units. 12 Nova Scotia was partitioned in 1784 with the mainland 13 side of Bay of Fundy becoming the colony of New 14 Brunswick. 15 The dispossession of the Micmacs took place very 16 rapidly after the arrival of Loyalist refugee settlers 17 in Nova Scotia. 18 19 \"The Micmacs were still largely dependent on the 20 produce of salt and fresh water, and both they 21 and the whites prized the same areas, namely 22 coastline and river frontage. Whites quickly 23 disrupted the pattern of life since they 24 preferred to settle the easily accessible 25 places first: the coast for the fisheries and 26 the river valleys, not only for the best soil 27 and fisheries, but also for the potential of 28 water-powered soil sawmills. The indented 29 coastline and numerous rivers of the province 30 ensured that this white settlement intruded 31 almost simultaneously into every part of the 32 land, and as a result the Indian, in moving 33 from forest to river to coast, inevitably 34 encountered the newcomers.\" 35 36 Professor Upton has described the extent of the 37 disregard of the territorial rights of the Micmacs. 38 39 \"The spread of settlement showed that the 40 Indians were accorded no rights to the land but 41 that they were expected to follow the white 42 man's practice for petitioning for grants. 43 However, such grants as were made the Indians 44 were in the form of licences of occupation 45 during pleasure... Licences were issued to 46 eight groups for land along...\" 47 24189 Submissions by Mr. Jackson 1 And then there is a number of references. 2 3 \"With this much done, there was no longer any 4 need for a Superintendent of Indian Affairs, 5 and abolition of the office was recommended by 6 Nova Scotia's London agent early in 1784. The 7 office lapsed, the few grants that had been 8 made went unsurveyed, and no new petitions were 9 forthcoming. There was no cause for alarm; the 10 Micmacs might be displeased with the loss of 11 their land, but, as one contemporary author 12 pointed out, their weakness, added to their 13 prudence, will certainly prevent them from 14 making any disturbances.\" 15 16 Lieutenant Governor Lord Dalhousie made the first 17 full scale attempt to face the government's 18 responsibilities to the Micmacs. Despairing of any 19 intitiative from the Assembly, he took the matter up 20 in Council and proposed the establishment of a reserve 21 in each county, not to exceed 1,000 acres, to be held 22 in trust for those Indians who were disposed to 23 settle. The lands were a mixture of new and old 24 allocations, and no money was provided for the costs 25 of a proper survey. Descriptions were of little value 26 either as a legal defense against encroachment or as a 27 guide to what was in fact set aside for the Indians. 28 Upton described the obstacles facing Lord Dalhousie: 29 30 \"One major obstacle to any attempt at settlement 31 was the fact that whites never allowed an 32 Indian land claim to stand in their way. They 33 were accustomed to squatting where they pleased 34 on Crown lands and making their peace with the 35 authorities sooner or, preferably, later. They 36 saw no reason to treat Indian lands any 37 differently and assumed the government would 38 take an equally indulgent view of their 39 presence on them. Generally speaking, the 40 squatters were right. It was very easy for a 41 white official to see the virtuous hard work of 42 a squatter with a large family to support, less 43 easy to remember that those who had been 44 dispossessed had some claims on colonial 45 justice. ... There were ways of expelling 46 unwanted Indians. In a contest over river 47 frontage, for example, a basic white tactic was 24190 Submissions by Mr. Jackson 1 to net all the fish at the mouth of the river 2 so that the fishermen upstream got none. The 3 Indian response to these harassments was almost 4 inevitably to move to a less desirable 5 location, without offering any resistance 6 beyond a petition to the government drawn by a 7 local sympathizer.\" 8 9 In 1834 the British House of Commons began extensive 10 inquiries into the condition of aboriginal peoples 11 throughout the Empire. Previously, my lord, I quoted 12 an extract from the House of Commons, a report urging 13 the central administration of Indian Affairs to 14 protect Indians from local settler sentiment. The 15 Government of Nova Scotia ignored a request to provide 16 information. The wall of colonial indifference was 17 finally broken through by a petition from a Micmac 18 chief direct to Queen Victoria. The chief wrote: 19 20 \"I am the Chief of my people, the Micmac Tribe 21 of Indians in your Province of Nova Scotia and 22 I was recognized and declared to be the Chief 23 by our good friend Sir John Sherbrooke in the 24 White Man's fashion 25 years ago. I cannot 25 cross the great Lake to talk to you for my 26 Canoe is too small, and I am old and weak. I 27 cannot look upon you for my eyes not see so 28 far. You cannot hear my voice across the Great 29 Water. I therefore send this Wampum and Paper 30 talk to tell the Queen I am in trouble. My 31 people are in trouble. ... My people are poor. 32 No hunting Grounds - No Beaver - No Otter ... 