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Delgamuukw Trial Transcripts
British Columbia. Supreme Court
In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial.
application/pdf
16225 Submission by Ms. Mandell 1 April 26th, 1989 2 VANCOUVER, B.C. 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia, Vancouver, this Wednesday, April 26th, 1989, 6 in the matter of Delgamuukw versus Her Majesty the 7 Queen at bar. 8 I caution the witness you're still under oath. 9 THE COURT: Miss Mandell. 10 MS. MANDELL: Thank you, my lord. I'd like to address you on 11 the point which you left us with last night. 12 THE COURT: Okay. 13 MS. MANDELL: And that is whether or not this witness, or any 14 witness for that matter, probably should be providing 15 evidence with respect to historical documents which 16 your lordship may be in a position yourself to 17 interpret. 18 I first wanted to draw to your lordship's 19 attention something which may not be perfectly 20 obvious, and that is that the debate as to the 21 geographic region of the Royal Proclamation has 22 divided and baffled the courts now for two decades. 23 In the case of Regina versus White and Bob, Mr. 24 Justice Norris said that it applied to Vancouver 25 Island. Two judges constituting the majority made no 26 comment, and two judges dissented, and the Supreme 27 Court of Canada sided with the majority without 2 8 comment. 29 In the case of Regina versus Derrickson, which 30 followed the Supreme Court of British Columbia, said 31 that the Royal Proclamation did not apply, and the 32 Court of Appeal in the Supreme Court of Canada didn't 33 deal with the issue. 34 In the case of Calder versus the Queen, Mr. 35 Justice Hall said that the Royal Proclamation applied 36 to the Nass Valley. Mr. Justice Judson said it didn't 37 apply to British Columbia, and Mr. Justice Hall's 38 judgment was apparently approved of in the Secretary 39 of State case by Lord Denning in 1982. 40 In the provincial court in the case of Regina 41 versus Dennis, 1974, the provincial court said that 42 the Royal Proclamation did apply, and this debate was 43 finally again brought before the court in Regina 44 versus Kruger and Manuel where one of the judges 45 earlier had in the earlier courts decided that the 46 Proclamation did apply. 47 And there your lordship is probably more familiar 16226 Submission by Ms. Mandell 1 with this oft-quoted passage than anybody, but the 2 court said, and I've just taken the passage from one 3 of the cases. It's cited at -- 4 MR. GOLDIE: Which is this, please? 5 MS. MANDELL: I've taken the cite from the Halcan Logging case, 6 and the court, if I can just read it, said -- 7 THE COURT: Who's this? Who's speaking here? 8 MS. MANDELL: It's Mr. Justice Dickson in Kruger and Manuel. I 9 lifted the quote. It's one you know very well. 10 11 "Before considering the two other 12 grounds of appeal, I should say that the 13 important constitutional issue as to the 14 nature of aboriginal title, if any, in 15 respect of lands in British Columbia, the 16 further question as to whether it had been 17 extinguished, and the force of the Royal 18 Proclamation of 1763 -- issues discussed in 19 Calder et al -- will not be determined in 20 the present appeal. They were not directly 21 placed in issue by the appellants and a 22 sound rule to follow is that questions of 23 title should only be decided when title is 24 directly in issue. Interested parties 25 should be afforded an opportunity to adduce 26 evidence in detail bearing upon the 27 resolution of the particular dispute." 28 29 THE COURT: Of course that's not the problem, is it? 30 MS. MANDELL: Well, my lord, I'm going to suggest to you that it 31 is in part the problem, both in the Calder case and 32 White and Bob case for certain. There was in that 33 case documents presented by both sides before the 34 court and the court divided as to which documents they 35 were going to choose to believe or to rely upon. 36 And I say that this is the same problem that 37 plagued the court in the Calder case where, for 38 example, in that case, Mr. Justice Judson relied upon 39 and accepted the Trutch memo of 1870 as the best 40 evidence of the intent of the Colonial Assembly to 41 extinguish aboriginal rights without taking into 42 account, in our submission, that that document 43 reflected the policy of an administration and power a 44 mere six years and it wasn't balanced against a 45 contrary policy of treaty making which had previously 46 taken place in the Douglas era. 47 And this kind of debate was commented upon by Mr. 16227 Submission by Ms. Mandell 1 Justice Lysyk, as he now is, in his article The 2 Indian Title Question in Canada in 1973 when he was 3 speaking about the difficulty that faced the court in 4 Calder and some of the comment he made about it was 5 the confusion of the court in accepting historical 6 material in that fashion. 7 Now, in this case what we have is we've got two 8 expert opinions. We've got the opinion of Dr. 9 Greenwood, who you haven't yet heard, but we've had a 10 summary delivered, and I don't presume to state my 11 friend's case, but if I can -- if I state it 12 inaccurately I suppose he'll rise. As I understand 13 it, the basic proposition of the -- of Dr. Greenwood, 14 is that the intention of the Royal Proclamation 15 drafters can be gleaned by reading basically the 16 Treaty of Paris and the Bowen map, and some selected 17 documents of the period which he say establishes a 18 fixed western uncontested boundary for Indian country 19 formed by the conjunction of the Mississippi River and 20 the bounds of the Hudson's Bay property. And this is 21 one proposition being asserted against that, is the 22 argument that is being advanced by the plaintiffs in 23 this case and is the opinion of Mr. Morrison, that the 24 drafters intended that the Royal Proclamation would 25 provide a northerly and westerly expansion of both the 26 colonies and the trade and this would be with respect 27 to all of North America and all of the Indians 2 8 whomever they may eventually, and who they expected 29 eventually to contact, and that there was no intention 30 to fix west or north-west boundaries at all. 31 And this, in our submission, is two very 32 conflicting views with respect to no certainty, and we 33 say that the court should have the benefit to test the 34 training and discipline of the experts, to select the 35 relevant documents, and to test whether in 36 cross-examination the documents which they rely upon 37 stands up against the other documents of the period in 38 order for your lordship to form a view as to which 39 documents, in your view, you will rely upon, having in 4 0 mind the full context. 41 Now, I say that there is a subsidiary problem and 42 it's a problem which your lordship is going to face in 43 some larger motion with respect to whether the 44 documents speak for themselves, and I'm not going to 45 herein attempt to argue it, but I would like to draw 46 to your lordship's attention that, for example, with 47 some documents which Mr. Morrison will rely upon, he 1622? Submission by Ms. Mandell 1 refers to the fur trade -- fur traders being sent by 2 the colony of Quebec to Grand Portage. Now, the 3 context of Grand Portage in our submission will be 4 that that's a leaping stone into the north-west which 5 included British Columbia. My friend may disagree 6 with that. If we're left to argument on this point, 7 who's your lordship going to believe? Will it be our 8 submission that the Grand Portage, although on the 9 document says Grand Portage was intended to extend 10 west, or will it be my friend's assertion that that 11 document should speak for itself and there's nothing 12 further to know about Grand Portage, even if both of 13 us say that we've been instructed by our experts that 14 this is the boundary line? 15 THE COURT: But the problem I have with all this is that — is 16 not one of not having the right to, or the opportunity 17 of would be more accurate, to select the documents to 18 rely upon, it's the question of how they're to be 19 proven. I mean, there's no difficulty in getting the 20 documents before me, it's -- all we're talking about 21 now is whether I have to hear them twice and whether I 22 have to hear two arguments. 23 MS. MANDELL: I accept what you're saying, and I'd like to just 24 address your lordship to that point particularly -- 2 5 THE COURT: Yes. 26 MS. MANDELL: -- with reference to a submission and ruling made 27 with respect to Mr. -- Dr. Ray's evidence. Your 28 lordship is aware -- by the way, Dr. Morrison -- Mr. 29 Morrison and Dr. Ray are both essentially, I'm saying, 30 in large part giving evidence with respect to the fur 31 trade. 32 I'd like to draw to your lordship's attention at 33 page 13328. This is Volume 202. The objection which 34 was raised at the beginning of Dr. Ray's evidence in 35 toto was by Mr. Willms. 36 37 "My lord, the objection is based on a -- as 38 my friend indicated, it comes out of his 39 report. His report is a review of Hudson's 40 Bay Company documents in British Columbia 41 and the doctor's interpretation of what the 42 documents mean, and it is my submission, in 43 other words he draws inferences from the 44 documents, he says that this person got 45 something wrong, this person made a mistake 46 here, and this person meant this here, and 47 what it is is a series of Dr. Ray first of 16229 Submission by Ms. Mandell 1 all quoting from a document which is not 2 offensive, in my submission, because some of 3 them are difficult to read, but then 4 purporting to draw conclusions based on the 5 document. And it is my submission that for 6 two reasons the opinion evidence of Dr. Ray 7 is wholly inadmissible." 8 9 The first reason was he cites Mr. Justice 10 Meredith's decision in Saanichton Bay, and then later 11 he says: 12 13 "And my friends propose to call Dr. Ray to 14 explain the meaning of these documents, I 15 suppose in the historical context, because 16 he's a historian, and it's my submission 17 that for the very same reasons that Mr. 18 Justice Meredith rejected the opinion 19 evidence of Dr. Lane in respect of the 20 meaning of documents, that is that the -- 21 his lordship was in as good a position to 22 read what the documents said and then draw 23 the inferences from the documents without 24 having the assistance of an anthropologist, 25 and in this case a historian, to say what 26 the documents mean. The second objection, 27 my lord, is that in my submission historical 28 geography, or history is not a science at 29 all, it's not a subject of expert opinion, 30 it is not verifiable." 31 32 And he goes on to examine that point. And then 33 you -- my lord asked him to explain a little more 34 about what the doctor does in his report, and you ask 35 if that involves a selection process, and Mr. Willms 36 says it does. 37 38 "He's culled them, as a word, pick out the 39 ones he thinks I should -- I should know 40 about, and then does he -- I don't want to 41 misunderstand your submission, does he then 42 seek to avoid their meaning or their plain 43 meaning?" 44 45 And Mr. Willms explains to you that he explains 46 some of the documents to be not according to the plain 47 meaning on the face, and others he doesn't. 16230 Submission by Ms. Mandell 1 2 "Does the witness...", 3 4 And I'm reading at line 23. 5 6 "...express an opinion of his own on any 7 issue relevant to this case?" 8 9 And Mr. Willms answered: 10 11 "The opinion that the witness expresses, my 12 lord, in respect of the documents is usually 13 either that the documents don't mean what 14 they say in terms of the documents 15 themselves, and the second opinion that he 16 expresses is that somehow he can glean the 17 social organization of the plaintiffs at the 18 time of contact from these documents as a 19 cultural historian -- or sorry, not a 20 cultural historian, a historical geographer, 21 but that -- those are issues for your 22 lordship, those aren't issues for a 23 historical geographer. The documents say 24 what they mean, they mean what they say, and 25 your lordship can come to your own 26 conclusions." 27 28 You say: 29 30 "Well, can I though? If, for example, he was 31 to say the factor wrote that these were the 32 only Indians in the area, could he say 'My 33 research indicates that there were other 34 Indians in the area'. Now, you argue that 35 I'm in as good a position to reach my 36 conclusion as to what the documents say as 37 he is, but that isn't so if he's done 38 research that gives him facts that I don't 3 9 have. 40 MR. WILLMS: No. But — the foundation of 41 the opinion, my lord, and the reason why I'm 42 making this objection now, because there's 43 no dispute about it, the foundation of the 44 opinion are the Hudson's Bay records that 45 the witness cites in his report, that's the 46 foundation of his historical geographic 47 opinion. Those documents are in English, 16231 Submission by Ms. Mandell 1 those documents where they're difficult to 2 read can have a type script made of them, 3 and then your lordship is in as good a 4 position as this witness in determining 5 whether that has any relevant meaning to the 6 issues in this lawsuit." 7 8 And then he re-argues the Saanichton Marina case, 9 and then you asked to hear from Mr. Macaulay. 10 11 "MR. MACAULAY: My lord, I have to disagree 12 with my learned friend on both points in the 13 sense that I have to submit that your 14 lordship is not bound by the decision made 15 in another case considering another witness, 16 Dr. Lane in the Saanichton case." 17 18 And then he says: 19 20 "I'm surprised to hear that a historian is 21 not entitled to give evidence in courts. 22 The cases are full of the expert evidence of 23 historians. Historians, if they're properly 24 qualified historians, don't come into court 25 with nothing more than by way of background 2 6 and equipment than the reading of the 27 documents that they happen to be expressing 28 an opinion on. They have two things that 29 will assist the court, they have the 30 professional training and discipline that 31 allows them to select relevant documents and 32 to ignore documents that are not really 33 helpful and in some cases are misleading. 34 I'm talking about documents made 150 to 200 35 years ago, some of them are very 36 illuminating, others, as I know from my 37 researchings, if you took them out of 38 context would be extremely misleading. So 39 they have the professional qualifications, 40 the discipline and presumably a very 41 considerable background in the general 42 history of the topic they're addressing, and 43 in examination in chief and in 44 cross-examination they will presumably be 45 able to say 'Well, yes, you're putting a 4 6 document to me that appears to contradict my 47 interpretation of what happened, but I can 16232 Submission by Ms. Mandell 1 tell you that that document that you're 2 putting to me now is not reliable for this 3 reason and that reason and another reason', 4 and the witness can then reach into his 5 large fund -- I assume a large fund of 6 general knowledge of history. Documents 7 made -- historical documents are of course 8 the best evidence of what happened, but each 9 particular historical document is only 10 one -- it's the -- it's confined by the 11 circumstances under which it was written." 12 13 And then he says later: 14 15 "It's for your lordship to make a finding 16 after all this is over, findings of fact on 17 the basis of the documents themselves..." 18 19 And then your lordship decides: 20 21 "All right. I don't think I need to hear 22 from you, Mr. Adams, at this time. I think I 23 should hear the evidence. It does seem to 24 me that if the historical material gleaned 25 from the records of the Hudson's Bay Company 26 are admissible at all, I suspect they are, 27 that there may be other factors known to the 28 historian but not known to me which will 29 affect the construction to be placed upon 30 the documents. For that reason it seems to 31 me that I must hear the evidence and then 32 decide whether I am in as good a position as 33 the historian to reach a conclusion on what 34 the documents mean, and if I decide that I 35 am, then some parts of the evidence of the 36 witness may become inadmissible. If I find 37 otherwise, as I suspect will be the case on 38 some occasions, then it seems to me that 39 that evidence will be admissible. I'm not 40 sure if Chief Justice Dickson mentioned 41 history in his dictum in Kruger and Manuel, 42 and I don't think it matters." 43 44 And I wanted to herein point out, my lord, that 45 when Mr. Macaulay referred to the fact that the 46 historians -- he says "The cases are full of expert 47 evidence of historians.", there's at least two major 16233 Submission by Ms. Mandell 1 cases involving aboriginal rights where historical 2 evidence has been used and accepted and quoted at the 3 higher courts. One, of course, is the Jack case, 4 where Dr. Ralston gave evidence on the historic 5 analysis of the fishery regime, and this was 6 adopted -- his analysis was referred to and arguably 7 adopted with approval by Mr. Justice Dickson, and also 8 was re-argued again and referred to in the Court of 9 Appeal in the Sparrow case. 10 And in the case of Re Paulette, Mr. Justice Morrow 11 heard evidence from Rene Fumolean who gave historical 12 evidence on archival work based on the genesis and the 13 signing of both treaties 8 and 11. And again, this 14 evidence was tendered and heard and weighed and 15 referred to. 16 And I say that the fact that a historian can 17 assemble and deal with a historic period, and your 18 lordship may be able to do the same thing too, does 19 not preclude the advantage to the court and, in my 20 submission, the very important advantage in this case, 21 as different from Jack and Re Paulette, where in that 22 case there was no contest expressed with respect to 23 the expert historical record. In that case the 24 documents went in on the side of the plaintiffs 25 without a view expressed with respect to there being 26 other documents which ought to be weighed in another 27 way by the other side. And I say that here, because 28 the debate is so long-standing, because two courts, 29 Supreme Courts of Canada, have had the documentary 30 record, at least some of it put to them, and there's 31 been no decision decisively made, and that because 32 since the time of Calder there's been a great deal 33 more academic study made of the area, and I say in 34 part arising out of Calder, Brian Slattery has done 35 his work, Jack Stagg has done his, Narvey has done 36 his -- Jennings, McNeill, Harmon, all have done 37 original work in this area since Calder. I say that 38 we should hear the evidence, get the documents weighed 39 out, put the context of the historical period to 40 whichever of the witnesses it is who's asserting that 41 one document should be weighed up with greater 42 strength than another, and let's have a decision in 43 this area which hopefully would settle the matter, as 44 I think the court in Kruger and Manuel had expected 45 one day would happen. 46 Now, I feel constrained by all the rulings which 47 have taken place over the last few days with respect 16234 Submission by Ms. Mandell 1 to what the way in which this evidence should go in 2 might be, but I might suggest that perhaps a 3 compromise on the situation, which we could certainly 4 live with, bearing in mind that 99 per cent of the 5 documents are archival documents and should go in as 6 exhibits anyways under the old archival rule, that the 7 witness be permitted to select through the documents 8 and illustrate his main points, and we won't have to 9 go Ad seriatim, but that the major documents and the 10 major theory of the witness be advanced in an orderly 11 way and we get finished as quickly as we can, and we 12 have an opportunity of testing that under 13 cross-examination with respect to both of the expert 14 witnesses now trained to do what they're asked to do 15 here, and that is to give their opinion. 16 And I might say in passing, although I probably 17 said it in full, that I don't see any difference 18 between the evidence of Skip Ray with respect to his 19 having been qualified as a scholar in the area of fur 20 trade history and that of Mr. Morrison, who will be 21 giving the same evidence. And Mr. Harmon will be 22 connecting both the evidence of Mr. Morrison and Mr. 23 Ray at some point in time. One is the fur trade 24 history is the -- informed the Hudson's Bay policy, 25 and Mr. Morrison will be talking about the fur trade 26 history as it informed the colonial policy, and they 27 both meet in British Columbia at approximately one 28 point in time at least, and we'll be arguing from 29 there as to what the -- what the significance overall 30 of those two witness' evidence should be made for by 31 you, but I agree, my lord, and I don't propose, and I 32 don't wish, to have to argue, as you say, both the 33 documents in the same way twice, but isn't that what 34 evidence and argument is, that there is evidence and 35 counsel makes argument from there. And you're going 36 to hear some of the same thing twice anyways, and I 37 don't see why this is an area which ought to be pulled 38 out of the general rule merely because it's 39 historical. 40 THE COURT: Well, it's partly because of the vastness of the 41 subject, Miss Mandell. Mr. Ray's evidence was 42 reasonably focused. We're covering here a vast 43 subject, and I'm sorely, sorely troubled by the use 44 that's being made of the process. We're not running a 45 trial here. This is something that's losing all 46 resemblance to a trial, and I just feel that I'm not 47 doing my job if I don't somehow bring it back to a 16235 Submission by Ms. Mandell Submission by Mr. Goldie 1 trial. I know Chief Justice Dickson said what he said 2 in Manuel and Kruger. He had no expectation that this 3 was going to happen. He'd be shocked if he knew what 4 was happening, I'm sure he would, as everyone is, and 5 it seems to me that if we have any area where we can 6 say well, we've tried to get the evidence before the 7 court in a way that can be -- that can be manageable, 8 but to take a week on every witness -- I don't know 9 how this is going to be done in a week, the way we've 10 gone for the last two days. Would you expect to 11 finish your evidence in chief today? 12 MS. MANDELL: Well, my lord, I would say that if we were 13 permitted to carry on in the manner that I suggested, 14 and that is that the witness be permitted to give his 15 opinion with respect to the general area and select 16 documents to illustrate it and not have to go document 17 by document, we could be finished today. 18 THE COURT: All right. Thank you. Mr. Goldie? 19 MR. GOLDIE: My lord, I heard my friend say Mr. Harmon would 2 0 connect the two. 21 THE COURT: I think she said that. That was said In terrorem. 22 MR. GOLDIE: Before I give my submission, I ought to hear that. 23 MS. MANDELL: Mr. Harmon I believe is quite dead, so I'm 24 speaking that we are going to see through the window 25 of Mr. Morrison, and through the window of Skip Ray, 26 we are going to see Mr. Harmon, and there's going to 27 be a connection at least in that respect. 2 8 THE COURT: Who's Mr. Harmon? 29 MS. MANDELL: He's a fur trader. 30 THE COURT: A fur trader. And his records are available 31 somewhere are they? I see. All right. 32 MS. MANDELL: I don't make that much of it. I don't really want 33 my friend to get excited. This isn't a pivotal point 34 of our case. 35 MR. GOLDIE: It would take much more than that to excite me. 36 My lord, I intend to make four points, and make 37 them briefly. Firstly, the Royal Proclamation is 38 pleaded. It's the only document. There are no 39 Hudson's Bay documents pleaded. It is a document 40 which is pleaded and the pleading is that the Royal 41 Proclamation applies. My second point -- and that's 42 denied. 43 My second point is that we offered a compromise. 44 We have got beyond the question of the document speaks 45 for itself. What I said was, assume that at the end 46 you're going to be arguing the document doesn't speak 47 for itself. Put all the documents from which you wish 16236 Submission by Mr. Goldie 1 to ask -- from which it will -- your lordship will be 2 asked to draw inferences and make findings, and that's 3 what I understand the witness is prepared to do. 4 The third point is my friend's very words "make 5 his points and his theory advanced". So what your 6 lordship is going to hear, presumably, is Mr. 7 Morrison's theory on how to construe the Royal 8 Proclamation. 9 My lord, there are canons of construction that are 10 applicable to the Royal Proclamation, and I want to 11 refer very briefly to it. This is an excerpt from 12 Craies, and I assure your lordship that I'm not going 13 to read Craies at length. And even that doesn't have 14 the one I want. Craies at page 84. Oh, I'm -- 85 is 15 attached to that also. At the bottom of page 84, my 16 lord, you will find the -- one of the golden rules, 17 and it is: 18 19 "Lord Wensleydale used to enunciated (I have 2 0 heard him many and many a time) that which 21 he called the golden rule for construing all 22 written engagements. I find that he stated 23 it very clearly and accurately in Grey v. 24 Pearson in the following terms: 'I have been 25 long and deeply impressed with the wisdom of 26 the rule, now, I believe, universally 27 adopted -- at least in the courts of law in 28 Westminster Hall -- that in construing 29 wills, and indeed statutes and all written 30 instruments, the grammatical and ordinary 31 sense of the words is to be adhered to, 32 unless that would lead to some absurdity," 33 34 Now, I may pause there. The person who decides 35 whether it is absurd is the judge. No witness may be 36 called for the purpose of saying to the court that's 37 an absurd result. 38 39 "or some repugnance or inconsistency with the 40 rest of the instrument," 41 42 Again, I pause there and say that that is a 43 function of the court, construing the document with 44 the assistance of the general canons of construction. 45 46 "in which case the grammatical and ordinary 47 sense of the words may be modified so as to 16237 Submission by Mr. Goldie 1 avoid the absurdity and inconsistency, but 2 no further'." 3 4 The rule in Heydon's case, which is in Odgers', 5 and I refer to page 297, my lord. Now, Odgers' at 6 page 297 says: 7 8 "The multitude of decisions past and present 9 on statutes, however, does not encourage one 10 to think that there is any substance in the 11 supposition that the interpretation of 12 statutes is in any way easier than that of 13 deeds and documents. 14 If the words are plain, there is of 15 course no difficulty and no necessity to 16 invoke any canon of construction. What does 17 create a difficulty (to be referred to 18 later) is the question, When are the words 19 plain? What is plain to one mind may be 20 just the reverse to another. If the words 21 are not plain, the first thing to do is to 22 consider the object and scope of the Act." 23 24 And I'm going to pause there and say, my lord, 25 that I will refer you in a minute to an authority 26 which I assume my friends rely upon that the 27 Proclamation in question is to be regarded in the same 28 category as an act. 29 30 "This involves a consideration of the 31 context, the setting in which the disputed 32 words are placed and the design of the whole 33 statute." 34 35 If I may pause there, in an ancient document, that 36 is to say, one which came into being beyond living 37 memory, the only way in which one can glean a 38 consideration of the context, the setting in which the 39 disputed words are placed, and the design of the whole 40 statute, is from documents or, as I will later refer 41 to, user. 42 43 "This has been referred to under the General 44 Rules." 45 46 And then he goes -- then the author goes on to 47 talk about Heydon's case. 1623? Submission by Mr. Goldie 1 2 "That for the sure and true interpretation of 3 all statutes in general (be they penal or 4 beneficial, restrictive or enlarging of the 5 common law) four things are to be discerned 6 and considered: (1) what was the common law 7 before the passing of the Act; (2) what was 8 the mischief and defect for which the common 9 law did not provide;" 10 11 Now, if I may pause there, without Mr. Morrison 12 giving any theories, or points, he placed before the 13 court a whole series of documents which are well 14 known, I shouldn't say well known, but well known 15 after a little while, which provide your lordship with 16 the answers to those questions without anybody having 17 to advance a theory with respect to them. 18 19 "what remedy the Parliament hath resolved and 20 appointed to cure the disease of the 21 commonwealth; (4) the true reason of the 22 remedy." 23 24 Now, again, that's a matter for the court to 25 determine. No witness is entitled to state what those 26 four points are. These are aids to construction by 27 the court. 28 Now, I said that I would make reference to the 29 authority with respect to how this Royal Proclamation 30 is to be approached, and I do so in the manner most 31 favourable to my friends. Craies on Statute Law at 32 page 490, at the second complete paragraph: 33 34 "On the conquest or cession of 35 territory, or the assumption of authority 36 over a protectorate or 'sphere of 37 influence', the Crown is entitled to 38 legislate by proclamation for the 39 newly-acquired possession or protectorate." 40 41 And then a couple of pages -- a couple of lines 42 down: 43 44 "Proclamation was adopted on the conquest of 45 French Canada and Grenada." 46 47 So assuming in my friend's favour that we're 16239 Submission by Mr. Goldie 1 talking about the application of the Royal 2 Proclamation as a legislative exercise by the Royal 3 prerogative, the ordinary rules with respect to the 4 construction of statutes is of course available and 5 are controlling with respect to the court. 6 What my friend wants to do is to have somebody, 7 and I don't -- I don't talk about qualification at the 8 present time, but have somebody tell your lordship not 9 what the document -- he wants to inform your lordship 10 of the minds of the framers. And an example was given 11 yesterday when he said Lord Hillsborough would be 12 against that because of his estates in Ireland. A 13 court of law is not concerned with motivation. A 14 court of law is here to determine the meaning of the 15 words that have been used. Ancient documents may be 16 construed with the assistance of user, and that's what 17 I made reference to yesterday. I can find no instance 18 of a witness being permitted to say "This is user." 19 What he can do in the case of an ancient document is 20 to bring before the court a document or evidence of 21 usage of the facts of usage, and since no living 22 person can speak of it, the only source is a document. 