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Delgamuukw Trial Transcripts
British Columbia. Supreme Court
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.
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19457 Proceedings 1 VANCOUVER, B.C. 2 September 14, 1989 3 4 THE REGISTRAR: Order in court. In the Court of Appeal of 5 British Columbia, this 14th day of September, 1989, my 6 lord. 7 THE COURT: I wish before I begin this morning to make a 8 statement on behalf of myself personally and all the 9 members of the Court of Appeal who, if they were with 10 me, I am sure would concur in what I'm about to say, 11 but it is with regret that I must announce the death 12 of Mr. Justice John Somerset Aikins recently, a judge 13 of this court, who died yesterday. Mr. Justice Aikins 14 was a loved and valued and much respected member of 15 this court. He was born in 1914 in his native 16 Naramata, had his education at various locations, 17 mainly in the Okanagan, he served with distinction as 18 an officer in the Canadian Army in Europe, he 19 practised in Penticton in the well-known firm of Boyle 20 Aikins with great distinction. He was appointed to 21 the Supreme Court of British Columbia February 1st, 22 1962, and I had the pleasure of being counsel on his 23 first trial. He was elevated to the Court of Appeal 24 in 1978 and served there with great distinction until 25 his retirement on February 9th, 1987. Mr. Justice 26 Aikins will be remembered not just for the quality of 27 his judgments and the kindness with which he presided 28 in all the courts in which he sat, but more so for his 29 great humanity, his gentleness, his kindness and the 30 considered way in which he treated everyone who came 31 before him. If there was ever a gentleman it was Mr. 32 Justice Aikins, and we all regret exceedingly his 33 passing. Thank you. 34 MR. GOLDIE: My lord, if I may speak for myself and those 35 associated with me, I would like to add, for the 36 purposes of your lordship's remarks, the sorrow that 37 we feel in the death of Mr. Justice Aikins. He was, 38 both at the trial court and Court of Appeal, one of 39 the most painstaking judges that the bench had the 40 pleasure of having, and was always courteous to 41 counsel. It was invariably a pleasure to appear 42 before him. 43 THE COURT: Thank you, Mr. Goldie. 44 MR. RUSH: My Lord, for my colleagues, for the plaintiffs, I 45 would like to join with Mr. Goldie's remarks and your 46 lordship's remarks. 47 THE COURT: Thank you, Mr. Rush. 1945? Submissions 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 MS. THE MR. THE MR. THE MR. THE MR. KOENIGSBERG: On behalf of my colleagues and behalf of the Attorney General of Canada, I would also concur on those remarks and express sorrow. COURT: Thank you, Ms. Koenigsberg, I will take the liberty of passing your comments onto Mrs. Aikins. All right, we will now resume the trial in the Supreme Court. GOLDIE: My lord, this morning I propose to deal with documentary evidence to be read in in part, and the first document which I will tender as an exhibit is entitled "Papers Relative to the Affairs of British Columbia", in four parts, each of which was presented to both Houses of Parliament, that is to say both Houses of Parliament in the United Kingdom, by command of Her Majesty, part one being presented on the 18th of February, 1859; part 2 on the 12th of August, 1859, part 3 in 1860, and part 4 in March of 1862. The four parts are in the binder which I have handed up to your lordship, each distinguished by a tab, 1 to 4. Included in tabs 5 and 6 are documents which I wish to refer to in the course of my reading in, but I would ask that this binder, consisting of tabs 1 to 4, "Papers Relative to the Affairs of British Columbia", I tender that as an exhibit, my lord. Mr. Rush. My lord, I have not gone over this binder in detail, but I make the assumption that the documents which are contained in it would come within the ambit of your lordship's ruling on July the 15th. As ancient papers. Yes. Excuse me, it was July the 14th, as ancient documents. That's right. And on the basis of that ruling, I do not object to Mr. Goldie tendering the documents, because I do think that these are in accord with that ruling. I wish to add, however, that I understand from correspondence with my friends that Mr. Goldie intends to read certain passages of these documents, and if my friend chooses to read from the documents or from passages in them I do not object to that, if that is the intended procedure. However, in the course of reading from a document I think my friend is entitled only to draw your lordship's attention to the document, the date, the author and the recipient, and if he chooses to read a passage then that I don't think is objectionable, but to go beyond that, in my submission, is objectionable, and I say that any COURT RUSH: COURT RUSH: COURT RUSH: 19459 Submissions 1 comments by way of an explanation of the document, how 2 the document might relate to other documents or 3 circumstances, I say all of that is impermissible. In 4 this type of procedure, that is to say where my friend 5 chooses to select a document, tender it and then read 6 it, it is the document which is the evidence and 7 nothing Mr. Goldie has to say about the documents 8 which constitutes the evidence. I say that commenting 9 or linking the document to other events or contexts is 10 the giving of evidence or the making of argument, and 11 at this point in the trial neither is permissible. 12 Mr. Goldie is not giving evidence, the documents are 13 the evidence in this case, and now is not the time for 14 argument. So with those observations I have no 15 objection to the procedure that I expect to be 16 followed is embarked upon, but I think that there are 17 those limitations which I would ask both my friend to 18 comply with and for which I will make objections if he 19 doesn't. 2 0 THE COURT: Mr. Goldie. 21 MR. GOLDIE: Well, my lord, it is both the right and the duty of 22 counsel to inform the court of the relevance of a 23 document, and I proceed on that basis. May a number 24 be assigned to this, my lord? 25 MR. RUSH: Excuse me, I don't accept that proposition at all. 26 MR. GOLDIE: We'll debate it as we go along, my lord. 27 THE COURT: I should ask Miss Koenigsberg if she has any 28 objection to the documents. 29 MS. KOENIGSBERG: None at all. 30 THE COURT: All right. Then the book of documents may be the 31 next exhibit number. 32 THE REGISTRAR: Exhibit 1142. 33 34 (EXHIBIT 1142 - Book of documents with Papers 35 Relative to the Affairs of British Columbia) 36 37 THE COURT: And that will include all of the contents of the six 38 tabs. All right. Well, how far beyond reading the 39 documents do you propose to go, Mr. Goldie? Can you 40 give us a summary of what you propose to do in 41 addition to reading from the documents? 42 MR. GOLDIE: I propose primarily to read, but I will not read in 43 a purely sequential basis. When I come to a document 44 that is replied to in another portion of the book I 45 will probably refer to that document so that your 46 lordship has a closer chronological sequence than the 47 arrangement in the document provides. I am going 19460 Reading of Despatches By Mr. Goldie 1 to -- and I will give your lordship an example. I'm 2 going to say the reason for the existence of this 3 exhibit is found in section 2 of the United Kingdom 4 Act to provide for the Government of British Columbia, 5 and that's found at page 1 of part 1. It's the fifth 6 page in. And I now read section 2 of the Act to 7 provide for the Government of British Columbia: 8 9 "It shall be lawful for Her Majesty, by any Order 10 or Orders to be by her from time to time made, 11 with the advice of Her Privy Council, to make 12 ordain, and establish and (subject to such 13 conditions or restrictions as to Her shall seem 14 meet) to authorize and empower such officer as 15 She may from time to time appoint as Governor of 16 British Columbia to make provision for the 17 administration of justice therein, and generally 18 to make, ordain, and establish all such laws, 19 institutions, and ordinances as may be necessary 20 for the peace, order, and good government of Her 21 Majesty's subjects and others therein; provided 22 that all such Orders in Council, and all laws and 23 ordinances so to be made as aforesaid, shall be 24 laid before both Houses of Parliament as soon as 25 conveniently may be after the making and enactment 26 thereof respectively." 27 28 As Dr. Lane stated in her evidence, this collection 29 does not include all of the ordinances -- I'm sorry -- 30 all of the Orders in Council and all of the dispatches 31 which passed between the Governor of British Columbia 32 and the Colonial office. It contains those selected, 33 and it is from that selection -- and it is that 34 selection which was laid before Parliament in the 35 manner that is provided for in the section I have read 36 from the Act. I now refer your lordship -- 37 THE COURT: Is this the Act that came into force on the 19th of 38 November, 1869? 39 MR. GOLDIE: No. It was earlier than that, my lord. 40 THE COURT: This is dated 18 — 41 MR. GOLDIE: July of 1858 — 2nd of August. I said July, it 42 came into effect on the 2nd of August, 1858. 43 THE COURT: We have -- we have in British Columbia, or what we 44 used to have was the English Law Act. 45 MR. GOLDIE: Oh, yes. That was a proclamation of Governor 46 Douglas. 47 THE COURT: All right. So it's separately brought into British 19461 Reading of Despatches By Mr. Goldie 1 Columbia the Common Law of England. 2 MR. GOLDIE: Yes. 3 THE COURT: As of that later date. 4 MR. GOLDIE: The introduction of English Law, as your lordship 5 will see, because that proclamation is one of those 6 found in this collection -- 7 THE COURT: Yes. 8 MR. GOLDIE: -- was passed by -- was enacted by Governor 9 Douglas. 10 THE COURT: Yes, all right, yep. 11 MR. GOLDIE: The title on page 1 I next refer to, "Copies of 12 Despatches from the Secretary of State". 13 THE COURT: Sorry, where are you? 14 MR. GOLDIE: I'm on page 1, my lord. I've gone back to the very 15 title page itself. 16 THE COURT: All right. 17 MR. GOLDIE: And I'm doing so in order for your lordship to be 18 given a glimpse of what is to come. 19 THE COURT: Yeah. 20 MR. GOLDIE: 21 "Copies of Despatches from the Secretary of State 22 for the Colonies to the Governor of British 23 Columbia, and from the Governor to the Secretary 24 of State relative to the Government of the Colony; 25 Also, 26 Copies of the Act of Parliament to provide for the 27 Government of British Columbia; Governor's 28 Commission and Instructions; Order In Council to 29 provide for the Administration of Justice; and 30 instrument revoking so much of the Crown Grant 31 of 30th May, 1838 to the Hudson's Bay Company for 32 exclusive Trading with the Indians as relates to 33 the Territories comprised within the Colony of 34 British Columbia." 35 36 Now, my lord, I want to refer to the case of Attorney 37 General versus Ludgate, and I have it here, my lord. 38 The Ludgate case, otherwise known as Deadman's Island 39 case, was decided by the Supreme -- by the Supreme 40 Court of British Columbia in 1901. It was reversed by 41 the full court in 1904, and the judgment of the full 42 court was affirmed by the Judicial Committee of the 43 Privy Council in 1906. 44 MR. RUSH: What's the purpose of this? 45 MR. GOLDIE: Because it makes reference to the exhibit to which 46 I am referring. 47 MR. RUSH: And my question is so what. 19462 Reading of Despatches By Mr. Goldie 1 MR. GOLDIE: May I answer that, my lord, by referring to the 2 judgment? 3 THE COURT: Yes. 4 MR. GOLDIE: The action was for "a declaration that the title to 5 the land" -- and I'm reading from the headnote, my -- 6 not the headnote, I'm reading from the statement: 7 8 "a declaration that the title to the land situate 9 in Burrard Inlet, in British Columbia, and known 10 as Deadman's Island, was in Her Majesty the Queen 11 on behalf the Province of British Columbia." 12 13 The Deadman's Island was -- the action came about 14 because the Dominion Government granted leave to 15 Ludgate to cut trees on Deadman's Island. The issue 16 before the court was whether Deadman's Island formed 17 part of a reserve constituting largely Stanley Park, 18 what is known as Stanley Park, and the reserve was -- 19 and the question was whether the reserve had been 20 created by Governor Douglas under the powers granted 21 him by the Act that I have just referred to. At page 22 258 of the trial judgment, Mr. Justice Martin said, 23 and I am referring to the last paragraph on the page: 24 25 "Before leaving this branch of the case it is 26 Desirable to make a remark on the documentary 27 evidence. During the course of the trial a good 28 deal was said about the incompleteness of the old 29 records, and while in some respects this is true, 30 yet on the other hand we are fortunate indeed, in 31 having, so far as the old Colony of British 32 Columbia is concerned, the four Imperial Blue 33 Books of 1859-62, which in the admirable 34 despatches of Governor Douglas, contain an account 35 as interesting as it is exceptionally complete 36 of the early administration of the affairs 37 of that Colony. And I trust it may not be out 38 of place for me to say, after a repeated perusal 39 of those despatches (which a proper understanding 40 of this case necessitated), that they bring home 41 to one how well it was for the proper 42 establishment of the infant colony, under trying 43 and peculiar circumstances, that there was placed 44 at the head of its affairs so able an 45 administrator as Governor Douglas." 46 47 Now, the reason I am referring to that is that I rely 19463 Submissions By Mr. Goldie 1 firstly upon the characterization of the court of the 2 importance of the exhibit before your lordship, 3 because that is what Mr. Justice Martin is referring 4 to, the four Imperial Blue Books of 1859 and 1862. I 5 rely upon that and I rely upon his characterization of 6 the Governor and the picture which this exhibit gives 7 of the administration of the Colony. 8 THE COURT: Well, does Exhibit 1142 equal the four Blue Books? 9 MR. GOLDIE: Yes, my lord, parts 1, 2, 3 and 4. 10 THE COURT: I see. I think that we ought to resolve this 11 question that's been raised by Mr. Rush. Is there 12 anything else you want to say, Mr. Rush? 13 MR. RUSH: Yes, I do. I think that Mr. Goldie makes the very 14 point that I made, in fact he supports it by his 15 reference to the Deadman Island case and his 16 submission to you that "I relied on the 17 characterization of the exhibits, I relied on the 18 characterization of the picture". No doubt he does, 19 and no doubt we will hear this all in March of 1990. 20 That, however, is argument. What my friend wants to 21 do today is to give you a window into his argument, 22 and he's not entitled to it. This is not argument, 23 this is not the appropriate time for his submissions. 24 What I say he's entitled to do is to refer you to the 25 documentary evidence without comment, explanation, 26 amplification. My lord, if the Province wants to rely 27 upon commentary explanations, contexturalizations, 28 then they should call a witness and then I could 29 cross-examine that witness. I can't cross-examine Mr. 30 Goldie, much I might like to. To explain a document 31 or to say what it means or how it might be related, 32 its significance or what its affect might be, in my 33 submission, my lord, is either giving evidence or 34 making a submission on argument. And as I've said, as 35 evidence Mr. Goldie's not a witness. Also, our 36 witnesses were not allowed to get into the meaning or 37 effective documents. Rulings were made preventing 38 them from expanding on their opinion on the 39 interpretation of a document, and I need only to refer 40 to your lordship's ruling at page 16243, where this 41 very issue came before your lordship on the issue of 42 the evidence of Mr. Morrison, and this is what you 43 said at that time. You said: 44 45 "It is competent and is expected of counsel to 46 discharge that function." 47 19464 Submissions By Mr. Goldie 1 That is to say the function of leading the witness to 2 documents. 3 4 "I do not think I should allow this or any witness 5 to give me a theory of construction. I think that 6 he may put in evidence, if requested by counsel, 7 whatever historical facts he has or can direct my 8 attention to in the way of documents for the 9 purposes that I have mentioned, that is for 10 counsel's arguments, but I do not think that I can 11 allow him to give me theories of construction or 12 theories of history that go beyond the proof 13 of historical facts." 14 15 Now, my lord, the historical fact here is the 16 document. That's as far as your lordship, in my 17 submission, can entertain the reference to the 18 documents. Mr. Goldie's in no position to give 19 anything beyond that and certainly in no position to 20 tell you what the effect or meaning or his 21 interpretation or his theory of that document is as a 22 matter of evidence. Well, my lord, if it's not 23 evidence, the only thing it can be is argument, and as 24 argument on the document, I say now is not the time 25 for that submission. As I said earlier, no doubt Mr. 26 Goldie will give the court his version of the meaning 27 and effect of these documents, but I say that is for 28 argument and we will deal with it then. In fact, I 29 think it's somewhat ironic that my friend at this time 30 embarks upon this path, because it's the very path he 31 said he wouldn't embark upon. Mr. Goldie's view of 32 this was amply expressed during his objections made to 33 Dr. Lane's qualifications, and this is when he -- what 34 he said there at page 16675. In his argument, and I'm 35 reading in part at line 27, he says: 36 37 "All of that goes to underline the proposition that 38 the skill of the witness is not interpretation. 39 The skill of the witness is in the research 40 activity which she has undergone and which her 41 assistants have undergone in order to winnow out 42 what she considers to be the significant 4 3 documents. 44 Now, I have no intention of taking the 45 documents which I consider to be significant and 46 putting them to the witness. That would be a 47 fruitless exercise, even if she was qualified to 19465 Submissions By Mr. Goldie 1 comment on it." 2 3 And here are the material words: 4 5 "What I intend to do, and which in my submission is 6 the only appropriate thing to do, is to have the 7 documents tendered and marked, and then we'll 8 hear in argument what it's all about." 9 10 And, my lord, that's exactly what he put to your 11 lordship and what is the appropriate thing for him to 12 do. If he wants to amplify or refer to the Deadman 13 Island case, fine, he can do so in the course of his 14 argument. Now, I take this position, my lord, because 15 if Mr. Goldie were allowed to be allowed to do more 16 than simply tender the documents and refer to their 17 undisputed characteristics, such as date, author and 18 recipient, the plaintiffs would lose their advantage 19 in being able to go first to the documents and to 20 argue the plaintiff's interpretation of the document 21 on the point. The plaintiffs carry the burden, the 22 plaintiffs are entitled to make their case to you 23 first and to give their characterization of these 24 documents. To do otherwise in the circumstance, in my 25 submission, would mean that the plaintiffs would lose 26 their right to present our version of the documents. 27 Now, if Mr. Goldie were to proceed on the basis of 28 making a submission on the documents, as I dare say 29 that was entirely his purpose by his own language in 30 the reference to the Deadman Island case, he would 31 then be in the envious position on this point to get 32 to make his submissions twice, now and when he comes 33 to it in argument. He said all the way along that the 34 appropriate course of action is to raise his 35 interpretation of these documents in argument, and I 36 say fine, do it then, and in my submission it's not 37 appropriate to do it now, and I say the only 38 appropriate path to follow for him is one of 39 tendering, which he's done, marking, which he's done, 40 and if he wants to identify or isolate passages for 41 reference to your lordship, fine, but beyond that I 42 say it's objectionable and should not be permitted. 43 THE COURT: All right, thank you. Mr. Goldie, you have the 44 burden, so I will ask Miss Koenigsberg if she wishes 45 to make a submission. 46 MS. KOENIGSBERG: I would only comment, my lord, that it would 47 seem to me that counsel, in attempting to carry out a 19466 Submissions By Mr. Goldie 1 relatively expeditious putting in of documents which 2 are admissible and which form part of counsel's case, 3 that counsel in discharging the appropriate duty to 4 the court should indicate the relevance of those 5 documents, that sometimes this will be the same as or 6 verge into legal argument. It's of course true. It's 7 true that much of everything we do results in being 8 argument and it becomes some judgment as to when you 9 are doing but argument and when you are putting things 10 into context and making them relevant and of an 11 assistance to the court, and in my submission, so far 12 what Mr. Goldie has been doing is, if legal argument, 13 and it could form part of legal argument, is just as 14 easily characterized as placing documents in -- in the 15 context of their relevance, which is part of counsel's 16 duty. So I certainly have no objection to it 17 continuing, albeit there is the -- Mr. Rush's point is 18 well taken, there is a difference between argument and 19 evidence, but we cross that line all the time. 2 0 THE COURT: Thank you. Mr. Goldie. 