CONTENTdm
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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27232 Submissions by Mr. Mackenzie 1 VANCOUVER, B.C. 2 May 24, 1990 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia, this 24th day of May, 1990. Delgamuukw 6 versus Her Majesty The Queen, at bar, my lord. 7 THE COURT: I just want to mention a couple of scheduling 8 matters. I don't think that I can start on Saturday 9 until 9:30. I hoped maybe 9:00, but I have another 10 problem laid on me that I have to deal with, and it 11 will have to be in the morning, so we won't get 12 started until 9:30 on Saturday morning, and we'll make 13 it into a regular morning hours from 9:30 to 12:30. 14 Secondly, if counsel have any plans for next week, I 15 have to say that I am not going to be able to sit on 16 Tuesday evening or Thursday evening, so we can work 17 around that, if you're of the mind. 18 MR. WILLMS: My lord, just on scheduling today, we mentioned 19 last week and earlier this week evening sitting 20 tonight, and what we propose is that we have an 21 evening sitting from 7:00 to 9:00 tonight, but that we 22 only sit until 5:00. 23 THE COURT: All right. 24 MR. WILLMS: Instead of 5:30 to give a bit more of a break 25 before the evening sitting. If that's convenient to your friends. We understood that. All right. Mr. Mackenzie. 29 MR. MACKENZIE: Thank you, my lord. 30 THE COURT: I still have this map of Mr. Sterritt's out here. 31 MR. MACKENZIE: Thank you, my lord, we'll be carrying on with 32 that. I have a couple of preliminary matters arising 33 out of yesterday, my lord, and the first deals with 34 Section 5(d) page 26. 35 THE COURT: 5(d) on page 26. 36 MR. MACKENZIE: Yes, page 26, my lord. 37 THE COURT: Oh, all right, thank you. 38 MR. MACKENZIE: That's paragraph 54. And in the last sentence 39 of that paragraph Mr. Grant suggested that an 40 amendment be made changing the word "certain" to 41 "one". 42 THE COURT: Yes. 43 MR. MACKENZIE: My lord, that original wording should remain as 44 "certain of the informants" because there was more 45 than one informant who had not advised Mr. Benson of 46 the information of the affidavit, and that is referred 47 to in Section 5 (g), page 6, paragraph 17. So that's 2 6 THE COURT 2 7 MR. GRANT 2 8 THE COURT 27233 Submissions by Mr. Mackenzie 1 further on in the summary, a discussion is made with 2 the other and transcript references are given. 3 THE COURT: Yes. 4 MR. MACKENZIE: Now, your lordship also asked about the area of 5 land that was in question in Milirrpum, and in the 6 Milirrpum case Mr. Justice Blackburn commented that 7 the area in question has an area of something of the 8 order of 200 square miles and is commonly called the 9 Gove Peninsula, that's at page 146 of the Milirrpum 10 case. That may be found at tab M-2 of the Province 11 authority binder. 12 THE COURT: Is the area in question, the 200 square miles, the 13 area covered by the leases that were impuned in that 14 case? 15 MR. MACKENZIE: My lord, I'm not certain as to whether the 16 leases cover every acre or every square mile, but that 17 is the area in which the leases are located. 18 THE COURT: Does the report show any contest on the 19 identification of the area that is discussed in the 2 0 judgment? 21 MR. MACKENZIE: I'm not clear on the — 22 THE COURT: Was there a contest about the dimensions or the 23 boundaries of the disputed area? 24 MR. MACKENZIE: My lord, my understanding of the decision was 25 that there was no dispute about the fact that the 26 peninsula was involved. 2 7 THE COURT: Yes. 28 MR. MACKENZIE: And I understand that the Solicitor-General in 29 that case challenged some of the evidence as to clan 30 identification with certain parts of the territory. 31 THE COURT: All right. So there was some boundaries disputed in 32 the case then. 33 MR. MACKENZIE: Yes, my lord. 34 THE COURT: All right. 35 MR. MACKENZIE: But the point I made yesterday, and it follows 36 from the Milirrpum case, and in that case the 37 boundaries discussed were very vague and were not 38 precise in detailed nature, which are at issue in this 39 case. 40 THE COURT: While you're tidying things up, I took the liberty 41 of digging out my judgment in the "Itchy Trousers" 42 case dealing with the survey question or the census, I 43 guess, but it's only an insignificant little 44 commercial case, but counsel may be amused by its 45 presumption. It mentions some of the authorities that 46 deal with this sort of thing. I don't think you'll 47 find the rest of the judgment particularly 27234 Submissions by Mr. Mackenzie 1 enlightening or useful in the context of this case. 2 MR. MACKENZIE: Thank you, my lord. In answer to your 3 lordship's last comment on the Milirrpum case, I think 4 it would be fair to say that in Mr. Justice 5 Blackburn's judgment there was no major issue 6 discussed with respect to boundaries. 7 THE COURT: All right. 8 MR. MACKENZIE: And I just also remind your lordship that I 9 handed up the Berkeley Peerage case to your lordship, 10 and that is marked as tab B-2A, and that should be 11 inserted in the Province's grey binder of authorities 12 in volume 2 at your lordship's convenience. It may be 13 the tab in front of your lordship. 14 THE REGISTRAR: Did you say volume 2? 15 MR. MACKENZIE: Volume 2 of the grey binders, the Province's 16 case authorities. So the authorities should be put in 17 volume 1 following the other tabs in order there, 18 that's the Berkeley Peerage case. 19 Now, my lord, if I could return to the subject we 20 were discussing yesterday at the break, your lordship 21 will recall that we were discussing the section on 22 traplines and territorial boundaries, and I had handed 23 up an outline of argument to your lordship which your 24 lordship, as I understand, placed at the beginning of 25 that section (e) . 2 6 THE COURT: But you had proceeded beyond that. 27 MR. MACKENZIE: Yes, my lord. As I indicated to your lordship, 28 I was following the various points in that outline of 29 argument, and I had dealt with points 1 to 5 and was 30 in the midst of dealing with point 6. 31 THE COURT: Yes. 32 MR. MACKENZIE: And at that point at the outline of argument 33 point 6 was: In order to prepare a map of territories 34 Neil Sterritt Jr. relied on maps of registered 35 traplines. And in relation to that point, we were in 36 the detailed submissions at page 5 paragraph 16. We 37 were examining Exhibit 22. And the points that I had 38 made on Exhibit 22, as appeared from the paragraphs 39 just before this point, were that Mr. Sterritt had 40 noted several trapline boundaries on Exhibit 22 and 41 that they were equated with territorial boundaries. 42 We had directed our attention to the northwest part of 43 the area around Bowser Lake, and now just to complete 44 the reference to this map, my lord, and carrying on on 45 paragraph 17 of my submissions I note that, my lord, 46 in the upper right-hand corner of Exhibit 22 there are 47 several more notations, up in the Thutade Lake area, 27235 Submissions by Mr. Mackenzie 1 although that lake is not marked on Exhibit 22, more 2 notations, as your lordship can see, the top one is 3 "Boundary per Billy Moat" trapline, and that dotted 4 line which Mr. Sterritt drew continues apparently 5 following the boundaries of the traplines in the 6 northeastern portion of Exhibit 22. Does your 7 lordship have that reference? 8 THE COURT: Yes. 9 MR. MACKENZIE: It's my submission, my lord, that the boundary 10 of the claim area on map 9A and map 9B follows that 11 line that Mr. Sterritt drew on Exhibit 22, and this 12 was the basis of that line following the boundaries of 13 the trapline, registered traplines in that area. And 14 paragraph 18 I note Mr. Sterritt's evidence that he 15 transferred the information as closely as he could 16 from the trapline file in an effort to determine the 17 location of Billy Moat's territory. In the middle of 18 paragraph 18, my lord. 19 THE COURT: Yes. 20 MR. MACKENZIE: And Mr. Sterritt performed a similar exercise 21 down the east side of Exhibit 22. He transferred the 22 boundary from trapline maps kept in the Department of 23 Indian Affairs. And I referred your lordship 24 generally to other such notations on Exhibit 22. 25 And paragraph 20 I make the point that I've just 26 made, that that boundary in the northeastern section 27 follows the boundaries on map 9A, as will be seen from 28 an examination of registered trapline -- registered 29 trapline boundaries and the 9A, which I'm going to 30 direct your lordship to. On Exhibit 22, Mr. 31 Sterritt's trapline boundaries carry on down towards 32 the -- along the eastern boundary, northeastern 33 boundary, and in my submission they exclude areas 34 covered by Carrier-Sekani trapline -- registered 35 traplines, and that becomes a significant point in my 36 submission when the overlaps come to be considered. 37 THE COURT: Well, in paragraph 20 you say: 38 39 "The trapline boundaries in the Thutade and Bear 40 Lake areas on Exhibit 22 exclude much of the 41 area presently included in the claim area." 42 43 Do you mean by that that the claim area is much -- is 44 greater than the area outlined on Exhibit 22? 45 MR. MACKENZIE: Yes, my lord, in that northeast section of the 46 Bear Lake-Thutade area, and that's the point I just 4 7 made, my lord. 27236 Submissions by Mr. Mackenzie COURT: So that this dotted line which goes by Arthur Samson's and then follows the Sustut River -- the Sustut River rises in Bear Lake? MACKENZIE: No, my lord. The Bear River rises in Bear Lake and flows into the Sustut River. The Sustut River rises in Sustut Lake east of the land claim area. COURT: All right. So it follows the Sustut River and until its confluence with the Skeena, and then the line seems to run southeasterly past the Henry Wright trapline. MACKENZIE: Yes, my lord. COURT: And the area -- the present area on map 9A would be to the east of that line. MACKENZIE: It would be to the northeast of that line. COURT: Yes. MACKENZIE: And in some cases to the east of that line. COURT: Yes, all right. I have it, thank you. MACKENZIE: That concludes my reference to Exhibit 22, my lord. COURT: Thank you. I suppose it came out of this pocket, it should go back in, should it. I don't think it's going to. Yes, it is, thank you. MACKENZIE: Now, just carrying on on this point, my lord, this is point -- moving onto point 7 in my outline of argument at the beginning of this section, point 7: The territorial boundaries on the plaintiffs' maps coincide generally with registered traplines. And in my submission, my lord, this follows logically from Mr. Sterritt's initial research and the drawings which he made the additions which he made to Exhibit 22, and just as an example of this, I'm going to refer your lordship to the Judge's series and ask your lordship to put the trapline boundaries map and the house areas map onto the Judge's series. COURT: Is that Mr. Macaulay's famous map? MACKENZIE: Yes, my lord. Perhaps your lordship already has that overlay on -- COURT: I'm not sure what I have here. I've got a number with the trapline 9A and 9B. MACKENZIE: That's correct, my lord, that will — COURT: Is that all right? MACKENZIE: Yes. Your lordship will be able to follow the references. COURT: All right, yes, all right. Which one is which, traplines are black -- traplines are red? MACKENZIE: Yes, traplines are in orange. COURT: Orange, all right. 1 THE 2 3 4 MR. 5 6 7 THE 8 9 10 11 MR. 12 THE 13 14 MR. 15 THE 16 MR. 17 THE 18 MR. 19 20 THE 21 22 23 MR. 24 25 26 27 28 29 30 31 32 33 34 35 THE 36 MR. 37 38 THE 39 40 MR. 41 THE 42 MR. 43 44 THE 45 46 MR. 47 THE 27237 Submissions by Mr. Mackenzie 1 MR. MACKENZIE: It should be overlay number 32, my lord. On the 2 part of the map referring to the northern boundary, my 3 lord, the base of the map shows the original northern 4 boundary of the claim area, and in my submission, my 5 lord, that northern boundary, the original northern 6 boundary follows the northern boundaries of the 7 traplines in that area. And I refer to this in my 8 detailed submissions at page 16 paragraph 52. So, my 9 lord, some of the traplines included within those 10 original boundaries, this is paragraph 52 on page 16, 11 I'm following along this point now, my lord. 12 THE COURT: Yes. Where are you in your outline? 13 MR. MACKENZIE: I'm just dealing with point 7 on my outline, my 14 lord, and the detailed submissions are at page 16, 15 paragraph 52. 16 THE COURT: I'm sorry, at — 17 MR. MACKENZIE: At page 16, paragraph 52. 18 THE COURT: What's all this material in between? 19 MR. MACKENZIE: Well, those are detailed submissions relating to 20 the other points I've dealt with, my lord. 21 THE COURT: All right. 22 MR. MACKENZIE: And references are all contained in the outline 23 of argument that I've been following. 24 THE COURT: All right, yes. 25 MR. MACKENZIE: And in paragraph 52 I make this point that I'm 26 about to direct your lordship to. As I have 27 submitted, the northern boundary, which was drawn by 28 Mr. Sterritt, follows the northern boundaries of the 29 Gitksan traplines, and at the present time, with the 30 northern boundary having been moved south, several of 31 the Gitksan traplines extend to the north of the 32 present boundary. Mr. Willms will be dealing with the 33 overlap significance of that in his submissions. 34 In paragraph 53, my lord, I'm not going to go 35 through this in detail, but I do refer to the numbers 36 of those northern traplines to show to whom those -- 37 the northern traplines were registered to follow along 38 the northern boundary of the original land claim area. 39 Does your lordship have paragraph 53? 4 0 THE COURT: Yes. 41 MR. MACKENZIE: Yes, my lord. In that paragraph I refer to a 42 trapline map that was prepared by Marvin George, and 43 I'm not going to deal with that in detail, but the 44 same point can be made from the reference to the 45 Judge's series which we have just completed. And the 46 point simply there is that those boundaries are 47 virtually coterminous with the boundaries of the 2723? Submissions by Mr. Mackenzie 1 traplines in those areas. 2 THE COURT: When you say: "The boundaries of the plaintiffs' 3 ancestors' registered traplines form part of boundary 4 shown on Exhibit 765"; What is 765? 5 MR. MACKENZIE: 765 was a trapline map prepared by Marvin 6 George, which was on the boundaries of Exhibit 102, 7 but I would ask your lordship that your lordship put 8 in there "to form part of the boundary as shown on 9 Exhibit 765 and Exhibit 648", which was the first 10 Schedule B to the Statement of Claim; the point being 11 that the original claim followed those registered 12 trapline boundaries. 13 THE COURT: And is that the most northern one or the present 14 one? 15 MR. MACKENZIE: Most northern one, my lord. 16 THE COURT: Yes, all right. 17 MR. MACKENZIE: To complete this point, my lord, I wish to refer 18 to page 20, paragraph 62. I'm at page 20 of my 19 detailed submissions, paragraph 62, my lord. 2 0 THE COURT: Yes. 21 MR. MACKENZIE: And in my submission, my lord, the general 22 coincidence at the northern section of the land claim, 23 it may be seen in generally reviewing the boundaries 24 throughout the land claim, including many of the house 25 boundaries. And now I've listed some house 26 territories which coincide generally with the trapline 27 boundaries, and the first one that I give for your 28 lordship's consideration is the Namox-Goosely Lake 29 territory, which as your lordship will recall is down 30 south of Houston just in the Wet'suwet'en territory. 31 Does your lordship see that Namox territory? 32 THE COURT: Not yet, but I'm sure it's here somewhere. Yes, I 33 have it, yes. 34 MR. MACKENZIE: As your lordship may recall, in the 35 cross-examination of Dan Michelle and Alfred Mitchell, 36 the close resemblance between the house territory and 37 the registered trapline area was discussed in that 38 cross-examination, and with some minor exceptions, 39 that is the boundary that the house territory follows, 40 as your lordship can see from that overlay. 41 THE COURT: Yes. 42 MR. MACKENZIE: And if your lordship remains down in the Namox 43 area, your lordship will just go slightly to the west 44 to Gisdaywa territory. I refer your lordship to the 45 point that emerged from Thomas George's letter, 46 Exhibit 88A, trapping grounds in that case -- the 47 trapping grounds in the Gisdaywa territory really were 27239 Submissions by Mr. Mackenzie 1 registered as traplines and became the Gisdaywa house 2 territory which we see today. 3 THE COURT: But not in the southeast and southwest corners. 4 MR. MACKENZIE: There are some differences, my lord. And your 5 Lordship, by the way, can see the lakes that Thomas 6 George was referring to in his letter of Exhibit 88A. 7 THE COURT: Yes. 8 MR. MACKENZIE: The southwestern — the lower lake I presume is 9 the one to the south, most southwestern lake. 10 THE COURT: Yes. 11 MR. MACKENZIE: It's one of those two lakes shown in the lower 12 western -- southwestern corner of Gisdaywa. And, my 13 lord, in my submission, there are several examples 14 throughout the land claims area -- of the claim area, 15 and this is not a -- this is not a surprising 16 submission, my lord, because Mary McKenzie, for 17 example, said that her trapping grounds were 18 registered as traplines, and that her trapping grounds 19 are in the house territory of Gyolugyet, so the point 20 is that the resemblance continues today on an 21 examination of the trapline overlay with the house 22 territories. I list some other examples there, my 23 lord. 2 4 THE COURT: Yes. 25 MR. MACKENZIE: So that completes my point number 7, my lord. 26 And now just referring to the conclusions on page 23 27 of my detailed submission, I simply refer to paragraph 28 67. Now, my lord, to conclude this section -- that's 29 paragraph 23 -- -- sorry, page 23, my lord. 30 THE COURT: Yes. I have it. 31 MR. MACKENZIE: The recency of the trapline boundaries and the 32 alleged house territorial boundaries based upon the 33 trapline areas is significant because this contradicts 34 the territorial affidavit of assertions that the 35 boundaries have been in place and have remained 36 unchanged since time immemorial. 37 THE COURT: Well, is it a question of which came first, the 38 trapline boundary or the house boundary? 39 MR. MACKENZIE: No, my lord. If your lordship will recall, this 40 whole argument was based on the allocation in the 41 nineteenth century of these trapping grounds. Your 42 lordship will recall we examined Exhibit 88A, in which 43 Thomas George pointed out that his -- the trapping 44 grounds were allocated about five generations before 45 1945. So the point that is made in this section, my 46 lord, is that is the date that these boundaries 47 originated. 27240 Submissions by Mr. Mackenzie 1 THE COURT: Well, does your five generations depend on that one 2 letter of Thomas George? 3 MR. MACKENZIE: No, my lord. This came out also — Mr. Willms 4 dealt with this in some detail. 5 THE COURT: Yes. 6 MR. MACKENZIE: But there's another reference on that point in 7 these submissions, and that is Professor Steward's 8 letter to Dr. Jenness reporting on his research at 9 Stuart Lake, and that letter is found at tab 63 of 10 this section, and it's Exhibit 955-13, and Professor 11 Steward found that he had come to the same conclusion, 12 that the territories were distributed about that time 13 in Stuart Lake. 14 THE COURT: What was -- what paragraph is Thomas George's letter 15 referred to. 16 MR. MACKENZIE: It's referred to in paragraph 63, my lord, and 17 also referred to right at the beginning of the 18 submission. And your lordship filed the letter 19 Exhibit 88A at tab 5 just after Professor Adams' 20 comment, so it appears at two places, my lord. 21 THE COURT: Yes, all right, thank you. 22 MR. MACKENZIE: Now, my lord, that completes my submissions on 23 the traplines, and Mr. Willms -- 24 MR. GRANT: Just one point. On the Steward letter, my friend of 25 course is not suggesting that Steward was referring to 26 the Wet'suwet'en, he was clearly referring to the 27 Stuart Lake Carrier, my lord. It was very clear in 28 his letter he wasn't making any reference to the 2 9 Wet'suwet'en. 30 THE COURT: How far is it from Stuart Lake to Burns Lake? 31 MR. GRANT: I think it's 7,500 miles. 32 MR. MACKENZIE: My lord, if I may, I don't disagree with my 33 friend there, but I point out that this was discussed 34 in the cross-examination of Dr. Antonia Mills, and Dr. 35 Mills had -- had referred to research with the Stuart 36 Lake Carrier as support for several of her 37 propositions dealing with the Wet'suwet'en, and if I 38 may now just read for your lordship what Professor 39 Steward said in his letter at Exhibit 955-13, he said: 40 41 "Five generations ago the Stuart Lake hunting 42 lands were distributed in two solid blocks, one 43 belonging to each fraterie." 44 45 That letter was written in June 1940. 46 THE COURT: That's at tab 63? 47 MR. MACKENZIE: Yes, my lord, it's at tab 63, page 5. The 27241 Submissions by Mr. Willms letter is pages 5 and 6, the citation passage I just read is at page 6. COURT: All right, thank you. There's one other matter, my lord, and I'm handing up a copy of your lordship's order in chambers that we referred to yesterday. This is the order dated October 23, 1987, and I would ask your lordship to file that letter. COURT: Apart from the Hall of Fame, where does it belong? MACKENZIE: If your lordship could file that letter just following the last page of Section (d) dealing with the territorial affidavits. COURT: 5(d)? MACKENZIE: 5(d), my lord. GRANT: In the argument? MACKENZIE: Yes, in the argument. COURT: At the end of 5(d). MACKENZIE: Yes, my lord. That would be 5(d), page 27, just following that, as your lordship made notes discussing that letter, just following the discussion on page 27. COURT: Mr. Willms. WILLMS: My lord, I will be dealing with Section 5(f), which is entitled "Overlapping Claims", and there are two parts to the section, my lord. The first part of the section goes to page 23, and that's the part that I will be dealing with. The appendix provides the detailed support for the propositions that are made in the first part, and I won't be reviewing those -- the detailed support for the propositions, my lord. COURT: All right. WILLMS: But starting at paragraph 1, I say that there is extensive evidence about claims by neighbouring Indian groups overlapping the claim area. Mr. John Magwood, a Provincial witness, prepared a map depicting the overlapping claims described in documents identified during the Marvin George cross-examination. And of course Canada filed the comprehensive claims of neighbouring groups as Exhibit 1238 and 1238A. Now, my lord, just following along in the yellow book, the first tab relating to this section -- COURT: Not the map book? WILLMS: No, not the map book, my lord, the yellow book, volume 11. And the first tab of the map section -- or the overlap section is 5f-l. COURT: Yes. WILLMS: And the first page should be the first page of a letter from Mr. Magwood addressed to me. COURT: 5f — 1 2 3 THE 4 5 6 7 8 THE 9 MR. 10 11 12 THE 13 MR. 14 MR. 15 MR. 16 THE 17 MR. 18 19 20 THE 21 MR. 22 23 24 25 26 27 28 29 THE 30 MR. 31 32 33 34 35 36 37 38 39 40 THE 41 MR. 42 43 44 THE 45 MR. 46 47 THE 27242 Submissions by Mr. Willms 1 MR. WILLMS: 5f-l. 2 THE COURT: Yes. 3 MR. WILLMS: All right. Now, this, my lord, is the opinion of 4 Mr. Magwood, and I just want to ask your lordship to 5 turn to the last page of that, which is page In of the 6 tab, it's page 14 of the letter and page In in the 7 lower right-hand corner. 8 THE COURT: Yes. 9 MR. WILLMS: And you will see his opinion is at the bottom: 10 11 "In my opinion, the boundary lines that I have 12 drawn onto a copy of Exhibit 646 and the half 13 size copies of Exhibit 646, subject to the 14 assumptions contained in parts II and III of my 15 report, fairly represent and depict the 16 boundaries of the territories set out and 17 described in --" 18 19 And then he lists the exhibits, my lord that he has 20 mapped onto his exhibit, and that's the map -- the 21 large map on the easel, my lord, is the map prepared 22 by Mr. Magwood. And what I've done is I've overlaid 23 9A and 9B over top of -- transparency of 9A and 9B 24 over top of Mr. Magwood's exhibit. And now, I'll 25 just -- 26 THE COURT: I'm — where is 9B? 9A is outlined heavily in 27 black. 28 MR. WILLMS: Yeah, my lord. All of the black on this one, it's 29 the two are put together, it's just that it's a 30 heavier line for 9A. 9B just carries on. 31 THE COURT: Yes, all right. 32 MR. WILLMS: Now, if you turn along, my lord, in the tab 1 to 33 page 6, the first overlap that Mr. Magwood mapped was 34 the Kaska-Dene overlap, and this is taken from a 35 report prepared by Miss Albright, one of the 36 plaintiffs' witnesses. Of course, she wasn't the 37 plaintiffs' witness at the time. And so this document 38 sets out within it a metes and bounds discription, and 39 Mr. Magwood plotted the Kaska-Dene metes and bounds in 40 red in the upper right-hand portion of the Magwood 41 map. And your lordship can see that the essential 42 overlap there is excluding the territory of Nii Kyap. 43 THE COURT: Is it just the territory of Nii Kyap? 44 MR. WILLMS: For the — for Kaska-Dene, yes, my lord, here, 45 because the boundary in the upper right-hand corner of 46 646-9A follows the height of land between the 47 drainages, the Peace River drainage and the Nass and 27243 Submissions by Mr. Willms 1 the Stikine drainages. 2 THE COURT: So it is not — yes, it's all of — it's at least 3 all of what is in yellow in this. 4 MR. WILLMS: Yes. And, my lord, you might recall that the Nii 5 Kyap is the in again, out again, in again territory in 6 that area. One map according to the plaintiffs it was 7 in, another map it was out, and then it came back in 8 again. The next -- so that's that one. If you turn, 9 my lord, to page 16 of the yellow book, you will see 10 in this tab there are -- there is a metes and bounds 11 description of the Tsimshian claim, and what Mr. 12 Magwood has done is mapped that one in the lower 13 left-hand corner in blue, and that overlap extends 14 into a number of the territories on the lower Skeena 15 River. For example, it comes into Hagwilnegh and then 16 up through Sakxum higookx, Miluulak, Haaxw, and 17 through over towards Kitsumkalum Lake. 18 THE COURT: Where does the line go after it proceeds west of 19 Haaxw's? 20 MR. WILLMS: It comes down, my lord, and this is in green, Mr. 21 Magwood has mapped, and this is also at the same 22 section there's a metes and bounds, and then there's a 23 map. This map, Kitsumkalum claim, in green. 24 THE COURT: This is green? 25 MR. WILLMS: Green. Kitsumkalum is green, and Tsimshian is 26 blue, and there's a mutual -- appears to be a mutual 27 boundary in blue and green between Kitsenkalum and 28 Tsimshian. 29 THE COURT: Is that an overlap between them? 30 MR. WILLMS: No. That boundary appears to come down the same 31 line, that's the way Mr. Magwood has mapped it. 32 THE COURT: I see. So to the west is Kitsumkalum and to the 33 east is Tsimshian. 34 MR. WILLMS: Is Tsimshian. And then the Kitsumkalum claim comes 35 up into the territory of Tenimgyet. 36 THE COURT: Yes, takes in most of it. 37 MR. WILLMS: Most of Tenimgyet. 3 8 THE COURT: Yes. 39 MR. WILLMS: And, my lord, for -- as I said, at this particular 40 section of page 16 and on the Kitsumkalum claim is 41 described in a metes and bounds description, and it's 42 also — 43 THE COURT: Sorry, page 16. 44 MR. WILLMS: Well, page 16 -- if you go to page 19, you will see 45 the metes and bounds of the Kitselas Band. 4 6 THE COURT: Yes. 47 MR. WILLMS: And then over to page 22, a metes and bounds of 27244 Submissions by Mr. Willms 1 Kitsumkalum. 2 THE COURT: Yes. 3 MR. WILLMS: But what Mr. Magwood mapped for Kitsumkalum was the 4 map which is at page 24. At page 24 there's a foldout 5 and there's a map of the Kitsumkalum Tribe territory, 6 and you'll see Mr. Sterritt's notes in the upper -- 7 his initials in the upper right-hand corner, "NJS", 8 that's Neil Sterritt. And what he's done in green is 9 he's mapped this onto his map. The next one that was 10 marked, my lord, if you turn to page 26 of this tab, 11 what follows at page 27, 28 and 29 is a metes and 12 bounds description from Tahltan oral histories, my 13 lord, according to Teit, a metes and bounds 14 description of the Tahltan traditional territory, and 15 Mr. Magwood has mapped the -- a Tahltan from the north 16 in blue, and it comes down the height of land between 17 the two drainages and abuts the Kaska-Dene claim, but 18 it takes out the territories of Nii Kyap, Miluulak, 19 part of Miluulak across part of Wii Gaak, Geel, Wii 20 Minosik, and it comes all the way down to, as Teit 21 said, latitude 56 degrees. And then at 56 degrees Mr. 22 Magwood then went over to the Cascade Range along 56 23 degrees, but you'll see, my lord, that that, according 24 to the Tahltan oral histories, if you map that down it 25 takes out a large chunk of the northern section of the 26 claim area. 27 The next that Mr. Magwood mapped is at page 31, my 28 lord. This is the Nishga Tribal Council claim. The 29 map that was given to Mr. Sterritt, and your lordship 30 may recall the evidence of the feasts between the 31 Nishga and the Gitksan and in an attempt to resolve 32 this one, and what Mr. Magwood has done on his map 33 with the Nishga claim, my lord, and it's fairly faint, 34 but it's in yellow, and the Nishga claim generally 35 follows the watershed boundaries of the Nass, but you 36 can see it coming in from the north through Kliiyem 37 lax haa, taking out Wii Minosik and then following the 38 Tahltan claim down through Luus, Niist, Wii Goobl, and 39 then carrying on down through Delgamuukw, the boundary 40 of Delgamuukw, it takes out Delgamuukw and Gyolugyet, 41 following roughly between Antgulilbix and Delgamuukw 42 on the far left side. 43 THE COURT: Overlapping with the Tahltan? 44 MR. WILLMS: Overlapping with the Tahltan. The next overlap, my 45 lord, that -- and there are two -- there were two 46 representations of Kitwancool, my lord. The first 47 Kitwancool is a metes and bounds description, which is 27245 Submissions by Mr. Willms 1 found at page 36 tab 1, and so what -- in paragraph 10 2 there is a metes and bounds description and then there 3 is also -- there were two descriptions, and then there 4 was also the description, which is at page 45, which 5 is from the -- from Exhibit 383, which is the -- I 6 think it's the Laws and Territories of the Kitwancool, 7 by Duff. So what Mr. Magwood did there, my lord, was 8 he mapped the metes and bounds territory with long 9 dashes in red and he mapped with short dashes the map, 10 so when you look -- okay. Here you can see the long 11 dashes are the attempt to follow the metes and bounds 12 description, except that the metes and bounds 13 description at one point appears to have headed 70 14 miles across the land claim area, and you may recall 15 Mr. Magwood then couldn't figure out from the metes 16 and bounds how to get back -- 17 THE COURT: Yes. 18 MR. WILLMS: -- over, but he mapped so much of it as he could. 19 The short dashes are the map from the Laws, 20 Territories, et cetera, of the Kitwancool, and they 21 come up and take out Djogaslee, part of Gyolugyet, 22 Delgamuukw, Antgulilbix, Geel, more Geel, Wii Minosik, 23 Wii Goobl, Yal. 2 4 THE COURT: Yes. 25 MR. WILLMS: But — so that that, my lord, is what Mr. Magwood 26 did. I really want to go now from paragraph 1 of my 27 argument through to paragraph -- 28 MR. GRANT: If my friend is finished with the map, I just think 29 it's important to recall on the Magwood evidence that 30 he used dashes and dots for a significance, to show 31 wherever he was uncertain, and solid lines where he 32 could properly map, so it wasn't just for legend 33 purposes. 34 MR. WILLMS: It's just from one legend. 35 THE COURT: That goes in the legend, doesn't it. 36 MR. WILLMS: Yes. What Mr. Magwood said with respect to the 37 Kitwancool, as to both descriptions he had some 38 uncertainties and he had to make some assumptions, and 39 you may recall, my lord, his primary assumption was to 40 follow the height of land. If there was -- what he 41 called a "call", a mapping call to be made, his call 42 would be to follow the height of land, and your 43 lordship may recall that many of the territories that 44 are claimed in this case follow the height of land as 45 being the boundary. 46 THE COURT: Was there a separate claim advanced by the 47 Kitwanga -- sorry, the Kitwanga. 27246 Submissions by Mr. Willms 1 MR. WILLMS: I'll get to that, my lord. Mr. Magwood didn't map 2 that, but I'll get to that in the argument here. And 3 there was also a second claim advanced by the 4 Carrier-Sekani, and this is the map that Marvin George 5 prepared, Exhibit 101, where he shows the 6 Carrier-Sekani overlap. And you'll see from Mr. 7 George's map that the Carrier-Sekani overlap basically 8 takes out almost all or most of the southern 9 Wet'suwet'en territories and a great deal of the 10 eastern claimed territories. 11 THE COURT: That's the one that was pinned on the wall. 12 MR. WILLMS: At the feast — there were two feasts, the 13 Moricetown feast and the Burns Lake feast, and I think 14 this was the one at Moricetown. 15 THE COURT: Yes. 16 MR. WILLMS: Now, I'm not going to -- what I have done in the 17 argument, my lord, at paragraphs 2 through 10, is just 18 summarized the various rulings that have been made 19 in -- by your lordship in this case about challenging 20 the reputation evidence that the plaintiffs have 21 brought to bear. And the plaintiffs alleged, for 22 example, that we couldn't cross-examine their 23 witnesses on whether they knew of somebody else 24 changing the territory, and your lordship said that we 25 could, that that would go to reputation. So I don't 26 intend to go through that, that's just a bit of 27 history, but I would ask your lordship to go to 28 paragraph 11 on page 5, and I say this: That a 29 boundary by definition must involve an agreement 30 between the alleged landholders on either side of the 31 boundary or a decision by an authoritative 32 decision-maker to which these claimants defer. The 33 plaintiffs argue that the alleged declarations of 34 house members about house boundaries constitute 35 evidence of reputation of the boundaries. The 36 plaintiffs, however, have called no evidence as to the 37 reputation concerning such boundaries in the larger 38 community of native and non-native groups in 39 northwestern British Columbia. There is, and I'm 40 going to deal with this in a bit more detail later, my 41 lord, no evidence of reputation in what I say is the 42 real community as to these boundaries. In other 43 words, the real community necessary for proferring 44 reputation evidence to boundaries. My friends haven't 45 called any evidence. 46 Now, I say in paragraph 12 that the evidence of 47 overlapping claims, both in chief and in 27247 Submissions by Mr. Willms 1 cross-examination, seriously dilutes the evidence, if 2 it's admissible as reputation, the plaintiffs' 3 evidence, contained in all the territorial affidavits. 4 And there there is a further significance to the 5 overlapping claims, my lord, and we used these for two 6 purposes. In the Baker Lake case Mr. Justice Mahoney 7 excluded from the land claim areas subject to 8 overlapping and successive occupation by other native 9 groups. And, my lord, could you turn to tab 13, it's 10 f-13 in the yellow book. And this is an extract from 11 the Baker Lake case, but you'll see in the middle of 12 the page on the left-hand side "The nature, extent or 13 degree". 14 THE COURT: Mm-hmm. 15 MR. WILLMS: 16 "of the aborigines' physical presence on the 17 land they occupied, required by the law as an 18 essential element of their aboriginal title is 19 to be determined in each case by a subjective 20 test. To the extent human beings are capable 21 of surviving on barren lands, the Inuit were 22 there: to the extent the barrens lent 23 themselves to human occupation, the Inuit 24 occupied them. 25 The occupation of the territory must have been 26 to the exclusion of the other organized 27 societies. In the Santa Fe case at page 345 28 Mr. Justice Douglas, giving the opinion of the 2 9 U.S. Supreme Court held: 30 'Occupancy necessary to establish 31 aboriginal possession is a question of fact 32 to be determined as any other question of 33 fact. If it were established as a fact 34 that the lands in question were, or were 35 included in, the ancestral home of the 36 Walapais in the sense that they constituted 37 definable territory occupied exclusively by 38 the Walapais (as distinguished from lands 39 wandered over by many tribes), then the 40 Walapais had 'Indian title' which unless 41 extinguished survived the railroad grant of 42 1866.'. 43 44 Now, my lord, here of course the plaintiffs put their 45 case on an even higher plain, because they say that 46 not only have they had possession since time 47 immemorial, except for the northern -- some northern 2724? Submissions by Mr. Willms 1 territories which they say they acquired through peace 2 feasts, not only do they say that they had possession 3 since time immemorial, they claim to have possession 4 to today. So I say that there are two ways that the 5 overlapping claim evidence can be used in measuring 6 the allegations of the plaintiffs here. 7 Now, I say in paragraph 14, my lord, that as well 8 the extent of the overlapping claims is -- oh, my 9 colleague just pointed out to me, my lord, or -- I had 10 two replacement pages to hand up, and one of them I'm 11 just reading from. This replaces page 6. The 12 difference is, my lord, there was a bit of the 13 paragraph at the top of the page that was missed. The 14 other page comes later on, my lord. 15 THE COURT: Sorry, the other page doesn't come there? 