23 Now, Miss Mandell spoke of Professor Ray. As I 24 read what Mr. Macaulay was talking about, the contest 25 or the issue was the truth of the contents of the 26 letters. Here's a document that -- a letter from a 27 fur trader. Are we to take that document as stating 28 the truth of the contents? And Mr. Macaulay, as I 29 understood him, said well, that fur trader may say it 30 snowed yesterday, but I can look at another document 31 and find it's saying it was a sunny day. Now, which 32 are you to believe? We're not talking about the truth 33 of the contents of the documents here. We're talking 34 about documents which are of assistance in the way in 35 which Prenn and Simmonds talked about it, that is to 36 say, the matrix of facts, and your lordship will 37 recall that specifically rejected in Prenn and 38 Simmonds was evidence of what was in the mind of the 39 plaintiff. That was rejected as not being helpful. 40 And what this witness wishes to do is to provide your 41 lordship with his view of what was in the minds of the 42 framers of the Royal Proclamation. In my submission, 43 the plaintiffs now have an opportunity of placing 44 before your lordship every document which may be of 45 assistance in determining not what was within the 4 6 minds or what motivated the framers, but which would 47 throw light on the words which your lordship has to 16240 Submission by Ms. Koenigsberg 1 construe in the Royal Proclamation itself. 2 THE COURT: Miss Koenigsberg? 3 MS. KOENIGSBERG: My lord, I think the broadest authority for 4 the admission of expert testimony is within limits 5 which have otherwise been described what is helpful to 6 the court. And it has been often said that this is an 7 extraordinary case. I think that it's no doubt true 8 that Mr. Morrison and any other historian called in 9 this case is helpful to the court in selecting 10 documents which support a particular position, and 11 indeed Mr. Morrison was qualified to do that and 12 accepted by your lordship to do that. I believe that 13 a historian, maybe not alone, but since present, is 14 helpful to tell your lordship what words mean, and Mr. 15 Morrison did that. He did that by referring, for 16 instance, to a glossary of words as to their meaning 17 in an older document in which those words may have had 18 a special meaning. 19 But, essentially, I think Miss Mandell has 20 highlighted the difficulty here by referring to the 21 Calder case and the interesting journey of the Royal 22 Proclamation in our courts. If Mr. Morrison is 23 allowed to say so, he will say no doubt that the Royal 24 Proclamation does apply in British Columbia and he 25 relies on a certain number of documents in support of 26 that position. Mr. Greenwood, Dr. Greenwood, would be 27 called, and would say no, it doesn't apply to British 28 Columbia, and I rely on these documents. 29 And so the question is what will your lordship 30 have that the Supreme Court of Canada in Calder didn't 31 have in finally deciding this issue. It won't be 32 documents because your lordship can have those 33 documents. Counsel can put the documents in, any that 34 were not before the Supreme Court of Canada and those 35 that were. What you will have is the ability to weigh 36 whether the words as spoken by Mr. Morrison or the 37 words as spoken by Dr. Greenwood have more weight. 38 In my submission, in the interpretation of a 39 document, for all the reasons that Mr. Goldie has 40 outlined, it is more time-consuming than helpful to 41 the court in construing a document's legal effect. It 42 is, in my submission, not helpful to the court in this 43 case at this time on this issue to have a week of 44 hearing what can be and will be legal argument at the 45 end on the self-same documents from an expert. 46 THE COURT: Thank you. Miss Mandell? 47 MS. MANDELL: Well, I only wanted to correct the 16241 Submission by Ms. Mandell 1 characterization that Mr. Goldie placed on the 2 evidence of Mr. Morrison and say that the evidence is 3 being tendered to give historical context within which 4 the Royal Proclamation operates, and that it's through 5 the, as he calls the matrix of facts, that in our view 6 the words of the document can be understood by your 7 lordship or will be. 8 And, you know, my friend Miss Koenigsberg says 9 that it's not helpful. Well, you know, there's been 10 much debate about the Royal Proclamation, as your 11 lordship's aware, and I think that the caution made by 12 Mr. Justice Lysyk is really the nub of this, and that 13 is your lordship is going to be asked to view certain 14 documents as having more weight than others with 15 respect to this debate, and I believe, and I don't -- 16 and I feel that actually what Mr. Macaulay said is the 17 case, and that is that without the historical context 18 within which to weigh the documents, and without 19 seeing the crucial documents tested against those that 20 carry the store of knowledge in this area, in my view 21 your lordship might not be able to do what you -- what 22 you say you'd like to be able to, and that it's not 23 until the end of the day that this will be known. 24 And, in my view, if there's to be an error made in 25 this case, it ought to be made on the side of caution. 26 Hear the evidence, as you suggested that you would do 27 with Mr. Ray, and if at the end of it you're going to 28 come to some of the same conclusions yourself, then so 29 be it, but I say you ought not to cut the debate off 30 at this point. And I don't say that it's a theory. I 31 wish to correct myself. I say that there is a 32 historical context within which these documents 33 operate, and it's that historical context which we 34 seek to put before your lordship. 35 THE COURT: But is the historical context anything more than what 36 the documents describe and which we heard about 37 yesterday? Is the context anything more than the 38 multi-dimensional concern that the British Crown had 39 about the possible alliance of the Indians with the 40 French, and the protection of the trade, and the 41 protection of the settlers, and those things which 42 climb out of the documents? Is it anything more than 43 that? 44 MS. MANDELL: Yes, my lord, it is. That's the beginning of it, 45 and we then go into the fur trade. And, my lord, what 46 we intend to illustrate is that from the time of the 47 Royal Proclamation onwards, the fur trade and Indian 16242 Submission by Ms. Mandell 1 country are really coterminous, and that when the fur 2 traders are dispatched under the protection of the 3 Crown under various licence to go in various places, 4 that they're doing that pursuant to the Royal 5 Proclamation, and that when -- 6 THE COURT: That's not so, is it, historically? 7 MS. MANDELL: Well, my lord, that's the point. 8 THE COURT: They were proceeding under the Royal Charter insofar 9 as the Hudson's Bay Company is concerned, and as far 10 as the Northwest Company is concerned they were on 11 their own. They didn't pay heed to any authority, as 12 far as I can make of it. 13 MS. MANDELL: Well, my lord, we have evidence which goes to the 14 contrary to that, and I might say that Mr. Morrison is 15 the -- there is no secondary sources with respect to 16 this particular point in history. Mr. Morrison has 17 reviewed all the fur trade records, referred to all 18 the records in upper Canada, has read the Hudson's Bay 19 records with respect to this period, in English and in 20 French, all the records of the Northwest Company and 21 the Hudson's Bay Company, and has developed for the 22 first time a view of the fur trade as it was carried 23 on under the authority of the free trade provision of 24 the Royal Proclamation of 1763. There are no 25 secondary sources which deal with this aspect of the 2 6 evidence. 27 THE COURT: The Northwest traders were trading long before the 28 Proclamation. 29 MS. MANDELL: Yes. You mean the French traders? 30 THE COURT: Yes. Well, the Northwest Company. 31 MS. MANDELL: And they also -- there was also a relationship 32 between the way that the traders at the time of the 33 Proclamation and thereafter traded, and with the 34 French traders which were in territory -- in the same 35 territory before the Proclamation was passed. 36 My lord, I also wish to point out that it's not 37 just the -- it's not just the Royal Proclamation which 38 is -- which is being interpreted, but your lordship is 39 aware that the province of Vancouver Island and also 40 the government of British Columbia came into force 41 with an act to provide for the administration of 42 justice in both of those provinces, and cited within 43 both of those acts is a section which releases the 44 area from, by the words of the statute, the Indian 45 territories and other parts of America. And, in our 46 submission, in order for your lordship to properly 47 understand and interpret what the Indian territories 16243 Submission by Ms. Mandell Ruling by the Court 1 are which were referred to in both the act to provide 2 for the administration of justice in Vancouver Island, 3 and also the act to provide for the government of 4 British Columbia, both of which refer to the Indian 5 territories, your lordship is going to have to know 6 what was the -- what was in some sense the historical 7 context for these Indian territories from the time of 8 1763 to the time when these territories were released 9 and referred to in the acts bringing British Columbia 10 justice. I don't think they brought them justice, but 11 the acts which set in place the administration of 12 justice in Vancouver Island, British Columbia. And we 13 say that the connection there will be found in the 14 historical context which Mr. Morrison is able to bring 15 to your lordship. 16 THE COURT: All right. Thank you, Miss Mandell. 17 I have the settled conviction that the plaintiffs 18 must be given every opportunity to place before the 19 court whatever historical facts that they think should 20 be in evidence for the purposes of the arguments they 21 will make at the end of the case. I seek in no way to 22 impede or hinder that necessary endeavour. I have an 23 equally settled conviction that when one is coming to 24 determine judicially the meaning and effect of a 25 proclamation, for I equate that to a statute or 26 enactment, it is not competent for a witness to tell 27 me what it means. It is competent and is expected of 28 counsel to discharge that function. I do not think I 29 should allow this or any witness to give me a theory 30 of construction. I think that he may put in evidence, 31 if requested by counsel, whatever historical facts he 32 has or can direct my attention to in the way of 33 documents for the purposes that I have mentioned, that 34 is, for counsel's arguments, but I do not think that I 35 can allow him to give me theories of construction or 36 theories of history that go beyond the proof of 37 historical facts. 38 I don't know where that leaves you, Miss Mandell. 39 I think there is a clear distinction being drawn 40 between historical facts and historical conclusions 41 and more particularly constructions of proclamation, 42 and will have to leave it to you to resolve that 43 problem. Would it be convenient to adjourn for a few 44 minutes while you consider how you wish to proceed? 45 MS. MANDELL: Yes. Thank you. 4 6 THE COURT: All right. I will be in my chambers and you may let 47 madam registrar know when you're ready to proceed. 16244 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 Thank you. 2 THE REGISTRAR: Order in court. Court will recess. 3 4 (SHORT RECESS TAKEN) 5 6 THE REGISTRAR: Order in court. 7 THE COURT: Mandell. 8 MS. MANDELL: Thank you. My lord, you'll be referring to Volume 9 3, which has been marked as Exhibit 1027. 10 THE COURT: Yes. 11 MS. MANDELL: Mr. Morrison, are there any historical facts which 12 indicate the relationship between the fur trade and 13 the Indians with whom the Crown was connected and who 14 lived under their protection in the period around the 15 Royal Proclamation's passage? 16 MR. GOLDIE: This doesn't conform to your lordship's ruling. 17 Historical facts are the matrix in which the document 18 comes into being. We've had those. Now, as I 19 understood it, we're into the post-1763 -- 2 0 THE COURT: Yes. 21 MR. GOLDIE: -- period. And surely we're not talking about 22 historical facts. We're talking about, if there's 23 anything to be talked about, is have you got anything 24 which tells us how the Royal Proclamation was used, or 25 whatever. 26 THE COURT: The problem with the question, Miss Mandell, is that 27 when you used the words around the Proclamation, 28 you're deciding the very question I have to answer, 29 aren't you, or are you asking the witness to decide? 30 MS. MANDELL: My lord, those words are used in the documents too 31 and so they're not a term of art in that sense. 32 THE COURT: But you're not asking the witness for historical 33 facts, you're asking him to draw a conclusion as to 34 who are the witnesses with whom His Majesty was 35 connected or associated, connected I think was the 36 word, isn't that so? 37 You see, we're into this question now because we 38 are dealing with a proclamation which I think is the 39 equivalent of a statute for this purpose. We're not 40 talking about historical matters generally that are 41 directly in issue in this case. We're talking about 42 historical facts that will aid in the construction of 43 the Proclamation and -- well, I've said that so many 44 times now. I have great trouble with your question. 45 MS. MANDELL: Let's try it this way. I know that if we do get 46 the form we'll carry right on, and if we don't we're 47 going to end up bottoming out, but I really would like 16245 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 to try and push forward. 2 THE COURT: By all means. 3 MS. MANDELL: 4 Q It's evidence that is crucial to your lordship. 5 Are there any historical facts which indicate the 6 category of Indians with whom the Crown was connected 7 in and around the time of the Proclamation's passage? 8 A I believe there are a number of historical documents 9 which disclose those categories of Indians. For 10 example, at tab 11 the -- from the Journal of the 11 Niagara Campaign kept by Sir William Johnson, as the 12 British were attempting to, and eventually 13 successfully did, capture Niagara from the French and 14 from the Indian allies of the French. And on -- 15 THE COURT: When was that? 16 THE WITNESS: This is in 1759. 17 THE COURT: Yes. 18 THE WITNESS: And on internal page 118 at the bottom of the 19 page under date August 22nd, 1759, and I don't propose 20 to read everything that's underlined, but Johnson 21 states: 22 23 "Spoke to the Chippaway sachem, 24 Tequakareigh.", 25 26 Spelled T-e-q-u-a-k-a-r-e-i-g-h. 27 28 "With a string and two belts of wampum, I bid 2 9 him welcome and shook him by the hand. By 30 the second, which was a black belt, I took 31 the hatchet out of the hands of his, and all 32 the surrounding nations; recommended hunting 33 and trade to them, which would be more for 34 their interest than quarreling with the 35 English, who have ever been their friends, 36 and supplied them at the cheapest rates with 37 the necessaries of life, and would do it 38 again, both here and at Oswego, provided 39 they quit the French interest." 40 41 And then by another belt he invites the Chippaway, 42 or as they're known more commonly, Ojibwa, to invite 43 his and all the other nations living near them to meet 44 him, that is Johnson, where they would receive various 45 goods from the British. 4 6 THE COURT: What do you understand is the meaning to be given to 47 this word that we've seen several times "sachem" 16246 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 s-a-c-h-e-m? 2 THE WITNESS: It's — in the context of Johnson using it he 3 means, in effect, chief. 4 THE COURT: All right. 5 THE WITNESS: And right at the bottom of page 119 Johnson says 6 about three lines up from the bottom: 7 8 "Then took from about his neck a large French 9 medal; gave him an English one, and a gorget 10 of silver, desiring whenever he looked at 11 them, he would remember the engagements he 12 now made." 13 14 And the context, of course, is that the Johnson is 15 making peace with the formerly hostile Indians who had 16 been allies of the French. 17 THE COURT: Is this after Abraham, after the Plains of Abraham? 18 THE WITNESS: It's — what it is is the — it's the capture of 19 the French post of Niagara, and there's actually a 20 capitulation, not in here, but the French capitulation 21 at Niagara, and what I'm indicating is that in effect 22 the French garrison capitulates and Johnson makes a, 23 as the Superintendent of Indian Affairs, the Imperial 24 Superintendent, makes a separate arrangement with the 25 Indians by this. And he's using the same type of 26 diplomacy that was indicated in those early 1740 's and 27 50's treaty councils, the method of doing this by 28 belts of wampum and symbolic means of taking the 29 hatchet out of the hands and by giving an English 30 medal to replace the French medal that the -- that 31 he's making peace in this way with the formerly 32 hostile Indians. 33 THE COURT: Do you recall what was the date of the Battle of 34 Abraham? 35 THE WITNESS: A common historical fact. 36 THE COURT: Yes. Something we all know. 37 THE WITNESS: And I can't remember. It was in 1759, but — 38 THE COURT: You don't remember if it was before this time or 39 after this time? 40 THE WITNESS: I tend to think it was before, but — 41 THE COURT: It was 1759, wasn't it? 42 THE WITNESS: Yes. 43 THE COURT: All right. Well, we'll find it somewhere. 44 THE WITNESS: Yes. 4 5 THE COURT: Thank you. 46 THE WITNESS: As I say, there is a capitulation, as there is 47 one for Montreal when the French capitulated there in 16247 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 1760. There is a document which is not in evidence of 2 the capitulation of the French garrison at Niagara 3 which, as Johnson indicates on page 114, surrendered 4 on July 25th, 1759, at seven in the morning. 5 THE COURT: Thank you. 6 THE WITNESS: The next document I'd propose to refer to is at 7 tab 14. 8 THE COURT: Do you want to put tab 11 in Miss — 9 MS. MANDELL: Yes. 10 THE COURT: All right. That will be 1027-14. 11 THE REGISTRAR: No, 1027-11, my lord. 12 THE COURT: Dash 11. Oh, yes. I'm sorry. 13 14 (EXHIBIT 1027-11: "Journal of Niagara Campaign", by 15 Sir William Johnson) 16 17 THE WITNESS: And the document at tab 14 is dated and — it's 18 dated on the last page November 18th, 1763, and it's 19 from Sir William Johnson, and it's an enumeration of 20 Indians within the northern department of North 21 America which Sir William Johnson is sending to the 22 Board of Trade in answer to a request of theirs which 23 is at tab 13, and I don't propose to read the document 24 at tab 13, merely to indicate that this enumeration is 25 in answer to the request that the Board of Trade have 26 sent dated August 5th of 1763, although -- actually I 27 would note at tab 13 the second paragraph down, the 28 Lords of Trade asked Sir William Johnson -- they're 29 stating that: 30 31 "A regular and constant correspondence 32 upon these points," 33 34 Connected with Indians. 35 36 "at all times usefull and important, is now 37 become essentially necessary from the great 38 number of hitherto unknown tribes and 39 nations, which are now under His Majesty's 40 immediate protection, and the necessity 41 there is of speedily falling upon some 42 method of regulating the Indian commerce and 43 policy." 44 45 And they ask him for further details of unions, 46 who he knows anything about and, as I say, on tab 14 47 "Present State of the Northern Indians". And I would 1624? J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 note on the first page after he outlines the "Six 2 Nation Confederacy", and describing various of them 3 just below that there are Indians of Canada in 4 alliance with the Six Nations, and he notes in the 5 right-hand margin that: 6 7 "All these Nations are in alliance with the 8 Six Nations and warmly attached to the 9 British Interest, as are all the other 10 Indians in Canada." 11 12 And then at the bottom of that page he notes: 13 14 "There are several other Nations to the 15 Northward, who avoid any connection with the 16 white people; and as they have no fixed 17 residence, their numbers, though 18 considerable, cannot be ascertained." 19 20 THE COURT: Where do you see that, please? 21 THE WITNESS: That's at the bottom of page 582, the first page 22 of the document, bottom right corner. 23 THE COURT: Oh, yes. 24 THE WITNESS: And on page 583 at the top he's talking about the 25 Indians of the Ohio including the Shawanese and the 26 Delawares, and he notes that these people are now at 27 war with the English, and this is a reference to the 28 Pontiac troubles. 29 And at the bottom of that same section when he's 30 dealing with Indians of Ohio, he says: 31 32 "There are also in the Six Nation 33 Confederacy, many Indians, whose numbers 34 cannot be computed, as they have no fixed 35 residence." 36 37 And then under the heading of the "Ottawa 38 Confederacy" he notes the various tribes involved and 39 that these ones are, for the most part, hostile to the 40 English at that time that Johnson is writing. And at 41 the very bottom, talking about those residing to the 42 west of Lake Michigan, that those particular nations 43 are at present in alliance with the Ottawa 44 Confederacy, but appear inclined to our interest. 45 THE COURT: Where do you see that? 46 THE WITNESS: That's at — in the right-hand side on page 583 47 at the bottom opposite -- just above "Miamis or 16249 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 Twightwees". The paragraph -- 2 THE COURT: Oh, yes. This was written in longhand? 3 THE WITNESS: Yes. 4 THE COURT: And this is a reproduction of it? 5 THE WITNESS: This is a printed version of it from the 6 collection of New York colonial documents. 7 And on the next page 584 he's still enumerating 8 the Ottawa Confederacy, as he calls it, and he has 9 Ottawa's Chipeweighs, spelled here 10 C-h-i-p-e-w-e-i-g-h-s, ettc, and he has them, large 11 numbers, he said, "residing through all the extent of 12 Country, from the Lakes, to the great Ottawa River and 13 Lake Superior, ettc." 14 And then he says in the right-hand column on page 15 584: 16 17 "This is the most exact computation which can 18 be made of these numerous people, who are 19 scattered throughout the Northern Parts, and 20 who having few places affixed residence, 21 subsisting entirely by Hunting, cannot be 22 ascertained as those of their confederacy 23 residing near the out Forts." 24 25 And then he lists the Illinois and opposite them 26 he states: 27 28 "We have hitherto had nothing to do with 29 these people, who are numerous, and 30 variously computed." 31 32 And he notes that "The Six Nations claim their 33 Country, but their Right of Conquest thereto does not 34 appear so clear." And then he notes finally the 35 Sioux, who he states "reside in the Country westward 36 of Mississippi, they are much addicted to wandering". 37 And then in the right-hand column Johnson remarks 38 "The Sioux, who are the most numerous of the Northern 39 Indians, are little known to us." And that should be 40 a "do" I suppose. "They do not appear well affected 41 to the western Indians, and promise to send Deputies 42 to me in the spring." 43 THE COURT: All right. Do you want to mark that, Miss — 44 MS. MANDELL: Thank you, yes. 45 THE COURT: That will be 1027-14. What about 13? 46 MS. MANDELL: I'd like to mark 13 too. 47 THE COURT: Yes. All right. 16250 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 2 (EXHIBIT 1027-13: Letter entitled "Lords of Trade to 3 Sir William Johnson" 4 5 (EXHIBIT 1027-14: Document entitled "Enumeration of 6 Indians within the Northern Department) 7 8 THE COURT: All right. I think that we should — I think we 9 must take our regular adjournment. Madam reporter I'm 10 sure is about to be replaced. Shall we confine 11 ourselves to about ten minutes? 12 MS. MANDELL: Okay. 13 THE REGISTRAR: Order in court. Court will recess. 14 15 (PROCEEDINGS ADJOURNED FOR THE MORNING RECESS) 16 17 I hereby certify the foregoing to be 18 a true and accurate transcript of the 19 proceedings herein transcribed to the 20 best of my skill and ability. 21 22 23 Tanita S. French 24 Official Reporter 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 16251 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 xh2 J. Morrison (for Plaintiffs) 2 (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK) 3 4 THE REGISTRAR: Order in court. 5 THE COURT: Ms. Mandell. 6 MS. MANDELL: 7 Q Thank you. I think you were going to turn us to the 8 next tab. 9 A The tabs 15 and 16 go together, in effect. Tab 15 is 10 the Lords of Trade on July 10th, 1764, advising Sir 11 William Johnson that they have prepared a plan, and 12 the plan is at tab 16, respecting the regulation of 13 trade and Indian affairs in North America. As I say, 14 both are dated July 10th, 1764. And I note on -- at 15 tab 15, the bottom of the first page, 634, the Lords 16 of Trade advised Johnson that: 17 18 "This Plan has for its object the regulation 19 of Indian Affairs both commercial and 20 political throughout all North America, upon 21 one general system, under the direction of 22 Officers appointed by the Crown, so as to 23 set aside all local interfering of 24 particular Provinces..." 25 26 And then they note that they consider it expedient to 27 divide North America into two districts with -- then 28 they note some difficulties with making the Ohio River 29 because it's not necessarily a natural boundary but -- 30 or the best boundary, but they say as a natural 31 boundary it will still be the best line of division, 32 but they want Johnson's opinion of where to mark the 33 boundary between the northern and southern districts. 34 And then on page 635, about the third full 35 paragraph down: 36 37 "The first principle upon which all the 38 regulations in this plan respecting the 39 Trade with the Indians are founded is that 40 such Trade shall be fixed throughout all 41 America to certain posts and places..." 42 43 And a few lines further down: 44 45 "But as the ascertaining the several Posts in 46 the northern district to which the Trade 47 ought to be fixed is a matter of the most 16252 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 delicate and difficult consideration 2 depending upon exact information of the 3 residence of the Indians and their 4 convenience and satisfaction in many other 5 respects we must refer this proposition to 6 your particular attention & careful 7 examination desiring that you will report to 8 us your opinion not only what you conceive 9 to be the proper Posts for the six Nations 10 and other Tribes under your immediate 11 influence and direction but also for the 12 more remote Indians dependent upon the 13 Government of Quebec, Nova Scotia and the 14 New England Colonies..." 15 16 And then they suggest fixing the trade in the north, 17 and they name various posts. But at the very bottom 18 they say: 19 20 "These Posts will in Our opinion conveniently 21 accommodate the several Nations or Tribes in 22 the Northern District: But as this is a 23 very essential part of the Plan we desire 24 your opinion freely upon it." 25 2 6 And they go on to -- in the same vein, and I don't 27 propose to read the rest of the document. But in the 28 plan itself, which is at tab 16, the first article 29 reads: 30 31 "That the Trade & Commerce with the several 32 Tribes of Indians in North America, under 33 the Protection of His Majesty shall be free 34 & open to all His Majesty's subjects, under 35 the several Regulations & restrictions 36 hereafter mentioned, so as not to interfere 37 with the Charter to the Hudson's Bay 3 8 Company." 39 40 And then on the next page, 274 -- 41 MR. GOLDIE: Excuse me. I suppose, my lord, that the footnote 42 number 2, which is sort of a general speculation, is 43 not evidence. 44 THE WITNESS: I'm not referring — proposing to refer to it. 45 MR. GOLDIE: Well, the document is going in. 4 6 THE COURT: I've drawn a line through it. 47 MR. GOLDIE: Yes, thank you. 16253 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 THE WITNESS: On page 274, the second — 2 "That for the better Regulation of this Trade 3 & the Management of Indian affairs in 4 general, the British Dominion in North 5 America be divided into two districts to 6 comprehend & include the several Tribes of 7 Indians mentioned in the Annexed Lists A & 8 B. " 9 10 11 And the annexed lists are at the very end of the 12 document. And see under A, "List of Indian Tribes in 13 the Northern District," and then B, "List of Indian 14 Tribes in the Southern District." Certainly at least 15 some of the Indian tribes listed in the northern 16 district under appendix A had also been listed by Sir 17 William Johnson in his report to the board of trade 18 that I referred to earlier. 19 The plan sets out various regulations for 20 confining the trade to the posts and the various rules 21 for how the trade is actually to be carried on. 22 MS. MANDELL: 23 Q Are there any Indian tribes that are not listed in 24 either of the plans A and B which to your knowledge 25 had already been mentioned and brought to the 26 attention of the Lords of Trade by the fur traders or 27 otherwise at this date? 28 A Well, in his report to the board of trade William 29 Johnson, as you noted, in the listing of the tribes 30 refers to various more or less unknown Indians, and 31 he's talking about those whose numbers cannot be 32 computed and who live in the north and have little 33 connection and whose numbers cannot be established. 34 And the next document at tab 17 deals in effect 35 with this issue. It's a letter from Daniel Claus, who 36 was commissioned as deputy agent of Indian affairs 37 under Sir William Johnson in Canada. This is at tab 38 12 and is actually a repeat. The document is 39 already -- 40 MS. MANDELL: It's already been put in. 41 THE WITNESS: I don't propose to say it again. But in this 42 letter from Claus, who, as I say, is deputy agent in 43 Canada -- or in Quebec -- 44 THE COURT: This is a letter to Johnson? 45 THE WITNESS: It's to Johnson, yes. It's from the William 46 Johnson papers, and it's addressed to Sir William. 