33 All these Woods once ours. Our Fathers 34 possessed them all. Now we cannot cut a tree 35 to warm our Wigwams in winter unless the white 36 man please. ... White Man has taken all that 37 was ours. ... Let us not perish.\" 38 39 The Imperial authorities responded to the appeal. 40 Nova Scotia's new Lieutenant Governor, Lord Falkland, 41 commissioned Joseph Howe to develop an Indian policy. 42 The policy developed by Howe and reflected in 1842 43 legislation was based upon the idea of settling the 44 Indians on reserves, to act against squatters and 45 through the office of an Indian Commissioner to 46 consult with the Chiefs to encourage settlement and 47 arrange for the admission of Indians to local schools. 24191 Submissions by Mr. Jackson 1 Howe was appointed the first Indian Commissioner. His 2 first report struck a sombre note. The report is 3 summarized by Chief Justice MacKeigan in the Isaac 4 case in the following way: 5 6 \"His first Report spoke eloquently of the 7 neglected condition of the Micmacs. He found 8 not more than 1300, of whom 500 lived in Cape 9 Breton, a drastic decrease since 1798. He 10 inspected most reserves and found the land 11 'sterile and comparatively useless'. In this 12 and his 1844 Report, he gave many instances of 13 extreme poverty and of reserve land being taken 14 by white trespassers.\" 15 16 Howe's efforts to encourage settlement met with 17 failure not only because the reserves were generally 18 of such poor quality but because farming throughout 19 Nova Scotia was destroyed by widespread potato blight 20 for three seasons from 1846 to 1848. Although it 21 affected whites and Indians alike, the accompanying 22 diseases ravaged the natives most severely. 23 Chief Justice MacKeigan, in Isaac recited a later 24 Report by Indian Commissioner Crawley in 1849 which is 25 testimony to the limited protection Indian rights 26 received in Nova Scotia: 27 28 \"Under the present circumstances no adequate 29 protection can be obtained for the Indian 30 property. It would be in vain to seek a 31 verdict against any jury in this island, 32 against the trespassers on the reserves: nor, 33 perhaps, would a member of the Bar be found 34 willingly and effectually to advocate the 35 cause of the Indians, in as much as he would 36 thereby injure his own prospects, by damaging 37 his own popularity.\" 38 39 Dispossessed of all but the remnants of their land 40 and debilitated by illness, the Micmac population 41 continued to decline in the early 1850s. Response of 42 the colonial government is reflected in the 1854 43 Report of the new Indian Commissioner, William 44 Chearnley, whose knowledge of the Indians, Upton tells 45 us, came from the contacts he had made while big game 4 6 hunting. 47 24192 Submissions by Mr. Jackson 1 \"The Indians, he stated in his first Report, 2 would always be unwilling to work and settle; 3 their reserves were mostly barren and those 4 parts that were not had already been taken by 5 whites. Since the Micmacs were 'fast passing 6 away' he proposed to ease their last days by 7 supplying them with blankets and great coats, 8 and, if any money was left over from the annual 9 grant, a few seed potatoes. Any additional 10 funds should come from the sale of such of 11 their lands as squatters possessed.\" 12 13 In 1859, as if to add insult to injury, 14 legislation was passed that allowed squatters to buy 15 their legally obtained holdings -- that should be 16 illegally obtained holdings on Indian reserves. Thus, 17 instead of expelling the squatters as the 1762 Belcher 18 Proclamation and the 1763 Royal Proclamation required, 19 the Province of Nova Scotia in 1859 sought to deprive 20 the Micmacs of their rights to parts of their reserves 21 by entering into a compromise with white squatters who 22 had violated those rights. 23 The position of the Micmacs in Nova Scotia -- in 24 New Brunswick was, if anything, worse than Nova 25 Scotia. Initially, as in Nova Scotia, reserves were 26 granted to Indians upon petition through the device of 27 a licence of occupation but also as in Nova Scotia, 28 the integrity of these reserves was undermined by 29 squatters. 