16 MR. WILLMS: No. There's another page number at the top, I 17 think it's a page in the appendix. 18 THE COURT: All right, thank you. So take out page 69, the 19 appendix. 20 MR. WILLMS: Yes, and replace it with the new page. 21 THE COURT: My book is getting very close to being full. 22 MR. WILLMS: I won't add anything more, my lord. 23 THE COURT: All right. 24 MR. WILLMS: Now, I was on page 6. 2 5 THE COURT: Yes. 26 MR. WILLMS: And I just want to make a comment here, because 27 I've noted in paragraph 14 that some overlaps have 28 been depicted by Neil Sterritt, and I list the 29 exhibits there, and also by Marvin George, and that's 30 Exhibit 101, and of course the Magwood map is the map 31 I've just referred your Lordship to. In paragraph 15 32 I say that there is evidence of claims based on 33 aboriginal rights and on prior use and occupation in 34 the claim area by the following native groups who live 35 or lived in or near the claim area. There is the 36 Tsimshian-Kitselas and the Tsimshian-Kitsumkalum, the 37 Nishga, Kitwancool, Tahltan-Stikine, the Tsetsaut, 38 which is sometimes included in the Tahltan-Stikine, 39 the Kaska-Dene, the Carrier-Sekani, and the Cheslatta, 40 sometimes included in the Carrier-Sekani. And I do 41 want to pause here, my lord, to answer a point. I 42 don't know whether my friends are continuing to 43 advance this point, but earlier on Mr. Rush made the 44 comment that the Nishga weren't an organized society, 45 and he made that comment in relation to the argument 46 about reputation evidence and whether or not it could 47 be put to a witness in cross-examination that the 27249 Submissions by Mr. Willms 1 Nishga were claiming the territory. And one of the 2 points that Mr. Rush made at the time, and I don't 3 know whether that's still being maintained, but he 4 said that the Nishga weren't an organized society and 5 therefore the reputation evidence was different. 6 THE COURT: I think what he said was, as I recall it, was there 7 was no evidence that they were. 8 MR. WILLMS: Oh, all right. Well, I can deal with that too, my 9 lord. The evidence that the Nishga -- the evidence 10 led by the plaintiffs that the Nishga are an organized 11 society are the fact that they feasted with the Nishga 12 in accordance with their traditional system, and my 13 friend, Mr. Grant, went through in detail the 14 Nishga -- described the Nishga feasting. It's also 15 covered, my lord, in my friend's suggestion of 16 international relations. The people that they're 17 suggesting that they can have international relations 18 with are the people that my friend says there's no 19 evidence that they're an organized society. Well, I 20 say that the feasting alone on the plaintiffs' case is 21 evidence that the Nishga are organized. The 22 Kitwancool -- of course, from the Statement of Claim, 23 the Kitwancool are, because the Kitwancool are 24 Gitksan. The Tahltan-Stikine, my friends rely on the 25 fact for some territories that they obtained 26 territories in feasts, and they can't obtain 27 territories in feasts, on their own theory, unless 28 they're obtaining them from an organized society, and 29 so they need the Tahltan-Stikine-Tsetsaut people to be 30 organized in order to get those territories. There 31 are also references, of course, in the oral histories 32 that my friend would make as to feasting with the 33 Tahltans feasting with the Tsetsaut. With the 34 Kaska-Dene, I'll deal with that a little later, my 35 lord, but Miss Albright gave evidence about the 36 Kaska-Dene. And of course the Carrier-Sekani, my 37 lord. There were two feasts, overlap feasts with the 38 Carrier-Sekani, and it is my submission, my lord, that 39 there is ample evidence that it was held by the 40 plaintiffs here on their own theory that surrounding 41 peoples are organized societies. Now, turning to page 42 7 -- 43 THE COURT: Mr. Magwood didn't map the alleged overlapping claim 44 with the Tsetsaut, did he? 45 MR. WILLMS: No, my lord. The Tsetsaut is once again in the 46 Suttles map, which shows the linguistic boundary at 47 the time of contact. Now, that one, if you drew a 27250 Submissions by Mr. Willms 1 line from Kuldo over to Bear Lake, basically what you 2 would do -- which is where, according to the Suttles 3 map, the Tsetsaut were at the time of contact, if you 4 drew a line across there it would knock off most of 5 the top part of the Gitksan territories. 6 THE COURT: From where — from — 7 MR. WILLMS: If you draw a line roughly from Kuldo across to 8 Bear Lake, and then south -- now, the neat thing about 9 all of this, my lord, of course, is that it fits so 10 well with what Dr. Rigsby said, with what Dr. McDonald 11 said, with what Dr. Robinson said about the Gitksan 12 moving up in the protohistoric period and early 13 historic period in response to the fur trade into an 14 area that they were not before that time. 15 THE COURT: And of course that would overlap with the Tahltan. 16 MR. WILLMS: Yes. Well, the Tahltan, now, you may recall the 17 evidence that it was a combination of warfare, the 18 Tsetsaut was small pox and warfare with both the 19 Tahltan and the Nishga, and I think the Tlingit as 20 well. 21 THE COURT: Yes, all right. 22 MR. WILLMS: Now, I say in paragraph on page 7, paragraph Bl I 23 note that there is an overlap of the House of 24 Tenimgyet and that Art Matthews Jr. and Neil Sterritt 25 testified that they were aware of these claims. Over 26 to page 8, I note the Kitselas -- the territories that 27 the Kitselas claim overlaps, my lord, and then I note 28 in paragraph 3 that both Vernon Smith and Neil 29 Sterritt were aware of Kitselas claims to territories 30 within the claim area. In paragraph 4 I -- actually 31 if you -- I've been through 4 and 5 already, my lord, 32 except to note that the Nishga map was received by the 33 plaintiffs in 1983, before the lawsuit was commenced, 34 but in paragraph 6 the claim overlaps, and I set out 35 the territories that are overlapped, and I say in 36 paragraph 7 that Mr. Sterritt was aware of the Nishga 37 claims as early as 1975. And I would, on this 38 particular point, my lord, ask you to turn -- the 39 numbering system changes to B in the yellow book now, 40 and it's tab B-7. 41 THE COURT: Capital B? 42 MR. WILLMS: Capital B-7. 4 3 THE COURT: Yes. 44 MR. WILLMS: And I'll read the quote. This is the resolution of 45 April 3rd, 1975, and you will see the chiefs who made 46 this resolution down the left-hand side. 47 THE COURT: Sorry, I'm not at the right place. Down the 27251 Submissions by Mr. Willms 1 right-hand side? 2 MR. WILLMS: Left, down at the bottom. The top of the 3 document -- 4 THE COURT: Oh, I'm sorry, I'm at B-17, you want B-7. 5 MR. WILLMS: B-7. 6 THE COURT: Yes, thank you. 7 MR. WILLMS: All right. This is a resolution presented to the 8 Special General Assembly of Union of B.C. Indian 9 Chiefs By The Hereditary Gitksan Chiefs Of The Kispiox 10 and Skeena Valleys, April 3rd, 1975: 11 12 "Whereas the hereditary Gitksan Chiefs from the 13 Kispiox and Skeena Valleys are aware that land 14 claims and aboriginal rights are becoming a 15 major issue amongst the Indian people of B.C. 16 and; 17 Whereas the Nishga tribes are claiming certain 18 lands which are rightfully the lands of the 19 Gitksan, be it hereby resolved that we direct 20 our elected representatives on the 21 Gitksan-Carrier Tribal Council to make land 22 claims a priority issue, and ensure that the 23 Gitksan's hereditary lands as defined by all 24 their registered traplines are made known to 25 the B.C. Land Claims Co-ordinator, Mr. Phillip 26 Paul, and to the Nishga people." 27 28 And you will see some familiar chiefs names in the 29 left, my lord, and it was as a result of this really 30 that you will see on the next page, from the 31 cross-examination of Mr. Sterritt, that section is put 32 to him and he was asked: 33 34 "Q Now, was that the terms of the resolution 35 that you described a few minutes ago? 36 A This was the resolution that I was 37 referring to and it was in the nature of 38 what I've just described a few moments ago, 39 that the hereditary chiefs understood that 40 the traplines would represent their 41 traditional lands, a situation which turned 42 out not necessarily to be true." 43 44 And I note, my lord, that from the outset the prime 45 map-maker in this area, the person who prepared the 46 draft maps, was aware all along of the very extensive 47 Nishga overlap. 27252 Submissions by Mr. Willms 1 THE COURT: Wasn't there a letter or a memorandum about the 2 Gitksan recognizing the Nishga claim for the purpose 3 of the Calder case? 4 MR. WILLMS: That was the Kitwancool, I believe the Kitwancool 5 people for the purposes of the Calder case did that. 6 THE COURT: All right, it wasn't the Gitksan. 7 MR. WILLMS: Well, there are Gitksan, but they're not the 8 plaintiffs in this action. 9 THE COURT: All right. 10 MR. WILLMS: I don't know what the position of the plaintiffs in 11 this action is, as to whether the Nishga claim in 12 Calder was good or not. I don't think they've said 13 so. 14 THE COURT: It doesn't matter, because it was an agreed 15 statement. 16 MR. WILLMS: It was an agreed statement, my lord, and I don't 17 know whether they agree that that claim should have 18 succeeded and therefore perhaps overlap with their 19 claim today, I don't know, I don't think they've dealt 20 with that. But turning to paragraph 8 on page 9, I 21 say that other witnesses who were well aware of Nishga 22 claims to territories within the claim area included 23 Mary McKenzie, Dora Wilson-Kenni, Arthur Matthews Jr., 24 James Morrison, Vernon Smith, Solomon Marsden, and 25 Marvin George. Now -- and the next item, my lord, is 26 Kitwancool on page -- the bottom of page 9. I've 27 already pointed out the two lines, and where that came 28 from, I note in paragraph 10 that the map was 29 identified as showing the Kitwancool boundaries by 30 James Morrison and Solomon Marsden, both Kitwancool 31 chiefs, and Vernon Smith, chief councillor of the 32 Kitwancool band. I note in paragraph 11, as I pointed 33 out roughly, my lord, the house territories that are 34 overlapped by the Kitwancool claim. 35 THE COURT: Does Exhibit 383 — 36 MR. WILLMS: 383 is from the Laws, Territories — the History Of 37 The Territories and Laws of Kitwancool, and 383 is the 38 one that sort of -- the line. 3 9 THE COURT: Yes. 40 MR. WILLMS: In paragraph 12 I note that Peter Muldoe was aware 41 of the Kitwancool claims to the territory. Now, I 42 note one point here, my lord. Although the Nangeese 43 River Valley in paragraph 13 is outside the claim 44 area, that Fred Wale had testified at one point that 45 the House of Gwoimt claims the Nangeese Valley, but 46 that's not advanced here. 47 I say in paragraph 14 that the territory of the 27253 Submissions by Mr. Willms 1 House of Yal in the Kiteen River area extended into 2 the lands claimed by the Nishga and the Kitwancool, 3 and that the territory was removed from the 4 plaintiffs' claim in a subsequent amendment. 5 And finally, I note another map which hasn't been 6 marked, my lord, but another map which overlaps a map 7 verified by Solomon Marsden, having another claim 8 extending into the Upper Kiteen River within the claim 9 area. 10 Now, on this point, this is the Kitwanga band 11 Council, my lord, there was an earlier land claim by 12 the Kitwanga, and at page 12 I note that Vernon Smith 13 testified that in 1978 the Kitwanga Band Council 14 decided to advance its land claim independent of 15 Gitksan-Carrier Tribal Council, and the boundaries -- 16 if we can go back to B -- if your lordship can go to 17 B-17 now, where -- in the yellow book, you'll see a 18 metes and bounds of the Kitwanga claim, which 19 commences at: 20 21 "Andimaul Train Station, eight miles east of 22 Kitwanaga Indian Reserve 1, and extends to a 23 mutual location between the Kitsegukla Band and 24 us." 25 26 And I don't want to read any further, my lord, but 27 except to make two comments. The first comment is 28 that, first of all, the Kitwanga Band Council advanced 29 its own claim. And your lordship will recall the 30 argument that we've already made about villages rather 31 than houses or territories -- sorry, houses, but it's 32 a village claim. Secondly, your lordship will note 33 the boundary between the Kitsegukla and Kitwanga being 34 mentioned here, and that was mentioned in the O'Reilly 35 documents that I directed your lordship to when I went 36 through that section, the dispute between the Kitwanga 37 band and the Kitsegukla band, where the Kitwanga 38 people want the strangers from Kitsegukla removed from 39 their reserve. 40 Now, I would like to go back, my lord, to the 41 argument now and go to paragraph 19, where I set out, 42 as I've already described, the Tahltan boundary and 43 the house territories that are overlapped there by the 44 Tahltan boundary. 45 Over to the top of page 13, and I note in 46 paragraph 20 that several witnesses testified about 47 the Stikine claims in historic times to areas within 27254 Submissions by Mr. Willms 1 the claim area, including Sterritt -- that should be 2 Neil Sterritt Jr. -- Solomon Marsden, Martha Brown, 3 David Gunanoot, Fred Johnson, Jessie Sterritt, Thomas 4 Wright, and Walter Blackwater. 5 The Stikine claims were said to extend as far 6 south as Kuldo according to Martha Brown and included 7 the Bowser Lake, Meziadin Lake, Ninth Cabin, Upper 8 Nass River, Upper Bell-Irving River and Upper Skeena 9 River areas. 10 Now, in 1986, as a result of discussions with the 11 Stikine or Tahltans, and I note, my lord, not a feast 12 but discussions, although there were feasts, according 13 to Neil Sterritt the northern boundary was established 14 at a location farther south than on the earlier maps. 15 And this — and this is Mr. Sterritt's Tahltan — if I 16 can call it this, put it this way -- Tahltan 17 accommodation, but certainly not in accordance with 18 any historic method of resolving territories, no feast 19 to set this -- fix this boundary. 20 THE COURT: Meech Lake, was it? 21 MR. WILLMS: It was Meech Lake, my lord. 22 THE COURT: Is it fair to use Stikine and Tahltan as 23 interchangable too? 24 MR. WILLMS: Well, my lord, the problem with that is Stikine 25 sometimes includes Tsetsaut, because when you look 26 into the historic documents, the Stikine people were 27 alternately either Tsetsaut or Tahltan, but of course 28 at the beginning of the nineteenth century, after the 29 early part of the nineteenth century, there were no 30 more Tsetsaut, so that when there was a reference to 31 Stikine in the earlier documents, when there was a 32 reference to Stikine in the earlier documents, it 33 could have been Tahltan or Tsetsaut. 34 THE COURT: Yes, thank you. 35 MR. WILLMS: Now, and that's why I — at the bottom of 36 paragraph -- page 13, paragraph 23 I say that the 37 Tsetsaut claim area is not depicted on the map 38 prepared by Magwood, and they are sometimes included 39 in the term "Stikine" by the plaintiffs' witnesses. 4 0 And Stanley Williams equated the two groups. Thomas 41 Wright stated that the two were different groups, and 42 I point out the Suttles were linguistic maps depicting 43 the Tsetsaut as occupying most of the land in -- north 44 of a line from Kuldo to Bear Lake. 45 I've already referred to the Kaska-Dene claim and 46 the effect of that territory on Nii Kyap. And of 47 course the Carrier-Sekani, that claim, my lord, was 27255 Submissions by Mr. Willms 1 used as a reference by the Wet'suwet'en hereditary 2 chiefs during a feast at Moricetown in April 6th, 3 1986. And Alfred Joseph testified that the overlap, 4 as depicted on Exhibit 101, was based upon the 5 Carrier-Sekani comprehensive claim filed with the 6 federal government. James Morrison, Robert Jackson 7 Sr., Dora Wilson-Kenni, Alfred Joseph and Hugh Brody 8 testified about Carrier-Sekani claims in the claim 9 area. 10 And as depicted on Exhibit 101, the western 11 boundary of the Carrier-Sekani claim cuts across the 12 claim area from a point west of Thutade Lake south to 13 the confluence of the Skeena and Mosque Rivers, south 14 across the Skeena River west of its confluence with 15 the Sustut, south along the height of land to cross 16 the Babine River just east of Kisgegas, and then south 17 of the Babine, turning southeast to the French Peak 18 area. And I describe there in the balance of the 19 paragraph, my lord, the house territories which we say 20 are overlapped by the Carrier-Sekani claim. And then 21 in the Wet'suwet'en area, as I said before, it 22 overlaps most of the southern claim area. 23 I note in paragraph 31 that Alfred Joseph, Dora 24 Wilson-Kenni, Marvin George, and Neil Sterritt were 25 all well aware of the Carrier-Sekani overlapping 2 6 claims. 27 One of the earlier maps, Exhibit 113, excluded 28 several of the southern territories in the claim area, 29 and I list those territories which were excluded from 30 that earlier map and note that those maps and some of 31 the Schedule B maps extended east to Chapman Lake, an 32 area which was removed from the claim area in 1987. 33 In paragraph 34, my lord, I note that the location 34 of the territories occupied by the Cheslatta people 35 isn't depicted on 1177-2, but the Cheslatta bands are 36 included in the Carrier-Sekani Tribal Council. 37 Now, the Suttles linguistic map, my lord, does 38 depict -- there is a smaller boundary that is depicted 39 in the Suttles map, which he has depicted as Babine. 40 And that boundary cuts across the Bulkley River, it's 41 partway down Babine Lake, and then over towards the 42 north end of Takla Lake, and you'll note that between 43 Francois Lake and Ootsa Lake the Cheslatta people are 44 named on the Suttles map as a linguistic group at the 45 time of contact. And the point here, again, my lord, 46 is that when you look at the evidence, for example, 47 the work of Mr. -- of Dr. Jenness, about the move 27256 Submissions by Mr. Willms 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. GRANT THE COURT MR. GRANT THE COURT south and also the discussion even when Trader Brown got there, you can see that there are the Hotset people on Bulkley River and the relationship with Babine Lake and the speakers, as Dr. Kari said, the Babine-Wet'suwet'en, which in my submission is what the Babine represent, a much smaller area than what is now being claimed. Now, I'm not going to -- my lord, from pages 18 through to 23, what I have set out there is just some conclusions about the general external boundaries, and I'm not going read that, but I would like to explain, if your lordship could turn to page -- the page immediately after page 23, and this is an appendix, the detailed review of the evidence. And so the propositions that I've made as I've gone through the first part, my lord, are supported and it's broken down A through I with references to the evidence in the appendix which follows and which stretches for some nine pages. And I'm not going to go through that, but I say that there is support in the evidence for all of the propositions that I've made in the previous pages in that end, and I say, my lord, really in conclusion on this section, and this is departing from any part of the argument, my lord, but I say that this evidence, the overlapping claim evidence goes to two points, it meets two points in the plaintiffs' case: The first point is that it corroborates the earlier evidence that your lordship has heard about and corroborates the earlier arguments that were made that the plaintiffs were not where they say they were at the time of contact or in the protohistoric period. And in particular, there, my lord, Teit's notes were from Tahltan oral tradition. The same evidence that the -- well, I mean the plaintiffs don't advance Tahltan oral tradition, they advance Tsimshian oral tradition, including some reference to people that are now called Gitksan. But you have oral tradition advanced which has a claim coming down to 56 degrees, and -- Well, my lord, is my friend going to be sure to caution you about the note of Teit, that -- and I think that you may recall that Teit made a note at the end of the reference which he has there, which is a note, it's at tab 1, where Teit's notes are -- Tab 1 of — IV/5f-l, the oral tradition given by Teit. Yes. 27257 Submissions by Mr. Willms 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. GRANT: He makes a note that it was difficult to determine the southern most boundary, and he -- THE COURT: What page are you on? MR. GRANT: I will give you the page now, my lord. It's on page 5 -- Section IV/5f-l, page 29, and he says: "I found it rather hard to get a full understanding of the approximate boundaries of the Tahltan, as some persons had a knowledge of some but not of others. There may have been some changing or extension of boundaries within the last 100 years in certain places owing to trade and some changing of headquarters." THE COURT: I haven't found that, Mr. Grant, where is it again? MR. GRANT: In the first tab of my friend's — THE COURT: Page 29? MR. GRANT: 5f-l is the tab number, page 29. THE COURT: Yes, all right. MR. GRANT: At the very bottom. THE COURT: Yes, all right. MR. GRANT: And going over to the top of the next page, page 30: "Boundaries are less well defined than those of tribes further south because the Tahltan were? more nomadic and had no real permanent villages formerly. Also certain families through intermarriage with neighbours, especially in the east and west, appear to have ranged over and used territory of both tribes." I think that's a telling comment on Teit of what can be made of that. MR. WILLMS: Certainly, my lord, if I was alleging -- if I was trying to prove Tahltan tribal boundaries, my friend has a good point, but what I'm saying is when you read this evidence it shows that my friends have not proved theirs, and those comments I say apply A fortiori to their own evidence. Now, if you turn to page 46, my lord, of tab 1 in the yellow book, what you will have is some evidence in this case from Miss Albright about the Tahltan and the Tsetsaut. She says at line 4: "Q In your Tahltan ethnoarchaeology, did you 2725? Submissions by Mr. Willms 1 become aware during your research there or 2 your research in preparing for your 3 ethnoarchaeological evidence here, aware 4 that Tsetsaut? 5 A Yes. 6 Q And at one point the Tsetsaut were located 7 as a group somewhere between the Tahltans, 8 who you investigated, and the Gitksan? 9 A Yes. 10 Q Now, you're earlier work on Tahltan 11 ethnoarchaeology indicated a review of the 12 ethnography of the Tahltans? 13 A Yes. 14 Q And I'm showing you -- it's the cover page 15 of publication, and one page of it. Did 16 you -- if you turn the page, did your 17 review of the Tahltan ethnoarchaeology 18 indicate, as is set out in figure 2, the 19 clan territories and the Tahltan tribal 20 boundaries that you indicated there? 21 A Yes. 22 Q All right. And you've shown the Nas Koten 23 at the headwaters of the Nass, and another 24 group, the T-L-E-P-A-N-O-T-E-N at the 25 headwaters of the Skeena River? 26 A Yes. 27 Q And that was the ethnography that you 28 reviewed in doing your Tahltan 29 ethnoarchaeology? 30 A Yes. Based on Teit's, James Teit's 31 previous work in that area. 32 Q Yes. And you -- and I think you mentioned 33 in your evidence -- or maybe I better 34 mark that." 35 36 And, my lord, that's Exhibit 849-20, and when you look 37 at that, I marked the figure that Miss Albright did, 38 and it's very close to what Mr. Magwood drew on the 39 map, although it's a much smaller scale. Miss 40 Albright, in Tahltan ethnoarchaeology noted these 41 boundaries coming down, and these two groups that 42 she's named, Nas Koten and Tlepanoten, and she notes 43 where they come down. I haven't included that, my 44 lord, I'm sticking with what was mapped here, but if 45 you look at Exhibit 849-20 and the extract from 46 Tahltan ethnoarchaeology, you will see that Miss 47 Albright, who isn't a map-maker, came pretty much bang 27259 Submissions by Mr. Willms 1 on in drawing her map to what Mr. Magwood came to. 2 And she also has a description from Teit's notes as 3 well. 4 I might just continue here, my lord, with Miss 5 Albright, because she deals with another group: 6 7 "Q I think you said earlier in your evidence 8 in chief that at one point in the past you 9 had done a review of the Kaska dena land 10 claim submission? 11 A Yes. 12 Q And when you reviewed that Kaska dena land 13 claim submission, did you review -- or do 14 an ethnoarchaeological review? Did you 15 review the ethnography? 16 A I reviewed the ethnography, yes. 17 Q And you recall the map that Marvin George 18 showed you before you plotted the 19 archaeological sites on the maps that have 20 been marked? Do you recall Marvin George's 21 map? 22 A Yes. 23 Q And did you recall from your review 24 of the Kaska dena land claims submission, 25 that part of that claim submission 2 6 overlapped the Marvin George map that you 27 looked at? 28 A I don't recall." 29 30 And the Kaska-Dene work that Miss Albright's referring 31 to there is what was mapped by Mr. Magwood. And my 32 friend makes a very good point there, my lord, about 33 boundaries changing, because once the Tsetsaut were no 34 longer there, and they're on the Suttles map but 35 they're not around anymore, I have no doubt that not 36 only did the Gitksan move up the river at the same 37 time the Tahltans moved down further, I don't have any 38 doubt of that at all, but I'm not here proving Tahltan 39 territory, my lord, I'm just saying that when you look 40 at the evidence, the evidence is inconsistent with my 41 friend's theory that since time immemorial this has 42 all been Gitksan territory; and more than that, 43 Gitksan house territory. The second point, my lord, 44 and this -- and I have an extract from the submissions 45 in this case, and -- and if I can just complete this, 46 my lord, and then if we can adjourn I'll be finished, 47 this is an extract from transcript 328, and the 27260 Submissions by Mr. Willms 1 submissions by Miss Mandell, and you will see in 2 particular, just pick up at line 7, Miss Mandell says: 3 4 "MS. MANDELL: But the collective jurisdiction 5 in its fullest form is exercised by all the 6 chiefs of the houses representing all of 7 the houses at feasts where territory is 8 passed or affirmed, which is headstone or 9 pole raising feasts." 10 THE COURT: So name or territory passing is all 11 Gitksan chiefs? 12 MISS MANDELL: Or Wet'suwet'en, yes. 13 THE COURT: Name or territory? 14 MISS MANDELL: Yes. Well, high chief's name 15 where territory passes. 16 THE COURT: All right. 17 MR. WILLMS: Is that Gitksan and Wet'suwet'en 18 or just Gitksan and just Wet'suwet'en? 19 THE COURT: All Gitksan chiefs for Gitksan 2 0 lands and names and all Wet'suwet'en 21 chiefs, I understand. 22 MR. WILLMS: What about the boundary of 23 territories? Does that apply to the 24 boundary too? I just don't know. 25 THE COURT: I don't know either. 26 MR. WILLMS: Between the Gitksan and 27 Wet'suwet'en. 2 8 THE COURT: Where there is a common boundary 29 MR. WILLMS: Where there is a common boundary, 30 what happens there? 31 MISS MANDELL: We can explain it more. Mr. 32 Grant's going to be dealing with that when 33 he deals with Gitksan and Wet'suwet'en 34 relations." 35 36 Well, we waited, my lord, and we didn't hear about 37 that. The point that your lordship may want to note 38 there, and this is from the evidence of Neil Sterritt, 39 my lord, at transcript 131 page 8060, and the question 40 starts at line 32 on page 8060 and it carries over to 41 page 8061, the answer to 8061, line 27, but I just 42 want to read a part of that where Mr. Sterritt says -- 43 he's talking about the Gitksan-Wet'suwet'en boundary 44 here, and I'm reading starting at -- on line 12 of 45 page 8061, and he -- well, a little higher he says: 46 47 "A And at that area there is a boundary at a 27261 Submissions by Mr. Willms 1 creek Sta Gapsit, and that Ax Weegasxw also 2 went as far as another creek called Xsu Gwi 3 Tsiik, and that in reviewing the 4 genealogical information, the House of 5 Djogaslee, is Lax Seel, and Frog, 6 the House of Wah Tek Teht, as I understand 7 it, is Gilhseyu, which is also Frog, and 8 that it's an old zone of interaction 9 between the Wet'suwet'en and the Gitksan, 10 and they will have to discuss that, but 11 there were very close relationships and at 12 this time the boundary is at Porphry Creek. 13 I don't, as a result of those discussions, 14 I can't predict whether they will define 15 the boundary is at Boulder Creek or Porphry 16 Creek, but the hereditary chief, Djogaslee, 17 has said that subject to further 18 discussions the boundary is at Porphry 19 Creek, and so have the persons from 20 Moricetown, in terms of their statements." 21 22 Now, he doesn't refer to a feast. And what I say, my 23 lord, here, is that the plaintiffs can't have it both 24 ways, I mean either boundaries, either the common 25 sifting of boundaries takes place at a feast, where 26 all of the relevant people are there, and that means 27 for Gitksan internal boundaries, as they argue, all 28 the Gitksan chiefs, Wet'suwet'en internal boundaries, 29 as they argue, all the Wet'suwet'en Chiefs. If 30 they're having a feast to discuss Gitksan and 31 Wet'suwet'en boundaries on the plaintiffs' theory, in 32 my submission, you should have both, and that has been 33 put into practise, my lord, because there were two 34 feasts between the Carrier-Sekani, and the 35 Wet'suwet'en, they had a feast at Moricetown and a 36 feast at Burns Lake to try to resolve the 37 boundary, so what I -- and they had feasts with the 38 Nishgas, and there is other evidence of feasting. My 39 friends say that they take territories in the north 40 because of peace feasts, and what I suggest, my lord, 41 is on the plaintiffs' own evidence the community that 42 is relevant to boundaries is the people on both sides 43 of the boundary, and on their own evidence they've 44 acknowledged that, on their own evidence they've 45 acknowledged that there has been no sifting on these 46 external boundaries. In fact, there is still 47 disagreement on the external boundaries. And so when 27262 Submissions by Mr. Willms 1 your lordship looks back at the test that my friend 2 set out earlier, or my colleague set out early from 3 Wigmore, from Phippson and from Milirrpum, that my 4 friends have not led any evidence that can be called a 5 community sifting of reputation, because they picked 6 the wrong community, they just picked themselves. 7 They didn't even include the Kitwancool chiefs, they 8 didn't even include the Babine chiefs in the sifting 9 process, even though those are part of the same group 10 in my submission. Those are my submissions on 11 overlapping claims. 12 THE COURT: Where do you suggest I file this? 13 MR. WILLMS: My lord, that can go immediately before 14 "Overlapping Claims". 15 THE COURT: Yes, all right. Right after page 23. All right, 16 thank you. We'll take the morning adjournment now. 17 THE REGISTRAR: Order in court. Court stands adjourned for a 18 short recess. 19 20 (MORNING RECESS TAKEN AT 11:10) 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 27263 Submission by Mr. Mackenzie (PROCEEDINGS RECONVENED AT 11:30 A.M.) REGISTRAR: Order in court. COURT: All right. Volume 2. Are we on schedule, Mr. Willms? WILLMS: My lord, by the end of Saturday or by the finish of argument on Saturday we'll be back on schedule. COURT: All right. WILLMS: We anticipate that we will be. COURT: All right. Mr. Mackenzie. MACKENZIE: My lord, my submissions now will relate to section (g). COURT: Am I finished with this yellow book? MACKENZIE: We're dealing now with the yellow book Volume 12. Does your lordship have Volume 12? COURT: No, not yet. MACKENZIE: Okay. COURT: Thank you. MACKENZIE: Does your lordship have the first page in your Volume 12, section (g) called "Addendum"? I'm sorry. Yes, addendum entitled "Summary." COURT: Yes. MACKENZIE: Madam registrar just put it before your lordship. And I've also handed up to your lordship an addendum which goes after page 23 in this section, just to confirm that, my lord. Madam registrar -- COURT: After page 23? MACKENZIE: Yes, my lord. Madam Registrar inserted that. Does your lordship have that? COURT: After page 23 there's an unnumbered page called -- MACKENZIE: Entitled — COURT: -- Gwinin Nitxw-Slamgeesh Lake. MACKENZIE: Yes, outline of argument. COURT: Yes. MACKENZIE: Yes, my lord. COURT: All right. MACKENZIE: My lord, as the heading of this section indicates, this section contains a detailed analysis of certain territories. I'm going to be making some general comments at the beginning of this section and then going into consideration of one of these territories, the Slamgeesh territory, at page 24. I'd like to start off, my lord, by saying, referring to the summary which I've given your lordship, I have summarized here, my lord, all the detailed evidence which is contained in this section. Now, my lord, if your lordship could make this note just on that 1 2 3 THE 4 THE 5 6 MR. 7 8 THE 9 MR. 10 THE 11 MR. 12 13 THE 14 MR. 15 16 THE 17 MR. 18 THE 19 MR. 20 21 22 THE 23 MR. 24 25 26 27 THE 28 MR. 29 30 THE 31 MR. 32 THE 33 MR. 34 THE 35 MR. 36 THE 37 MR. 38 39 40 41 42 43 44 45 46 47 27264 Submission by Mr. Mackenzie 1 summary: in our submission, the same exercise could 2 be done for every house territory. 3 This type of analysis requires a massive amount of 4 research, and so we have given five examples, and I'm 5 going to deal with those now, my lord. 6 Now, referring to the summary, my lord, the first 7 detailed analysis is of the Gyolugyet territory. I'm 8 going to now point your lordship to the location of 9 these territories on Map 9A and Map 9B. Now, the 10 Gyolugyet territory, my lord, is a massive territory 11 north-east of Kuldo which extends in three blocks 12 north-west up across the Nass River to the head of the 13 Taylor River. 14 THE COURT: Yes. 15 MR. MACKENZIE: And Mary McKenzie, Chief Gyolugyet, spoke about 16 that territory, and Richard Benson swore a territorial 17 affidavit relating to that territory. 18 THE COURT: That must be nearly a hundred miles from north to 19 south, is it? 20 MR. MACKENZIE: That's one of the largest of the territories, my 21 lord. 22 THE COURT: Maybe not a hundred. 23 MR. MACKENZIE: The next territory, my lord, that's dealt with 24 is Antgulilbix South at Date Creek. That's just -- 25 that's down near Kispiox, and I'm pointing it out to 26 your lordship. It's noted as Antgulilbix. 2 7 THE COURT: Yes. 28 MR. MACKENZIE: And it's in the area of Date Creek just west of 29 Kispiox. 30 THE COURT: Is it all west of the Kispiox River? 31 MR. MACKENZIE: Yes, my lord. 32 THE COURT: Yes. 33 MR. MACKENZIE: And if your lordship can see, this Antgulilbix 34 territory proceeds over to the Kitwancool territorial 35 boundary. 3 6 THE COURT: Yes. 37 MR. MACKENZIE: The Gwinin Nitxw territory, that is, the third 38 territory which is analysed and which I'll be going 39 through in detail, is in the north central area of the 40 land claim area just west of the Skeena River 41 confluence with the Sustut. 42 THE COURT: Yes. 43 MR. MACKENZIE: Does your lordship have that? 4 4 THE COURT: Yes. 45 MR. MACKENZIE: And your lordship will recall that we landed 46 there on the view of Slamgeesh Lake. 4 7 THE COURT: Yes. 27265 Submission by Mr. Mackenzie 1 MR. MACKENZIE: The other territory that I've analysed in this 2 section, my lord, is the Samooh-Tahtsa Lake territory, 3 and it's down in the south-west corner of the land 4 claim area. 5 THE COURT: Yes. 6 MR. MACKENZIE: Does your lordship have that? 7 THE COURT: Yes. 8 MR. MACKENZIE: And it's featured in around Tahtsa Lake, as the 9 name clearly indicates. 10 THE COURT: It's the one with two parts separated by an 11 intrusion from Woos' territory, W-o-o-s -- 12 MR. MACKENZIE: No, my lord. 13 THE COURT: — is it not? Oh, I'm sorry. You're right. I'm 14 looking at Goohlaht. Samooh is to the south of that. 15 MR. MACKENZIE: Yes, my lord. That's correct. And the final 16 territory that's discussed, my lord, is Madeek 17 (Kanoots), which is Buck Creek, and it's just south of 18 Houston in the Wet'suwet'en, central part of the 19 Wet'suwet'en land claim area. Does your lordship see 20 that? It's just west of Namox, Goosly Lake. It's 21 entitled Madeek. 22 THE COURT: Yes. 23 MR. MACKENZIE: And that is generally east, said to be east of 24 the Morice River and south of Houston. 25 THE COURT: Between Gisdaywa and Namox? 26 MR. MACKENZIE: Yes, that's correct, my lord. 27 THE COURT: Yes. There are two Madeek territories there. 28 MR. MACKENZIE: Yes, my lord. 29 THE COURT: Are you considering both of them or just the 30 southern one? 31 MR. MACKENZIE: Just the southerly one at Buck Creek — 32 THE COURT: Yes. 33 MR. MACKENZIE: — that flows through this territory into the 34 Bulkley River. 35 THE COURT: Yes. 36 MR. MACKENZIE: And so in following the summary now, my lord, I 37 am going to summarize the contents of the other 38 territories which I'm not analyzing in detail. The 39 first territory is Gyolugyet, and in my submission the 40 analysis contained here shows that Map 9A conflicts 41 with the Benson -- Richard Benson's territorial 42 affidavit and with other maps identified by Mary 43 McKenzie, who is Chief Gyolugyet, as showing the 44 correct boundaries. The territorial affidavit, in our 45 submission, on the basis of the cross-examination 46 evidence contains false statements and also conflicts 47 with the affiant, Mr. Benson's evidence on cross- 27266 Submission by Mr. Mackenzie 1 examination. And for quick reference, reference can 2 be made to the conclusions noted on my summary sheet. 3 Proceeding on to the next territory, my lord, 4 Antgulilbix South, which is Date Creek, and a brief 5 summary of the detailed analysis in that section is 6 that Map 9A, the boundaries, conflict with other maps 7 identified by Mary Johnson, Chief Antgulilbix, as 8 showing the correct boundaries of that territory. And 9 in our submission there is no evidentiary basis for 10 much, if not all, of the boundaries of that territory 11 as shown on Map 9A. And I refer again to the 12 conclusions for a quick reference. 