4 7 THE COURT: Yes. 16254 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 THE WITNESS: And it's dated at Montreal 11th of July, 1765, and 2 Claus mentions to Johnson that he happened to find a 3 copy of the plan for future management of Indian 4 affairs or, as he calls it, "a Plan from the Lords of 5 Trade sent to Gen. Murray," that's the governor of 6 Quebec, "last fall, seemingly to desire his or the 7 Merchants of his Governmt. their Opinion or Remarks 8 thereupon." And I would note that in the -- when the 9 Lords of Trade forwarded the plan to Johnson, they 10 were asking him for his comments. They also forwarded 11 it to all the governors and colleagues asking for 12 their comments and proposals on it. 13 So on that page 789, about halfway down the page, 14 Claus says to Johnson: 15 16 "The Indian Nations of the Northern District 17 which the Observer in his second Article 18 says are omitted in the Plan from home, are 19 not annexed to the Observations, else should 20 have sent them..." 21 22 And he's referring to observations which have been 23 made by someone else. It's not clear who exactly it 24 is, but it appears to be various merchants in Quebec. 25 "...but shall get them as soon he returns 26 from the Country where has been these 27 several days." 28 29 And then Claus says: 30 31 "I can't think of any but the Eskimeaux, 32 Karhagoghronos," 33 34 spelt K-a-r-h-a-g-o-g-h-r-o-n-o-s, 35 36 37 "or Tete Boule, Christino and Asiniboles," 38 39 Christino is spelt C-h-r-i-s-t-i-n-o, and Asiniboles 40 is spelt A-s-i-n-i-b-o-l-e-s, 41 42 "which latter I should think to be in Hudsons 43 Bay District;" 44 45 and then he goes on, 46 47 16255 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 "Altho' by the latest Accounts from 2 Michilimakinac, " 3 4 spelt M-i-c-h-i-1-i-m-a-k-i-n-a-c, and that's a 5 reference to the post of Michilimakinac, which is at 6 the junction of Lake Huron and Lake Michigan. It's 7 almost at the apex of the three upper Great Lakes. 8 And he continues: 9 10 "...which are of the latter End of June (a 11 Canoe being yesterday arrived from thence in 12 13 Days) we hear that between 7 & 800 13 Northern Indians from Lake Superieure 14 Alemipikon," 15 16 spelt A-1-e-m-i-p-i-k-o-n, 17 18 "and the Environs of Hudsons Bay had been 19 there with a good deal of Peltry..." 20 21 22 And at the next tab, which is tab 18, this is an 23 enumeration undated but from the papers of Daniel 24 Claus and in Daniel Claus' handwriting. 25 MR. GOLDIE: Excuse me, could the witness tell us the source of 26 these? All these other documents have on them the 27 source, but not this one. 28 THE WITNESS: Oh, this one is from the National Archives of 29 Canada Manuscript Group 19-F-l. 30 MR. GOLDIE: Is that Record Group 19? 31 THE WITNESS: Manuscript Group 19-F-l, and it's the Claus 32 papers. 33 And I note on the second page, and here I'm 34 picking up some of the references that Daniel Claus 35 made in the previous document to Indians -- 36 THE COURT: Is there a date on it? 37 THE WITNESS: It's undated, but from -- it appears to be more or 38 less contemporary with the previous. My guess is 39 somewhere around 1770. 4 0 THE COURT: Contemporaneous with other? 41 THE WITNESS: With that other. As I say, it's undated, so it's 42 difficult to tell exactly when it was prepared, but 43 I'm not trying to draw anything from the date of its 44 preparation. I'm -- it is definitely in Claus'. 45 THE COURT: You think about 1770? 46 THE WITNESS: That would be my guess. 47 But on the second page of the document I note at 16256 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 the top he's listing various Indians and giving their 2 numbers, etcetera, much as Sir William Johnson had 3 done in his report to the board of trade. He says: 4 5 "The Grand River," 6 7 and this is a reference to the Ottawa River, 8 9 "is chiefly possessed by the Tete de Boule 10 Indians or Gens de Terre," 11 12 spelt G-e-n-s d-e T-e-r-r-e, and Tete de Boule is 13 T-e-t-e d-e, and then a separate word, B-o-u-l-e, 14 15 "who extend themselves to Hudsons Bay & from 16 thence to Tadousac," 17 18 spelt T-a-d-o-u-s-a-c, 19 20 "having no certain place of Abode and are 21 wandering about in this Northern part of the 22 Country." 23 24 I believe it then says: 25 26 "And therefore called Gens de Terre." 27 28 And he notes in the right-hand margin that there 29 are about 600 men. He appears to be counting 30 warriors, but he says: 31 32 "but never engage in the War being a timorous 33 cowardly sort of people -- or set of 34 people." 35 36 And on the next page at the bottom he lists Lake 37 La Plui, spelt L-a and then word P-l-u-i, and that's 38 Rainy Lake and still exists in northwestern Ontario. 39 40 "Indians going towards the North West," 41 42 and it's N. West, 43 44 "from Lake Superiour; Christino Nation 80 45 Leagues from Lake Superiour 3 Leagues to 46 carry." 47 16257 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 And he notes there are about 300 of them. And then on 2 the very last page he notes: 3 4 "Lake du Bois," 5 6 that's Lake of the Woods, 7 8 "Indians of the Christino Nation aoubt 60 9 leagues," 10 11 and he lists various others from Lake Wenipik, Fort 12 Maurepas, Fort Dauphin, and at the very bottom: 13 14 "Fort Lareine, 15 16 L-a-r-e-i-n-e, 17 18 "Indians a Mixture of Christino and 19 Assiniboine," 20 21 spelt here A-s-s-i-n-i-b-o-i-n-e, 22 23 "30 leagues. The latter are reckoned several 24 Thousand strong and resort to that Fort to 25 trade." 26 27 And at tab 19 is a letter from Sir William Johnson 28 to General Thomas Gage, who's the Commander-in-Chief 29 of His Majesty's forces and who is Johnson's immediate 30 superior in North America. And it's dated at Johnson 31 Hall August 22nd, 1764, and he's referring to a 32 congress he's held at Niagara. And at the very bottom 33 of page 336 he's mentioning who was there, and he 34 notes: 35 36 "The Sioux did not attend, they are on very 37 bad terms with some of the upper 38 Chippaweighs," 39 40 spelt C-h-i-p-p-a-w-e-i-g-h-s, 41 42 "but there were some of the Christineaux," 43 44 spelt here C-h-r-i-s-t-i-n-e-a-u-x, 45 46 "from the Neighbourhood of Hudsons Bay, and 47 also others from the North West Side of Lake 1625? J. Morrison (for Plaintiffs) In chief by Ms. Mandell 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 Superiour, who had no hand in the War, these are rather remote to give us much trouble, but as I looked upon it to be necessary to give all Nations of Indians (particularly those who trade at our Factories or Posts) a favourable impression of the English, I dismissed them with a Present, as well as the rest." And he provides some further information about the congress at Niagara. And those are the documents I defer to in answer to your question. MS. MANDELL: All right, my lord, I'd like to have them all marked as exhibits in the order that the tabs were referred to. THE COURT: All right. Well, I think we started this series at 1027-11, and I think we've dealt with every one except tab 12. THE REGISTRAR: Right. MS. MANDELL: That's right. THE COURT: So 11 and 13 to 18 may be marked. (EXHIBIT 1027-11 - "JOURNAL OF NIAGARA CAMPAIGN - JULY 26 - OCT. 15, 1759) (EXHIBIT 1027-14 - ENUMERATION OF INDIANS IN NORTHERN DEPARTMENT NOV. 18, 1763) (EXHIBIT 1027-13 - AUG. 5, 1763 LORDS OF TRADE TO JOHNSON) (EXHIBIT 1027-15 - JULY 10, 1764 - LORDS OF TRADE TO SIR W. JOHNSON) (EXHIBIT 1027-16 - JULY 11, 1764 - REGULATION OF INDIAN AFFAIRS) (EXHIBIT 1027-17 - JULY 11, 1765 - LETTER TO SIR W. JOHNSON FROM DANIEL CLAUS) (EXHIBIT 1027-18 - UNDATED ENUMERATION OF INDIANS IN D. CLAUS HAND) MS. MANDELL: Are there any historical facts to which you can draw to the court's attention which indicate how the Indian country or the Indian reserve was used by the Crown through its subjects immediately after the proclamation was enactment? MR. GOLDIE: Well, I think that the form of that question is objectionable. I have no objection to a question what documents do you wish to bring to the court's attention with respect to the use of country. We're after the event again, my lord. 16259 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 MS. MANDELL: All right. I have no problem with rephrasing the 2 question. 3 THE COURT: All right. 4 MS. MANDELL: What documents do you wish to bring to the court's 5 attention with respect to the Indian country and the 6 Crown's use of it immediately after 1763? 7 MR. GOLDIE: No. The use of country, Indian country calls for a 8 judgment. That term is one that is going to be 9 debated, my lord. 10 MS. MANDELL: To the Indian reserve. 11 THE COURT: Well — 12 MS. MANDELL: To the area west of the Appalachians. 13 THE COURT: Well, I think that either you must put the question 14 that way or there must be some definition. 15 MS. MANDELL: I am prepared to go to the area west of the 16 Appalachians if my friend -- 17 THE COURT: All right. 18 MS. MANDELL: -- is going to rest his objection on that point. 19 MR. GOLDIE: And east of the Mississippi. 20 MS. MANDELL: Well, we're not there yet, so that's — 21 MR. GOLDIE: Well, if this has got — 22 THE COURT: Is the evidence going to take us east of the 23 Mississippi? 24 MS. MANDELL: Eventually, my lord. Oh, I see, is it right now. 25 Well, it is immediately, yes, but it's going to go 26 west of the Mississippi too. My friend may not like 27 that evidence, but it's going to go in. 28 MR. GOLDIE: It's not a question whether I like it or not, my 29 lord. He's entitled to bring to your lordship's 30 attention any document which he thinks will be of 31 assistance to my friend. It's the framing of the 32 question which implies a conclusion. 33 THE COURT: Well, any documents that will assist me in the 34 definition of the Indian reserve or land set aside for 35 Indians or the hunting grounds or like expressions in 36 the proclamation. 37 MS. MANDELL: 38 Q I adopt your question. Thank you. 39 A The next series of -- I would refer to the next series 40 of documents in answer to that question beginning with 41 the document at tab 20, and these deal in sequence 42 with the regulation of the Indian trade both in the 43 Province of Quebec and in general throughout the 44 American colonies, and the -- they also deal with 45 discussions in the year 1767, '68 about changes and -- 46 in the mode of regulating that trade. The document at 47 tab 20 is a proclamation issued by James Murray, 16260 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 governor of Quebec, and it's dated January 31st, 1765, 2 and it refers in its body to the Royal Proclamation of 3 1763 and its measures for free and open trade with the 4 Indians with whom he is connected and who live under 5 his protection. And then it -- 6 MR. GOLDIE: Well, I'm sorry, would the witness draw my 7 attention, please, to the words "with whom he is 8 connected"? 9 MS. MANDELL: 10 Q This is the fourth line down from the top of the page. 11 A The top of the page. It's -- unfortunately, the 12 document was on two pages, and I put them together so 13 that it reads from top to bottom, and so it starts out 14 with a "whereas" and recites the provision of the 15 Royal Proclamation of 1763. 16 MR. GOLDIE: I see. I was looking at the bottom one. Is the 17 bottom one the same as the top one? 18 THE WITNESS: Well, it's the continuation. 19 MR. GOLDIE: I see. All right. Thank you. 20 THE WITNESS: And the — I'm merely noting that it repeats the 21 wording of the Royal Proclamation of 1763 and then 22 specifically states that this is -- Governor Murray 23 has thought fit to issue this particular proclamation, 24 and it's particularly because the hostilities with 25 several Indian nations, and he's referring, among 26 other things, to Pontiac war. 27 MR. GOLDIE: Well, I don't want to interrupt the reading, but 28 the fifth line of the bottom page, I can't make out 29 the end of the sentence. "...several Indian Nations 30 living under His Majesty's," and then there's -- I 31 can't make it out. 32 THE WITNESS: Oh, "protection." The right-hand side of the — I 33 apologize. It was my fault in photocopying. The 34 right-hand, very right-hand side of the document got 35 omitted. And "...under the Restrictions mentioned in 36 His Majesty's said Royal Proclamation..." 37 MR. GOLDIE: No, I'm sorry. 38 THE WITNESS: Okay. I could read that passage and fill in the 39 missing words down the right-hand column because there 40 are a number of them. 41 MR. GOLDIE: Just the sentence in question. I can get the 42 document. Just the sentence in question because I 43 want to see the connection as between it and the next 44 line. 45 THE WITNESS: Oh. 46 THE COURT: You say it says, "...nations living under His 47 Majesty's Protection free and open to all His 16261 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 Subjects"? 2 THE WITNESS: "...free and open to all His Subjects" — 3 MR. GOLDIE: All right. Thank you. 4 THE WITNESS: — "under the Restrictions mentioned in His 5 Majesty's said Royal Proclamation..." 6 MR. GOLDIE: All right. 7 THE WITNESS: And further down it says: 8 9 "That no Person or Persons whatsoever, until 10 His Majesty's further pleasure be known, do 11 trade or traffic, vend, or dispose of any 12 Goods, Wares, or Merchandise of any Kind 13 whatsoever, to any Indian or Indians, within 14 the Country, reserved to the Indians by 15 Royal Proclamation, except in such Forts or 16 Posts already, or as shall hereafter be 17 established by His Majesty," etcetera. 18 19 And it sets out that traders are required to post a 20 bond and specify the quantity of arms and ammunition 21 they shall carry with them. 22 And the document at tab 21 is a copy from the 23 National Archives of Canada from the series of fur 24 trade licences in the records of the provincial 25 secretary's department, and this is a draft form of 26 the licences issued by Governor Murray. And this one 27 is dated 1766, although it's not filled in with the 28 individuals, but I note the wording, and it 29 incorporates or refers back to the proclamation that 30 Governor Murray has issued on 31st, January, 1765 by 31 which he declared all intercourse and trade with the 32 several Indian nations living under His Majesty's 33 protection free and open to all his subjects under the 34 restrictions mentioned in the Royal Proclamation of 35 1763 and that the licence is granted unto blank to 36 trade with any of the said Indian nations having given 37 such an oath and observing the rules and regulations. 38 And the document at tab 22 is a submission from or 39 a reference from the Earl of Shelburne, who's now 40 secretary of state to the Lords of Trade, and it's 41 dated 5th of October, 1767, and it refers in it to 42 what he's referring as a system for changing the mode 43 of regulating the trade. And in the very first 44 paragraph Shelburne states: 45 46 "Several Memorials and Petitions having been 47 presented to His Majesty, by Merchants 16262 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 trading from hence to North America, or 2 residing in the Colonies, setting forth the 3 present state of the Indian Trade and 4 representing the necessity of some new 5 regulation." 6 7 Shelburne is thereby transmitting all of this to the 8 Lords of Trade for their comments and consideration. 9 And, well, unfortunately not all the pages are 10 numbered. At the thirteenth page in in the document 11 there's a list of the various enclosures which 12 Shelburne sent to the Lords of Trade and -- for their 13 comments, and the one listed as number 2, entitled "On 14 Indian Trade from Dobie and Frobisher," is the last 15 few pages of this document, and I will refer to a 16 couple of portions of it shortly. But I would note 17 right at the present time that the -- the third item 18 on that list, the "Memorial on Indian Trade, dated 19 Montreal 25th Sept. 1766," that a printed copy of that 20 document is at tab 23, and I will be referring to it 21 shortly, and that on the second page of the list, the 22 documents numbers 18, 19, and 20, referring to various 23 letters from Lieutenant Governor Carleton to the Earl 24 of Shelburne and Johnstone to Carleton, these are at 25 tab 24, a printed copy of them. And -- 26 MR. GOLDIE: 18? 27 THE WITNESS: 18 through 20. The three are all run together. 28 MR. GOLDIE: Thank you. 29 THE WITNESS: In the covering letter from Shelburne to the Lords 30 of Trade, the fourth page in -- 31 THE COURT: Are you going to tab 24? 32 THE WITNESS: This is in tab 22 still. 33 THE COURT: Oh. The fourth page in? 34 THE WITNESS: The fourth page in, yes. 35 MS. MANDELL: 36 Q These pages are numbered. 37 A Are they? Oh, I'm sorry. 38 Q They're hand-numbered, and they're at the top. 39 A Okay. I note here Shelburne is asking the lords, 4 0 third line down: 41 42 "...you will then state your Opinion to His 43 Majesty in what method it may be proper to 44 intrust both the Trade and management of the 45 Indians to the care of the Colonies 46 themselves," 47 16263 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 and asking for their advice. 2 The enclosure at the back of tab 22 -- 3 Q Which is at hand-page 19. 4 A Hand-page 19. It begins at hand-page 19. Which 5 Shelburne stated had been a letter from Dobie and 6 Frobisher. It's dated at Quebec November 10th, 1766, 7 and the very last page, 28, it's signed by Benjamin 8 Frobisher, who is a very famous name in fur trade 9 history. He mentions Frobisher alludes to several 10 difficulties, and he's basically complaining about the 11 trade being confined to the Fort of Michilimachinac. 12 And on page 20, after talking about Michilimachinac 13 and its locations, at the very bottom Frobisher 14 states: 15 16 "I am not surprised that people unacquainted 17 with the extent of the Trade carried on from 18 Michilimachinac should imagine that there is 19 no need of the Traders wintering in the 20 Indian Country. I suppose this Judgment is 21 directed by the Indians who inhabit our 22 Frontiers, and the Country adjacent going to 23 Trade at the different Forts, from which 24 they imagine that the other Indians can do 25 the same, with equal Ease and convenience; 26 but the case is widely different, they live 27 in a fine Country, situate south of Lake 28 Erie and extending Westward to the 29 Mississippi and Wabash, every where 30 abounding with plenty of Game, for their 31 subsistence, & generally within 50 or 100 32 Miles of a Fort. But the other Indians 33 are," 34 35 and a word has been crossed out, 36 37 "innumerable, they inhabit all the Country 38 that lies to the Northward of the River 39 Mississuri," 40 41 spelt here M-i-s-s-i-s-s-u-r-i, 42 43 "and Westward of a strait line, drawn from 44 the Southern part of James Bay to where the 45 Wabash Empties itself into the Mississippi 46 (except that part reserved for the Hudson's 47 Bay Company) and I am certain the Traders, 16264 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 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 if allowed, would annually disperse themselves in that prodigious extent of Country, to the Distance of two or six hundred Leagues Westward of Michilimachinac, and a great many of them would go, as was always the custom to a place extending from 100 to 200 Leagues still further Westward, called by the French, altho very improperly, La Mer D'ouest," spelt L-a M-e-r, third word, as the Western Sea, D- -o-u-e-s-t, translated "which before the Conquest of this Province was farmed out by the king of France to his Subjects for about 10,000 Livres," L-i-v-r-e-s, "per annum; perhaps this will appear incredible, but it can only be to those who are entirely unacquainted with the situation of the Country and the advantages it has by nature for carrying on such a Commerce." THE COURT: Who's writing this? THE WITNESS: Benjamin Frobisher. THE COURT: Frobisher. THE WITNESS: Who was among the British subjects who moved to Montreal after the conquest of France and have taken up the fur trade. And on page 25, a few pages further on, Frobisher is still writing. He's mentioning -- he's still talking about the Indians asking for traders and the merchandise that the traders bring. And about a third of the way down the page he states, Frobisher states that: "Their," the Indians', "Intreaties from time to time were neglected and the French Traders, who go up the Mississippi together with the Hudson's Bay Company, have for some years past reaped very material advantages therefrom. The former can by different Branches of the River Mississippi penetrate into Lake Superior, and every other part of the Indian Country, to the West & North 16265 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 West, which gives them an opportunity of 2 sending the greatest part of their Returns 3 to France & Spain and other parts of Europe, 4 which must take away a considerable sum from 5 the Public Revenue." 6 7 And he alludes to reducing the price of furs in 8 England and robbing this province, which is namely 9 Quebec, of a branch of commerce that is its principal 10 source of economy. 11 And then on page 27, two pages further on, 12 Frobisher is still arguing, making recommendations, 13 and he states a few lines down in reference to 14 allowing a free and open trade: 15 16 "...it would improve & Strengthen our 17 Alliance with the Indians, be the means of 18 gaining their Friendship and Esteem whereby 19 valuable discoveries may be made to the 20 Westward, that would open new Sources for 21 commerce, the Trade would be carried on by 22 Our own subjects to the greatest extent it 23 will admit of, and cause an immense 24 Consumption of British Manufactures." 25 26 I would then refer to the document at tab 23, 27 which is, as I indicated earlier, another one -- this 28 is a printed version of what had been the third 29 enclosure in Shelburne's missive to the board of 30 trade, and here I note at the bottom of page 379, and 31 this is a memorial of certain traders from Montreal, 32 and it says we -- 33 THE COURT: What page? 34 THE WITNESS: Page 379, bottom paragraph. 35 36 "We think and are well assur'd unless there 37 is Permission for all Persons to Winter with 38 the Indians on their hunting Grounds, that 39 the Trade must every Year diminish. For 40 many Nations of Indians, and those too who 41 have always made the greatest consumption of 42 our British Manufactories; and have brought 43 the Largest Quantity of Furs, and other 44 Peltries to our Market: are at so great a 45 distance from any Fort, that it is 46 impossible they shou'd supply themselves, 47 and Return again to their Hunting Grounds in 16266 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 the same year." 2 3 And he goes on to refer in particular to the traders 4 who oblige to winter at Michelmakinac, and they state 5 out various needs of the Indians for European 6 manufactures. 7 The document at tab 24 -- 8 MR. GOLDIE: Excuse me for a minute. My lord, with respect to 9 any of these documents which are printed from other 10 sources, I'm not going to ask that the footnote -- I'm 11 not going to refer to the footnote each time. 12 THE COURT: No. All right. 13 MS. MANDELL: There's no problem with that. 14 MR. GOLDIE: I should hope not. 15 THE COURT: Tab 24? 16 THE WITNESS: Tab 24, again enclosures 18 through 20 of 17 Shelburne's submission to the board of trade. And the 18 first part of it is a letter dated 27th of March 1767 19 from Guy Carleton, who is at this point the lieutenant 20 governor of the Province of Quebec and a year later he 21 becomes the governor, writing to Sir William Johnson. 22 And at the bottom of the first page, that's page 520, 23 Carleton refers to the French being rivals in trade, 24 and he states in the last paragraph important to 25 defeat these endeavours "whether fair or fraudulent 26 and by wise Regulations, honest dealing and by kind 27 Treatment to attach them," that is the Indians, "to 28 us, and avail ourselves of those extensive Channels of 29 Tried, to enlarge our Commerce to the utmost." 30 And then on the next page they -- Carleton repeats 31 what the merchants have been saying directly about 32 halfway down the page on 521, and he's in reference to 33 the merchants: 34 35 "Whether they are right or wrong in their 36 Opinion of the Indian Trade, I submit to 37 those whom the King has appointed to direct 38 and Superintend the same, but the unanimous 39 Opinion of all here, Canadians and British," 40 41 and by Canadians he means French Canadians, 42 43 "is, that unless the present Restraints are 44 taken off, that Trade must greatly 45 suffer..." 46 47 And here he refers again to furs being diverted down 16267 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 the Mississippi instead of the St. Lawrence. 2 3 "They," that is the traders, "compute that a 4 very large Quantity of Merchandize, formerly 5 passed thro' this Province to Nations 6 unknown to Pondiac, and too distant to come 7 to any of our Posts, and that so much is 8 lost of the Consumption of British 9 Manufactures." 10 11 And this -- I won't refer to the end part of the 12 document, which is the extract of the letter from 13 Carleton to the Earl of Shelburne. It's merely 14 inclosing his -- this is at page 525. It refers to 15 the matters discussed with William Johnson. 16 The document at tab 25 is part of this same 17 process, Shelburne's referral of these matters to the 18 board of trade, and the document at tab 25 is from the 19 Shelburne manuscripts, the transcripts which are in 20 the National Archives of Canada, and it consists of 21 Shelburne's comments, as he says right on the top 22 right: 23 24 "Remarks, upon which are grounded the Minutes 25 submitted by me to Cabinet in Summer 1767." 26 27 And it consists of a series of comments Shelburne 28 makes upon various articles in the plan which had been 29 proposed in 1764 for the management -- future 30 management of Indian affairs. And, for example, on 31 the left-hand column under "Plan" he quotes the first 32 section about the trade being free and open, and then 33 last line: 34 35 "...so as not to interfere with the Charter 36 to the Hudson's Bay Company." 37 38 THE COURT: Is that a quotation from the proclamation? 39 THE WITNESS: No, it's a quotation from the plan for future 40 management of Indian affairs, which was at tab -- 41 sorry -- tab 16. 42 MS. MANDELL: Yes. 43 THE WITNESS: And I don't propose to read those ones again, but 44 I note Shelburne's comments on the first page, bottom 45 of the right-hand column, when he's talking about the 46 trade with the Indians. He says: 47 1626? J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 "As to what regards the Hudson's Bay Company, 2 ought it not to be examined how far their 3 Charter is consistent with the Indian Trade 4 of the Northern Provinces and the Indian 5 Districts of America." 6 7 And then in reference to the proposal to divide 8 North American into two districts, which had been made 9 in the second article of the plan, Shelburne comments 10 on page 168 partway down: 11 12 "It is difficult to comprehend how the Trade 13 would be better regulated or managed by a 14 Division of the immense Continent of North 15 America into two Districts only." 16 17 And he goes on to talk about several difficulties he 18 has with that. 19 And then on page 171 Shelburne is commenting on 20 the third article of the plan, which he sets out on 21 page 169, which had been that the trade be confined to 22 the posts in the northern district. And Shelburne 23 states with reference to these posts on page 171: 24 25 "Our Traders in doubtful Times would 26 naturally seek the Protection of the Forts, 27 but when all is quiet, they ought to be 28 allowed to diffuse themselves, wherever a 29 Spirit of Enterprize, or prospect of Gain 30 will allure them; by this we shall keep the 31 Savages in peace in their own Villages and 32 Our Merchants may likewise be able to 33 penetrate and extend Our Commerce and 34 Influence where never post or fort was 35 thought of." 36 37 And on page 181 he's commenting on proposals which 38 had been made in the plan for maintaining peace and 39 good order in the Indian country, and he states at the 40 top right-hand corner: 41 42 "It were to be wished that a Law was made to 43 allow Crimes committed in Indian Countries 44 to be tried in any Province where the 45 Offender may be seized." 46 47 And then on page 190 he's commenting on the 33rd 16269 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 article of the 1764 plan, which had stated that the 2 trade would be carried on by tariff, fixed tariff. 3 And I apologize, the number is a little blurry and 4 hard to read, but at the bottom of page 190 Shelburne 5 states: 6 7 "In short it would probably," 8 9 if there were tariffs, 10 11 "it would probably dwindle the Trade in a few 12 years into a private Job, as no Adventurer 13 since he could not profit by his Superior 14 Abilities or Intelligence would be allured 15 by the prospect of Gain to open a Trade to 16 new Nations or strike out any new Branches 17 of Traffic to himself. Our Business is to 18 spread Our European Manners as wide as 19 possible and by creating Necessities among 20 the Indians, bring them in a manner 21 tributary to Us. Both the Tariff and the 22 confining of Trade to the Posts effectually 23 prevent this. While Trade is confined and 24 cramped, the more distant Nations will 25 probably remain as they are, and those less 26 remote may in some measure take up their 27 ancient Usages again." 28 29 MR. GOLDIE: My lord, I assume that that — the emphasis by 30 underlining that we've seen is not part of the 31 original document. 32 THE WITNESS: No, it's not, it's my underlining. 33 And finally, I would note on the very last page of 34 the document, page 199, Shelburne states: 35 36 "If the Indian Trade is worth preserving, We 37 ought to leave it free both as to its Mode 38 and Extent." 39 40 And tabs 26 and 27 basically set out what happened 41 as a result of these various deliberations by 42 Shelburne and the board of trade and the decisions 43 which were taken with respect to the trade. And at 44 tab 26 is a letter from the Earl of Hillsborough, who 45 has just replaced Shelburne as secretary of state, 46 writing to the several governors dated April 15th, 47 1768. And second paragraph, it's to advise them that: 16270 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 2 "His Majesty has thought fit that it shall be 3 laid aside that the regulation for the trade 4 shall be left to the Colonies whose 5 Legislatures must be the best Judges of what 6 their several Situations & Circumstances may 7 require." 8 9 And they refer just above to the difficulty of 10 implementing the 1764 plan and announces: 11 12 "That the Office of Superintendent," 13 14 that is Indian superintendent, 15 16 "shall however be continu'd for such Matters 17 as are of Immediate Negotiation between His 18 Majesty and the Savages." 