21 MR. GOLDIE: My lord, my friend's concept of counsel's duty is a 22 very sterile one. I take, for example, the question 23 of an opening. In an opening it is usually considered 24 appropriate for counsel to indicate where he is going, 25 and in doing so, and it's done every day of the week, 26 there is a foreshadowing of argument. I am not going 27 to talk about interpretation, I am seeking to place 28 this particular exhibit in its historical context. I 29 say I rely upon the words stated by Mr. Justice 30 Martin. It would be more appropriate if I said I 31 adopt those words as an indication as assistance to 32 your lordship in understanding how these documents 33 arose and what they are, and I have never had any 34 experience in being restricted in stating name, date, 35 recipient. Paragraph 2 I read. There is no witness 36 who can prove these documents, and that's why we have 37 a ruling that allows them to come in. Conversely, 38 there is every reason why the documents should be 39 placed in its proper context. If my friend's argument 40 is taken to its logical extreme, a witness who 41 identifies a document that he has written is precluded 42 from stating the circumstances under which he did 43 write it, that's the parallel that we have with us 44 today. My lord, I have done no more than place this 45 document -- started, I haven't finished, placing this 46 document in its context and giving your lordship some 47 indication of its significance, and that's what the 19467 Submissions By Mr. Goldie 1 witnesses for the plaintiff -- and no objection was 2 taken to them stating the significance of the document 3 or stating the context of the document. The objection 4 was taken to them interpreting the document, and I 5 have no intention of interpreting this document. 6 MR. RUSH: I have a few points on rejoinder. Miss Koenigsberg 7 says that it's counsel's duty to indicate the 8 relevance. Well, my lord, by your ruling the question 9 of admissibility and relevance has been dealt with. 10 The issue isn't either of those. The documents are 11 before the court, the only question is what weight 12 should you attach to them. The second point she makes 13 is the point echoed by Mr. Goldie, you should place 14 the document in the context of their relevance. Well, 15 she mixes relevance and context, but I took her to 16 mean in there "context". It's not for Mr. Goldie to 17 place them in context except by his view in argument, 18 the Province's mind or intelligence being placed to 19 the document in argument, not in evidence. And in my 20 submission, my lord, it doesn't matter what Mr. 21 Goldie's view of their context is today -- or their 22 significance is today whatsoever. We will hear it 23 again when the argument comes forward. The fact of 24 the matter is, my lord, that Mr. Goldie is not a 25 witness, he's not an expert, he's not in a position to 26 tell you as a matter of evidence what the significance 27 is of a document, what the context is of the document, 28 none of those questions are open to him. Others with 29 more qualifications than he could be called to give 30 that evidence if my friend thought that they -- that 31 that's what was necessary. He didn't think that was 32 necessary, what he thought was necessary was to put 33 his position as the Province's position, vis-a-vis 34 those documents, as a matter of argument. My friend 35 said he doesn't need a witness to prove documents. 36 True. The question -- there is no question of the 37 proof of documents, these documents are in under your 38 lordship's ruling, and those questions all -- of those 39 questions of admissibility, tendering, the question of 40 the effect is the only remaining question. And the 41 effect, my lord, is an issue which your lordship has 42 decided goes to the question of weight, which will be 43 dealt with at the end of the day when we both get our 44 chance to submit to you on why you should accept one 45 document or the passage in one over the other. Thank 4 6 you. 47 1946? Order By Mr. Goldie 1 THE COURT: Thank you. I am satisfied that Mr. Rush is correct 2 when he says that counsel may not mix the tendering of 3 evidence and the function of argument. I am persuaded 4 that there may well be a province of counsel or a 5 function of counsel which falls short of argument but 6 which permits counsel, in tendering documentary 7 evidence the admissibility of which does not depend 8 upon calling a live witness, to explain what the 9 document is, and if counsel thinks useful an 10 indication without argument of the issue or -- the 11 issue to which the document relates or the reason why 12 it was being tendered. I think Mr. Goldie's analogy 13 about counsel tendering documents in opening is a 14 useful one. In a commercial case, for example, say an 15 action for specific performance on an interim 16 agreement of a purchase for sale on a piece of 17 property, counsel could, and I think should, though it 18 isn't done nearly often enough, put in all his 19 documents in his opening, provided they're all 20 admissible, and that -- those hurdles have been 21 cleared by discovery or by way of admissions, and 22 counsel could say "I tender as my first agreement", if 23 it's relevant, "the listing agreement" which was 24 signed by the plaintiffs or signed by the defendants, 25 as the case may be, "an interim agreement as Exhibit 26 3, the vendor's copy upon which the purchaser has 27 placed his signature", and would then tender the next 28 document, which is the vendor's statement of 29 adjustments, or perhaps to add some more meat to the 30 bare bones of the case, some documents relating to the 31 removal of the subject clause, and counsel would 32 explain what they are, and so on and so forth until 33 the documents are in, and the evidence can then be 34 called without constant interruptions of the narrative 35 testimony to identify and remark and explain 36 documents. And I think therefore that Mr. Goldie may 37 tell me what the document is from which he's reading, 38 and he may refer to his date and generally describe 39 what the document is. I do not think you can go much 40 beyond that. He can say it relates -- if he thinks 41 it's useful to say that this relates to a particular 42 issue in the case, although it may relate to so many 43 issues in a case that that isn't a useful thing to do. 44 I tend to think Mr. Rush is right, that it may be 45 going beyond what counsel can do in tendering 46 documentary -- admissible documentary evidence of this 47 kind to refer to authorities which have help for the 19469 Order By Mr. Goldie 1 document, because I think that is argument. But I 2 think it would be helpful and I think it's common 3 sense which should carry someone to inform me as to 4 what these documents are as the reading from them 5 proceeds, and I am sure that there is always room or 6 perhaps latitude for some brief explanation of what 7 the document relates to, both in a contextural and in 8 the issue sense. But counsel's right in this regard 9 is closely circumscribed by both the practise as it 10 pertains to ordinary trials and in what I have said. 11 I think in short that it's useful to know what the 12 document is and what it's about, but I do not think it 13 is permissible to make anything that could reasonably 14 be described as an argument. And for that reason, I 15 think we will have to proceed perhaps piece meal. I 16 would have hoped to be able to deliver a comprehensive 17 ruling, but I don't think that's possible, but I hope 18 that I have outlined what I think the general 19 guide-lines are that should apply in this case, and if 20 Mr. Goldie goes beyond what counsel think is 21 permissible, no doubt I will give them the -- 22 MR. GOLDIE: Thank you, my lord. I can say this: I have 23 referred your lordship to the dates, I have referred 24 your lordship to the nature of the document. In my 25 submission, while it is one document that warrants 26 reading in full, I will confine myself to reading 27 those parts which relate to the factual circumstances 28 giving rise to a number of the enactments which are 29 relevant to the issues of extinguishment. 30 THE COURT: What you say are relevant in the issue of 31 extinguishment. 32 MR. GOLDIE: Yes, I do. And a number of these enactments, my 33 lord, are not just my judgment, a number of them are 34 part of the so-called Calder 13, but they provide 35 these despatches, and I'm doing no more than saying 36 what will become amply evident, they provide a 37 context. My lord, there is one other point that I 38 wish to comment on before I go -- before I start my 39 reading, and that is the nature of the Governor's 40 powers in the period covered by these despatches. As 41 will become clear from what I'm going to read, Mr. 42 Douglas was given the power to legislate as well as 43 the executive authority. It is characterized in these 44 despatches as unusual. He was in the true sense of 45 the word, and again I'm using a word that -- well, a 46 word that is used, where it's not my own, as an 47 autocrat in the dictionary sense, that he was an 19470 Reading of Despatches By Mr. Goldie 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 independent government. All this will become evident. THE COURT: Well, does this rise out of this passage that you read, generally make ordinances, is it? MR. GOLDIE: Yes. THE COURT: I'm sorry, no, that says "make or ordain". MR. GOLDIE: It doesn't arise -- let me put it this way: It arises -- this is the Parliamentary authority for it. THE COURT: Yes. MR. GOLDIE: "Empower such officer as She may from time to time appoint as Governor of British Columbia to make provision for the administration of just therein, and generally make, ordain and establish all such laws, institutions, and ordinances as may be necessary for the peace, order and good government of Her Majesty's subjects." MR. RUSH: Well, I just wish to say, my lord, whether Governor Douglas was an autocrat, whether my friend thinks he was, whether Dr. Barbara Lane thinks he was, it's really immaterial in terms of that issue. That is my friend's applying interpretive intelligence to this material. That's really the point that I'm making, and he may well persuade you of that fact. I may want to try to tell you he was a benevolent dictator, for all that I know, at the end of the day. I doubt that, but what does that matter in terms of what's happening now. Like me? I don't think I would use either of those words, my lord. MR. GOLDIE: The point that I'm making, my lord, is important. He had the power to legislate as well as to execute, that's not my interpretation. Those are the words of the statute and the words of the Secretary of State of the Colonies that we will come to. Now, my lord, one other fact which is not a matter of interpretation is the remoteness of British Columbia, and I give one instance of that, because in my submission it is a relevant contextural fact. Despatch number 1, which is Douglas to the -- who he thought was the Colonial Secretary of the day, is dated May 19th. It's at page 11, my lord. THE COURT: Yes. MR. GOLDIE: And it was -- it is dated -- Douglas is writing as of May 19th, 1858, and it was not received in London until July 13th, 1858. And I will be asking your THE COURT MR. RUSH: 19471 Reading of Despatches By Mr. Goldie 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. THE COURT MR. THE MR. RUSH: COURT RUSH: lordship to bear in mind the lapse of time which occurs between the sending of a despatch, its receipt, and the answer, which was July 16th, and I'll come to when that was received. COURT: How do you understand these despatches were sent? GOLDIE: At this time my understanding is that they went around the Horn. COURT: Mm-hmm. GOLDIE: At a later point arrangements were made to send them to San Francisco and then over land. Mr. Rush, I think I should say this, that I would welcome when Mr. Goldie is finished if there was anything in these despatches or documents that you think I should have in mind at this stage, and I would be glad to hear from you in that. Well, my lord, I don't think that's appropriate. Well, you don't have to do it. No. But the implication behind the request of me is that again it's permissible for Mr. Goldie to proceed on that basis, and just a simple explanation by Mr. Goldie that this despatch was sent to the person whom he thought was the Colonial Secretary. Well, what, are we to take from that, that Mr. Goldie knows who the real Colonial Secretary was or that Governor Douglas knew that was somebody else? My point, my lord, is that these editorializations are not the proper course for the evidence, because I dare say, that in the interpretive aspect of what Mr. Goldie is doing, he -- I suggest is going farther than what Dr. Barbara Lane was about to do in some instances, and the fact is that the plaintiffs chose a pattern, in my submission, to introduce its evidence in this -- in the manner that they chose. The way that I can respond is not to respond item by item without having the benefit of assistance from an advisor or without the assistance of how this fits with Dr. Barbara Lane or other witness' evidence, which is the advantage I would have at the course of argument. Well, I don't take that narrow a view, Mr. Rush. Both Mr. Morrison and Dr. Lane and others gave me much information about the context of documents. I remember Mr. Morrison telling me all about the circumstances in which the despatches were sent from New England and who the Colonial Secretary was and all these things, and I don't think that calling a witness is the only way to put admissible documents into evidence, but I make the offer. I certainly don't see THE COURT 19472 Reading of Despatches By Mr. Goldie 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 MR. RUSH THE COURT MR. RUSH THE COURT MR. THE MR. any reason for you to accept or to decline to do so. The distincton, however, my lord, is that in the case of Mr. Morrison, he was there available to be cross-examined and he wasn't. In the case of Dr. Lane she was available there to be cross-examined and she was. In this case Mr. Goldie is not available for cross-examination. But I hadn't made the ruling on ancient documents at the time of Dr. Lane's evidence. Maybe it wouldn't be necessary to do that if I made that ruling earlier. My lord, in my submission her documents were admissible at the time she put the documents in. The issue was not her documents unreferred to by her but other documents. That may be. I don't think there's only one way of doing these things, and I think that we who sit here alone are aided by whatever counsel think we should have in mind, and I put it no higher than that. Go ahead, Mr. Goldie. GOLDIE: My lord, the fact of Lord Stanley not being the -- not being the Secretary of State will appear from the documents. COURT: All right. GOLDIE: And in Dr. Lane's cross-examination a document was tendered, Exhibit 1056-20, which sets out the tenure of the Secretaries of State of the Colonies, and at this particular time Mr. Douglas thought that Lord Stanley was the -- was the Secretary of State, and it appears from that -- from that document that Mr. Edward Bulwer Lytton became Secretary of State May 31st of 1858. Now, I -- just to complete the -- my comment about the time lag, as will appear later, the reply to Douglas' Despatch of May 19th, which is dated July 16th, what was not apparently received, and I say apparently because I'm using the dates in the book, until sometime toward the end of September 1858. Now, my lord, I have referred to the Act, and I wish to go back to the Act on page 1, and I read the preamble, and a couple of the other sections. The preamble: "Whereas divers of Her Majesty's subjects and others have, by the licence and consent of Her Majesty, resorted to and settled on certain wild and unoccupied territories on the north-west coast of North America, commonly known by the designation of New Calednoia, and from and after the passing of this Act to be named 'British 19473 Reading of Despatches By Mr. Goldie 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. THE MR. MR. THE MR. Columbia', and the islands adjacent, for mining and other purposes; and it is desirable to make some temporary provision for the Civil Government of such territories, until permanent settlements shall be thereupon established, and the number of Colonists increased." Paragraph I: "British Columbia shall, for the purposes of this Act, be held to comprise all such territories within the dominions of Her Majesty as are bounded to the south by the frontier of the United States of America, to the east by the main chain of the Rocky Mountains, to the north by Simpson's River and the Finlay Branch of the Peace River, and to the west by the Pacific Ocean, and shall include Queen Charlotte's Island, and all other islands adjacent to the said territories, except as herein-after excepted." And without referring to the specific section, Vancouver Island was excepted. COURT: Simpson's River? GOLDIE: No, no. COURT: I'm sorry, what do I understand is Simpson's River? GOLDIE: Oh, I think, my lord, if I may be permitted to say so, it's the Skeena. COURT: Thank you. GOLDIE: And — RUSH: My lord, just on that point, Dr. Ray commented on that, and he indicated that it was the Simpson, whether known at that time, but it was the Bulkley, and the Skeena -- the Skeena from the forks down. COURT: Thank you. GOLDIE: And then the last section: "This Act shall continue in force until the 31st Day of December 1862, and thenceforth until the end of the then next session of Parliament: Provided always, that the expiration of this Act shall not affect the boundaries hereby defined, or the right of appeal hereby given, or any Act done or right or title acquired under or by virtue of this Act, nor shall the expiration of this Act revive the Acts of parts of Acts hereby repealed." 19474 Reading of Despatches By Mr. Goldie 1 Then I refer, my lord, to the Commission: 2 3 "Letters Patent Under The Great Seal appointing 4 James Douglas, Esquire, to be Governor and 5 Commander-in-Chief in and over the Colony of 6 British Columbia and its Dependencies. 7 Letters Patent dated 2nd September, 1858." 8 9 Now, my lord, it will appear from the later despatches 10 that this Commission did not reach Douglas until about 11 the 1st of November, 1858. Now, the first paragraph 12 largely recites the appointment of Douglas and the 13 nature of his appointment and the boundaries of the -- 14 of the Colony of British Columbia. And then in 15 paragraph III: 16 17 "And whereas it has been appointed by Parliament 18 that it shall be lawful for Us, by any Order or 19 Orders to be by Us from time to time made of Our 20 Privy Council, to make, ordain and establish, and 21 subject to such conditions and restrictions as to 22 Us shall seem meet, to authorize and empower such 23 officer as We may appoint to administer the 24 Government of Our said Colony, to make provision 25 for the administration of justice therein, and 26 generally to make, ordain, and establish all such 27 laws, institutions and ordinances as may be 28 necessary for the peace, order and good government 29 of Our subjects and others residing therein; and 30 whereas We have, in pursuance of the said Act 31 by Our Order made by Us in Our Privy Council, 32 bearing date this 2d instant, ordered, authorized, 33 empowered, and commanded Our Governor of Our said 34 Colony to make provision for the administration 35 of justice in Our said Colony, and generally to 36 make, ordain, and establish all such laws, 37 institutions and ordinances as may be necessary 38 for the peace, order, and good government of Our 39 subjects and others residing therein, wherein the 40 said Governor is to conform to and exercise the 41 directions, powers and authorities given and 42 granted to him by our Commission, subject to all 43 such rules and regulations as shall be prescribed 44 in and by Our instructions under Our Signet and 45 Sign Manual accompanying Our said Commission, or 46 by any future instructions, as aforesaid." 47 19475 Reading of Despatches By Mr. Goldie 1 And then the same language is found again in paragraph 2 IV, whereby Douglas is given: 3 4 "full power and authority, by Proclamation or 5 Proclamations to be by you from time to time for 6 that purpose issued under the Public Seal 7 of Our said Colony, to make, ordain, and establish 8 all such laws, institutions, and ordinances as 9 may be necessary for the peace, order and good 10 government of Our subjects and others residing in 11 Our said Colony and its Dependencies: Provided 12 that such laws, institutions and ordinances are 13 not to be repugnant, but, as near as may be, 14 agreeable to the Laws and Statutes of our United 15 Kingdom of Great Britain and Ireland: Provided 16 also, that all such laws, institutions, and 17 ordinances of what nature or duration soever, 18 be transmitted under the Public Seal of Our 19 said Colony for Our approbation of disallowance, 20 as in Our said Order provided." 21 22 And then he's enjoined to follow the instructions that 23 were given him. The instructions are at page 5. 