13 Passing over the Slamgeesh territory, my lord, 14 which I'll return to, I go to Samooh-Tahtsa Lake, 15 which is in the Wet'suwet'en claim area. In our 16 submission, there is much evidence that this is the -- 17 this is a Cheslatta territory which should not be 18 included in the claim area. 19 And finally the Buck Creek-Madeek (Kanoots) 20 territory. In our submission, on cross-examination, 21 as the analysis shows -- this is Lucy Bazil -- the 22 affiant on the territorial affidavit testified that 23 the territorial boundary description was false. There 24 is no basis, in our submission, in the evidence for 25 the western boundary which is shown on Map 9B for that 26 territory. And I refer to the conclusions set out 27 there. 28 Now I return, my lord, to the Slamgeesh territory, 29 and this will be an example of the treatment by the 30 plaintiffs of these -- this territorial evidence and 31 the cross-examination that took place during the 32 trial. I have referred to this -- I'm still on the 33 summary, my lord, making comment on this territory. 34 I've referred to this territory several times through 35 my argument. This was the Walter Blackwater 36 territory, and this was the territory for which one of 37 the deceased declarants was Moses Stephens, Dawamuxw. 38 The summary of my submissions, my lord, Map 9A of the 39 the territory conflicts with several other maps in 40 evidence. There is considerable evidence that until 41 1988 most of the territory was attributed to Dawamuxw 42 or possibly Niist, the House of Niist, as opposed to 43 Gwinin Nitxw, which is a Wolf House from Kisgegas. 44 THE COURT: Niist and Dawamuxw, were they also Wolf Houses? 45 MR. MACKENZIE: No, my lord. Well, I'll qualify that. Dawamuxw 46 was a Fireweed House and Niist is in the Wolf Clan, 47 but the territory was said to be attributed to 27267 Submission by Mr. Mackenzie 1 Gaiyemlaxha, G-a-i-y-e-m-1-a-x-h-a, a chief in the 2 House of Niist. I deal with that in my submissions. 3 THE COURT: All right. 4 MR. MACKENZIE: Now proceeding to discuss that territory, my 5 lord, I move to page 23, just following page 23, the 6 outline of argument which has been inserted following 7 page 23 in your lordship's binder. And I'm going to 8 be referring to the yellow binder, my lord, Volume 12, 9 if your lordship would have it handy. Now, as I state 10 in my outline of argument, I'm going to deal first 11 with the introduction, but if your lordship will turn 12 over to the table of contents for this section -- it's 13 just after the outline of argument I have handed up 14 for lordship. You should have two pages of the 15 argument, then on page 24 the table of contents for 16 this section. 17 THE COURT: Yes. 18 MR. MACKENZIE: Yes. That sets out the organization of the 19 detailed evidence in this section. I am now going to 20 move to the introduction at page 25. 21 Now, my lord, as I have indicated, I'm starting at 22 paragraph 1 in the introduction on page 25. The 23 Slamgeesh area is in the north central Gitksan claim 24 area about 28 miles north of Kuldo. Mr. Marvin George 25 obtained the information to draw the Slamgeesh 26 boundaries, according to his evidence, from the 27 affidavit of Mr. Walter Blackwater which was sworn in 28 May 1988. And, my lord, during the argument on 29 reputation we've dealt with this affidavit and its 30 relationship -- it's Exhibit 605, Exhibit 605 -- 31 relating to the Slamgeesh territory. 32 Carrying on to the summary of the evidence on this 33 point, in our submission the Blackwater -- Mr. 34 Blackwater's evidence as to boundaries and claims to 35 the Slamgeesh territory is inadmissible, and, my lord, 36 we've made that submission on reputation, and, 37 alternatively, it's unreliable and should be accorded 38 no weight. 39 It is submitted, my lord, there is much evidence 40 contradicting Mr. Blackwater's territorial affidavit, 41 and in our submission much of the evidence was 42 probably obtained from living informants in addition 43 to, or more probably, in our submission, instead of 44 the deceased informants. And continuing on at that 45 paragraph, my lord, we've made those submissions under 4 6 the reputation argument. 47 Paragraph 5, my lord. The Blackwater -- Mr. 2726? Submission by Mr. Mackenzie 1 Blackwater's affidavit and Map 9A show the Slamgeesh 2 territory as being claimed by Gwinin Nitxw. However, 3 there is considerable evidence that until 1988 much of 4 the territory was attributed to Dawamuxw or possibly 5 Niist. 6 I start off, my lord, by referring your lordship 7 to the yellow binder at page -- it's tab 6, page 13. 8 Does your lordship have that reference? 9 THE COURT: 13? 10 MR. MACKENZIE: 13, yes, my lord. 11 MR. GRANT: C6? 12 MR. MACKENZIE: Yes, C6. And you'll see the page number — it 13 may be on the top right hand. It's a map that folds 14 out. 15 THE COURT: Yes. 16 MR. MACKENZIE: If your lordship could perhaps take that map out 17 and have it handy. That is an enlargement of the 18 Gwinin Nitxw territory as shown on Map 9A, and this is 19 the territory that we'll be discussing in detail in 20 this analysis. 21 MR. GRANT: This is from 9A? 22 MR. MACKENZIE: Yes. Just referring to this excerpt from 23 Exhibit 9A, my lord, your lordship will see Slamgeesh 24 Lake in the north central part of that territory. 2 5 THE COURT: Yes. 26 MR. MACKENZIE: And north of that is Damshilgwit Lake. 2 7 THE COURT: Yes. 28 MR. MACKENZIE: And flowing out of those two lakes and down into 29 the Skeena River is the Slamgeesh River. Does your 30 lordship have that? 31 THE COURT: Yes. Where do you say we stopped for lunch? 32 MR. MACKENZIE: Well, my lord, I say we stopped just south-west 33 of Slamgeesh Lake, probably near Shilahou Creek. 34 Probably just south of Shilahou Creek because, as your 35 lordship will recall, we were on a flat spot in that 36 case -- in that area. 37 THE COURT: Yes. 38 MR. MACKENZIE: And just to the north of us was a swampy area. 39 In fact, we walked through the swampy area. 4 0 THE COURT: Yes. 41 MR. GRANT: Well, is this — I'm just confused. Is this a 42 lateral -- the north is at the top, so this is a 43 reproduction of 9A, not from one of the other maps? 44 MR. MACKENZIE: Yes, this is directly from 9A, my lord. 45 MR. GRANT: Okay. 46 MR. MACKENZIE: The reason I'm referring to these locations, my 47 lord, is they appear in all of the evidence that will 27269 Submission by Mr. Mackenzie 1 be discussed. And flowing into Slamgeesh Lake from 2 the west, my lord, is the Shilahou Creek. 3 THE COURT: Yes. 4 MR. MACKENZIE: And I note down in the southern part of the 5 territory just north of the Skeena River is a hill 6 called Babiche Hill. 7 THE COURT: Yes. 8 MR. MACKENZIE: And just to the east of Babiche Hill is Kitangas 9 Creek flowing into the Skeena River. 10 THE COURT: That's hard to read. That's K-i-t — 11 MR. MACKENZIE: — a-n-g-u-s. 12 THE COURT: Yes. 13 MR. MACKENZIE: Your lordship will recall we flew over along the 14 Skeena River past these areas. 15 THE COURT: And that's the area that's thought to be the site of 16 the Wild Rice Village? 17 MR. MACKENZIE: In that general area around the vicinity of — 18 just -- probably just a little east of Kitangas Creek. 19 I understand that is the general area. 20 MR. GRANT: Where it empties into the Skeena. 21 THE COURT: We flew over it, and there's a cleared area there 22 somewhere. 2 3 MR. GRANT: Yes. 24 MR. MACKENZIE: Yes. 25 THE COURT: Appearing to be somewhat similar, from the air at 26 least, to Kuldo. All right. Thank you. 27 MR. MACKENZIE: Yes, my lord. Two more geographical features to 28 which I wish to refer in the northern part of the 29 territory. The Slamgeesh River flows out of the 30 north-eastern part of the territory into Slamgeesh 31 Lake. Do you see that, my lord? 32 THE COURT: Yes. 33 MR. MACKENZIE: And the Damshilgwit Creek flows from the north 34 outside the boundaries of the territory down into 35 Damshilgwit Lake. Does your lordship have that? Just 36 flowing into Damshilgwit Lake, my lord. 37 THE COURT: Yes. 38 MR. MACKENZIE: Yes. And I just note here, my lord, that that 39 creek is shown to be outside the territory on this 9A, 40 and there's a small lake -- 41 MR. GRANT: Part of it's inside. 42 MR. MACKENZIE: Yes, that's right. There's a small lake 43 between -- or just north of Damshilgwit Lake. There's 44 two lakes there, and that will also be relevant. That 45 is the territory that we're discussing, my lord. 46 Now, keeping that map, my lord, in hand, I 47 continue on at paragraph 6 with my summary of the 27270 Submission by Mr. Mackenzie 1 evidence. And I refer your lordship to the yellow 2 binder at tab 6, page 1. 3 THE COURT: Yes. 4 MR. MACKENZIE: Yes, my lord. That is Exhibit 774, dated 5 November 18, 1982, and there is a sketch. This is an 6 interview note by Neil Sterritt with Mr. Solomon Jack. 7 There is a sketch there indicating that Moses Stephens 8 is located on -- 9 THE COURT: I'm sorry, I'm not with you. 10 MR. MACKENZIE: I'm sorry. It's tab 6, page 1, my lord. 11 THE COURT: Well — 12 MR. MACKENZIE: It should be — it should be a data sheet, 13 topographic survey data sheet. It's the same tab that 14 the map we're looking at came out of, my lord. 15 THE COURT: Yes. All right. I've got it. 16 MR. MACKENZIE: Just pointing out, my lord, this is — there's a 17 sketch in the upper right-hand corner showing Moses 18 Stephens located on part of this sketch area and 19 Gwinanitx located on another part of the sketch area. 20 Does your lordship see that? 21 THE COURT: Yes. 22 MR. MACKENZIE: In my submission, my lord, Moses Stephens' name 23 is beside what appears from the evidence to represent 24 the Slamgeesh River and Gwinanitx is beside what 25 appears from the evidence to be Kitangas Creek. And 26 the body of the note indicates that Dawamuxw, who is 27 Moses Stephens, has the territory on the western side 28 of the -- of that territory. And continuing on, my 29 lord, to -- 30 THE COURT: You say that that line left of Gwinanitx is the — 31 MR. MACKENZIE: Kitangas Creek. 32 THE COURT: Kitangas Creek you think it is? 33 MR. MACKENZIE: I'm saying that on the basis of the evidence. 34 I'll be referring to that in more detail. 35 THE COURT: Yes. All right. All right. Yes. Thank you. 36 MR. MACKENZIE: And I'm suggesting that that dotted line is the 37 boundary between the two -- 3 8 THE COURT: Yes. 39 MR. MACKENZIE: — areas there. And carrying on to the next — 40 THE COURT: What was Moses Stephens' House? 41 MR. MACKENZIE: He was Dawamuxw, Chief Dawamuxw, Fireweed House. 42 The thrust of all this evidence, my lord, is to show 43 that the overwhelming majority of witnesses and the 44 documentary evidence attributes this territory to 45 Dawamuxw and then all of a sudden, in our submission, 46 it changes in about 1988. 47 THE COURT: Yes. All right. 27271 Submission by Mr. Mackenzie MACKENZIE: And I'm just going to go through these maps quickly because they graphically show this documentary evidence. Moving to tab 6, page 3, this is a -- this is a sketch. Does your lordship have page 3? COURT: Yes. MACKENZIE: This is a sketch on the left-hand margin of Exhibit 725. 725 was one of Neil Sterritt's working maps, and Neil Sterritt identified this sketch as his handwriting in his testimony. And at this -- on this sketch Neil Sterritt -- GRANT: Sorry, what tab? MACKENZIE: It's tab 6, page 3. On this sketch Neil Sterritt has written: "Dec. 15, '82 at Sam Hope Feast. Walter Blackwater says Dawamuk comes up creek to main Branch & Gwinanitx on other side." And so if your lordship looks at that sketch, your lordship will see Slamgeesh identified as that creek flowing -- creek flowing into the Skeena and Dawamukw noted just where the creek turns there, then to the east Gwinanitx noted, and then further east Gitangas Creek identified. Does your lordship have those references? COURT: No, I don't see any of those. MACKENZIE: My lord — COURT: Are we looking at the north or south of Foster Creek? MACKENZIE: Excuse me, my lord, we're looking at a sketch on the margin -- COURT: Yes. MACKENZIE: — of an exhibit at tab 6, page 3. COURT: Yes, I've got that. I've got the margin where it says December 15th Sam Hope -- oh, you're talking about the sketch, you're not talking about the map. MACKENZIE: That's correct, my lord. COURT: Oh, all right. Yes, I see. I'm sorry, I was looking at the map. MACKENZIE: Sorry, my lord. COURT: Yes, I see that. MACKENZIE: Just — my lord, this is a — this shows Dawamuxw in that area and the division -- COURT: Yes. MACKENZIE: -- at that time, according to -- apparently, according to Mr. Sterritt's note, December 15, 1982. COURT: That would be the Slamgeesh River, would it? MACKENZIE: Yes, my lord. COURT: Or creek. Yes. MACKENZIE: Yes. And, my lord, that's Exhibit 725. That's on Exhibit 725. 1 MR. 2 3 4 5 THE 6 MR. 7 8 9 10 11 MR. 12 MR. 13 14 15 16 17 18 19 20 21 22 THE 23 MR. 24 THE 25 26 MR. 27 28 THE 29 MR. 30 THE 31 32 33 MR. 34 THE 35 36 MR. 37 THE 38 MR. 39 40 THE 41 MR. 42 43 THE 44 MR. 45 THE 46 MR. 47 27272 Submission by Mr. Mackenzie 1 THE COURT: Yes. 2 MR. MACKENZIE: And then, my lord, carrying on to tab 6, page 5 3 and page 5A. Page 5, my lord, is a black and white 4 copy of a section of this same map, Exhibit 725, and 5 page 5A is a colour reproduction of that area 6 enlarged, and I wish to refer that to your lordship -- 7 your lordship to that. 8 MR. GRANT: Which one? 9 MR. MACKENZIE: This is page 5A. This is Exhibit 725. If your 10 lordship could open up the coloured map, the north 11 direction will be towards the rings on your lordship's 12 binder. I wish to direct your lordship to this map. 13 My lord, this is one of Neil Sterritt's working maps 14 on which he recorded information he obtained from the 15 various informants to whom he spoke, and this area 16 that has been enlarged is the Slamgeesh area. Mr. 17 Sterritt, if your lordship can note here, has coloured 18 a boundary in purple on this area, which he used as a 19 code to denote the Fireweed Clan territory. 20 THE COURT: And the colouring ends on the Slamgeesh Creek, does 21 it? 22 MR. MACKENZIE: No, my lord, the colouring goes over to Gitangas 23 Creek. 2 4 THE COURT: Oh. 25 MR. MACKENZIE: And Mr. Sterritt has coloured the various creeks 26 within the territory as well as the boundaries around 27 the territory. Does your lordship see that? 28 THE COURT: I suppose the blue does extend over east of Gitangas 29 Creek although -- 30 MR. MACKENZIE: No, Gitangas Creek is the boundary here, my 31 lord, on this map, Exhibit 725. Can your lordship see 32 that the purple colour goes down Gitangas Creek to the 33 Skeena and along the Skeena to the west over to the 34 margin? Does your lordship see that? 35 THE COURT: Well, are you saying the whole thing is coloured 36 blue or purple? 37 MR. MACKENZIE: Purple. That's correct, my lord. I'm saying 38 the purple boundary goes down Gitangas Creek and 39 follows along the Skeena to the west. 4 0 THE COURT: I can't follow what you're saying. 41 MR. MACKENZIE: Sorry, my lord. When I said Gitangas Creek, I'm 42 sorry, I meant -- I was wrong. I misspoke. The 43 boundary here is east -- 44 THE COURT: I can't -- the colours are so vague and uncertain 45 that I can't follow you. 46 MR. MACKENZIE: Yes, my lord. Referring to Exhibit 725, your 47 lordship will see that the boundary is coloured in 27273 Submission by Mr. Mackenzie 1 purple? 2 THE COURT: Yes. All right. 3 MR. MACKENZIE: I'm referring now to the north-east boundary of 4 this territory. 5 THE COURT: Yes. 6 MR. MACKENZIE: And the boundary continues south along a creek 7 which is east of Gitangas Creek to the Skeena River. 8 THE COURT: Yes. All right. 9 MR. MACKENZIE: And then the purple boundary continues along the 10 Skeena River west to the margin of the map, which is 11 Exhibit 725. 12 THE COURT: Yes. 13 MR. MACKENZIE: And at that margin is noted in Mr. Sterritt's 14 handwriting "Dawamuk." 15 THE COURT: Yes. 16 MR. MACKENZIE: Which refers to the boundary marked in purple. 17 THE COURT: Yes. 18 MR. MACKENZIE: That boundary then continues over on to the next 19 map, which adjoins this map and is Exhibit 726. It's 20 simply -- and I'll refer that to your lordship. It 21 will be -- 22 THE COURT: In here? 23 MR. MACKENZIE: Yes, my lord. It's the next map, which is tab 24 6, page 7A. And this is an enlargement of Exhibit 726 25 and a continuation of the purple boundary and the rest 26 of this territory as indicated on Mr. Sterritt's 27 working map. And your lordship can see, for example, 28 Shaslomal Creek, which, as your lordship will see, 29 flows into the -- flows into the Slamgeesh Creek in 30 the centre of the territory. In addition it's noted 31 on this map Dawamuk, showing that Dawamuxw is 32 attributed to this territory. And what we're looking 33 at now on Exhibit 726 is simply the western portion of 34 this Slamgeesh territory as it appeared on Mr. 35 Sterritt's working maps. 36 THE COURT: Yes. All right. Thank you. 37 MR. MACKENZIE: The point that is being made, my lord, in each 38 of these comments is that this is attributed to 39 Dawamuxw-Fireweed Clan, this area. 40 MR. GRANT: I think it's important, my lord, when you look at 41 725 that the blue -- that that cross-hatching of 42 boundary not only goes where my friend says along the 43 Skeena but also goes up Slamgeesh River and goes up 44 other tributaries to Slamgeesh River. And if you can 45 see on 725 a number of cross-hatched blue, indicative, 46 and I believe Mr. Sterritt testified to this, that 47 this was a working map and that these were different 27274 Submission by Mr. Mackenzie 1 attempts of him just trying to work out the 2 boundaries. 3 THE COURT: Yes. 4 MR. GRANT: So that it's not as simple as my friend says on 5 this, that there's one place marked. He's drawing -- 6 he's cross-hatching at different places trying to work 7 out what he's been told. 8 MR. MACKENZIE: My lord, I disagree with that characterization 9 of the evidence. 10 THE COURT: All right. 11 MR. MACKENZIE: But I do agree with my friend that the purple 12 cross-hatching on the various watercourse does 13 indicate that this is Fireweed Clan and it's all 14 Dawamuxw territory. 15 THE COURT: Yes. 16 MR. MACKENZIE: Now, my lord, I date this Exhibit 725 — 17 THE COURT: Which one? 18 MR. MACKENZIE: I date this Exhibit 725 at about May 1983. Yes, 19 this is -- I'll deal with this in the evidence, but I 20 said -- it's in my summary of evidence at paragraph 21 6(c), and I'll summarize. The reason I say that is 22 because the information on this map reflects the 23 information which Mr. Sterritt received from Walter 24 Blackwater during an interview in May 1983. 2 5 THE COURT: Yes. 26 MR. MACKENZIE: Then I continue over, my lord, to — and still 27 in the same tab and still summarizing the documentary 28 evidence of the maps, I continue over to page 9 of tab 29 6. Does your lordship have that page? 3 0 THE COURT: Yes. 31 MR. MACKENZIE: My lord, this is an enlarged excerpt from 32 Exhibit 102, and I date that October 17, 1985. Does 33 your lordship have that point? And -- yes. Now, the 34 territory shown on this map, my lord, is 3.F.25. Does 35 your lordship have that? And in this case north would 36 be to the top of your lordship's binder and 3.F.25 is 37 in the centre of the excerpt. 38 THE COURT: 3.F.25 is a trapline number, is it? 39 MR. MACKENZIE: No, my lord, 3.F.25, as will appear from the 40 following page, is a code reference that's set out on 41 page 10. And it's significant that the code on page 42 10 is -- 3 is Giskaast or Fireweed. I'm referring to 43 page 10 just following that map, my lord. "F" is 44 Kispayaks, for the village. 4 5 THE COURT: Yes. 46 MR. MACKENZIE: And 25 is Dawamux. Your lordship will recall 47 that I — 27275 Submission by Mr. Mackenzie 1 THE COURT: Yes. 2 MR. MACKENZIE: -- mentioned Kispiox when I was discussing Mr. 3 Stephens' declaration and the reputation evidence. I 4 mentioned events that were occurring in the Kispiox 5 area. Now, page 9 and 10, as I have indicated, my 6 lord, are enlargements from Exhibit 102. And, my 7 lord, in summary, this continues the attribution to 8 Dawamuxw-Fireweed Clan and it also -- 9 THE COURT: I haven't placed this. 10 MR. MACKENZIE: Does your lordship see 3.F.25? 11 THE COURT: Yes. 12 MR. MACKENZIE: If your lordship will look just at that number, 13 your lordship will see the Gitksan terms Xsi, X-s-i, 14 Galaanhl, G-a-l-a-a-n-h-1, Giist, G-i-i-s-t, which is 15 the Slamgeesh Creek. Does your lordship have that 16 reference? 17 THE COURT: Yes. 18 MR. MACKENZIE: Yes. 19 THE COURT: All right. Thank you. 20 MR. MACKENZIE: And your lordship will also see that the 21 boundary on this -- on this map is now west of Xsaan 22 Gas Creek. It goes along Slamgeesh Creek and then 23 heads north-east. Does your lordship see that? 24 THE COURT: Yes. This is the Skeena running across the bottom, 25 is it? 26 MR. MACKENZIE: Yes, my lord, that's correct. Does your 27 lordship see -- Xsaan Gas Creek is the Kitangas Creek 28 there, X-s-a-a-n G-a-s, flowing down into the Skeena 29 River just -- just near the Slamgeesh River there. 30 THE COURT: Xsaan Gas is Kitangas? 31 MR. MACKENZIE: It's my submission, my lord. 32 THE COURT: Well, I'm having some trouble in deciding whether 33 that area between -- well, the area east of Slamgeesh 34 Creek and north of the Skeena is within this 3.F.25 or 35 outside it. 36 MR. MACKENZIE: It's within it, my lord. The 3.F.25 is the 37 Slamgeesh area, and the watershed of the Slamgeesh 38 River, with some exception, generally speaking is 39 included in this particular territorial depiction. 40 THE COURT: What is this dark line that runs more or less east 41 and west across the territory starting at about the 42 letter "G" from Giist? 43 MR. MACKENZIE: That's the boundary, my lord. 44 THE COURT: That is the boundary? 45 MR. MACKENZIE: Yes. The boundary is depicted on this map. 46 Sorry. 47 MR. GRANT: As depicted on this map, my lord, that -- where 27276 Submission by Mr. Mackenzie 1 Gitangas Creek is, Xsaan Gas, that would be attributed 2 to I.E.4, which is Gwinin Nitxw. 3 THE COURT: Yes. 4 MR. GRANT: That boundary — that part south of that dark line 5 is attributed to Gwinin Nitxw. 6 THE COURT: Yes. All right. 7 MR. MACKENZIE: Yes, my lord. I misunderstood your lordship's 8 question. I.E.4 is the Gwinin Nitxw territory, and it 9 extends up past the -- north of the Skeena. 10 THE COURT: Yes. All right. 11 MR. MACKENZIE: So, my lord, this is continuing the point that 12 this area is attributed to Dawamuxw-Fireweed Clan, and 13 the boundaries are -- the location of the boundaries 14 change in these various depictions. 15 Now, I have another point about this Exhibit 102, 16 my lord. The Gitksan place-names mentioned on this 17 map were put on here by Marvin George, who drew the 18 map, and he got that information from Mr. Sterritt's 19 data sheets. Mr. Sterritt in turn got the information 20 from his informants, including Walter Blackwater in 21 the interview of May 1983. So, again, all these 22 geographical points are here included in the 23 Dawamuxw-Fireweed area. 24 Now, the next map, my lord, is -- the next map to 25 which I wish to refer is Exhibit 420, which is in the 2 6 map binder. 27 THE COURT: Can you tell me, this legend from page 10 — 28 MR. MACKENZIE: Yes, my lord. 2 9 THE COURT: — is from where? 30 MR. MACKENZIE: It's Exhibit 102, my lord, the map. That's the 31 map legend. 32 THE COURT: Of Mr. Sterritt's working map? 33 MR. MACKENZIE: No, my lord. This is the — Exhibit 102 is the 34 map that was prepared in October 1985 by Marvin 35 George, and the evidence is that it was obtained -- 36 the information was obtained from Mr. Sterritt's 37 working maps and data sheets. It's also -- there's a 38 depiction of that in the 646 series. 39 THE COURT: All right. Now you want to go to — 40 MR. MACKENZIE: Now I'm going to refer to Exhibit 420, my lord, 41 which is in the map binder. These -- the map binder 42 is Volume 13, and Exhibit 420 -- these maps are in 43 order of exhibit number, but 420 is about halfway 44 through the pile. 45 THE COURT: Yes, I've got it. 46 MR. MACKENZIE: This is Solomon Jack's interrogatories map. 47 THE COURT: What did you say this was again? 27277 Submission by Mr. Mackenzie 1 MR. MACKENZIE: This is Solomon Jack's interrogatories map. Mr. 2 Jack -- 3 THE COURT: Just a moment, please. 4 MR. MACKENZIE: Yes, my lord. 5 THE COURT: Yes. 6 MR. MACKENZIE: Now, my lord, I'll have to orient your lordship 7 on this map. Your lordship can see the north 8 direction on the left-hand side of the map. I'm 9 sorry, the right-hand side, my lord. 10 THE COURT: Yes. 11 MR. MACKENZIE: So the narrow point is heading — is the 12 northern direction. 13 THE COURT: Yes. 14 MR. MACKENZIE: And right through the centre of the map, my 15 lord, runs the Skeena River, called Xsan, X-s-a-n. 16 It's the large -- it's the large river running through 17 the centre of the map from west to east. 18 THE COURT: Yes. 19 MR. MACKENZIE: Actually, of course, it runs the other way. 20 What we have here, my lord, is a depiction of Solomon 21 Jack territory, and you can see, my lord, it extends 22 north of the Skeena River. 23 THE COURT: I'm not sure I've found the Skeena River yet. 24 MR. MACKENZIE: Well, it's the main river flowing through the 25 centre of the map, my lord. 26 MR. GRANT: For the north you can see Gitangas marked on it, my 27 lord. 28 THE COURT: Yes, I see it. Yes. 29 MR. MACKENZIE: All these features that we've been looking at on 30 the other maps are marked on this one, my lord. And 31 on this map, if your lordship can see, the boundary 32 goes along the Slamgeesh River. 33 THE COURT: Which boundary? 34 MR. MACKENZIE: Just north of the Skeena, my lord. 35 THE COURT: Yes. 36 MR. MACKENZIE: The boundary comes along the Skeena and then it 37 heads north. 38 THE COURT: Well, I'm sorry. 39 MR. MACKENZIE: Perhaps I could assist your lordship. 40 THE COURT: I'm absolutely lost. 41 MR. MACKENZIE: Yes. These are just — referring your lordship 42 to Exhibit 420, which is Solomon Jack's 43 interrogatories map, I'm pointing out the Skeena 44 River, which runs across the centre of the map, and 45 Gitangas, which is located about the centre of the map 46 on the Skeena River, and now I'm pointing your 47 lordship to the Slamgeesh River, which flows into the 2727? Submission by Mr. Mackenzie 1 Skeena River at the centre of this map. And that is 2 the Slamgeesh River that -- it flows down from 3 Slamgeesh Lake, as we've indicated in the other maps. 4 And the point on this interrogatories map is the -- 5 THE COURT: Boundary along the Slamgeesh River. 6 MR. MACKENZIE: The boundary along the Slamgeesh River and 7 extending north. And so the Gwinin Nitxw territory is 8 shown on this map to be in this area east of the 9 Slamgeesh River, and on this map is indicated west of 10 the Slamgeesh River the name of Dawamuxw. 11 THE COURT: Yes. All right. Yes. Should I put it away? 12 MR. MACKENZIE: Yes, my lord. And so — 13 THE COURT: Why did Mr. Solomon Jack swear this affidavit? 14 MR. MACKENZIE: Mr. Solomon Jack swore the affidavit, and it 15 answered interrogatories. 16 THE COURT: On behalf of which House? 17 MR. MACKENZIE: On behalf of the House of Gwinin Nitxw. 18 THE COURT: Yes. 19 MR. MACKENZIE: And he is Chief Gwinin Nitxw. 2 0 THE COURT: Yes. 21 MR. GRANT: The affidavit referred to the approximate 22 boundaries, my lord. You're familiar with that -- 2 3 THE COURT 2 4 MR. GRANT 2 5 THE COURT Yes. -- in the affidavits. Yes. 26 MR. MACKENZIE: My lord, we're still continuing through the 27 summary of the documentary evidence at page 27 of my 28 submissions in the summary. I have dealt with Exhibit 29 420, Solomon Jack's interrogatories map, which is 30 August 1986. Now, my lord, the next map I'm not going 31 to pull out because it's another interrogatories map. 32 Exhibit 605A-2 is the correct reference to that map, 33 and that's a map of August 7, 1986. 34 THE COURT: Whose interrogatories? 35 MR. MACKENZIE: And that's Robert Stephens, who is Chief Wii 36 Minosik, W-i-i knew word M-i-n-o-s-i-k. 37 THE COURT: Yes. 38 MR. MACKENZIE: His territory is just to the north. If your 39 lordship still has the enlargement of 9A, Wii 40 Minosik's territory is not shown on this enlargement, 41 but your lordship can see Wii Minosik Lake just to the 42 north of the area. 4 3 THE COURT: Yes. 44 MR. MACKENZIE: That's the — the Damdochax Lake-Blackwater 45 area. And in my submission that map shows much the 4 6 same thing that -- the name Dawamuxw appears in the 47 Slamgeesh area on that map. 27279 Submission by Mr. Mackenzie COURT: Same as 420? MACKENZIE: Yes, my lord. And then next referring to Exhibit 5, which is at tab 6, page 12. Tab 6, page 12, my lord. COURT: Yes. MACKENZIE: This is an enlargement of the area as shown on Exhibit 5, May 20, 1987. COURT: Enlargement of what? MACKENZIE: Of Exhibit 5, my lord. COURT: Yes. MACKENZIE: And this is the map that was put into evidence on May 20, 1987. COURT: Yes. MACKENZIE: Now, on this map the territory is attributed to Niist, Chief Gaiyamlaxha, spelt here G-a-i-y-a-m-1-a-x-h-a. And I point out that the boundaries -- the eastern boundary has changed here, is different from the earlier boundaries which we've been looking at on these other maps. But I won't analyse that in detail except to make that submission and say that that's based on an analysis of Exhibit 5, comparing it with the previous maps. COURT: What is this word? I guess it ends with the h-a, does it? MACKENZIE: Yes, my lord. COURT: What's beyond is blurred, but that's not part of it? MACKENZIE: No, it's not, my lord. COURT: And Gaiyamlaxha is? MACKENZIE: That's Charles — Charles Stephens. And Charles Stephens was Moses Stephens' son. COURT: And he's a chief in the House of Niist, is he? MACKENZIE: Yes, he is. And the reason for that is that Moses Stephens -- GRANT: He was. MACKENZIE: I'm sorry. Moses Stephens was married to Esther Stephens, who was in the House of Niist, and, of course, his -- their sons are in Niist as well. So those are all the maps, my lord, that show the difference in attribution of ownership and the varying boundaries which have appeared in the evidence. COURT: What do you say this eastern boundary is on this map? MACKENZIE: Well, this eastern boundary on this map is well to the east of Gitangas Creek, in my submission. GRANT: I think it's the same as on 9A, my lord. COURT: All right. Thank you. MACKENZIE: Well, my lord, now having just summarized -- 1 THE 2 MR. 3 4 5 THE 6 MR. 7 8 THE 9 MR. 10 THE 11 MR. 12 13 THE 14 MR. 15 16 17 18 19 20 21 22 23 THE 24 25 MR. 26 THE 27 MR. 28 THE 29 MR. 30 31 THE 32 MR. 33 34 MR. 35 MR. 36 37 38 39 40 41 THE 42 43 MR. 44 45 MR. 46 THE 47 MR. 27280 Submission by Mr. Mackenzie 1 gone quickly through the maps we won't have to deal 2 with them again. I'll return to my outline of 3 argument, which is at the beginning of this section, 4 the outline of argument for this Slamgeesh Lake area. 5 I'm going to now go through that. I completed 6 paragraph 2, the summary of evidence. Now, point 3 7 deals with Walter Blackwater's territorial affidavit 8 and cross-examination. 9 THE COURT: What page would that be at in your text? 10 MR. MACKENZIE: It just follows page 23, my lord, in the summary 11 insert that your lordship put in. It's the outline of 12 argument. You could call it 23A, my lord. 13 THE COURT: Yes. Thank you. 14 MR. MACKENZIE: I'm going to summarize the evidence now, my 15 lord. I'm going to paragraph 3 in that outline of 16 argument, and this deals with Walter Blackwater's 17 territorial affidavit and cross-examination. And I'm 18 going to summarize that, my lord, by saying that in 19 Walter Blackwater's territorial affidavit he stated 20 that he had been told by deceased informants that this 21 area was owned by Gwinin Nitxw, and we dealt with that 22 territorial affidavit on the reputation argument. 2 3 THE COURT: Yes. 24 MR. MACKENZIE: In his cross-examination on the territorial 25 affidavit Mr. Blackwater maintained his position that 26 this was Gwinin Nitxw. He denied that it was claimed 27 or had been owned by Dawamuxw. So as I say, my lord, 28 the territorial affidavit is the basis of 9A. 29 Now, moving to paragraph 4 of my outline, until 30 1988 the Slamgeesh territory was generally believed to 31 belong to Dawamuxw. 32 MR. GRANT: Could my friend clarify when he says generally 33 believed is he saying believed by all the Gitksan or 34 by Mr. Sterritt or something in between? 35 MR. MACKENZIE: Well, my lord, my submission is generally 36 believed by Mr. Sterritt and all the informants. 37 THE COURT: Who led him to that belief. 38 MR. MACKENZIE: Who led him to that belief. 39 THE COURT: Whoever they were. 40 MR. MACKENZIE: Well, I've listed the informants, my lord, and 41 in my detailed notes I actually analyse the comments 42 of each of these informants. 43 And so I say the Slamgeesh territory was generally 44 believed to belong to Dawamuxw. The first heading I 45 have there, my lord, is Mr. Sterritt's working map and 46 data sheets, and without going into those in detail, 47 in my analysis I actually pull out the data sheets and 27281 Submission by Mr. Mackenzie 1 indicate that several of these geographical points 2 that appear in the Gwinin Nitxw territory today are 3 indicated on Mr. Sterritt's working map and data 4 sheets as being owned by Dawamuxw-Fireweed Clan. 5 THE COURT: You say that subparagraphs (a) to (e) are Mr. 6 Sterritt's informants, do you? 7 MR. MACKENZIE: Yes, my lord. And I set out the specific — the 8 references in the detailed analysis. Now, 9 subparagraph (b), my lord, was the subject of 10 considerable cross-examination at this trial. I refer 11 to Walter Blackwater's 1983 interview. Your lordship 12 will recall a tape was finally obtained of that 13 interview and a transcript was prepared, and Mr. 14 Sterritt was cross-examined on that transcript, and he 15 identified it as being correct and representing what 16 Mr. Blackwater said to him in 1983. In summary, my 17 lord, in 1983 Mr. Blackwater told Mr. Sterritt that 18 this was Dawamuxw territory. Mr. Blackwater said that 19 Dawamuxw owned Slamgeesh Creek and this entire area. 20 MR. GRANT: Is the transcript of the tape in the yellow book? 21 MR. MACKENZIE: There are excerpts from the transcription 22 contained in the yellow book, but the entire 23 transcript is not in the yellow binder. 24 MR. GRANT: What exhibit number is it? 25 MR. MACKENZIE: The Exhibit number is Exhibit 745. Now, my 26 lord, I have just stated the main difference between 27 Mr. Blackwater's statement in 1983 and his territorial 28 affidavit, but I submit, and the evidence is clear on 29 this, that there were many other things that Mr. 30 Blackwater said in 1983 which were completely 31 different from his territorial affidavit. 32 THE COURT: And the tape was 1983? 33 MR. MACKENZIE: Yes, my lord, May 1983. 34 THE COURT: Is it convenient to continue this after lunch? 35 MR. MACKENZIE: Yes, my lord. 3 6 THE COURT: Thank you. 37 THE REGISTRAR: Order in court. Court stands adjourned until 38 two o'clock. 39 4 0 (PROCEEDINGS ADJOURNED AT 12:30 P.M.) 41 42 43 44 45 46 47 27282 Submission by Mr. Mackenzie 1 I hereby certify the foregoing to 2 be a true and accurate transcript 3 of the proceedings transcribed to 4 the best of my skill and ability. 5 6 7 8 9 10 Leanna Smith 11 Official Reporter 12 UNITED REPORTING SERVICE LTD. 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 27282 Submisions by Mr. Mackenzie 1 (PROCEEDINGS RESUMED AT 2:00 O'CLOCK P.M.) 2 3 THE COURT: C-2 of part 4? I have got an addition here, where 4 do you want me to insert it? 5 MR. MACKENZIE: This is Mr. Goldie's. 6 THE COURT: We will wait. We won't speak any more until we are 7 spoken to. 8 Mr. Mackenzie? 9 MR. MACKENZIE: My lord, I was in the midst of a discussion of 10 the Slamgeesh Lake territory, and I am following the 11 outline of argument which is in the -- inserted in the 12 summary after page 23, section G, 5(g), and I have 13 just dealt with the subparagraph 4(b) in the outline. 14 I was advising your lordship that in 1983 Walter 15 Blackwater had that interview with Mr. Sterritt, and 16 in that 1983 interview Mr. Blackwater advised Mr. 17 Sterritt that Dawamuxw owned the Slamgeesh area. And 18 that, as I pointed out to your lordship, differs or 19 conflicts with Mr. Blackwater's 1988 territorial 20 affidavit, saying this is Gwinin Nitxw's territory. 21 I might say, my lord, again by way of explanation, 22 that in this outline of argument I have indicated the 23 paragraphs in the summary where this material is dealt 24 with in detail. 25 Now, just another point under this, on this 1983 26 interview, my lord, by 1974, all the -- 2 7 THE COURT: '74? 28 MR. MACKENZIE: By 1974 all the informants had been — had died, 29 the deceased informants as set forth in Mr. 30 Blackwater's territorial affidavit relating to this 31 territory. 32 THE COURT: That's 605, is it? 33 MR. MACKENZIE: Exhibit 605, paragraph 39. 34 Then Mr. Sterritt, another point to be made in 35 relation to that 1983 interview, Mr. Sterritt 36 testified that sometime in 1987 or 1988 Walter 37 Blackwater came to him changing his view that this was 38 Dawamuxw's territory. That's set out in paragraph 40 39 in my submissions. So all of a sudden, in my 40 submission, the evidence changed: now it's Gwinin 41 Nitxw's territory, according to Walter Blackwater and 42 Neil Sterritt in early 1988. 