27373 Submissions by Mr. Goldie

1 May 25, 1990 2 Vancouver, B.C. 3 4 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT) 5 6 THE REGISTRAR: Order in court. In the Supreme Court of British 7 Columbia, this 25th day of May, 1990. Delgamuukw 8 versus Her Majesty the Queen at bar, my lord. 9 THE COURT: Mr. Goldie. 10 MR. GOLDIE: My lord, I put up another map there which is a 11 Government of Canada map and I intended to demonstrate 12 drainage areas. This in blue is the drainage area of 13 the Saint Lawrence. The colour is not too discernible 14 but -- the variation in colour is not too discernible 15 but there is a very -- that provides you with the 16 drainage of the Hudson's Bay. This is the drainage of 17 the MacKenzie, this is the Pacific Coast, and up here 18 is a tiny little sliver of drainage for the 19 Mississippi. Now, unfortunately, this map doesn't 20 combine any place names or anything of that order. It 21 provides a more detailed indication of drainage areas 22 than one of Dr. Farley's maps which was a North 23 American drainage area. 2 4 THE COURT: Yes. 25 MR. GOLDIE: That one is limited to Canada. 26 THE COURT: So all of Southern Alberta drains into Hudson's Bay. 27 MR. GOLDIE: Yes, with the exception as I say -- 28 THE COURT: Except that little sliver. 29 MR. GOLDIE: Tiny little bulge here. It's — the Hudson's Bay 30 drainage area is -- runs right up to, as one would 31 expect, right up to the height of land in the Rockies 32 in its southern extension. 33 THE COURT: The Bow River runs into south Saskatchewan which 34 runs into Hudson's Bay as I recall it. 35 MR. RUSH: Yes. 36 THE COURT: All right. The Bow and its tributaries. 37 MR. GOLDIE: My lord, I am at page 13 of section 4 part 5 38 paragraph 35, and the purpose as I note of this 39 section is to -- is to indicate that British Columbia 40 was not part of Rupert's Land. Obviously it is not 41 part of Rupert's Land when Rupert's Land was 42 surrendered to the Crown or became part of Canada, but 43 we are talking about it in its historical perception. 44 I say in paragraph 35: In the grant of Vancouver 45 Island to the Hudson's Bay Company, January 13, 1849, 46 the sixth recital implies that what became British 47 Columbia or part of it lies to the westward and also 27374 Submissions by Mr. Goldie

1 to the northward of the territory known as Rupert's 2 Land. And that is the -- this is again the authority 3 under -- the tab number is again a reference to 4 Martin, book of 1849. 5 MR. RUSH: This is not an exhibit, is it? 6 MR. GOLDIE: I don't recall. You may well be right. 7 MR. RUSH: I think it is a treatise that you added to the 8 collection. 9 THE COURT: Yes. 10 MR. GOLDIE: At the bottom of the page there is a reference to 11 the licences which extended to those parts in North 12 America beyond the limits of the charter which the 13 Hudson's Bay Company presently enjoin. The reference 14 to a Board of Trade letter in June of 1837. 15 16 These licences, in nowise invalidated or 17 questioned the rights possessed under the Royal 18 Charter of 2nd May, 1670 which has been 19 recognized by various treaties and Acts of 20 Parliament. From the correspondence of 7th 21 September and 30th October, 1846, laid before 22 Parliament, 10th August 1848, it would appear 23 that the Crown considered the Rocky Mountains 24 as the eastern boundary of the territory over 25 which the Hudson's Bay Company have the 26 exclusive right of trading with the natives for 27 twenty-one years from 13 May, 1838. Previous 28 to the recent Oregon treaty, and so on. 29 30 THE COURT: I don't see that, Mr. Goldie. Where is it? 31 MR. GOLDIE: It is right at the bottom of page 5 of Martin and 32 under tab V/4-35. 33 THE COURT: Yes. 34 MR. GOLDIE: And following the blue divider sheet is a copy of 35 the Charter of Vancouver's Island and on the second 36 page it's the recital beginning with the words: 37 38 "And whereas by our grant or royal licence..." 39 40 Just a little below the half-way mark: 41 42 "...bearing date the 13th day of May, 1838, 43 under the hand and seal of one of Our then 44 Principal Secretaries of State, we granted and 45 gave Our licence to the said Governor and 46 Company and their successors, for the exclusive 47 privilege of trading with the Indians in all 27375 Submissions by Mr. Goldie