19 20 And on page 246 Hillsborough is recommending to 21 the governors -- at the very bottom of page 246 he 22 states it's unnecessary for him to refer again how 23 much the interest and safety of the colonies depend 24 upon close attention to these topics. And he states 25 that many of the regulations that had been used "have 26 evidently operated to the benefit of the Trade and to 27 the giving that satisfaction and content to the 28 Savages, by which alone the Colonies can hope to 29 derive either immediate profit or lasting peace." And 30 then he goes on: 31 32 "His Majesty trusts that they will be 33 adopted, as far as local Circumstances and 34 peculiar situations will admit, always 35 having regard to the Freedom of trade with 36 the Indians, which His Majesty has 37 graciously granted to all His Subjects by 38 his proclamation of 1763." 39 40 And the next -- at the next tab, 27, Hillsborough on 41 the very same day sends a letter couched in similar 42 terms to General Gage, the Commander-in-Chief. And at 43 the bottom of the first page he reminds Gage that: 44 45 "...His Majesty concurs in Opinion with His 46 Board of Trade, that the laying aside that 47 Part of it which relates to the Indian Trade 16271 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 & entrusting the entire Management of that 2 Trade to the Colonies themselves, will be of 3 public Utility & Advantage, " 4 5 and he says as a means of avoiding much difficulty and 6 saving money. 7 And on the next page, 62, he alludes to the 8 reasons, some more of the reasons why the management 9 is now being turned over to the colonies themselves 10 and suggests the various type of regulations which the 11 colonies should adopt. 12 THE COURT: Two o'clock. 13 THE REGISTRAR: Order in court. Court will adjourn. 14 15 (PROCEEDINGS ADJOURNED AT 12:30 P.M.) 16 17 I hereby certify the foregoing to be 18 a true and accurate transcript of the 19 proceedings herein to the best of my 20 skill and ability. 21 22 23 24 Leanna Smith 25 Official Reporter 26 United Reporting Service Ltd. 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 16272 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 2 (PROCEEDINGS RECONVENED PURSUANT TO RECESS) 3 4 THE REGISTRAR: Order in court. 5 THE COURT: Mandell. 6 MS. MANDELL: 7 Q Thank you. The witness was in mid-flight answering a 8 question which your lordship assisted me in posing, 9 and perhaps if you could turn to the next tab which 10 you've been referred to? 11 A I believe that's tab 28. 12 THE COURT: We're still on the same — 13 MS. MANDELL: Volume. 14 THE COURT: -- category of how Indian reserve was used by the 15 Crown after the Proclamation? 16 MS. MANDELL: Yes. 17 THE COURT: Thank you. 18 THE WITNESS: And tab 28 is a letter with an enclosure from Sir 19 Guy Carleton to Lord Shelburne, and it's dated 2nd of 20 March, 1768, and just a month before the directions 21 went out about altering the system of trade, and in 22 the very first paragraph of the letter, Carleton 23 notes, third line down: 24 25 "The Drawing hereto annexed", 26 27 And no such drawing has survived with the manuscript 28 letter, as the note at the bottom indicates as well, 29 30 "is taken from the different maps and the 31 best memoirs and relations I have hitherto 32 been able to procure; 'tis intended chiefly 33 to show the Western Posts which the French 34 formerly occupied, and how far they extend 35 beyond Michilimakinak, this end I believe it 36 answers tolerably well, though their exact 37 Positions on the Globe must be erroneous, as 38 I have not met with any of these Gentlemen, 39 who understand the use of any Mathematical 40 Instrument, but they all agree that 41 Pascoyat" spelled P-a-s-c-o-y-a-t, "is two 42 and a half or three months journey beyond 43 Michilimakinak and reckon the distance about 44 nine hundred leagues, probably this is far 45 beyond the true distance as they follow the 46 serpentine course of Lakes and River. The 47 River on which Pascoyat stands, is said to 16273 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 be five hundred leagues long, a Fort was 2 erected on one hundred leagues beyond 3 Pascoyat, but I have not Information enough, 4 to put either the Fort or the full extent of 5 the River on the Map." 6 7 And then he refers to an annexed return of the 8 French posts and refers to the way in which the French 9 organized the fur trade. 10 And on the next page -- 11 THE COURT: Do you have a translation for Pascoyat? 12 THE WITNESS: It's now the Paw of Manitoba. 13 THE COURT: Thank you. 14 THE WITNESS: And I could refer at this point to maps which 15 should be inserted in tab 29. 16 MS. MANDELL: It's the bundle — 17 THE COURT: Just one thing, a league is six miles? 18 THE WITNESS: A French league was two and a half miles, and the 19 English three, or vice versa. I forget which way 20 around, but either two and a half or three miles. 21 THE COURT: All right. 22 THE WITNESS: There are two maps or reproductions of maps in 23 the French maps, reproductions of portions of two 24 French maps, those ones which, although the map was 25 not included or has not survived, the one that 26 Carleton enclosed, he refers to French geographers and 27 he's enclosed a state of the French posts from 1754, 28 and these are sections from two French maps from the 29 1750's. The one by Joseph Delisle, 1752, shows the 30 mythical Western Sea, the la Mer de l'Ouest, and a 31 number of these mythical geographical features 32 including the Lac de Fonte which were referred to 33 yesterday, and the eastern part of the map shows the 34 rivers leading away from Lake Superior towards the 35 west, and there's shown to be a chain of mountains 36 between those rivers and the Western Sea. 37 The other map, the other French map, which is much 38 more accurate in a detailed sense, is from 1755 by 39 Nicolas Bellin, and it's an excerpt from his, and 40 again at the very bottom right corner of the map is 41 the chain of lakes leading away from Lake Superior 42 through Rainy Lake and Lake of the Woods. And then 43 Lake Winnipeg is quite clearly marked on the map, and 44 above it Lake Winnipegosis, called here Lac Bourbon, 45 and then the place Poscoyat is marked on that map at 46 the top of the Lac Bourbon. It's spelled there 47 P-o-s-c-o-y-a-c, Poscoyac. 16274 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 THE COURT: Where's that? 2 THE WITNESS: It's on — just above Lac Bourbon to the left, 3 the river flowing out of the -- I apologize for -- 4 right there. Poscoyat. 5 THE COURT: Oh, I see. 6 THE WITNESS: Just right -- and then it shows several of the 7 rivers extending westward and the country is marked as 8 Pais des Assiniboiles, country of the -- what would 9 now be called the Assiniboine. And then above the -- 10 on a sort of blank part of the map there's a -- 11 written something in French which can be translated in 12 English as "We aren't aware whether in this -- in 13 these parts there is land or sea.". 14 THE COURT: I'm sorry, you say we are not aware or we are 15 aware? 16 THE WITNESS: We are not aware. "On ignore" in French. And 17 then down at the bottom of the map they have written 18 the Western Sea, "La Mer de l'Ouest". 19 MR. GOLDIE: I wanted to draw your lordship's attention to the 20 fact that, as far as I'm aware, the words "la Mer de 21 l'Ouest" or "de l'Ouest" or occasionally "du l'Ouest" 22 are not translated as the Western Sea in any English 23 document I've seen. 24 MS. MANDELL: Are they — 25 THE COURT: Well, how else would it be translated if it's 26 French? 27 MR. GOLDIE: My point is, my lord, I will await what the witness 28 says, but I think it is referred to English documents 29 as la Mer de l'Ouest. 30 THE COURT: As if that was an English word? 31 MR. GOLDIE: As if that was a particular name of a particular 32 place. 33 THE COURT: I see. All right. 34 MS. MANDELL: 35 Q Before we place these tabs, could you identify 36 where -- from what source you've been able to take 37 these maps? 38 A Well, these are photocopied from the enclosures at the 39 back of Brian Slattery's thesis, and I apologize 40 because my own reproductions of these maps and 41 including the ones at the next tab I left in 42 Haileyburg. I had intended to bring them out with me. 43 Q But you've seen the -- have you taken copies yourself 44 of these maps from the archives? 45 A Yes, I have copies myself from the National Archives. 46 MS. MANDELL: And do these maps here represent, as best as you 47 can determine, to be true copies of the copies you've 16275 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 seen? 2 MR. GOLDIE: Well, the witness has said these are excerpts. 3 This isn't the entire map. 4 THE WITNESS: No, and it was not — 5 MS. MANDELL: 6 Q -- intended to be. I understand that. 7 A The entire — 8 Q All right. My question still though is whether this 9 represents, to the best of your knowledge, an accurate 10 copy of the portion of the map that you yourself have 11 seen from the archives? 12 A Yes. 13 THE COURT: What is this printing below the typewriting "Ses 14 Parties", P-a-r-t-i-e-s? These parts are -- 15 THE WITNESS: These parts are entirely unknown. 16 THE COURT: Just a moment. And if you follow or go over to the 17 right from where it says these parts are entirely 18 unknown. 19 THE WITNESS: Yes. 20 THE COURT: What is that -- what is that supposed to represent? 21 THE WITNESS: It says in — translated from the French, the 22 English have been searching for a passage in these 23 parts. It's referring to the various searches for a 24 north-west passage that the English had been 25 conducting from the Arctic. 2 6 THE COURT: All right. Well, now moving to the east from the 27 Paw — 28 THE WITNESS: Uh-huh. 29 THE COURT: -- do you take that area just to the east, the large 30 area that looks a bit like Lake Erie, and I'm sure 31 it's not supposed to be Lake Erie, is that an area 32 that's supposed to describe a lake or is it supposed 33 to describe two rivers with a lake? What do you think 34 it's supposed to be? 35 THE WITNESS: It's supposed to be rivers. The river at the top 36 is actually a representation of what's known as the 37 Churchill River, at least as it comes out on Hudson 38 Bay. 39 THE COURT: Oh, I see Hudson Bay is — 40 THE WITNESS: Yes, Hudson Bay is on the extreme right, and then 41 below it is what are now known as the Nelson and Hayes 42 Rivers coming down the York Factory. 43 THE COURT: I see. All right. That makes it clearer. 44 THE WITNESS: And then below those two rivers again in French 45 is written something which can be translated as a 46 great extent of land which is entirely unknown. 47 THE COURT: And what about right down at the bottom "Lac" 16276 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 something, A-l-i-m -- 2 THE WITNESS: Oh, that's a reference to Lake Nipigon. 3 THE COURT: Nipigon. 4 THE WITNESS: That's the Indian Alimipigon, spelled on the map 5 A-1-i-m-i-p-i-g-o-n. 6 THE COURT: Yes. Yes. All right. Thank you. 7 MS. MANDELL: Thank you. My lord, I had hoped that this would 8 be included in the volume which we're in, Volume 3, 9 and I had left a spot for it at tab 27. 10 THE COURT: All right. 11 THE REGISTRAR: Tab 28 — sorry, 29 and 30 are left. 12 MS. MANDELL: Is it 29? I'm sorry, so this would be the first 13 of them. 14 THE COURT: Do you want both these maps? 15 MS. MANDELL: Yes. 16 THE COURT: And it will be 1027 — what number please? 17 THE REGISTRAR: 1027-29 is one map, and the other one is 1027-30. 18 MS. MANDELL: That's right. You could actually put it in if you 19 want at this time. 2 0 THE COURT: Thank you. 21 22 (EXHIBIT 1027-29: (2) Maps Copy - 1752) 23 24 (EXHIBIT 1027-30: (4) Maps Copy - 1763) 25 26 THE WITNESS: Still referring to the covering letter of Guy 27 Carleton to Lord Shelburne -- 2 8 THE COURT: Yes. 29 THE WITNESS: -- on the second page or the opposite page of it, 30 I would note he's referring to the French and 31 Spaniards having a settlement above New Orleans, and 32 then three lines down in the first full paragraph: 33 34 "From these Magazines they are enabled with 35 Ease to transport their Merchandise into the 36 interior Parts of the King's Territory to 37 the North of the Mississippi, and to the 38 Western Lakes." 39 40 And then he goes on to refer to the extra 41 provincial Canadians in the neighbourhood of the posts 42 such as Detroit. And then two paragraphs further 4 3 down: 44 45 "Should His Majesty think proper to 46 allow the Traders to go up to the Western 47 Lakes, as formerly, I think a Party might 16277 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 winter in one of those Posts, set out early 2 in Spring for the Pacific Ocean, find out a 3 good Port, take its Latitude, Longitude, and 4 describe it so accurately, as to enable our 5 Ships from the East Indies to find it out 6 with ease, and then return the year 7 following; Your Lordship will readily 8 perceive the advantage of such Discoveries, 9 and how difficult attempts to explore 10 unknown Parts must prove to the English, 11 unless we avail ourselves of the knowledge 12 of the Canadians," 13 14 And again he here means French Canadians. 15 16 "who are well acquainted with the Country, 17 the Language and Manners of the Natives." 18 19 And the enclosure, which is the next page, which I 20 don't propose to refer to in any detail, but it's, as 21 he said in the letter, it's from 1754 and a list of 22 the upper posts under the French government. And I 23 merely note under the northern posts the fifth one 24 down is called "Mer du Ouest", and it gives the number 25 of officers who had been stationed there. 26 And tab 31 is the reply dated June the 11th, 1768, 27 of Hillsborough, who succeeded Shelburne as Secretary 28 of State, replying to Governor Carleton, and stating 29 that the subject of various letters including that one 30 have been laid before the King. And I note at the 31 bottom of the page: 32 33 "The account contained in your letter 34 No. 29 of the State of the Posts for Indian 35 Trade established and maintained under the 36 French Government, cannot fail of rendering 37 that Letter a very useful Paper here, and 38 the Knowledge You appear to have acquired of 39 the Spirit and Principles upon which this 40 Branch of Service was conducted, will be a 41 useful guide to you in the forming those 42 Regulations for the Indian Trade which..." 43 44 And it's obliterated by the side of the document. 45 46 "...His Majesty has thought fit should be 47 established by the Colonies themselves upon 1627? J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 such a plan..." 2 3 And again it's partly obliterated by the edge of 4 the page. 5 6 "...as shall be best adapted to the 7 particular circumstances of each." 8 9 And he's here referring to the directions that 10 have gone out to the governors and to the commander in 11 chief. 12 And tabs 32 through 34 are trade licences issued 13 by -- the first two by Governor Carleton of Quebec, 14 and the third by the Lieutenant-Governor of Quebec. 15 And I note the first one, which is dated -- and this 16 is at tab 32, which is dated 27th April, 1769, and 17 it's quite apparent from the face of this and the 18 succeeding ones, and it eventually does become a 19 printed form, but the individual on tab 32, Maurice 20 Blondeau, spelled B-1-o-n-d-e-a-u, is permitted to 21 pass on various conditions "to Michilimackinac and La 22 Mer de l'Ouest, and from thence to such markets or 23 parts as he shall find most advantageous for the 24 disposal of the said merchandise." 25 MR. GOLDIE: My lord, perhaps the witness -- there's an 26 ambiguity in his evidence that perhaps he might clear 27 up without enlarging upon it. He drew your lordship's 28 attention to something called La Mer de l'Ouest on a 29 map, and then he drew your lordship's attention to 30 something called La Mer de l'Ouest in a line of posts. 31 Now, which is he referring to, the posts or the sea? 32 THE WITNESS: I believe the context of the — actually this very 33 document, that the very last page of it answers -- or 34 sorry, second internal page 129 answers that query. 35 He's referring to the posts of La Mer de l'Ouest. 36 MR. GOLDIE: Two different things. 37 THE COURT: All right. 38 THE WITNESS: And it says on page 129 that, in French, the 39 posts of the La Mer de l'Ouest and its dependencies. 40 And the -- I note also on the third page of this 41 licence to Maurice Blondeau the condition of this 42 obligation, this is set out, and I quote: 43 44 "Whereas the above bound and Maurice Blondeau 45 has this day obtained a license to trade 46 with the Indian Nations living under His 47 Majesty's protection at" 16279 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 2 In this instance Michilimackinac and Mer de 3 l'Ouest. 4 5 "and from thence to any markets or posts 6 which he will find most advantageous." 7 8 Page 125, one, two, third page, and it's at the 9 bottom. And the printed license at tab 33 to a 10 different individual, one of the Ermatinger brothers, 11 spelled E-r-m-a-t-i-n-g-e-r again, it's been filled 12 in, his destination is La Mer du West, spelled here 13 W-e-s-t, and the wording is the same as the previous 14 handwritten one. 15 THE COURT: Where do you say that is? 16 THE WITNESS: I believe from the fur trade history and 17 discussions of where these Montreal-based traders were 18 then trading. Maurice Blondeau, for example, who was 19 mentioned in the previous license, was trading in the 20 region of the Assiniboine River, Lake Winnipeg, 21 various posts which are now in western Manitoba and 22 eastern Saskatchewan, that this was the general area 23 in which these fur traders had reached by that time. 24 And the license at tab 34 is again couched in the 25 same wording. It's from 1772, except it's again 26 Benjamin Frobisher, the very well known fur trader, 27 and he's being permitted to "pass to Grand Portage and 28 from thence to such markets or parts", and I'm quoting 29 here, "as he shall find most advantageous for the 30 disposal of the said merchandise, and there to trade 31 or traffic with any of the Indian Nations living under 32 His Majesty's protection". And the various 33 obligations are set out in the margins and they're all 34 signed. 35 THE COURT: And where do you say Grand Portage is? 36 THE WITNESS: Grand Portage is at the north-western edge of Lake 37 Superior. It still exists. It's now in the United 38 States just over the American border, and -- 39 THE COURT: What was the portage that they're talking about? 40 THE WITNESS: It's the portage where it was basically the 41 trans-shipment point for further inland, that is, the 42 canoes would come up from Montreal laden with the 43 goods for the trade. 44 THE COURT: To the westerly end of the lake? 45 THE WITNESS: To the very west end of Lake Superior, and then 46 they'd be unloaded there and transferred to smaller 47 canoes, and then the traders would carry those goods 16280 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 inland to the extent that they were travelling and 2 trading. It was the jumping off point for the chain 3 of lakes leading west from Lake Superior into what are 4 now the prairie provinces. 5 THE COURT: All right. 6 THE WITNESS: And — 7 THE COURT: So it wasn't a portage in the usual sense 8 transferring from over a height of land, it was just 9 trans-shipping from one mode of transportation to 10 another? 11 THE WITNESS: Well, there was a very long portage west of Grand 12 Portage. I mean, there was a beginning of a long 13 portage by which, as I say, you reached the chain of 14 lakes leading west from Lake Superior, and it had been 15 used by the French. 16 THE COURT: All right. Thank you. 17 THE WITNESS: Tab 35 is excerpts from a copy of the 18 instructions to Guy Carleton as Governor of Quebec 19 dated 3rd January, 1775, and this is after the passing 20 of the Quebec Act of 1774 which extended the 21 boundaries of the province of Quebec. And this is 22 referred to in article 30. I haven't copied the 23 complete instructions because a lot don't deal with 24 these measures, but article 30, which is the second 25 page of the document -- 2 6 THE COURT: Yes. 27 THE WITNESS: — refers to the extension of the limits of the 28 province of Quebec and the necessary attention to 29 certain objects, and then: 30 31 "The protection and control of the various 32 settlements of Canadian Subjects, and the 33 regulation of the Peltry Trade in the upper 34 or interior country on the one hand," 35 36 And then it talks about the fisheries, and that 37 these point to regulations, and on article 32 it 38 states that because, and quote: 39 40 "It is Our Royal Intention that the Peltry 41 Trade of the interior Country should be free 42 and open to all our Subjects, Inhabitants of 43 any of Our Colonies, who shall, pursuant to 44 what was directed by Our Royal Proclamation 45 of 1763, obtain licences from the governors 46 of any of our said colonies for that 47 purpose, under penalties to observe such 16281 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 Regulations, as shall be made by Our 2 Legislature of Quebec for that purpose;" 3 4 And then it goes on to talk about publicizing such 5 regulations. 6 And on the next page it encloses a copy of the 7 plan for future management of Indian Affairs, as it's 8 since become known, of 1764, which is directed to 9 Carleton at the end of it "as a Guide in a variety of 10 cases" . 11 THE COURT: Where's that? 12 THE WITNESS: That's at the very end of paragraph 32 on page 145 13 four lines up from the bottom. It's to "serve as a 14 Guide." 15 THE COURT: Yes. 16 THE WITNESS: And at tab 36 it's an Indian trade license from 17 1776 which has not been completely filled out, but 18 it's printed form and it's couched in the words of the 19 ones that I referred to earlier. 20 And the tab 37 is a summary or account of licences 21 to trade with the Indians in tabular form listing the 22 years, and to whom they're granted, and sums of the 23 securities, and for what place, and the various places 24 are listed. And I note on the first page of the 25 account the references to -- and there are several, to 26 Grand Portage, and then under the date of May 6, 27 again, La Mer de l'Ouest, it's about eight -- 2 8 THE COURT: La Mer de L'Ouest? 29 THE WITNESS: Yes. 30 MR. GOLDIE: I take it the witness placed that circle there, my 31 lord? 32 THE WITNESS: Yes, I did. And there are other such references. 33 MS. MANDELL: And what do you say is the significance of the 34 Grand Portage? 35 MR. GOLDIE: I believe the witness has explained that in answer 36 to his lordship's question. 37 THE COURT: Well, has he explained the significance or did he 38 just identify its location? 39 MR. GOLDIE: Well, if there's any significance beyond the fact 40 that it marks the end of the heavy transport, the 41 large canoes, and the trans-shipment to the smaller 42 canoes or inner country canoes, I'm unaware of any 43 such significance. 44 THE COURT: Well, I expect that Miss Mandell is hoping to get 45 from the witness that it fixes the extent of trade as 46 of that date or one of the extents of trade. 47 MR. GOLDIE: I'd be surprised if that's the answer because the 16282 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 trading certainly extended beyond Grand Portage. 2 THE COURT: Well, perhaps it extended that far. I think the 3 question -- we better stop guessing what the 4 significance is and let the witness say. 5 THE WITNESS: Well, I would refer immediately actually to tab 6 40 and -- which is another one of these tabular 7 returns, and this one is for the year 1780 and it's 8 headed "A Return of Licences granted to Trade with the 9 Indians at Michilimackinac and the North West for 10 1780", and I would note that the North West is not 11 itself mentioned in the list of places to which -- to 12 where the licences are granted, but Grand Portage is 13 mentioned continuously, and of course if you look at 14 the names of the traders who were going to Grand 15 Portage, among them for example Simon McTavish and the 16 Frobisher brothers, that these are the -- and Peter 17 Pond, these are the famous traders who formed the 18 Northwest Company. And so my point is simply that 19 Grand Portage is shorthand for the Northwest. 20 THE COURT: You mentioned McTavish, Pond, and — 21 THE WITNESS: Frobisher. 22 THE COURT: Oh, yes. 23 THE WITNESS: There are others that are listed. I'm just 24 selecting these ones because they've since become the 25 most famous. 2 6 THE COURT: All right. 27 THE WITNESS: And the same observation can be made at tab 42 28 which -- and I apologize for the quality of the 29 reproduction, but it's a list of Indian trade passes 30 issued for the year 1785, and partway down on the 31 first page, and it's difficult to read, but in the 32 left hand opposite the date of May 3rd we have 33 Benjamin and Joseph Frobisher, directors of the 34 Northwest Company. 35 THE COURT: Let me see if I can find that. 36 THE WITNESS: It's about half-way down the page. 37 THE COURT: Which date? 38 THE WITNESS: May 3rd. 39 THE COURT: Second name — 40 THE WITNESS: First one is Allan McDonell, the second one is 41 just abbreviated Benjamin and Joseph Frobisher, 42 directors of the Northwest Company, "NW Company", as 43 it's there written, and the securities given are 44 Benjamin Frobisher and James McGill. And the pass is 45 issued for Grand Portage, and the value of the cargo 46 is stated to be 20,000 pounds. 47 MR. GOLDIE: That's 1785? 16283 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 THE WITNESS: That's 1785. 2 THE COURT: All right. 3 THE WITNESS: And there are further references in the document 4 to Grand Portage. 5 THE COURT: I'm sorry, did you say 1775 or — 6 THE WITNESS: 1785. 7 THE COURT: '85. Thank you. 8 THE WITNESS: The document at tab 43, and I apologize for 9 skipping around here, but it's an excerpt from the 10 "Travels and Adventures" of Alexander Henry, another 11 well known fur trader, and this is from 1776, and it 12 just gives some indication of where these north-west 13 traders were trading at the time. And in this excerpt 14 from Henry's travels for 1776, page 331, at the bottom 15 he mentions that the Indians with whom he was dealing 16 were from, as he calls it, "Lake Arabuthcow", 17 A-r-a-b-u-t-h-c-o-w, which it would appear to be a 18 reference to Lake Athabasca, "of which in the 19 surrounding country", and I'm quoting: 20 21 "they were the proprietors, and at which they 22 had wintered. They informed us, that there 23 was, at the further end of that lake, a 24 river, called Peace River, which descended 25 from the Stony or Rocky Mountains, and from 26 which mountains the distance to the salt 27 lake, meaning the Pacific Ocean, was not 28 great; that the lake emptied itself by a 29 river, which ran to the northward, which 30 they call...", I won't read the Indian name, 31 "...Slave River." 32 33 And they give various accounts of the geography. 34 And at tab 44, Messrs. -- the Frobisher brothers 35 are writing to General Frederick Haldimand, who's the 36 Governor of Quebec, dated at Montreal, 4th October, 37 1784, and they in effect summarize the history of the 38 Northwest Company or the traders who trade to the 39 north-west the various movements they've made 40 westward. And I note about half-way down the third 41 full paragraph on that page they talk about their 42 canoes having reached Lake Bourbon, which from the 43 French maps would appear to be the reference to the 44 Lake Winnipegossis, and further down "New Posts were 45 discovered as early as the year 1774, which to the 46 French were totally unknown.", and he goes on to 47 discuss the history of that. 16284 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 And then he refers to the recent -- and this is of 2 course 1784, so in 1783 there's the Treaty of 3 Versailles, which has ended the war of the American 4 Revolution, and the Northwest Company is now concerned 5 that the Grand Portage, and this is on the next page, 6 that they were about to be dispossessed of Grand 7 Portage and which, as they point out, is the "only 8 part of that Country where there is a possibility of 9 getting to the Water Communication which leads to Lake 10 du Bois", B-o-i-s, or Lake of the Woods, my 11 translation, "and thence forward to every part of the 12 country beyond it." 13 And they -- and the document at tab 45 is a 14 "Memorial of Peter Pond", another of the very famous 15 Northwest traders, to the Lieutenant-Governor of 16 Quebec, and he's making a memorial on behalf of the 17 Northwest Company of which he is a partner. And he 18 refers to -- on the second page to making various -- 19 it's dated 18th of April 1785, and he refers to making 20 explorations, this is in the second full paragraph on 21 the second page, that the company will make 22 explorations at its own expense -- 23 THE COURT: I'm sorry, I haven't found that yet. 24 THE WITNESS: Okay. It's the paragraph beginning "Your 25 Memorialist begs leave to" -- 2 6 THE COURT: Yes. 27 THE WITNESS: And then about five or six lines further down he 28 refers to "a map with remarks upon the Country therein 29 laid down which your Memorialist had lately the Honour 30 of laying before you, for the information of 31 Government: And the company will..." 32 THE COURT: I'm sorry, I haven't found that yet. I've got "Your 33 Memorialist". 34 THE WITNESS: About four lines after that, right after the 35 reference to "longitude of 128 degrees West of London; 36 as will appear by a map". 37 THE COURT: Are you at page — 38 THE WITNESS: I'm at the second page of that memorial. 39 MS. MANDELL: 40 Q There should be three pages, my lord. 41 A Yes, and then a map at the end of it. 42 THE COURT: I'm sorry, I can't find it. "Your Memorialist 43 humbly begs leave to inform Your Honour, that he has 44 had positive information from the Natives."? 45 THE WITNESS: No, sorry, the paragraph above that. 46 THE COURT: Oh, all right. Two paragraphs start the same way. 47 THE WITNESS: Yes, I apologize. 16285 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 THE COURT: All right. And then you started reading where? 2 THE WITNESS: Just after the reference to the "longitude of 128 3 degrees West". 4 THE COURT: Yes. All right. 5 THE WITNESS: He's suggesting exploring those unknown regions, 6 and then he says: 7 8 "as will appear by a map with remarks upon 9 the Country therein laid down, which your 10 Memorialist had lately the Honour of laying 11 before you for the information of 12 Government." 13 14 And he suggests -- end quote -- and he suggests 15 that the company will, at its own expense, pursue that 16 work "until the whole extent of that unknown country 17 between the latitudes of Fifty-four and Sixty-seven to 18 the North Pacific Ocean, is thoroughly explored." And 19 then he talks about transmitting such information to 20 the Governor of the Province of Quebec. 21 And then the paragraph that begins: 22 23 "Your Memorialist humbly begs leave to inform 24 Your Honour, that he has had positive 25 information from the Natives, who have been 26 on the Coast of the North Pacific Ocean, 27 that there is a trading Post already 28 established by the Russians; and your 29 Memorialist is credibly informed that Ships 30 are now fitting out from the United States 31 of America, under the command of Experienced 32 sea-men (who accompanied Captain Cook in his 33 last Voyage)." 