43 Going to -- carrying on in this outline to Mr. 44 Sterritt's informants, all these informants advised 45 Mr. Sterritt that this was Dawamuxw territory and it's 46 significant who these informants are. The first is 47 Arthur Kusick, he was the Chief Gwinin Nitxw, the 27283 Submisions by Mr. Mackenzie 1 former Chief Gwinin Nitxw. And it was his -- and this 2 information was given in 1982. And Mr. Sterritt 3 indicated that Mr. Kusick was speaking about the 4 Slamgeesh Lake territory and said the House of Gwinin 5 Nitxw had lost it because someone else had used it so 6 long that they kept it. So that was Mr. Kusick's 7 advice to Mr. Sterritt in 1982. In 1983, Peter Muldoe 8 and Albert Tait said that part of this territory was 9 owned by Dawamuxw, that's the Shilalou Creek. 10 THE COURT: Who is that, Peter Muldoe and Albert Tait? 11 MR. MACKENZIE: Yes, my lord, in 1983. 12 They said that part of this territory was owned by 13 Dawamuxw. And going to the next subparagraph, in 14 1979 -- 15 THE COURT: I am sorry, Peter Muldoe and Albert Tait told him it 16 belonged to who? 17 MR. MACKENZIE: Dawamuxw. That's the point of the argument, my 18 lord, that all this information is that it belongs to 19 Dawamuxw, Kispiox/Fireweed, which differs from the 20 present situation or present allegation. 21 And continuing to the third informant or pair of 22 informants, my lord, in 1979 David Blackwater was one 23 of two people who advised -- actually Mike Morrell, 24 that this was Dawamuxw territory, and Mr. Morrell's 25 notes appear in Mr. Sterritt's materials. David 26 Blackwater was, of course, Chief Niist, Walter 27 Blackwater's brother. 28 THE COURT: David is Niist or Walter is Niist? 29 MR. MACKENZIE: David is Niist. David Blackwater is Niist. 30 David Blackwater accompanied us on our trip. 31 THE COURT: Yes. 32 MR. MACKENZIE: David Blackwater told Mr. Morrell in 1979 that 33 he had lived at Slamgeesh Lake with Moses Stevens, who 34 is Chief Dawamuxw. As I indicate in paragraph 88 of 35 my submissions, David Blackwater lived there with 36 Moses Stevens and Mrs. Stevens until they moved to 37 Kispiox in 1943. And there are several other field 38 notes mentioned at the paragraphs indicated showing 39 that David Blackwater and Bobby Stevens advised that 40 this was the Dawamuxw area in 1979. 41 But David Blackwater as Chief Niist, in my 42 submission, is a very significant comment, or very 43 significant evidence that he is the person that lived 44 there with Moses Stevens, Dawamuxw, and he asserted 45 that this was Dawamuxw territory. 46 Carrying on to Solomon Jack, my lord, Solomon Jack 47 became Chief Gwinin Nitxw and is now Chief Gwinin 27284 Submisions by Mr. Mackenzie 1 Nitxw. And the date Solomon Jack had an interview 2 with Neil Sterritt in 1982. And Solomon Jack swore 3 interrogatories or answers to interrogatories in 1986. 4 The 1982 interview was taped and the tape was played 5 in court. And in 1982 Solomon Jack told Neil Sterritt 6 that Dawamuxw traps and is on the west side of 7 Slamgeesh and Gwinin Nitxw is on the east side of 8 Slamgeesh. 9 THE COURT: There are two tapes, are there? 10 MR. MACKENZIE: There is a tape of Walter Blackwater's interview 11 with Mr. Sterritt in 1983, which is Exhibit 745 of the 12 transcript, and there is a tape of Solomon Jack's 13 interview with Mr. Sterritt in 1982. And I discuss 14 that evidence in some detail in my submissions as 15 noted in the outline. 16 In 1986, Solomon Jack answered an interrogatory and 17 said that "we lost part of our territory" allowing 18 someone else to use it because the territory was so 19 large. That's set out at paragraph 104 in my 20 submissions and the documentary basis for that is at 21 tab 104 in the yellow binder. 22 So in my submission, my lord, all these informants 23 provided evidence to Mr. Sterritt which conflicts with 24 the Walter Blackwater territorial affidavit and the 25 boundaries and ownership as set out on Map 9A. 26 I have already referred your lordship to Exhibit 27 102, that's a 1985 map which reflected the information 28 which Mr. Sterritt received from these informants. 29 And going on to paragraph 5 of my outline of argument, 30 my lord, Mr. Sterritt was also informed that the 31 Slamgeesh territory belonged to Gaiyemlaxha, a chief 32 in the House of Niist. That's Charles Stevens, Moses 33 Stevens' son. This information was passed to Mr. 34 Sterritt in 1986 and 1988 by Nancy Supernault, Charles 35 Stevens' daughter. So, my lord, that advice conflicts 36 with the previous advice from Dawamuxw and with the 37 current attribution to Gwinin Nitxw. 38 Paragraph 6 of my outline, my lord, I point out in 39 my submission there are different versions of the 40 boundary location at the Martin's Flats area north of 41 Slamgeesh Lake. I am not going to go into that in 42 detail, my lord, but it involves a comparison of Map 43 9A and previous maps, which I do in that section of my 44 detailed submission, paragraphs 96 to 97. 45 And paragraph 7, my lord, there were several 46 explanations given for the change in attribution from 47 Dawamuxw to Gwinin Nitxw. You recall, my lord, the 27285 Submisions by Mr. Mackenzie 1 point that was made here is that sometime in late 1987 2 or 1988, Walter Blackwater came and said "this is 3 Gwinin Nitxw." There was a change. And one 4 explanation given was this Dawamuxw or Moses Stevens 5 was there through marriage rights, that is, his wife, 6 Esther Stevens. 7 THE COURT: That is Dawamuxw was there? 8 MR. MACKENZIE: Dawamuxw, yes, my lord. That was an explanation 9 given for his presence on the territory. 10 And I point out here, my lord, that Esther Stevens, 11 Moses' wife, was a member of the House of Niist, not 12 the House of Gwinin Nitxw, which now claims the 13 territory. 14 THE COURT: So Dawamuxw was married to who? 15 MR. MACKENZIE: Esther Stevens. 16 THE COURT: She was in the House of Niist? 17 MR. MACKENZIE: Yes, my lord. 18 Carrying on to page 2 of the outline of argument, 19 in 1985, Walter Blackwater told Mr. Sterritt that 20 Moses Stevens received the territory by peace 21 settlement. That was before he changed his mind about 22 the territory. And I deal with that in paragraph 82. 23 THE COURT: Who do you say got it by peace settlement? 24 MR. MACKENZIE: Moses Stevens, Dawamuxw. Walter Blackwater told 25 Neil Sterritt this. 26 THE COURT: But told him that who got it? Moses Stevens gave 27 that up years ago? 28 MR. MACKENZIE: Sorry, my lord, Moses Stevens is Chief Dawamuxw 29 and he was the main actor in this hold drama. He is 30 the person whom everyone agrees, seems to agree, was 31 on the territory and up until 1988 agreed that that 32 was his territory, in my submission, on the evidence. 33 And another explanation given is that, in 34 subparagraph (c) in my outline of argument, Walter 35 Blackwater on his cross-examination in August, 1988, 36 said that Esther Stevens and Gwinin Nitxw were like 37 sisters, and that's why they were -- Esther and her 38 husband were permitted to stay on the territory. I 39 deal with that in paragraph 93. And then finally, the 40 final explanation is in his cross-examination in 1988, 41 Solomon Jack said, Moses Stevens' father was a member 42 in Gwinin Nitxw and was permitted to be on the 43 territory for that reason. So there are several 44 explanations given for Dawamuxw being there, but in my 45 submission everyone believed that Dawamuxw owned that 46 territory up until there was some change -- 47 THE COURT: Again, Moses Stevens is Dawamuxw? 27286 Submisions by Mr. Mackenzie 1 MR. MACKENZIE: Yes, my lord. And I have already gone through 2 the maps, my lord, with your lordship, and in my 3 submission, reviewing the maps one can see the 4 ownership attribution being changed. Exhibit 102 was 5 the 1985 map which had Dawamuxw as the owner. Exhibit 6 5 was the 1987 map which had Niist as the owner, that 7 is, Chief Gaiyemlaxha of the House of Niist. And 8 today, Exhibit 646, 9-A, has Chief Gwinin Nitxw, in 9 another house completely, as the owner of that 10 territory. 11 But now I move to my conclusions, my lord, on page 12 57 of my summary. I have dealt with some of these 13 points, my lord. In paragraph 111, Walter 14 Blackwater's territorial affidavit evidence as to the 15 ownership of the Slamgeesh territory and as to the 16 location of boundaries are contradicted by his earlier 17 statements to Neil Sterritt in 1982 and 1983. And 18 also by information provided by David Blackwater, 19 Niist, and Robert Stevens, Wii minosik, to Mike 20 Morrell in April, 1979. The Blackwater information is 21 contradicted also by Solomon Jack's affidavit in 1986, 22 to which were attached answers and interrogatories 23 stating that Gwinin Nitxw had lost part of the 24 Slamgeesh territory. The answers in that 25 interrogatory referred to an attached map of Gwinin 26 Nitxw territory showing part of the Slamgeesh area 27 owned by Gwinin Nitxw and the remainder owned by 28 Dawamuxw. Mr. Jack's interview with Mr. Sterritt on 29 November 18, 1982 conflicts with Mr. Blackwater's 30 evidence. And Albert Tait, who is chief Delgamuukw, 31 gave information conflicting with Mr. Blackwater's 32 affidavit evidence. 33 All the maps to which we have referred in our 34 submission conflict with Mr. Walter Blackwater's 35 affidavit and the Map 9A boundary evidence. 36 And, my lord, in paragraph 112 I refer to the 37 significance of David Blackwater as Chief Niist and 38 Albert Tait as Chief Delgamuukw, with chiefs high in 39 the Gitksan hierarchy conflicting with Mr. 40 Blackwater's evidence. And paragraph 113 I mention 41 the point I have already made to your lordship about 42 David Blackwater's opportunity for personal knowledge 43 of this matter, having lived with Moses Stevens, who 4 4 was Chief Dawamuxw. 45 Paragraph 114, I review the various explanations 46 for change and I say that they are conflicting and 47 confusing. Paragraph 115, I submit that the process 27287 Submisions by Mr. Mackenzie 1 by which the affidavit was prepared is unreliable 2 because Mr. Sterritt drafted the affidavit, in my 3 submission, based on information he received from 4 other sources, such as those I have just gone through, 5 my lord, and brought the affidavit to Mr. Blackwater 6 for review. 7 I make further submissions about the conduct of the 8 1983 interview and comment that the only informants 9 referred to in Mr. Blackwater's affidavit are deceased 10 informants, whereas there may be other living 11 informants who may have provided this information to 12 Mr. Sterritt and Mr. Blackwater. In my submission Mr. 13 Sterritt's topographic maps and data sheets disclose 14 that the boundary and other geographical information 15 contained in Mr. Blackwater's 1988 affidavit, probably 16 came from living informants other than Walter 17 Blackwater and other than Walter Blackwater's deceased 18 informants. 19 And in paragraph 116, I note that several high 20 chiefs believed in 1979, 1982, 1983 and 1986 that 21 Dawamuxw owned the Slamgeesh area. By 1982 -- 22 actually, by 1974 but certainly by 1982, all 23 informants to which Mr. Blackwater refers in his 1988 24 affidavit on the Slamgeesh territory had passed away. 25 They could provide no further new information to him. 26 Nevertheless, Mr. Blackwater changed his views as to 27 the ownership of the Slamgeesh territory territory 28 about 1988. 29 THE COURT: Which Blackwater participated in the field trip? 30 MR. MACKENZIE: The field trip was with David Blackwater and 31 Walter Blackwater and Neil Sterritt. And just at the 32 end of paragraph 116. 33 MR. GRANT: And Nancy Supernault. 34 MR. MACKENZIE: Yes, I mentioned Nancy Supernault in connection 35 with other -- she gave information on this territory 36 also to Mr. Sterritt. She told him it belonged to 37 Niist, Chief Gaiyemlaxha, her father. 38 Mr. Sterritt testified also that many of the chiefs 39 discussed their territories with other living persons, 40 although he could not say whether Walter Blackwater 41 actually had done this or to whom he might have 42 spoken. In my submission, my lord, this detailed 43 analysis and the other analyses, support the general 44 submissions that were made in the earlier part of this 45 argument on the territorial affidavits. 46 Paragraph 117, the Slamgeesh area information on 47 this territorial affidavit as well as the remainder of 272? Submissions by Mr. Willms 1 the affidavit in our submission is inadmissible and if 2 admissible unreliable. In our submission there is no 3 evidence upon which the Slamgeesh area ownership and 4 boundary on map 9A could be based. As with the other 5 territories, the Slamgeesh territory information 6 becomes unreliable, it destroys, damages the 7 credibility and the evidence as to the territorial 8 boundaries of neighbouring territories. The entire 9 pprocess by which the Blackwater affidavit was 10 prepared renders unreliable all the evidence in the 11 affidavit, in our submission, thereby eliminating a 12 large part of the evidence for the territorial 13 boundaries on the northwest part of the Claim Area. 14 Mr. Blackwater spoke about several territories in that 15 northern, northwestern Claim Area. 16 That completes my submissions on those detailed 17 territorial analyses, my lord. Mr. Willms will 18 complete this section. 19 THE COURT: Thank you. 20 MR. WILLMS: Yes, my lord. If you could turn to tab 6. 21 THE COURT: Roman VI? 22 MR. WILLMS: No, number 6. 23 THE COURT: Just a minute. Roman IV, section 6? 24 MR. WILLMS: Yes, the conclusion. 25 My lord, the plaintiffs set for themselves a 26 monumental evidentiary task to prove that ownership 27 and jurisdiction over every part of the Claim Area has 28 been exercised since time immemorial by the plaintiffs 29 and their ancestors. On a review of the evidence, it 30 is clear that the plaintiffs have failed signally in 31 that task. Not because of evidentiary problems which 32 might render the task more difficult, but because at 33 every stage the evidence either fails to support or 34 refutes the allegations in the statement of claim, and 35 I submit, the allegations made in final argument, my 36 lord. 37 The plaintiffs allege that since time immemorial 38 they or their ancestors lived within the Claim Area. 39 The evidence shows that as late as the mid-19th 40 Century other aboriginal peoples and not the 41 plaintiffs lived within a large part of the Claim 42 Area. Other aboriginal peoples continued to live in 43 and exploit the resources of the Claim Area today. 44 THE COURT: Who do you have in mind there? 45 MR. WILLMS: Well, my lord, I have in mind the reserves that are 46 up the Bulkley River, around Francois Lake, Burns 47 Lake — 27289 Submissions by Mr. Willms 1 THE COURT: I am sorry, which reserves up the Bulkley River? 2 You mean at Burns Lake? 3 MR. WILLMS: Yes, and Broman Lake and Driftwood River. I don't 4 know all the reserves, my lord, but there are a number 5 of reserves. In addition to that, of course, in the 6 towns throughout that area there are people, including 7 Cheslatta people, who gave evidence at this trial, who 8 live within the Claim Area, and not necessarily on the 9 reserve. 10 THE COURT: The Cheslatta reserves in the south were established 11 in the '60s, were they not? 12 MR. GRANT: The '50s, my lord. 13 THE COURT: '50s? 14 MR. WILLMS: But, my lord, I remind your lordship of Dr. Jenness 15 and the Cheslatta -- 16 THE COURT: He said it was Cheslatta country before that. 17 MR. WILLMS: Yes, yes. 18 And he said that, my lord, before there was a 19 reserve established there. 20 In paragraph 3, my lord, the plaintiffs allege that 21 since time immemorial they or their ancestors 22 harvested, managed and conserved the resources within 23 the Claim Area. The evidence shows that except for 24 salmon fishing, resource use in the Claim Area is 25 completely different today than it was in late 26 prehistoric times and prior to the end of the Little 27 Ice Age in the 1850s. My lord, perhaps the best 28 example of that is the moose and the deer that have 29 come into the area and your -- my lord, you have heard 30 much evidence about hunting moose and deer, not only 31 from the plaintiffs but also from the lay witnesses 32 that gave evidence on behalf of the province about 33 hunting moose and deer in the area. Prior to 1860, 34 there weren't moose and deer in the area. And I 35 suggest that's a pretty big difference in resource use 36 and resources in the area. 37 THE COURT: But how would that defeat an otherwise valid 38 aboriginal claim? 39 MR. WILLMS: Well, my lord, in terms of whether it supports or 40 defeats an aboriginal claim, my lord, I am saying that 41 what my friends have put forward as this seamless web 42 since time immemorial is contrary to the evidence. 43 Now, what resources were there, my lord, and my 44 submission on resource use was that on the evidence of 45 Dr. Robinson and, of course, on the evidence of every 46 other scholar, except for the plaintiffs' experts, the 47 resource use fixes things like territoriality and 27290 Submissions by Mr. Willms 1 exclusivity. People determine their lives based on 2 what they eat and where they go to eat it and where 3 they bring it from. And it's a lot easier to throw a 4 moose in the back of a pick-up truck than to the carry 5 two beaver 90 miles in from a trapline. 6 Now, in paragraph 4, my lord, I say that the 7 plaintiffs allege that since time immemorial they or 8 their ancestors governed themselves according to their 9 laws and governed the Claim Area according to their 10 laws. The evidence shows that the principal methods 11 of "governance" in the proto-historic and early 12 historic period, and by evidence I include my friends' 13 oral histories, within the last 100 or 150 years, were 14 warfare, reciprocal killing and competitive 15 potlatching, methods of governance which no longer 16 exist. In addition, the evidence shows that the laws 17 allege to govern the plaintiffs are so riddled with 18 exceptions as to be devoid of normative effect. 19 Exceptions are the rule, there are in fact there are 2 0 no laws. 21 Finally, the evidence demonstrates, I say, the 22 limited reach of the plaintiffs' alleged laws. They 23 do not purport to apply to anyone other than some of 24 the individuals that attend feasts. What the 25 witnesses have referred to as law are not laws but 26 rules of a voluntary organization. 27 I say in paragraph 5, my lord, that the plaintiffs 28 allege that since time immemorial they or their 29 ancestors have maintained their institutions and 30 exercised their authority over the Claim Area through 31 their institutions and expressed, confirmed and 32 asserted their ownership of and jurisdiction over the 33 Claim Area. The feast is said to lie at the heart of 34 this authority. The evidence demonstrates the feast 35 has radically changed over time in both form and 36 function. In addition, the evidence demonstrates that 37 neither the alleged ownership nor the alleged 38 jurisdiction has been asserted against inhabitants of 39 the Claim Area, other than some of those who may have 40 attended feasts. I also say, my lord, and I point out 41 my lord, my friends said in their argument that they 42 don't assert these boundaries against neighbouring 43 aboriginal peoples. Perhaps because they never did. 44 Now, I say in paragraph 6, my lord, the plaintiffs 45 also allege that since time immemorial they or their 46 ancestors protected and maintained the boundaries of 47 the Claim Area. The evidence demonstrates that 27291 Submissions by Mr. Willms 1 European notions of territoriality did not arise until 2 the proto-historic and historic period and then arose 3 in relation to the creation of beaver traplines, the 4 impetus for which was the fur trade. The evidence 5 also demonstrates that the plaintiffs today are unable 6 to remember, let alone agree, on the locations of 7 boundaries in the Claim Area. And this, my lord, this 8 goes to the sifting, whether you have a declarant who 9 is dead who says that that's the reputation in the 10 community, my friends' argument carries that to today, 11 to there moment, the settled reputation on my friends' 12 theory would be consistent with the settled reputation 13 that is allegedly the subject of the deceased 14 declarant's evidence, yet that's not the case at all. 15 My colleague, Mr. Mackenzie, demonstrated that with 16 Dawamuxw, the Dawamuxw territory. 17 I say finally, the evidence demonstrates that other 18 aboriginal peoples disputed in the past and continued 19 to dispute the alleged boundaries of the plaintiffs. 20 The plaintiffs allege that the Gitksan chiefs and 21 the Wet'suwet'en chiefs, their ancestors or 22 predecessors, since time immemorial have owned and 23 exercised jurisdiction over the lands delineated by 24 Exhibits 4469A and 6469B. The evidence demonstrates 25 that although Gitksan and Wet'suwet'en chiefs may have 26 owned and may own, the regalia, adaawk, kungax, songs, 27 crests and totem poles, at no time have they owned and 28 exercised jurisdiction over any part of the Claim Area 29 in any sense congnizable in this court. Furthermore, 30 their genealogical evidence, which forms the 31 foundation of the link to the past, demonstrates only 32 discontinuity and continuous re-definition of their 33 identity through intermarriage. And I point out here, 34 my lord, that Heather Harris, on the plaintiffs' 35 theory, has the same aboriginal rights as Walter 36 Blackwater does. 37 Paragraph 8. The evidence -- 38 THE COURT: Your point being that she is married into the 39 Gitksan clan? 40 MR. WILLMS: Yes, she has, according to the plaintiffs' theory, 41 aboriginal title in Canada. And so would Mrs. 42 Marsden, Ms. Marsden. 43 MR. GRANT: Ms. Marsden was not adopted by a plaintiff. 44 MR. WILLMS: Oh, no, sorry, she was adopted by the Kitwancool, 45 who decided not to become plaintiffs in this action. 46 In paragraph 8, my lord, I say the evidence 47 demonstrates, as plaintiffs' counsel so aptly put it 27292 Submissions by Mr. Willms 1 in his cross-examination of Mr. Hobenshield, that the 2 plaintiffs have a "secret club". Proof of the rules 3 of a secret club, which extends membership to 4 non-aboriginal people, is not proof of aboriginal 5 title and is not proof of the allegations in the 6 statement of claim. And I say, my lord, that the 7 plaintiffs have failed to prove their case on the 8 facts. 9 THE COURT: Well, I am not sure that — well, I am not — I 10 don't have cognizance of everything that's in here, 11 but do I take it that you haven't made any submission 12 with respect to a great many of the individual 13 territories? 14 MR. WILLMS: Well, my lord, in terms of the individual 15 territories, there have been submissions -- four 16 territories were looked at in detail, that took up -- 17 THE COURT: Five. 18 MR. WILLMS: Sorry, five territories in detail and that took up 19 94 pages. The work required to analyze every single 20 territory in detail leading up -- would occupy volumes 21 and volumes. But each one of these territories, of 22 course, my lord, because it has surrounding 23 territories, takes with it all the surrounding 24 territories. And -- 25 THE COURT: Takes away the common boundary. 26 MR. WILLMS: Well, no, my lord, in my submission, when you build 27 your house of territories, you have built a house of 28 cards, and once one card gets pulled out, the whole 2 9 thing comes down. The whole thing depends on there 30 being this seamless web. It does not allow for holes. 31 The plaintiffs' theory of house ownership does not 32 allow for holes in the house ownership, my lord. And 33 so once one territory is gone, they are all gone. 34 But, I -- to answer your lordship's question, this 35 detailed analysis could be done for each and every 36 house and each and every house territory. 37 THE COURT: I don't know what the result of that analysis would 38 be. 39 MR. WILLMS: The result, in my submission, would be the same 40 result of the five that were analyzed that were just 41 chosen at random. 42 THE COURT: Well, tell me, looking at the map and assuming that 43 you're right on Gutginuxw's territory and assuming 44 that it collapses and the boundaries are Wii gaak, Wii 45 minosik, Wiigyet, Wii minosik again, Luus, Niist, 46 Baskyelaxha, Wiigyet, Waiget and Luus. 47 MR. GRANT: My lord it was only the northern of the Gwinin Nitxw 27293 Submissions by Mr. Willms 1 territory that was -- 2 THE COURT: I am sorry, the northern one. So if those common 3 boundaries left, why would that affect Gyolugyet's 4 property over to the east without a common boundary? 5 MR. WILLMS: Well, my lord, it's because the plaintiffs' theory, 6 as they put it in their argument, is that these house 7 boundaries are defined at feasts, where everyone 8 agrees that these are the house boundaries. And what 9 my submission is, my lord, is that if there is no 10 settled reputation in the community, no settled sifted 11 reputation for one house boundary, then there can't be 12 one for all the rest. In other words, it's a system 13 that doesn't admit of mistakes, on the plaintiffs' 14 case, my lord. 15 Now if your lordship was talking about how farm 16 land was being divided up in the Fraser Valley, there 17 may be a difference in dividing up farm land in the 18 Fraser Valley. But that's because the farmers aren't 19 coming in and saying, that when you add up all of our 20 farms we own this whole territory. That's because a 21 farmer says "this is my territory, I bought it, I have 22 got a deed. This is mine." And if he can't prove 23 that it's his, then it's not his. Whose it is, who 24 knows? But on the plaintiffs' case it's an all or 25 nothing case in every respect, my lord. 26 THE COURT: Well, I am having difficulty with that proposition. 27 Assuming you are successful in Gwinin nitxw, why would 28 that affect the plaintiffs' evidence on the territory 29 of Tenimgyet? 30 MR. WILLMS: Well, my lord, the settled reputation in the 31 community is based on a theory that each of these 32 territorial affidavits is precise and each of the 33 territorial affidavits that defines the boundaries of 34 a particular territory also defines who is on the 35 other side of the boundary. So that when one 36 territorial affidavit is gone, then whatever 37 corroboration or corroborative effect is obtained from 38 that, takes the surrounding territories with it. But, 39 my lord, if I can be -- if I can put it this way, that 40 your lordship is quite right if we are talking about 41 proving private boundaries. But we are not talking 42 about private boundaries here. We are talking about 43 community boundaries, we are talking about of the 44 Gitksan community boundaries, that have been alleged 45 to have been owned by these houses since time 4 6 immemorial. And what I say, my lord is that on that 47 theory, on the theory that every house territory's 27294 Submissions by Mr. Willms 1 have been fixed since time immemorial, and it's all 2 been discussed and sifted in the feast hall, once one 3 goes even, by way of example, without proof that the 4 other ones are immediately adjacent to it, they all 5 go. 6 This -- the plaintiffs' allegations, my lord, the 7 plaintiffs' theory does not admit of a Swiss cheese 8 theory of house ownership. It just doesn't fit in 9 their theory of sifting, in their theory of sifting in 10 their theory of house ownership, it just doesn't fit. 11 So it's not a matter of when you take one out, does 12 the rest remain? On the plaintiffs' theory, they have 13 to prove each and every one on their theory. Because 14 that's the -- that's their case. And the foundation 15 for it is the feast and the foundation for it is all 16 of the Gitksan chiefs knowing where all of the 17 boundaries are because they talk about it at the 18 feast. And my submission is, my lord, once one is 19 gone they failed to prove the whole case. But as I 20 indicated, my lord, we could do a detailed analysis, 21 which I say would come to the same effect of each and 22 every one of these boundaries. Certainly we have done 23 it in a somewhat larger scale with the overlap theory. 24 The overlap theory -- 25 THE COURT: Well, I am putting that aside for the moment. But I 26 am having some trouble with your all or nothing 27 submission. For example, Mr. Alfred Joseph, he walked 28 me around the perimeter of his territory 29 demonstrating, or at least establishing, in his 30 evidence, a continuous boundary around his property. 31 I have difficulty seeing how that evidence is 32 compromised by the collapse of the plaintiffs' proof 33 on some nearby but not adjacent property. 34 MR. WILLMS: Well, it is, because, my lord, it's the difference 35 between the farmer in the Lower Mainland, and my 36 friends' use of Milirrpum to elevate what really is 37 proof of private boundaries and proof of community 38 boundaries. And when they use Milirrpum, in my 39 submission, and the sifted reputation of the 40 communities, the whole thing rises and falls on the 41 same thing. It's not like a farmer who walks around 42 and shows you his fence and then the next day someone 43 has taken the fence away or the next day someone comes 44 up with a deed to say they really own the property. 45 That doesn't affect who owns the property around it. 46 But that's because the farmer doesn't come into court 47 and advance a theory where his territory depends on 27295 Submissions by Mr. Willms 1 the territory of the other Gitksan chiefs. His 2 territory, his land depends on the farmers around him. 3 And a farmer in the Fraser Valley, his land doesn't 4 depend on who owns the land around him. And that's 5 why, my lord, you can pull his ownership out and that 6 doesn't affect the fact that the farmers around him 7 sometime own their land. But the plaintiffs' theory 8 has all of the house ownerships depending on the 9 Gitksan House ownerships. They all depend on each 10 other, mutually interdependent ownership theory. 11 THE COURT: I am sorry, Mr. Willms, but I don't recall at the 12 moment any evidence that goes that far. I thought the 13 evidence was directed towards community recognition of 14 each individual territory. 15 MR. WILLMS: In the feast, and I read that to your lordship 16 earlier today, the part where Ms. Mandell said, for 17 Gitksan territories, it's all the the Gitksan chiefs; 18 for Wet'suwet'en territories, it's all the 19 Wet'suwet'en chiefs. And that's why I say -- 20 THE COURT: I thought she was talking there about the transfer of 21 a name that carried a piece of property or territory 22 with it? 23 MR. WILLMS: And boundaries of land. 24 THE COURT: That they had to agree. 25 MR. WILLMS: And land, my lord, that's the whole point of that. 26 It's the name and the land and the whole theory, of 27 course, of the plaintiffs, is that the name and the 2 8 land, and once you know the name you know the land. 2 9 In you know the land you know the name. 30 THE COURT: If all the Gitksan chiefs got together and decided 31 to approve a new chief for a territory in what I call 32 the Gitksan bulge or the Skeena, where the Skeena 33 villages are, I did not understand her to be saying 34 that not only did all the chiefs have to approve a 35 transfer of the name in that territory but that that 36 would all come apart if somebody way up in the 37 Slamgeesh area had some trouble proving his title? 38 MR. WILLMS: Well, my lord, I -- the understanding of this, and 39 it's difficult because we look on this as we would 40 look on a farmland in the Fraser River, but that's not 41 how the Gitksan look at it, in my submission, and it's 42 the Gitksan case that's being put forward here. And 43 it is my submission, my lord, that Ms. Mandell was 44 quite right when she said that the Gitksan boundaries 45 depend on all of the Gitksan chiefs at a feast 46 agreeing on the boundaries. 47 THE COURT: That's what she said but I didn't think that was 27296 Submissions by Mr. Willms 1 necessarily the evidence. 2 MR. WILLMS: Well, my lord, if that's not the evidence, then 3 there is no settled reputation. Because then you 4 don't have the community. Then the community varies 5 from location to location, and then you could prove 6 private boundaries in the Fraser Valley by calling 7 five farmers and they could say, well, we're the 8 community of farmers in this area and -- 9 THE COURT: When you have got an area nearly 300 miles north to 10 south, it doesn't necessarily mean that the same 11 community applies to every territory. 12 MR. WILLMS: In the plaintiffs' case it certainly does, my lord, 13 and I didn't understand my friend at any time to say 14 that two or three or four Gitksan chiefs could get 15 together and have a mini feast and transfer their 16 territory amongst themselves. My understanding of the 17 plaintiffs' evidence, and my friends can correct me if 18 I am wrong, but my understanding was that the Gitksan 19 chiefs acting together dealt with important matters 20 such as any territories and that you couldn't have 21 sort of sub groups or mini groups or mini feasts. And 22 that was what I thought the sum and substance of Ms. 23 Mandell's submissions were. That's what I take from 24 the plaintiffs' case, and if there is some theory of 25 mini feasts, my lord, I hope my friends will let us 26 know before we finish our argument, because we would 27 like to deal with that. But we are trying to deal 28 with the case the way they have argued it. 29 THE COURT: All right. Well, I have your submission. I have 30 indicated to you that I have some difficulty with it 31 and I will have to give it some more thought because 32 these matters haven't been undergoing careful scrutiny 33 until argument. And I heard Mr. Rush and Mr. Jackson 34 go through their territories and I think they touched 35 on every one. Not in the detail that is included in 36 the province's argument with respect to these four or 37 five territories, but it seems to me that either I 38 ever to accept your theory of all or nothing or I have 39 to do the detailed analysis for other properties that 40 you have done four or five or something along that 41 line, or I have to decide the case on the basis that 42 you can succeed on your hearsay arguments or your 43 overlap arguments or some of the general arguments or 44 I have to say there is no specific submission with 45 respect to a great many of these territories. And I 46 may have left something out of there. 47 MR. WILLMS: Well, my lord, if I could — the first point, my 27297 Submissions by Mr. Willms 1 lord, is the plaintiffs' own submissions. And I 2 have -- these were the submissions made by Mr. Rush, I 3 believe, on May 12th, on reputation evidence of house 4 territories. And at page nine Mr. Rush said, I think 5 it was Mr. Rush, but anyway the written argument said 6 "the community" -- and that's in quotes -- is the 7 Gitksan on the one hand and the Wet'suwet'en on the 8 other. "The 'whole community' to use Wigmore's term, 9 is the Gitksan community and the Wet'suwet'en 10 community. Each of these communities represents the 11 locality within which there exists the common 12 reputation about the territory. Included within the 13 community, to use Mr. Justice Blackburn's language, is 14 the group consisting of all the people of all the 15 clans who are plaintiffs as well as the 16 Kitwancool/Gitksan. This then is the community of the 17 reputation and it is the community in which the 18 plaintiffs have demonstrated that their rights are 19 enjoyed and which they have proved exist." 20 Now that is what we have been responding to, my 21 lord, and that is why we haven't gone through, in each 22 and every case, and dealt with each and every piece of 23 boundary evidence. And the reason is that's not the 24 way the plaintiffs have advanced their case. And 25 that's why I say, my lord, on the plaintiffs' case, if 26 one house goes in the Gitksan community, then based on 27 my friends' submissions, all of them go. 28 THE COURT: What is that reference to that passage? 29 MR. WILLMS: It's at the top of page nine, my lord, in the 30 argument. It's entitled "Reputation evidence of house 31 territories." I don't know which volume of the 32 plaintiffs' final argument it's in. 33 MR. GRANT: Volume nine. 34 MR. WILLMS: Volume nine, my friend says. 35 THE COURT: Page nine of volume nine. 36 MR. WILLMS: Page nine of volume nine. 37 THE COURT: All right. Well, I will give that every thought and 38 every consideration. 39 MR. WILLMS: Those are the submissions on that aspect of the 40 evidence, my lord. 41 THE COURT: Thank you. What time are we going to go to 42 tonight, Mr. Willms? 43 MR. GOLDIE: 5 o'clock, my lord. 44 THE COURT: I think if that's so, we won't take the break until 45 about 3:30, if that's convenient. 46 MR. GOLDIE: Your lordship will need volume two of the blue 47 book. 2729? Submissions by Mr. Goldie 1 THE COURT: Royal Proclamation? 2 MR. GOLDIE: Yes. And we will hand up volume 14 of the yellow 3 binders. 4 THE COURT: I am sorry, before Mr. Mackenzie gets away, where did 5 I get this from, Mr. Mackenzie? 6 MR. MACKENZIE: Yes, my lord, that goes in the yellow binder. 7 THE COURT: Volume 12? 8 MR. MACKENZIE: Volume 12. 9 THE COURT: I am sorry, it's got a page number on it. 10 MR. MACKENZIE: It's Roman IV, 5A, and tab 6, page 13. 11 THE COURT: 5A? You sure confuse me with your 5As. 12 MR. MACKENZIE: May I help your lordship? 13 THE COURT: Yes, you sure can. 14 MR. GOLDIE: My lord, I am also handing up a copy of the Royal 15 Proclamation with letters on the margin. This was 16 marked as exhibit, I think, 1160. And I refer in my 17 argument to the letters for purposes of identifying 18 the part of the Royal Proclamation I am speaking to. 19 THE COURT: You say this is 1160? 20 MR. GOLDIE: Yes, my lord. 21 THE COURT: I have been working from one that's called 1025. 22 MR. GOLDIE: Yes, that was filed, I think by Mr. Morrison, or in 23 the course of his evidence. The text is the same. It 24 is the -- it is the form that is taken from the 25 Revised Statutes of Canada and contains, of course, 26 the official translation. 27 THE COURT: Is this also the Brigham edition? 28 MR. GOLDIE: I think that's my friend's edition. 29 THE COURT: Is there any difference in the text? 30 MR. GOLDIE: None that I am aware of. 31 THE COURT: All right. 32 MR. GOLDIE: So far as the court is concerned, this is the 33 official version of the Royal Proclamation. So far as 34 historical versimlitude is concerned, Mr. Morrison's 35 is closer in time to the actual document. 