1 such parts of North America to the northward 2 and westward of the lands and territories 3 belonging to the United States of America as 4 should not form part of any of Our provinces in 5 North America, or of any lands or territories 6 belonging to the United States", and so on. 7 8 Now, the point there, my lord, is that that was a 9 separate transaction in respect of the Hudson's Bay 10 Company and fell outside the original grant. And back 11 to paragraph 36, I say that even if British Columbia 12 could be understood to be part of Rupert's Land as the 13 Plaintiffs as we understand it contend, the Royal 14 Proclamation did not apply to the Hudson's Bay Company 15 Territory in fact, nor could it apply in law since 16 Rupert's Land was a settled colony. And the reference 17 there, my lord, is to the Baker Lake judgment which I 18 have already referred to and Mr. Justice Mahoney at 19 page 532 where he says: 20 21 "The Baker Lake area lies within the former 22 proprietary colony of Rupert's Land, the 23 territory granted to the Hudson's Bay Company 24 by Royal Charter of Charles II May 2, 1670. It 25 is common ground that Rupert's Land was a 26 settled colony, rather than a conquered or 27 ceded colony. It is to be noted that the 28 particular legal consequences of settlement, as 29 distinct from conquest or cession, in so far as 30 the domestic laws of a colony were concerned, 31 was not articulated in a reported case until 32 1693", and so on. 33 34 And its conclusion is: 35 36 "The Royal Proclamation does not and never did 37 apply to Rupert's Land." 38 39 And in my respectful submission that is a correct 40 statement of law. And then part 3 or section 3 41 subsection 3, Britain made no claim to British 42 Columbia in 1763, and in my submission it is clear 43 that there is no assertion to the northwest -- 44 assertion of sovereignty or claim to the northwest 45 part of North America and the part of Britain, and I 46 say in paragraph 37, while Virginia Charter of 1609 47 purported to establish that colony from the coast of 27376 Submissions by Mr. Goldie

1 the Atlantic to the Pacific Ocean by two straight 2 lines drawn along the colonies northern and southern 3 boundaries, Britain did not assert such a claim either 4 during the negotiations leading up to the Treaty of 5 Paris or subsequently. In any event, none of the 13 6 American colonies originally granted charters to the 7 Pacific Ocean were located north of latitude 48 north. 8 And the reference there is -- the first reference is 9 to a map identified in one of Dr. Greenwood's 10 footnotes. It is the pallorette map that I referred 11 to last night, and I draw your lordship's attention to 12 the lines on that map which are purported to be 13 extensions of the Virginia colonies. And then at 14 paragraph 38 I say in any event, the Albany Congress 15 held by the British colonies in June of 1754 to deal 16 with the Indian land problem, the Albany Commissioners 17 recommended that the bounds of those colonies which 18 had charters to the Pacific Ocean be contracted and 19 limited to the Alleghany Mountains. 20 THE COURT: Did they agree? 21 MR. GOLDIE: Without relying on my memory, my lord, I'd like to 22 turn to the authority. 23 THE COURT: All right. 24 MR. GOLDIE: Which is 35, yes. This is the document of — an 25 extract from the document submitted by Mr. Morrison, 26 Exhibit 1026-7, and the reference at page 5 after 27 some -- after comments about the state of affairs -- 28 the sad state of affairs between the Indians and the 29 colonies says that at the bottom of the page about 30 eight lines up: 31 32 "That the complaints of the Indians, relative to 33 any grants or possessions of their lands 34 fraudulently obtained be enquired into and all 35 injuries redressed. That the bounds of these 36 colonies which extend to the South sea, be 37 contracted and limited by the Alleghenny or 38 Apalachian mountains, and that measures be 39 taken for settling from time to time Colonies 40 of His Majesty's protestant subjects, westward 41 of said Mountains convenient Cantons to be 42 assigned for that purpose; and finally: That 43 there be a Union of His Majesty's several 44 Government on the Continent, that so their 45 Councils, Treasure and strength may be employed 46 in due proportion against the common Enemy. 47 All which is submitted." 27377 Submissions by Mr. Goldie