24 These two were dated the 2nd of September and were the 25 instructions of the Queen as given at Her court at 26 Osborne House, Isle of Wight. Paragraph I: 27 28 "With these Our instructions you will receive Our 29 Commission under Our Great Seal of the United 30 Kingdom of Great Britain and Ireland, constituting 31 you to be Our Governor and Commander-in-Chief in 32 and over Our Colony of British Columbia and its 33 Dependencies; you are therefore with all 34 convenient speed to assume and enter upon the 35 execution of the trust We have reposed in you. 36 2. And you are, with all due and usual solemnity, to 37 cause Our said Commission, constituting you Our 38 Governor and Comander-in-Chief as aforesaid, to be 39 read and published in the presence of the 40 principal persons of Our said Colony, and you will 41 then and there take the Oath of Allegiance as 42 prescribed by the Act of the first year of King 43 George the First, Statute 2, chapter 13, section 44 2, and likewise the usual oath for the due 45 execution of the office and trust of our Governor 46 and Commander-in-Chief in and over Our said Colony 47 and Dependencies, and for the due and impartial 19476 Reading of Despatches By Mr. Goldie 1 administration of justice, and further, the oath 2 required to be taken by Governors of Plantations, 3 to do their utmost that the several laws relating 4 to trade and plantations be duly observed, which 5 oaths any two Justices of Our said Colonies and 6 its Dependencies or of Vancouver's Island, have 7 hereby full power and authority and are required 8 to tender and administer unto you; all of which 9 being duly performed, you will administer the said 10 Oath of Allegiance to each of the principal 11 persons then present." 12 13 Your lordship will see that that was done in November 14 of 1858. 15 THE COURT: Is there any reference to the instruction to 16 Indians? 17 MR. GOLDIE: No, my lord. I'm just about to deal with that now. 18 The paragraph I of the instructions is -- I won't 19 read -- it is concurrent with the style of the -- 2 0 THE COURT: You did read paragraph I? 21 MR. GOLDIE: I'm sorry, I haven't read paragraph I. It was 22 paragraph II I had in mind, and I have read that. In 23 paragraphs Roman VIII to XIX, these are the laws that 24 the Governor may not make, and in no case is the 25 Governor prohibited from making laws with respect to 26 Indians or affecting Indians. And in paragraph XXXI 27 on the next page, it provides -- or the instructions 2 8 provide: 29 30 "If anything shall happen which may be of advantage 31 or security to Our Colony and its Dependencies 32 under your Government which is not herein or 33 by Our commission provided for, We do hereby allow 34 you to take orders for the present therein, giving 35 unto Us, through one of Our Principal Secretaries 36 of State, speedy notice thereof." 37 38 Et cetera. 39 THE COURT: Where — I'm sorry, where was that? 40 MR. GOLDIE: That was the bottom of page 7 top of page 8 in 41 part. They're merging what -- 42 THE COURT: Yes, yes. 43 MR. GOLDIE: Provision in the event of something occurring which 44 is not covered by, in the words of the instruction, 45 "not herein or by Our Commission provided for". And 46 then Her Majesty's Order in Council, the Order in 47 Council of the same date in the presence of her 19477 Reading of Despatches By Mr. Goldie 1 Majesty in Council. The second paragraph beginning in 2 the fifth line from the bottom of that page: 3 4 "Her Majesty, by virtue of the powers vested in Her 5 by the said recited Act" -- 6 7 That's the Act of 1858. 8 9 "and by and with the advice of her Privy Council, 10 is pleased to order and doth hereby order, 11 authorize, empower, and command the Governor, or 12 the officer for the time being administering the 13 Government of the said Colony of British Columbia, 14 to make provision for the administration of 15 justice, and, further, by Proclamation or 16 Proclamations to be by him issued for that 17 purpose, under the Public Seal of the said Colony, 18 to make, ordain, and establish all such laws and 19 ordinances as may be necessary for the peace, 20 order, and good government of Her Majesty's 21 subjects and others in the said Colony; subject, 22 nevertheless, to the following conditions, that is 23 to say: that every such law or ordinance as 24 aforesaid shall by the said Governor or the 25 officer administering the Government be with all 26 convenient expedition transmitted to Her Majesty, 27 for Her approbation of disallowance thereof or of 28 any part thereof, through one of Her Principal 29 Secretaries of State, or that the same or any part 30 thereof shall not be in force within the said 31 Colony after Her Majesty's disallowance as 32 aforesaid shall be made known therein: Provided 33 nevertheless, and Her Majesty doth hereby reserve 34 to Herself, Her heirs and successors, Her and 35 their right and authority to make and established, 36 from time to time, with the advise of Her Privy 37 Council, all such laws as may to Her or them 38 appear necessary for the order, peace, and good 39 government of the said Colony and its 40 Dependencies, as fully as if this present Order 41 had not been made." 42 43 My lord, if I may, that in a subsequent assembly of 44 documents relating to the 13 enactments that were 45 before the court in Calder, and to certain other 46 selected enactments of this and the subsequent 47 Colonial period, your lordship will be provided with 1947? Reading of Despatches By Mr. Goldie 1 the correspondence and despatches under which the 2 proclamations and laws and ordinances were transmitted 3 to Her Majesty for her approval -- or for her 4 approbation or disallowance. That correspondence is 5 found in part in these despatches, but not wholly. 6 The next document is again dated the 2nd of 7 December -- 2nd of September, I should say, 1858, and 8 it is the instrument under the Royal Sign Manual 9 revoking so much of the Crown Grant of the 30th of 10 May, 1838 to the Hudson's Bay Company for exclusive 11 trading with the Indians, as relates to the 12 Territories comprised within the Colony of British 13 Columbia. And I'll read in part the preamble: 14 15 "Whereas by an Instrument under the hand and seal 16 of the Right Honourable Lord Glenelg, then one of 17 our Principal Secretaries of State, and dated the 18 30th day of May, 1838, We did, for the reasons and 19 and considerations therein recited, grant and give 2 0 Our licence to the Government and Company of 21 Adventurers trading to Hudson's Bay and their 22 successors, for the exclusive privilege of trading 23 with the Indians in all such parts of North 24 America to the northward and westward of the lands 25 and territories belonging to the United States of 26 America as should not form part of any of Our 27 provinces in North America, or of any lands or 28 territories belonging to the said United States 29 of America, or to any European Government, State 30 or Power, but subject, nevertheless, as 31 therein-after mentioned ; and did give, grant, and 32 secure to the said Governor and Company, and their 33 successors, the sole and exclusive privilege, for 34 the full period of twenty-one years from the date 35 of Our said grant, of trading with the Indians in 36 in all such parts of North America as aforesaid." 37 38 And then there's an exception to that. And then the 39 last clause in that preamble, beginning about five 40 lines from the bottom of that paragraph: 41 42 "And we did thereby reserve to Us, Our heirs and 43 successors, full power and authority to revoke Our 44 said grant or any part thereof in so far as the 45 same might embrace or extend to any of the 46 territories aforesaid which might thereafter be 47 comprised within any colony or colonies, province 19479 Reading of Despatches By Mr. Goldie 1 or provinces, as aforesaid." 2 3 Now, turning to the first despatch with the background 4 of those -- of the enactment of the 2nd of August of 5 1862, and the Letters Patent constituting Douglas' 6 Commission is the Royal Instructions and the Order in 7 Council with respect to the administration of justice 8 and the instrument revoking the Hudson's Bay's 9 exclusive right of trading, all of the -- all of the 10 2nd of September. I'm turning now to the 11 circumstances which gave rise to the Act and the 12 enactments, statutory instruments which I have 13 referred to. And at page 11 -- 14 THE COURT: Should we take the morning adjournment before we 15 move onto that? 16 MR. GOLDIE: Yes, thank you. 17 THE REGISTRAR: Order in court. Court stands adjourned for a 18 short recess. 19 20 (PROCEEDINGS ADJOURNED AT 11:15) 21 22 I hereby certify the foregoing to be 23 a true and accurate transcript of the 24 proceedings herein transcribed to the 25 best of my skill and ability 26 27 28 29 30 Graham D. Parker 31 Official Reporter 32 United Reporting Service Ltd. 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 19480 Reading of Despatches by Mr. Goldie 1 (PROCEEDINGS RESUMED FOLLOWING RECESS) 2 THE COURT: Mr. Goldie? 3 MR. GOLDIE: I was about to start with the first despatch in the 4 papers laid before parliament and this is dated May 5 19th, 1858 and is part of what was laid before 6 parliament on February 19th, 1859. And as I noted 7 earlier, my lord, this what was received in July of 8 1858. Paragraph one: 9 10 "Since I had the honour of addressing you on the 11 8th instant, on the subject of the Couteau Gold 12 Mines, it was currently reported that boats and 13 other small craft from the American shore were 14 continually entering Fraser's River with 15 passengers and goods, especially spirits, arms, 16 amunition, and other prohibited and noxious 17 articles, and as those acts are in direct 18 violation of the Custom's laws, as extended to 19 the British Possessions in America, and 20 infringe the rights of the Hudson's Bay 21 Company, I took immediate steps to put a stop 22 to those lawless practices, by issuing a 23 Proclamation, of which a copy is transmitted, 24 warning all persons against the consequences of 25 such offences, and I have since applied to 26 Captain Prevost, of Her Majesty's Ship 27 'Satellite', for an effective force to carry 28 out the measures proposed and set forth in my 29 Proclamation." 30 31 32 My lord, we will see that that proclamation was 33 disallowed by the secretary of state for the colonies 34 on the grounds that it sought to protect the interests 35 of the Hudson's Bay Company in a manner which was 36 beyond the powers of the governor. But, of course, 37 Douglas didn't receive that until sometime in October. 38 The reference to Couteau Gold Mines, my lord, from 39 the next -- not the next but in another series of 40 documents, that subject will be dealt with. That is 41 up near the Thompson River, and there was a gold 42 strike of a minor character in 1857. And that will be 43 followed through in another series of documents. 44 I should refer at this point to page 42, which is 45 the reply to Douglas of the 19th of May. It's dated 46 the 19th of May: 47 19481 Reading of Despatches by Mr. Goldie 1 "I have to acknowledge your Despatch, No. 23 2 of the 19th of May last, enclosing a 3 Proclamation which you had issued on the 4 subject of boats and vessels entering Fraser's 5 River for trade, and reporting further on the 6 state of the Couteau Gold Diggings. 7 The accounts which have reached Her 8 Majesty's Government from other quarters as 9 well as your own afford abundant evidence of 10 the critical nature of the circumstances in 11 which you are placed. They have much 12 satisfaction in reflecting that the maintenance 13 of public order and the rights of the Crown in 14 that quarter is placed in the hands of an 15 officer so vigilant, and so well acquainted 16 with the country and the people as yourself; 17 and you may rely on their support in the 18 performance of this arduous duty, under the 19 very peculiar difficulties of your position. 20 They are now engaged in conducting through 21 parliament a measure for the purpose of giving 22 the sanction of law to the steps which the 23 Crown will be advised to take for the 24 establishment of regular government, and 25 protection both of the immigrants and the 26 natives, as far as practicable; and they are 27 also devising the means for affording your 28 support of a military force, as soon as this 29 can be effected. 30 In the meantime I must lay down a few rules 31 for your guidance in the administration of the 32 authority which has thus devolved on you. 33 In strict law, your commission extends to 34 Vancouver's Island only; but you are 35 authorized, under the necessity of the case, to 36 take such measures, not inconsistent with the 37 general rights of British subjects and others 38 within Her Majesty's Dominions, as that 39 necessity may justify." 40 41 42 I said, my lord, that Douglas didn't receive this 43 until October. I should give your lordship the exact 44 date. Page 36, Douglas to Lytton, of September 30th, 45 1858. 46 47 19482 Reading of Despatches by Mr. Goldie 1 "I have the honour to acknowledge the receipt of 2 your Despatch No. 4 of the 16th of July." 3 4 5 THE COURT: So you say he received it after September 30th? 6 MR. GOLDIE: Yes. Well, he is acknowledging it by his despatch 7 dated September 30th, I believe I said October and I 8 wish to correct that. 9 Now, I had interrupted my reading of the May 19th 10 despatch to read the reply to it. And -- 11 MR. RUSH: What page are you on now? 12 MR. GOLDIE: I am now going back to page 42. Lytton approves of 13 despatching an officer of the Customs from Vancouver's 14 Island, I am reading the paragraph that -- sixth 15 paragraph down. He says: 16 17 18 "I approve, therefore, of your having detached 19 an officer of the customs from Vancouver's 20 Island (if the intention announced in your 21 Despatch was carried into execution), for the 22 purpose of preventing the landing in Fraser's 23 River of articles prohibited under the Custom's 24 laws to which you refer. 25 Subject to this restriction, her Majesty's 26 Government wish no obstacle to be interposed to 27 the disembarkation of passengers and goods at 28 the mouth of Fraser's River by foreign vessels. 29 But it is necessary to maintain the 30 principle that the navigation of Fraser's River 31 itself above the mouth is open to British 32 vessels only. American or other foreign 33 vessels, therefore, if admitted to navigate 34 that river (to which it is the desire of Her 35 Majesty's Government that no unnecessary 36 obstacles should be interposed), should be 37 required to take a licence from yourself or 38 such officer as you may delegate for the 39 purpose. 40 But I must distinctly warn you against using 41 powers hereby entrusted to you in maintenance 42 of the interests of the Hudson's Bay Company in 43 the territory. 44 The company is entitled, under its existing 45 licence, to the exclusive trade with the 46 Indians, and possesses no other right or 47 privilege whatever." 19483 Reading of Despatches by Mr. Goldie 1 2 3 Then skipping a paragraph I read the first 4 sentence: 5 6 7 "I am compelled, therefore, to disapprove, and 8 to disallow if still in force, the Proclamation 9 of which your Despatch transmitted a copy." 10 11 12 And then I go back, my lord, to Douglas's despatch 13 itself on page 11. And I don't propose reading all of 14 this, but I draw your lordship's attention to 15 paragraph 7: 16 17 18 "Those accounts are sufficiently promising to 19 nourish the prevalent mania for gold. On all 20 sides the Americans are striving to force a 21 passage into the Gold District through their 22 own territories, attempts being at once made to 23 open roads from Bellingham Bay, for Nisqually, 24 and by the way of the Columbia River." 25 26 27 Paragraph 8, Douglas's conviction that "it is 28 impossible, through any means within our power, to 29 close the Gold Districts against the entrance of 30 foreigners." 31 32 And paragraph 9, his attempts to legalize the 33 entrance of gold miners under certain conditions and 34 to protection of the interests of the Hudson's Bay 35 Company, and I go to the top of page 12: 36 37 38 "...and are intended to draw the whole trade of 39 the Gold Districts through Fraser's River to 40 this colony, which will procure its supplies 41 directly from the Mother Country." 42 43 44 As I have read to your lordship Lytton's Despatch 45 of 42, page 42 in response to that, the attempt to 46 protect the interests of the Hudson's Bay Company was 47 disapproved of. 19484 Reading of Despatches by Mr. Goldie 1 My lord, I wish at this point to refer to Lytton's 2 Despatch of July 1st, 1858, which was before he got 3 Douglas's report of May 19th, and it is at page 41. 4 And it reads in part as follows, and after informing 5 him of a letter which indicates that the Admiralty is 6 about to take steps in connection with the 7 circumstances of the gold strike, I refer to the 8 second complete paragraph: 9 10 11 "Her Majesty's Government, feeling the 12 difficulties and the critical nature of your 13 present circumstances, have not hesitated to 14 place these considerable powers in your hands; 15 but they rely upon your forbearance, judgment, 16 and conciliation to avoid all resort to 17 military or naval force which may lead to 18 conflict and loss of life, except under the 19 pressure of extreme necessity. Still less need 20 I impress upon you the importance of avoiding 21 any act which directly or indirectly might be 22 construed into an application of Imperial 23 resources to the objects of the Hudson's Bay 24 Company, in whose service you have so long been 25 engaged." 26 27 28 If I may pause there, my lord, he is still in the 2 9 employ of the Hudson's Bay Company. 30 And then continuing: 31 32 33 "Even the suspicion of this, however unfounded, 34 would be eminently prejudicial to the 35 establishment of Civil Government in the 36 country lying near the Fraser's River, and 37 would multiply existing difficulties and 38 dangers. All claims and interests must be 39 subordinated to that policy which is to be 40 found in the peopling and opening up of the new 41 country, with the intention of consolidating it 42 as an integral and important part of the 43 British Empire." 44 45 46 Of course, my lord, I ask your lordship to note the 47 word policy, which is to be found in the peopling and 19485 Reading of Despatches by Mr. Goldie 1 opening up of the new country. 2 That despatch was received by Douglas on September 3 9th, as appears from his despatch at the bottom of the 4 page: 5 6 7 "I have to acknowledge the receipt of your 8 Despatch (confidential) of the 1st of July 9 last, and observe with feelings of 10 indescribable satisfaction that Her Majesty's 11 Government approve of the measures which I 12 conceived it necessary to resort to, in order 13 to assert the dominion of the Crown over the 14 Gold Districts of Fraser's River, and the 15 rights of the Crown over precious metals " 16 17 18 THE COURT: Where is that? 19 MR. GOLDIE: That was page 33, my lord. I am sorry, I am 20 referring to Douglas's response to Lytton of the 1st 21 of July. And it's at the bottom of the page, my lord. 22 THE COURT: Thank you. 23 MR. GOLDIE: And I am not going to — 24 THE COURT: What is the organization of these things, why are 25 they jumping back and forth like this? 26 MR. GOLDIE: What they have done, my lord, is simply put all of 27 Douglas's despatches in one group and all of Lytton's 28 despatches in another. They seek to assist the 29 reader, assuming that we are in the position of a 30 member of the houses of parliament, by placing a side 31 note, and if your lordship will look at page 33, the 32 side note page 41, is a reference to the despatch 33 which Douglas is acknowledging. 34 THE COURT: All right. 35 MR. GOLDIE: As I said in my opening comments, without, I hope, 36 contributing to the confusion, I wanted to place these 37 in some chronological sequence. 38 But I do refer to paragraph 4 on page 34, where 39 after referring to protecting British interests and 40 developing the resources of the gold regions, he goes 41 on to say this: 42 43 "It was necessary for that purpose that we 44 should maintain a proper control over the mixed 45 multitude that have literally forced an 46 entrance into the British Possessions; that 47 Americans and other foreigners should, on 19486 Reading of Despatches by Mr. Goldie 1 certain conditions, be admitted into the Gold 2 Regions; that stocks of food should be thrown 3 into those districts; that, for want of British 4 ships, foreign vessels should, as a temporary 5 arrangement, be allowed, under a sufferance, 6 renewable at the close of each voyage, to 7 navigate the inland waters of Fraser's River, 8 for the purpose of supplying the miners with 9 food and clothing; that roads should be opened, 10 to render the Gold Districts accessible to the 11 miner and to the merchant; that Courts of Law 12 should be established, and officers appointed 13 for the administration of justice, the 14 punishment of offences, and the protection of 15 life and property; and that the powerful native 16 Indian Tribes who inhabit the Gold Regions 17 should be at once conciliated and placed under 18 proper restraint." 19 20 And then paragraph 14 he says: 21 22 23 "Being now engaged in visiting the various 24 districts of Fraser's River, with the intention 25 of reporting to you on their present state and 26 condition, and being exceedingly busy with 27 various matters of detail, I will bring my 28 present Despatch to a close, after informing 29 you that the mining population in this quarter 30 continue quiet, orderly, and submissive to the 31 laws." 32 33 34 Now, my lord, if I may go back to page 13, and I 35 apologize once again, I have read to you a despatch of 36 September 9th, which was in response to Lytton of July 37 1st, but going back to the conditions under which 38 Douglas was operating, I now refer to page 13, which 39 is his despatch of June 10th, 1858, he says: 40 41 42 "Since I had the honour of addressing you on 43 the 19th of May last, in reference to the 44 Couteau Gold Mines, and the immigration of 45 foreigners into Fraser's River, as well as the 46 measures taken to assert the rights of the 47 Crown to enforce the revenue laws of the 19487 Reading of Despatches by Mr. Goldie 1 empire, and to protect the rights of the 2 Hudson's Bay Company, I have, as therein 3 proposed, made a journey to the Falls of 4 Fraser's River, visited the gold diggings..." 