36 My lord, I am going to just comment on sections 37 one, two and three under part Roman V in the blue 38 book. The first section is simply a resume of the 39 plaintiffs' case with respect to the Royal 40 Proclamation. It was largely prepared from the 41 pleadings and my friend's opening. The submissions 42 that have been made since that time do not add any 43 significant variations. 44 If your lordship would look at page 2, there is 45 summarized there what we understand to be the 46 principal submissions that the plaintiffs make with 47 respect to the Royal Proclamation. They argue that 27299 Submissions by Mr. Goldie 1 the proclamation entrenched mid-18th Century British 2 practices with respect to Indians and bound the Crown 3 by a number of rules. First, all land occupied by 4 Indians is theirs and cannot be used by the Crown 5 until the Indians surrender their rights to the Crown. 6 Of course, the word occupied is given a very wide 7 interpretation. And I will comment on that when I 8 come to the creation of what has been termed the 9 Indian reserve or the great reserve or the reserve 10 between the Appalachian line and the Mississippi. 11 Two, Indian surrender must take place through 12 formal treaties; and three, only the Crown may 13 purchase Indian lands. The reference there is to my 14 friend's opening. 15 In evidence of this entrenchment, the plaintiffs 16 rely upon a number of treaties entered into by the 17 British Crown, and in some cases by individuals, prior 18 to the issuance of the Royal Proclamation. The 19 plaintiffs argue that the continuation of this 20 practice after the Royal Proclamation of 1763, and the 21 instructions to British explorers and the governor of 22 Vancouver Island to adopt this practice are the result 23 of the directions contained in the Royal Proclamation. 24 And they say this indicates the prospective nature of 25 the proclamation. And again the references there are 26 to my friend's opening. 27 THE COURT: When you say opening, you mean opening of the 2 8 argument? 29 MR. GOLDIE: No, his opening at the trial, my lord. 30 And those references are found under the 31 appropriate tab numbers in the yellow binder, which I 32 am not going to read at this point. 33 The plaintiffs argue that the proclamation 34 possessed an unique constitutional nature, which 35 limited the authority of colonial governors, and 36 subsequently provincial governments, to deal with 37 lands which had not been surrendered by Indians 38 through treaties. And accordingly, they submit that 39 all colonial enactments affecting unsurrendered lands 40 are void and ultra vires. And the reference there is 41 again to their opening. 42 They, the plaintiffs submit, as we understand it, 43 that the Province of British Columbia, and more 44 particularly the Claim Area, fall within the reserve 45 created by paragraph V of the Royal Proclamation. 46 Now, my lord, I might just pause there and indicate to 47 your lordship how I make reference to the 27300 Submissions by Mr. Goldie 1 proclamation. The letters which we have placed in the 2 margin of course run through from A to double A, and 3 on the page number at the bottom of the page, 127. 4 Opposite the letter V is -- are the words which have 5 been referred to many times, of course, and I quote: 6 7 "And we do further declare it to be our Royal 8 Will and Pleasure, for the present as 9 aforesaid, to reserve under our sovereignty, 10 protection and Dominion, for the use of the 11 said Indians, all the Lands and Territories not 12 included within the limits of our said three 13 new governments or within the limits of the 14 territory granted to the Hudson's Bay Company, 15 as also all the Lands and Territories lying to 16 the westward of the sources of the rivers which 17 fall into the sea from the west and northwest 18 as aforesaid." 19 20 21 Now without going to the evidence of the meaning to 22 be attributed to the -- a number of those words and 23 phrases at this point, it is that to which the 24 plaintiffs point to justify the proposition that the 25 Claim Area in northern British Columbia is within 26 those words. 27 Now, they also point to paragraph S, which is the 28 preamble at the top of that page, and I read that: 29 30 "And whereas it is just and reasonable, and 31 essential to our Interest, and the Security of 32 our Colonies, that the several nations or 33 Tribes of Indians with whom We are connected, 34 and who live under our protection, shall not be 35 molested or disturbed in the possession of such 36 parts of our Dominions and territories having 37 been ceded to Us or purchased by us, are 38 reserved to them..." 39 40 And they say with respect to that that their 41 possession continues until surrendered to the Crown in 42 accordance with the rules which they say are found in 43 the proclamation. They say, if I understand them 44 correctly, that the Royal Proclamation applies to 45 British Columbia on its face. They also submit that 46 British Columbia was an area over which the British 47 Crown asserted sovereignty in 1763 by virtue of the 27301 Submissions by Mr. Goldie 1 Virginia Charter, that is to say the Colony of 2 Virginia, of 1609, the Hudson's Bay Charter of May 3 2nd, 1670, and they say that British Columbia was part 4 of the lands acquired by Great Britain as part of 5 Canada or New France, that is to say, that British 6 Columbia in some way lies within the area ceded by New 7 France by virtue of the Treaty of Paris of February, 8 1763. 9 Now, my lord, in section 2, I outline a summary of 10 the province's position, and I will deal with these in 11 the manner they are laid out. 12 The first proposition is that as a matter of law, 13 the British Crown at no time had the power to exercise 14 the Royal prerogative in relation to Indian lands and 15 trade in British Columbia. 16 Obviously, my lord, the Royal Proclamation is an 17 exercise of the Royal prerogative. And I will be 18 saying that the exercise of the Royal prerogative in 19 relation to Indian land and trade in British Columbia 20 was unconstitutional, if it was attempted. Of course 21 we say it wasn't attempted but I say if it was 22 attempted it's unconstitutional. That's what I mean 23 by as a matter of law. 24 Second, as a matter of fact, and on its own terms, 25 the Royal Proclamation did not apply to present day 26 British Columbia or to the Indians residing there. 27 Thirdly, even if the Royal Proclamation could be 28 construed as applying to the province, the 29 proclamation did not confer rights of ownership and 30 jurisdiction as claimed by the plaintiffs in this 31 case. 32 Turning to section three, the first point, the 33 Royal Proclamation cannot in law apply to British 34 Columbia. And the first part of that is limits on the 35 Royal prerogative as such. I say the defendant 36 province submits that as a matter of law the Royal 37 Proclamation of 1763 has no application to British 38 Columbia. This submission is based upon the limits of 39 the Royal prerogative power. It is common ground that 40 the Royal Proclamation was made pursuant to the King's 41 power, the King's prerogative power. By law the power 42 of a monarch to exercise his Royal prerogative on 43 terms outside of Britain is dependent upon the manner 44 in which the territory was acquired. For purposes of 45 constitutional law, colonies fall within one of two 46 classifications: They are either settled or they are 47 conquered or ceded. The legal classification of 27302 Submissions by Mr. Goldie 1 territory affects the powers of the Crown in relation 2 to that territory. 3 My initial reference, my lord, is found in tab 4 3/3-2. Volume six of Hallbury's 4th edition, 5 paragraph 1017, Modes of Acquisition of Colonies, and 6 I am reading from that paragraph: 7 8 "Colonies are treated for purposes of 9 constitutional law of either, one, settled, or 10 two, conquered or ceded, and the manner of 11 acquisition affects the constitutional position 12 of the colony knee, particularly the powers of 13 the Crown. Every colony must be assigned to 14 one or other of these two classes. The 15 classification is one of law and once made by 16 practice or judicial decision, will not be 17 disturbed by historical research." 18 19 I am going to pause there and say, my lord, that 20 the classification of the Colony of British Columbia 21 was determined by the act constituting the colony. 22 And then I continue: 23 24 "The basis of distinction is the stage of 25 civilization considered to have existed in the 26 territory at the time of acquisition. If there 27 is no population or no form of government 28 considered civilized and recognized in 29 international law, possession is obtained by 30 settlement. Where there is an organized 31 society to which international personality is 32 attributable, acquisition rests on cessions or 33 conquest." 34 35 36 And when your lordship considers that, I ask you to 37 keep in mind the preceding remark that the 38 "classification is one of law and once made by 39 practice or judicial decision, will not be disturbed 40 by historical research." 41 And returning to my argument, I say in paragraph 3 42 settled colonies may be established in three ways: 43 One, occupation of territory may be authorized by the 44 Crown, possession taken in the name of the Crown and 45 settlers introduced. Or, two, the Crown may recognize 46 settlements made by British subjects without previous 47 authority. And, three, uninhabited islands or areas 27303 Submissions by Mr. Goldie 1 may be formally annexed. 2 And the reference to that, under the appropriate 3 tab number, is to paragraph 1018 of Halsbury, and that 4 simply repeats basically what I have set out in the 5 argument. But I add the final sentence in that 6 paragraph, and I quote: "A settled colony re-conquered 7 or ceded back after conquest or cession does not lose 8 its status as a settled colony." 9 As we will see, my lord, British Columbia, that is 10 to say, the mainland colony, is a combination really 11 of one and two. The Act of 1858 authorized settlement 12 which was taking place at that time and it recognized 13 that people had resorted to it without authority prior 14 to that time. 15 Going to paragraph 4, in settled colonies -- and 16 if I may pause for a minute, my lord, this is where we 17 get to the question of its effect on the Royal 18 Proclamation. In settled colonies the power of the 19 Crown is limited to executive powers and includes the 20 appointment of a governor, the establishment of courts 21 of law and the summoning of a local representative 22 assembly. Prior to 1887 the Crown had no power to 23 make general laws with respect to a settled colony, 24 that is to say, it had no power to exercise 25 legislative powers. 26 THE COURT: What happened in 1887? 27 MR. GOLDIE: The passage of an Act that — by the Imperial 28 Parliament, referred to in the next paragraph, the 29 balance of the paragraph, because it was found to be 30 inconvenient to have the situation where there was a 31 settled but unorganized territory. And that we will 32 come to when we look at the Stikine Territory. And 33 the reference there is again to Halsbury, and this is 34 substantially what is paraphrased in my argument, but 35 I will read it at this point: 36 37 "The Crown's powers in settled colonies. In 38 settled colonies the prerogatives of the Crown 39 and the rights and immunities of British 40 subjects are similar to those enjoyed in the 41 United Kingdom. Thus settleers from the mother 42 country carried with them such portions of the 43 English common and statute laws as were 44 applicable to their new situation. At common 45 law, the Crown preserves the executive power 46 and has authority to appoint a governor to 47 establish courts of law but not ecclesiastical 27304 Submissions by Mr. Goldie 1 courts, and to provide for a summoning of the 2 local representative legislature. Once such a 3 legislature has been effectively provided for 4 by the authority of the Crown, the Crown's 5 power of legislation, whether ordinary or 6 constituent by the prerogative is suspended 7 during the existence of that legislature. But 8 even before the establishment of a legislature, 9 the Crown has no general power of ordinary 10 legislation since it has no such general power 11 in the United Kingdom." 12 13 Your lordship will see that the settled colony is 14 assimilated to the situation that prevails in England 15 itself, where the Crown's prerogative has been 16 severely curtailed by the triumph of parliament over 17 the Stewarts. 18 And then it goes on, the next reference to the Act 19 of 1887: 20 21 "The inconvenience of the common law rule led to 22 the passing of the British Settlements Act, 23 1887, by which for any British settlement not 24 under the jurisdiction of a legislature, other 25 than a legislature constituted under that Act 26 or under the Acts of repeal, the Queen and 27 council may establish laws and institutions and 28 constitute courts and provide for the 29 administration of justice as may appear to be 30 necessary for the peace, order and good 31 government of Her Majesty's subjects and others 32 within the settlement. These are continuing 33 powers and in exercising them the Crown's 34 authority to legislate generally for the 35 territory by order-in-council is confirmed. 36 The Queen may also delegate all or any of these 37 powers to any person, persons or authority." 38 39 40 Your lordship will appreciate that where the -- 41 where orders-in-council are made by the Imperial 42 government, under that legislation they are made by 43 virtue of an act of parliament and not by the residual 44 Royal prerogative. 45 However, that's not a consideration that we have to 46 concern ourselves with, since the matter was settled 47 long before 1887 in British Columbia. 27305 Submissions by Mr. Goldie 1 Turning to my argument in paragraph 5, I say the 2 prerogative powers of the Crown in conquered or ceded 3 colonies are much broader. Exerciseable by order-in- 4 council, letters patent or proclamation, the Crown has 5 the power to legislate for the conquered or ceded 6 colony until a representative assembly has been 7 granted to it. 8 And, again, Halsbury provides the necessary 9 background. And I am -- I read paragraph 1029, under 10 tab V/3-4. And I quote: 11 12 "The Crown's competence in conquered or ceded 13 colonies. In a conquered or ceded colony, the 14 Crown by virtue of its prerogative, has full 15 power to establish such executive, legislative 16 and judicial arrangements as the Crown thinks 17 fit and generally to act both executively and 18 legislatively, provided the provisions made by 19 the Crown do not contravene any act of 20 parliament extending to the colony or to all 21 British possessions. The Crown's legislative 22 and constituent powers are exerciseable by 23 order-in-council, letters patent or 24 proclamation." 25 26 27 The principles to which I have referred have been 28 stated in a number of cases. Your lordship has heard 29 of the case of Campbell and Hall which was decided in 30 1774, in which an action was brought to recover a sum 31 of money which was paid by the plaintiff as duty on 32 sugars which were exported from the Island of Grenada. 33 Grenada was one of the colonies which -- one of the 34 territories which was ceded to Great Britain under the 35 Treaty of Paris. Grenada was acquired, and I insert 36 the words, by conquest and ceded, under the Treaty of 37 Paris, 1763, and its government was established under 38 item G of the Royal Proclamation. 39 I will just refer your lordship to that quickly. 40 On the second page, down at the -- halfway down the 41 page. What the King is doing is erecting separate 42 colonies out of that which was ceded by France. Well, 43 and also by Spain, Quebec being ceded by France, 44 Grenada being ceded by France and East Florida and 45 West Florida by Spain. And then after setting the 46 bounds of Quebec and the two Floridas, and the Island 47 of 27306 Submissions by Mr. Goldie 1 2 "The Government of Grenada, comprehending the 3 Island of that name, together with the 4 Grenadines, and the Islands of Dominico, St. 5 Vincent's and Tobago." 6 7 And the issue that arose in that case, are the 8 local letters -- I am sorry, letters patent which were 9 issued pursuant to the King's preogative power before 10 a representative assembly met in Grenada, purported to 11 impose the duty. And the case turned on the validity 12 of the letters patent. It was held that they were 13 invalid because the King, by several instruments, had 14 put it beyond the prerogative powers to issue them. 15 The prerogative powers of the crown in a conquered 16 colony are described at page 1048. 17 Now that, my lord, is an extract from the English 18 report under the tab 3-6. And this is from the 19 judgment of Lord Mansfield. And his lordship says, in 20 the first paragraph, the sixth and last proposition 21 that is if the King -- and when I say the King I 22 always mean the King without the concurrence of 23 parliament, 24 25 "...the King...has a power to alter the old and 26 to introduce new laws in a conquered country... 27 This legislation being subordinate, that is, 28 subordinate to his own authority in parliament. 29 He cannot make any new change contrary to 30 fundamental principles, et cetera." 31 32 And then the side lining about halfway down the 33 page, I will begin the paragraph itself and I quote 34 it: 35 36 "It is left by the constitution to the King's 37 authority to grant or refuse a capitulation. 38 If he refuses and puts the inhabitants to the 39 sword or exterminates them, all the lands 40 belong to him. If he receives the inhabitants 41 under his protection and grants them their 42 property, he has the power to fix such terms 43 and conditions as he thinks proper. He is 44 entrusted with making the treaty of peace. He 45 may yield up the conquest or retain it upon 46 what terms he pleases. These powers no man 47 ever disputed and neither has it hitherto been 27307 Submissions by Mr. Goldie 1 controverted that the King might change part of 2 the whole of the law or political form of 3 government of a conquered dominion." 4 5 6 And on the next page -- well, it's under the next 7 tab, the double side lining on the fourth paragraph: 8 9 "It is not to be wondered at that an adjudged 10 case in point has not been produced. No 11 question was ever started before but that the 12 King has a right to a legislative authority 13 over a conquered country. It was never denied 14 in Westminster Hall, it never was questioned in 15 parliament." 16 17 18 The Campbell and Hall itself was -- is a case that 19 has been much discussed and explained. One of the 20 more recent cases in which the Campbell and Hall is 21 noted is a judgment of the Judicial Committee of 22 Sammut and Strickland, and an extract from that is 23 found under the next tab. That related to the Island 24 of Malta and the -- Malta was a particular case 25 because it had been acquired by the Crown by virtue of 26 voluntary cession by the inhabitants. And there was 27 an argument as to whether its characterization was 28 that of a settled colony, because it was the will of 29 the inhabitants that led to the act of cession, or 30 whether it still fell within the category of a 31 conquered or ceded colony. And it was that 32 characterization which would determine the extent of 33 the Royal prerogative. I might add that the case was 34 further complicated because the -- there was a 35 reservation for the exercise of the prerogative in 36 some of the orders-in-council. 37 But, at any rate, the Judicial Committee said that, 38 beginning on page 701: 39 40 "It may be said with truth that cases of 41 voluntary cession, that is cessions otherwise 42 than from a sovereign power, are rare, and it 43 appears that the cases have been neglected by 44 textbook writers and not noticed by the 45 legislature." 46 47 Then they go on to consider the point. And they 2730? Submissions by Mr. Goldie 1 say, midway down the paragraph the committee says: 2 3 "The line of distinction here has always been 4 based on the circumstance that English 5 settlers, wherever they went, carried with them 6 the principles of English law, and that English 7 common law necessarily applied insofar as such 8 laws were applicable to the conditions of the 9 new colony. The Crown clearly had no 10 prerogative right to legislate in such a case. 11 Where, however, the territory was acquired by 12 cession or conquest, more particularly, where 13 there was an existing system of law, it has 14 always been considered that there was an 15 absolute power in the Crown, so far as was 16 consistent with the terms of cession, if it was 17 a case of that kind, to alter the existing 18 system of law, although until such interference 19 the laws remained as they were before the 20 territory was acquired by the Crown." 21 22 Then there is a reference to Blackstone. 23 I have set that out, my lord, in full on the top of 24 page five of my argument. 25 Then in paragraph 10. More recently, Mr. Justice 26 Mahoney of the Federal Court, recognized the 27 distinction between settled and conquered or ceded 28 territory in the Baker Lake case. And at page 532, he 29 said, and I quote: 30 31 "The Baker lake area lies within the former 32 proprietory colony of Rupert's Land. The 33 territory granted to the Hudson's Bay Company 34 by Royal Charter of Charles II, May 2nd, 1670. 35 It is common ground that Rupert's Land was a 36 settled colony rather than a conquered or ceded 37 colony." 38 39 That emphasis is, of course, my own. 40 41 "It is to be noted that the particular legal 42 consequences of settlement as distinct from 43 conquest or cession in so far as the domestic 44 laws of a colony were concerned, was not 45 articulated in a reported case until 1693. The 46 distinction developed in response to the needs 47 of the English settlers and was not in its 27309 Submissions by Mr. Goldie 1 early development extended to the resolution of 2 disputes involving the indigenous population. 3 I am bound to hold that the Royal Proclamation 4 of 1763 does not and never did apply to 5 Rupert's Land." 6 7 That is the submission that we make with respect 8 to British Columbia and in part for the exactly the 9 same reason, that it was a settled colony and not a 10 colony acquired by conquest or cession. 11 THE COURT: But the Royal Proclamation by its terms excluded 12 Rupert's Land, did it not? 13 MR. GOLDIE: The argument was that it applied in part to it. My 14 friends have made the same argument here. 15 THE COURT: So Mr. Justice Mahoney is just talking about the 16 part that might not have been within Rupert's Land at 17 the time of the Royal Proclamation? 18 MR. GOLDIE: Or to the argument that certain parts of the Royal 19 Proclamation could apply. 20 THE COURT: All right. What is he talking about in 1693? 21 MR. GOLDIE: That, as I understand it, my lord, was the first 22 case that discussed this question. Campbell and Hall, 23 of course, was after the Treaty of Paris. 24 THE COURT: Yes. Just though, I think, 1774. 25 MR. GOLDIE: Yes. In the -- my friend has been good enough to 26 refer me to the case in question. It's footnoted, 27 it's a footnote on the Baker Lake, page 532. And it 28 appears to be the case of Blankard and Galdy. 2 9 THE COURT: Yes. 30 MR. GOLDIE: The reason for the distinction is indicated by Mr. 31 Justice Mahoney when he said: 32 33 "The distinction developed in response to the 34 needs of the English settlers." 35 36 And we will see what -- how Blackstone referred to 37 that in a minute. 38 Now back to my submission on page six, I say, in 39 summary, the Royal prerogative -- and I should add the 40 words there "to legislate for a colony", because 41 that's what we are talking about -- may be exercised 42 only in territory acquired by Britain by one or both 43 of conquest and cession. There is a very limited 44 royal prerogative -- and I insert the word "power" and 45 insert the words "to establish government 46 institutions", exerciseable with respect to territory 47 acquired by settlement. But that power does not 27310 Submissions by Mr. Goldie 1 include the right to make laws concerning trade and 2 land use. 3 Now, turning to the proclamation itself -- 4 THE COURT: I think if you don't mind we will take the afternoon 5 adjournment now. 6 MR. GOLDIE: All right. 7 8 (PROCEEDINGS ADJOURNED FOR SHORT RECESS) 9 10 11 12 13 14 I hereby certify the foregoing to be 15 a true and accurate transcript of the 16 proceedings herein to the best of my 17 skill and ability. 18 19 20 21 22 Wilf Roy 23 Official Reporter 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 27311 Submissions by Mr. Goldie 1 (PROCEEDINGS RESUMED AT 3:45 P.M.) 2 3 THE COURT: Mr. Goldie. 4 MR. GOLDIE: My lord, I was just about to deal with the section 5 headed British Columbia was a Settled Colony, and I 6 say that that is in respect -- 7 THE COURT: I am sorry, when we adjourned you were at the middle 8 of page six. 9 MR. GOLDIE: Oh. Oh. I am sorry. Yes. I was just about — 10 thank you, my lord. The section headed the 11 Prerogative Power and the Royal Proclamation. 12 THE COURT: Yes. 13 MR. GOLDIE: The basis which the Royal Proclamation of 1763 was 14 issued was conquest and cession. This is evident from 15 the opening recital of the -- of the Proclamation 16 itself which reads and I quote: 17 18 "Whereas We have taken into Our Royal 19 Consideration the extensive and valuable 20 Acquisitions in America, secured to our Crown 21 by the late Definitive Treaty of Peace," 22 23 Etc. And then it goes on. If your lordship would 24 just run your eye down to between C and D or just 25 below C: 26 27 "... we have, with the Advice of our Said 28 Privy Council, granted our Letters Patent, 29 under our Great Seal of Great Britain, to 30 erect, within the Countries and Islands ceded 31 and confirmed to Us by the said Treaty." 32 33 And the opening recital of the Quebec Act of 1774, 34 which enlarged the boundaries of the original Quebec 35 colony and revoked the application of the Royal 36 Proclamation in it, begins with the words, and this is 37 found under the tab 13, my lord. The preamble reads, 38 and I quote: 39 40 "Whereas His Majesty, by His Royal 41 Proclamation, bearing Date the Seventh Day of 42 October, in the Third Year of His Reign, 43 thought fit to declare the Provisions which had 44 been made in respect to certain Countries, 45 Territories, and Islands in America, ceded to 46 His Majesty by the definitive Treaty of Peace," 47 27312 Submissions by Mr. Goldie 1 And that, I say, is an accurate description of the 2 process and of the territories that the Royal 3 Proclamation purports to deal with and which in my 4 submission the royal prerogative was limited to 5 dealing with, namely conquered or ceded territories. 6 Then I now come to the section that underwhich I 7 submit British Columbia's status is definitively 8 established, and I say British Columbia was a settled 9 colony and I -- my submission is that in respect of 10 such a colony the prerogative did not extend on the 11 enactment of the legislation. And of course, it is 12 the submission of the plaintiffs that it is the 13 legislation or the legislative aspects of the Indian 14 provisions of the Royal Proclamation which govern in 15 British Columbia. 16 Paragraph 15. The Royal Proclamation did not and 17 cannot apply to British Columbia because the colony 18 falls within the constitutional classification of a 19 settled colony. 20 The process by which the colony of British 21 Columbia was established is described in the preamble 22 to Imperial Statute 21 & 22 Victoria, An Act to 23 provide for the Government of British Columbia. 24 That's the 1858 Act, my lord, and that's the way I 25 will be referring to it in the future. The first page 26 of that Act is found under tab 16, 3-16, and I draw 27 your lordship's attention to the prepreamble. There 28 are three aspects of it that I wish to emphasize. 29 First: 30 31 "Whereas Divers of Her Majesty's subjects and 32 others have, by the licence and consent of Her 33 Majesty, resorted to and settled on certain 34 wild and unoccupied territories on the 35 northwest coast of North America." 36 37 Your lordship will see that the preamble meets the 38 description of English settlers with the licence and 39 consent of Her Majesty resorting to. And now the next 40 point -- resorted to and settled -- the verb settled 41 emerges. The next point: 42 43 "on certain wild and unoccupied territories on 44 the northwest coast of North America." 45 46 Now, that establishes the fact that there is no 47 organized government or recognized in international 27313 Submissions by Mr. Goldie 1 law. It is not unoccupied in the sense of their being 2 no people there. It is unoccupied in the sense of 3 distinguishing it from a ceded or conquered colony. 4 And then continuing: 5 6 "commonly known by the Designation of New 7 Caledonia, and from and after the passing of 8 this Act to be named British Columbia, and the 9 Islands adjacent, for Mining and other 10 purposes." 11 12 And continuing, and this is the third point: 13 14 "and it is desirable to make some temporary 15 Provision for the Civil Government of such 16 Territories, until permanent Settlements shall 17 be thereupon established, and the Number of 18 Colonists increased." 19 20 I will be coming back to that in terms of the -- of 21 the relationship that has to the native peoples, but I 22 simply say now that the preamble declares on the part 23 of the Imperial parliament the essential 24 characteristics of a settled colony. There is no 25 issue here of cession or conquest, and in fact the 26 plaintiffs say they haven't been conquered and they 27 haven't been ceded. And that view is -- was the view 28 of the Imperial parliament in 1858. 2 9 THE COURT: When was the goldrush? 30 MR. GOLDIE: The first discovery of gold was in December -- was 31 1857. By the time this Act was passed in August of 32 1858 it was a perfectly accurate statement to say that 33 some of Her Majesty's subjects and others by the 34 license and consent of Her Majesty resorted to and 35 settled on, past tense. The goldrush had begun by the 36 time this Act was passed. 37 THE COURT: Yes. When did you say the first discovery of gold 38 was? What month did you say? 39 MR. GOLDIE: I think it was -- let me put it this way, my lord: 40 Douglas issued a Proclamation in December of 1857 when 41 he was Governor of Vancouver Island and it was warning 42 all people who wanted to go on to the mainland that it 43 wasn't open season. 4 4 THE COURT: Yes. 45 MR. GOLDIE: Now, in the next paragraph, my lord, I make 46 reference to the Deadman's Island case, a judgment of 47 the judicial committee. The issue was whether a 27314 Submissions by Mr. Goldie 1 reserve had been created of Deadman's Island where the 2 naval establishment now is, and the contest, as your 3 lordship can see, was between British Columbia and 4 Canada. And in the judicial committee Lord Dunedin 5 made the observations which I have set out under 6 paragraph 17, and I quote: 7 8 "There have been produced in the case a very 9 interesting set of letters, despatches, and 10 maps, which although necessarily imperfect in 11 detail, yet provide a clear picture of the 12 early land history of the Colony. Matters had 13 begun by the indiscriminate squatting of 14 adventurous settlers in a wild country." 15 16 And in a very succinct way that sums it up. And he 17 says: 18 19 "The initiation of the reign of law may be 20 taken to date from the advent of Governor 21 Douglas in 1858." 22 23 And he refers to the 1858 Act. And continuing with my 24 written submission. The "subjects and others" who had 25 settled on the mainland were largely gold prospectors 26 or miners, who were required by a Proclamation issued 27 by Governor Douglas of Vancouver Island to obtain 28 mining licences and permits from the Government of the 29 Island. Now, that reference, my lord, is under tab 30 3-18 and it's not page eleven, it's page 33. And the 31 rest of the wording can be crossed out. It's not an 32 accurate. 33 THE COURT: Despatch number 23? 34 MR. GOLDIE: Yes. They can be crossed out, my lord. This is 35 taken from the papers relating to British Columbia, 36 which is Exhibit 1142, and it's under -- from tab one 37 of that exhibit. And Douglas sent along to -- had 38 sent along to London something which he had issued 39 without authority as he later commented, but it is the 40 1857 Proclamation that I referred to a minute ago. 41 And it reads: 42 43 Whereas by law all mines of gold, and all gold 44 in its natural place of deposit within the 45 Districts of Fraser's River and of Thompson's 46 River commonly known as the Quaatlan, Couteau, 47 and Shuswap countries, whether on the lands of 27315 Submissions by Mr. Goldie 1 the Queen or any of Her Majesty's subjects, 2 belong to the Crown. 3 And whereas information has been received 4 by the Government that gold exists upon and in 5 the soil of the said Districts, and that 6 certain persons have commenced or are about to 7 commence searching and digging for the same for 8 their own use, without leave or authority from 9 Her Majesty. 10 Now I, James Douglas," 11 12 etc, 13 14 "do hereby publicly notify and declare, that 15 all persons who shall take from any lands 16 within the said Districts any gold," 17 18 etc, or shall disturb and so on, 19 20 "without having been duly authorized in that 21 behalf by Her Majesty's Colonial Government, 22 will be prosecuted, both criminally and 23 civilly, as the law allows." 24 25 Well, of course, the irony was that there was no law, 26 but that didn't deter him, and as a matter of fact he 27 caused this Proclamation to be advertised in 28 Washington and Oregon. 29 THE COURT: What was the basis for the claim that this was — 30 that this gold belonged to the Crown? 31 MR. GOLDIE: The precious metals. 32 THE COURT: Precious metals belonged to the Crown in the realm 33 of the Crown? 34 MR. GOLDIE: Yes. 35 THE COURT: What made this one of the realms of the Crown? 36 MR. GOLDIE: Well, it was -- it was part of the Dominions of Her 37 Majesty in respect of -- in which there was no 38 established government. If your lordship will go back 39 to the Act under tab 16, the title of the Act is An 40 Act to Provide for the Government of British Columbia, 41 and it talks about Her Majesty's subjects. Oh, yes, 42 paragraph one: 43 44 British Columbia shall, for the purposes of 45 this Act, be held to comprise all such 46 Territories within the Dominions of Her 47 Majesty." 27316 Submissions by Mr. Goldie 1 2 3 THE COURT: I would have thought that that was the opening -- 4 you say that this was Her Majesty -- His Majesty's 5 Dominions before this? 6 MR. GOLDIE: Yes. Yes. I'll — 7 THE COURT: Dating back to Cook's time or —? 8 MR. GOLDIE: No. I will be submitting that the acts — that the 9 assertions of sovereignty, underlining the word 10 assertion as opposed to completing the sovereignty in 11 the international law sense, began on the coast with 12 Cook and Vancouver, began in the interior with 13 MacKenzie's voyage and Fraser's establishment of 14 trading posts and was -- and then I will be submitting 15 that a key element in the assertion of sovereignty was 16 the Act of 1803, which was an Imperial Act providing 17 for or enabling, I should say, enabling the 18 appointment of magistrates within the Indian 19 territories, which, and I will say that included 20 British Columbia, the mainland, the Act of 1821 which 21 did the same thing and finally the Oregon Boundary of 22 1846 which put the matter beyond doubt 23 internationally. 24 THE COURT: All right. 25 MR. GOLDIE: Whatever -- whatever the validity of Douglas' 26 Proclamation of 1857 was, the point I'm making here is 27 that there never was any suggestion that British 28 Columbia was acquired by conquest or that it was ceded 2 9 by anybody to the Crown. 30 THE COURT: Did the Oregon Boundary Act cede or recognize the 31 Crown's title north of the 49th Parallel? 32 MR. GOLDIE: Yes. What it did was resolve a state of affairs 33 which had -- well, firstly, it moved from a state of 34 affairs in which there was only the vaguest pretension 35 to the situation that obtained after the Treaty of 36 Gent, and I think it was in 1818 which extended the 37 49th Parallel to the Stony Mountains. 3 8 THE COURT: Yes. 39 MR. GOLDIE: And then there was a period of -- in which I call 40 the standstill period in which the two countries 41 agreed to a joint occupation without prejudice to 42 their respective claims. And that was, I think, a 43 period that extended for, oh, 20 some odd years 44 perhaps. I may be wrong in that. But finally the 45 Oregon boundary fixed the boundary at the 49th 46 Parallel, the British losing out in their contention 47 that the boundaries should have been the Columbia 27317 Submissions by Mr. Goldie 1 River. 2 THE COURT: Not much doubt about that, is there? 3 MR. GOLDIE: Well, it all depends. The Hudson's Bay Company 4 felt that the treaty was a disaster because they had 5 been in that country for upwards of 50 years and they 6 were squeezed out. 7 In paragraph 19 I say, and I quote, the corollary 8 to the assertion that British Columbia was a settled 9 colony is the denial that British Columbia was 10 acquired by conquest or cession. The plaintiffs' 11 suggestion that Britain acquired British Columbia in 12 1763 as part of "Canada" ceded by the French is 13 without, in my submission, foundation and will be 14 shown to be so in a later section of this summary. 15 Now, my lord, I submit that Mr. Justice Hall in 16 Calder did not grasp the distinction between a settled 17 colony and one conquered and ceded in his discussion 18 of Milirrpum in the Supreme Court Report at pages 414 19 to 416. And I have put the -- put that discussion and 20 I don't propose reading it, my lord, but it starts at 21 the last paragraph in column one on page 414 and goes 22 over to the end of the first paragraph on page 416. 