1 2 Now, that doesn't seen to me to state 3 unequivocally that that proposal was agreed and I'll 4 have a look at the rest of that exhibit, my lord. I 5 understood it had been agreed but that document isn't 6 that conclusive. And in the next paragraph I note 7 that in Johnson v. M'Intosh, Chief Justice Marshall 8 described as extravagant the suggestion in the 9 colonial charters that Britain had acquired rights to 10 lands extending to the Pacific Ocean based on 11 discovery of the Atlantic seaboard. And that 12 reference is under tab 39 and the page number, my 13 lord, is the stamped number page 281, the left-hand 14 column in the first paragraph where the Chief Justice 15 states, and I quote: 16 17 "This river was comprehended in the chartered 18 limits of Virginia; but, though the right of 19 England to a reasonable extent of country, in 20 virtue of her discovery of the sea-coast, and 21 of the settlements she made on it, was not to 22 be questioned; her claim of all the lands to 23 the Pacific Ocean, because she had discovered 24 the country washed by the Atlantic, might, 25 without derogating from the principle 26 recognized by all, be deemed extravagant." 27 28 And I go on to say that in point of fact Britain could 29 make no claim to British Columbia even based on 30 exploration and discovery until 1778, some 15 years 31 after the Royal Proclamation. And I am there 32 adverting to the principle which Chief Justice 33 Marshall referred to in the paragraph I just read. 34 In the reference Ownership of the Bed of the 35 Strait of Georgia, Mr. Justice Dickson as he then was 36 observed that the British claim to the Westcoast of 37 North America depended on the exploration of Captain 38 Cook in 1774, Captain Meares in 1788, and Captain 39 Vancouver in 1792. And his lordship was there 40 confining his -- 41 THE COURT: Was Meares not an American? 42 MR. GOLDIE: Meares was sailing I think under the British flag. 43 THE COURT: I thought he was a Bostonian 44 MR. GOLDIE: I don't think so, my lord. I think his previous 45 service had been in the Navy and he left the Navy and 46 was out adventuring on his own but I'll check that. 47 MR. RUSH: Does my friend assert the proposition that Meares, 2737? Submissions by Mr. Goldie

1 Cook and then Vancouver asserted settlement and/or 2 possession at the same time as discovery as suggested 3 by Chief Justice Marshall? 4 MR. GOLDIE: No. I am simply saying that when the question of 5 the Ownership of the Bed of Strait of Georgia came up, 6 and it's rather difficult to think of settlement on 7 the Bed of the Strait of Georgia, Mr. Justice Dickson 8 was saying the events that we are looking at commenced 9 with those particular voyages. 10 THE COURT: You are not adopting that as a complete statement. 11 MR. GOLDIE: No, no. The only -- the only point is I draw your 12 lordship's attention to the dates, all of which are 13 after 1763. 14 THE COURT: Yes. 15 MR. GOLDIE: Then at paragraph 42, Cook is credited with the 16 first British exploration of the west coast of British 17 Columbia in 1778. However, as the basis for any claim 18 to sovereignty, even that voyage is questionable 19 because Cook saw nothing of what is now the Mainland 20 of British Columbia. He sighted the entrance to the 21 Strait of Juan de Fuca and reached the immediate 22 vicinity of Nootka Sound on Vancouver Island. 23 Furthermore, the narrative of his voyage records Cook 24 taking possession only in Prince William's Sound at 25 the head of the Gulf of Alaska. Those references are 26 to Dr. Farley's report, my lord. 27 Historians generally agree that it is unlikely 28 that Sir Francis Drake sighted British Columbia on his 29 voyage around the world in 1577 to 1580. A review of 30 the record of his journeys indicates that at the very 31 most the only part of present day British Columbia he 32 could have sighted was Vancouver Island. Then there 33 is a reference there. From landward the Englishman, 34 Anthony Henday, had reached only as far as the 35 foothills of the Rockies in 1754, '55. Henday was as 36 your lordship may recall an employee of the Hudson's 37 Bay Company who set out and reached as far as what 38 some people regard -- some people say as the present 39 sight of Calgary. That reference too is also to Dr. 40 Farley's report. 41 The first British and European explorer to reach 42 British Columbia by land was Alexander MacKenzie in 43 1793, 30 years after the Treaty of Paris and the 44 Proclamation -- and the Proclamation of 1763. 45 No published maps or other documents prior to 1763 46 show sovereignty of any country over what is now the 47 mainland of British Columbia. 27379 Submissions by Mr. Goldie