34 35 And reference to fur trade on the "North-West Coast". 36 And the -- at the end of the document is a copy of 37 Peter Pond's map, a well known map of -- showing 38 various geographical points, a lot of them, as it 39 turns out, quite inaccurate, but the sort of common 40 view of the interior geography at the time that Pond 41 was writing, and based on the experience of Pond and 42 his fellow traders, and a number of comments are made. 43 The lakes Winnipeg and Winnipegosis, Manitoba, are all 44 clearly marked, and various Indians between there and 45 on what is quite patently the Saskatchewan River, and 46 then the mountains in the west, but his knowledge of 47 the mountains or what's beyond the mountains is very 16286 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 sketchy. 2 And he says down in the bottom left-hand corner, 3 he says "The Indians who occupy this part of the 4 Country", and that is those over the mountains "are 5 unknown to me. The Indians who make War against them 6 say that they have seen amongst them People with long 7 Beards." And of the various Indian groups who are 8 named on the map, some are still known by those names, 9 such as the Assiniboine or Stone Indians, the Black 10 Feet Indians. This is in what's now western Canada. 11 Some of the others, such as Rapid Indians, Jessees 12 Indians, these are not terms which are still in use, 13 but Beaver Indians up in the upper part -- 14 THE COURT: He has them at two places. 15 THE WITNESS: Yes, he has them at two places, both over these 16 mountains he's marked and on the east side of the 17 mountains. 18 MS. MANDELL: There's actually three places. 19 THE COURT: Yes. 20 THE WITNESS: Three places. And although it's — 21 MR. GOLDIE: My lord, I wonder if the witness could assist me, 22 looking on the second page, which is in part a 23 duplicate of the first page, just above the name 24 "Jessees Indians", which in turn is above the name 25 "Black Feet Indians" — 26 THE WITNESS: Yes. 27 MR. GOLDIE: — there is a fork and a river — 28 THE WITNESS: Uh-huh. 29 MR. GOLDIE: -- which I assume flows to the east, and it's 30 stated "This river is called by the natives" 31 something, and I can't quite -- 32 THE WITNESS: It's Pasquia, P-a-s-q-u-i-a. 33 MR. GOLDIE: And then above that there seems to be some language 34 "This is the highest post..." 35 THE WITNESS: "...the French traders possess." 36 MR. GOLDIE: What is that word? 37 THE WITNESS: Possess, I believe. 38 MR. GOLDIE: Possess. Thank you. 39 THE WITNESS: And in that earlier letter from 40 Lieutenant-Governor Carleton to the Earl of Shelburne 41 he had referred to a French post about a hundred 42 leagues past Pasquia, and this would presumably be the 43 fort to which he was then referring. As far as I'm 44 able to determine, nobody yet knows exactly where that 45 post was located. There are various theories about 46 it. 47 THE COURT: What does it say along the south side of the 16287 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 Saskatchewan River "This river is called by the 2 natives" -- 3 THE WITNESS: That's the one, Pasquia I believe. 4 THE COURT: Pasquia? 5 THE WITNESS: Pasquia. 6 THE COURT: What's the date of this map? 7 THE WITNESS: It's Circa 1785. Like his memorial is from 1785. 8 When he actually prepared the map, I don't know, 9 presumably about that time. And I would note actually 10 since there are portions, the map was photocopied in 11 portions, that the last portion of the map showing 12 Lake Superior does show Grand Portage right at the 13 western end of Lake Superior, and you can see the 14 lakes just in a bit and the chain of lakes leading to 15 the west. 16 THE COURT: What does it say before chain of lakes? Is it lake 17 chain -- no. 18 THE WITNESS: Sturgeon Lake, and then it's chain of lakes. 19 It's the -- Sturgeon's on the other side of the lake. 2 0 THE COURT: Oh, yes. Yes. 21 THE WITNESS: The document at tab 41 had shown the — and 22 actually at -- well, at tab 41 it's the Executive 23 Council of the Province of Quebec minute, and this is 24 a typed script, the original minute is behind it, and 25 it's dated 16th of April, 1785, and says: 26 27 "The committee named yesterday for 28 examining the draught of a passport for the 29 Indian Trade presented their report with the 30 passport which was read in English and 31 French and approved as follows." 32 33 And then it sets out a form for those passes. And 34 on the second page the statement is made again in a 35 sort of standard language with blanks to be filled in 36 about various individuals "proceeding with the said 37 Merchandise or any part thereof to any other posts, 38 markets or parts of this Province as the said" blank 39 "may judge proper and advantageous for the disposal 40 thereof, There to Trade or Traffick with any of the 41 Indian Nations living under His Majesty's Protection", 42 blank "shall be furnished", et cetera, end of quote. 43 And I would then turn to tabs 47 through 50 or 49, 44 rather, which in actual fact are all part of one basic 45 document, and the document at tab 47 is an ordinance 46 of the province of Quebec as published in the Quebec 47 Gazette in April of 1791, and it's from its head "to 162? J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 explain and amend the Act entitled an Act or Ordinance 2 for promoting the Inland Navigation and to promote the 3 Trade to the Western Country". 4 And I would note at the very bottom of the English 5 text the last full paragraph of the ordinance. It 6 states: 7 8 "And to the end that the Trade", 9 10 And I'm quoting: 11 12 "to the Western Districts and Indian 13 Countries may be free and open to all His 14 Majesty's faithful Subjects in every Part of 15 His Majesty's Inland Dominions and 16 Territories whatsoever, be it enacted by the 17 same authority, that from and after the 18 publication of this Act, it shall not be 19 necessary for any of His Majesty's Subjects, 20 carrying on trade or other Rated Residents 21 of this Province, to take out anywhere or 22 from any Person or Persons any License, 23 Pass, Permit, or other Writing whatsoever, 24 for going into or trading with the Indians 25 or other inhabitants of the Western 26 Countries, Districts, or Counties of this 27 Province, or Territories whatsoever, or for 28 the carrying or conveying thither or 29 elsewhere..." 30 31 And I end quote, and he refers to the various things 32 that may be carried, or the ordinance does. 33 And at tab 48, and again I apologize for the 34 quality of the reproduction, it's a dispatch from Lord 35 Dorchester, who's Guy Carleton, with his peerage, and 36 he's Governor of Quebec, or Governor of Canada now, 37 because in 1791 the old province of Quebec has been 38 divided into the provinces of upper and lower Canada. 39 THE COURT: 1791? 40 THE WITNESS: Yes. And Carleton is Governor of both 41 provinces -- sorry, under his title as Dorchester, but 42 it's the same person. And this is a dispatch from 43 Dorchester to Lord Grenville, the Secretary of State, 44 and he's enclosing various laws enacted by the 45 legislative council of the province with copies and 46 his comments on these enactments. 47 And on the second page, which is titled 16289 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 "Observations on the Acts or Ordinances in Question", 2 he refers to this Act which was at tab 47, and further 3 down in reference to the fifth clause, which is the 4 one -- and I apologize that it's so hard to read. It 5 states: 6 7 "The fifth clause does away restraints 8 formerly imposed on the Indian trade which 9 in the present condition of things were no 10 longer useful, but had a tendency to turn 11 that commerce into foreign channels." 12 13 And I would end the quote there except that he 14 goes on to say that: 15 16 "The principles of these changes of system 17 were developed at large in a report of the 18 committee for inland commerce and navigation 19 entered on the council minutes of the 4th of 20 January last." 21 22 And at tab 49 are the council minutes that -- 23 THE COURT: I think before we look at those we'll take the 24 afternoon adjournment, please. 25 MS. MANDELL: Thank you. 26 THE REGISTRAR: Order in court. Court will recess. 27 2 8 (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS) 29 30 I hereby certify the foregoing to 31 be a true and accurate transcript 32 of the proceedings herein to the 33 best of my skill and ability. 34 35 36 Tanita S. French 37 Official Reporter 38 39 40 41 42 43 44 45 46 47 16290 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 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 (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK) THE REGISTRAR: Order in court. THE COURT: Ms. Mandell. MS. MANDELL: My lord, we were beginning tab 29 of this volume. I'm sorry, tab 49. I wish to also advise that the tabs which have already been dealt with by the witness with the exception of the map, tab 40. THE REGISTRAR: No, 38 and 39 have not been spoken to yet. MS. MANDELL: All right. So with the exception of tabs 38 and 39, the remaining tabs have already been marked as exhibits. THE COURT: That goes from where to where? THE REGISTRAR: Starting from tab 28. THE COURT: 2 8 to what number? MS. MANDELL: To 48. THE REGISTRAR: 48. THE COURT: Except? THE REGISTRAR: 38 and 39 haven't been spoken to. THE COURT: All right. THE REGISTRAR: All the other tabs in the book have been spoken to and marked. THE COURT: Yes, that's fine. (EXHIBIT 1027-28 - LORD SHELBURNE) (EXHIBIT 1027-29 - (EXHIBIT 1027-30 - (EXHIBIT 1027-31 - CARLETON) (EXHIBIT 1027-32 - (EXHIBIT 1027-33 - (EXHIBIT 1027-34 - (EXHIBIT 1027-35 - CARLETON) (EXHIBIT 1027-36 - (EXHIBIT 1027-37 - (EXHIBIT 1027-40 - (EXHIBIT 1027-42 - (EXHIBIT 1027-43 - HENRY) (EXHIBIT 1027-44 - TO GEN. HALDIMAND) (EXHIBIT 1027-45 - (EXHIBIT 1027-41 - TRADE) (EXHIBIT 1027-47 - MARCH 2, 17 68 LETTER G. CARLETON TO TWO MAPS (COPY) - 1752) FOUR MAPS (COPY) - 1763) JUNE 11, 1768 LETTER HILLSBOROUGH TO APRIL 27, 1769 TRADE LICENCE) JUNE 27, 1769 TRADE LICENCE) APRIL 17, 1775 TRADE LICENCE) JAN. 3, 1775 INSTRUCTIONS TO GUY INDIAN TRADE LICENCE FROM 1776) LIST OF TRADE LICENCES - ACCOUNT) "RETURN OF LICENCE" TRADE LIST) LIST OF INDIAN TRADE LICENCE ACCOUNTS) "TRAVELS AND ADVENTURES" ALEXANDER OCT. 4, 1784 - LETTER FROBISHER BROS. MEMORIAL OF PETER POND APRIL 18, 1785) APRIL 16, 1785 - "DRAFT OF PASSPORT FOR APRIL 14, 1791 - ORDINANCE IN QUEBEC 16291 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 GAZETTE) 2 (EXHIBIT 1027-48 - DISPATCH FROM DORCHESTER TO GRENVILLE - 3 1791) 4 5 MS. MANDELL: 6 Q All right. We're at tab 49? 7 A The -- as I say, this is the minute of the executive 8 council of the Province of Quebec because this 9 minute -- this meeting took place before the division 10 of the province. The council minute itself is dated 11 4th of January 1791. It's the one referred to in 12 Dorchester's report. And I would refer to the 13 minutes, which are on the second page, of the 14 committee which had been considering amending the 15 navigation and inland trade acts, and those minutes 16 are dated 11th December 1790. And at the bottom of 17 the second page they refer, for example, to His 18 Majesty's 30-second instruction to Lord Dorchester and 19 the plan for future management of Indian affairs, 20 which had been incorporated by reference in that 21 instruction, and then the chairman moved: 22 23 "That however fitting the scheme of the Right 24 Honourable The Lords Commissioners for Trade 25 and Plantations may have been when formed -- 26 2 7 Q Formed. 28 A 29 -- "for the conduct of Indian affairs, it 30 appeared to him the subtraction of thirteen 31 of the Colonies, to which it referred from 32 His Majesty's Government, has totally 33 changed the face of commercial policy in 34 America. 35 The Colonies were become so many 36 independent states, each of them assuming 37 Sovereign Authority, each of them our Rival 38 in the valuable Commerce carried on with the 39 savage nations in the west, whose Countries 40 they had already possessed themselves of and 41 were daily penetrating further into the 42 wilderness in search of settlement and 43 trade. 44 While North America remained under one 45 Sovereignty it was possible to confine the 46 Indian Trade to Forts, Garrisons and Truck 47 Houses and it was as political as human to 16292 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 restrain the distribution of Spirituous 2 Liquors among men guided by the passions of 3 nature only." 4 5 And they go on to talk about more of the conduct of 6 the trade. 7 And then on the next page they mention the power 8 of regulating the internal commerce is by His 9 Majesty's instruction before us committed to the 10 legislature of Quebec, and it quotes from the 11 instruction. 12 And then further down they're referring to the 13 desires of the merchants wanting free and unfettered 14 commerce, and at the last paragraph they state: 15 16 "It is known to the committee that the 17 Gentlemen who thus pledge themselves are the 18 principal Houses concerned in the Interior 19 Commerce of the Western Countries and Lakes, 20 that they have carried it on for a long 21 space of time, that they have extended their 22 adventures to many Tribes of Indians unknown 23 at the time of framing the Scheme of the 24 board of trade. And, that they are in the 25 actual course of Beneficial Commercial 26 discoveries in the remotest parts of His 27 Majesty's Dominions in the Hemisphere we 28 Inhabit. Phyn," spelt P-h-y-n, "Ellices," 29 spelt here E-1-l-i-c-e-s, I believe, "and 30 Inglis," spelt I-n-g-1-i-s, "are as noted in 31 the Capital for probity as for enterprise 32 and extensive Mercantile Speculation. The 33 persevering genius of McTavish & Co. will 34 not be satisfied until it has reached the 35 Discoveries of the immortal Cook." 36 37 And tab 50, however, although the ordinance was 38 amended to the -- to remove the necessity of licence, 39 the direction in the "Instructions to Lord Dorchester 40 As Governor Of Upper Canada," which are at tab 50, by 41 article 55 repeat the wording which had been in 42 Carleton's instructions as governor of Quebec and 43 incorporate again the reference to the Royal 44 Proclamation of 1763 respecting the free trade. 45 I don't intend to refer to the document at tab 38, 46 and tab 39 is basically dealt with under tab 41, just 47 a form of licence. 16293 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 MS. MANDELL: If my friends have no objections, I'd still ask 2 those two tabs be marked and be included in this 3 volume. 4 THE COURT: All right. 5 MR. GOLDIE: Which two? 6 MS. MANDELL: This is tab 38, which isn't being referred to 7 by -- 8 MR. GOLDIE: Maybe we could mark all the rest on the same basis, 9 my lord. 10 MS. MANDELL: And tab 39, which he identifies as a licence, is 11 the same form as one that has already been marked 12 THE COURT: All right. 13 14 (EXHIBIT 1027-38 - "CANUES OUT WINTERING" JULY 7, 1767) 15 (EXHIBIT 1027-39 - FUR TRADE LICENCE 1778) 16 17 MS. MANDELL: My lord, with the exception of one tab of maps 18 from volume 3, which haven't as yet been spoken to but 19 will be in a minute by the witness, which is found at 20 tab 40, I believe, the rest of this evidence on this 21 point is found at volume 4, the volume which has just 22 been handed up to your lordship. 23 THE COURT: All right. 24 MS. MANDELL: I'm sorry, it's volume 30, which is the tab of 25 maps from the previous volume, which still hasn't been 26 spoken to. 2 7 THE COURT: You've given me volume 4 now? 2 8 MS. MANDELL: Yes. 2 9 THE COURT: Yes. 30 THE WITNESS: The document at tab 1 is another excerpt from 31 Alexander Henry's "Travels and Adventures" and -- and 32 the — 33 MS. MANDELL: 34 Q Do you want to refer to the maps at this time, which 35 are found at tab -- 36 A Yes. In the document at tab 30 Henry remarks that -- 37 THE COURT: I'm sorry, where are we? 38 THE WITNESS: Sorry, at tab 1 of the fourth volume Henry refers 39 to being at the grand portage, and then he says 4 0 partway down: 41 42 "I was now in what is technically called the 43 north-west; that is, the country north-west 44 of Lake Superior. 45 4 6 THE COURT: I haven't found that. 47 THE WITNESS: It's on page 236 of tab 1 about halfway down the 16294 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 paragraph. 2 THE COURT: Yes. 3 THE WITNESS: Henry is simply repeating about the north-west. 4 And the maps at tab 30 in the previous volume are maps 5 from the 1760s of the British Dominions or, the second 6 one, the British Governments in North America. The 7 first two -- 8 THE COURT: I'm sorry, I'm not following you. Are we going back 9 to volume 3? 10 MS. MANDELL: Tab 30. 11 THE WITNESS: Just tab 30, which was the other maps, and it was 12 only to illustrate the -- that on the British maps of 13 this time period, generally speaking -- 14 THE COURT: Which one? 15 THE WITNESS: The last of the maps in — at tab 30, which is 16 from the Shelburne papers. 17 THE COURT: Which one? I've got three maps here. 18 THE WITNESS: Yeah, the last — the one — a "Cantonment of the 19 [British] Forces in N. America 1766 (from the 20 Shelburne Papers..." And I merely note that on this 21 map and on the other maps, which contain more 22 geographical details, that the map sort of ends -- 23 it's open-ended towards the north-west but -- that 24 they do not carry on with geographical features 25 further to the west. I note, for example, on the map 26 from the Shelburne papers that Louisiana is marked 27 west of the Mississippi and lands reserved for the 28 Indians are marked beginning east of the Mississippi 29 and continuing up -- the writing continues over Lake 30 Huron and then to the north-west I guess you'd say. 31 It merely -- the lines just sort of taper off. 32 THE COURT: What would you say is the line that runs from the 33 present site of the village of Chicago to the 34 Mississippi? 35 THE WITNESS: That's the Illinois River. 36 THE COURT: Illinois. 37 MR. GOLDIE: My lord, the reproduction of this is of such a 38 character that it's virtually unreadable as far as the 39 copy I have. I wonder if it can be left with my 40 friends that they would supply better copies of these. 41 I don't know where this is from. 42 THE WITNESS: This one is from the — the original is in the 43 Shelburne papers, but as I explained earlier, and I 44 apologize, I left my copies of these maps at home and 45 I'd be happy to send out -- it's a very large copy of 4 6 this map. 47 MR. GOLDIE: Yes, I'm aware of the difference in scale. But the 16295 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 point is, my lord, that the document in its present 2 form is virtually useless as far as detail is 3 concerned. 4 THE COURT: I can't — I share Mr. Goldie's difficulties. In 5 the second square from the left -- the right on the 6 top column there is a diagonal line and underneath it 7 says something like -- 8 THE WITNESS: Province of Quebec. 9 THE COURT: Province of Quebec. Is that what it says? 10 THE WITNESS: Yes. 11 THE COURT: What would you suppose that line is, the diagonal 12 line? 13 THE WITNESS: The diagonal line is the boundary of the Province 14 of Quebec as established by the Proclamation of 1763. 15 And written above -- across and into it is Canada 16 but — 17 THE COURT: Where is Canada written? 18 THE WITNESS: Right across ending in that Province of Quebec. 19 It goes from just east of Lake Superior and then the 20 writing C-a-n-a-d-a continues across. 21 THE COURT: Oh, yes. Yes. All right. 22 MS. MANDELL: I have no problem in -- I hope I have no problem. 23 I am certainly willing to provide a better copy. 24 THE COURT: What is a cantonment? 25 MR. GOLDIE: It's where the troops were stationed at the 26 particular time of the map. 27 THE WITNESS: Which is dated 1766. 28 MR. GOLDIE: I think you'll find, my lord, that this is what is 29 technically known as a return, and it will be of a 30 specific date of where the troops were at that 31 particular date. 32 THE COURT: I see. All right. 33 MS. MANDELL: 34 Q My lord, I wonder, before you finish, could you just, 35 for the sake of the completion of the tab, identify 36 the other maps that are contained in the envelope? 37 A The other two maps -- and one consists of two pages 38 and the other of one page. The two-page one is from 39 the "Annual Register." That's a London publication. 4 0 THE COURT: Which is two pages? 41 THE WITNESS: The one entitled the "New map of the British 42 Dominions in North America." 43 MS. MANDELL: My lord, you'll see Sheet 1 and Sheet 2. 44 THE WITNESS: Sheet 2, 2.19. 45 THE COURT: Yes. All right. 46 THE WITNESS: And as I say, it was published in the "Annual 47 Register," a London magazine, in 1763. And the other 16296 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 one was published in the "Gentleman's Magazine," 2 another English publication, in 1763. These are both 3 unofficial publications. I'm merely noting the 4 geography. And the -- but -- you know -- the poor 5 quality of the reproduction makes -- I don't intend to 6 refer further to it. 7 MS. MANDELL: All right. 8 THE WITNESS: And the document at tab 2. 9 THE REGISTRAR: Could we mark the book first, my lord? 10 THE WITNESS: I'm sorry. 11 MS. MANDELL: Can we give this volume 4 a number? 12 THE COURT: The number? 13 THE REGISTRAR: 1028. 14 15 (EXHIBIT 1028 - PLAINTIFFS BOOK 4 - J. MORRISON) 16 17 MR. GOLDIE: My lord, if anything is to be made of these maps, I 18 would like to see all copies of a more legible 19 character. If they're not going to serve any purpose 2 0 in argument -- 21 THE COURT: Yes. 22 MR. GOLDIE: -- then I have no -- I have no comment, but if they 23 are going to be referred to in argument, they should 24 be legible. 25 THE COURT: All right. All right. So 1028-1, he referred to 26 it. 27 THE REGISTRAR: Yes. 28 THE COURT: And you're now on 1028-2. 29 THE WITNESS: Yes, and I don't propose to refer to it except in 30 passing. It's the Frobisher Bros, again, a memorial 31 to the government of Quebec from 1784. 32 THE COURT: Yes. 33 THE WITNESS: And it refers, as some of the previous documents 34 had, of the various explorations that the Northwest 35 Company had been making in the north-west. 36 But at tab 3, this is a printed version of a 37 memorial from the Montreal merchants -- it's undated, 38 but from the context it's from 1791 -- to Lord 39 Dorchester, the governor of Quebec. And I merely note 40 the -- that it's a memorial and petition of the 41 merchants of Montreal trading to the Indian or Upper 42 Country, and they are concerned that their trade to 43 this "Indian or Upper Country" has been affected by 44 the recent -- or by the United States of America. And 45 they refer further down in the last full paragraph on 46 page 56 the fact "that by the Treaty of Peace in 1783, 47 a great part of the Indian Country was ceded to the 16297 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 American States," although they continued to carry on 2 some of it. 3 And at tab 4 is a dispatch from 16 September 1791, 4 and again I apologize because the last page of it 5 seems to have disappeared from the copy here, but it's 6 from Henry Dundas, the secretary of state, to Lord 7 Dorchester, the governor of Quebec, or the governor of 8 Canada now because this is September of 1791. And it 9 refers to several letters and dispatches, in the first 10 paragraph, have been laid before the king. And in the 11 fifth page of the document -- unfortunately, the part 12 that has the holes in it on the left-hand side of the 13 page -- Dundas is speaking to Dorchester about 14 various topics connected with the Indians, and he 15 said, and it had begun at the bottom of the previous 16 page -- he refers to: 17 18 "Your Lordship's experience and knowledge of 19 the British interests in America," 20 21 and then to the top of this page, 22 23 "In America supersede the necessity of my 24 enlarging upon these topics, but I cannot 25 help adverting to a consideration of our 26 trade with the northern and northwestern 27 parts of the Continent of America. If the 28 Indians are either extirpated from their 29 Countries or rendered insecure in the 30 possession of them, our trade in that 31 quarter, and which Your Lordship and the 32 Merchants of Montreal state to be so 33 valuable, must be much injured and the 34 enjoyment of it rendered altogether 35 precarious." 36 37 And at tab 5 yet another memorial from the 38 merchants of Montreal, this time dated April 23rd, 39 1792, to John Graves Simcoe, who's the lieutenant- 40 governor of upper Canada, the westernmost of the two 41 Canadas. And on the last page of the memorial, page 42 136 from this copy in the Simcoe papers, they're 43 referring again to the effects that have happened to 44 their trade from grand portage falling within American 45 territory, and they're discussing various proposals 46 that have been made for a trade treaty with the 47 Americans. And the last paragraph on page -- sorry -- 1629? J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 second last paragraph on page 136 they're making a 2 suggestion that: 3 4 "In the Article that might be inserted 5 regarding a neutral reciprocity of Trade 6 with the Indians, care should be taken on 7 our side to confine it to the Province of 8 Upper Canada, this would avoid the necessity 9 of discussion regarding the Territory and 10 right of the Hudsons Bay Company, a subject 11 it is unnecessary for us to enter upon - As 12 we in the Neutrality only claim it in the 13 Country that was once part of the Province 14 of Quebec and now of Upper Canada, it would 15 of course be unreasonable to grant it to 16 them, but with the Indians in the part of 17 the said Province still retained by us, some 18 arguments occur regarding our right to such 19 Trade even without Stipulation - The Indians 20 are free and independent People, if any on 21 Earth were so, and by the Law of Nations we 22 are entitled to trade with them - Our 23 running a line of Boundary by Treaty conveys 24 no right of Territory without obtaining one 25 from the aboriginal Proprietors - We cannot 26 give what is not our own - The Cession of 27 that Territory therefore to America, which 28 is still occupied by the Natives and not 29 sold to them - means therefore we apprehend, 30 nothing more than that we cede the right of 31 pre-emption of purchase from the Natives." 32 33 And the document at tab 6, and again I don't 34 propose to read it in, but it is an excerpt from the 35 famous journal of Alexander McKenzie's voyage to the 36 Pacific Ocean and contains the excerpts where he 37 encounters Sekani Indians from the interior of what's 38 now British Columbia and hears secondhand of other 39 Indian interior tribes with whom the Sekani people 40 trade, but I don't propose to read in the excerpts 41 from his voyages. But I note that at tab 7 is the 42 letter of 10th September -- 43 THE COURT: Just a moment, please. 44 THE WITNESS: Okay. 4 5 THE COURT: Tab 7? 46 THE WITNESS: At tab 7 Alexander McKenzie on 10th September 47 1794 is writing to Simcoe, the lieutenant-governor of 16299 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 upper Canada, and informs him of -- that he had left, 2 in the second line, "one of our Settlements in the 3 North West on the Unjigate," spelt U-n-j-i-g-a-t-e, 4 "or Peace River," and he gives -- end quote -- he 5 gives the latitude, "for the purpose of penetrating to 6 the Western Ocean," and he explains that he of course 7 did arrive at the Western Ocean and whereabouts. 8 And what follows in the same document is a report 9 from Lieutenant-Governor Simcoe to the, he titles it, 10 Commitee of the Privy Council for Trade and 11 Plantations, basically the board of trade, dated 12 September 1st, 1794. And right at the very end of the 13 document, the last page -- 14 THE COURT: Are you still on tab 6? 15 THE WITNESS: I'm still in tab 7. 16 THE COURT: 7. I'm sorry. 17 THE WITNESS: Yes. The very last page of tab 7 Simcoe tacks an 18 appendix on to his report to the board of trade and -- 19 stating that he's heard from Mr. McKenzie, and he 20 advises that -- the board that Mr. McKenzie of the 21 Northwest Company, 22 23 "who had formerly penetrated thro' the back 24 parts of this Country to the Northern Sea, 25 has arrived at this place from his journey 26 to the Pacific Ocean. 27 He describes the communications between 28 upper Canada & this Ocean to be practicable, 29 similar methods being pursued by which the 30 Northwest Company have already extended 31 their factories over the internal Parts of 32 the Country." 33 34 And then on the next page he makes a suggestion 35 about: 36 37 "In respect to the Valuable Furs on the Coast 38 of the Pacific Ocean, His," 39 that is Mr. McKenzie's, 40 41 "ideas are that a Post at Cooke's River & 42 another at the Southerly limit of the 43 British Claims would probably secure the 44 whole Traffic, & as this cannot be done in 45 any other manner than by conciliating the 46 affections of the natives, it is natural to 47 suppose that the habits of a people long 16300 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 J. Morrison (for Plaintiffs) In chief by Ms. Mandell accustomed to the manners & disposition of the Indians, will be found to be of the greatest consequence to promote so desirable a purpose." COURT: Where is that, please? WITNESS: That's on page 69, second paragraph. The paragraph beginning, "In respect to the Valuable Furs on the Coast..." COURT: All right. Thank you. What is this tab, a collection of Simcoe's papers? WITNESS: It's from the published Simcoe papers, and it consists basically of Simcoe's report to the board of trade referring them to the information he's received from Alexander McKenzie about McKenzie's own explorations to the Pacific Ocean. COURT: Thank you. WITNESS: And I don't propose to refer to tab 8 because it discusses the same topic of McKenzie's travels. And I would turn to tab 9. REGISTRAR: Are they to be marked then? MANDELL: Yes. COURT: All right. THE THE THE THE THE THE THE MS. THE (EXHIBIT 1028-1 - HENRY) (EXHIBIT 1028-2 - BROTHERS) (EXHIBIT 1028-3 - (EXHIBIT 1028-4 - (EXHIBIT 1028-5 - 23, 1792) (EXHIBIT 1028-6 - (EXHIBIT 1028-7 - FROM A. McKENZIE) (EXHIBIT 1028-8 - PRESCOTT) "TRAVELS AND ADVENTURES" ALEXANDER OCT. 4, 1784 - LETTER OF FROBISHER MEMORIAL FROM MONTREAL MERCHANTS) SEPT. 1791 LETTER TO DORCHESTER) MEMORIAL FROM MONTREAL MERCHANTS APRIL "VOYAGE TO PACIFIC OCEAN" A. McKENZIE) SEPT. 10, 1794 - LETTER TO J. SIMCOE SEPT. 9, 1798 - LETTERS D. RUSSELL TO R. THE WITNESS: And at tab 9 is a dispatch dated 4th — 9th September -- excuse me -- 1803 from Robert Shore Milnes, spelt M-i-1-n-e-s. THE COURT: I'm sorry, what year did you say? THE WITNESS: 1803. And Milnes is the lieutenant-governor of lower Canada, and he's writing to the under secretary of state in London, and he's asking that something be -- or this information be laid before Lord Hobart, who's the secretary of state. And he states that -- 16301 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 he's referring to, third line down: 2 3 "...a Paper which has been put into my hands 4 by the Gentleman who was at the head of the 5 old Northwest Company established at 6 Montreal. From this Paper His Lordship will 7 have the satisfaction to learn, that the 8 Company have succeeded in the very important 9 Enterprize lately undertaken by them for the 10 Purpose of opening a communication with the 11 North west through the British Territory, by 12 which means our Traders will no longer be 13 under the necessity, as heretofore, of 14 carrying their Peltries through any Part of 15 the Territory claimed by the United 16 States. . . " 17 18 And here he's referring to the fact that the Northwest 19 Company has established a jumping-off point a little 20 to the north at what's now Thunder Bay, Ontario, and 21 they are -- have developed a new route leading west 22 from Thunder Bay. And then he continues: 23 24 "...and a great Source of misunderstanding 25 between the two Countries will hereby be 2 6 avoided." 