5 6 7 If I may be permitted, my lord, the Falls at 8 Fraser's River is Yale, as I understand it from 9 subsequent despatches. 10 11 12 13 "...and seen all the miners below that point; 14 and I will now proceed to give a brief 15 narrative of my proceedings, and the 16 information gathered in respect to the 17 auriferous character of the country in the 18 course of that journey." 19 20 After that is stated how he gets there and what the 21 revenue officers have done. 22 THE COURT: What does auriferous mean? 23 MR. GOLDIE: Gold bearing. 24 THE COURT: Gold bearing? 25 MR. GOLDIE: Yes. 26 He then locates, in paragraph 6, the diggings on 27 the Fraser River: 28 29 30 31 "The actual gold diggings commence on a bar of 32 Fraser's River about one mile below the point 33 at which Fort Hope is situated, and from that 34 point upwards to the commencement of the Falls, 35 a distance of 20 miles, we found six several 36 parties of miners successfully engaged in 37 digging for gold on as many partially uncovered 38 river bars; the number of whites on those bars 39 being about 190 men, and there was probably 40 double that number of native Indians 41 promiscuously engaged with the whites in the 42 same exciting pursuit." 43 44 45 And then over on page 14 in paragraphs 18 to 21, 46 Mr. Douglas, who was, your lordship has seen, has no 47 power or authority whatsoever in the mainland, says, 19488 Reading of Despatches by Mr. Goldie 1 and I quote: 2 3 4 "Evidence is thus obtained of the existence of 5 gold over a vast extent of country situated 6 both north and south of Fraser's River, and the 7 conviction is gradually forcing itself upon my 8 mind, that not only Fraser's River and its 9 tributary streams, but also the whole country 10 situated to the eastward of the Gulf of 11 Georgia, as far norh as Johnstone's Straits, is 12 one continued bed of gold of incalculable value 13 and extent." 14 Such being the case, the question arises as 15 to the course of policy in respect to Fraser's 16 River which Her Majesty's Government may deem 17 it advisable in those circumstances to follow. 18 My own opinion is that the stream of 19 immigration is setting so powerfully towards 20 Fraser's River that it is impossible to arrest 21 its course, and that the population thus formed 22 will occupy the land as squatters, if they 23 cannot obtain a title by legal means. 24 I think it therefore a measure of obvious 25 necessity that the whole country be immediately 26 thrown open for settlement, and that the 27 planned be surveyed, and sold at a fixed rate, 28 not to exceed 20 shillings an acre. By that 29 means, together with the imposition of a 30 Customs' duty on imports, a duty on licences to 31 miners, and other taxes, a large revenue might 32 be collected for the service of government." 33 34 35 And then in his final -- the final paragraph: 36 37 38 "In consequence of the unceasing demands upon my 39 time by the crowds of people who are flocking 40 to this place, and the want of assistants, my 41 secretary, Mr. Golledge, being greatly 42 overworked, I have been compelled to prepare 43 this report in the midst of numberless 44 interruptions, and I beg that its inaccuracies 45 may be overlooked and that I may receive your 46 instructions by return of post, as the case is 47 urgent, and calls for rapid and decisive 19489 Reading of Despatches by Mr. Goldie 1 measures in the outset, for in the course of a 2 few months there may be one hundred thousand 3 people in the country." 4 5 6 The note at the top of page 13 indicates that that 7 despatch of June 10th was received August 9th, and was 8 answered on August 14th. 9 THE COURT: And the page? 10 MR. GOLDIE: The one of August 14th, my lord, it — 11 MR. RUSH: It says page 47. 12 MR. GOLDIE: — that's the date of the despatch of August 14th. 13 The date of its receipt by Douglas is October 21st. 14 And, of course, I point out that his cry for 15 instructions or his request for instructions, on June 16 10th, was not received until October 21st. And, 17 indeed, from page 47 it will be apparent that he had 18 sent off some five Despatches before he received a 19 response. 20 Now, the others which were sent off by Douglas 21 before he knew that he had been authorized to -- by 22 law, page 15, and 16, there are two Despatches of June 23 15th, the first encloses "a copy of an address 24 presented to me by a committee appointed for that 25 purpose at a public meeting lately held at this 26 place." 27 I am not going to read anything further. The 28 address by merchants of Victoria and the -- they are 29 hoping to participate in the trade arising out of the 30 gold fields. 31 The second, however, my lord is on page 16, and 32 again it's addressed to Lord Stanley, who had ceased 33 to be the secretary of state some two or three weeks 34 before the date of this despatch. He says, and I 35 quote: 36 37 38 "In reporting the other day the result of my 39 observations of the Gold Regions of Fraser's 40 River, I omitted to mention several things that 41 I ought to have communicated to you. 42 In consequence of that omission I have now 43 to state that during my stay at the Falls of 44 Fraser's River I appointed Mr. Richard Hicks, a 45 respectable Englishman engaged in mining 46 pursuits there, as Revenue officer for the 47 district of Fort Yale, at a salary of 40 pounds 19490 Reading of Despatches by Mr. Goldie 1 a year, to be paid out of the Revenues of the 2 Country. 3 On the arrival of our party at 'Hill's Bar," 4 the white miners were in a state of great alarm 5 on account of a serious affray which had just 6 occurred with the native Indians, who mustered 7 under arms in a tumultuous manner, and 8 threatened to make a clean sweep of the whole 9 body of miners asembled there. 10 The quarrel arose out of a series of 11 provocations on both sides, and from the 12 jealousy of the savages, who naturally feel 13 annoyed at the large quantities of gold taken 14 from their country by the white miners. 15 I lectured them soundly about their conduct 16 on that occasion, and took the leader in the 17 affray, an Indian highly connected in their 18 way, and of great influence, resolution, and 19 energy of character, into the Government 20 service, and found him exceedingly useful in 21 settling other Indian difficulties. 22 I also spoke with great plainness of speech 23 to the white miners, who were nearly all 24 foreigners, representing almost every nation in 25 Europe. I refused to grant them any right of 26 occupation to the soil, and told they 27 distinctly that Her Majesty's Government 28 ignored their very existence in that part of 29 the country, which was not open for the 30 purposes of settlement, and they were permitted 31 to remain there merely on sufferance; that no 32 abuses would be tolerated; and that the laws 33 would protect the rights of the Indian, no less 34 than those of the white man. 35 I also apointed Mr. George Perrier, a 36 British subject, as justice of the peace for 37 the district of 'Hill's Bar' and directed the 38 Indians to apply to him for redress whenever 39 any of them suffer wrong at the hands of white 40 men, and also cautioned them against taking the 41 law into their own hands, and seeking justice 42 according to their own barbarous customs. 43 I also appointed Indian magistrates, who are 44 to bring forward, when required, any man of 45 their several tribes who may be charged with 46 offences against the laws of the country; an 47 arrangement which will prevent much evil; but 19491 Reading of Despatches by Mr. Goldie 1 without exercise of unceasing vigilance on the 2 part of the Government Indian troubles will 3 sooner or later occur. 4 The recent defeat of Colonel Steptoe's 5 detachments of United States troops, consisting 6 of dragoons and infantry, by the Indians of 7 Oregon Territory, has greatly increased the 8 natural audacity of the savage, and the 9 difficulty of managing them. It will require, 10 I fear, the nicest tact to avoid a disastrous 11 Indian war. 12 I transmit herewith a handbook and map of 13 the Gold Region of Fraser's River, which will 14 prove useful as a reference." 15 16 The enclosure is set out below, extract from 17 "Pioneer and Democrat." And it's dated May 28th, 18 1858, Washington Territory, and I don't propose to 19 read it, my lord, I believe I put this to Dr. Lane, 20 but it reports the defeat of a substantial body of 21 military, U.S. military people, and in fact 400 such. 22 And the defeat of the military resulted in three 23 officers and 50 men killed. 24 Page 17, Douglas despatch of June 19th, again 25 another one that was answered by Lytton's despatch of 26 August 14th. He starts off by saying: 27 28 "I fear the frequent and desultory nature of my 29 Despatches will give you much trouble, but the 30 pressure of business compels me to address you 31 in this form." 32 33 34 He goes on to give some further examples and in 35 paragraph 8 he is still being ignorant of the 36 disapproval of his protection of the interests of the 37 Hudson's Bay Company, he says and I quote: 38 39 40 "I herewith forward, for your information, a 41 copy of the terms on which it is proposed to 42 allow steam vessels to ply upon Fraser's River 43 enforcing at once the Revenue laws of the 44 Empire, and respecting the trading rights of 45 the Hudson's Bay Company." 46 47 19492 Reading of Despatches by Mr. Goldie 1 And the enclosure, as your lordship will see, is 2 one that was designed to not only protect the rights 3 of the Hudson's Bay Company but to provide them with a 4 source of revenue. 5 Paragraph 14, the enclosure is the one that's 6 immediately below that. Paragraph 14: 7 8 9 "The miners have applied to me for protection 10 against the Natives, and when that is accorded 11 will have no hesitation in paying the licence 12 duty; otherwise it will be paid with 13 reluctance." 14 15 That succeeds his paragraph: 16 17 "I have no doubt that your lordship will send 18 out a body of troops for the service of this 19 colony and the Fraser's River District." 20 21 22 And then finally, the last of the Despatches which 23 is acknowledged in the Despatches of Lytton's 24 Despatches of the 14th of August is Douglas's despatch 25 on page 19, dated July 1st, 1858. Paragraph one: 26 27 28 "Since I had last the honour of addressing you 29 on the 19th instant, the excitement on the 30 subject of the Fraser's River Gold Mines has 31 been more than ever exhibitted in the rush of 32 people from all parts of the coast to this 33 Colony." 34 35 36 Then he records the number of ships clearing 37 through the customs house in Victoria as carrying 6, 38 133 passengers, all either bound directly for Fraser's 39 River or proposing to settle at this place with a view 40 of entering into business connections with parties at 41 the mines. 42 Paragraph two: 43 44 45 "The an ascertained number of persons who had 46 actually sailed from the Port of San Francisco 47 with the intention of going into the Fraser's 19493 Reading of Despatches by Mr. Goldie 1 River mines, up to the 15th instant, was 2 10,573, and there was then no abatement in the 3 demand for passages, every vessel being taken 4 up as soon as advertised to sail to Vancouver's 5 Island. 6 Those statements give approximate idea of 7 the number of persons at and on the way to 8 Fraser's River from California and other more 9 distant countries, but do not represent the 10 increase of population derived from the United 11 States territories of Washington and Oregon, 12 through parties of adventurers who have entered 13 the British Possessions by land. We are, 14 therefore, led to the inference that this 15 country and Fraser's River have gained an 16 increase of 10,000 inhabitants within the last 17 six weeks, and the tide of immigration 18 continues to roll onward without any prospect 19 of abatement " 20 21 22 Then he goes on to talk about some of the results 23 of the mines. 24 In paragraph 14 -- well, I will read paragraph 12, 25 13 and 14: 26 27 28 "I have appointed Mr. Travaillot Revenue officer 29 for the District of Fort Dallas, or Forks of 30 Thompson's River, and will authorize him to 31 issue licences to miners, and to collect the 32 legal fees in that District. The law must, 33 however, be imperfectly executed until there be 34 a military force placed at my disposal. 35 I will authorize Mr. Travaillot to raise 36 and maintain a force of eight men for the 37 service of Government, and to swear in all 38 persons who take out mining licences as special 39 constables for the maintenance of law and 40 order, granting to them also certain privileges 41 in respect to mining claims, in order to secure 42 their fidelity and attachment. 43 About two-thirds of the emigrants from 44 California are supposed to be English and 45 French; the other third are Germans and native 46 citizens of the United States. There is no 47 congeniality of feeling among the emigrants, 19494 Reading of Despatches by Mr. Goldie 1 and provided there be no generally felt 2 grievance to unite them in one common cause, 3 there will, in my opinion, always be a great 4 majority of the population ready to support the 5 measures of Government." 6 7 8 And I now, my lord, wish to refer to that response 9 of the 14th of August in a little more detail, which 10 is in response to these despatches I just finished 11 reading. 12 Actually, there are three despatches of August 13 14th, the first one on page 46 transmits to Douglas 14 for his information and guidance a copy of the Act to 15 provide for the Government of British Columbia, and 16 Sir Edward Bulwer Lytton states in the second 17 paragraph: 18 19 20 "There has been as yet time at furnish you by 21 this mail the necessary Order-in-Council, 22 commission and Instructions to yourself as 23 governor, which are necessary in order to 24 complete your legal powers. 25 You will continue nevertheless to act during 26 the brief interval before their arrival as you 27 have hitherto done, as the authorized 28 representative of Her Majesty's Government in 29 the territory of British Columbia, and take 30 without hesitation such steps and you may deem 31 absolutely necessary for the government of the 32 territory, and as are not repugnant to the 33 principles of British law; but you will do so 34 in conformity with the directions which I 35 transmit to you on several subjects by my 36 Despatches of even date herewith, and in such 37 others as you may receive from me." 38 39 40 41 Now, turning to the next one, which is the 42 acknowledgement of the Despatches of the 10th of June, 43 the 15th of June, the 15th of June, two of the 19th of 44 June and one of the 1st of July. The despatch begins: 45 46 "I have to acknowledge the very important 47 series of Despatches of which the numbers and 19495 Reading of Despatches by Mr. Goldie 1 dates are specified in the margin, showing the 2 manner in which you have continued to 3 administer the government of the territory in 4 which the recent discoveries of gold have taken 5 place, and detailing the extraordinary course 6 of events in that quarter. 7 Her Majesty's Government feel that the 8 difficulties of your position are such as 9 courage, judgment, and familiarity with the 10 resources of the country and character of the 11 people can alone overcome. They feel also that 12 minute directions conveyed from this distance, 13 and founded on an imperfect knowledge, are 14 very liable to error and misunderstanding. On 15 some points, however, you have asked yourself 16 for approval and Instructions; on others it is 17 absolutely necessary that the views of Her 18 Majesty's Government should be made clear to 19 you." 20 21 22 Then he goes to approve appointments of revenue 23 officers and justices of the peace and Mr. Young as 24 Gold Commissioner. He says that he approves the 25 temporary measure with respect to the surveying 26 department but he has in contemplation to send to the 27 colony ahead of that government in England. Likewise 28 with respect to the office of collector of customs and 29 an officer authorized to act as judge, who as your 30 lordship would suspect, is Mr. Begbie. 31 Then in the fourth line: 32 33 34 "I await your intimations as to the wants and 35 means of the Colony, in this sudden rise of 36 social institutions in a country hitherto so 37 wild, in order to select such law advisors as 38 you may deem the condition and progress of 39 immigration more immediately require. And it 40 is my wish that all legal authorities connected 41 with the Government should be sent from home, 42 and thus freed from every suspicion of local 43 partialities, predjudices and interests." 44 45 Then his -- Lytton goes on in paragraph five to 46 state something that's highly relevant to this 47 proceeding: 19496 Reading of Despatches by Mr. Goldie 1 2 3 "I highly approve of the steps which you have 4 taken, as reported by yourself, with regard to 5 the Indians. It is in the execution of this 6 very delicate and important portion of your 7 duties that Her Majesty'sGovernment especially 8 rely on your knowledge and experience, obtained 9 in your long service under the Hudson's Bay 10 Company. You may in turn rely on their support 11 in the execution of such reasonable measures as 12 you may devise for the protection of the 13 natives, the regulation of their intercourse 14 with the whites, and, whenever such a work may 15 be commenced, their civilization. In what way 16 the fur trade with the Indians may be 17 henceforth carried on with the most safety, and 18 with due care to save them from the 19 demoralizing bribes of ardent spirits, I desire 20 to know your views before you make any fixed 21 regulations. No regulations giving the 22 slightest preference to the Hudson's Bay 23 Company will be in future admissable; but 24 possible, with the assent of the whole 25 community, licences for Indian trade 26 impartially given to all who would embark in 27 it, might be a prudent and not unpopular 28 precaution." 29 30 31 The approval of the measures to which Lytton refers 32 in respect of Indians is found at page 16, my lord. 33 These are the ones that I read in his despatch of June 34 15th. On page 16. Paragraph -- 35 MR. RUSH: Well, my lord, I am not sure what emerges from the 36 document that would lead my friend to that conclusion. 37 It might be a reasonable conclusion, but I say that's 38 something perhaps your lordship ought to determine in 39 the course of argument. 40 THE COURT: You are talking about paragraph 55 and despatch 41 number 40, page 16? 42 MR. RUSH: Yes, I am simply saying that my friend draws your 43 attention to the despatch at page 16 and asks you to 44 conclude that those are the measures approved of. 45 MR. GOLDIE: Well, I invite my friend to find any other 46 reference. 47 MR. RUSH: Well, isn't that the argument? 19497 Reading of Despatches by Mr. Goldie 1 THE COURT: I don't think your friend wants to do that at this 2 time, Mr. Goldie. 3 MR. RUSH: But I only rise, my lord, to point out that that, 4 this exchange is simply indicative of the debate. 5 THE COURT: Yes. Yes, it is. 6 MR. GOLDIE: Paragraph 8: 7 8 "Further, with regard to these supposed rights 9 of the Hudson's Bay Company, I must refer you, 10 in even stronger terms, to the cautions already 11 conveyed to you by my former Despatches." 12 13 Then in paragraph 10: 14 15 "The immense resources which the information 16 that reaches England every day, and is 17 confirmed with such authority by your last 18 Despatch, assure me the Colony possesses, and 19 the facility for immediate use of those 20 resources for the purpose of Revenue, will at 21 once free the Mother Country from those 22 expenses which are adverse to the policy of all 23 healthful colonization." 24 25 26 It says "heathful", I hope my friends might agree 27 that that is healthful, but if not I will leave it to 28 be debated. 29 MR. RUSH: Due at any time, my lord. 30 MR. GOLDIE: Any time you please. 31 32 33 "You will bear the principle I have thus laid 34 down perpetually in mind, so as to apportion 35 the expenditure to the Revenue, and not to 36 allow the former to exceed the latter. 37 The most important objects to which the 38 local revenue can be applied would seem to be, 39 police, public works to facilitate landing and 40 travelling, payment of the absolutely necessary 41 officers, and above all, surveying. But your 42 own local judgment must mainly decide." 43 44 45 I have a note that there is no reference in what I 46 have just read to Indians. 47 14: 1949? Reading of Despatches by Mr. Goldie 1 "I now come to the important subject of future 2 Government. It is possible (although on this 3 point I am singularly without information) that 4 the operations of the gold diggers will be to a 5 considerable extent suspended during the 6 winter, and that you will, therefore, have some 7 amount of leisure to consider the permanent 8 prospects of the Colony, and the best mode of 9 administering its affairs. 