1 An argument, and in our submission, that Britain 2 asserted a claim to British Columbia prior to 1763 is 3 entirely inconsistent with the instructions given to 4 Cook in 1776, and these are set out in abbreviated 5 form. 6 7 "...you are to leave those Islands..." 8 9 being what were then called the Society Islands: 10 11 "...in the beginning of February, or 12 sooner...and then proceed...to the coast of New 13 Albion..." 14 15 which I believe was Drake's name, before that part of 16 the North American continent that he touched on: 17 18 "...endeavouring to fall in with it in the 19 latitude of 45 degrees North... You 20 are... strictly enjoined not to touch upon any 21 part of the Spanish dominions on the Western 22 Continent of America... and be very careful not 23 to give any umbrage or offence to any of the 24 inhabitants or subjects of His Catholic 25 Majesty. And if, in your farther progress to 26 the Northward, as hereafter directed, you find 27 any subjects of any European Prince or State 28 upon any part of the coast you may think proper 29 to visit, you are not to disturb them, or give 30 them any just cause of offence, but, on the 31 contrary, to treat them with civility and 32 friendship. 33 ...You are also, with the consent of the 34 natives, to take possession, in the name of 35 the King of Great Britain, of convenient 36 situations in such countries as you may 37 discover, that have not already been 38 discovered or visited by any European power; 39 and to distribute among the inhabitants such 40 things as will remain as traces and testimonies 41 of your having been there; but if you find the 42 countries so discovered are uninhabited, you 43 are to take possession of them for His Majesty, 44 by setting up proper marks and inscriptions, as 45 first discoverers and possessors." 46 47 So it is clear that Cook, an officer in the Royal 27380 Submissions by Mr. Goldie

1 Navy, was not on any voyage of warfare, he was on a 2 voyage of discovery. 3 Now, in summary, my lord, it is my submission that 4 that is no support for the proposition of French 5 claims west of the Rockies that were ceded to Britain 6 in 1763, and there is no evidence of British claims in 7 what is now British Columbia in 1763. And in support 8 of that, complimentary to that, is the next part which 9 is entitled British Columbia was Terra Incognita in 10 1763. 11 One aspect of the historical context of the Royal 12 Proclamation which makes its applicability to British 13 Columbia unlikely is the status of British Columbia as 14 terra incognita in the Europe of 1763. The British, 15 even assuming awareness of all other European and 16 Russian exploration in the area, did not know whether 17 British Columbia was land or sea. 18 Because exploration from Europe proceeded from 19 west to North America and east around Africa, the 20 exploration and discovery of the Pacific Northwest 21 occurred relatively late in the history of European 22 affairs. And that reference, my lord, is to the 23 evidence of Dr. Farley. I won't read it. 24 Paragraph 50, up to the date of the Proclamation 25 there had been no exploration by sea of the northwest 26 coast of America north of San Francisco and south of 27 the most southerly point reached by Bering and others 28 sailing under the Russian flag. 29 In 1763, there were no published maps that 30 purported to show the Pacific Coast of North America 31 based on accurate and actual observations of it north 32 of Cape Blanco and south of present day Anchorage, 33 Alaska. Cape Blanco is present day United States of 34 course. Up to the date of the Proclamation there had 35 been no exploration by land by Europeans of what is 36 now the mainland of British Columbia. After 1763 37 there was extensive definitive sighting of the mapping 38 of the mainland coast. And that reference, my lord, 39 is again to Dr. Farley's report, what is paragraphs 10 40 and 11, and that is the paragraph that I have read, is 41 a paraphrase of those paragraphs of the report. And 42 then on page 20 I get into exploration in the 18th 43 century, first From Seaward. By 1602 -- by that 44 period 1602 - '03 Spain had reached -- 45 THE COURT: I am sorry, Mr. Goldie, can you tell me what exhibit 46 number is Dr. -- I can never remember his name, tab 47 51? 27381 Submissions by Mr. Goldie