30 Beginning in the 1840s, some reform minded 31 politicians sought to consolidate Indian possession of 32 their reserves and encourage agricultural development. 33 However, legislation was which was introduced in 1844 34 was designed to dispossess the Indians even of their 35 reserves. 36 The preamble (of the Act) noted that the reserves 37 greatly: 38 39 \"...retarted the settlement of the province and 40 yet were of no use to the Indians.\" 41 42 My lord, I would refer you by way of advance 43 notice to statements made by Joseph Trutch, and 44 actions of Joseph Trutch in the years after Governor 45 Douglas' retirement where he also took the position 46 that the reserves granted by Douglas to the Indians 47 were too large, retarted the progress of settlement in 24193 Submissions by Mr. Jackson 1 the province and were of no use to the Indians, and he 2 unilaterally revised those reserves. 3 My friend, Mr. Rush, will be referring to that in 4 greater detail at a later point. The legislation 5 preamble noted further: 6 7 \"To turn these reserves into an asset, it will 8 be necessary to survey them definitively and 9 distinguish between the quantities of land they 10 contained and then, under Commissioners 11 appointed by the Act, to sell or lease at 12 auction whatever tracts were thought fit to be 13 offered. Resulting funds would be used for the 14 exclusive benefit of the Indians, for the 15 relief of the aged and infirm, and for the 16 provision of seed and agricultural implements.\" 17 18 The progressive dispossession of the Micmacs in 19 New Brunswick was described in this way in 1847: 20 21 \"The first step was a joint occupation of the 22 country by the Indians and British settlers: 23 the second was assigning to the Indians certain 24 districts of counties, within which they were 25 not to be disturbed, the next, confining each 26 Tribe to a certain tract or portion of land 27 called a reserve and finally, reducing those 28 reserves by degrees until in 1842 only one-half 29 remained ... and to conclude by selling all 30 that remains ... without any provision for 31 their (the Indians) future welfare.\" 32 33 Professor Upton has himself summarized the Micmac 34 experience in New Brunswick: 35 36 \"Everything considered, it is remarkable that 37 the Native peoples of New Brunswick survived at 38 all. Completely on their own, they had been 39 totally neglected for years, and when a policy 40 was finally instituted, its aim was to 41 dispossess them of their reserve lands in the 42 name of progress and to free the white tax 43 payer from the costs of relief. This policy 44 ... could have led to the total disappearance 45 of the reserves in a very few years and the 46 expulsion of the surviving Indians into white 47 society without a shred of support. That this 24194 Submissions by Mr. Jackson 1 did not happen was no fault of the colonial or 2 Imperial government. New Brunswick was not 3 very attractive as an agricultural society, and 4 the Indians' lands, marginal at best, were not 5 required by whites for their family farms. But 6 the New Brunswick pattern, had it been applied 7 in Canada, would have proved to be one for the 8 'final solution' of the Indian problem.\" 9 10 The Micmacs did not \"pass away\" as William 11 Chearnley had confidently predicted in 1854 but 12 continued to seek recognition of their aboriginal 13 rights. In 1977, they presented their comprehensive 14 claims to the Minister of Indian Affairs. It is also 15 not without significance that the Micmacs, as at first 16 aboriginal peoples who encountered Europeans and who 17 have arguably been the subject of some of the most 18 oppressive colonial policies directed to their 19 dispossession, have been the most vigorous in 20 asserting in the international form that, under 21 relevant international covenants and as a matter of 22 international law, they have rights to 23 self-determination, rights which they view as having 24 been confirmed in their original treaties of peace and 25 friendship with the British. And the issue of 26 international law, my lord, is one to which we will 27 return. 28 My lord, it is our submission that this court 29 should explicitly and emphatically reject the 30 Province's argument that the Nova Scotia and New 31 Brunswick experience are precedents supporting the 32 theory that aboriginal rights exist only as a matter 33 of sovereign grace. It is our submission, my lord, 34 that, in the historical context of Nova Scotia and New 35 Brunswick, this means that aboriginal rights can be 36 respected or disregarded at the government's whim 37 dependent on the relative strengths of the Indians and 38 the degree of intolerance, greed, and racism of the 39 colonists. It is the plaintiff's submission that this 40 is a principle not of law but of naked power. 