10 You will be empowered both to govern and 11 legislate of your own authority; but you will 12 distinctly understand this is a temporary 13 measure only. It is the anxious wish of Her 14 Majesty's Government that popular institutions, 15 without which they are convinced peace and 16 order cannot long prevail, should be 17 established with as little delay as 18 practicable; and until an Assembly can be 19 organized (which may be whenever a permanent 20 population, however small, is established on 21 the soil.)" 22 2 3 And so on. 15: 24 25 "You will receive additional directions along 26 with your Commission, when forwarded to you; 27 and I have embodied in a separate Despatch 28 those regarding the very important question of 29 disposal of land." 30 31 32 And then 17: 33 34 35 "I will only conclude with the general caution, 36 that inasmuch as your legal powers are as yet 37 incomplete, it will be well that you should 38 therein confine yourself as much as possible to 39 the mere issue of regulations absolutely 40 required, and not seek to carry into effect the 41 Crown's general power of legislation until 42 fully authorized thereto." 43 44 45 And then the third one of August 14th, the one that 46 Lytton characterizes as regarding the very important 47 question of the disposal of land, starts off with the 19499 Reading of Despatches by Mr. Goldie 1 statement: 2 3 "Frequent inquiries are addressed to this office 4 on the subject of disposal of land in British 5 Columbia to companies or private individuals in 6 this country." 7 8 9 And then he says that there is general ignorance in 10 that country with respect to this matter and concludes 11 that paragraph by saying: 12 13 14 "It is therefore very necessary that you should, 15 at your earliest convenience, communicate to me 16 the impressions that you entertain on this 17 subject, accompanied with all the information 18 which you can collect. 19 In the meantime you will take the following 20 Provisional Rules to guide you:- 21 With regard to the very important subject of 22 the disposal of land, you are authorized to 23 sell land merely wanted for agricultural 24 purposes (whenever a demand for it shall arise) 25 at such upset price as you think advisable I 26 believe that a relatively high upset price has 27 many advantages; but your course must, in some 28 degree, be guided by the price at which such 29 land is selling in neighbouring American 30 territories. But with regard to land wanted 31 for town purposes (to which speculation is 32 almost certain to direct itself in the first 33 instance) I cannot caution you too strongly 34 against allowing it to be disposed of at too 35 low a sum. An upset price of at least one 36 pound per acre is, in my opinion, absolutely 37 required, in order that the local Government 38 may in some degree participate in the profit of 39 the probable sales, and that mere land jobbing 40 may be in some degree checked. Whenever a free 41 Legislature is assembled, it will be one of its 42 duties to make further provision on this land. 43 2. To open land for settlement gradually; not 44 to sell beyond the limits of what is either 45 surveyed or ready for immediate survey, and to 46 prevent, as far as in you lies, squatting on 47 unsold land. Mineral lands will require a 19500 Reading of Despatches by Mr. Goldie 1 special care and forethought, and I request 2 your views thereon." 3 4 5 Then he is told to keep a separate account and then 6 in paragraph 4: 7 8 9 "Foreigners, as such, are not entitled to grants 10 of waste land of the Crown in British colonies 11 but it is the strong desire of Her Majesty's 12 Government to attract to this territory all 13 peaceful settlers, without regard to nation. 14 Naturalization should, therefore, be granted to 15 all who desire it, and are not disqualified by 16 special causes; and with naturalization the 17 right of acquiring Crown land should follow." 18 19 20 Then he again exhorts him not to grant any favours 21 to the Hudson's Bay Company. 22 Now, this -- I now go back to the situation which 23 Douglas was in, and I refer to his despatch of July 24 26th, on page 22, and your lordship will now see that 25 Mr. Douglas has anticipated the question of the 26 disposal of land and has in fact made some regulations 27 with respect to it. 28 And then he says in paragraph 6: 29 30 31 "I will, for your lordship's information, 32 concisely enumerate the objects we wish to 33 attain through those regulations. 34 In the first place, I have distinctly, and 35 to all applicants for land, refused the grant 36 of any rights of occupation in accordance with 37 the instructions from Mr. Secretary Labouchere, 38 as detailed in his Despatch No.4 of the 1st of 39 February, 1858, and also with the view of 40 presenting the confusion and numberless evils 41 that have in all cases grown out the the 42 practice of squatting on Crown lands, or the 43 lawless occupation of a country." 44 45 46 47 Now his instruction from Mr. Secretary Labouchere 19501 Reading of Despatches by Mr. Goldie 1 as contained in the Despatch of the 1st of February, 2 1858 was put into evidence by Dr. Lane in her Exhibit 3 1039-39. 4 THE COURT: 1039-39? 5 MR. GOLDIE: Yes, 1039-39, my lord. 6 THE COURT: Yes. 7 MR. GOLDIE: And I will be referring to it at a later time, not 8 in connection with this series, but in connection with 9 the earlier and subsequent events touching the colony. 10 Then his second object, going back to page 22: 11 12 13 "I have endeavored to protect the trading rights 14 of the Hudson's Bay Company as by law 15 established. 16 Third, I have established the system of 17 issuing licences for digging gold, the charge 18 for each mining claim 25 feet of river 19 frontage, or 20 square feet of river bar or dry 20 diggings, being fixed at 21 shillings or $5 a 21 month, the revenue derived from this source 22 being held for the benefit of the Crown. 23 There are also regulations respecting the 24 draining of water ponds and working quartz 25 veins which will, I trust, hereafter yield a 26 large amount of Revenue for the Crown." 27 28 29 Then he states the people he has appointed, and how 30 he proposes to pay for them, and in paragraph 20 he 31 says this: 32 33 34 "I am not without cause looking forward to most 35 anxiously to receiving your instructions 36 respecting the plan of government for Fraser's 37 River. The torrent of immigration is setting 38 in with impetuous force, and to keep pace with 39 the extraordinary circumstances of the times, 40 and to maintain the authority of the laws, I 41 have been compelled to assume an unusual amount 42 of responsibility." 43 44 45 46 Now that, his actions in that regard, I can say, 47 were approved, and I refer to page 66. 19502 Reading of Despatches by Mr. Goldie 1 THE COURT: Mr. Goldie, I have to adjourn just a few minutes 2 early. Is it convenient to do it now? 3 MR. GOLDIE: As your lordship can see it's convenient at the end 4 of any despatch. 5 THE COURT: All right. 2 o'clock, please. 6 7 (PROCEEDINGS ADJOURNED FOR LUNCH) 8 9 10 11 12 I hereby certify the foregoing to be 13 a true and accurate transcript of the 14 proceedings herein to the best of my 15 skill and ability. 16 17 18 19 20 21 Wilf Roy 22 Official Reporter 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 19503 Reading of Despatches By Mr. Goldie 1 (PROCEEDINGS RESUMED AT 2:00) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Goldie. 5 MR. GOLDIE: Thank you, my lord. At the luncheon adjournment I 6 had just finished reading Douglas' dispatch to Lord 7 Stanley of July 26th, 1858, and I believe I have read 8 paragraph 20. 9 THE COURT: Yes. 10 MR. GOLDIE: I had referred in paragraph 6 to Mr. Secretary 11 Labouchere's dispatch number 4 of the 1st of February, 12 1858 -- Dr. Lane has -- I believe, it's a draft of 13 that dispatch in her Exhibit 1039-39. Under tab 5 of 14 the book before your lordship is a type script of Mr. 15 Labouchere's dispatch of the 1st of February, 1858, 16 and it is before any word of the initial gold strike, 17 that Couteau gold strike, reached London. The 18 circumstance which gave rise to this dispatch is 19 indicated in the first paragraph: 20 21 "The governor and directors of the Hudson's Bay 22 Company have communicated to me the draft of a 23 letter which they propose to address to you as 24 Agent for the company, instructing you as to the 25 course which ought be taken in the event 26 of an immigration of the Mormons from the 27 Territory of Utah into British territory on the 28 North West Coast of America. 29 Her Majesty's Government have expressed to the 30 Governor and Directors their concurrence in the 31 instructions conveyed in that Despatch. But 32 although it is possible that the apprehended 33 immigration may not take place, they are of 34 opinion that you should be furnished as an Officer 35 of the Crown with a more distinct impression of 36 their own views on the subject." 37 38 And then he goes on to talk about the origin of the 39 Mormons, the fact that they are fleeing from the 40 United States. And then the next paragraph: 41 42 "Should they apply for admission to occupy any 43 portion of the North Western Territory peacefully 44 and as a community or in scattered communities: 45 you will remember that the soil of this Territory 46 belongs to the Crown subject only to such rights 47 as may be recognized in the Indian Tribes (who are 19504 Reading of Despatches By Mr. Goldie 1 not authorized to part with the soil without 2 permission of the Crown) and to the trading rights 3 of the Company." 4 5 And then he goes on to say: 6 7 "Her Majesty's Government are not prepared at 8 present to exercise the right reserved to them in 9 the Company's license of forming a Colony in these 10 parts. Least of all would they exercise that 11 right in favour of refugees who have defied 12 both the authority of their Country and the usage 13 of Christian and Civilized life. 14 No rights of occupation whatever are therefore 15 to be granted to them." 16 17 If I may pause there, my lord. You may recall that on 18 page 9 of part 1 of the papers laid before Parliament 19 is the instrument under the Royal Sign Manual which 20 revoked so much of the Crown Grant to the Hudson's Bay 21 Company of their exclusive rights to trade in what was 22 the mainland of part of the Indian territories. And 23 there in the last paragraph -- or the last clause of 24 the second-to-last paragraph, the instrument recited 25 the fact that: 26 27 "We did thereby reserve to Us, Our heirs and 28 successors, full power and authority to revoke Our 29 said grant or any part thereof in so far as the 30 same might embrace or extend to any of the 31 territories aforesaid which might thereafter 32 be comprised within any colony or colonies." 33 34 So that your lordship will thus be able to identify 35 the reference in the despatch at page 22, where Mr. 36 Douglas said: 37 38 "I have refused the grant of any rights of 39 occupation in accordance with the instructions 4 0 from Mr. Labouchere." 41 42 Now, at that time his reliance upon that was approved 43 by the Colonial -- by the Secretary of State for the 44 Colonies in his letter of September 16th -- or his 45 despatch of September 16th at page 66, paragraph 5, 46 and I believe I have read that. 47 THE COURT: No. You haven't read that. 19505 Reading of Despatches By Mr. Goldie 1 MR. GOLDIE: Well, in that case I will, my lord. This despatch 2 begins with the word: 3 4 "I have received your despatch of the 26th 5 of July, No. 31, with its enclosures, reporting 6 the public measures which you have adopted for the 7 Government of British Columbia since the 1st July. 8 It affords me much satisfaction to signify to 9 you generally the continued approval by Her 10 Majesty's Government of your proceedings in the 11 difficult position in which you have been so 12 unexpectedly placed; but there are a few points 13 mentioned in your Despatch on which it is 14 necessary that I now should touch." 15 16 And he is concerned about the traffic on the Fraser, 17 and paragraph 2 he said: 18 19 "Is totally impossible for Her Majesty's 2 0 Government to provide you with such a force from 21 England." 22 23 Necessarily adequate for the protection of the revenue 24 laws. Then over the page, he again comments that the 25 rights that Douglas purports to be safeguarding, this 26 is paragraph 4, of the Hudson's Bay Company have never 27 existed. And he -- Litwin says: 28 29 "By the time this Despatch reaches you they 30 will have ceased all together, if the 31 instrument forwarded to you for that 32 purpose has been put into operation, as I 33 trust it has, without delay." 34 35 And paragraph 5: 36 37 "I entirely approve the course you are following 38 with respect to applications for Crown land, and 39 for the prevention of Squatting. The party of 40 Royal Engineers which has been despatched to 41 British Columbia will relieve you from much 42 anxiety on this score, as they will immediately on 43 their arrival proceed to survey and lay out lands 44 for sale and occupation." 45 46 And then he approves of the nominations of Messrs. 47 Travaillot and Hicks and of Mr. Bevis, and 19506 Reading of Despatches By Mr. Goldie 1 subsequently other appointments. Turning back then to 2 page 29 -- well, I should perhaps touch very briefly 3 on what follows after the despatch of July 26th on 4 pages 22 and 23. There were enclosures in that 5 despatch which I needn't dwell upon which acknowledge 6 the assistance of the Royal Navy to Douglas at the 7 time of his attempts to deal with the matters on the 8 Fraser River. And at page 27 his despatch of August 9 the 19th, where he reports that he does not expect to 10 receive additional assistance from the navy, and in 11 paragraph 4 he says, and I quote: 12 13 "There are now about 10,000 foreign miners in 14 Fraser's River, and upwards of 3,000 of that 15 number are profitably engaged in gold mining." 16 I have appointed Sub-Commissioners to mark 17 out the mining claims, and to receive the duty 18 of 21 sh. a month payable on each claim. Those 19 officers require support, and the miners demand 20 protection, while I have not a single man to 21 detach to either of their assistance. 22 The affairs of Government might be carried 23 on smoothly with even a single company of 24 infantry; but at present I must, under 25 Providence, depend in a great measure on 26 personal influence and management; a position 27 inconsistent with the dignity of the Queen's 2 8 Government." 29 30 And I ask that that be taken into consideration. And 31 then he reports at paragraph 8: 32 33 We have commenced the work of improving the 34 internal communications of the country, as 35 referred to in the 17th paragraph of my 36 despatch No. 31 of the 26th of July last, a 37 party of 500 men being now engaged in opening a 38 road into Upper Fraser's River by the valley of 39 Harrison's River." 40 41 Your lordship will appreciate that that was a route 42 that was eventually opened to Lillooet. And then on 43 page 29 of his despatch of August the 27th, 1858 to -- 44 still to Lord Stanley, my lord: 45 46 Since I last addressed you on the 19th instant, 47 an alarming report reached this place of murder 19507 Reading of Despatches By Mr. Goldie 1 of 42 miners by the Indians of Fraser's River, 2 and I, in consequence, made a requisition on 3 Major Hawkins, Her Majesty's Commissioner for 4 determining the land boundary, for an officer 5 and ten men, and for an equal force 6 respectively." 7 8 My lord, I should point out that it will become 9 apparent a little later that there were a party of 10 engineers sent out from England specifically for the 11 purposes of the Colony. These people were surveying 12 the boundary and not -- are not part of that group. 13 Nevertheless these are the people to whom Douglas 14 turned. He says that: A large report has since been 15 contradicted in a despatch from Mr. Hicks: 16 17 "States that two men only were killed by the 18 Indians, instead of the larger number 19 previously reported. I am nevertheless 20 preparing for an excursion to Fraser's River, 21 with a small military force of 35 men, composed 22 of 15 Sappers and Miners furnished by Major 23 Hawkins, and Lieutenant Jones with 20 Marines, 24 kindly furnished by Captain Prevost of Her 25 Majesty's ship "Satellite"." 26 27 And then there was -- the enclosures, his letter to 28 the commanding officer of the Calypso and the response 29 to that. Then in his despatch of August the 30th, 30 1858 he encloses a copy of instruction issued to the 31 assistant gold commissioner employed at Fraser's River 32 and also a proclamation establishing harbour 33 regulations. There follows the instructions to the 34 assistant gold commissioners, which are laid out in 35 very considerable detail, and I'm not going to read 36 that. The enclosure number 2 in number 10 is, if I 37 may be permitted to say so, something of a puzzle, 38 this is on page 33. Your lordship will notice the 39 date. It's a proclamation by Mr. Douglas' governor of 40 Vancouver's Island and given under his hand and seal 41 at Victoria, the 28th of December in 1857. The 42 description of that as something for the regulation of 43 boats and other small craft employed on the coast of 44 Vancouver Island appears to be establishing harbour 45 regulations, appears to be difficult to fit into that 46 despatch. On the other hand, it is the proclamation 47 that he issued in the December 28th, 1857, when the 1950? Reading of Despatches By Mr. Goldie 1 first news of the Couteau gold strike came to him. 2 That's established in other places. And then his 3 despatch of September the 9th at the bottom of page 33 4 is one that I have referred to. It acknowledges 5 receipt of the Secretary of State's despatch of the 6 1st of July, and expresses his delight at being -- 7 having his actions approved. The number 12 at page 35 8 is acknowledging receipt of Lytton's despatch of the 9 1st of July, marked "Confidential". That was Lytton's 10 letter before he received the report of May the 19th. 11 And then on page 36 is his despatch of September 30th 12 in which he acknowledges receipt of Lytton's despatch 13 of July 16th in which Lytton told him, amongst other 14 things, that they were putting a measure through 15 Parliament for the Government of the mainland. He 16 acknowledges the comments about the Hudson's Bay 17 Company and he explains why he believed that there was 18 some ground for his concern over the rights of that 19 company. Then I should say, my lord, at this point, 20 that page 43, Mr. -- Lytton's despatch to Douglas of 21 July the 16th, it's the confidential despatch, and he 22 says in it: 23 24 My public Despatch of this date will have shown 25 you the high value which Her Majesty's 26 Government attached to your services, and at 27 the same time will guard you against some of 28 the errors into which you may be led by your 29 position as an Agent of the Hudson's Bay 30 Company, while at the same time an officer of 31 Her Majesty's Government. 32 I wish to inform you, confidentially, in 33 addition, that a Bill is in progress through 34 Parliament to get rid of certain legal 35 obstacles which interpose to prevent the Crown 36 from constituting a government suited to 37 exigencies of so peculiar a case, over the 38 territory now resorted to, according to a 39 report, by the multitudes whom the gold 40 diggings on Fraser's River have attracted. 41 It is proposed to appoint a Governor, with 42 a salary of at least 1,000 L. per annum, to be 43 paid for the present out of a parliamentary 44 vote. And it is the desire of Her Majesty's 45 Government to appoint you at once to that 46 office, on the usual terms of a Governor's 47 appointment; namely, for six years at least, 19509 Reading of Despatches By Mr. Goldie 1 your administration of that office continuing 2 to merit the approval of her Majesty's 3 Government; this Government to be held, for the 4 present, in conjunction with your separate 5 Commission as Governor of Vancouver's Island." 6 7 And then he goes on to say that the administration of 8 the government should be entrusted to an officer or 9 officers entirely unconnected with the Hudson's Bay 10 Company, and soliciting Douglas' acceptance of that. 11 Now, this reached Douglas, as I say, in October, and 12 he was therefore formally advised that he was being 13 offered the Governorship of the new Colony, but on the 14 condition that he severed his relationship in the 15 Hudson's Bay Company. My lord, that brings me to 16 Douglas of -- Douglas to Lytton of September 30th on 17 page 36. And he says: 18 19 "I have the honour to acknowledge the receipt of 20 your despatch No. 4 of the 16th of July." 21 22 That's page 42. And I have -- I have referred to 23 that. He says in paragraph 3: 24 25 "I observe with satisfaction that Her Majesty's 2 6 Government were engaged in conducting through 27 Parliament a measure for the establishment of 2 8 government in the Gold Country, and were 29 devising means for affording me the support of 30 a military force." 31 32 And then he goes on to say "I have gone through your 33 despatch and I am going to govern" himself in 34 accordance with the instructions. I refer in that 35 regard to paragraph 10: 36 37 "We shall forthwith discontinue the regulation 38 requiring the prepayment of mining licences and 39 head money on persons going to Fraser's River, 40 in consequence of your instructions to that 41 effect, and in all other respects we shall 42 conform strictly to the instructions contained 43 in your despatch." 44 45 Now, on page 37 is a despatch of October the 11th, and 46 I referred to that very briefly with particular regard 47 to the date, but I wish to read parts of it. 19510 Reading of Despatches By Mr. Goldie 1 Paragraph 1: 2 3 "I have the honour to acknowledge the receipt of 4 your despatch, No. 6 of the 31st of July last, 5 communicating the views which you entertained 6 upon various topics of importance bearing upon 7 the present situation of affairs and the 8 establishment of a regular Government in 9 British Columbia." 