23 And in that -- in that discussion he -- he reaches the 24 conclusion that Milirrpum was in error, and I say that 25 in so doing he did not take into account the 26 distinction that Mr. Blackburn was careful to analyse 27 and take into account. He quotes from Milirrpum on 28 page 415 beginning with the paragraph "Blackburn J." 29 He says: 30 31 "Blackburn J., after an extensive review of the 32 facts and historical records involving some 50 33 pages, held as follows: 34 35 'This question of fact has been for me by 36 far the most difficult questions of fact in 37 the case. I can, in the last resort, do no 38 more than express that degree of conviction 39 which all the evidence has left upon my 40 mind, and it is this: that I am not 41 persuade that the plaintiffs' contention is 42 more probably correct than incorrect. In 43 other words, I am not satisfied, on the 44 balance of probabilities, that the 45 plaintiffs' predecessors had in 1788 the 46 same links to the same areas of land as 47 those which the plaintiffs now claim.'" 2731? Submissions by Mr. Goldie 1 2 And Mr. Justice Hall goes on to say, and this was the 3 key part of his finding: 4 5 "That finding necessarily disposed of the claim 6 being made." 7 8 And then he goes on to refer to Calder in the trial 9 and Court of Appeal, and of course Milirrpum was 10 decided before the Supreme Court of Canada judgment in 11 Calder and after the Court of Appeal. And then he -- 12 in the top paragraph he says: 13 14 "The essence of his" 15 16 That's Mr. Justice Blackburn, 17 18 "concurrence with the Court of Appeal judgment 19 lies in his acceptance of the proposition that 20 after conquest or discovery of the native 21 peoples have no rights at all except those 22 subsequently granted or recognized by the 23 conqueror or discoverer." 24 25 Now, with great respect, the issue that was being 26 addressed by Mr. Justice Blackburn when he dealt with 27 the nature of the colony, was not conquest or 28 discovery in the sense of what rights does that give 29 to the -- to the discoverer, but in his -- in the 30 inquiry he addressed to himself, what flows from the 31 fact that it's a settled colony as opposed to a 32 conquered or ceded colony -- 33 THE COURT: Well, why isn't this — why isn't this a case that 34 falls to be decided on a consideration of the rights 35 flowing from discovery rather than from the assertion 36 of jurisdiction in a settled colony? 37 MR. GOLDIE: Well — 38 THE COURT: Based in this case on Cook's discovery, if he 39 discovered it. 40 MR. GOLDIE: My submission will be that the Royal Proclamation 41 on its face has nothing to do with British Columbia. 42 And it is only from the judgments of Mr. Justice 43 Norris and Mr. Justice Hall which suggest an extension 44 of the Proclamation westward that there is any 45 suggestion that it does apply. And in my submission 46 neither of those -- neither of those two learned 47 judges considered that it would be unconstitutional to 27319 Submissions by Mr. Goldie 1 apply the royal prerogative to a settled colony. But 2 my basic assumption or my basic submission is going to 3 be British Columbia was unknown in 1763. Cook was 4 what, 15 years later. And indeed the issue to be 5 decided by your lordship is what flowed from the 6 discoveries that Cook and others -- because -- 7 THE COURT: Well, I said a moment ago, why do we start with 8 1858? Why didn't we start with 1778. 9 MR. GOLDIE: Oh, it's because 1858 is an Act of parliament which 10 put the question of what the colony was beyond doubt. 11 We -- there are other cases dealing with other 12 colonies where, because there is nothing like the Act 13 of 1858, the court has to say well, what was it? Was 14 it conquered or was it ceded or was it settled? The 15 whole of the premise that your lordship is being asked 16 to address at this point is the application of the 17 Royal Proclamation. 18 THE COURT: Yes. Yes. I am just thinking of those passages in 19 the judgments of Chief Justice Marshall, particularly 20 Johnson and Mcintosh, where he equates the beginnings 21 of aboriginal rights with discovery. Or he -- 22 MR. GOLDIE: Yes. If we can put the Royal Proclamation just to 23 one side. 2 4 THE COURT: Yes. 25 MR. GOLDIE: Then we get to what I say are the -- is the nub of 26 the whole question, is: what are the rights that were 27 recognized by colonial law at the time -- I don't 28 say -- well, one can -- one can go back to the time of 29 discovery, but there was no established government at 30 that time in British Columbia. And I will be 31 endeavoring to take your lordship back before any 32 possible act of discovery in putting some flesh on the 33 phrase "colonial law." That's a phrase that I 34 referred to in the Select Committee of New Zealand. 35 THE COURT: Yes. 36 MR. GOLDIE: But at the present time we're confronted with the 37 proposition which the plaintiffs made is that the 38 Royal Proclamation applies to British Columbia and 39 it's part of the reserve. 4 0 THE COURT: Yes. 41 MR. GOLDIE: And that's what I have to dispose of. Now, I 42 should say, to complete my comments on paragraph 20, 43 that Mr. Justice Blackburn concluded that the area in 44 New South Wales that he was dealing with was a settled 45 colony. And I continue in paragraph 21. The 46 plaintiffs have asserted that even where the 47 prerogative powers of the Crown have been restricted 27320 Submissions 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 THE COURT: 34 MR. GOLDIE 35 THE COURT: 36 MR. GOLDIE 37 THE COURT: 38 MR. GOLDIE 39 THE COURT: 40 MR. GOLDIE 41 THE COURT: 42 MR. GOLDIE 43 44 45 46 THE COURT: 47 MR. GOLDIE by the granting of government to a colony, a vestige of the prerogative remains and empowers the King to make grants of vacant lands and lands occupied by Indians. Accordingly, the plaintiffs say that the Indian land provisions of the Royal Proclamation were a valid exercise of the prerogative power and applied even to settled colonies. Apparent authority for this proposition may be found in Johnson and M'Intosh. And then I go on to look at that. And under tab 3-21 I have placed the extract of what I understand to be what my friends rely upon. Chief Justice Marshall suggests at page 596 of this case that the power to legislate with respect to vacant land is reserved to the Kings as a branch of the prerogative relating to political relations between Great Britain and foreign nations, even though he recognizes that the Indians were not in fact an independent nation. And I will come to that in a minute. He also distinguished Campbell and Hall on the basis that that case dealt with the imposition of a tax which powers he understood had never been remembered as part of the royal prerogative. Now, to introduce this, he was -- he was refuting an argument of counsel for the claimant, and this is an interjection. It's not in my material, my lord. But I wanted to introduce my discussion of what he said with these words: He was refuting an argument of counsel for the claimant who claimed under an Indian title and I -- can I have the full report. I want to get the full report, my lord, not just the extract. I am referring to the full report which is Volume IX of the plaintiffs' authorities -- U.S. cases tab 22. What volume number? : Volume IX, my lord, of the plaintiffs' U.S. cases. Thank you. : And I want to -- What tab number? : It's tab 22. I don't think I have the right -- Volume IX? : Volume IX. It's a green book, my lord. There is a separate series for American? : Yes. That's correct. Oh, I see. Perhaps -- yes, that's right. We re-bound ours. Oh, Miss Sigurdson tells me it's Volume XII, tab 22 of the U.S. cases. It should fall open at that page. That's it, yes. That's it. : I am going to refer to page 6 -- well, the page 27321 Submissions by Mr. Goldie number is a stamped page number in the upper right-hand corner, 276. COURT: Yes. GOLDIE: The second column beginning with the -- COURT: Sue. GOLDIE: -- paragraph numbered three. This is the argument of the claimant. And he was claiming under an Indian title and he challenged the validity of the Proclamation of 1763, because in his eyes the lands in question lay within the limits of the colony of Virginia and he said the colony of Virginia was a settled colony and the Proclamation could have no effect with respect to it. COURT: And that's on page 276? GOLDIE: Yes. If your lordship would look in the right-hand column. COURT: Yes. GOLDIE: And the end of the first paragraph beginning with the word -- with the letter three. COURT: Yes. This is the argument of counsel? GOLDIE: This is argument of counsel. And I -- I now come to the way Chief Justice Marshall dealt with that. COURT: Yes. GOLDIE: And that begins -- it's at a page, the stamp number in the upper right-hand on my copy is just 28. It should be 284. It follows 283 and precedes 285. COURT: Yes. GOLDIE: And I am going to refer your lordship to the left-hand column and four lines from the top and this is in the judgment of the Chief Justice. Your lordship sees the words, quote: "It has been contended that, in this proclamation, the king transcended his constitutional powers; and the case of Campbell v. Hall (reported by Cowper) is relied on to support this position." And he's -- he's now going to deal with that proposition. And this is what he says: "It is supposed to be a principle of universal law that, if an uninhabitated country be discovered by a number of individuals, who acknowledge no connection with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverer, 1 2 3 THE 4 MR. 5 THE 6 MR. 7 8 9 10 11 12 13 14 THE 15 MR. 16 17 THE 18 MR. 19 20 THE 21 MR. 22 23 THE 24 MR. 25 26 27 THE 28 MR. 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 27322 Submissions by Mr. Goldie 1 so far at least as they can use it. They 2 acquire a title in common. The title of the 3 whole land is in the whole society. It is to 4 be divided and parceled out according to the 5 will of the society, expressed by the whole 6 body, or by that organ which is authorized by 7 the whole to express it. 8 If the discovery be made, and possession of 9 the country be taken, under the authority of an 10 existing government, which is acknowledged by 11 the emigrants, it is supposed to be equally 12 well settled that the discovery is made for the 13 whole nation, that the country becomes a part 14 of the nation, and that the vacant soil is to 15 be disposed of by that organ of the government 16 which has the constitutional power to dispose 17 of the national domains, by that organ in which 18 all vacant territory is vested by law. 19 According to the theory of the British 20 constitution, all vacant lands are vested in 21 the crown, as representing the nation; and the 22 exclusive power to grant them is admitted to 23 reside in the crown, as a branch of the royal 24 prerogative. It has been already shown that 25 this principle was as fully recognized in 26 America as in the island of Great Britain. All 27 the lands we hold were originally granted by 28 the crown; and the establishment of a regal 29 government has never been considered as 30 impairing its right to grant lands within the 31 chartered limits of such colony. In addition 32 to the proof of this principle, furnished by 33 the immense grants, already mentioned, of lands 34 lying within the chartered limits of Virginia, 35 the continuing right of the crown to grant 36 lands lying within that colony was always 37 admitted." 38 39 If I may pause there. Your lordship will see that he 40 is taking a line which is going to lead him to the 41 conclusion that the Crown has a sort of a residual 42 power arising out of the nature of the discovery. 43 Continuing: 44 45 "A title might be obtained, either by making an 46 entry with the surveyor of a county, in 47 pursuance of law, or by an order of the 27323 Submissions by Mr. Goldie 1 governor in council, who was the deputy of the 2 King, or by an immediate grant from the crown. 3 In Virginia, therefore, as well as elsewhere in 4 the British dominions, the complete title of 5 the crown to vacant lands was acknowledged. 6 So far as respected the authority of the 7 crown, no distinction was taken between vacant 8 lands and lands occupied by the Indians. The 9 title, subject only to the right of occupancy 10 by the Indians, was admitted to be in the King, 11 as was his right to grant that title. The 12 lands, then, to which this proclamation 13 referred -- " 14 15 That's the Proclamation of 1763, 16 17 "-- were lands which the King had a right to 18 grant, or to reserve for the Indians." 19 20 Now, your lordship will observe that he makes no 21 reference to ceded or settled at this point. Then he 22 goes on: 23 24 "According to the theory of the British 25 constitution, the royal prerogative is very 26 extensive so far as respects the political 27 relations between Great Britain and foreign 28 nations. The peculiar situation of the 29 Indians, necessarily considered in some 30 respects, as a dependent, and in some respects 31 as a distinct people, occupying a country 32 claimed by Great Britain, and yet too powerful 33 and brave not to be dreaded as formidable 34 enemies, required that means should be adopted 35 for the preservation of peace, and that their 36 friendship should be secured by quieting their 37 alarms for their property. This was to be 38 effected by restraining the encroachments of 39 the whites; and the power to do this was never, 40 we believe, denied by the colonies to the 41 crown." 42 43 Now, in that passage he finds the power of the Crown 44 to legislate not in the question of cession or 45 conquest but on the basis that the Indian nations were 46 to be treated as somehow entering into the field of 47 foreign relations. And to that extent he foreshadows 27324 Submissions by Mr. Goldie 1 the position that he took in Worcester and Georgia. 2 Then he goes on to say: 3 4 "In the case of Campbell against Hall, that 5 part of the proclamation was determined to be 6 illegal." 7 8 And he's now talking about the Proclamation which not 9 of 1763 but of the Proclamation which imposed a tax, a 10 separate Proclamation altogether. Continuing, quote: 11 12 "that part of the proclamation was determined 13 to be illegal which imposed a tax on a 14 conquered province, after a government had been 15 bestowed upon it. The correctness of this 16 decision cannot be questioned, but its 17 application to the case at bar cannot be 18 admitted." 19 20 And then he says the power to tax is in parliament. 21 With great respect to the Chief Justice, the 22 government had not been bestowed upon it. It had only 23 been promised, a representative legislature, but that 24 was enough in the view of Lord Mansfield to take it 25 out of the category of a ceded or conquered province. 26 So I say, my lord, that the very local application 27 that he gave to the Royal Proclamation enabled him to 28 avoid the question of the constitutionality of its 29 application which was raised in the claimant's 30 argument by shifting its justification to the king's 31 right to conduct the foreign affairs of the nation. 32 Now, this does not help the plaintiffs in my 33 submission, and I am now dealing with the proposition 34 they make because it emphasizes the situation at the 35 time, namely the power of the Indian nations in the 36 war with France and their unhappiness with westward 37 settlement. 38 THE COURT: Is it — is it the view of Professor Hogg that the 39 tax would have been lawful if imposed before the 40 promise of a grant of an assembly? 41 MR. GOLDIE: Yes. That's my understanding. 42 THE COURT: Because I would have thought that with a conquered 43 territory the Crown could legislate without 44 limitation. 45 MR. GOLDIE: Yes. The — and that's what Chief Justice 46 Mansfield held. 4 7 THE COURT: Yes. 27325 Submissions by Mr. Goldie 1 MR. GOLDIE 2 3 4 THE COURT: 5 MR. GOLDIE 6 7 THE COURT: 8 MR. GOLDIE 9 THE COURT: 10 11 12 13 MR. GOLDIE 14 15 THE COURT: 16 MR. GOLDIE 17 THE COURT: 18 19 MR. GOLDIE 20 THE COURT: 21 MR. GOLDIE 22 THE COURT: 23 MR. GOLDIE 24 25 26 27 28 29 ] 30 31 32 33 34 35 36 37 38 39 1 40 41 42 43 44 45 46 47 : But he said what we have is the intervening fact of another Proclamation which promised a legislative form. It was more than a promise, was it not? : Well, I don't think at the time the levy was made that the legislature had been called. No, it hadn't been called. : No. But perhaps you were speaking advisingly when you said another Proclamation intervened. I think there was a Proclamation setting up a legislative council, but — : Yes, that's correct. My emphasis was on the fact that there was no legislature had been -- It had not been convened. : Convened, yes. I think that's right. I am not sure that the governor had even been appointed -- or yes. : No. He had been appointed. Yes. Because he was the man who imposed the tax. : He was the man who imposed the tax. That's right, yes. : Now, my lord, Johnson and Mcintosh, then, as I say, really provides no assistance to my friend in suggesting that the Royal Proclamation had some application to lands in a settled colony. It was in the interest of the United States, of the Federal power in the United States at the time Chief Justice Marshall handed down this judgment to find authority in the central power which was transferred to the United States as opposed to the States. Whether the proposition put by counsel had any validity in terms of settled versus conquered or ceded we'll never know, because the Chief Justice very cleverly side-tracked that off into the question of foreign relations. And I am returning now to my written argument in paragraph 23. I say this: that is to say, Chief Justice Marshall's characterization of the ratio decidendi of Campbell and Hall is inaccurate. To the contrary, the Court held in that case that the tax was invalid because the prior grant of an assembly to the colony in question had terminated the King's prerogative power to impose a tax. It is apparent from the suggestion that the existence of a prerogative power to tax (in conquered or ceded territory) was not disputed: the decision necessarily implies that the tax would have been valid had the 27326 Submissions by Mr. Goldie 1 Proclamation imposing it been issued before the 2 granting of an assembly. And your lordship has seen 3 the reference to Hogg that I have in that section. 4 And then I go on to say Chief Justice Marshall's 5 recognition of a residual power over lands is 6 particularly ill-founded in relation to settled 7 colonies with respect to which the King never had a 8 prerogative power general legislation. In settled 9 colonies, the settlers were deemed to have brought 10 with them the laws of England, both statute and common 11 law. And that is again the reference there is to Mr. 12 Hogg or Professor Hogg under tab 24, and he says: 13 14 "When an uninhabited territory was settled by 15 British subjects, the rule of the common law 16 was that the first settlers were deemed to have 17 imported English law with them. In the absence 18 of any competing legal system, English law 19 followed British subjects and filled the 20 territory. The importation was deemed to have 21 occurred on the date of the settlement of the 22 colony, but in practice settlement was a 23 gradual process and the date of the first 24 settlement was unknown or disputable." 25 26 I'm going to come back to that in a minute. 27 THE COURT: I'm sorry, I haven't found that. 28 MR. GOLDIE: I am sorry, my lord, I am reading from under tab 29 V/3-24. 30 THE COURT: Page. 31 MR. GOLDIE: Page 23 of Hogg. 32 THE COURT: I am looking at Hogg, but I am under the wrong tab, 33 I guess. Tab 23? 34 MR. GOLDIE: 24. 35 THE COURT: 24. All right. 36 MR. GOLDIE: He's under — 37 THE COURT: Yes, all right. 38 MR. GOLDIE: He's under two tabs there and I say that a 39 reservation to the King of the right to grant land on 40 a settled colony is inconsistent with the importation 41 of English law to the colonies, and the powers granted 42 to colonial governors. 43 Now, my lord, I am going to come back to this 44 again, but I say all of the uncertainties to which 45 Hogg, Professor Hogg refers to were resolved by the 46 Act of 1858 and what was done under that Act by 47 Governor Douglas. It wasn't a question of deeming 27327 Submissions by Mr. Goldie 1 English law to follow settlers. We have a precise 2 date for that. 3 Going to paragraph 25. Even if the law could be 4 construed as reserving to the monarch a prerogative 5 power to legislate with respect to vacant lands in a 6 settled colony, it is incontrovertible law that the 7 prerogative power may be diminished or abolished by a 8 statute of the Imperial Parliament. And I add the 9 words: and by the local legislature where authorized 10 as Douglas was. And the reference that I make there 11 is again to Hogg under the next tab, referring to the 12 prerogative, and he starts off by saying: 13 14 "The royal prerogative consists of the powers 15 and privileges accorded by the common law to 16 the Crown. Dicey described it as 'the residue 17 of discretionary or arbitrary authority, which 18 at any given time is left in the hands of the 19 Crown.' The prerogative is a branch of the 20 common law, because it is the decisions of the 21 courts which have determined its existence and 22 extent. 23 In the next chapter, we shall see that the 24 Crown possessed certain prerogative legislative 25 powers over British colonies. The King, acting 26 without the concurrence of Parliament, had the 27 power to create the office of Governor, 28 executive council, legislative assembly and 29 courts for a colony. In the case of a 30 conquered colony (as opposed to a settled 31 colony), the King possessed a general power of 32 legislation - but only until such time as the 33 colony was granted its own legislative 34 assembly. These powers are of mainly 35 historical interest for Canada today; but the 36 Constitutions of today." 37 38 And so on. And then in the next paragraph: 39 40 "Apart from the power over the colonies, the 41 courts held that there was no prerogative power 42 to legislate; only the Parliament could make 43 new laws. The courts also held that there was 44 no prerogative power to administer justice: 45 only the courts could adjudicate disputes 46 according to law." 47 2732? Submissions by Mr. Goldie 1 And we will see that it was Douglas, authorized as he 2 was under the Imperial Act, who created the courts. 3 Now, the other -- I wish to add as another 4 reference there, my lord, and it should be under the 5 same tab -- before I leave Hogg, I should go over to 6 the next page. And to complete that I'll start on the 7 page ten, the last two lines: 8 9 "These decisions confined the prerogative to 10 executive governmental powers. And within this 11 area the prerogative was further limited by the 12 doctrine that most executive action which 13 infringed the liberty of the subject required 14 the authority of a statute. Moreover, the 15 prerogative could be abolished or limited by 16 statute, and, once a statute had occupied the 17 ground formerly occupied by the prerogative, 18 the Crown had to comply with the terms of the 19 statute. All of these rules, and especially 20 the last (displacement by statute), have had 21 the effect of shrinking the prerogative powers 22 pf the Crown, down to a very narrow compass." 23 24 That's the end of that quotation. And now, I want to 25 go on to the case of Attorney General and Cain, which 26 was a judgment of the judicial committee from Canada, 27 and the issue was whether the expulsion of an alien 28 was beyond the legislative capability of the -- of 29 parliament at a time when it did not possess extra 30 territorial powers. But the reference to which I 31 refer is page 546. And the first line, the first 32 sentence -- 33 THE COURT: I am sorry, where do I find it? 34 MR. GOLDIE: It's under tab 25, the same one as Hogg, but it's 35 following. It's separated by a blue sheet. 36 THE COURT: Oh, yes, I have it. 37 MR. GOLDIE: And if your lordship would turn to page 546. The 38 committee said, quote: 39 40 "One of the rights possessed by the supreme 41 power in every State is the right to refuse to 42 permit an alien to annex what conditions it 43 pleases to the permission to enter it, and to 44 expel or deport from the State, at pleasure, 45 even a friendly alien, especially if it 46 considers his presence in the State opposed to 47 peace, order and good government, or to its 27329 Submissions by Mr. Goldie 1 social or material interests. The Imperial 2 Government might delegate those powers to the 3 governor or Government of the one of the 4 Colonies, either by royal proclamation which is 5 has the force of a statute - Campbell v. Hall - 6 or by a statute of the Imperial Parliament, or 7 by a statute of a local Parliament to which the 8 Crown has assented. If this delegation has 9 taken place, the depositary or depositaries of 10 the executive and legislative powers and 11 authority of the Crown can exercise those 12 powers and that authority to the extent 13 delegated as effectively as the Crown could 14 itself have exercised them. The following 15 cases establish these propositions." 16 17 Now, it's going to be my submission that Douglas 18 enjoyed the complete delegation of Imperial authority 19 at the relevant times and that that completely 20 displaced any residual room for the application of the 21 Royal Proclamation. 22 Now, my friend, in the course of his argument, 23 suggested that his Douglas' instructions preclude 24 interference with exercise of the prerogative. The 25 instruction itself simply states, and perhaps I should 26 quote it. It's at Exhibit 1142, tab one, page 6, and 27 it's paragraph XVIII. I should say I won't quote it. 28 I don't have it here. But it is not the exercise of 29 the prerogative. It is the prerogative itself. In 30 other words, his instructions said don't interfere 31 with the prerogative as opposed to the exercise of the 32 prerogative. Now, the Royal Proclamation is simply an 33 exercise of the prerogative. And he was unincumbered 34 when it came to that. He could not enact an ordinance 35 that abolished the future exercise of the prerogative. 36 But he could pass an ordinance which was inconsistent 37 with an existing exercise of the prerogative in its -- 38 in its application to the colony. 39 Now, I am back at paragraph 26 on page 12 of my 40 written argument. Any prerogative power with respect 41 to lands within what became the Colony of British 42 Columbia was restricted within a few months of the 43 establishment of the colony. And I emphasize any 44 prerogative. The Imperial Parliament by the 1858 Act 45 conferred upon Douglas' powers to make laws for the 46 peace, order and good government of the colony. Now, 47 the chain of that is one that we should follow 27330 Submissions by Mr. Goldie 1 through, and I am going to refer firstly to tab 16 in 2 the yellow binder. It should be -- it's tab 3-16. 3 THE COURT: Yes. 4 MR. GOLDIE: It's the 1858 Act. 5 THE COURT: Yes. 6 MR. GOLDIE: Under two, section two: 7 8 "It shall be lawful for Her Majesty, by any 9 Order or Orders to be by Her from Time to Time 10 made, with the Advice of Her Privy Council, to 11 make, ordain, and establish, and (subject to 12 such Conditions or Restrictions as to Her shall 13 seem meet) to the authorize and empower such 14 Officer as She may from Time to Time appoint as 15 Governor of British Columbia, to make Provision 16 for the Administration of Justice therein, and 17 generally to make, ordain and establish, all 18 such Laws, Institutions, and Ordinances as may 19 be necessary for the Peace, Order and good 20 Government of Her Majesty's Subjects and others 21 therein; provided that all such Orders in 22 Council and all Laws and ordinances so to be 23 made as aforesaid, shall be laid before both 24 Houses of Parliament as soon as conveniently 25 may be after the making and Enactment thereof 26 respectively." 27 28 Now, so the parliament conferred upon the Queen and 29 council the power to appoint the Governor and the 30 power to enable him to make laws for peace, order and 31 good government. And that was the chain. Not through 32 the royal prerogative. It was through an Act of 33 Parliament. And at tab 27, 3-27 -- well, I should 34 note that under 3-26 is the Proclamation proclaiming 35 the 1858 Act within the colony of British Columbia. 36 But under -- 37 THE COURT: It comes first? 38 MR. GOLDIE: Yes, it comes first, and then the Act itself comes 39 next. And then finally under tab 27 we have a 40 Proclamation issued under that Act and it was made in 41 December of 1858 and the preamble traces the line of 42 authority that I have referred to, "by virtue of an 43 Act of Parliament ... the Queen by a Commission under 44 the Great Seal of the United Kingdom ... in conformity 45 therewith," that is to say with the Act, he has been 46 "authorized by proclamation issued under the Public 47 Seal of the ... Colony, to make Laws ... for the 27331 Submissions by Mr. Goldie 1 2 3 4 1 5 6 7 8 9 10 11 12 13 14 15 THE COURT: 16 17 MR. GOLDIE 18 19 20 21 22 23 24 25 THE COURT: 26 MR. GOLDIE 27 THE COURT: 28 MR. GOLDIE 29 30 THE COURT: 31 MR. GOLDIE 32 THE COURT: 33 MR. GOLDIE 34 35 THE COURT: 36 MR. GOLDIE 37 THE COURT: 38 MR. GOLDIE 39 THE COURT: 40 MR. GOLDIE 41 42 THE COURT: 43 MR. GOLDIE 44 45 ] 46 47 peace, order and good government of the same. Now, therefore ... by virtue of the authority" he proclaims, ordains and enacts "that on and after the day of the date of this proclamation, it shall be lawful for the Governor, for the time being, by any instrument in print or in writing, or partly in print and partly in writing, under his hand and seal to grant to any person or persons any land belonging to the Crown in the said Colony." So the Governor, by virtue of the authority that comes to him from an Imperial Act of Parliament, becomes the sole person who can deal with land in the colony. And that excludes any residual aspect of the royal -- of the royal prerogative to deal with vacant lands. You are ahead of me, I think. What is this Proclamation on the 2nd of December? : That is a Proclamation enabling him to grant lands in the colony. And it winds up with these words: "every such Instrument shall be valid as against Her Majesty, Her Heirs and Successors for all the estate and interest expressed to be conveyed by such instrument." All right. And then you went to -- where is this? : Then I go to the -- well, that completes -- That completes it. All right. : -- my -- the line that I'm taking in terms of any residual power of the royal prerogative. Where was the English law at? : That is — Must have been the same time. : The same time, and it's -- I am going to come to it in a minute. All right. When you get there. : All right. Now, is your lordship -- It is also made -- : On the same date. It was November 19, wasn't it? : I am sorry, yes. Your lordship is right. November 19. I only remember because it's my sister's birthday. : Well, I have nothing to jog my recollection. Well, I say at the top of page 13 what I have said a few minutes ago. The prerogative power to make laws with respect to lands in British Columbia did not survive in any event beyond December 2, 1958 when it was 27332 Submissions by Mr. Goldie 1 replaced by a power in Douglas granted by his 2 Legislative Act which he was expressly empowered to 3 do. 4 THE COURT: I am just having a little difficulty with 5 understanding the reason for such a Proclamation. 6 MR. GOLDIE: It was on the advice, I believe, of Begbie that 7 there should be a law in the colony which stated who 8 could make a Crown grant. Now, I think I can get 9 your -- the reference to that. 10 THE COURT: Well, I suppose this is a law that he's proclaiming, 11 is it, pursuant to the English Law Act, or is he doing 12 it in some other chain of authority? 13 MR. GOLDIE: He is doing it -- the chain of authority goes right 14 straight back to the 1858 Act. It's found in the 15 preamble. It starts this way: The 1858 Act says by 16 an Order-in-Council the Queen can appoint a Governor 17 and confer upon him such powers as she deems 18 desirable. What was done by Order-in-Council was to 19 appoint him with respect to his Commission and to give 20 him instructions and he was the legislature, the 21 legislative body as well as the executive until 1863. 22 THE COURT: But I have some difficulty in understanding if there 23 is -- if the laws of England as of that date apply to 24 the colony, why he would be issuing a Proclamation. I 25 suppose he is -- I suppose that's -- that's a blanket 26 statement and he is now bringing some practical 27 application to it, is he? 28 MR. GOLDIE: I think the concern was that without it who was 29 going to sign the Crown grant. 30 THE COURT: Well, is a Proclamation in this sense, is it 31 legislation? 32 MR. GOLDIE: Yes, it will be, my lord. I am going to deal with 33 that. 34 THE COURT: Yes. If a Proclamation is legislation, then I can 35 understand it? 36 MR. GOLDIE: It was — let me. 37 THE COURT: It says it's a Proclamation having a force of law. 38 MR. GOLDIE: Yes. 39 THE COURT: To convey Crown lands. All right. Well, I 40 understand. I see it's not inconsistent with the 41 English Law Act. 42 MR. GOLDIE: In another part of my submission I dwell upon the 43 effect of — 44 THE COURT: Yes. All right. 45 MR. GOLDIE: — what he had there. All I'm dealing with now is 46 the proposition that the Royal Proclamation sort of 47 sneaked in through the back door and had some 27333 Submissions by Mr. Goldie 1 application in British Columbia. Now, I have already 2 dealt with the submission that I make in paragraph 29. 3 MR. RUSH: Well, just before you move on, if you are not going 4 to deal with it. 5 MR. GOLDIE: Well, I would be glad to. 6 MR. RUSH: Well, are you or aren't you? 7 MR. GOLDIE: I would be glad to right now, sure. 8 MR. RUSH: Well, go ahead. 9 MR. GOLDIE: As the defendant Province submits, and I add this 10 word, if Chief Justice Marshall, and I insert these 11 words, was making a general proposition, and I say he 12 wasn't because he was talking about the foreign 13 relations between the King and the particular Indian 14 tribes at the time. I say he misunderstood the scope 15 of prerogative power in settled colonies - add the 16 word settled - with respect to which the King retained 17 no legislative power. And I say in contradiction of 18 their earlier assertion, the plaintiffs themselves 19 agree, in another part of their written summary of 20 argument, that the Crown could not alter the land 21 provisions of the Royal Proclamation by exercise of 22 the royal prerogative accept in conquered or ceded 23 areas where a prerogative power of legislation is 24 retained. And that reference is under tab 29. 25 MR. RUSH: And that's not a position advanced by the plaintiffs 2 6 in the argument and my friend well knows that. That 27 was a position that was put -- advanced in the summary 2 8 and was not advanced in the final argument and it's 29 not a position advanced by the plaintiffs and that 30 does relate to my friend's reference at V/3-29. 31 MR. GOLDIE: Well, I was dealing here with what we understood to 32 be the plaintiffs' position and it is from their 33 summary dated March 1990 and the reference is at page 34 249 of the summary which we were supplied with and it 35 reads, and I quote: 36 37 "We submit that the rights held by Indians to 38 unceded lands under the Proclamation of 1763 39 are indefeasible and could not be annulled or 40 modified by the Crown or its officers under the 41 prerogative power, except in conquered or ceded 42 areas where a prerogative power of legislation 43 is retained." I say that's a correct statement. 44 45 MR. RUSH: It is not the plaintiffs' position. It's not 46 advanced by the plaintiffs in its argument. 47 THE COURT: Well, I am having trouble following it, because I 27334 Submissions by Mr. Goldie 1 can't find this passage from the plaintiffs' argument 2 summary. 3 MR. GOLDIE: Oh. It's under tab — 4 THE COURT: I don't see a tab 29. 5 MR. GOLDIE: Is it 3-29, my lord. 6 THE COURT: I am sorry. Oh, yes. I was look at 4-29. Well, is 7 the difference between you gentlemen that you did not 8 advance this in your argument, Mr. Rush? 9 MR. RUSH: That's right. That's — 10 MR. GOLDIE: I didn't understand my friend to say we retract 11 that, it's not our position. However, I understand 12 him now. 13 THE COURT: All right. 14 MR. GOLDIE: And my first position, then, is the one that 15 applies, if my friend is saying that there is a 16 residual power it does not apply in British Columbia, 17 based upon any authority in Johnson and Mcintosh, 18 because the Chief Justice very skillfully transferred 19 the justification for it to the field of foreign 20 relations. I will -- there was no aspect of that in 21 British Columbia. 22 Then going to paragraph 30. In summary, the 23 defendant Province submits that the royal prerogative 24 to legislate generally could not be exercised in any 25 form in British Columbia because that colony was 26 acquired by settlement and not by conquest or cession. 27 Even if the Royal Proclamation was intended in 1763 to 28 apply to what is now British Columbia, it was ultra 29 vires to that extent at least, and so of no effect. 30 That would be Campbell and hall. If the Proclamation 31 is ambiguous with respect to the extent of its 32 territorial application, it should be read down to 33 avoid invalidity. Now, turning to the next 34 submission -- 35 THE COURT: You have got four minutes, Mr. Goldie. Do you want 36 to start a new section or do you want -- 37 MR. GOLDIE: Well, I would be glad to start promptly at 7 38 o'clock, my lord. 39 THE COURT: All right. Well, we will adjourn until that happy 40 hour. 41 42 (PROCEEDINGS ADJOURNED PURSUANT TO DINNER RECESS) 43 44 45 46 47 27335 2 3 4 5 6 7 I hereby certify the foregoing to be a true and accurate transcript of the proceedings transcribed to the best of my skill and ability. 