1 MR. GOLDIE : Oh, Dr. Farley. 2 THE COURT: Yes. 3 MR. GOLDIE : It is 114, my lord. 4 THE COURT: Thank you. 5 MR. GOLDIE : And much of what is in the argument here is based 6 upon his evidence and his report. 7 THE COURT: Yes. 8 MR. GOLDIE : So Spain had reached the vicinity of Cape Blanco 9 about 43 degrees north by 1602, 1603. Spain did not 10 resume exploration beyond that point until the last 11 quarter of the 18th century. The first Europeans to 12 sight what is now the British Columbia coast were 13 member] s of the Perez Expedition of 1774. And Dr. 14 Farley in his report enlarges upon that. 15 Perez did not take possession in the name of 16 Spain; in fact, he did not put ashore in any part of 17 what is now British Columbia. 18 MR. RUSH: Excuse me, my lord, I'd be grateful to my friend if 19 he could explain what he means by taking possession 20 of. He made reference yesterday to Johnson v. 21 M'Intos] h and said that in that case the Chief Justice 22 referred to discovery as a basis for sovereignty and 23 indicated the title had to be consummated by 24 possession and I think I would be aided by my friend's 25 explanation of what he means by possession. 26 MR. GOLDIE : Well, I think it's not my explanation that is of 27 any particular importance, my lord. I think it is 28 clear what is meant as settlement. But the documents 29 of the day speak for themselves in that regard. 30 THE COURT: Well, there could be a declaration of possession as 31 Coo1 k was instructed to do without settlement. 32 MR. GOLDIE : Yes. There is always the gap between the reach and 33 the grasp and the concept that Chief Justice Marshall 34 was talking about when he said consummated by 35 possession meant people on the ground. 36 THE COURT: Are you able to say whether Perez made a declaration 37 of possession? 38 MR. GOLDIE : I do not believe so. I can see what Dr. Farley 39 said about that. He simply says as for the Spanish -- 40 I am looking under tab 53: 41 42 "...we know that Perez did not take possession 43 in the name of Spain; in fact he did not put 44 ashore in any part of what is now British 45 Columbia. Hezeta..." 46 47 This was another Spanish explorer: 27382 Submissions by Mr. Goldie

1 2 "...landed in the vicinity of the Moclips River, 3 north of the present Grays Harbour, Washington. 4 There he took possession, naming the area Rada 5 de Bucareli. His second-in-command, Bodega, 6 after becoming separated from the senior 7 officer proceeded north to a small port which 8 he named 'Remedios' at the northern end of 9 Kruzof Island and took possession there. At 10 Bucareli Bay, off the west coast of Prince of 11 Wales Island Bodega's pilot was sent ashore to 12 take possession." 13 14 So there were acts of possession which were understood 15 by all concerned, plaques were left and things of that 16 order. 17 THE COURT: Prince of Wales Island is off Anchorage, is it not, 18 or is that the one that -- Prince of Wales is the one 19 that's off Prince Rupert? 20 MR. GOLDIE: I don't want to speculate on that, my lord. I will 21 check that. 22 THE COURT: All right. 23 MR. GOLDIE: A Russian expedition in the area was led by Bering 24 in 1741. However, there is no direct evidence that 25 the continental coast south of the Alaska Peninsula 26 was visited by Russians between the time of Bering's 27 voyage and the arrival of Perez on the coast, which 28 was 1774. And Cook's actual arrival here was 1778. 29 While these things were going on, there was 30 movement west by land and exploration of the northwest 31 coast of North America which as we have noted occurred 32 first from seaward. By the time the initial contact 33 had been made from landward the delineation of the 34 coast line was already established. That was going to 35 the work of Vancouver amongst others. 36 The exploration of northwest America from landward 37 was driven by the fur trade. Henry Kelsey reached the 38 plains of what is now Manitoba in 1690. Members of 39 the La Verendrye family in the period 1741 - 43 may 40 have reached as far as the foothills of the Rockies. 41 In 1754 to 1755, the Englishman Henday travelled 42 perhaps as far as the present day city of Calgary. 43 This was the first European penetration of the broad 44 expanse of country lying between the north and south 45 Saskatchewan Rivers. And that too is Dr. Farley's 46 report. 47 As noted above, the first known entry in British 27383 Submissions by Mr. Goldie