10 11 And as noted in the margin, that is despatch -- that 12 was despatch No. 6, which starts on page 44. He 13 points out the obvious in paragraph 3: 14 15 "In consequence of the unexpected force of the 16 immigration from the United States, and the 17 pressure of the masses, we were compelled in 18 the emergency by, a stern necessity, either to 19 take initiative, and to give a direction to the 20 masses, or to submit to their dictation as to 21 the measures which the government had to 22 pursue. 23 For that reason I had to act in many cases 24 without delay, and without distinct legal 25 authority, except that discretionary power 26 derived from my Commission as Governor of 27 Vancouver's Island, which I believe applies to 28 all cases affecting the public interests not 29 provided for in Her Majesty's Instructions. 30 In asserting the Dominion of the Crown over 31 the Gold Region and the rights of the Crown 32 over the precious metals, I felt that I was 33 acting clearly according to the constitutional 34 law and usage; but I did not feel equally 35 certain about the expediency or the power of 36 enforcing those rights, by levying the licence 37 duty on miners, in a remote and almost 38 inaccessible country." 39 40 I might pause there and say we will come, my lord, to 41 a proclamation sent out by England which he was to 42 make validating everything that he had done before he 43 was given the legal power to do that. And then down 44 to paragraph 8: 45 46 "The disposal of public lands and also of town 47 lots, as suggested in your Despatch, will, I 19511 Reading of Despatches By Mr. Goldie 1 think, prove to prolific source of revenue, 2 besides having the effect of opening the 3 country for permanent settlement. In my late 4 excursion to Fraser's River, of which I will 5 soon forward an account, the most urgent 6 appeals were made to me by intending settlers, 7 on the prospect of approaching winter, for the 8 purchase of town lots at Fort Yale and Fort 9 Hope; but having no legal authority to make 10 sales of land, or to grant sufficient titles, I 11 could evenly meet their wishes by giving leases 12 of the desired lots, at a montly rent of 41 13 shillings, to be continued with a pre-emption 14 right to the holder, until the land is finally 15 sold." 16 17 And then he reports that he sent Mr. Pemberton, the 18 Surveyor General, if I may interject, my lord -- it is 19 clear from later despatches that Mr. Pemberton was the 20 Surveyor General of the Colony of Vancouver's 21 Island -- to lay out three several townsites on 22 Fraser's River, namely at old Fort Langley, Fort Hope, 23 Fort Yale, there being a demand at each of those 24 places for town lots. Paragraph 10: 25 26 "The Surveyor has advertised a public sale at 27 this place of town lots 64 X 120 feet, in 28 extent at old Fort Langley, for the 20th of 29 this month, October, the upset price to be $100 30 for each lot of that size." 31 32 And paragraph 13: 33 34 "I will not fail to keep steadily in view the 35 fact, the Imperial Parliament will expect that 36 British Columbia will be self-supporting as 37 soon as possible, and that it is a desire of 38 the Mother Country that Representative 39 Institutions and self-government should prevail 40 in that Colony, as soon as the material for 41 those institutions are shown to exist." 42 43 Paragraph 14, he observes that it was the intention to 44 despatch a party of Royal Engineers, and 15, he 45 acknowledges the intention of Lytton to send out an 46 experienced inspector of police. And then in 47 paragraph 16: 19512 Reading of Despatches By Mr. Goldie 1 2 "I shall not fail to give the fullest scope to 3 your humane consideration for the improvement 4 of the native Indian Tribes, and shall take 5 care that all their civil and agrarian rights 6 be protected. I have in fact already taken 7 measures, as far as possible to prevent 8 collisions between those tribes and the whites, 9 and have impressed upon the miners the great 10 fact that the law will protect the Indian 11 equally with the white man, and regard him in 12 all respects as a fellow subject. That 13 principal being admitted will go far towards 14 the well-being of the Indian Tribes, and 15 securing the peace of the country." 16 17 That paragraph 16 of course has reference, my lord, to 18 the Lytton despatch, paragraph 3 at page 45, which 19 begins with the word: 20 21 "I have to enjoin upon you to consider the best 22 and most humane means of dealing with the 23 native Indians. The feelings of this country 24 would be strongly opposed to the adoption of 25 any arbitrary or oppressive measures towards 26 them. At this distance, and with the imperfect 27 means of knowledge which I possess, I am 28 reluctant to offer, as yet, any suggestion as 29 to the prevention of affrays between the 30 Indians and the immigrants. The question is of 31 so local a character that it must be solved by 32 your knowledge and experience, and I commit it 33 to you, in the full persuasion that you will 34 pay every regard to the interests of the 35 natives which an enlightened humanity can 36 suggest. Let me not omit to observe, that it 37 should be an envariable condition, in all 38 bargains or treaties with the natives for the 39 cession of lands possessed by them, that 40 subsistance should be supplied to them in some 41 other shape, and above all, that it is the 42 earnest desire of Her Majesty's Government that 43 your early attention should be given to the 44 best means of diffusing the blessings of the 45 Christian Religion of Civilization among the 46 Natives." 47 19513 Reading of Despatches By Mr. Goldie 1 My lord, I have already indicated to your lordship 2 that, so far as Douglas was concerned, he received 3 that on October the 11th, and on -- just a short 4 period thereafter, about ten days thereafter, he 5 received the despatch which is at page 45 -- I'm 6 sorry, at page 47, dated August the 14th, and I have 7 read the first paragraph and I have referred to 8 paragraph 5. 9 THE COURT: You say it was received ten days after October 11th? 10 MR. GOLDIE: Yes, yes. 11 THE COURT: Thank you. 12 MR. GOLDIE: I should point out to your lordship that the 13 despatch of July 31st, 1858, going back to pages 44 14 and 45, has been given considerable prominence. It is 15 part of Dr. Lane's collection, her Exhibit 1039-40. 16 And she has referred to it as a source of policy with 17 respect to Indian title. I'm going to refer your 18 lordship to the -- that's a transcript volume 229, 19 page 16755, and at line 9 my friend said: 20 21 Q Thank you. 22 Can I direct your attention now to 23 tab 40? 24 A Yes. 25 Q And in particular, the dispatch that's 26 under number six? 27 A Yes. 28 Q And it is entitled "A Copy of a Dispatch 29 from the Right Honourable Sir E.D. Lytton to 30 Governor Douglas on July 31st, 1858." 31 A Yes. 32 Q And can you give us the context, if you 33 will, of this dispatch?? 34 A Yes. This is on the eve of the legislation 35 which establishes, on August 2nd, 1858, the new 36 colony of British Columbia on the mainland." 37 38 And she was asked what parts are important -- at the 39 bottom of page 45 -- and her exhibit, my lord, is a -- 40 are these pages taken from this exhibit. At the 41 bottom of page 45, after the numeral 3, the second 42 line from the bottom is a section describing the 43 policy. And then she goes over to page 46 and she 44 refers to that as -- she was asked: 45 46 "Q In terms of your review of the documents, 47 after the establishment of the colony of 19514 Reading of Despatches By Mr. Goldie 1 British Columbia, did you refer to any other 2 documents which addressed the question of 3 government policy or Indian policy with regard 4 to Indian lands?" 5 6 It is in that context that I have directed your 7 lordship's attention to the despatch of August the 8 14th which approved the steps he had taken prior to 9 the receipt of the despatch of July 31st. I should 10 also add that this despatch was referred to by Mr. 11 Justice Hall in Calder, and that is the reference, in 12 case your lordship wishes to make a note of it, I have 13 placed under tab 4 -- an extract from Calder, being 14 the extract from the Supreme Court of Canada judgment, 15 page 311, which is the first page. 16 THE COURT: Tab 4? 17 MR. GOLDIE: Tab 4 of this little book of authorities that I 18 handed up. 19 THE COURT: Oh, I see, yeah. 20 MR. GOLDIE: At page 408 his lordship said — 21 MR. ADAMS: Well, excuse me, my lord, in my submission we're 22 well into argument. We're calling up the evidence of 23 other witnesses and comparing it to what my friend 24 says is the appropriate emphasis and the appropriate 25 counter-documents, and now we're into authorities that 26 speak of some of the same documents, and in submission 27 that's squarely within the ruling of this morning. 28 MR. GOLDIE: I don't intend to counter anything, my lord. I'm 29 endeavouring to supply your lordship with the emphasis 30 which has been given this particular despatch. 31 THE COURT: Well, I think you've done that. I've read Mr. 32 Justice Hall's -- 33 MR. GOLDIE: It's page 408 where he sites it. I do wish to say 34 this, and I think this is within the terms of your 35 lordship's ruling, because it is in my submission 36 something that is appropriate to your lordship's 37 knowledge in reading this despatch, that so far as I 38 can make out by examining the index of the case on 39 appeal in the Supreme Court of Canada, the present 40 collection of documents that your lordship is looking 41 at was not before that court. The source of the 42 paragraph from the despatch of July 31st is from a 43 collection made in British Columbia called "Papers 44 Relating to the Indian Land Question", and it contains 45 only that paragraph. And I will be coming to that, 46 that will be my next exhibit. The case -- the index 47 of the case on appeal is under tab 6, my lord, in 19515 Reading of Despatches By Mr. Goldie 1 Calder, and the exhibit which contains the extract in 2 question is Exhibit 11, which is also there. Now, if 3 I may go back to the sequence of the July 31st 4 despatch, the only other part of the despatch to which 5 I wish to make reference is paragraph 4, which 6 impresses upon Douglas: 7 8 "The necessity of seeking by all legitimate 9 means, to secure the confidence and good-will 10 of the immigrants, and exhibit no jealousy 11 whatever of Americans or other foreigners who 12 may enter the country. You will remember that 13 this colony is destined for free institutions 14 at the earliest moment." 15 16 And asking him to seek out from the immigrants people 17 of influence who might be of assistance. The -- I 18 will be coming to it shortly, but I emphasize at this 19 point, my lord, that the -- his commission, the Royal 20 Instructions, were yet to reach him. Now, going on 21 then to the passing quickly over the balance of this 22 part 1, it is starting -- starting at page 41 are the 23 despatches of Lytton, and I have referred to a number 24 of these already, so I need only go to the ones of 25 September the 2nd. And there I think there's 26 something like 12 or 13 despatches, all dated that 27 day. The day preceding -- and I'm at page 50 now, my 28 lord. The day preceding, namely September the 1st, 29 1858, is Lytton to Douglas a letter of introduction of 30 Captain Parsons, who has been directed to repair to 31 British Columbia accompanied by 20 non-commissioned 32 officers and men of the Royal Engineers: 33 34 "I need scarcely observe to you that the object 35 for which this officer and his party have been 36 detached to British Columbia is for the 37 exclusive service of that Colony." 38 39 And rendered him of service awaiting the arrival of 40 his commanding officer. Number 11, the first of those, 41 dated September the 2nd, 1858: 42 43 "I have the honour to transmit to you herewith 44 the Queen's Commission under the Great Seal, 45 constituting and appointing you to be the 46 Governor and Commander-in-Chief in and over the 47 Colony of British Columbia." 19516 Reading of Despatches By Mr. Goldie 1 2 Number 2, same date, transmits the Order in Council 3 making provision for the administration of justice. 4 Number 3 transmits the revocation of the Crown grant 5 to the Hudson's Bay Company insofar as the grant 6 embraces or extends to the territories comprised 7 within the Colony. Now, your lordship will recall 8 from previous evidence that Crown grant of the 9 mainland extended only to the exclusive trading 10 rights. Number 14 is correspondence with the 11 admirality, which goes on at some length, and another 12 despatch relating to the movements of naval vessels. 13 Number 16 of September 2nd, correspondence with the 14 War Office in respect of the -- of the Royal 15 Engineers, and I'll read the two top paragraphs on 16 page 53: 17 18 "Colonel Moody has been appointed to this 19 command, and also been selected for the office 20 of Chief Commissioner of Lands and Works in 21 British Columbia; and I transmit a copy of the 22 instructions which have been addressed to 23 Colonel Moody with reference to the discharge 24 charge of his duties in that capacity, and 25 specifying the amount of regimental pay and 26 Colonial allowances to which he and the 27 commissioned and non-commissioned officers and 28 Sappers of the detachment are entitled. 29 I may further observe, that a ship has been 30 chartered, and is in the course of preparation 31 for the conveyance of the larger portion of 32 this detachment by the Horn; but as the passage 33 will consume nearly four months, and it is 34 desirable that you should have the assistance 35 and support of a part of this body without 36 delay, both to represent the military force of 37 the country and to facilitate those serving in 38 engineering operations which it may be 39 expedient to commence forthwith, I have made 40 arrangements for the despatch of 20 men and an 41 officer by the steamer which leaves this 42 country for Panama on the 2nd of next months." 43 44 That was Parsons, my lord, that we read about a few 45 minutes ago. The -- the enclosure number 2 is Mr. 46 Merivale's letter to the Under Secretary for War, Mr. 47 Marivale being the -- one of the permanent officials 19517 Reading of Despatches By Mr. Goldie 1 in the colonies -- Under Secretary of State for the 2 Colonies, and that lays out the duties of the Royal 3 Engineers. And at page 54 he says in the first 4 complete paragraph: 5 6 "Sir E. Lytton desires me to state that it would 7 be very desirable if amongst this party there 8 were one or two persons possessing a knowledge 9 of mineralogy, and capable of reporting upon 10 the gold, and especially upon the subject of 11 the local resources which Sir Edward has been 12 informed exist in the Colony. I am to request 13 that the officer commanding the Engineers may 14 be instructed that as little display as 15 possible should be made of this military force; 16 that it is the desire of Her Majesty's 17 Government that the immigrants should learn 18 that their interests are identical with those 19 of the Government, which should be carried on 20 in harmony with and by means of the people of 21 the country; and that therefore they are not to 22 rely upon the military as a force for the 23 maintenance of peace and order amongst 24 themselves, or amongst the Native Indians." 25 26 And then on page 55 is enclosure number 5, and 27 despatch 16 is Mr. Marivale's letter of instructions 28 to Colonel Moody, and I refer to paragraph 1, the 29 first sentence that the Governor is the supreme 30 authority in the Colony. And then over the page, 31 number 5, page 56. Number 8 of September the 2nd, 32 1858, this is from Lytton to Douglas, that he says: 33 34 "In one of the Despatches, No. 6, which I 35 addressed to you last July, it was mentioned 36 that the detachment of Royal Engineers which 37 Her Majesty's Government considered available 38 to send to British Columbia would be maintained 39 at the Imperial cost for only a limited period, 40 and if that continued afterwards the Colony 41 would have to defray the expense thereof." 42 43 And then he goes on to say that more recent 44 intelligence has painted a more alluring picture of 45 the colony's prospects. And in the second to last 46 sentence: 47 1951? Reading of Despatches By Mr. Goldie 1 "It is therefore imperatively necessary for me 2 to repeat, what indeed has been very frequently 3 mentioned, that Her Majesty's Government expect 4 that British Columbia shall be self-supporting 5 and that the first charge upon the land sales 6 must be that of defraying all the expenses 7 which this Engineer party shall occasion." 8 9 And of course the words that I emphasize are "The 10 first charge upon the land sales". Then we have 11 despatch No. 9 of September 2nd, which transmits 12 correspondence with respect to postal arrangements, 13 and I needn't trouble your lordship about that, and 14 then No. 19 of September 2nd -- I shouldn't say 15 No.19 -- No. 12 of September 2nd he says: 16 17 "In my despatch of 31st July, No. 6, I directed 18 your attention to the treatment of the Native 19 Indians in the country which it has so recently 20 been decided to establish as a British Colony. 21 I regard that subject as one which demands your 22 prompt and careful consideration. I now 23 transmit to you the copy of a letter from the 24 Aborigines Protection Society, invoking the 25 protection of Her Majesty's Government on 26 behalf of these people. I readily repeat my 27 earnest injunctions to you to endeavour to 28 secure this object. At the same time I beg you 29 to observe that I must not be understood as 30 adopting the views of the Society as to the 31 means by which this may be best accomplished." 32 33 And then there follows, as the enclosure, a letter 34 that starts on page 59 and goes over to page 60, and 35 Mr. Chesson, the Secretary, states in the first 36 paragraph the -- that the Society has for many years 37 taken a deep interest in the welfare of Indian -- 38 THE COURT: Sorry, where are you reading from? 39 MR. GOLDIE: Page 59, my lord. This is the first paragraph of 40 Mr. Chesson's letter. 41 THE COURT: Sorry. 42 MR. GOLDIE: And he says that: 43 44 "The Aborigines Protection Society have for many 45 years taken a deep interest in the welfare of 46 the Indian Tribes to the west as well as the 47 east of the Rocky Mountians, I am instructed to 19519 Reading of Despatches By Mr. Goldie 1 address you" -- 2 3 That's to say the Secretary of State for the colonies: 4 5 "On certain matters affecting not only the 6 rights and interests but the very existence of 7 the numerous Indian population of the new 8 Colony of British Columbia. It appears, from 9 all the sources of information open to us, that 10 unless wise and vigorous measures be adopted by 11 the representatives of the British Government 12 in that Colony, the present danger of a 13 collision between the settlers and the natives 14 will soon ripen into a deadly war of races, 15 which could not fail to terminate, as similar 16 wars have done on the American Continent, in 17 the extermination of the red man." 18 19 And he refers to Governor Douglas' despatches as 20 indicating feelings of hostility on the parts of the 21 native people towards the Americans who are now 22 pouring into Fraser's and Thompson's Rivers. And then 23 he quotes from the New York times, if I may be 24 permitted to say, so lurid an account, and says that: 25 26 "This is something which Her Majesty's 27 Government must protect the Indians against." 28 29 I'm not going to read anything further, except the 30 second to last paragraph on that page, my lord, midway 31 down that paragraph -- third of the way down that 32 paragraph, the second complete sentence: 33 34 "It is certain that the Indians regard their 35 rights as natives as giving them a greater 36 title to enjoy the riches of the country than 37 can possibly be possessed either by the English 38 Government or by foreign adventurers. The 39 recognition of native rights has latterly been 40 a prominent feature in aboriginal policy of 41 both England and the United States. Whenever 42 this policy has been honestly acted upon, peace 43 and amity have characterized the relations of 44 the two races, but whenever a contrary policy 45 has been carried out, wars of extermination 46 have taken place; and great suffering and loss, 47 both of life and property, have been sustained 19520 Reading of Despatches By Mr. Goldie 1 both by the settler and by the Indian. We 2 would beg, therefore, most respectfully to 3 suggest that the Native title should be 4 recognized in British Columbia, and that some 5 reasonably adjustment of their claims should be 6 made by the British Government." 7 8 And over the page, and Mr. Chesson says that: 9 10 "A treaty should be promptly made between the 11 delegates of British authority and the chiefs, 12 as loyal, just, and specific as that between 13 William Penn and the Indians of Pennsylvania." 14 15 And then he goes on to suggest that people of Indian 16 blood from the Red -- whom could be found at the Red 17 River might be usefully used." 18 19 The 13th despatch of September 2nd is on page 60: 20 21 "I have to acquaint you that the Society for the 22 Propagation of the Gospel propose to send one 23 or two Missionary Chaplains to British 24 Columbia." 25 26 No. 14 of September 2nd: 27 28 "I transmit to you herewith, for your 29 information, the copy of a letter which I have 30 addressed to Colonel Moody on the subject of 31 granting land, on certain conditions, to the 32 non-commissioned officers and men of the Royal 33 Engineers." 