27 28 And then at the bottom he states that Mr. McGillivray, 29 this is the last paragraph on the second page, 30 31 "a member of the first Company," 32 33 that is the old Northwest Company, 34 35 "being now on his way to England, I shall 36 take the liberty of recommending him to your 37 notice, as from him you may obtain the 38 fullest information relative to the 39 important Branch of Trade carried on them 40 by. He will also have the Honour to lay 41 before you a very complete Chart of the 42 Indian Country which has been explored by 43 them in following up the spirited Enterprize 44 that was undertaken a few years since by Sir 45 Alexander McKenzie who formerly belonged to 4 6 that Company." 47 16302 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 And, unfortunately, the map has not survived in that sequence in the colonial office records from which this is taken, and so we don't really know what map exactly it was that is referred to. But the -- at page -- sorry -- at tab 15 there's a couple of pages from the published version of David Thompson's "Travels in Western North America," and it simply shows -- the first modern map rendering shows various explorations in Northwestern America to 1812 and the second one shows the various journeys made by Thompson himself in the Rocky Mountains and the foothills. So that one can presume that at least some of these explorations would have been mentioned on the map. But to return to tab 9, I note that Lieutenant- Governor Milnes in his very last paragraph also refers to the expectation which -- THE COURT: I'm sorry, tab 9? THE WITNESS: Sorry, not the very last page. Page — of the letter. It's the third page of tab 9. THE COURT: Thank you. THE WITNESS: It's number 208 at the top. THE COURT: Yes. THE WITNESS: And the last paragraph: "...to remind you of the expectation which Lord Hobart in a late Dispatch gave me, that an act would be passed by the Imperial Parliament for erecting a competent Tribunal for the Trial of Criminal Offences committed in the Indian Territory without the limits of the two Canadas, as the great increase and extent of the Fur Trade renders such an act daily more necessary." And the tab 11 is the act in question, which Lieutenant-Governor Milnes had been expecting, which is dated 1803, and I merely note the wording of the preamble, the words: "Whereas Crimes and Offences have been committed in the Indian Territories, and other Parts of America, not within the Limits of the Provinces of Lower or Upper Canada, or either of them..." And it provides that lieutenant-governor this is on 16303 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 the second page by clause II -- that the lieutenant- 2 governor of lower Canada by commission can authorize 3 anyone to act as, 4 5 "Civil Magistrates and Justices of the Peace 6 for any of the Indian Territories or Parts 7 of America not within the Limits of either 8 of the said Provinces, or of any Civil 9 Government of the United States of America." 10 11 And at tab 12, this is a copy of one such 12 commission issued by Lieutenant-Governor Milnes, and 13 it's to Ducan McGillivray, who is the individual of 14 the Northwest Company referred to in the document at 15 tab 9. 16 MR. GOLDIE: That's William McGillivray, is it not, the one 17 that's referred to in tab 9, his brother? 18 THE WITNESS: I'm not sure which of the brothers it is. It just 19 says Mr. McGillivray. 20 MR. GOLDIE: I thought that was "W." 21 THE WITNESS: No, it's a "Mr." 22 THE COURT: I can't read a thing on tab 12, I don't think. 23 THE WITNESS: Okay. Tab 12, I merely note it's directed to 24 Duncan McGillivray, Esquire at the bottom under "His 25 Excellency," and it recites the contents of the 1803 26 statute. 27 THE COURT: I don't think we can possibly be looking at the same 28 document, are we? 29 THE WITNESS 30 MS. MANDELL 31 THE WITNESS Tab 12. It has a 8.15. 8.15 at the top right-hand corner. 32 THE COURT: Are you talking above or below the line? 33 THE WITNESS: Below the line, and it starts Sir Robert Shore 34 Milnes Baronet, Lieutenant-Governor of the Province of 35 Lower Canada. 36 THE COURT: If you say so. 37 THE WITNESS: Perhaps the original from which this came can 38 be -- 39 THE COURT: Well, if you can describe it. 40 THE WITNESS: Sure, it's — 41 THE COURT: It's a commission, is it? 42 THE WITNESS: It's a commission from Lieutenant-Governor Milnes 43 under the terms of the 1803 statute to Duncan 44 McGillivray constituting him one of these eight 45 (phonetic), and this is bottom of the second page. 46 Six lines up he's constituted as a "Magistrate and 47 Justice of the Peace for any of the Indian Territories 16304 J. Morrison (for Plaintiffs) In chief by Ms. Mandell 1 or Parts of America not within the Limits of either of 2 the said Provinces of Upper or Lower Canada or of any 3 civil Government of the United States of America..." 4 And it's dated at Quebec 23rd of May 1804. And it 5 notes right at the very end that -- it says also -- 6 this is the very end of the last page. "Also four 7 commissions of the same tenor" -- 8 THE COURT: You're on the next page now? 9 THE WITNESS: I'm on the last page at tab 12. And it states 10 that "Four commissions of the same tenor and date as 11 the foregoing is to William McGillivray - Roderick 12 McKenzie - Sir Alexander McKenzie and John Ogilvy, " 13 and these, of course, are all well-known north-west 14 traders. 15 MR. GOLDIE: My lord, Sir Alexander McKenzie was no longer a 16 member of the Northwest Company. 17 THE WITNESS: I said north-west traders. He was with the new 18 Northwest Company. 19 MR. GOLDIE: The XY Company. And it was the warfare, practical 2 0 warfare between the XY Company and the Northwest 21 Company that gave rise to this act. 22 THE COURT: All right. Should we adjourn? I think you've been 23 made aware of the fact that I have another matter I 24 have to tend to and that, I think, will take about 25 half an hour, and we're going to resume at five 26 o'clock. 27 MS. MANDELL: 4:30. 28 THE COURT: I'm sorry, 4:30. 29 MS. MANDELL: And plan to go to approximately 6:30? Was that 30 your direction? 31 THE COURT: Yes. 32 MS. MANDELL: In fact, I'm quite confident that we should be 33 finished within that time. 34 THE COURT: All right. Thank you. 35 THE REGISTRAR: Order in court. Court will adjourn. 36 37 (PROCEEDINGS ADJOURNED AT 4:00 P.M.) 38 39 I hereby certify the foregoing to be 40 a true and accurate transcript of the 41 proceedings herein to the best of my 42 skill and ability. 43 44 45 Leanna Smith 46 Official Reporter 47 United Reporting Service Ltd. 16305 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT) 2 THE REGISTRAR: Order in court. 3 THE COURT: Ms. Mandell. 4 MS. MANDELL: Thank you. I believe that we were — 5 THE COURT: Tab 12. 6 MS. MANDELL: — at Tab 12. 7 THE REGISTRAR: Tab 12 is in. 8 MS. MANDELL: 9 Q We're just starting at Tab 13. 10 A Tab 13 I again don't propose to read in in detail. 11 It's simply an excerpt from the edition of the 12 journals -- or the "Letters and Journals of Simon 13 Fraser", a well known trader and explorer. And at the 14 last page of the document -- this is from the edition 15 edited by W. Kaye Lamb, former Dominion archivist and 16 well known historian of the fur trade -- at page 170 17 where at least as far as Mr. Lamb is identifying in 18 1806 where Simon Fraser is meeting what Fraser calls 19 Carrier Indians, and Lamb inserts in brackets -- this 20 is on page 170 about two-thirds of the way down the 21 paragraph "We cannot imagine what river this is" and 22 then they go on and he talks about Carriers and then 23 he says: 24 25 "Indeed the Indians of Nakazleh (Stuart 26 Lake) talk of Bear Lake and their account of 27 (the) river that flows from it is 28 conformable with that of the Meadow 29 Indians." 30 31 And Lamb purports to identify or claims that the 32 Indians were there but therein referring to the Skeena 33 River and that the lake in question was probably 34 Babine Lake, he says. 35 And Tab 14, similarly, is from the published, 36 again edited by Mr. Lamb, "Journal of Daniel Williams 37 Harmon", another well known fur trader in the 38 northwest. And on the internal page 140, again this 39 is from Harmon in 1811, June 16th, and he refers there 40 to meeting Indians from a tribe who call themselves 41 Nate-ote-tains, and they give various information 42 about their country and great river, and Mr. Lamb 43 identifies the -- the Nate-ote-tains as a Babine tribe 44 living -- who lived in the region around Lake Babine 45 and he suggests that the river referred to in the 46 succeeding sentences would be the Skeena and the 47 tributary of the Bulkley. 16306 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 And Tab 15 I've already referred to. It's simply 2 a rendering of various of Thompson's journeys and 3 other explorations and I won't refer to it again. 4 And at Tab 16 is a proclamation issued by -- in 5 the name of the Prince region, the Prince of Wales, 6 and it's issued by John Coape Sherbrooke, Governor of 7 Canada, and it's dated 3rd May, 1817. And the 8 proclamation is in relation to the various troubles 9 and violences which are going on in the disputes, in 10 particular between the Hudson's Bay Company and 11 various traders, and it alludes in part at the bottom 12 of the first page -- excuse me -- not at the bottom of 13 the first page but after reciting the terms of the 14 1803 statute. On the fifth page of the proclamation, 15 it alludes to and whereas diverse breaches of the 16 peace and acts of force and violence have lately been 17 committed within the said Indian territories or parts 18 of America mentioned and ascribed in the said Act of 19 Parliament which have arisen from contention between 20 certain merchants carrying on trade and commerce in 21 the said Indian territories under the names of the 22 Hudson's Bay Company and Northwest Company 23 respectively and other persons, their servants, agents 24 or adherents of whom some have entered into, et 25 cetera. And then he refers to the various troubles 26 which are then going on. 27 And on the next page, page 6, the proclamation 28 calls on, first full paragraph, quote: 29 30 "... calling upon the said merchants so as 31 aforesaid carrying on trade and commerce in 32 the said Indian territories"... 33 34 And again mentioning the Hudson's Bay Company and the 35 Northwest Company and basically to cease and desist 36 and to stop using force against one another. And 37 it -- on page -- on the eighth page of the 38 proclamation, it urges the removal of blockades and 39 impediments, et cetera, the top of page 8, which are 40 designed, quote, "to prevent or interrupt the free 41 passage of traders or others of His Majesty's subjects 42 or of the natives of the said Indian territories with 43 their merchandise, furs, provisions and other effects 44 throughout the lakes, rivers, roads and every other 45 usual route or communication heretofore used for the 46 purpose -- purposes of the fur trade in the interior 47 of North America", end quote, and goes on to give full 16307 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 and free permission for people to carry on their usual 2 trade. And then at the bottom of the page it states: 3 4 "And whereas for the purpose of restraining 5 all offences in the said Indian territories 6 and of bringing to condign", spelled 7 c-o-n-d-i-g-n, "punishment the perpetrators 8 of all offences there committed", end quote. 9 10 His Excellency orders or nominates and authorizes Mr. 11 Coltman from the executive council and constitutes him 12 a -- or as one of the justices of the peace empowered 13 to investigate the various offences said to have been 14 committed. And, as I say, this is dated in May of 15 1817. 16 And the historic outcome of the troubles at Tab 17 17 is the 1821 statute entitled "An Act For Regulating 18 the Fur Trade and Establishing a Criminal and Civil 19 Jurisdiction Within Certain Parts of North America". 20 And it refers to the disputes between the Hudson's Bay 21 Company and the Northwest Company and notes that -- 22 this is about four lines down. 23 THE COURT: Is this an imperial statute? 24 THE WITNESS: Yes. This is an imperial statute, yes. 25 THE COURT: This is consequent upon the acquisition of the 2 6 merger of the two companies? 27 THE WITNESS: Well, it refers in part to the merger, yes, and 28 one of the results of the merger was -- it refers in 29 its preamble to the various inconvenience and loss 30 which has happened and also, quote, "of great injury 31 to the native Indians and of other persons, subjects 32 of His Majesty". And it states that the said 33 animosities and feuds, quote: 34 35 "... have also for some years past"... 36 37 THE COURT: Where are you? 38 THE WITNESS: This is in the preamble to the statute about 39 half-way down the page. 4 0 THE COURT: Yes. 41 THE WITNESS: 42 "... have also for some years past kept the 43 interior of America to the northward and 44 westward of the provinces of Upper and Lower 45 Canada and of the territories of the United 46 States of America in a state of continued 47 disturbance", end quote. 1630? J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 And it goes on to refer to the 1803 statute, and it 2 empowers His Majesty to make -- as the margin note on 3 the next page sets out, empowers His Majesty to make 4 grants for the exclusive trade to certain parts of 5 North America. And -- 6 THE COURT: Well, it's a monopoly? 7 THE WITNESS: It's a monopoly of the merged company. And they 8 are granted a monopoly to all the territories set out. 9 THE COURT: 21 years or something? 10 THE WITNESS: 21 years, yes. 11 THE COURT: And then renewed after that, wasn't it? 12 THE WITNESS: Yes. Sorry. Was it 17 years? It was renewed in 13 1838, I believe. 14 MR. GOLDIE: I think it was renewed about five years before it 15 expired, or at least the Hudson's Bay Company sought 16 the renewal. 17 THE COURT: Yes. 18 THE WITNESS: And the article V of the statute, I merely note 19 that it declares that the provisions of the 1803 20 statute were deemed to extend to and over and be in 21 full force in and through all the territories 22 heretofore granted to the Hudson's Bay Company. 23 THE COURT: Does it define the area of the monopoly? 24 THE WITNESS: No, it doesn't, but — and the article IV refers 25 to the -- this exclusive grant -- or this grant of 26 exclusive trade is basically to be binding on all 27 British subjects, but it's not to be binding on 28 citizens of United States for trading beyond the Stony 29 Mountains as it therein refers to them. 30 MR. GOLDIE: It's the Oregon territory. 31 THE WITNESS: The one in dispute between the United States 32 and -- but that this exclusive trade is binding on 33 British subjects. But it then on article VIII again 34 empowers the Lieutenant Governor of Lower Canada -- or 35 Governor or Lieutenant Governor, rather, of Lower 36 Canada to appoint justices of the peace, quote, 37 "within the said Indian territories or other parts of 38 America as aforesaid", end quote. 39 And at Tab 19 — 4 0 THE COURT: Tab 18? 41 THE WITNESS: Tab 18, which I pass over briefly, is simply a 42 typed extract from the Hudson's Bay Company records in 43 which the company alludes to the various explorations 44 made by Northwest Company as establishing the rights 45 of British traders westward of the Rocky Mountains, 46 and it sets out -- it's dated 25th of September, 1822 47 and it sets out the -- these various explorations and 16309 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 that that is how British traders have those rights in 2 the interior. 3 But at Tab 19 is the various commissions -- or a 4 commission issued to various individuals on the 20th 5 of April, 1837 by the Earl of Gosford, Governor of the 6 Province of Lower Canada, and under the terms of the 7 1821 statute constituting these named individuals 8 justices of the peace and civil magistrates. And on 9 the third page of it, quote, "for any of the Indian 10 territores or parts of America, not in the limits of 11 either of the said provinces of Upper or Lower Canada 12 or of any civil government of the United States of 13 America". And I note that the five individuals who 14 are named and given this commission are all prominent 15 employees of the merged Hudson's Bay Company, namely 16 George Simpson, who's the governor of the company, 17 Alexander Christie, who's the governor of Assiniboia, 18 the Hudson's Bay Company settlement on the Red River 19 at Winnipeg, Murdoch, MacPherson, spelled 20 M-a-c-Capital P-h-e-r-s-o-n, who's the chief factor in 21 the MacKenzie River District, Peter Skeen Ogden, who 22 at that time, 1837, is in charge of the Hudson's Bay 23 Company trade in New Caledonia, the interior of 24 British Columbia, and, lastly, James Douglas, who at 25 that time is in charge of the Hudson's Bay Company 26 trade on Vancouver Island. 27 And Tabs 20 through 25 I don't propose to refer to 28 in any detail. They simply establish that when the 29 Hudson's Bay Company's licence was proposed to be 30 renewed in 1838 -- that's at Tab 20 -- the imperial 31 government inserted a clause that would permit -- or 32 that nothing in the licence would prevent the Crown 33 from at any time establishing any colony or colonies, 34 province or provinces or for annexing any part of the 35 aforesaid territory to any existing colony or 36 colonies. And the Hudson's Bay Company agreed to that 37 change in their licence. 38 And Tabs 23 -- or sorry -- 22 and 23 identify the 39 colonial official who was drafting these -- or that 40 particular provision, namely James Stephen, the 41 permanent secretary in the colonial office department. 42 And he's identified in Tab 23. There's a copy of his 43 biography. And -- 44 MR. GOLDIE: Can the witness — I'm sorry. 45 THE REGISTRAR: Is there a date for Tab 20? 46 THE WITNESS: Tab 21? Sorry. 47 THE REGISTRAR: No. Tab 20. 16310 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 THE WITNESS: Tab 20, yes, is 1838. 2 THE REGISTRAR: 1838. 3 THE WITNESS: Yes. 4 THE REGISTRAR: Thank you. 5 MR. GOLDIE: Perhaps the witness might confirm the author of the 6 extract from the "Dictionary of National Biography". 7 THE WITNESS: Confirm the author of it? 8 MR. GOLDIE: Yes. 9 THE WITNESS: I believe it was James Stephen's son, Leslie 10 Stephen. 11 MR. GOLDIE: Yes. 12 THE COURT: Where is that? 13 THE WITNESS: That's at Tab 23. And it merely sets out the 14 career of James Stephen in the colonial office 15 department and the initials L.S. at the end of it are, 16 I believe, a reference to Leslie Stephen. James 17 Stephen was the grandfather of the famous English 18 writer, Virginia Wolfe. 19 MR. GOLDIE: It's what might be termed an admiring biography. 20 MS. MANDELL: It depends what the relationship was between the 21 father and the son. 22 MR. GOLDIE: Oh, no doubt we'll hear a witness called on that. 23 MS. MANDELL: 24 Q Not at this hour. 25 A And at Tab 24 and 25 the -- these are simply 26 references to James Stephen's role in the period the 27 late 1830's in the colonization of New Zealand 28 culminating in the Treaty of Waitangi, which is at Tab 29 25, the Treaty of Waitangi of 1840 between the Maori 30 and the Crown. And the excerpts in Tab 24 from -- 31 there are a number of quotes of James Stephen's views 32 on the question of rights of aborigines. And I don't 33 propose to detail those, merely that he's discussing 34 various -- 35 MR. GOLDIE: Well, my lord, I'm going to object to the witness. 36 He's already got us to New Zealand. And on the basis 37 of relevance, even though this witness is selecting 38 documents for my friend to use in argument, I don't 39 believe it is appropriate for him to comment on 40 something which is so detached from the issues before 41 your lordship, which is the construction of the royal 42 proclamation. 43 THE COURT: I thought that the witness said that there was 44 something in here, some comment by Douglas about the 45 Treaty of Waitangi. 46 THE WITNESS: By Stephen. 47 MR. GOLDIE: Stephen, my lord, who is — 16311 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 THE COURT: Stephens? 2 MR. GOLDIE: Yes. 3 THE COURT: Stephen? 4 THE WITNESS: Stephen. 5 MR. GOLDIE: Who was -- who was supposed to have been the 6 draftsman of the proviso in the renewal of the licence 7 of the Hudson's Bay Company in 1838, although that is 8 not without some doubt. 9 THE COURT: Well, I have — I see no harm in having these 10 documents marked so they can be used in argument if it 11 becomes necessary to do so. I don't think we need to 12 hear much about them. 13 THE WITNESS: I don't intend to refer to them. 14 And Tabs 26 and 27 are simply the statutes, in the 15 first case the 1849 statute providing for the 16 administration of justice in Vancouver's Island. And 17 I merely note the reference on the facing page of that 18 statute to -- the reference to "And whereas, for the 19 purpose of the colonization of that part of the said 20 Indian territories called Vancouver's Island". 21 MS. MANDELL: 22 Q It's on page 163? 23 A Page 163, yes. 24 And that Tab 27 is the Act to provide for the 25 government of British Columbia, and again I don't 26 propose to read the statute. 27 THE COURT: Where is the reference in Tab 26 to the Indian 28 territories called Vancouver's Island? Oh, yes. I 29 see. Thank you. Does it name the territories in 30 other parts of America not in -- 31 THE WITNESS: That's on page 162, and then 163 about half-way 32 down: "And whereas for the purpose of the 33 colonization"... 34 THE COURT: Yes. 35 THE WITNESS: "... of that part of the said Indian 36 territories". . . 37 THE COURT: Thank you. 38 THE WITNESS: And I don't propose to refer to anymore. 39 MS. MANDELL: My lord, I — I believe and I hope that the 40 various tabs will have now been marked as an exhibit 41 in Volume 4, which we're given the number of 1028. 42 THE COURT: Yes. They're all 1028. All tabs in Volume 4 are 43 marked 1028 and the tab number. 44 (EXHIBIT 1028-13: Letters and Journal of Simon Fraser 45 1806-1808) 46 (EXHIBIT 1028-14: Journal of Daniel Wm. Harmon 47 1800-1816) 16312 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MS. (EXHIBIT 1028- -15 (EXHIBIT 1028- -16 (EXHIBIT 1028- -17 (EXHIBIT 1028- -18 (EXHIBIT 1028- -19 (EXHIBIT 1028- -20 (EXHIBIT 1028- -21 (EXHIBIT 1028- -22 (EXHIBIT 1028- -23 (EXHIBIT 1028- -24 (EXHIBIT 1028- -25 (EXHIBIT 1028- -26 (EXHIBIT 1028- -27 MANDELL: Q My lord, the la Journeys of D. Thompson) Proclamation - May 3, 1817) Act regulating fur trade - July 2, 1821 Letter to G. Canning from T. Berens dated September 25, 1822) Commission, April 20, 1837, by Earl of Gosford) Re Hudson Bay Licence - April 16, 1838) Letter to J. Pelly from G. Grey dated February 3, 1838) Letter from J. Pelly to G. Grey dated February 7, 1838) "Dictionary of National Biography" - Stephen) "James Stephen and Colonial System") "Treaty of Cession" - February 5, 1840) Act to provide justice - Vancouver Island) Act to provide for Government of B.C. ) Volume 2. My lord, these -- this area of the evidence deals with the land grant provision. And I'd like to first deal with the question of the historical documents relating to the province of Quebec and ask you are there any historical documents which indicate how applications for grants of land in the possession of the Indians were treated in the province of Quebec between 1763 and 1774? A I made a selection of -- from among the large number of historical documents which deal with this question, and I would begin very quickly at Tab 1, which are the royal instructions to Governor James Murray of Quebec issued on the 7th day of December, 1763. And these -- THE REGISTRAR: Excuse me. May we mark the book first, my lord, with a new number? THE COURT: Yes. THE REGISTRAR: 1029, my lord. (EXHIBIT 1029: Plaintiff's book 2 - J. Morrison) THE WITNESS: These royal instructions — I would refer to the third page of the instructions, article 60 through 62, and I would note that the identical instructions were 16313 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 also given to the governors of the new provinces of 2 east and west Florida, which were issued at the same 3 time by the Crown, these three new colonies on the 4 North American continent. And I note that article 60 5 of these instructions orders -- just states: 6 7 "And whereas our province of Quebec is in 8 part inhabited and possessed by several 9 nations and tribes of Indians". 10 11 And then it talks about the necessity of cultivating 12 strict friendship with them, quote, "so that they may 13 be induced by degrees, not only to be good neighbours 14 to our subjects, but likewise themselves to become 15 good subjects to us", end quote. And it orders a 16 proper person or persons to treat with the said 17 Indians or to be appointed to do so, assuring them of 18 production and friendship. 19 Article 61, after asking the governor to find out 20 the number, nature and disposition of the several 21 bodies of tribes of Indians, fourth line down, "and 22 you are upon no account to molest or disturb them in 23 the possession of such parts of the said province, as 24 they at present occupy or possess", end quote, but to 25 continue using any means to conciliate their 26 affections. 27 And article 62 recites again: 28 29 "Whereas we have, by our proclamation dated 30 the seventh day of October"... 31 32 And it's in 1763. 33 34 "... strictly forbid, on pain of our 35 displeasure, all our subjects from making 36 any purchases or settlements whatever, or 37 taking possession of any of the lands 38 reserved to the several nations of Indians, 39 with whom we are connected, and who live 40 under our protection, without our special 41 leave for that purpose first obtained; it is 42 our express will and pleasure that you take 43 the most effectual care that our royal 44 directions herein be punctually applied 45 with", end quote. 46 47 And then it refers to carrying on the trade such as 16314 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 the Indians according to the regulations. 2 And Tabs 2 -- or Tab 2, rather, is -- it consists 3 of two documents, the first being an excerpt from the 4 minutes of the privy council, the Court at St. James, 5 18th day of June, 1766. And it refers to an 6 application which has been made to His Majesty by an 7 individual called Joseph Philibot, spelled 8 P-h-i-1-i-b-o-t, who has prayed for a grant of land in 9 Quebec in order to make a settlement on them. And 10 the -- this order in council orders further down, 11 about half-way down that paragraph, quote: 12 13 "To order that the governor or commander in 14 chief of His Majesty's province of Quebec 15 for the time being do cause 20,000 acres of 16 land to be surveyed in one continuous 17 tract", end quote. 18 19 I'll continue: 20 21 "... in such part of the said province as 22 the said Joseph Philibot or his attorney 23 shall choose, not already granted or 24 surveyed to others", end quote. 25 2 6 And the second document at this tab is from a 27 typescript of the minutes of the executive council of 28 the province of Quebec dated 27th December, 1766 29 dealing with just that -- just that application from 30 Marie Joseph Philibot, on the second page of which is 31 the way in which that petition was dealt with. And 32 at -- it recites again in pursuance of an order of His 33 Majesty in council and Mr. Philibot is asked that the 34 lands be assigned at Restigouche and continues, quote: 35 36 "The committee have taken the same into 37 consideration and are of opinion the lands 38 so prayed to be assigned are, or are claimed 39 to be the property of the Indians, and as 40 such by His Majesty's express command as set 41 forth in his proclamation in 1763, not 42 within their power to grant", end quote. 43 44 And the document at Tab 4 deals with a similar 45 controversy, and I don't propose to go into it in any 46 detail, involving the rights of certain traders to -- 47 what were called the King's posts on the north shore 16315 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 of the St. Lawrence, and it -- various excerpts in 2 here from the published Acts of the privy council and 3 from the executive council minutes of the province of 4 Quebec. It's established that -- I note on the very 5 last -- second-last page of this collection of 6 documents dealing with the issue -- and it's from a 7 council minute of 2nd June, 1766 -- that Mr. Alsop -- 8 this is one of the people who've been attempting to 9 erect posts and trade in these King's posts states -- 10 ordered that if Mr. Alsop or any other person erect 11 buildings upon the land reserved to the savages in 12 this province by His Majesty's proclamation, they 13 shall be prosecuted with the utmost rigour of the law, 14 end quote. 15 And those are the ones I intend to refer to in 16 that connection. 17 Q And you say that these are a selection of documents 18 which relate to this issue? 19 A Yes. I mean there are a large number of historical 20 documents around all these issues. This -- the 21 Philibot one, for example, continued and there are 22 similar dealings with -- I selected the most complete 23 discussion, and same with the King's post issue, which 24 is here set out. 25 Q All right. Were there -- or are there any historical 26 documents referring to any such applications, that is 27 grants for land in the possession of the Indians, 28 beyond the proclamation line of 1763 that you're aware 29 of? 30 A Again, I've canvassed the available historical 31 documents and I've selected a few which illustrate 32 that when applications were made for lands beyond the 33 line which had been drawn between his Majesty's 34 settlements and the adjoining country, what happened 35 to those and -- those applications. 