41 My lord, at the beginning of my submissions, I 42 referred your lordship -- 43 THE COURT: Are you almost finished? 44 MR. JACKSON: I am almost finished. 45 THE COURT: I think we are abusing our reporters today. 46 MR. JACKSON: I will be one more minute. Madam reporter can 47 hold for one more minute. 24195 Submissions by Mr. Jackson 1 MR. WILLMS: I do want to rise to say that my friend 2 mischaracterized the Province's position. I don't 3 want to take up any time, that will come clear in our 4 argument, but that's a mischaracterization of the 5 Province's position. 6 THE COURT: All right. 7 MR. JACKSON: My lord, I referred your lordship to the Therens 8 decision and the statement by the Supreme Court of 9 Canada that the purpose of the charter, and I said in 10 my opening submissions, the purpose of the common law 11 is the unremitting protection of human rights. The 12 position as I understand it of the Province, and I 13 have endeavoured to be faithful to it, is far from 14 being an unremitting protection of aboriginal human 15 rights; is a dismal justification for the unremitting 16 violation. 17 And, my lord, the final point I would make is 18 again by reference to what the Lieutenant Governor of 19 Nova Scotia said in 1753, he said the Micmacs -- that 20 the law would be a hedge around their rights and 21 properties, it would be a wall for their protection 22 and security. And, my lord, in the context of the 23 Micmacs and in the context specifically of Donald 24 Marshall, that wall and that security has become the 25 wall of the prison and, my lord, we say that this 26 court should look to the experience of Indian 27 dispossession in Nova Scotia and New Brunswick as 28 evidence to show that far from aboriginal rights 29 existing at the pleasure of the sovereign aboriginal 30 rights arise and are protected by virtue of 31 fundamental principles of the common law and not the 32 whim of the sovereign. And my apologies for taking us 33 to this late hour, my lord, but those are my 34 submissions for the day. 35 THE COURT: Thank you. I think that I should take up with 36 counsel whether there is a real need to have a 37 transcript of today's proceedings tomorrow morning. 38 Is there really a need for such a -- 39 MR. JACKSON: Not from our point of view, my lord. 40 MR. WILLMS: Well, it depends on the timing, my lord. The 41 reason is this: If the transcript is relatively 42 recent, then all counsel involved can be kept up to 43 date on the -- 44 THE COURT: Well, we can't keep up to date the way we are going, 45 can't physically be done. The reporters are here 46 until eleven o'clock every night, and we have had an 47 enormous amount of words today, too many now. This 24196 Submissions by Mr. Jackson 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 doesn't need to be reported, Madam Reporter. You can take a break. (DISCUSSION RE: TRANSCRIPTS) THE COURT: Well, I am going to take it up with the reporters but I can take it that it is not necessary that they have -- that you have a transcript by tomorrow. MR. WILLMS: Not by ten o'clock tomorrow. THE COURT: Ms. Koenigsberg? MS. KOENIGSBERG: No. We have no need for a daily transcript. THE COURT: We will take this matter up again tomorrow and we'll start at ten in the morning. THE REGISTRAR: Order in court. Court stands adjourned until ten o'clock tomorrow. (PROCEEDINGS ADJOURNED AT 5:07 p.m. AT 10:00 a.m.) TO APRIL 11, 1990, I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein, transcribed to the best of my skill and ability. TANNIS DEFOE, Official Reporter United Reporting Service Ltd."@en . "Trial proceedings"@en . "British Columbia"@en . "KEB529.5.L3 B757"@en . "KEB529_5_L3_B757_1990-04-10_01"@en . "10.14288/1.0018522"@en . "English"@en . "Uukw, Delgam, 1937-"@en . "Indigenous peoples--Canada"@en . "Oral history"@en . "Wet'suwet'en First Nation"@en . "Vancouver : University of British Columbia Library"@en . "Vancouver : United Reporting Service Ltd."@en . "Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images, please contact the Courts of British Columbia: http://www.courts.gov.bc.ca/"@en . "Original Format: University of British Columbia. Library. Law Library."@en . "[Proceedings of the Supreme Court of British Columbia 1990-04-10]"@en . "Text"@en .