34 35 Paragraph 2: 36 37 "I take this opportunity of instructing you to 38 report to me your opinion whether it would be 39 desirable for the interests of the Colony to 40 grant remissions on the purchase of land to 41 retired officers of the Army and navy, as was 42 formerly the custom in many of the British 43 Columbia Colonies." 44 45 Paragraph 4: 46 47 "You will report to me officially, by each 19521 Reading of Despatches By Mr. Goldie 1 successive mail, and by every safe opportunity 2 that presents itself, on all matters of 3 interest and importance to the Colony. At 4 present her Majesty's Government only receive 5 such accounts through the newspapers, or 6 through the courtesy of the Hudson's Bay 7 Company and private individuals." 8 9 And then we come to No. 16, the despatch of September 10 the 2nd on page 61, in which Lytton says in the first 11 paragraph: 12 13 "I wish to address you a few words on the legal 14 position which you now fill, and the nature of 15 your immediate duties. 16 Your first duty will be to proclaim the Act 17 of Parliament under which British Columbia was 18 to be governed. This Act has already been sent 19 you, and without any express directions as to 2 0 the manner and time of making it known. 21 Probably you have already made it public; but I 22 apprehend that no legal proclamation of it, so 23 as to give its provisions effect, could take 24 place until you were yourself commissioned as 25 Governor. The formal proclamation of it must 26 therefore be made as early as possible. 27 According to the opinion of lawyers in 28 general, the colonists of a territory 29 circumstanced by British Columbia carry with 30 them the law of England, so far as it is 31 applicable to their circumstances. Acts, 32 therefore, done in accordance with the law of 33 England, will be substantially legal, although 34 done before any regular authority was 35 constituted there." 36 37 Your lordship has already seen the Governor's comments 38 on the high proportion of foreigners who flocked in, 39 the numbers that receded. And Lytton goes on: 40 41 "But your own special authority to make 42 regulations, or enforce them, for the 43 preservation of peace and order, could only be 44 created by the act of the Crown, and cannot 45 commence until you receive their commission; 46 you will therefore have, doubtless, been 47 compelled by the necessity of the case to 19522 Reading of Despatches By Mr. Goldie 1 perform many acts, in accordance with the 2 spirit of your instructions from myself and my 3 predecessors in this Department, but for which 4 strict legal authority was wanting. It will be 5 necessary to cover these by a Proclamation, 6 having force of law, under the power with which 7 you are invested, to indemnify yourself and 8 those who have acted under your authority from 9 legal proceedings. 10 You are therefore authorized to issue 11 Proclamations, of the same date with your 12 assumption of the Government. 13 The one, which is rather matter of solemn 14 form than of absolute necessity, to declare the 15 law of England prevalent throughout the Colony, 16 subject, of course, to your own power of 17 modifying it by laws enacted by yourself when 18 absolute necessity requires." 19 20 That of course, when we come to it, is the 21 proclamation to which your lordship earlier referred. 22 23 "The other, to indemnify yourself and your 24 subordinate officers in manner aforesaid." 25 26 And he sends him the two proclamations. And then 27 there's the establishment of the Court of Justice. 28 And at page 62, he notes that the Queen has issued a 29 commission to Mr. Begbie, who will be setting out to 30 be Judge of British Columbia. The fourth paragraph: 31 32 "Mr. Begbie has been fully instructed, that, 33 although invested with the very important 34 office of Judge, he will nevertheless have the 35 kindness, for the present, at least, to lend 36 you his general aid for the compilation of the 37 necessary laws and other legal business. This 38 is the more proper duty of an Attorney-General; 39 and should the Colony advance, as seems at 40 present possible, the services of such an 41 officer will no doubt be urgently required." 42 43 And then in the following paragraph: 44 45 "With these few observations, I leave with 46 confidence in your hands the powers entrusted 47 to you by Her Majesty's Government. These 19523 Reading of Despatches By Mr. Goldie 1 powers are indeed of very serious and unusual 2 extent; but Her Majesty's government fully rely 3 on your moderation and discretion in the use of 4 them. You are aware that they have only been 5 granted in so unusual a form on account of the 6 very unusual circumstances which have called 7 into being the Colony committed to your charge, 8 and which may for some time continue to 9 characterize it." 10 11 And then he goes on to talk about their use. And the 12 last sentence of that paragraph: 13 14 "And you will above all remember that the 15 ordinary rights of and privileges of British 16 subjects, and of those foreigners who dwell 17 under British protection, must be sedulously 18 maintained, and that no innovation contrary to 19 the principles of our law can be justified, 20 except for purposes of absolute and temporary 21 necessity. 22 I will only add that although it has been 23 judged prudent not to make the revocation of 24 the Hudson's Bay Company's licence take effect 25 until proclaimed by yourself, it is the 26 particular instructions of Her Majesty's 27 Government that you proclaim it with the least 28 practicable delay." 29 30 MR. GOLDIE: And then the enclosures are the drafts of the 31 Proclamations, which, as we will see, are proclaimed 32 in Langley on November the 19th, number 1 being the 33 introduction of English law, the subject, as Lytton 34 said, to the laws that he himself created in the past. 35 Number 2 is the proclamation to indemnify the 36 government for acts done before the establishment of 37 any legitimate authority in British Columbia. 38 THE COURT: Take the afternoon adjournment. 39 MR. GOLDIE: Thank you, my lord. 40 THE REGISTRAR: Order in court. Court stands adjourned for a 41 short adjournment. 42 43 44 45 46 47 19524 Reading of Despatches By Mr. Goldie 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 (AFTERNOON RECESS TAKEN AT 3:00) I hereby certify the following to be a true and accurate transcript of the proceedings herein transcribed to the best of my skill and ability. Graham Parker. United Reporting Service Ltd. 19525 Reading of Despatches by Mr. Goldie 1 (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS) 2 3 THE COURT: Mr. Goldie? 4 MR. GOLDIE: My lord. 5 I was at page 63, my lord. And I had gone through 6 fairly quickly, the despatches of the 2nd of September 7 and there is only two or three more. The despatch of 8 September 2nd on page 63, correspondence between the 9 Department of the Foreign Office relating to mail 10 service. 11 Page 65, number 24 of September 2nd, 1858: 12 13 14 "From information which has just reached me from 15 the Lords Commissioners of the Admiralty and a 16 report sent by Captain Richards..." 17 18 19 I might interject, he was a commanding officer of 20 one of naval ships on the coast here. 21 22 23 "It would seem desireable to appoint, if you 24 have not already done so, a Gold Commissioner 25 armed with the powers of magistrate. I submit 26 this suggestion to your local experience and I 27 feel it must be unnecessary to add the self- 28 evident caution to form at once a police at the 29 diggings." 30 31 32 My lord, we have seen in Douglas's despatch at page 33 30, that he had already done those things. 34 Pages 27 and 30. 35 And then we go from September 2nd to September 36 16th, Lytton's despatch of that date which he 37 acknowledges receipt of Douglas's despatch of the 26th 38 of July. 39 THE COURT: You have read from that already, Mr. Goldie. 40 MR. GOLDIE: I have read from that and I am not going to read 41 from it again. I am just pointing out that the -- 42 this was the next despatch after the 14 or 15 or so of 43 September 2nd. 44 And then further despatches of an administrative 45 character, September 23rd, September 24th, in which 46 Colonel Moody is to hold a dormant position of 47 Lieutenant-Governor of the Colony, and an 19526 Reading of Despatches by Mr. Goldie 1 administrative one of October 11th. On October 14th, 2 on page 67, acknowledging the despatch of the -- 3 Douglas's despatch of the 30th of August enclosing 4 copies of the regulation issued for the management of 5 gold fields and harbour regulations. And I had 6 referred to that a minute ago. That is the despatch 7 at page 30 of this part one. 8 I am not going to read any part of that, it simply 9 is a suggestion on Lytton's part that experience 10 elsewhere in the colonies, namely Australia, might be 11 of assistance in framing gold field regulations. 12 The despatch of October 16th on page 69 is in 13 response to Douglas of the 19th of August, and I am 14 not going to deal with that. It was the despatch in 15 which Douglas said that he needed assistance and 16 Lytton states that he is sending out 150 of the Royal 17 Engineers and how superior they are to the infantry of 18 the line. And the organization of a police force 19 which should be done locally and the valuable services 20 rendered by the natives. 21 Number 31 -- I am sorry, my lord -- yes, number 31, 22 at page 71, Lytton's despatch to Douglas of October 23 16th, which I shall read in full: 24 25 26 "Though I think you must be in complete 27 possession of the my views in respect to the 28 Royal Engineers despatched to British Columbia, 29 I desire nevertheless and for fear of any 30 possible misunderstanding on your part, to 31 mention that Colonel Moody and his men do I 32 look for the performance of all the surveying 33 duties in the Colony, and therefore to caution 34 you against accepting the services of other 35 surveyors or assistants whose employment would 36 add so much to the heavy expenses of the colony 37 colony at its outset is called upon to defray." 38 39 40 If I may say so, my lord, we will find in future 41 despatches leading up to one of the proclamations of, 42 one of the ordinances which figured in the Calder 43 case, a difference of opinion between Douglas and the 44 secretary of state for the colonies, as to when land 45 can be sold. The position taken by the home 46 authorities was that the land had to be surveyed 47 before it was sold and Douglas said that won't do. 19527 Reading of Despatches by Mr. Goldie 1 And that, as I say, builds up to one of the ordinances 2 which I will be examining in greater detail. 3 Page 72, the despatch of October 19th acknowledging 4 or stating that a donation had been made by Miss 5 Burdett Coutts for the establishment of a See of the 6 Anglican Church of British Columbia. Page 73, 7 November the 1st, instructions forwarded to Moody and 8 enclosed in his letter to Douglas. 9 That concludes that grouping of despatches from and 10 to the Governor of British Columbia prior to his 11 appointment as such and subsequent thereto, which were 12 laid before parliament on 18th of February, 1859. 13 There are -- there is a map and four more pages. 14 The map illustrates the report of Mr. Anderson, late 15 chief trader of the Hudson's Bay Company into the gold 16 areas. And this was appended by Mr. Douglas to one of 17 his reports. 18 There is nothing of significance in that, except on 19 page 82, the second to last page, where Mr. Anderson 20 remarks upon the the nature of the Indians found up in 21 the Couteau region and states at the top of page 83: 22 23 24 "As before mentioned the upper and lower Indians 25 have a standing feud which is kept alive by 26 treacherous murder every now and then as 27 occasion presents." 28 29 30 And I -- your lordship will have seen from this 31 collection that the last despatch from Douglas in this 32 part one was dated October 11th, 1858; that the last 33 despatch received by him was July 31st, 1858 -- 34 THE COURT: Sorry Mr. Goldie, last despatch from — 35 MR. GOLDIE: Last despatch from Douglas was dated October 11th. 3 6 THE COURT: 1858? 37 MR. GOLDIE: 1858. And the last despatch received by him was 38 July 31st, 1858. And that he was -- he still at that 39 point, namely October 11th, 1858 was -- had still to 40 receive the commission, the royal instructions, the 41 proclamations, the form of the proclamations, all of 42 the materials which were sent to him under the 43 despatches of September 2nd. And these -- his 44 acknowledgement of the receipt and his actions on the 45 receipt, are all in the next part, which were laid 46 before parliament on August 12th, 1859. 47 Now, I do not intend to deal as fully in the 1952? Reading of Despatches by Mr. Goldie 1 remaining parts but I wanted to place before your 2 lordship the circumstances that were laid before 3 parliament of how Douglas coped with the emergency 4 that he was confronted with and how he acted and the 5 instructions that were sent him. And turning now to 6 part two, the first despatch is that of October 4th, 7 which, as is stated, was received in London on 8 December 10th, and acknowledges receipt of the 9 confidential despatches of the 16th and 21st, and sets 10 out Douglas's acceptance of the offer of a 11 governorship, and his acceptance of the requirement 12 that he sever his relationships with the Hudson's Bay 13 Company. 14 Page 2, Douglas despatch of October 12th, 1858 15 encloses a proclamation which he issued on September 16 6th, that is to say before he had any authority to do 17 such, prohibiting the gift or sale of intoxicating 18 drinks to the native Indians of Fraser's River and 19 also a proclamation issued at Fort Yale, "warning all 20 persons against occupying or disposing without proper 21 authority of Crown lands in Fraser's River, a 22 proceeding rendered necessary in consequence of an 23 attempt made by James Ray and other parties to take 24 possession of certain valuable Crown lands in British 25 Columbia" et cetera. And, the enclosure number one is 26 the proclamation forbiding the sale of spiritous 27 liquors to the native Indians; and number two is 28 notice of sale of lands at Langley; and number three 29 is the prohibition against the sale of any lands at or 30 near Langley and stating that the same would be -- any 31 persons fraudulently selling the same would be 32 prosecuted. 33 Number 3 on page 3 of October 12th, 1858, is an 34 acknowledgement of his despatch, of the despatch of 35 Lytton found at page 44, page one. And I needn't go 36 into that. 37 Number 4 on page 3 is a report of his trip into the 38 Interior, into the gold fields, and the portion I wish 39 to draw to your lordship's attention is at page four, 40 paragraph 8. 41 42 43 "Having just ascertained from your despatch of 44 the 1st of July last that it was the wish of 45 Her Majesty's Government to colonize the 46 country and develop its resources, I propose to 47 the inhabitants of the place..." 19529 Reading of Despatches by Mr. Goldie 1 That is to Fort Hope, 2 3 4 "...to lay out certain lands as a townsite and 5 grant a right of occupation of town lots under 6 a lease terminable at the pleasure of the Crown 7 to be held at a monthly rental of 41 shillings 8 eight pence Stirling, payable in advance, and 9 with the understanding that the holder would be 10 allowed a preemption right of purchase when the 11 land is sold in which case the sum of monthly 12 rental paid would be considered as part of the 13 purchase money." 14 15 16 And then over to page seven, his acknowledgement of 17 Lytton's despatch of the 14th of August, which was -- 18 three despatches dated that day, "transmitting to me 19 copy of an Act providing for the Government of British 20 Columbia" and mentioning that there had not been time 21 by that mail "to furnish me with the order-in-council 22 commission and instructions as governor, which are 23 necessary in order to complete my legal powers." 24 They say that's August 21st and received -- I am 25 sorry, his acknowledgement of the despatch of 14th of 26 August is dated October 21st. 27 And he goes on to say: 28 29 "You nevertheless are pleased to authorize me to 30 act during the brief interval before their 31 arrival as I hitherto have as the authorized 32 representative of Her Majesty's Government of 33 the Territory of British Columbia and to take 34 such steps as I may deem absolutely necessary 35 for the government of the territory and as are 36 not repugnant to the principles of British law 37 and as are in conformity with the directions 38 you have transmitted to me on several subjects 39 in your despatches 8 and 9 of the 14th of 40 August last." 41 42 43 See pages 48 and 49 for part one of those 44 despatches. 45 The date of this despatch is the source of my 46 statement to your lordship that ten days after he got 47 the despatch, which has been quoted in Calder, he 19530 Reading of Despatches by Mr. Goldie 1 received the despatch of August 14th, which he pays 2 particular note to in his acknowledgement. 3 Then the -- on page -- the page eight is his 4 acknowledgement of the last despatch of the 14th of 5 August, or the the particular despatch of the 14th of 6 August, which contains the reference to the Indian 7 peoples. And he states in paragraph 5: 8 9 "I shall not fail to give full effect to the 10 philanthropic views entertained by Her 11 Majesty's Government for the wellbeing of the 12 native Indian tribes. My late despatches will 13 inform you of the measures adopted for their 14 immediate protection and I will hereafter, when 15 time permits, endeavour to arrange some plan by 16 which their interests will be permanently 17 guarded and the race rescued from destruction." 18 19 20 21 The rest of his despatch is taken up with the 22 matters which were being undertaken with respect to 23 roads and to the interior, and things of a like 24 nature. 25 And then there is Captain Richards' despatch, which 26 is -- Captain Richards' letter which is a sub 27 enclosure on page 13. That's all relevant, my lord, 28 to the establishment of New Westminster, ultimately, 29 as the capital of British Columbia. 30 Then on page 17 is Douglas to Lytton of October 31 27th, 1858, which acknowledges the third despatch of 32 August 14th, and he states in paragraph one: 33 34 35 "I hasten to attend to your requisition for 36 information on the subject of the disposal of 37 land in British Columbia to companies and 38 private individuals." 39 40 41 And he says that Mr. Pemberton's report, which 42 describes in a general manner the existing 43 arrangements for the sale of land on Vancouver's 44 Island and the proposed arrangement for the sale of 45 land in British Columbia embodies his own views on the 46 subject, except on one or two points. 47 Paragraph 3: 19531 Reading of Despatches by Mr. Goldie 1 2 "Mr. Pemberton, for instance, suggests that the 3 system of receiving payment for Crown land by 4 four annual installments instead of immediate 5 payment, should be abandoned on account of the 6 trouble and difficulty of collecting the 7 installments, but reasons equally cogent may be 8 urged in support of the existing system, such 9 as the benefit and relief it gives to poor 10 settlers and I am therefore of the opinion that 11 the same system may be extended with advantage 12 to British Columbia in all sales of country 13 lands exceeding 50 acres but not on sales of 14 town lands, which are always paid for on 15 receiving the title deeds." 16 17 18 Then he goes on to say what he proposes to do in 19 the valley of the Fraser's River, paragraph 5, 20 reservation of mineral lands, and paragraph 8: 21 22 23 "I beg also to assure you that we shall attend 24 to the instructions contained in your said 25 despatch concerning the disposal of land 26 preventing persons from squatting on public 27 lands, keeping separate accounts of all revenue 28 derived from the sale of land and its 29 application at present of the purposes of 30 survey and communications." 31 32 I don't propose to refer to Pemberton's report. 33 The despatch of November 3rd on page 19 really 34 relates to the establishment of the seaport for 35 Vancouver's Island and the difficulty that it has 36 with -- that that poses with respect to the Fraser 37 River. 38 And then November 3rd, on page 20, he begins to 39 deal with the despatches of September 2nd. The first 40 one, number ten, acknowledges receipt of 41 correspondence between the Colonial Office and the 42 Admiralty. November 4th, he acknowledges the despatch 43 in which it is mentioned that the Royal Engineers 44 would be sent out to take -- undertake certain tasks, 45 and that their costs would be a charge on the Colony. 46 But he winds up by saying on page 21: 47 19532 Reading of Despatches by Mr. Goldie 1 2 "I shall not fail to attend most carefully to 3 those instructions without, however, 4 entertaining the hope of being immediately able 5 to meet the expense of the military 6 establishments of the country or of roads, 7 surveys, public buildings and other 8 indispensible outlay which must be incurred 9 before the country can possibly become a 10 fruitful source of revenue; like a nursling it 11 must for a time be fed and clothed, yet I trust 12 it will, before many years, reimburse the 13 outlay and repay the kind care of Mother 14 Country with interest." 15 16 17 Then on November 4th he acknowledges another one 18 relating to the Royal Engineers, and in paragraph 3 he 19 states that Moody's appointment to the office of Chief 20 Commissioner of Lands and Works will relieve him of 21 much responsibility and states again that the revenues 22 couldn't possibly meet the expenditures involved in 23 the -- involved in the cost of maintaining the Royal 24 Engineers. 