36 And the first one I'd refer to actually is at Tab 37 3, which deals with this topic in part, and it's a -- 38 again from the executive council minutes of the 39 province of Quebec for the 22nd day of December, 1766, 40 and it's a draft of a proclamation which is ordered 41 and indeed was published. This is the proclamation as 42 set out in the executive council minute, this 43 typescript, and I note that it's a proclamation by Guy 44 Carleton, the Lieutenant-Governor of the province of 45 Quebec, and it refers to advice having been received 46 that, quote: 47 16316 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 "Several unprovoked violences and murders 2 have been commited upon the Indians under 3 His Majesty's protection in the countries 4 adjoining to His Majesty's provinces in 5 North America, and that settlements have 6 been made in the said countries beyond the 7 limits prescribed by his Majesty's Royal 8 Proclamation of 1763, in the grounds therein 9 allotted to the Indians whereby the said 10 Indians have been greatly and justly 11 discontented", end quote. 12 13 And it orders all the people who have made such 14 settlements on the Indian grounds to abandon them on 15 failure of being prosecuted, quote, "as disturbers of 16 the peace of the province with the utmost rigour of 17 the law". 18 And it then goes on to give public notice that: 19 20 "If any person will make discovery of any 21 murder or imprisonment or other illegal 22 violence committed"... 23 24 This is on the second page. 25 26 "... on any of the Indians on the borders of 27 this province, or of any destruction made of 28 their houses, settlements or goods, or of 29 any violent interruption of them in their 30 hunting upon the grounds allotted to them by 31 his Majesty's Royal Proclamation of 1763, or 32 of any settlement illegally made by any of 33 his Majesty's subjects of this province in 34 the said grounds". 35 36 And then it provides for reward for those making such 37 discovery of the offences. 38 MR. GOLDIE: My lord, is the order of the tenth instant, which 39 is referred to, amongst these documents? 40 THE WITNESS: No, it's not. And that was when the discussion -- 41 the full discussion which culminated in the decision 42 to issue this proclamation was made, and the 43 proclamation was ordered to be drafted, and this is 44 the reading of the draft which is approved and again, 45 as I say, I made a selection because I felt 46 proclamation was self-explanatory and it wasn't 47 necessary to include the various historical details 16317 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 about what gave rise to it. 2 MS. MANDELL: 3 Q All right. 4 A But at Tab 5 through 9, these tabs all deal with one 5 topic, which is set out on the third page of the first 6 document, which is at Tab 5, and on the third page 7 there's actually a typescript. This is from the 8 original in the Gage papers at the manuscript 9 collection at the University of Michigan. And I note 10 the typescript of -- but the enclosure which is 11 attached to the letter is not in the typescript, but 12 it's -- it involves a petition that's been made to His 13 Majesty in the year 1768 by certain persons praying -- 14 and this is on the typescript at the bottom of this 15 letter, 13th of August, 1768 from Hillsborough: 16 "Praying a grant under certain conditions, of all 17 copper mines in the country circumjacent to Lake 18 Superior sixty miles from the waters of the lake" and 19 ordering a full inquiry to be made by General Gage. 20 And it also encloses a report of the board of 21 trade on the topic, which is very difficult to read 22 being reversed print, but the actual -- what the board 23 of trade says in that actual petition, at Tab 8 there 24 are some excerpts again from the printed Acts of the 25 privy council colonial dealing with the course of what 26 happened to this petition. And I note on the second 27 page of Tab 8 under the date of 12th August, the -- 28 half-way down the page what the lords of trade had 29 said was, quote: 30 31 "But as the system adopted by Your Majesty's 32 proclamation of the 7th of October 1763 does 33 preclude all establishment in the interior 34 country adjacent to the Great Lakes and as 35 Your Majesty's interests in that country do 36 appear from the representations given of the 37 present temper and disposition of the 38 Indians to be in a precarious state and to 39 make it prudent to avoid all measures that 40 can possibly operate to increase to jealousy 41 and discontent of the savages." 42 43 And then it orders -- and they're summarizing but that 44 any determination should be suspended and they want 45 reports from Sir William Johnson and from General Gage 46 with respect to what should happen. And at the bottom 47 it says: 1631? J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 2 "... and by what means they"... 3 4 That is the Indians. 5 6 "... might be induced to consent to such 7 establishment as would be necessary for 8 obtaining the advantages stated to arise 9 from the proposals made by the petitioners." 10 11 And the -- it goes through the various dealings with 12 this proposal for a petition. And the -- 13 At Tab 6 General Gage, the commander in chief, 14 had -- and I don't propose to read the letter in any 15 detail, but it simply reported that it was very 16 important to secure the permission of the Indians. 17 And on the second-last page of the copy of the Gage's 18 letter, he mentions: 19 20 "... it might be the best way, to enter into 21 treaty with the tribes near the settlement, 22 not only to obtain their consent to 23 settling, but also to engage them to defend 24 the settlement, on condition of a certain 25 quantity of presents to be made them every 26 year. " 27 28 And it's on the second-last page at Tab 6, commander 29 in chief reporting to Earl of Hillsborough. 30 And the documents at Tab 7 are excerpts from the 31 papers of Sir William Johnson, somewhat mutilated but 32 establishing that agreements were made with the 33 various Indians in the area in question by which they 34 agreed that -- some of the letters, as I say, have 35 been damaged so it's difficult to read everything in 36 them, but that it appears the mining companies made -- 37 or the mining company or the individuals concerned in 38 it held councils with the Indians and the Indians 39 agreed to the companies commencing operations. And 40 again I don't propose to read the documents, merely to 41 set out what I believe is contained in them. 42 And again at Tab 8, the result of it on the 43 fourth -- or third page, rather, of the published Acts 44 of the privy council is that in 19 June, 1772 the 45 privy council approved the issuing of a charter to 46 this company of adventurers proposing to discover for 47 minerals and sets out various grants, et cetera, to 16319 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 this company. And on the second page from the 2 excerpt -- or the page following, rather, where 3 they're setting out the terms of the charter, there's 4 a note where they've summarized the contents on the 5 right-hand page, that's page 135, stating "Land is to 6 be bought and held from the Indians subject to 7 regulations by the Crown". This is a paraphrase of 8 what appears and a copy of the actual charter follows 9 and — 10 THE COURT: I'm sorry. Tab 8? 11 THE WITNESS: Yes. Still in Tab 8. And I don't propose, 12 certainly, to read at any length from the charter, but 13 one -- I believe -- are the pages numbered on the 14 copies there, because 319 as numbered is the full text 15 of -- the top right-hand corner of that charter is the 16 full text of the provision that's merely summarized in 17 the printed Acts of the privy council. And I note at 18 the bottom of the page under the heading "Witness": 19 20 "And we do by these presents further give 21 grant and confirm under the said governor 22 and company and their successors forever 23 that they may take and purchase from the 24 Indians or other natives of the said 25 countries in and about Lake Superior all 26 such lands, islands and places within the 27 limits herein before described as are or 28 shall be necessary to work and carry on such 2 9 mines." 30 31 And they go on to -- end quote. And they go on to 32 talk about who's to bear the expense of the purchase. 33 And then further down: "... so as the lands to be 34 so acquired be holden of us our heirs and successors 35 as aforesaid". 36 MR. GOLDIE: My lord, back in the published pages of the Acts of 37 the privy council -- I think it's one, two, three, the 38 fourth page in -- 39 THE COURT: Which tab, please? 40 THE WITNESS: Tab 8, my lord. 41 THE COURT: Yes. 42 MR. GOLDIE: The witness read the first complete paragraph 43 beginning with the words "Land is to be bought". 4 4 THE COURT: Yes. 45 MR. GOLDIE: I wonder if he could confirm that the general court 46 is the board of directors. 47 THE WITNESS: Oh, certainly. 16320 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 MR. GOLDIE: Thank you. 2 THE WITNESS: And I'm not referring to what's in there, but I 3 had no intention of referring to that phrase and I 4 apologize if it looks as if I was. 5 Finally, at -- so that is the -- what the clause 6 actually said. And the document at Tab 10, which is 7 yet another excerpt from the travels and adventures of 8 Alexander Henry -- 9 THE REGISTRAR: That's Tab 9. 10 THE WITNESS: Tab 9. Excuse me. He was one of the principals 11 in the company and he establishes on page 229 that 12 apparently -- and he states, quote: 13 14 " A charter had been petitioned for, and 15 obtained; but, owing to our ill success, it 16 was never taken from the seal-office." 17 18 The document at Tab 10 is a copy of an extract 19 from the minutes of the privy council dated 11th day 20 of May, 1768 and it's referring to a petition the 21 council has received from a lieutenant of the Royal 22 American Regiment asking for various reasons that His 23 Majesty grant him a small island in the Detroit River 24 called Hog Island. And the -- on the second page the 25 privy council refers to a report they receive from the 26 board of trade and they state that, quote: 27 28 "The above mentioned island lying within 29 that territory which by Your Majesty's 30 proclamation of the 7th of October, 1763 is 31 reserved and set aside as hunting grounds 32 for the several tribes of Indians. It 33 follows that no absolute grant of the same 34 can be made consistently with the terms and 35 reservations of the said proclamation and, 36 therefore, it will not be advisable for Your 37 Majesty to comply with the prayer of the 38 petition as to this particular in its full 39 extent", end quote. 40 41 And then they go on to say that, however, the 42 cultivation of this island is useful for the purposes 43 of the military garrison at Detroit and that though 44 within the limits of the Indian territory, it has 45 always been considered an appendage to the fort at 46 Detroit and that they urge that every encouragement 47 should be given to Lieutenant McDougall to settle as 16321 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 far, quote, "as the tenor of the proclamation above 2 recited will allow", end quote. And they recommend 3 that he be authorized to take possession or temporary 4 occupation of the said island, quote, at the very 5 bottom of the page, "provided this can be done without 6 umbrage to the Indians" and, quote, "and ordering the 7 commander in chief to allow him to do so". 8 And the document further on is a copy of -- and I 9 apologize that it's difficult to read, but two pages 10 further on -- or a page later, rather -- I think it's 11 marked 615 in my copy here -- is a paragraph of 12 General Gage's letter to the lieutenant commanding -- 13 or the captain at Detroit, rather, and basically 14 ordering him to make an agreement with the Indians 15 before taking possession. And the -- what follows is 16 a copy of the agreement which Captain Turnball at 17 Detroit made with the local Indians by which they cede 18 Hog Island to the Lieutenant George McDougall on 19 behalf of the Crown. And the -- I should say just in 20 passing that the further history of the island is, of 21 course, now in the United States of America, but in 22 1780 when Lieutenant McDougall died, his heirs 23 attempted to get or keep possession of the island and 24 the then governor of Quebec, General Haldimand, took 25 the island back on behalf of the Crown saying that 26 McDougall's possession was only temporary. 27 The document at Tab 11 is again a copy of a letter 28 from General Gage to the commander at Detroit and 29 dated April 8th, 1771 and it's on the subject of 30 various grants of lands which have apparently been 31 made at Detroit. And I should explain that at Detroit 32 there were a fair number of French inhabitants who had 33 lived on both sides of the Detroit River during the 34 French regime and continued to live after the Treaty 35 of Paris. And then at the fourth line down, quote: 36 37 "... that the king has not invested any 38 persons whatever with the power of granting 39 lands in America, except to his governors, 40 within the limits of their respective 41 provinces; and under certain forms and 42 restrictions, and where any purchase is made 43 of the Indians, though within the limits of 44 the provinces, they are not valid unless 45 permission is given so to do and the 46 purchase made in presence of the governor 47 and his Majesty's Superintendent of Indian 16322 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 Affairs from hence you will know that the 2 power of granting lands at the Detroit 3 remain solely in the King and that no 4 purchase can be made of Indians but with the 5 King's permission and authority." 6 7 And on the second page he -- after referring to 8 various of these purported grants that have been made, 9 he states: 10 11 "I am now to require of you as soon as" -- 12 13 THE COURT: Where is this? 14 THE WITNESS: It's the bottom of the next page, the very bottom 15 paragraph. 16 THE COURT: Thank you. 17 THE WITNESS: 18 "I am now to require of you, as soon as this 19 is received, to annul and make void by the 20 public act every concession made by Messieur 21 Bellestre", spelled B-e-1-l-e-s-t-r-e, "in 22 the year 1760 and every grant made by any 23 British commander, without exception, and 24 all Indian purchases whatever"... 25 26 This is on the next page. 27 28 "... or Indian deeds, not obtained by the 29 King's permission and authority, and that 30 you do not suffer any settlement to be made 31 with the above titles or any new settlement 32 to began on"... 33 34 And I believe it should be any. 35 36 "... pretence whatever, and that you pull 37 down as fast as any persons shall presume to 38 build up, and that you seize and send down 39 the country all persons who shall be 40 endeavouring to settle among the savages." 41 42 And then he continues, quote: 43 44 "I imagine the Indians will be set upon to 45 talk to you on these subjects. You will 46 answer them that the King is tender of their 47 property"... 16323 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 2 And it should be has. 3 4 "... made regulations to prevent their being 5 cheated and defrauded; that His Majesty has 6 been induced to make these rules upon the 7 frequent complaints of the Indians against 8 the white people, who have defrauded them of 9 their lands by making a few of them drunk 10 and getting them in that condition to give 11 away their country to the great disgust of 12 the rest of the nations, and that by such 13 means the Indians have represented that the 14 white people have taken great part of their 15 hunting grounds. This has happened to many 16 Indian nations and unless you stop it in the 17 beginning at the Detroit, the same thing 18 will happen there", end quote. 19 2 0 And Tab 12 — 21 THE COURT: I think if you're going to Tab 12, we'll take about 22 a 10-minute adjournment. 23 THE REGISTRAR: Order in court. This court will recess. 2 4 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT) 25 THE REGISTRAR: Order in court. 2 6 THE COURT: Ms. Mandell. 27 MS. MANDELL: Thank you, my lord. We're at Tab 12. 2 8 THE COURT: Yes. 29 THE WITNESS: And Tabs 12 through 14 again are all to be taken 30 together, and I can summarize that they deal basically 31 with certain illegal settlements being made in view of 32 the Crown officials in the Illinois country, that is 33 the area drained by the Illinois River, and in the 34 vicinity of some former French posts on the Illinois 35 River. And the first is at Tab 12, a letter from -- 36 of November 30th, 1773 from General Gage to the Earl 37 of Dartmouth, and I don't propose to read it, but he 38 mentions that the settlers are showing contempt for 39 his Majesty's proclamation. 40 And at Tab 13 — 41 MR. GOLDIE: Excuse me, my lord. The index says it's General 42 Haldimand, but are we to correct that? 43 THE WITNESS: I apologize. Yes. It's actually — I apologize 44 for saying that. It's General Haldimand who is the 45 acting commander in chief. General Gage has gone back 46 to England on leave and indeed Haldimand is the author 47 of the letter which is at Tab 14 and also of the 16324 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 proclamation, which is at Tab 14. And I'm sorry. I 2 meant Haldimand, not Gage. 3 MS. MANDELL: 4 Q Yes. 5 A And the Tab 13 is a copy from the William Johnson 6 papers of the proclamation issued by Frederick 7 Haldimand, March 10th, 1774, and again because it's -- 8 it was somewhat mutilated in the fire of the Johnson 9 papers, but it repeats the wording of the Royal 10 Proclamation of 1763, though sections -- so-called 11 Indian provisions. And then right at the end, and if 12 one reads the English and the French text 13 simultaneously, that -- basically it refers to several 14 people having unwarrantably -- this is on page 1076 -- 15 made purchase, blank, of the Illinois and nations 16 adjacent and, you know, makes reference to people 17 attempting "to acquire a title to the possession of 18 land where any new settlements are strictly forbidden 19 by the King's said proclamation", end quote. And then 20 it orders that "all purchases made of the Indians of 21 any part of the lands will be considered as void and 22 fraudulent", and then in brackets, and that has been 23 supplied from reading the French text, "and will not 24 permit anyone to establish himself there unless the 25 said lands are purchased in the manner prescribed in 26 the aforesaid proclamation". 27 And the covering letter at Tab 14 is Haldimand 28 sending this proclamation to Captain Hugh Lord, who's 29 commanding in the Illinois country. And again I don't 30 propose to read it, but it refers to preventing such 31 abuses of the proclamation and enclosing a copy. And 32 those are the documents I refer to in answer to your 33 question. 34 Q Are there any historical documents which illustrate or 35 indicate how applications for grants of land in the 36 possession of the Indians were treated in the area of 37 what is now Ontario? 38 A Again, the remaining tabs are a selection of quite 39 considerable number of historical documents that bear 40 on this question, and I propose to refer to them 41 hopefully very briefly in order. 42 THE COURT: That's Tabs 15 to — 43 THE WITNESS: Tabs 15 right through to 38. 44 And the document at Tab 15 is an exchange of 45 correspondence between the Governor of Quebec, 46 Frederick Haldimand -- and I should note that this is 47 in August and September of 1778 and this is four years 16325 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 after the boundaries of Quebec have been extended to 2 take in a large portion of what had been set aside as 3 Indian country under the Royal Proclamation of 1763. 4 And I note, in particular, in the second letter, the 5 reply to Haldimand from Henry Hamilton, who is the 6 Lieutenant Governor at Detroit, and his reply is dated 7 September 9th, 1778, and again it's in reference to 8 various problems with people trying to take up 9 possession of lands. And at the top of the second 10 page of the document, it says: 11 12 "I am to observe to Your Excellency I have 13 never taken upon me to grant lands at this 14 place. On the contrary. I convene the 15 principal inhabitants and the chiefs of the 16 neighbouring nations, read to them the 17 proclamation relative to purchases from the 18 Indians and told them that no deeds should 19 be considered as valid till passed by the 20 authority of the chief governor registered 21 at Quebec and entered at the office in this 22 place. Further, that they should be drawn 23 out fair on parchment and publicly witnessed 24 by the chiefs of the respective nations", 25 end quote. 26 27 MR. GOLDIE: My lord, I assume that the proclamation in line 28 three is the Haldimand proclamation or the royal 29 proclamation? 30 THE WITNESS: I believe it's a reference to the royal 31 proclamation itself. It may be -- I don't believe 32 that the Haldimand proclamation was sent to other than 33 the Illinois country, because the covering letter 34 suggests that it was only sent to Captain Lord because 35 that's where the -- so from the context my belief is 36 that it's referring to the royal proclamation. At 37 least from the context that appears to be what it's 38 referring to. 39 The documents at Tab -- at Tab 17, the -- marks 40 the beginning of a change in course because the 41 American revolution is under way and the Crown 42 officials are having to deal with certain problems 43 created by people displaced from the colonies during 44 the revolutionary war. 45 And at Tab 16 — this is from 1780, 1781, and it's 46 a series of correspondence between General Haldimand, 47 the governor, and Colonel Johnson. This is Colonel 16326 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 Guy Johnson, the son-in-law of Sir William Johnson, 2 who has replaced Sir William as Superintendent of 3 Indian Affairs, and is asking on the first page of the 4 document, 13 July, 1780 -- he wants to -- Haldimand 5 wants to cultivate some land at Niagara to supply the 6 post and provisions. Tab 16. I'm sorry if I said 7 something. Yeah. Tab 16, first page. And six lines 8 down -- or five lines down, Haldimand states: 9 10 "I have to desire that you"... 11 12 That is Colonel Johnson. 13 14 "... will purchase for the King, upon the 15 most advantageous terms in your power to 16 obtain, attractive land belonging to the 17 Mississaguas", spelled here 18 M-i-s-s-i-s-s-a-g-u-a-s, "opposite to the 19 fort", end quote. 20 21 And then it mentions the boundaries of it. 22 And the second letter, the second document, 9th 23 May, 1781, Johnson announces to Haldimand that he has, 24 quote, fourth line down: 25 26 "I convened the Chipeweighs", spelled 27 C-h-i-p-e-w-e-i-g-h-s, "and Mississaguas", 28 same spelling as before, "interested in the 29 lands you directed to be purchased for the 30 Crown and have obtained a deed from them for 31 the same in the usual form which was 32 executed this day and is herewith enclosed." 33 34 And two pages later is a typed copy of that deed which 35 Colonel Johnson obtained from the Indians, and his 36 reference to the usual form seems to be a reference to 37 the type of deeds made by the officers of the British 38 Indian department in the period preceding the 39 revolution as, for example, at Fort Stanwix. I don't 40 propose to read the deed. And I only note that at the 41 end, 7th July, 1780, which is the last portion of 42 correspondence, the last few pages of the documents at 43 this tab, that Haldimand makes it clear to the 44 commanding officer at Detroit that even though he's 45 purchasing lands from the Indians, he says right 46 towards the bottom of the page, last paragraph on the 47 first page, that the lands will, quote, "remain, at 16327 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 all times the sole property of the Crown and annexed 2 to the fort, those who settle upon it are not to 3 consider that they have the smallest right to any part 4 thereof", end quote. And this, of course, is because 5 the Crown still believes that perhaps the 6 revolutionary war can be won and they're not intending 7 to make permanent settlements at Niagara. 8 But Tab 17 by the end of the war, of course, they 9 do have to deal with these loyalist refugees and Tab 10 17, the first part of it is proceedings of a council 11 held at Niagara again. This is on the 22nd of May, 12 1784 with the Mississauga Indians, accompanied by the 13 chiefs and warriors of the six nations, Delewares, et 14 cetera. And the -- I note that the proceedings are 15 conducted in the same way that all those early treaty 16 councils that were mentioned, as at Lancaster, in the 17 1740's were conducted. After it lists the people 18 present, it states after the usual ceremonies and 19 compliments, then the spokesman for the Mississauga 20 speaks and Lieutenant Colonel John Butler, one of the 21 Indian department officials from Sir William Johnson's 22 time, makes a speech that he's received the -- further 23 down after receiving -- returning a belt, he states: 24 25 "I have received the commander in chief's 26 order through Sir John Johnson"... 27 28 And this is Sir William Johnson's son, who's now 29 Superintendent General of Indian Affairs. 30 31 "... to purchase some land, the property of 32 you, the Mississaugas, laying between the 33 Lakes Ontario, Huron and Erie, for the use 34 of such of your brother and of the six 35 nations as may wish to plant and hunt 36 thereon, as well as for an intended 37 setttlement for such of his Majesty's 38 faithful subjects who have assisted him 39 during the late war as wished to settle and 40 improve the same", end quote. 41 42 And basically in the course of the council, the 43 Indians agree to surrender some of the land that the 44 Lieutenant Colonel Butler wishes to acquire on behalf 45 of the Crown. 46 And the last three -- or four pages, I guess, 47 because it includes -- well, it should be really only 1632? J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 three. But the last four pages are of the only 2 surviving copy of the deed and it's a copy made in, I 3 believe, 1791 of the original deed, but indicates this 4 land purchase took place, and it's basically what is 5 now the Niagara Penninsula of Ontario. 6 And the document at -- documents at Tabs 18 and 19 7 involve instructions issued to and in the account of a 8 proceeding with the Indians and it takes place in 1785 9 and involving the right of the King to make roads, et 10 cetera, through the country of the Indians. And the 11 actual agreement is at page 19, the one that John 12 Collins, the Deputy Surveyor General, makes with the 13 Indians, and I don't propose to read it in. 14 And at Tab 19 -- or sorry. Excuse me. Tabs 20 -- 15 or Tab 20 is an exchange of correspondence between 16 Governor Haldimand and Captain Daniel Robertson, who's 17 commanding at Michilimakinac, and it involves an 18 application the Northwest Company has made for a large 19 tract of land between Lakes Ontario and Huron. And 20 the last two pages of the document, the governor's 21 secretary replies on the governor's behalf that, 22 quote -- that the governor, quote, "by no means 23 approves" -- 24 THE COURT: Where are you now? 25 THE WITNESS: Very last page of the document. "I am" — third 2 6 line down: 27 28 "I am directed by His Excellency to acquaint 29 you that he by no means approves of 30 concerting the vast tract of country you 31 mentioned into private property nor of 32 making encroachments upon the interests of 33 the Indians in their lands, so much the 34 practice of the Americans and so alarming to 35 the Indians, that it is with reluctance His 36 Excellency has made some unavoidable 37 purchases of lands from them to settle the 38 loyalists and some of the six nations' 39 Indians who are driven from their 40 settlements in the American territories", 41 unquote. 42 43 THE COURT: Sorry. I can't find that. 44 THE WITNESS: It's on the very last page of the document at Tab 45 20. 4 6 THE COURT: There's two documents in Tab 20. 47 THE WITNESS: Yes. The last page of the last document and the 16329 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 beginning of the third line down. 2 THE COURT: Thank you. 3 THE WITNESS: The document at Tab 21 is from towards the end of 4 the 1780's and it's excerpts from the printed land 5 records of the province of Quebec and it's the minutes 6 of the land committees of the executive council which 7 are meeting under the chairmanship of the governor of 8 Quebec to consider applications for grants of lands in 9 the province of Quebec. And I note on page -- 10 internal page 35 -- and this is from a series of 11 petitions that have been made in October of 1788, 12 internal page 35, a reference partway down to a 13 Captain Hugh Munro, who's a loyalist, and he's praying 14 for, a little further down, land which is described as 15 lying in a tract adjoining his 800 acres reserved for 16 the Oswegatche, spelled O-s-w-e-g-a-t-c-h-e, Indians. 17 "He founds his prayer on a presumption that government 18 will shortly purchase that tract and distribute it 19 among the loyalists". 2 0 And two paragraphs further down the committee 21 basically conceive that such a representation 22 concerning an intended purchase that this application 23 is made, quote, "with an intention to found a plea of 24 prior application, in case these lands may be 25 purchased hereafter by the Crown for the use of the 26 loyalists and others". 27 And on internal page 36 the very similar 28 application is made by the Reverend John Bethune. 29 These are for lands in the area of what's now 30 Cornwall, Ontario in eastern Ontario. And I don't 31 propose to read the details of it. And on page 38 a 32 similar petition from an individual named Abraham 33 Wing, W-i-n-g. And on page 39, three paragraphs up 34 from the bottom, reference to Major James Gray, who's 35 petitioned for, quote, "a thousand acres of the Indian 36 lands which join the tract that he has already drawn 37 was read. The petitioner states that the land he 38 applies for is Indian property. The committee cannot 39 recommend a grant of lands which do not appertain to 4 0 the Crown", end quote. 41 And further on on internal page 58, there's a 42 petition, second full paragraph, from an individual 43 named Nathaniel, spelled N-a-t-h-a-n-i-e-1, Lines, 44 who's an Indian interpreter, and he -- he's drawn 45 several acres of barren land in Pittsburgh. This is 46 near the Bay of Quinte in what's now southern Ontario. 