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 Laara Yardley, Official Reporter, UNITED REPORTING SERVICE LTD. 27336 Submissions by Mr. Goldie 1 (PROCEEDINGS RESUMED AT 7:00 p.m.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Goldie. 5 MR. GOLDIE: My lord, part V, Section 4. 6 THE COURT: Yes. 7 MR. GOLDIE: The proposition that we advance here is that the 8 Royal Proclamation has no application to British 9 Columbia. And your lordship has heard me on the 10 proposition that constitutionally it could not extend 11 to British Columbia, here we submit that on two 12 grounds or two categories that the Proclamation 13 doesn't even purport to apply to British Columbia. 14 The first category I refer to in paragraph 1 is 15 that the historical context of the Royal Proclamation 16 and the arguments based on the British holdings in 17 North America as they were in 1763, the contrasting 18 status of British Columbia in that year as terra 19 incognita, the views held by the framers of the Royal 20 Proclamation, and the embodiment of those views in the 21 Proclamation all point to one conclusion and one 22 conclusion only, that it has no application to what is 23 now British Columbia or what became the Colony of 24 British Columbia in 1858. 25 The second category encompasses arguments based on 26 the construction of the terms of the Proclamation 27 itself, and how those terms define and limit the 28 geographic reach of the Proclamation, your lordship 29 bearing in mind that it is the plaintiffs' submission 30 that the Proclamation reaches across to British 31 Columbia. 32 Now, part 1, or the first section, The Historical 33 Context of the Royal Proclamation. And I submit that 34 the Proclamation must be interpreted in its historical 35 context. And we submit that central to an 36 understanding of the geographic reach of the 37 Proclamation is a determination of the extent of 38 British holdings in North America in 1763. 39 Now, it must be assumed, in our submission, that 40 the King intended the Royal Proclamation to apply only 41 to those territories over which he was recognized as, 42 or at the very least claimed to be, sovereign. In the 43 absence of an indication on the phase of the Royal 44 Proclamation that it was intended to have a 45 prospective effect or an extraterritorial 46 application -- if I may pause there, my lord, 47 extraterritorial in the sense of the King's dominions 27337 Submissions by Mr. Goldie 1 at that time -- the defendant Province submits that 2 its geographic scope is defined by the extent of 3 British holdings in 1763. 4 And then we go on to determine what those are. An 5 analysis of British territory within North America in 6 1763 necessarily begins with the Treaty of Paris 7 entered into by Britain, France and Spain on February 8 10th of that year. The Treaty of Paris brought an 9 official end to the Seven Years War. By its terms, 10 Britain obtained from France the whole of "Canada", 11 (including the Island of Cape Breton and other islands 12 in the Gulf and River of St. Lawrence), everything 13 lying to the east of a line drawn along the middle of 14 the Mississippi River, the Island of Grenada, and 15 release of all France's claims to Nova Scotia or 16 Acadia. From Spain Britain acquired Florida, as well 17 as all that Spain possessed on the continent of North 18 America to the east or southeast of the Mississippi 19 River. 20 And the reference there, my lord, is to -- is to 21 the text of the Treaty of Paris itself. And that's 22 under tab V/4-4 and the paragraph Roman IV: 23 24 "His most Christian Majesty" — 25 26 That is to say the King of France: 27 28 "renounces all pretensions which he has 2 9 heretofore formed or might have formed to Nova 30 Scotia or Acadia in all its parts, and 31 guaranties the whole of it, and with all its 32 dependencies to the King of Great Britain." 33 34 Now, your lordship will note there's a change in the 35 language. I'm now coming to Canada; "Moreover his 36 most Christian Majesty cedes". That's a verb that 37 doesn't appear in the first sentence: 38 39 "And guaranties to his said Britannick Majesty, 40 in full right, Canada, with all its 41 dependencies, as well as the island of Cape 42 Breton and all other islands and coasts in the 43 gulph and river of St. Lawrence, and in 44 general, everything that depends on the said 45 countries." 46 47 Et cetera. And then in clause VII: 2733? Submissions by Mr. Goldie 1 "In order to re-establish peace on solid and 2 durable foundations, and to remove forever all 3 subject of dispute with regard to the limits of 4 the British and French territories on the 5 continent of America; it is agreed, that, for 6 the future, the confines between the dominions 7 of his Britannick Majesty and those of his Most 8 Christian Majesty, in that part of the world, 9 shall be fixed irrevocably by a line drawn 10 along the middle of the River Mississippi." 11 12 Et cetera. And at clause IX -- 13 THE COURT: What's the River Iberville? 14 MR. GOLDIE: That's the river that flows into the Mississippi, 15 and I forget its current name, if it's changed. 16 THE COURT: So the cession then runs right to the Gulf Coast. 17 MR. GOLDIE: Yes. It ran down from the Iberville to the — if I 18 may continue. 19 THE COURT: I'm sorry, it says "to the River Iberville and from 20 thence". 21 MR. GOLDIE: "Thence", yes. And then it: 22 23 "continues along the middle of this river, and 24 the lakes Maurepas and Potchartrain" -- 25 26 Which is right down by New Orleans: 27 28 "And for this purpose the Most Christian King 29 cedes in full right, and guaranties to his 30 Britannick Majesty the river and port of the 31 Mobile, and everything which he possesses or 32 ought to possess on the left side of the river 33 Mississippi, except the town of New Orleans and 34 the island in which it is situated." 35 36 And then clause IX: 37 38 "The most Christian King cedes and guaranties to 39 his Britannick Majesty, in full right, the 40 islands of Granada and the Grenadines." 41 42 Et cetera. Then clause XX: 43 44 "In consequence of the restitution stipulated in 45 the preceding article, His Catholick 46 Majesty" — 47 27339 Submissions by Mr. Goldie 1 That's the King of Spain: 2 3 "-- cedes and guaranties, in full right, to his 4 Britannick Majesty, Florida, with Fort St. 5 Augustin, and the Bay of Pensacola, as well as 6 all that Spain possesses on the continent of 7 North America, to the east or to the southeast 8 of the river Mississippi." 9 10 So with that that completed the cession to Great 11 Britain of everything that was east of the Mississippi 12 virtually -- well, from its mouth to a long way up the 13 river, and that will become -- we'll go into that in 14 more detail. 15 Paragraph 6. Following the ratification of the 16 Treaty, the political situation of Britain in North 17 America was substantially as follows: She continued 18 to possess Labrador, Newfoundland, what became the 13 19 American Colonies, Nova Scotia, Acadia, and the 20 territory granted to the Hudson's Bay Company. 21 Britain possessed as new acquisitions Florida and the 22 whole of the continent not already possessed by her 23 that lay to the east of the Mississippi River from its 24 source to the Gulf of Mexico, excepting the town and 25 immediate environs of New Orleans. 26 Now, the submission that we say flows from that is 27 that British Columbia was not part of Canada acquired 28 from France under the Treaty of Paris. 29 The international boundary between French and 30 British territory was drawn along the Mississippi 31 River. However, the Treaty did not specify the 32 western boundary for Canada, so the extent of British 33 holdings north and west of the Mississippi must be 34 determined by reference to other historical documents. 35 The western limits of the colony of New France or 36 Canada were never defined with precision before their 37 cession to Britain. In general terms they were 38 described as extending into countries unknown. 39 Now, the reference there, my lord, under tab 40 V/4-8, is to one of the documents that were prepared 41 for the reference to the Judicial Committee over the 42 arbitration determining the boundary between Ontario 43 and Manitoba, and the particular reference here is to 44 page 378, where a geographer, a French geographer of 45 the year 1755 describes Le Canada: 46 47 "Under the name of Canada, we comprehend, in our 27340 Submissions by Mr. Goldie 1 best and latest maps, that part of North 2 America situate between the 40th and 55th 3 degrees of north latitude and the 270th and 4 325th of longitude. This country is bounded, 5 on the north, by Terre de Labrador and the 6 countries of the Eskimaux and of the 7 Christinaux; on the east, by the ocean, or 8 North Sea, and New England; and on the south by 9 Louisiana. Its limits on the west extend into 10 countries unknown." 11 12 Your lordship will note that there is no reference 13 there to Rupert's Land, and we'll come in a minute to 14 the difference which existed between the French and 15 the English growing out of the Treaty of Utrecht under 16 which Rupert's Land was restored to Great Britain and 17 with leaving the boundary to be determined. 18 Now, turning to my written argument again, 19 paragraph 9. Something of the extent of -- and I put 20 the words "French exploitation from Canada" in that 21 line, so it will read something to the extent of 22 French exploitation from Canada can be gleaned from 23 the location of the French fur trading posts in the 24 mid 18th century. The posts located farthest west 25 were collectively known as "the posts of the Western 26 Sea", that's a translation, and lay in the Manitoba 27 Lakes area and on the Saskatchewan River. The 28 transcript references, my lord, are to Dr. Greenwood's 29 evidence, and both those references are under the 30 single tab V/4-9. And then the last reference, 31 Exhibit 1163-177(a), is to one of Dr. Greenwood's 32 footnotes. I should say more accurately, to the 33 authority referred to in one of Dr. Greenwood's 34 footnotes. And this too is again to the papers 35 prepared for the Ontario-Manitoba boundary dispute, 36 and it again -- it's the last item on that page 37 beginning with the words "Post of the Western Sea (La 38 Mer De L'Ouest). And this again is from a French 39 authority, and he is quite prepared to recognize the 40 fact that the Hudson's Bay Company is there. He 41 starts off by saying: 42 43 "The post of the Western Sea is most advanced 44 towards the north. It is situated amidst many 45 Indian tribes with whom we trade, and who have 46 intercourse also with the English towards 47 Hudson's Bay. We have their seven forts built 27341 Submissions by Mr. Goldie 1 of stockades, trusted, generally to the care of 2 one or two officers, seven or eight soldiers 3 and eighty engages Canadian. We can push 4 further the discoveries we have made in that 5 country, and communicate even with California." 6 7 Now, my lord, I want to pause there and make a 8 general observation, which I'll enlarge on a little 9 later on, and that is that discovery, even in the 10 sense that Chief Justice Marshall spoke of in Johnson 11 and Mcintosh, doesn't in itself constitute a colony or 12 even a valid claim, it is discovery followed by 13 possession which constitutes an assertion of 14 sovereignty. We will find many instances where French 15 fur traders or explorers talk about desiring to go 16 further west. A desire doesn't constitute discovery, 17 and of course it doesn't constitute possession. 18 Now, with that interjection, I go back to the 19 exhibit. The forks that are found there are listed, 20 and then over the page, the first complete paragraph: 21 22 "The post of La Mer d'Ouest merits special 23 attention for two reasons - the first, that it 24 is nearest to the establishments of the English 25 at Hudson's Bay, and from which their movements 26 can be watched; the second, that from" -- 27 28 And I emphasize the word "from": 29 30 "-- this post the discovery of the Western Sea 31 may" -- 32 33 And I emphasize the word "may": 34 35 "-- be accomplished; but to make this discovery 36 it will be necessary that the travellers, 37 (voyageurs) give up all views of personal 38 interest." 39 40 The most westerly -- I'm now back at paragraph 10 on 41 my — 42 THE COURT: Is there a date on this document? It says 1757 at 43 the top of the -- 44 MR. GOLDIE: Yes. This is Bougainville, my lord, and his 45 summary is -- I believe that's the correct date. But 46 he was regarded as a contemporary authority on the 47 extent of the fur trade posts. The most westerly of 27342 Submissions by Mr. Goldie 1 the posts of the Western Sea was Fort La Corne near 2 the forks of the Saskatchewan, where the Saskatchewan 3 I guess divides into the North and South Saskatchewan. 4 Paragraph 11. While an account left by a 5 commandant of the western posts suggests that a 6 temporary Fort La Jonquiere was established near the 7 Rocky Mountains in 1751, the accepted view is that the 8 existence of that fort west of Fort La Corne is 9 doubtful. Again, the authorities refer to the 10 evidence of Dr. Greenwood. 11 The first -- the plaintiffs, if I understand the 12 argument correctly, submit that Canada, "with all its 13 dependencies", included the posts of the Western Sea. 14 And this forms the basis for the plaintiffs' assertion 15 that the region north and west of the Great Lakes was 16 ceded by France to Britain in 1763 and was therefore 17 subject to the terms of the Royal Proclamation. That 18 is to say -- again interjecting, that is to say they 19 seek to establish the proposition that at least as far 20 as the trading posts which were exploited from Canada 21 are concerned, that those formed -- those were ceded 22 because they were -- fell into the words -- or fell 23 within the words "dependencies", and from there they 24 say the Royal Proclamation got over the mountains, so 25 to speak. The posts of the Western Sea were located 26 in the territory granted to the Hudson's Bay Company 27 by its charter of May 2nd, 1670 and over which Britain 28 claimed sovereignty. Accordingly, it could not have 29 been ceded to Britain by the Treaty of Paris. And I 30 make reference there, my lord, to two exhibits, and -- 31 does your lordship have a coloured -- 32 THE COURT: No. 33 MR. GOLDIE: We had -- this is a page from the Historical Atlas 34 of Canada, and in it it is coloured, but I think your 35 lordship can discern in the lower left-hand corner the 36 difference in the positions taken by France and 37 Britain in the period leading up to and including the 38 Seven Years War. And if you look over at the text on 39 the left-hand page of the first exhibit, 1170, your 40 lordship will see these words: 41 42 "In 1713 the Treaty of Utrecht assigned Acadia, 43 Newfoundland, and the land surrounding Hudson's 44 Bay to Britain. The lower Great Lakes-Ohio 45 area was to be a free trade zone. The Treaty 46 did not specify definite boundaries and called 47 for a commission to settle them. Although 27343 Submissions by Mr. Goldie 1 views were exchanged in 1715 and the commission 2 met from 1750 to 1754, the entirely different 3 claims of France and Britain could not be 4 reconciled. No settlement was reached until 5 the Treaty of Paris in 1763." 6 7 Now, the depiction shows the very small area around 8 Hudson's Bay which the French were prepared to 9 recognize. Then there's a hatched or an area which is 10 identified as disputed territory. Below that is a 11 line that is almost straight drawn from the coast of 12 Labrador to a point below and to the east of James 13 Bay, and then it makes a fairly sharp western turn and 14 it continues on as a straight line. That is the 15 boundary of Rupert's Land as claimed by the British in 16 the negotiations with the French after the Treaty of 17 Utrecht. 18 Now, my lord, the British could not -- the French 19 could not cede to the British what they already 20 claimed. The outcome of the war simply meant that, so 21 far as the British were concerned, the interlopers had 22 ceased to be, so to speak. 23 MR. RUSH: Who are the interlopers? 24 MR. GOLDIE: The French. 25 THE COURT: Well, during that war the French captured some of 26 the forts of the Hudson's Bay, did they not? 27 MR. GOLDIE: Oh, yes. 28 THE COURT: So they would be giving back what they had taken. 29 MR. GOLDIE: But your lord, the -- that was in the area which 30 was ceded, restored to the British under the Treaty of 31 Utrecht. 32 THE COURT: That's what I say. Isn't that what they were 33 talking about at the Treaty of Utrecht, giving back? 34 MR. GOLDIE: Oh, yes, in the Treaty of Utrecht, yes, that's 35 right. 3 6 THE COURT: Yes. 37 MR. GOLDIE: But so far as the Treaty of Paris is concerned, 38 it's simply the result which I set out in paragraphs 39 13 and 14. 40 THE COURT: This line on the atlas is not the 49th parallel. 41 MR. GOLDIE: It's very close to it. 42 THE COURT: I thought most — isn't most of Lake Superior in 43 Canada? 44 MR. GOLDIE: Oh, yes. When I say it's very close to it, this is 45 the assertion made by -- by the British in the 46 negotiations after 1713. 4 7 THE COURT: Yes. 27344 Submissions by Mr. Goldie 1 MR. GOLDIE 2 MR. RUSH: 3 4 MR. GOLDIE 5 6 7 8 9 THE COURT: 10 MR. GOLDIE 11 12 13 14 1 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 THE COURT: 34 MR. GOLDIE 35 THE COURT: 36 THE COURT: 37 MR. GOLDIE 38 THE COURT: 39 MR. GOLDIE 40 41 42 43 44 1 45 THE COURT: 46 MR. GOLDIE 47 : But it's not far off it. My lord, I think it was the Hudson's Bay Company assertions, not the British. : Well, I think, with all respect, that the Hudson's Bay assertions were adopted by the British government. The Hudson's Bay people didn't negotiate with the French, I quite agree, but I think my friend will find that the Hudson's Bay Company's assertions were -- You think they had a friend in the negotiations. : They had a friend. In fact -- well, I come to that a little later. I just now wanted to refer to the 1857 map, which is Exhibit 1183, and that's -- my lord, Exhibit 1183 is the report of the Select Committee of 1875, which the Select Committee of the House of Commons. And there's an insert in that report, and it's the coloured map, which is identified by our number of A.G.B.C. 26A. It's an Arrowsmith Map of North America, and it's useful, my lord, because it indicates in colours, which I think can be discerned, what was recognized as Rupert's Land the year before the Colony of British Columbia was created, and what was called Canada East and Canada West. And I'll hand it up to your lordship, but I draw your attention to the inset on the left -- or underneath the title "Map of North America" these words on this map: "The territories claimed for the Hudson's Bay Company in virtue of the charter granted them by King Charles the II are coloured green, the other British territories pink, and those of Russia yellow." The date of this map? : 18 57, my lord. Thank you. Green is what again? : Beg your pardon, my lord? Green is what again? : Green is Rupert's Land, Rupert's Land as granted by the Charter. That was the extent of Rupert's Land as acknowledged in 1857. Now, I say that if any part of that was regarded as ceded in 1763, it would not be Rupert's Land, it would be part of the British dominions. Mm-hmm. : Now, if I may go back to paragraphs 13 and 14: Prior to the cessation of hostilities between France 27345 Submissions by Mr. Goldie 1 and Britain in 1761, the French fur trade had 2 penetrated into Rupert's Land. The French never 3 admitted that the Hudson's Bay Company had acquired 4 rights to the extent the company argued for, and the 5 attempts to agree on the boundaries of Rupert's Land 6 after the Treaty of Utrecht never came to fruition. 7 Britain and France were rivals for the fur trade in 8 this area. 9 However, this fur trade dispute in Rupert's Land 10 was between British and French subjects, not as 11 between the Hudson's Bay Company and Britain. When 12 the Treaty of Paris was signed the British acquired 13 nothing in Rupert's Land. For the British and the 14 Hudson's Bay Company, the incursions into their 15 territory by the French interlopers ceased. Rupert's 16 Land did not become ceded or conquered territory by 17 virtue of the Treaty of Paris. It remained what it 18 was in 1670 - territory claimed by the British and 19 granted by charter to a company of British subjects. 20 Now, if I can turn to -- excuse me, my lord, I 21 just have another reference here that I want to pick 22 up. Yes. Would your lordship turn to tab 4-14, and 23 this is an extract from an article by Mr. Kent McNeil, 24 who was relied upon as a treaties writer by the 25 plaintiffs. The title is "Native Rights And The 26 Boundaries of Rupert's Land And The North-Western 27 Territory". And I have put in pages 16 through 19 and 28 a couple of maps that he has included in his study. 29 And I'm referring on page 16 to item B, The Treaty of 30 Utrecht, 1713. And after quoting article 10 of the 31 Treaty of Utrecht, which begins with these words: 32 33 "The said most Christian King shall restore to 34 the kingdom and Queen of Great Britain, to be 35 possessed in full right forever, the Bay and 36 Streights, of Hudson, together with all Lands, 37 Sea, Sea-Coasts, Rivers, and places situate in 38 the said Bay and Streights and which belong 39 thereunto." 40 41 Now, that language is pretty well taken from the 42 Charter of 1670. He goes on down to his own text: 43 44 "Of particular significance is the use of the 45 term "restore". On this point Professor 46 Slattery observes: 47 'The term restore was employed at British 27346 Submissions by Mr. Goldie 1 insistence, in place of the word 'cede' 2 found in the original French proposal, and 3 on this point the terminology differs from 4 that used elsewhere in the Treaty regarding 5 Acadia. Britain's aim was to secure 6 recognition of its asserted original title 7 to the Bay." 8 9 And then Mr. Rich, whose two-volume work on the 10 Hudson's Bay Company is regarded as definitive, 11 comments as follows: 12 13 "In view of this assertion of discovery, first 14 settlement, and trade the British decided that 15 the French should not be allowed to make an act 16 of cession. To do so would imply that the 17 lands were French possessions, would therefore 18 invalidate the Hudson's Bay Company's claims 19 for damages, and would render the English 20 trespassers on French soil up to the date of 21 the Treaty. The Lords of Trade urged the 22 rejection of an act of cession not only because 23 a 'restoration' would implicitly acknowledge 24 the company's title but because it would also 25 put them 'into the immediate Enjoyment of their 26 property without further trouble'." 27 28 Now, that was the object of the use of that word 29 "restore". The object wasn't achieved because the 30 disagreement over the boundary. And then Mr. McNeil 31 goes on: 32 33 "The use of the term 'restore' in this Treaty 34 signed 16 years after the Treaty of Ryswick is 35 therefore further evidence that England did not 36 intend to relinquish title over the James Bay 37 posts to France in the earlier Treaty. 38 39 That's the one that your lordship is talking about: 40 41 "However, the term resulted in continuing 42 disagreement over the location of the boundary 43 between the French and English territories. 44 Its use permitted France to contend that it 45 need surrender only a strip of land around the 46 Bay, since that was the only territory which 47 Britain had previously held. Britain, on the 27347 Submissions by Mr. Goldie 1 other hand, claimed everything north of a line 2 running south-west from 58 and a half degrees 3 north latitude at Cape Perdrix on the Atlantic 4 coast through Lake Mistassini" -- 5 6 Which is now in the Province of Quebec: 7 8 "-- to the 49th parallel and then due west (see 9 Map 3). 10 11 Now, map 3 is what Mr. McNeil says the British 12 asserted flowed from the restoration of Rupert's Land 13 or the territory described by virtue of the Treaty of 14 Utrecht. And your lordship will appreciate that the 15 line that runs from Cape Perdrix down to the turn, 16 which is east of Lake Abitibi, has some resemblance to 17 the shape of the Colony of Quebec created in 1763. 18 Then I go back to the text on page 19. There's a 19 paragraph dealing with the -- well, completing that 20 paragraph: 21 22 "The commissioners who were appointed under the 23 Treaty to settle the boundary question failed 24 to reach an agreement. The matter therefore 25 remained unresolved when it ceased to be an 26 international" -- 27 28 And I underline that word "international": 29 30 "-- issue in 1763 on the cession of French 31 Canada to Britain. 32 It has been argued that as a result of the 33 Treaty of Ryswick, the Hudson's Bay Company 34 lost any title which it may have had to the 35 southern part of James Bay where its three 36 posts were located and that, although the 37 Treaty of Utrecht restored the territory to 38 Britain, it did not revive the Company's title. 39 Such a contention probably depends on the 40 erroneous interpretation of Article 8 of the 41 Treaty of Ryswick, which has already been 42 discussed. Nonetheless, even if loss of 43 possession could be said to have jeopardized 44 the company's title, the intention of Britain 45 at the time the Treaty of Utrecht was signed 46 would appear to have been to 'restore' the 47 former rights not only of the King but also of 2734? Submissions by Mr. Goldie 1 the Company. It is clear from E.E. Rich's 2 article that Britain's insistence at Utrecht on 3 recognition of sovereignty over the whole of 4 Hudson Bay was due in large measure to pressure 5 from the company. The whole purpose of the 6 restoration was to re-establish the Company's 7 monopoly over the Bay and to eliminate French 8 competition in the fur trade." 9 10 And so on. And then the last sentence is the 11 important one: 12 13 "Competition with the French from that day 14 shifted to the interior of the country." 15 16 And that's after 1713. The French competed with 17 the -- for the fur trade in the interior, but at the 18 Treaty of -- the Treaty of Paris made that competition 19 between British subjects and not between British and 2 0 French. 21 THE COURT: Excuse me a minute, Mr. Goldie, I think the 22 reporters want to change places. 23 2 4 (CHANGE OF REPORTERS) 25 26 I hereby certify the foregoing to be 27 a true and accurate transcript of the 28 proceedings herein transcribed to the 29 best of my skill and ability 30 31 32 33 34 Graham D. Parker 35 Official Reporter 36 United Reporting Service Ltd. 37 38 39 40 41 42 43 44 45 46 47 27349 Submissions by Mr. Goldie 1 MR. GOLDIE: I'm at paragraph 15 at the top of page seven of my 2 written summary, my lord. After 1763 British fur 3 traders from Montreal, including those who had become 4 British subjects after the Treaty of Paris, extended 5 trade into Rupert's Land. This continued to be a 6 problem for the Hudson's Bay Company but the 7 difference was that the interlopers were British 8 subjects and the problem had to be resolved 9 internally. It was ultimately resolved with the 10 merger of the North West Company and the Hudson's Bay 11 Company. 12 My lord, under tab 15 I have placed an extract 13 from Rich's book The Hudson's Bay Company 1670-1870 14 Volume I: 1670 to 1763. This was published by the 15 Hudson's Bay Records Society and is a well-known text. 16 Part of this was filed as an exhibit in the course of 17 the trial. I am going to refer to pages 654 to 656 so 18 as to illustrate the situation that was faced by the 19 Hudson's Bay Company at the conclusion of the 20 hostilities in Canada or in North America -- well, in 21 the world, as between Britain on the one hand and 22 France and Spain on the other. Beginning with the 23 first complete paragraph: 24 25 "So the company maintained its rights to the 26 trade of the Eastmain, as it had maintained its 27 Charter against the challenge of Arthur Dobbs." 28 29 That is a reference to problems the company had in 30 England. Then this is the more relevant part: 31 32 "But the transfer of sovereignty over Canada to 33 the British Crown in 1763 at the Treaty of 34 Paris completely changed the situation. 35 Already the rights of settled colonists to 36 trade with the Indians had been upheld against 37 company rights." 38 39 That's not Hudson's Bay Company rights. That's 40 incorporated companies, chartered companies. 41 42 "In 1737 the settlers of South Carolina had 43 maintained that despite the Act of the 44 Government of Georgia, they had the right to 45 trade with the Indians of their vicinity; their 46 case was that the Crown alone could not grant 47 an exclusive trade and that therefore only such 27350 Submissions by Mr. Goldie 1 charters as had been confirmed in Parliament 2 were valid. For this argument the Royal 3 African Company was put forward as a company 4 whose privileges had been taken away because 5 they had not been confirmed by Parliament, 6 while the East India Company was vouched as a 7 company fully justified because it had been 8 confirmed by Parliament. The Hudson's Bay 9 Company was in jeopardy." 10 11 I pause there. It was in jeopardy because it applied 12 to have its charter approved by Parliament. There had 13 been some difficulty and it had withdrawn the 14 application. And at this time its charter stood in 15 the same position or analogous to that of the Royal 16 African Company rather than the East India Company. 17 That's dealt with in previous sections of Mr. Rich's 18 work. And continuing: 19 20 "While the position of chartered companies as a 21 constitutional anomaly was thus under 22 discussion, the actual extent of the lands 23 covered by the Charter was also open to dispute 24 and was the cause of some anxiety." 25 26 And then there is a discussion of some of those 27 challenges, particularly those in England. Then 28 towards the bottom of the page beginning with the 29 sentence: 30 31 "Here the Company inevitably threw back to the 32 discussions of 1719, in which it had tried to 33 establish a southern boundary with the French 34 in fulfilment of the terms granted by the 35 Treaty of Utrecht. A memorial and a map were 36 submitted on October 1750, the Company's case 37 was included amongst the others discussed in 38 Paris during the negotiations which followed 39 the Treaty of Aix-la-Chapelle, and the 40 boundaries were argued from 1750 to 1753. But 41 with Governor Shirley of Massachusetts in a 42 dominant position, interest was devoted to 43 settling a boundary for Acadia and Nova Scotia, 44 and enthusiasm gathered round the problem of 45 the return of Louisberg to Franch rather than 46 round a move to vindicate claims to unchartered 47 areas in the north. 27351 Submissions by Mr. Goldie 1 These were years in which the Company was 2 so far from securing its southern frontier that 3 it could with justice inform the commissioners 4 that though the French had 'never offered to 5 navigate in the Bay, nor made any settlements 6 of the coast, or carried on any trade there' 7 since Utrecht, yet they had raised an 8 opposition by means of 'Inland interloping 9 settlements' and by wood-runners." 10 11 And then they talked about defensive posts of moose 12 and so on and so forth. And down to the last complete 13 paragraph, my lord, beginning with the words "as 14 against the French." 15 16 "As against the French, nothing was achieved in 17 these years. But British rivals were held at 18 bay, and the Company was left to carry out its 19 own policy of opposition to the wood-runners - 20 upheld even in its claims to Labrador." 21 22 And then there was a reference to its maintaining that 23 the boundary was one that is described or pictured by 24 Mr. McNeil. Then continuing: 25 26 "The capture of Quebec and the other victories 27 of 1759 did not bring to an end hostilities in 28 Canada; it was not until Montreal had been 29 taken in the following year that the Company's 30 servants in their voyages to the interior began 31 to find that the wood-runners were withdrawing, 32 although Jean Baptiste Larlee had come into 33 York as early as 1759." 34 35 Now, that refers to the effect of the -- of the 36 outcome of the Seven Years' War. And then over at 37 page 657-- 38 THE COURT: The wood-runners are coureur de bois. 39 MR. GOLDIE: Coureur de bois, yes. Mr. Rich apparently doesn't 40 believe in using the accepted French. And the second 41 paragraph on that page midway down page 657, this is a 42 discussion which -- this concludes a discussion of the 43 negotiation of the peace terms and in the preceding 44 page the Company had sought the assistance of Mr. Pitt 45 who, however, was -- had his political problems at the 4 6 time. And continuing: 47 27352 Submissions by Mr. Goldie 1 "If Canada was destined to remain in British 2 hands, the boundary of the Hudson's Bay 3 territories to the south would be a purely 4 domestic problem, as between two British 5 territories. It could therefore be settled at 6 leisure - or perhaps not settled - and there is 7 no need to wonder that the Company and its 8 claims appear to have taken but little of the 9 care of the statesmen who were negotiating the 10 peace." 11 12 Now, my lord, the whole point of this is to refute the 13 notion that there was any cession of any part of 14 Rupert's Land, and I say in paragraph 16 of my 15 summary: In short, evidence of French trading 16 northwest of the head waters of the Mississippi prior 17 to 1763 does not indicate that the region formed part 18 of Canada. There is a great deal of evidence which 19 suggests that the French themselves did not understand 20 Canada to include the Posts of the Western Sea. 21 I now go into that. In 1754, an administrator in 22 New France charged with producing a report to describe 23 Canada wrote that Canada comprised the lands abutting 24 on the St. Lawrence from its mouth to its source, and 25 all the other tributaries that discharge into it. And 26 I refer to what's under tab 17. First of which is one 27 of Dr. Greenwood's sources and the French for what I 2 8 have just read is found under item four. And then the 29 other references are to Dr. Greenwood's evidence. 30 Your lordship will bear in mind that in 1774, and I 31 will come to this again, the boundaries of Quebec were 32 extended from those stated by the Royal Proclamation 33 to include lands east of the Mississippi. And what is 34 found on the map on the board, the territorial 35 evolution of Canada, your lordship will see there is a 36 knuckle around Lake Superior which very closely 37 approximates the description which is given in here. 38 And I say at paragraph 18, this would put the 39 limit of Western Canada in the area of the head of the 40 Great Lakes. And I will be submitting that that is 41 what was consistently acted upon. Understandably, the 42 knowledge of the British about the extent of Canada to 43 the west was no more precise, although it was 44 generally understood that Canada included the Great 45 Lakes. And the reference there is under tab 19, my 46 lord, and the first reference is to Dr. Greenwood's 47 evidence, but he, in turn, is referring to two of the 27353 Submissions by Mr. Goldie 1 items which follow. The first is from the material 2 filed on the Ontario Manitoba boundary matter. The 3 item in question is at the bottom of the page and this 4 is entitled Unofficial descriptions of the Boundaries. 5 This particular one is from a description of New 6 France by Jefferys, in 1761: 7 8 "Canada, according to the English accounts, is 9 bounded on the North by the Highlands which 10 separates it from the country about Hudson's 11 Bay, Labrador or new Britain, and the country 12 of the Eskimeaux, and the Christinaux; on the 13 East, by the River St. Lawrence; and on the 14 South by the Outawai River, the country of the 15 Six Nations, and Louisianna; its limits towards 16 the West, extending over countries and nations 17 hitherto undiscovered." 18 19 And then the next one is General Gage in 1762 and he 20 is reporting there on the -- to his Commander in 21 Chief, General Amhurst and this, of course, is before 22 the treaty but after, so to speak, the fighting has 23 been concluded. And at page 72 about midway down the 24 page he says: 25 26 "As I cannot discover that the Limits betwixt 27 Louisianna & Canada were distinctly described, 28 so as to be Publickly known, I can only inform 29 you, what were generally believed here, to have 30 been the Boundaries of Canada & give you my own 31 Opinion, which is drawn from the Trade that has 32 been Constantly carried on, by the Canadians, 33 under the Authority, and permission of their 34 several Governors. From hence I judge, not 35 only the Lakes, which are Indisputable, but the 36 whole Course of the Mississippi from its Heads 37 to its Junction to the Illinois, to have been 38 comprehended by the French, in the Government 39 of Canada." 40 41 Now, that -- there is one other reference there, my 42 lord, that is a reference to a further footnote of Dr. 43 Greenwood's, and the reference is right at the bottom 44 of the page: 45 46 "Before this report is closed it will not be 47 improper to observe to Your Lordship how 27354 Submissions by Mr. Goldie 1 impossible it is to ascertain exactly what part 2 of North America, the French stiled Canada, no 3 Chart or Map whatever having fallen into our 4 hands or public record of any kind to shew what 5 they understood by it." 6 7 Now, we will come to, of course the, 8 Vaudreuil-Haldimand map which corrects, at least in 9 part, that viewpoint. 