1 Columbia from landward by European was the journey of 2 MacKenzie in 1793, 30 years after the Treaty of Paris 3 and the Royal Proclamation. 4 There is no direct evidence to suggest that Asian 5 exploration of what is now the British Columbia coast 6 was in any more advanced state than that of the 7 Europeans. And that reference is to Dr. Farley's 8 evidence in the stand. 9 And then there is an extensive examination of the 10 maps -- the maps of the day. The lack of European 11 knowledge about North America in the 18th century is 12 demonstrated by the maps of the time. Where no real 13 geographical knowledge was available, theoretical 14 conjecture was often resorted to. 15 For example, the location of the mythical Quivira 16 on maps was moved about by cartographers to fill in 17 areas of ignorance. And Dr. Farley noted that on a 18 number of instances. Under tab 61, he was -- his 19 attention was drawn to the item Quivira on a map which 20 had been examined and he was asked the question at 21 line 16: 22 23 "Q Does this indicate to you any additional 24 knowledge on the part of the cartographer? 25 A Just the opposite, sir. That name Quivira, 26 which stems originally from the Coronado 27 explorations expeditions in south-west -- what 28 is now the American south-west, that name came 29 to be applied rather like the land of Prester 30 John (ph) that appeared on European maps. It 31 got moved around and applied in areas of 32 ignorance simply to fill the gaps you might 33 say, the otherwise vacant spaces on the map." 34 35 I believe Prester John is the mythical African 36 kingdom that fascinated Europeans for many years. 37 Paragraph 62. The mapping of northwest America on 38 a factual basis did not occur until the publication in 39 1784 of the account of Cook's third voyage. And that 40 reference is to Dr. Farley's report. 41 The absence of firsthand information and the 42 resulting speculation about the area before 1784 is 43 evident from an examination of 17th and 18th century 44 maps, firstly the French maps. 45 Despite the ascendancy of French cartography in 46 the first half of the 18th century French maps are 47 replete with misconceptions about northwest America 27384 Submissions by Mr. Goldie

1 based on spurious accounts of alleged voyages. 2 Commonly the maps show the American coast indented by 3 a large "Sea of the West" and contain references to 4 the apocryphal Mozeemleks. And Dr. Farley notes that. 5 A striking example of the ignorance about 6 northwest America at the beginning of the 18th century 7 is Sanson's map of 1700. Now, that map, my lord -- my 8 lord, the location of that map is in Dr. Farley's 9 folio, Exhibit 1149, and map 17. 10 THE COURT: Are you going to be looking at a lot of these maps, 11 Mr. Goldie? 12 MR. GOLDIE: I am -- not extensively, my lord. 13 THE COURT: I think, if you wouldn't mind, maybe I will come 14 down to some convenient place rather than -- I haven't 15 got room for them up here. 16 MR. GOLDIE: Well, is it convenient for your lordship to have 17 the folio Exhibit — 18 THE COURT: All right. 19 MR. GOLDIE: — 1149 if it is available? 20 THE COURT: We will clear this away. Get that please. 21 MR. GOLDIE: The one that I am referring to, my lord, is 22 1149-17, it's map number 17. 2 3 THE COURT: Yes. 24 MR. GOLDIE: And the point that is being made is that if your 25 lordship simply looks over these two representations 26 of the globe, the European side, the African side is 27 not all that unrelated to what we consider to be 28 reality today. South America has what appears to be a 29 recognizable shape, but the northwest coast of North 30 America is simply completely at odds with what is 31 reality, and the most striking feature is the large 32 indentation which is identified Mer de la West or the 33 Western Sea. The other striking feature is what 34 purports to be a sea passage from the Arctic to the 35 Mer de la West, and in my submission that's a clear 36 example of what Dr. Farley was talking about as 37 conjecture when it comes to the delineation of 38 physical features. 39 The Vaugondy map which is number 18 is 1750 and in 40 my submission shows the continued state of geographic 41 ignorance about northwest America some 50 years later. 42 West of Hudson's Bay and in very bold letters are the 43 words "Terre Inconnues". The placement of Terre 44 Inconnues extends all the way from the 45th parallel 45 to the Arctic Circle. Even in the western area for 46 which some detail is shown the old myth such as 47 Teguaio and the territory of the Mozeemleks appear. 27385 Submissions by Mr. Goldie