47 And, quote: 16330 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 2 "The Deputy Surveyor-General has informed 3 the committee that Isle Foret", I-s-l-e 4 F-o-r-e-t, "is claimed by the Messessaga 5 Indians", M-e-s-s-e-s-s-a-g-a-, "so that the 6 prayer of this petition cannot be granted", 7 end quote. 8 9 And on page 59 a similar -- 10 THE COURT: Isn't there some distinction here, because it goes 11 on to say that "the Deputy Surveyor-General lay off 12 800 acres for the petitioner in any other 13 unconceded" -- 14 THE WITNESS: In any other unconceded part of the township 15 that's not been conceded to somebody else, is, I 16 believe, the context of that. 17 THE COURT: But if that part that he wants is in the same 18 township as Indian land and can't be granted, how can 19 any other part of the township be granted? 20 THE WITNESS: Well, the mainland part has been purchased from 21 the Indians in the period 1784-85. 22 THE COURT: What do you mean by the mainland part? 23 THE WITNESS: The — he's petitioning for — well, lands on an 24 island in the Bay of Quinte called Forest Island, Isle 25 Foret, and although the land on the mainland or the 26 north shore has been purchased, the islands have 27 not -- and in actual fact the very next page, page 59, 28 again reference is made at the very bottom under a 29 petition of Joseph Harkimir, spelled H-a-r-k-i-m-i-r. 30 THE COURT: I'm just wondering if that was the equivalent if 31 somebody today applied to buy some lands that are part 32 of an Indian reserve. 33 THE WITNESS: I believe that's correct, yes, that — but the way 34 it was -- and I believe the next few documents, in my 35 view, say the same thing; that before granting any 36 lands to these individuals, loyalist settlers, the 37 lands were being purchased from the Indians and that 38 even though individuals would make application 39 sometimes for lands which were still in the possession 40 of the Indians, that the various council deliberations 41 established that these lands were not granted if it 42 could be shown that there was no purchase or that they 43 were still in the possession of the Indians. 44 THE COURT: All right. Thank you. 45 THE WITNESS: And I note again on page 59, I don't propose to 46 read it, but the same topic. 47 And at Tab 22 the -- these are from the published 16331 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 minutes of the land board, which have been set up to 2 make grants of Crown lands, and this is for the 3 district of Hesse at that time, which has covered what 4 was then still called the Detroit area that's now 5 Windsor, Ontario. And on the second page of the 6 document -- this is from August of 1789 -- the -- the 7 board, in reference to various petitions they've 8 received, state that they find it necessary to report, 9 quote: 10 11 "... to His Excellency the Right Honourable 12 Lord Dorchester that they cannot comply with 13 the general scope of those instructions"... 14 15 That is the instructions for granting lands. 16 17 "... by reason that within their competence 18 the Crown is actually possessed of no waste 19 lands free from claims of Indians or others, 20 and to state their opinion that a purchase 21 be made as soon as may be from the Indians 22 of the lands from Long Point, in Lake Erie, 23 to"... 24 25 And I've looked at the original minutes as well and 26 it's blank in the original. 27 28 "... in Lake Huron, without consideration of 29 the grants to individuals, suggesting as the 30 grounds of such opinion the uniform reserve 31 of His Majesty in council not to grant any 32 waste lands within the province without a 33 previous treaty with the natives as 34 proprietors of the soil." 35 36 And I believe that is a reference to the Royal 37 Proclamation of 1763, this reference to the reserve of 38 His Majesty in council. And in this particular 39 instance a treaty was made in 1790 by which the 40 various Indian tribes in the Detroit area surrendered 41 much of the north side of Lake Erie to the Crown. 42 And Tab 23 is from a speech made by Lord 43 Dorchester in August of 1791, and there's a -- a part 44 of the confusion is although it's dated March, 1791 at 45 the top, in actual fact, according to the very last 46 page of the document, it was delivered by Lord 47 Dorchester, it says, Quebec 15 August, 1791. And it's 16332 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 a speech to the confederated Indian nations and 2 various of them are named. And I note on the second 3 page -- and they are speaking, among other things, of 4 the war with the United States and ongoing disputes in 5 the territory of the United States. And near at the 6 bottom where it says "Brothers", and this is Lord 7 Dorchester speaking: 8 9 "You have told me there were people who say, 10 that the King, your father, when he made 11 peace with the United States, gave away your 12 lands to them. Brothers, I cannot think the 13 government of United States would hold that 14 language. It must come from ill-informed 15 individuals." 16 17 Next page: 18 19 "You well know that no man can give what is 2 0 not his own. When the King made peace and 21 gave independence to the United States, he 22 made a treaty in which he marked out a line 23 between them and him; this implies no more 24 than that beyond this line he would not 25 extend his interference." 26 27 And then two paragraphs further down, he continues: 28 29 "The King's right with respect to your 30 territory was against the nations of Europe; 31 these he resigned to the States. But the 32 King never had any rights against you but to 33 such parts of the country as had been fairly 34 ceded by yourselves with your own free 35 consent by public convention and sale. How 36 then can it be said that he gave away your 37 lands? So careful was the King of your 38 interests, so fully sensible of your rights, 39 that he would not suffer even his own people 40 to buy your lands without being sure of your 41 free consent and of ample justice being done 42 you. He therefore ordered his 43 Superintendent General, Sir William Johnson, 44 the father of your friend"... 45 46 This, of course, is a reference to Sir John. 47 16333 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 "... to be present at all treaties between 2 you and his colonial government to see that 3 you were fairly dealt with; bargains with 4 private individuals were forbid and 5 considered as void." 6 7 And it refers to encroachments and the various ways in 8 which the Crown officials propose to deal honourably 9 with the Indians. And I don't propose to read the 10 rest of the document, but I note that Tab 24 -- 11 MR. GOLDIE: Excuse me. Is the reference to Fort Stanwix the 12 Treaty of Fort Stanwix of which you've spoken? 13 THE WITNESS: Yes, it is. 14 MR. GOLDIE: Thank you. 15 THE WITNESS: And I don't propose to read in detail the document 16 at Tab 24 except to note that it's the speech of the 17 American commissioners to the same Indians made in 18 1793 on the American side of the Detroit River in 19 which -- and I note on page 408, 409 they repeat the 20 same kind of language; that their claims were as 21 against Britain and not as against the Indians. And 22 they refer, actually, to Lord Dorchester's statement 23 to the Indians. 24 The document at Tab 25 is a dispatch from the 25 Lieutenant Governor of the new province of Upper 26 Canada, John Graves Simcoe, to Henry Dundas, the 27 Secretary of State, and, among other things, he's 28 proposing purchasing a particular tract of land from 29 the Indians, and which is on Georgian Bay, between 30 Georgian Bay and Lake Huron near where Owen Sound, 31 Ontario now is. But further down at the bottom he 32 states: 33 34 "I do myself the honour of enclosing to you 35 a sketch of part of Upper Canada by which 36 you will see where the Indian title is 37 extinct by British purchases and where it 38 exists in its original possessors." 39 40 And it states: 41 42 "The land which I wish to purchase to form 43 in all views a most desirable settlement is 44 distinctly coloured." 45 46 And the last page of the document is from the 47 published Simcoe papers. And I apologize because I 16334 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 left my colour slide back home, but the coloured 2 sections of this map are marked. The part above Lake 3 Erie, the part above Lake Ontario, a part in the east 4 part along the St. Lawrence River, these are all 5 coloured on the map. And on the legend to the map it 6 states: "Lands purchased from the Indians are 7 coloured yellow". And these areas correspond, if one 8 compares them to the various Indian land surrenders 9 made in Ontario, to the lands which have been 10 purchased up and to that point, that is 1792, from the 11 Indians of what's now southern Ontario. And the lands 12 which the six nations had received were white and -- 13 or, rather, within red lines, and that's just on the 14 north shore of Lake Erie. There's some dotted red 15 lines. And then it states at the very bottom of the 16 legend "The Huron reserve at Detroit and the Indian 17 lines white" and, of course, the rest of the map is 18 white other than those coloured sections on the 19 original one. 20 And at -- I would note at this time that at Tab 31 21 is the catalogue from the index to a published version 22 of Indian treaties and surrenders. This is from 23 volume 1, which contains most of the early land 24 surrenders, and the bulk of the surrenders in this 25 volume is from what is now in Ontario. And I 26 certainly don't propose to go through the details of 27 them, but the listing, for example, on internal page 28 Roman Numeral xxxvi under "Mississaugu Indians", 29 there's a whole list of agreements made with the 30 Mississauga Indians beginning in 1787 and continuing 31 through, and the same with on internal page X, Roman 32 Numeral Xll under "Chippewa or Ojibbewa Indians" again 33 a whole series of purchases, land purchases, are 34 listed in there. And I don't propose to read them. 35 But at Tab 26 the first page of it is from the 36 surveyor general's office and it's a letter from D.W. 37 Smith, the acting surveyor general, addressed to 38 Captain Brandt, B-r-a-n-d-t, and it states: 39 40 "I am directed by His Excellency Lieutenant 41 Governor Simcoe in answer to the paper which 42 you left for his perusal and in which it 43 appears that you have memorialed to the 44 governor in council in Lower Canada for 45 lands near the Lake of Geneva (now 46 Burlington Bay)"... 47 16335 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 Which is actually now usually known as Hamilton 2 Harbour. 3 4 "... in your right as a half pay captain to 5 inform you that those lands are not 6 purchased from the Missassague", spelled 7 M-i-s-s-a-s-s-a-g-u-e, "nation and that the 8 King's proclamation in 1763 totally 9 prohibits any of his Majesty's subjects from 10 settling on Indian lands or his governors in 11 this country from granting therein warrants 12 of survey", end quote. 13 14 And the rest of the documents at this tab, which I 15 don't propose to read, deal with a series of contested 16 claims to lands on this very same Burlington Bay, now 17 Hamilton Harbour, and it involved a dispute between 18 the purchase made in 1784 from the Mississauga 19 Indians. It had turned out that the boundary 20 described in the treaty or surrender was an imaginary 21 line and in 1792 Lieutenant Governor Simcoe made a 22 fresh agreement with the Indians establishing a new 23 boundary line. So the question then became what would 24 happen to the lands granted in the areas which hadn't 25 really been part of the purchase. And there's a map 26 included, but, again, I don't propose to refer to this 27 in any detail, but I note in one, two, three, four, 28 five pages from the back -- 29 MR. GOLDIE: Tab? 30 THE WITNESS: At Tab 26. Sorry. One, two, three, four, five, 31 six, seven, eight, nine. It's a page, I think, headed 32 "34H", and it states that -- it's in the report from 33 the surveyor general and he's referring to this 34 problem with the Indian purchases. And the second -- 35 or the first full paragraph on that page, he states: 36 37 "A short time after the purchase was 38 extended to a northwest line from the outlet 39 of Burlington Bay, His Excellency, the 40 lieutenant governor, directed information to 41 be given to the gentleman claiming lands in 42 the north side -- on the north side of the 43 said bay saying he had not the least 44 objection to their having those lands but 45 that they must petition the council for 46 their grants as they could not hold them by 47 any former assignment made by the land board 16336 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 for that place, they being illegal when 2 given owing to a mistake in the original 3 deed." 4 5 And then he sets out what happened with the 6 repurchase. And I would only note the very last page 7 of this series of documents, which is an excerpt from 8 the minutes of the Executive Council of Upper Canada 9 respecting applications for land, and it's dated 18th 10 April, 1797. And it's referring to one of these 11 claims from Augustus and Ebenezer Jones, and it refers 12 to the surveyor general's report with regards to these 13 lots and it confirms that these lands which they had 14 originally received, about three, four lines down that 15 paragraph, quote, "falls within the land allowed by 16 the Mississaugas to have been purchased from them the 17 22nd of May, 1784 and consequently within the 18 jurisdiction of the land board", end quote. So these 19 individuals were able to be on the right side of the 20 line to have their grants. 21 And the documents at Tab 28 -- sorry -- 27 and 28 22 I don't propose to read in any detail, again merely to 23 note that they involve a number of problems which had 24 arisen by 1794 in the province of Upper Canada 25 regarding the boundaries of some of the deeds which 26 had been signed by them in the preceding decade. And 27 I note that on the first page of the document at Tab 28 28, which is a dispatch from Lord Dorchester to the 29 Duke of Portland, the Secretary of State, he alludes 30 to the Indians having expressed great satisfaction -- 31 this is in the first paragraph -- "and actually 32 commited some depredations on persons who had taken 33 possession of lands which are still taken by them". 34 And Dorchester goes on to say that: 35 36 "These discontents could proceed only from 37 the omission of form and want of knowledge 38 in the persons employed to make purchases of 39 their lands, and I expect they will be 40 settled to the satisfaction of all parties 41 by Colonel McKee"... 42 43 This is Alexander McKee, another loyalist Indian 44 department official. And he goes on to say he's made 45 them Deputy Superintendent Generals. And he also 46 mentions that he has prepared instructions to attend 47 all such purchases and to set out, quote: 16337 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 2 "... to see that all the principal chiefs 3 are present and the bargain made with 4 persons duly authorized on the part of the 5 provincial government, the whole to be 6 conducted with the ancient solemnity as 7 practised by the late Sir William Johnson at 8 Fort Stanwix and according to the King's 9 instructions", end quote. 10 11 And I don't propose to read the rest of the 12 documents detailing the complaints of the Indians, but 13 the instructions to which Lord Dorchester is referring 14 are at Tab 29, and Dorchester issued them on the 24th 15 of December, 1794 and they're directed to Sir John 16 Johnson, William Johnson's son, the Superintendent 17 General of Indian affairs, or in his absence the 18 Deputy Superintendent General, who's Mr. McKee. And 19 it -- the first article states that, the fourth line 20 beginning at the end of the third line down: 21 22 "No lands are therefore to be purchased of 23 the Indians but by the Superintendent 24 General and Inspector General of Indian 25 Affairs or in his absence by the Deputy 26 Superintendent General or a person specially 27 commissioned for that purpose by the 28 commander in chief." 29 30 And the second instruction states that: 31 32 "When Indian territory shall be wanted by 33 any of the King's provinces"... 34 35 And I would note that at this time Lord Dorchester was 36 governor not just of Upper and Lower Canada but of the 37 maritime provinces as well. 38 39 "... the governor or person administering 40 the government of respective province will 41 make his requisition to the commander in 42 chief and also to the Superintendent General 43 of Indian affairs", unquote. 44 45 And it orders him to -- there will be a sketch 46 prepared and that the -- those officials, quote, "will 47 endeavour to find out the probable price to be paid 1633? J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 therefore in goods, the manufacture of Great Britain, 2 and report the same to the commander in chief that 3 measures may be taken to get them from England by the 4 the first opportunity", end quote. 5 And then the third article: 6 7 "All purchases are to be made in public 8 council with great solemnity in ceremony 9 according to the ancient usages and customs 10 of the Indians, the principal chiefs and 11 leading man of the nation and/or nations to 12 whom the lands belong being first 13 assembled." 14 15 And articles 4 through the rest detail various 16 requirements for who's to attend and that liquor is 17 not to be introduced. 18 And article 7, after the whole thing has been 19 explained, quote, "regular deeds of conveyance", end 20 quote, in triplicate are to be, quote, "executed in 21 public council", end quote, by the Indians on one side 22 and the Indian department officials on the other and 23 witnessed by the provincial authorities. And then the 24 consideration was to be paid, again with greatest 25 public notoriety. This is in article 8. And article 26 9 requires that proceedings be transmitted to the 27 Superintendent of General for the information of the 2 8 commander in chief. 29 THE COURT: Madam Reporter, this is pretty heavy going. Are you 30 going to be able to stay for another 10 minutes? 31 THE WITNESS: The document at Tab 30, I don't propose to read it 32 again in any detail. In my copy there's an extra page 33 in there which shouldn't be in there, but maybe it's 34 not in the other copies. I have somehow a map, or 35 looks like a Hudson's Bay document has slipped in 36 here. I'll tear mine out. It deals with the 37 preparation of the -- these Dorchester instructions or 38 regulations and it's from Joseph Chew, who's another 39 Indian department agent, one of Sir William Johnson's 40 former cohorts, writing to the governor's secretary 41 and he's making certain suggestions about the wording 42 of these purchases and refers to again the various 43 traditions of Indian councils in the period prior to 44 the revolution. 45 And at Tab 31 I've already referred to the 46 catalogue of Indian treaties and surrenders. 47 At Tab 32, again from the minutes of the Executive 16339 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 Council of Upper Canada, this is for October of 1798, 2 and it's an excerpt from a report and to the president 3 of the executive council, who's the administrator, 4 who's the Lieutenant Governor. Simcoe has gone back 5 to England. And it involves the Governor General's 6 plan for disposing of the waste lands of Crown by 7 sale. And I note in the second paragraph they, quote, 8 "beg leave to call Your Honour's attention", end 9 quote. And it's to the propriety, quote, "of making 10 an extensive addition to the waste lands of the Crown 11 by purchases of the Indians, before any steps are 12 taken for carrying that plan into execution, and even 13 before it is in any manner announced to the public", 14 end quote. And they go on to render their views about 15 the Indians and their increasing knowledge of the 16 value of land. And the -- I don't propose to read the 17 rest of the -- the letter, but the last part of the 18 document is a copy of a map from the year 1800 19 prepared by the Surveyor General of Upper Canada under 20 the directions of Lieutenant Governor of Upper Canada 21 and it shows what's now southern Ontario as well as a 22 certain portion of what's now northeastern Ontario. 23 And the -- some of the printing is difficult to read, 24 but I note, for example, extending across the north 25 shore of Lake Huron and down into what's now southern 26 Ontario, we have the marking "Chippewa", spelled 27 C-h-i-p-p-e-w-a, "Hunting Country". And in between on 28 the western end of lake Ontario -- this is on the 29 first page. The map's been copied in two parts. Just 30 west of where the city of Toronto now is is the 31 printed mark Mississagues, M-i-s-s-i-s-s-a-g-u-e-s, 32 and this is reference to the tract which is then still 33 in the possession of the Mississagues Indians west of 34 Toronto. And the various surveyed lands along the 35 shores of both lakes are therein marked. 36 And the document at Tab 33, I have to apologize 37 once more for the quality of the reproduction, but 38 it's from the proceedings of a meeting with the 39 Chippawaw, spelled here C-h-i-p-p-a-w-a-w, Indians of 40 Matchedash, spelled M-a-t-c-h-e-d-a-s-h, and Lake 41 Simcoe, and it takes place in the 8th and 9th of June, 42 1811. And those present, the first listed is William 43 Claus, C-1-a-u-s, who's Sir William Johnson's grandson 44 and the son of Daniel Claus, the former Indian agent 45 of Quebec whose documents we saw earlier, and he's now 46 Deputy Superintendent General and Inspector General of 47 Indian Affairs. And he's making a proposal again in 16340 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 the same sort of formal council tradition relations 2 with the Indians, a proposal to purchase lands near 3 what's now Georgian Bay. And on the second page, I 4 note the fourth line down Clause states, and it 5 begins: 6 7 "Children, a very considerable change has 8 taken place in this country within a few 9 years. Your great father, the King's white 10 children have increased so fast that the 11 country he has bought at several times from 12 his Indian children is not sufficient for 13 the number that come to the country. On 14 this account, therefore, I now address you. 15 The King, your great father, has nor never 16 will take a foot of land from any of his 17 Indian children without their free consent 18 paying him therefore", end quote. 19 20 And the minutes of the council go on to record the 21 discussions and purchase does eventually take place. 22 And I note still the -- the parallel 75 years later 23 with the council meetings from -- 24 MR. GOLDIE: Well, that's a conclusion, my lord. We'll leave 25 that to Ms. Mandell. 2 6 THE COURT: All right. 27 THE WITNESS: The document at Tab 34 is entitled a "Report of 28 the Vacant Lands Et cetera in Upper Canada" and it's 29 dated March 8th, 1815 and it's a report from the 30 Surveyor General to the administrator of the province 31 of Upper Canada. And the Surveyor General is Thomas 32 Ridout, spelled R-i-d-o-u-t, and he's basically 33 cataloguing various categories of land in Ontario 34 which he believes are available for settlement. And 35 he refers, for example, on page -- internal page 36 9600 -- there's a map attached to it, but on page 9600 37 he notes the lands adjoining the Penetangushine, 38 spelled here P-e-n-e-t-a-n-g-u-s-h-i-n-e, purchase in 39 1811, and that's a reference to the preceding 40 document, the council with the Indians, and marked FG, 41 are merely submitted as affording a space for future 42 settlement in the vicinity of Lake Huron and is 43 connected in some measure with the important 44 communication from York by way of Lake Simcoe, the 45 Penetangushine Harbour, but it deserves to be reported 46 as a very valuable and interesting tract of frontier 47 country. But two pages further on under -- beginning 16341 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 on page 9602, there's a recapitulation of the lands 2 mentioned in the preceding report and on page 9603, 3 the next one, I note a little ways down "lands 4 mentioned in the annexed report of which the Indian 5 rights have not been extinguished" and he lists 6 various blocks of land which are marked on the map 7 which accompanies the report, and they're basically 8 these -- all these lands which border on the settled 9 portions of the lower part of Upper Canada, what's now 10 southern Ontario. And the various letters are marked 11 on there. And the map here, he's referring only to 12 what's now the southernmost part of southern Ontario. 13 The document at Tab 35 is a letter from Sir John 14 Johnson, who's still alive in his mid-80's in November 15 of 1824, dated at Montreal and he's writing to the 16 military secretary to the governor and it's in 17 reference to a claim -- certain claims by Algonquian 18 and Nepissingue Indians to hunting grounds along the 19 Ottawa River, on both sides of the river in what's now 20 Ontario and Quebec. And I note under the paragraph 21 number 2 Sir John sets out: 22 23 "By his Majesty's proclamation, dated the 24 7th October, 1763 a copy of which is 25 herewith enclosed, you will find that it is 26 expressly provided that the Indians shall 27 not under any pretence whatever be deprived 28 of the lands claimed by them unless they 29 should be inclined to dispose of them, in 30 which case they are to be purchased for the 31 Crown only and at some public meeting to be 32 held for that purpose." 33 34 And I would note that the underlining is not in the 35 original document. And he goes on to discuss this 36 claim. 37 And at Tab 36 the -- it's another map of the -- a 38 rough diagram of the province of Upper Canada showing 39 the vacant lands. This is the title on the second 40 page, and it's by T.G. Chewett, spelled C-h-e-w-e-t-t, 41 who's the Surveyor General. And this map is from the 42 colonial office records and the date stamp on it is 43 1831, and I merely refer to on the second page, 44 because it's been copied in two parts, references to 45 the diagram and at the very top, although it's 46 difficult to read, the two tracts, A and B, are 47 unextinguished Indian right. And I note the Tract A, 16342 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 which covers going up towards what's now the Bruce 2 Penninsula, jutting into Lake Huron, and the Tract B, 3 which is on the second page, is lands in behind of the 4 settled townships in -- along the north shore of Lake 5 Ontario. 6 And at Tab 37, this is an excerpt from "Report of 7 the Affairs of Indians in Canada Laid Before the 8 Legislative Assembly, 20th March, 1845" by certain 9 commissioners who have been appointed to investigate 10 the topics by the Governor of British North America. 11 And it's set out on the first page. Beginning on the 12 second page of the document here, I note there's a 13 history of the relations between the government and 14 the Indians. And the next page after that, after they 15 recite sort of brief overview of relations, I note the 16 paragraph beginning: 17 18 "The subsequent proclamation of His Majesty 19 George III, issued in 1763, furnished them 20 with a fresh guarantee for the possession of 21 their hunting grounds and the protection of 22 the Crown. This document, the Indians look 23 upon as their charter. They have preserved 24 a copy of it, to the present time, and have 25 referred to it on several occasions in their 26 representations to the government. It is of 27 sufficient importance and interest to be 28 quoted in part in this place." 29 30 And then they go on to quote from the proclamation. 31 And then thereafter the commissioners -- 32 THE COURT: I think — really, I think I can read that. 33 THE WITNESS: Yes. I don't propose to refer to anymore in it. 34 And the very last document at Tab 38 is a typed 35 copy of extracts from the executive council records, 36 and this is the land records of the province of 37 Canada, the merged province of what's now Ontario and 38 Quebec for 1866. And I would point -- I would note 39 that the footnotes are my footnotes. They're not in 40 the original document. They just explain who the 41 individuals are. And I would summarize that this 42 involves a very detailed examination of history of 43 acquisition of lands from the Indians and it involved 44 a disputed claim to Pelee Island in Lake Erie, and I 45 would merely note it's a discussion of the whole 46 matter filed by Hewitt Bernard, who is the solicitor 47 to the Indian department, and his report is basically 16343 J. Morrison (for plaintiffs) In chief by Ms. Mandell 1 adopted by the executive council and he canvasses an 2 enormous number of historical documents, but the -- I 3 note on internal page 12 of the typescript -- sorry, 4 page 15. And I apologize for this. The claimants to 5 the island had argued that even if the Royal 6 Proclamation of 1763 -- and it's been set out at very 7 great length -- 8 THE COURT: Isn't this really something that I can read? 9 THE WITNESS: Sure. And I merely note the paragraph. 10 THE COURT: "I do not think it is necessary"? 11 THE WITNESS: The one "It is further urged by the brief" and 12 "Because it is obsolete and worn out". That's on page 13 15. 14 THE COURT: Yes. 15 THE WITNESS: And that paragraph I note there. 16 THE COURT: All right. Well, we've detained Madam Reporter 17 longer than we should and we're grateful to her for 18 her patience and understanding. I have to tell 19 counsel that I find I have an engagement that I will 20 have to excuse myself for about five to twelve 21 tomorrow. We can sit later in the afternoon but not 22 beyond -- oh, I think not beyond five o'clock. How 23 are we getting along? Are you nearly finished? 24 MS. MANDELL: I am finished. 25 THE COURT: You are finished? 26 MS. MANDELL: Yes, I am, although I would like with leave to 27 speak to the witness this evening, but I have no more 28 questions at this point. 29 THE COURT: All right. How long do you expect to be, Mr. 30 Goldie? 31 MR. GOLDIE: I don't expect to be very long at all, my lord. 32 MS. KOENIGSBERG: I expect to be shorter. 33 THE COURT: Then we -- we may not have to sit on Saturday. All 34 right. Thank you. Ten o'clock tomorrow morning. 35 THE REGISTRAR: Order in court. Court will adjourn until 10:00 36 a.m. 37 38 (PROCEEDINGS ADJOURNED UNTIL APRIL 27, 1989 AT 10:00 A.M.) 39 I hereby certify the foregoing to be 40 a true and accurate transcript of the 41 proceedings transcribed to the best 42 of my skill and ability. 43 44 45 46 Kathie Tanaka, Official Reporter 47 UNITED REPORTING SERVICE LTD.
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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[Proceedings of the Supreme Court of British Columbia 1989-04-26]
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