10 Now, paragraph 20. A review of French and British 11 maps of the day numbering well in excess of 100, 12 disclose as very few in which are found an unambiguous 13 indication that Canada or New France extended to the 14 Pacific Ocean. Now, if your lordship would just 15 delete that first reference. The authorities are both 16 footnotes from Dr. Greenwood's sources and again they 17 refer to the material in the Ontario Manitoba Boundary 18 Arbitration and it will be seen later, my lord, that 19 the printing of Canada or New France on those maps was 20 very seldom west of the source of the Mississippi and 21 never beyond the Rockies. And I say that an 22 examination of the text of the 136 maps on the Ontario 23 Manitoba boundary dispute are referred to in these 24 exhibits supports that proposition. The references 25 there are to maps, and your lordship may wish to make 26 a note that the 1149 series and there is one reference 27 there, 1149-18. The 1149 series are the maps on Dr. 28 Farley's portfolio. 29 THE COURT: 1149. Oh, yes. 118? 30 MR. GOLDIE: Yes, and I think they run from, I think one to 24. 31 THE COURT: Yes. Are you able to direct my attention to any 32 specific item on this tab 20? It looks like it's -- 33 MR. GOLDIE: No, it is just — 34 THE COURT: -- a multi-paged document and there are 136 items 35 here. 36 MR. GOLDIE: My lord, that -- my memory serves me correctly, Dr. 37 Greenwood testified that those maps were examined by I 38 think a Mr. Mills for the purpose of the arbitration 39 and the text is his. The point that is made is that 40 from that text, and there is no basis that I am going 41 to suggest that warrants my examination of those 42 before your lordship or that I can point to any 43 particular one that says Canada extends to the Pacific 44 Ocean. What we do say is that if you go through that, 45 and Dr. Greenwood I believe did go through it, that 46 the printing of Canada or New France on the maps was 47 very seldom west of the source of the Mississippi 27355 Submissions by Mr. Goldie 1 2 MR. RUSH: 3 4 5 6 7 8 MR. GOLDIE 9 10 MR. RUSH: 11 MR. GOLDIE 12 MR. RUSH: 13 ] 14 MR. GOLDIE 15 MR. RUSH: 16 MR. GOLDIE 17 18 19 20 21 THE COURT: 22 MR. GOLDIE 23 THE COURT: 24 MR. GOLDIE 25 MR. RUSH: 26 MR. GOLDIE 27 28 29 THE COURT: 30 MR. RUSH: 31 MR. GOLDIE 32 THE COURT: 33 34 MR. GOLDIE 35 36 37 THE COURT: 38 MR. GOLDIE 39 40 41 42 THE COURT: 43 MR. GOLDIE 44 45 46 THE COURT: 47 MR. GOLDIE River. Well, I just want to clarify one thing. The argument on page -- paragraph 20 refers to the maps and not to the texts in the exhibit. And it seems like there are -- my friend is now saying that his proposition is supported by the text in the exhibit and I am not clear which position he's advancing here. : Well, the text in the exhibit describes what is on the map. But it says a review of the maps. : Yes. I take it that that would be a visual review of the maps, would it not? : No. I see. : The review of the maps, -- Dr. Greenwood reviewed a great many of them, but I'm not saying that he reviewed every one that is found in this exhibit. But what I am saying is that they were reviewed by the author of the statements. And what is the exhibit number? : The exhibit number, my lord, is one -- Is that 1163-189? : Yes. That's correct, my lord. Yes. : That's one of, as I say, Dr. Greenwood's footnote references and it is one that is part of the papers that were prepared. All right. For — : For the Ottawa -- -- Well, I'll have to look at the text to see what he said. : Yes. I am not suggesting to your lordship that you go through every one, but your lordship can get the sense of what he's doing. Yes. : And the fronticepiece states that it was compiled by direction of the Government of Ontario with explanatory notes, and I believe the evidence is that the notes were prepared by Mr. Mills. Yes. All right. : Now, the what is found under the references under tab 21 is illustrative of what we're talking about here. Exhibit 1164-193 was marked twice. Yes. : And the other marking is 1154-23. And that is -- 27356 Submissions 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 that is entitled a New and Accurate Map of North America Including the British Acquisition Gained by the Late War. And your lordship will see that the words New France or Canada New France starts just marginally west of Lake Superior and considerably east of Lake of the Woods. Canada, of course, itself is found between the St. Lawrence and the Great Lakes. THE COURT: I can't find the — MR. GOLDIE: The New France? THE COURT: No. I can't — well, I'm — oh, I see, oh, yes. I see Lake Superior now. MR. GOLDIE: Yes. And New France extends — THE COURT: Well, presumably New France extends to the left-hand side of the map which takes it to the mouth of the -- to the source of the Mississippi. MR. GOLDIE: To the left-hand side, yes, it extends — it — well, this is part of the -- part of the -- of the doubt. THE COURT: I see the Mississippi here, though. MR. GOLDIE: Yes. THE COURT: And it seems to be the head waters of the Mississippi seem to be at the extreme edge of the map. MR. GOLDIE: That's correct. The one that is the landmark that I say is most relevant is the Lake of the Woods. THE COURT: Oh, yes. MR. GOLDIE: Then if your lordship would go over to the next page, there should be a second copy which is coloured. In your lordship's books is there just the one, the black and white? THE COURT: Yes. MR. GOLDIE: Well, there is a second copy and I can hand that up and we'll get copies. This is a copy of the exhibit as it is. I'd ask my friend's indulgence, I'll hand this to him in a minute. The text identifies it: "This is a copy of the map facing page 64, and referred to on page 64 of the February 1763 issue of The London Magazine." THE COURT: MR. GOLDIE: Yes. "The colouring on this present reproduction (blue, yellow, red and green) accurately reflects the placement of these colours on the original in the National Archives of Canada. Edward Dahl 27 September 1989." 27357 Submissions by Mr. Goldie 1 2 And your lordship will see that New France or Canada 3 the words have much the same placement as they did in 4 the previous map. The extent of New Canada goes right 5 down to -- to the Gulf of of Mexico, follows the 6 Mississippi but veers off to the right and then is -- 7 follows around the shore of Lake Superior and then 8 goes straight west along what is pretty close to the 9 49th Parallel, the bounds of the Hudson's Bay and it's 10 stated in this map by the Treaty of Utrecht is traced 11 and above it is a pinkish colouring. Your lordship 12 will recall that the boundary claimed by the Hudson's 13 Bay Company took a turn south before extending 14 westward approximately the 49th Parallel. 15 THE COURT: I think if you don't mind we'll take a short 16 adjournment. 17 18 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS) 19 20 I hereby certify the foregoing to 21 be a true and accurate transcript 22 of the proceedings transcribed to 23 the best of my skill and ability. 24 25 26 27 28 29 Laara Yardley, 30 Official Reporter, 31 UNITED REPORTING SERVICE LTD. 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 2735? Submissions by Mr. Goldie 1 THE COURT: Mr. Goldie. 2 MR. GOLDIE: I was just going to complete some comments on maps 3 that, in our submission, support the proposition that 4 the printing of "Canada" or "New France" is found very 5 seldom west of the source of the Mississippi River and 6 never beyond the Rockies. 7 I think I had started 8 THE COURT: My last note is at the bottom of page eight. 9 MR. GOLDIE: That's correct. And the map 1164-193 is Entick, 10 and I think I had looked at that, my lord. 11 THE COURT: Yes, you did. 12 MR. GOLDIE: And the next one is 1149-18, which is Vaudreuil's 13 map, and that's in Dr. Farley's folio, and I won't 14 trouble your lordship with that right now. 15 Number eight is Delisle, 1149-8 is Delisle, and 16 that's in Dr. Farley's folio and I submit supports the 17 proposition that I have made. 18 1149-10, part 2 is, I believe, also 1162B, which is 19 the so-called Bowen map. And I have that put up on 20 the notice board. This, my lord, is the map which has 21 been identified as the one that was consulted by the 22 King and the words "New France" and "Canada" are found 23 approximately at the same location, but in this time a 24 little further west but still not west of the 25 headwaters of the Mississippi. 26 1149-11 is another Bowen map and it, too -- one 27 comes to the same conclusion. I am going to refer 28 briefly to Exhibit 1163-192A, that is one of Dr. 29 Greenwood's references. It is the so-called Palairet 3 0 map -- 31 THE COURT: P-A-L — 32 MR. GOLDIE: P-A-L-A-I-R-E-T, and I just have the one copy of 33 the exhibit with me. It is interesting, in my 34 submission, my lord, because not only are the placing 35 of the words Canada, I don't see New France on it, 36 it's just Canada, it is in French but it's published 37 in London. It has outlined on a solid basis, the 38 boundary of the Province of Quebec as created or as 39 directed under the Royal Proclamation of 1763, and 40 Canada, the word Canada starts just north of Lake 41 Superior, and as far as one can tell, west of the 42 headwaters of the St. Lawrence. 43 THE COURT: Mississippi? 44 MR. GOLDIE: Not the St. Lawrence, east of the headwaters of the 45 Mississippi. 46 THE COURT: It has the Hudson's Bay boundary at the 49th 47 parallel? 27359 Submissions by Mr. Goldie 1 MR. GOLDIE 2 THE COURT: 3 4 5 6 7 MR. RUSH: 8 9 THE COURT: 10 MR. GOLDIE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MR. RUSH: 27 MR. GOLDIE 28 29 THE COURT: 30 31 MR. GOLDIE 32 THE COURT: 33 MR. RUSH: 34 35 36 MR. GOLDIE 37 38 1 39 1 40 THE COURT: 41 MR. GOLDIE 42 43 44 45 ] 46 47 : Yes. My geography is getting sketchy, all these maps suggest that the north shore of Lake Superior is south of the 49th. I suppose the boundary dips when it -- at the 49th, it dips, does it, it runs through the lake down through Sault St. Marie? That's where the border of Canada goes but not the 49th. The border of Canada, yes. : Yes. But I made mention of a knuckle, and I think that is best demonstrated by the map of 1763, my lord, purports to show -- well, it does show the British colonies, Quebec, and then there is a dotted line which goes down like this and jumps up along Lake Nipigon and comes down. Your lordship will see that that's the knuckle that I referred to, comprising Lake Nipigon at the top of Lake Superior when Quebec was extended and then we find that continuation on through to the Peace. Then it dips down after Lake Nipigon to the 49th parallel. The -- I just have one other comment to make about the Palairet map. It purports to show the demarcation line of the -- along the Appalachian, but it also purports to show the boundaries of the individual states extending to the Mississippi. And beyond. : Well, not identified as such. It just says boundaries of the Charter. Well, I am not sure it shows beyond, does it, Mr. Rush? : There are lines, if I may -- There are lines but is also calls Louisiana. It falls into the same status, my lord, as the character of the line that purports to show the Hudson's Bay southern boundary west of Lake Superior. : With great respect, my lord, it does not. Those lines are the lines of -- extending based upon the Charter. And that -- those lines were given up at the Congress of Albany. They were also given up at the Peace of Paris. : Yes. Any pretentions beyond the Mississippi were given up. The point I am making, my lord, is, at the risk of adding some confusion at this point, is that if your lordship will turn back to tab 21 and the last map in there, which is the new map of North America found in the London magazine, it purports to show a limitation on the colonies at the Appalachian line and 27360 Submissions by Mr. Goldie 1 that the area west of that line to the Mississippi as 2 being part of the New Canada. 3 Your lordship -- 4 THE COURT: By colour? 5 MR. GOLDIE: By colour, yes. 6 Now going back to my summary, I say in paragraph 7 22, it is significant that the map annexed by the 8 Board of Trade to the draft proclamation and forwarded 9 to the king, the Bowen map, shows Canada stretching 10 just west of Lake Superior. And that is the one that 11 is on the board at the present time. 12 And then paragraph 23, although the Treaty of Paris 13 itself does not delimit Canada, the boundaries of that 14 colony, as they were understood by the British and 15 French, can be gleaned from the peace negotiations 16 which preceded the treaty. The French negotiator 17 described Canada as stretching west up to and 18 including Lake Superior. 19 And that, my lord, is found under tab 39. That 20 is -- if I said exhibit -- yes, that's Exhibit 1164- 21 197C, which is another reference of Dr. Greenwood's. 22 THE COURT: That should be at tab 23? 23 MR. GOLDIE: Tab 23, yes. I am sorry. 24 And the note I have for the translation of the 25 French negotiator, which was the Due de Choiseul, is 26 relating to the boundary of Canada "by the eastern 27 extremity of Lake Huron, proceed along height of land 28 of Hudson's Bay towards Lake Abitibi, then the line 29 continues from east to west to and in comprising Lake 30 Superior." I believe that was the translation. 31 Paragraph 24, shortly after the capitulation of 32 Montreal, Vaudreuil, the Governor of New France, in 33 response to British inquiries about the extent of New 34 Canada, described those boundaries to Colonel 35 Frederick Haldimand. Haldimand sketched the boundary 36 on to a map of North America, (the Vaudreuil-Haldimand 37 map.) That map and Haldimand's account of Vaudreuil's 38 instructions show Canada stretching as far west as Lac 39 Rouge, which appears on the map to be the headwaters 40 of the River Mississippi. 1165 is the map in 41 question, and there should be -- no, there isn't. 42 THE COURT: Yes, it's here. 43 MR. GOLDIE: Under that tab 24, is a black and white — 44 THE COURT: Yes, it's here. 45 My lord, I have here a coloured copy, which I will 46 hand up. And it gives your lordship a little better 47 sense. The original is coloured and Dr. Greenwood 27361 Submissions by Mr. Goldie 1 went through it. 2 The history of the -- of that map is of some 3 considerable interest. The next document under -- 4 following the map itself, under tab 24, is General 5 Amherst to Colonel Haldimand of November 1st, 1762 in 6 which he says, when I made -- General Amherst says, 7 and I quote: 8 9 "I have been 20 times at the point of writing to 10 you on a subject which though of no 11 consequence, I should be glad to know the exact 12 transactions that passed. When I made a report 13 of Canada to the Secretary of State I 14 transmitted a copy of the part of the map where 15 the limits between Canada and Louisiana were 16 marked, which you delivered to me and which I 17 acquainted the Secretary of State were done by 18 Monsieur de Vaudreuil, whether by him or done 19 in his presence by directions, comes to the 2 0 same thing..." 21 22 And then he -- and the next page is Haldimand's 23 reply, dated December 10th, 1762. 24 25 "I received with pleasure the letter Your 26 Excellency did me the honour to write, November 27 1, respecting what passed between Monsieur de 28 Vaudreuil and myself on the subject of the 29 boundary of Canada. Several times I considered 30 anticipating you but decided I should await 31 your orders which I shall obey as accurately as 32 possible. 33 About five or six days after I entered 34 Montreal I asked M. de Vaudreuil if he had any 35 plans, memoirs, or informative maps concerning 36 Canada, begging him to be good enough to turn 37 them over to me that I might put them in Your 38 Excellency's hands. He replied that he had 39 none, having lost them all at Quebec; and to 40 avoid the ennumeration of his other losses, 41 which he wished to make me, I contented myself 42 for the time with his answer." 43 44 And then he goes on to describe what he later did. 45 Now, there is a page that is -- that's a typescript of 46 the letter that follows in the next section, and at 47 page nine under that tab, is again an extract from the 27362 Submissions by Mr. Goldie 1 collection by Pease, Anglo French Boundary Disputes In 2 The West, and I will continue reading from the page 3 over. It's page 404, under the word translation: 4 5 "I went to his quarters at once, having Ensign 6 Monin carry the map. Finding M. de Vaudreuil 7 in his office, which opened on the street with 8 some persons of his household I requested him 9 without any preamble to be good enough to show 10 me the boundaries of Canada." 11 12 And then he describes what actually happened. And 13 he said in the last paragraph: 14 15 "Upon that, taking a pencil from my pocket and 16 resting on my elbows on the map with M. de 17 Vaudreuil standing up beside me, I asked him, 18 showing him the northern part of the 19 Mississippi, if the line went thither. On his 20 answering yes, I marked points from the source 21 of the Illinois, ascending the Mississippi, and 22 having again asked him if I was marking it 23 correctly he - M. le Marquis de Vaudreuil, then 24 having his eyes fixed on the map -- answered in 25 these very words, 'take all the north, take all 26 the north.'" 27 28 I won't bother reading the rest, the whole point of 29 it is how he describes how he traced a line which was 30 indicated to him by Vaudreuil at the very time. 31 Now that map was, as indicated in General Amherst's 32 letter, sent to Pitt, and I think that's all a common 33 ground. And in paragraph 26 I say the map was used by 34 the British in negotiating the Treaty of Paris. 35 Ultimately, the boundaries delimiting Canada on that 36 map were accepted by the French. 37 Now, the first reference there, 1164-199, is from 38 the History of Pitt, page 592 to 593. And I am going 39 do read what is under Article 1 on 592: 40 41 "Article 1. The King will not desert his claim 42 to the entire and total cession of all Canada 43 and its dependencies without any new limits or 44 exceptions whatsoever. And likewise insists on 45 the complete cession of the Island of Cape 46 Breton and the other islands in the Gulf and 47 River St. Lawrence. Canada, according to the 27363 Submissions by Mr. Goldie 1 lines of its limits, traced by the Marquis de 2 Vaudreuil himself when that governor 3 surrendered the said province by capitulation 4 to the British General Sir James Amherst, 5 comprehends on one side the Lakes Huron, 6 Michigan and Superior; and the said line drawn 7 to the Red Lake takes in by a serpentine 8 progress, the Ouabachi, as far as its junction 9 with the Ohio, and from thence extends itself 10 along the latter river as far inclusively as 11 its influx into the Mississippi." 12 13 THE COURT: Who is speaking here? 14 MR. GOLDIE: This is — this, my lord, I have a note of it here. 15 This is the answer of the British minister to the 16 ultimatum France delivered by Mr. de Bussy on the 16th 17 of August, 1761. And in it, he was rejecting the 18 proposition that Louisiana, which was to remain 19 French, extended to the east of the Mississippi. And 20 if I can go back to the documents in the yellow 21 binder, which is part of this -- 22 THE COURT: This is a position piece then during negotiations? 23 MR. GOLDIE: Exactly. And it is the rejection of the 24 proposition by the French that Louisiana should 25 include territory to the east of the Mississippi. And 26 they, in part, base their position upon Vaudreuil's 27 map, and our submission is that it was the Vaudreuil- 2 8 Haldimand map which determined the western boundary of 2 9 Canada. 30 THE COURT: He puts the boundary way east of the Mississippi. 31 MR. GOLDIE: I am sorry, the — 32 THE COURT: I am sorry, this Vaudreuil map does. If this broken 33 red line is the map that is the line that the French 34 officer Vaudreuil drew for General Haldimand, he has 35 got this line way to the east of the Mississippi. 36 MR. GOLDIE: I am sorry, your lordship is correct. The -- I 37 should have put it this way, ultimately that was 38 rejected. 3 9 THE COURT: Yes. 40 MR. GOLDIE: That line out there. What we are saying at the 41 present time is that Canada, according to Vaudreuil, 42 did not extend beyond Lac Rouge. 43 THE COURT: Yes. Which is thought, which is suggested by this 44 to be one of the headwaters of the Mississippi. 45 MR. GOLDIE: That's correct. 4 6 THE COURT: Although there is a river flowing into Lac Rouge 47 from the west, I presume. 27364 Submissions by Mr. Goldie 1 MR. GOLDIE 2 THE COURT: 3 ] 4 5 MR. GOLDIE 6 7 THE COURT: 8 MR. GOLDIE 9 THE COURT: 10 MR. GOLDIE 11 THE COURT: 12 13 MR. RUSH: 14 15 THE COURT: 16 17 MR. RUSH: 18 MR. GOLDIE 19 THE COURT: 20 MR. GOLDIE 21 22 ] 23 24 25 26 27 28 29 30 ] 31 ] 32 33 34 35 THE COURT: 36 MR. GOLDIE 37 38 THE COURT: 39 40 MR. GOLDIE 41 42 THE COURT: 43 MR. GOLDIE 44 45 46 47 Yes, the one just above the word "Riviere"? Yes, it may not be the headwaters of the Mississippi. There is a stub end on the west end of Lac Rouge. : I see what your lordship is referring to. I thought it was the lower one. Yes. : Well, yes. He stopped his line at Lac Rouge anyway. : Yes. Red Lake is where? Mr. Rush told me one time but I have forgotten. Do you remember where Lac Rouge is? It's northeast of the headwaters of the Mississippi and southwest of the point end of Lake Superior. Southwest of the -- southwest of the westerly tip of Lake Superior? Yes. : And that's what's depicted on this map. Yes. : Now, the -- I come back to this, these negotiations, just turning to paragraph 27 for a minute. During the initial stages of the peace negotiations in 1761, the French intended to expand, at the expense of Canada, the limits of Louisiana which they were to retain. Even in those descriptions of French holdings, France did not extend Louisiana beyond Lake Superior. And the authorities that are referred to there, again, this extract is from what I identified a few minutes ago, the reply of the French -- of the British minister of August 16th, 1761. I am sorry, this is not the reply of the minister, these are Pitt's instructions. These, as I understand it, are Pitt's words themselves. And beginning on page 607 -- 607 of Pitt's papers? : Yes, the fourth line from the top, "And lastly the claiming as Louisiana with..." Just a minute, I haven't found that yet. What page number in your tab? : It's 27 and it's page 606 under the first item, and it's page 2 of the -- I have it. Thank you. : The fourth line down on the right hand side: "And lastly, the claiming as Louisiana with an effrontery unparalleled, vast regions which the Marquis de Vaudreuil has surrendered to General 27365 Submissions by Mr. Goldie 1 Amherst as Canada, and defined himself, with 2 his own hand, as comprehended in the government 3 of that province where he commanded. And, as 4 far as concerns the whole course of the Ohio 5 and the countries in that part, you will see by 6 the enclosed memorial transmitted to you for 7 the purpose, that the Due de Mirepoix did 8 solemnly declare here, in the name of his 9 Court, that France had constantly regarded the 10 said River Ohio as a dependance of Canada, and 11 instead of making part of Louisiana as being 12 essential to the communications of Canada with 13 that first named province." 14 15 Now as I understand it, my lord, the British laid 16 claim to that part of North America east of the 17 Mississippi and as outlined by Vaudreuil as a 18 dependance of Canada. But the claim of the French was 19 to shift the line east of the Mississippi and 20 that's -- that was what Pitt was talking about as 21 effrontery. 22 And then the next reference is again to the 23 document 1164-197A, another reference of Dr. 24 Greenwood's, and the translation copy sent to Mr. de 25 Bussy, July 15, 1761, is to Louisiana. 26 MR. RUSH: What page, please? 27 MR. GOLDIE: It's 321. 28 MR. RUSH: Thank you. 29 MR. GOLDIE: And it starts off with the words: 30 31 "In the event that Canada is ceded to the 32 English it is essential to settle the 33 boundaries of Louisiana in such a way as to 34 leave no pretext to the English to confuse them 35 with those of Canada." 36 37 Now this is the French argument: 38 39 "The government of Louisiana has its boundaries 40 fixed and independent of Canada, even though it 41 is subordinate to the governor-general of New 42 France. This is so true that originally the 43 Mississippi Company enjoyed its possessions 44 independently of the governor-general of 45 Canada. 46 This principle established, it cannot be 47 contested that the places to which the governor 27366 Submissions by Mr. Goldie 1 of Louisiana sends garrisons are under the 2 government of that colony. Now, following the 3 part of Louisiana which borders the English and 4 running over the forts and garrisons 5 established there by the French, you find, 6 beginning with the south, the forts of Mobile 7 and Tombigbee, which assure the government of 8 Louisiana the entrance of the bay and river of 9 Mobile ascending toward the Chickasay. Nearer 10 Georgia, behind Florida, is the Alabama 11 River..." 12 13 And so on. 14 15 And then they -- the author proceeds to continue 16 and then on page 323, the second paragraph from the 17 bottom: 18 19 "Finally, in the upper part between the 20 Mississippi and Canada the two colonies have 21 always been bounded by the lakes beginning with 22 Nipigon, Lake Superior Lake Michigan with Green 23 Bay, and the others whose waters flow into the 24 St. Lawrence." 25 26 And the point that I am getting there is that the 27 attempt by the French to push the boundary of 28 Louisiana east of the Mississippi and to enlarge it in 29 the north, was rejected. And Louisiana, which was the 30 easternmost -- I am sorry, the westernmost colony, 31 that is to say, the bulk of which was on the west side 32 of the Mississippi, as from what I have just read, the 33 French did not claim that Louisiana extended beyond 34 Lake Superior. 35 My lord, the other reference, another reference is 36 found in paragraph 28, Pownall, John Pownall, who was 37 the man responsible for drafting what has become 38 identified as the sketch which formed the basis of the 39 June 8th report of the Board of Trade to the Secretary 40 of State, understood Canada to stretch as far west as 41 the Great Lakes. And I refer to 28. 42 The document number is 1159-52, and this is one of 43 Dr. Greenwood's references and it's also been referred 44 to by my friend. And this is the sketch, as I say, 45 which gave rise eventually to the June 8th report to 46 the Board of Trade. And at page 261, the first 47 complete paragraph: 27367 Submissions by Mr. Goldie 1 "As to the extension of Canada on the north side 2 of the River St. Lawrence, we think it should 3 comprehend all the lands which lie upon any 4 rivers that fall into the great River St. 5 Lawrence from the north and northwest, 6 extending from the River of St. John's, the 7 coast to northeastward of which your Majesty 8 has already put under the jurisdiction of the 9 government of Newfoundland, along the said 10 River St. Lawrence as far as the heads of those 11 rivers which flow into the Ottawa River from 12 the west and southwest." 13 14 Then he goes on: 15 16 "Which we would humbly propose should be the 17 utmost extent of the colony towards the Great 18 Lakes on the north side of St. Lawrence's 19 River, and that on the south side its western 20 extent should be restrained by a line drawn 21 from Lake Champlain in latitude 45 due west to 22 the said river." 23 24 That outlines the boundary of what became the 25 Province of Quebec until 1774. And then in the next 26 paragraph: 27 28 "It seems by a paper transmitted to us with the 29 Earl of Egremont's letter to be the idea of 30 some person that it might be advisable to 31 establish two governments upon the River St. 32 Lawrence and its dependent territories and 33 although we conceive that such an establishment 34 might in some particular cases be attended with 35 local convenience, yet as the proposition is 36 founded upon a supposed extension of settlement 37 and jurisdiction as far as the Great Lakes..." 38 39 Now, in my submission, that was the extent of 40 Canada as it was perceived by Mr. Pownall. 41 The plaintiffs, going to paragraph 29, the 42 plaintiffs assert that Canada stretched even beyond 43 the Posts of the Western Sea to the Pacific Ocean. 44 They rely on evidence of a bare declaration of 45 sovereignty made at Sault Ste. Marie in 1761, over 46 lands undiscovered or unknown. 47 In the plaintiffs' submission, this declaration 2736? Submissions by Mr. Goldie 1 combined with French knowledge that North America was 2 a distinct continent with continuous western 3 coastline, is evidenced by maps of the day, no matter 4 how fanciful, suffice to establish French sovereignty 5 over the whole continent. 6 Now, they -- I do not understand that there is any 7 authority cited in support of this proposition, and 8 certainly it is submitted that for extra-municipal 9 purposes, that is to say, to establish something which 10 could be recognized in international law as 11 comprehended in a transfer of sovereignty, I say that 12 none exists. 13 And I have already submitted to your lordship that 14 if anything was ceded to great Britain by the Treaty 15 of Paris, that went beyond the -- what I call the 16 knuckle around Lake Nipigon, as indicated on the map, 17 The Territorial Evolution of Canada, that would have 18 been territory that would have accrued not to the 19 Hudson's Bay Company, it would have accrued to Great 20 Britain as part of its own dominions and would have 21 been part of a ceded or conquered territory. But in 22 fact, as I have indicated to your lordship, it has 23 always been accepted and was accepted clearly by 1857, 24 that it was comprehended within Rupert's Land. 25 Now, I also wish to comment on the proposition that 26 discovery alone can be a basis for sovereignty, and I 27 have referred to Johnson and M'Intosh, under tab 31, 28 as an authority to which I refer your lordship. It's 29 under tab 4-31, the page number is 573 in the -- in 30 the reporter, and it starts on the page which has at 31 the top left hand corner, 570. And in the second 32 column, and this is a well-known citation, because 33 it's his lordship's explanation of a doctrine which he 34 said was respected by the European nations. And after 35 talking about the principle of discovery as between 36 the European nations, he says, and I am referring to 37 the last five lines before the paragraph which begins 38 with the words "the exclusion of all other Europeans." 39 So I am reading the sentence preceding that and it 40 reads as follows: 41 42 "This principle..." 43 44 That is to say discovery, 45 46 "....was that discovery gave title to the 47 governments by whose subjects or by whose 27369 Submissions by Mr. Goldie 1 authority it was made against all other 2 European governments which title might be 3 consumated by possession." 4 5 So even Marshall, who wished to enlarge the 6 European title for the purpose of establishing the 7 primacy of a title gained by the United States, 8 recognized that. Title of the discovery had to be 9 consummated by possession, and in our submission there 10 was no possession on the part of the French west of 11 the Great Lakes. The trading posts were no more than 12 that. 13 In paragraph 32, I say in mid-18th Century Europe, 14 publicists of the Law of Nations were in agreement 15 that title was dependent on actual possession in 16 addition to discovery. I first correct that 17 reference, 27 BCLR should be 27 Buffalo Law Review. 18 And under tab 32 -- this is Mr. Berman's article, he 19 is a writer that my friend has relied upon, and at 20 page 652, he says at the top of the page: 21 22 "By the early 19th Century, therefore, discovery 23 alone was no longer valid as a distributional 24 principle. Indeed, it is questionable whether 25 it was ever totally accepted as a sufficient 26 basis for dominion. As a distributional 27 principle it was given limited recognition and 28 various definitions by the European states. 29 The early publicists of the Law of Nations were 30 in basic agreement that title was dependent on 31 actual possession in addition to discovery. It 32 is not suprising then that John Marshall 33 avoided a discussion of the Law of Nations in 34 Johnson." 35 36 But even he, in my submission, recognized that the 37 title had to be consumated by possession. 38 The De Vattell reference is following the blue 39 divider, and if your lordship would turn to page 85, 40 the first paragraph begins with the words, "But it is 41 questioned..." 42 THE COURT: Yes. 43 MR. GOLDIE: About half way down that paragraph with the words: 44 45 "Hence the Law of Nations will only recognize 46 the ownership of a nation over unoccupied lands 47 when the nation is in actual occupation of 27370 Submissions by Mr. Goldie 1 them, when it forms a settlement upon them, or 2 makes some actual use of them." 3 4 Then there follows a paragraph beginning with the 5 words: 6 7 "There is another celebrated question which has 8 arisen principally in connection with the 9 discovery of the New World." 10 11 My lord, that part was quoted by the Indian Land 12 Commissioners in their report of 1844, I think it was, 13 cited by Chancellor Boyd in St. Catherines Milling I 14 referred to some days ago. 15 And finally, I make reference in paragraph 33 to 16 the judgment of Mr. Justice Taschereau in St. 17 Catherines Milling, who, in my submission, not only 18 accepted but asserted this proposition, and I quote, 19 it's from page 643, and perhaps I will turn to the 20 page it is, my lord, because he starts the sentence 21 off: 22 23 "There is no doubt of the correctness of the 24 proposition laid down by the Supreme Court of 25 Louisiana in Breaux v. Johns, citing Fletcher 26 v. Pecks, and Johnson v. Mcintosh 'that on the 27 discovery of the American continent the 28 principle was asserted or acknowledged by all 29 European nations that discovery followed by 30 actual possession gave title to the soil to the 31 government by whose subjects, or by whose 32 authority, it was made, not only against other 33 European governments but against the natives 34 themselves.'" 35 36 I am citing it here for the proposition that it was 37 taken that discovery had to be followed by possession. 38 And I will be asking your lordship to bear that in 39 mind when we look at some of the assertions of the 40 French explorers to which my friend has made 41 reference. 42 Then I come to the section, British Columbia was 43 not part of Rupert's Land. And I can certainly deal 44 with paragraph 34. The exact western limits of 45 Rupert's Land were north defined and were unknown in 46 the mid-18th Century. And I don't think that there is 47 too much dispute over that. The reference is in 27371 Submissions by Mr. Goldie 1 Martin, The Hudson's Bay Territories and Vancouver's 2 Island, the printing date is 1849 and page 2, midway 3 down the page: 4 5 "No western or northern boundary having been 6 expressed in the Royal Charter of 2nd May, 7 1670, it has been said that the Pacific and 8 Northern Oceans constitute the limits in these 9 directions." 10 11 And they -- but the company itself, seeking an 12 opinion in 1814, were told by learned counsel Romilly, 13 Holroyd, Cruise, Scarlett and John Bell, who stated 14 that, quote: 15 16 "'The grant of the soil contained in the Charter 17 is good, and that it will include all the 18 country the waters of which run into Hudson's 19 Bay.'" 20 Would that be — 21 22 THE COURT: Yes, you're ahead of me there. I didn't get that 23 last -- that's in tab -- 24 MR. GOLDIE: Tab 34. And, the extract is from page 2 of 25 Martin's treatise of 1849. 26 And clearly, as I say, by 1857 and before -- well, 27 well before, it was acknowledged that the lands which 28 were not drained by the rivers flowing into the 29 Hudson's Bay, did not constitute a grant under their 30 charter of 1670. 31 THE COURT: So this would limit the waters which run into 32 Hudson's Bay, would include the Saskatchewan? 33 MR. GOLDIE: Does it flow into Hudson's Bay or — 34 THE COURT: I think so. 35 MR. GOLDIE: Yes, if it does, it would. If your lordship 36 would -- 37 THE COURT: But it wouldn't extend beyond the Rockies. 38 MR. GOLDIE: No. And if your lordship will look again at that 39 map AGBC-26, which is the Arrowsmith 1857 map -- 40 THE COURT: I am not sure which one that is. Is it this one? 41 MR. GOLDIE: The part that is coloured green by that time was 42 determined what would fall into Hudson's Bay and James 43 Bay. 44 THE COURT: Yes, I think that's probably right, because 45 somewhere around Edmonton the water starts to flow 46 north into the Mackenzie rather than east into 47 Hudson's Bay. I am not sure exactly where the line is 27372 Submissions by Mr. Goldie 1 that divides the Peace drainage system which runs into 2 Hudson's Bay and the southern system which runs into 3 the Saskatchewan. 4 MR. GOLDIE: No, that's true, but at least by the time you get 5 into the Peace River area, there is no doubt about it. 6 THE COURT: You are running into the Mackenzie there. 7 MR. GOLDIE: Yes. 8 THE COURT: All right. I regret to say there has been a change 9 in plans that I can't do anything about, if counsel 10 want to sit an evening sitting next week I said this 11 morning that I wouldn't be able to sit Tuesday, by 12 matters beyond my control make it necessary to change 13 that to Monday. I can't sit Monday but I could sit 14 Tuesday. 15 MR. GOLDIE: In the evening? 16 THE COURT: Yes. 17 MR. GOLDIE: I am rather hopeful, my lord, that with the 18 Saturday sitting we will be well within our timetable. 19 THE COURT: Well then, we will resume tomorrow at 9:30? Thank 2 0 you. 21 22 23 (PROCEEDINGS ADJOURNED TO FRIDAY, MAY 25th, 1990 AT 9:30 A. M.) 24 25 26 27 28 I hereby certify the foregoing to be 29 a true and accurate transcript of the 30 proceedings herein to the best of my 31 skill and ability. 32 33 34 35 36 Wilf Roy 37 Official Reporter 38 39 40 41 42 43 44 45 46 47
First page numbered the same as last page of previous document, although the pages are different.
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 1990-05-24]
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