25 The despatch on page 22 is another one dealing with 26 Lytton of the 2nd of September and relates to the 27 question of postal service. 28 On page 23, my lord, is his despatch of November 29 5th, which acknowledges receipt of Lytton's despatch 30 of the 2nd of September enclosing a copy of a letter 31 from the Aborigines' Protection Society. And that was 32 the letter in which the society urged the Secretary of 33 State of the colonies to acknowledge the title of the 34 Indian peoples to the soil of British Columbia, and 35 Mr. Douglas in acknowledging the despatch says in 36 paragraph two: 37 38 "While you do not wish to be understood as 39 adopting the views of the society as to the 40 means by which that may be best accomplished, 41 you express a wish that the subject should have 42 my prompt and careful consideration and I shall 43 not fail to give the fullest effect to your 44 instructions on that head. As soon as the 45 present pressure of business has somewhat 4 6 abated, I may however remark that the native 47 Indian tribes are protected in all their 19533 Reading of Despatches by Mr. Goldie 1 interests to the utmost extent of our present 2 means." 3 4 5 November 6th, two despatches dealing with those of 6 the 2nd of September. And then on page 24, number 17, 7 there is acknowledgement of the revocation of the 8 Hudson's Bay grant, and number 18 is a further 9 acknowledgement of Despatch 14 of the 2nd of September 10 and is almost purely administrative. He suggests 11 certain appointments with respect to the officers of 12 the Colony that would be required. 13 And in paragraph 8 he says: 14 15 16 "The want of efficient assistants, the 17 multiplicity of the duties devolving on me and 18 the journeys that I have been compelled to make 19 in the gold regions for the enforcement of law 20 and order must be my excuse for not addressing 21 you more frequently in the affairs of the 22 Colony, though the reports of my two journeys 23 to Fraser's River embody almost the whole 24 amount of reliable information that can yet be 25 given with respect to the value and extent of 26 the gold fields." 27 28 29 Number 19 on page 25 acknowledges the despatch with 30 respect to Parsons, and number 20 acknowledges the 31 despatch of the 2nd of September, which explains to 32 Douglas the nature of his legal position, or the lack 33 thereof, and encloses forms of proclamations. 34 On page 26, paragraph two: 35 36 37 "The instructions contained in your despatch in 38 reference to the discharge of those duties will 39 receive early attention and with that view I 40 propose to proceed in a few days hence to 41 British Columbia and make formal proclamation 42 of the Act of parliament under which the Colony 43 is to be governed." 44 45 Paragraph 3: 46 47 "I shall also not fail to attend to your further 19534 Reading of Despatches by Mr. Goldie 1 instructions respecting the establishment of 2 courts of justice, defining miners' rights by 3 positive regulations instead of allowing them 4 to grow up by mere custom or accident, and the 5 establishment of a police force which, as you 6 will observe by my previous communications, 7 have been to some extent already executed but 8 will be more perfectly carried into effect upon 9 the arrival of Mr. Begbie." 10 11 12 And his -- paragraph 5, his comments on his use of 13 "the extensive powers which Her Majesty's Government 14 has entrusted to me." 15 Then in paragraph -- in page 26, despatch 22, of 16 November 9th, he deals with the despatch enclosing 17 Captain Richards' report in which Lytton suggested the 18 appointment of Gold Commissioners, and Mr. Douglas 19 states, and I quote: 20 21 22 "It was highly satisfactory to learn that in 23 respect of those measures I had only 24 anticipated your wishes and I may add that with 25 respect to the Hudson's Bay Company they no 26 longer possess rights nor enjoy any privileges 27 that is not equally shared by all Her Majesty's 28 subjects in these colonies." 29 30 31 The longer despatch, which is found starting at 32 page 27 and is dated January 15th -- sorry, dated 33 November 9th, refers particularly to events which are 34 taking place upcountry. And the numbers of people and 35 the numbers of mining claims. He notes in paragraph 36 20 on page 28: 37 38 39 "Some trouble had arisen between the miners and 40 Indians, which was, however, fortunately 41 arrested, after a loss of several lives on both 42 sides." 43 44 45 And then he appends a map of the route of the road 46 that is being constructed through from the head of 47 Harrison Lake up towards Lilloet. And he encloses a 19535 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 Reading of Despatches by Mr. Goldie MR. ADAMS THE COURT MR. ADAMS THE COURT MR. GOLDIE route taken by Mr. Joseph McKay, who took five men through the country between Lillooet Lake and Howe Sound. Mr. McKay states in his report, starting on page 30: "I beg to submit to your excellency the following report of my journey to a part of the Fraser's River District carried out according to Your Excellency's instructions. At 10:10 a.m., September 1st, I left Fort Langley accompanied Mr. Downie and four Canadians and the three native guides furnished by Your Excellency on board the steamer MARIA." My lord, we will come to Mr. Downie again, what's employed by Mr. Douglas to explore various parts of British Columbia and he was one of the first people to travel through the land claims area, doing so on Mr. Douglas's instructions. One of the first non-native people I take it, my lord. I am sorry? One of the first non-native people. All right. I am not sure that I have heard of any non-native people who travelled the route Mr. Downie travelled, from Victoria through the land claims area through Fort St. James and back to Victoria. Mr. McKay, as indicated, went up the Harrison and over the mountains behind -- west of Harrison, the head of Harrison, and down to the head of Howe Sound, where he reports his observations of some Indians that he ran into. Then we can go to page 34, of Mr. Douglas's report or despatch of November 27th, 1858, reporting on the events which took place on November 9th at Fort Langley, paragraph 5 -- 4, paragraph 4: "The ceremony was performed at at Fort Langley with becoming solemnity, 19th instant, in the presence of these gentlemen, Her Majesty's troops and the inhabitants of the place; the officers holding appointments from Her Majesty were installed in the usual manner, and with the accustomed forms. 19536 Reading of Despatches by Mr. Goldie 1 Proclamations were then made, - 1st. Of the 2 revocation by Her Majesty of all the exclusive 3 privileges of the Hudson's Bay Company. 2nd. 4 Indemnifying the Officers of Government from 5 all irregularities previous to the proclamation 6 of the act. 3rd. Proclaiming English Law to be 7 the Laws of the Colony. 8 Copies of these proclamations are herewith 9 transmitted for the information of Her 10 Majesty's Government." 11 12 13 These are the first proclamations, as far as my 14 understanding goes, of Douglas in the exercise of his 15 legislative powers granted him under the Act and under 16 the -- his commission, and which were transmitted to 17 him as we have seen. 18 The form is followed in a number of instances, in 19 the way of a preamble, and I will refer to the 20 proclamation on page 35, the number three, enclosure 21 number three: 22 23 "Proclamation having the force of law to declare 24 that English law is in force in British 25 Columbia, whereas by an act of Parliament 26 passed in session held on the 21st and 22nd 27 years of Her Majesty Queen Victoria, it was 28 enacted that the territories therein described 29 should be comprised within the Colony and 30 thereby created British Columbia; and it was 31 further enacted that on the proclamation of the 32 said Act in British Columbia, certain Acts 33 which were passed in the 43rd year of His Late 34 Majesty King George III and in the 2nd year of 35 His Late Majesty King George IV, by which the 36 law of Upper Canada was extended to certain 37 parts of America therein mentioned, shall cease 38 to have force in the said Colony of British 39 Columbia or to be applicable thereto; and 40 whereas such proclamation of the first 41 mentioned Act has been duly made on this 19th 42 day of November, instant, and whereas by a 43 commission under the Great Seal of the United 44 Kingdom of Great Britain and Ireland, Her 45 Majesty is pleased to appoint James Douglas to 46 be Governor of British Columbia, and to 47 authorize the said James Douglas by 19537 Reading of Despatches by Mr. Goldie 1 proclamation issued under the public seal of 2 the said Colony to make laws, institutions and 3 Ordinances for the peace, order and good 4 government thereof. It is, therefore, hereby 5 enacted and proclaimed..." 6 7 8 And so on. Now that last recital is the one that 9 is adopted in almost all of the subsequent 10 proclamations. 11 Going over to page 36, Douglas to Lytton of 12 November 27th, refers to the difficulties in 13 maintaining or preventing unlawful occupation of the 14 public domain, paragraph 10. 15 On page 37, the next despatch of November 29th 16 reports on the first operation disposing of public 17 lands in British Columbia. He refers to the 18 arrangements and says that the matter would be resumed 19 or the sale would be resumed on the 1st of December. 20 And then paragraph 8, he says: 21 22 23 "I am now preparing a measure which proposes to 24 secure to aliens the full rights of possession 25 and enjoyment of any lands which they may 26 purchase from the Crown for the space of three 27 years and they will be required to become 28 British subjects or convey their rights to 29 other parties who enjoy that privilege by birth 30 or naturalization, that measure being in 31 conformity with the spirit of your 32 instructions." 33 34 35 And then the enclosure on page 38, signed by 36 Pemberton, is simply a report on the results of the 37 sale. The second enclosure is the memorandum with 38 respect to the sale of lands to aliens. 39 The next despatch of November 30th, two despatches 40 of November 30th, and they are administrative matters. 41 Then on page 41, a despatch of December 4th -- this 42 is a proclamation reconveyance of Crown lands -- I am 43 sorry, I should say that the despatch encloses the 44 copies of two proclamations issued on the 2nd and 3rd 45 days of December, the first of which is set out at the 46 top of page 32. 4 7 THE COURT: 32? 1953? Reading of Despatches by Mr. Goldie 1 MR. GOLDIE: 42, I am sorry, my lord, thank you. 2 3 4 "Proclamation having the force of law, to enable 5 the Governor of British Columbia to convey 6 Crown land sold within the colony." 7 8 9 That is one of the proclamations that formed the 10 set that were considered in the Calder case and I will 11 deal with that at greater length in the compilation of 12 Calder proclamations and the correspondence or the 13 legislative history, relating to each of those 14 proclamations. 15 The sub enclosure is Mr. Begbie's or Judge Begbie's 16 memorandum in which he says, and I quote: 17 18 19 "It appears to me that the title of the Crown 20 can only be conveyed by letters patent under 21 the great seal or under authority of an Act of 22 Parliament. I should therefore recommend a 23 proclamation under the force of the law to be 24 immediately issued empowering some person or 25 persons to convey the legal estate in Crown 26 lands which have already contracted to be 27 sold." 28 29 30 And the person nominated for that by the governor 31 is himself. 32 The next one I wish to refer to is page 44 in which 33 Douglas sets out some claims on the part of the 34 Hudson's Bay Company, by their agents. It is dated 35 December 7th, 1858, and he encloses a copy of a letter 36 addressed to him by the agents of the Hudson's Bay 37 Company, and I quote: 38 39 "Setting forth the claims of the company to 40 certain tracts of land connected to their 41 several trading establishments in British 42 Columbia which they have occupied for many 43 years and improved by settlement and otherwise 44 at much expense. Her Majesty's Government may 45 probably consider that the Hudson's Bay Company 46 acquired rights to the soil through promissory 47 occupation and improvement as well as by the 19539 Reading of Despatches by Mr. Goldie 1 public services which the company had rendered 2 to the country and may therefore may meet their 3 claims in a spirit of judicious liberality 4 especially as the settlement of the company's 5 possessory rights in Oregon, resting on the 6 construction of the third article of the Treaty 7 of the 17th of July, 1846 with the United 8 States of America, will probably be influenced 9 by the decision of Her Majesty's Government in 10 allowing or disallowing possessory rights of 11 the company in British Columbia." 12 13 14 Then there is a report of December 14th at page 45. 15 A further report of December 24th, paragraph 10: 16 17 "Many of the white miners had nevertheless left 18 the country in despair of being able to get 19 through the winter without suffering much 20 privation and those who remain behind were 21 peaceable and well conducted. Their conduct 22 towards the Indian population and of the latter 23 to the whites had been good and no serious 24 difficulty had occurred since the month of 25 October." 26 27 And he reports on another matter relating to the 28 breach of the law. 29 Paragraph 15, he reports that Mr. Hicks, the 30 assistant commissioner having failed in carrying out 31 his instructions for collecting the mining licence fee 32 and being deficient in nerve for the position he 33 holds, is removed. 34 Over the page on page 48 of the despatch of the 35 27th of December, he reports on his communications 36 with Mr. Brew, Mr. Brew was the gentleman sent out 37 from England as the Inspector of Police. 38 And in the fourth to last paragraph on that page he 39 says: 40 41 "There is every of reason to believe that a well 42 constituted constabulary force with a 43 sufficient staff of stpendiary magistrates 44 supported by the co-operation of the well 45 disposed inhabitants, the military force 46 intended for the country and the naval force on 47 the seacoast will furnish in all ordinary 19540 Reading of Despatches by Mr. Goldie 1 courses the requisite protection of life and 2 property. Should there be reason to alter that 3 opinion either in consequence of the deportment 4 of the white population or collision with the 5 Indians, I will not fail to ask for additional 6 reinforcements but for the present provided we 7 have the means above described I think such 8 unnecessary." 9 10 11 Then over the page, over to page 51, this is in 12 response to Lytton of October the 14th, it is dated 13 December 30th, 1858. Lytton's despatch was the one in 14 which he commented upon the regulations that had been 15 framed for the management of the gold fields. And 16 Douglas sets out, again, the background that he was, 17 by way of background, the circumstances under which he 18 was working. In paragraph 3: 19 20 "It was to establish a legal control over the 21 adventurers who are rushing from all sides into 22 the country to anticipate their own attempts at 23 legislation and to accustom them to the 24 restraints of lawful authority that I prepared 25 and issued the gold regulations." 26 27 28 Page 52 encloses general order of the Supreme Court 29 issued by Mr. Justice Begbie -- which I won't comment 30 on -- together with a number of letters dealing with 31 the problem of insufficient counsel in British 32 Columbia. I take it that's a problem that has been 33 overcome. 34 At page 55, reports on a -- some difficulty with 35 miners, this is his despatch of January 8th, 1859. A 36 stipendiary magistrate met with serious opposition in 37 the discharge of his official duties, a party of 38 gamblers and refugees from justice had collected at 39 Hill's Bar and Fort Yale. And he comments on the lack 40 of support from the local people there. 41 The next two despatches are primarily related to 42 the advice he has received from people upcountry. 43 And in his despatch of January 22nd, on page 58, he 44 states that he has received advice from Lieutenant- 45 Governor Moody, dated Fort Yale, 17th of January, the 46 difficulties there had been for the present quelled. 47 The despatches -- 19541 Reading of Despatches by Mr. Goldie 1 THE COURT: Will it be convenient to adjourn, Mr. Goldie? Are 2 you near the end of a sequence or something? 3 MR. GOLDIE: I am nearer to the end than I was this morning, my 4 lord, and it's convenient to stop now. 5 THE COURT: All right. We will be continuing this for part of 6 tomorrow? 7 MR. GOLDIE: Well, my understanding, my lord, is that tomorrow 8 morning is given over to matters which my colleague, 9 Mr. Willms, will be dealing with, and I understood 10 that Mr. Adams had something to say in that regard. 11 MR. ADAMS: My lord, I can speak for the court's benefit and for 12 my friends, just to suggest what the plaintiffs think 13 we are going to be doing starting tomorrow morning. 14 And this has been the subject of some correspondence 15 and I have told at least my provincial friends that I 16 will rush back and correspond on it further. But for 17 the moment, it's my understanding that the defendant 18 Province will be tendering again the alienation maps 19 and materials and we will be prepared to deal with 20 that tomorrow morning. Equally, we will be prepared, 21 I am instructed, to deal with an outstanding 22 amendments to the statement of claim. 23 The question of the exhibits for identification 24 that relate to Mr. Morrell has been deferred at the 25 request of the federal defendant and the plaintiffs 26 have no difficulty with that. I understand Mr. 27 Macaulay isn't available tomorrow to speak to that. 28 We have been advised that the Provincial defendant 29 proposes to put in transcripts, cross-examinations on 30 territorial affidavits, and we will be prepared to 31 deal with that tomorrow. Marvin George's maps on 32 administrative boundaries, we will be prepared to deal 33 with that tomorrow. There is an item that's really a 34 mixture of things that has to do with documents 35 related to the Special Joint Committee in 1927, and 36 the same item I think in one of Ms. Sigurdson's 37 letters refers to preemption documents. The 38 plaintiffs cannot be in a position to deal with that 39 tomorrow. We have researchers who have not completed 40 collecting documents on that, it won't be a matter for 41 witnesses or evidence, it will be a matter of seeking 42 to put in documents and we will speak to my friends 43 about that. 44 The Provincial defendant has proposed to begin 45 reading in portions of interrogatories and 46 discoveries. We can be prepared to deal with those. 47 We have been advised that the discoveries that are 19542 Reading of Despatches by Mr. Goldie 1 sought to be covered are parts of Sylvester Green and 2 Sylvester Williams. We can be prepared to deal with 3 those two. We don't have any advice about which 4 interrogatories and with appropriate notice this 5 evening we can be prepared to deal with those. 6 It's proposed to tender Mr. Fletcher's affidavit 7 which was cross-examined on in Smithers. The exhibits 8 from that cross-examination I am advised are with Mr. 9 Grant in Hazelton and will be coming down next week, 10 and it would be our proposal that that be spoken to 11 all at once at a convenient time next week. 12 And, finally on my list, the provincial defendant 13 raised the question of Mr. Marvin George's planametric 14 map, and I am instructed that that is missing at the 15 moment and as soon as it's available we will be in a 16 position to speak to it. 17 And then, finally, I was to solicit if we could 18 complete all that, what it was that the Province 19 proposed to do, and I understand now that they propose 20 to carry on with what we have been doing today. 21 That's my list. 22 THE COURT: All right. 23 MR. GOLDIE: My lord, I should point out that, for the 24 assistance of my friends, that two items which he 25 classified as one are really separate. One is the 26 other documents to accompany the report of the Special 27 Joint Committee. My understanding is that that is an 28 item that the plaintiffs kept open. The other item, 29 preemption documents, relates to the documents put in 30 by the defendant, and the plaintiff I believe takes 31 the position that the Province should file other 32 documents with those. But they are two quite separate 33 things. 34 THE COURT: All right. Well, sounds like a full day's work 35 tomorrow then? 36 MR. GOLDIE: Well, any chinks that are left will be filled in, 37 my lord. 38 THE COURT: All right. You have got quite a bit to go here. 39 MR. GOLDIE: I am going to be going faster with this, but 40 nevertheless I have got quite a bit more to go and I 41 have got something following in case we are finished 42 earlier. 43 THE COURT: All right. 10 o'clock. 44 (PROCEEDINGS ADJOURNED UNTIL 10 O'CLOCK A. M., friday, 45 SEPTEMBER 15, 1989) 46 47 19543 Reading of Despatches by Mr. Goldie 1 2 3 I hereby certify the foregoing to be 4 a true and accurate transcript of the 5 proceedings herein to the best of my 6 skill and ability. 7 8 9 10 11 12 Wilf Roy 13 Official Reporter 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
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
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[Proceedings of the Supreme Court of British Columbia 1989-09-14]
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