1 Teguaio is below Quivira. 2 Vaugondy, as Dr. Farley identified for us, was a 3 member of the Royal Academy in Paris. The reference 4 to Terre Inconnues is a reflection of the scientific 5 approach of the best French cartographers toward their 6 mapping; what was known was portrayed, and areas of 7 ignorance were left blank. 8 De L'Isle's map of 1752 is number 19, and it too 9 demonstrates a great deal of confusion relative to 10 northwest America. It represents or it depicts the 11 spurious accounts of de Fonte and La Hontan. The 12 cartographers' attempts to incorporate these accounts 13 with factual information from the Bering expedition of 14 1741 is also seen, and it takes some time to try and 15 even make sense out of what is shown here. He shows 16 voyages across the Pacific but then we continue to 17 have the huge Mer de la West -- we continue to have 18 what looks like a canal leading up to the Arctic, up 19 to the north and in short the depiction of the 20 northwest coast of North America has even less 21 relationship to reality than Sanson. 22 THE COURT: I don't see the Sea of the West on this one. 23 MR. GOLDIE: If your lordship would look to the right-hand side 24 of the map at about -- the lower half there is -- 25 California is right down in the bottom. 2 6 THE COURT: Yes. 27 MR. GOLDIE: And then right above California is a dark 28 indentation that's marked Mer de la West discovered by 29 J. de Fuca in 1592. 30 THE COURT: I am sorry, I just don't see it. We are looking 31 at — 32 MR. GOLDIE: Number 19. 33 THE COURT: Oh, that will explain it. Oh, yes. That's a lot 34 easier to see. 35 MR. GOLDIE: That's De L'Isle, and then Vaugondy is number 20 36 but my next reference is to Muller, 20, that's 37 correct, yes, thank you. 38 Paragraph 69 of my argument. In 1754 Muller 39 prepared a map containing the results of Bering's 40 second expedition. The entire coast from Cape Blanco 41 to Mount St. Elias is conjectural. Northwest America 42 is shown largely as blank. And the references there 43 are to Dr. Farley's report, to his evidence, and to 44 the map itself. And your lordship can see that from 45 the map that there is -- that the cartographer was in 46 considerable doubt between the two geographic features 47 that I referred to. That's 1754. 27386 Submissions by Mr. Goldie

1 And then we come to Bellin, another noted French 2 cartographer in the mid 18th century. His map of 1755 3 contains the words "On n'a aucune Connaissance de ces" 4 and the word "parties" should be added to the text. 5 THE COURT: What map number is that? 6 MR. GOLDIE: That's 14, my lord, if I can go back to that. 7 That -- underneath the insert or the cartouche headed 8 Remarks if you go directly below that, my lord, you 9 see the words "sont des Terres ou la Mer", in other 10 words that he didn't know whether it was land or sea, 11 and the words with respect to northeast, "ces parties 12 sont entierement inconnues", and then we have again an 13 apparent indication of the inland sea La Mer de la 14 West, those words occurring east of what appears to be 15 the coast of the northwest coast of the continent 16 which is not even completed by Bellin in above -- 17 about the 48th parallel. It was the view of Dr. 18 Farley that this map to him showed that Bellin was 19 skeptical of the myths of de Fuca and de Fonte which 20 figured largely in the idea of a huge western sea and 21 after a connection to the -- between the Arctic and 22 the Pacific. And a general contrast that I ask your 23 lordship to note is the degree of detail which -- 24 using Bellin as an example, the degree of detail that 25 one finds in the east. The cartographer had a good 26 deal of information from which to work in detail 27 regarding the east coast of North America and the 28 south extending over through what is now New Mexico, 29 over to California. 30 Now I turn to the British maps and I say that a 31 review of 18th century English maps demonstrates that 32 the British have no better idea than the French of the 33 geography of the northwest America. 34 Bowen's smaller scale map of 1763, that's number 35 11. Does your lordship have that? 3 6 THE COURT: Yes. 37 MR. GOLDIE: Again, the overall impression is that the map-maker 38 had a pretty good sense of the east coast of North 39 America extending down through the Gulf of Mexico to 40 Central America and South America. He had a pretty 41 good idea of the island in the West Indies and pretty 42 fair ideas of the west so far as the Spanish 43 settlements up to the point of the Spanish settlements 44 in New Mexico and what is now California. But beyond 45 that, he was -- he had either nothing to show or he 46 had -- he showed the Mozeemlek country and he had 47 substantial parts unknown and then a very large gap in 27387 Submissions by Mr. Goldie

1 which he didn't place any information at all. The 2 point that I ask your lordship to take into 3 consideration is that without going into minute 4 details all of these maps simply show information on 5 the east, lack of information on the northwest. 6 MR. RUSH: Well, I take issue with that, my lord. My friend's 7 use of the word "all of these maps" I think for that 8 purpose my friend would have to take you to all of 9 them to illustrate that point. 10 THE COURT: Well, that's submission surely. It may be thought 11 by opposing counsel to be overly general or 12 exaggerated or inaccurate but it seems to me that it's 13 a statement counsel is entitled to make in argument. 14 I am aware of a difference of viewpoint from the 15 course of the trial between counsel as to what these 16 maps show, but I take it Mr. Goldie's submission is 17 that these maps all show a lack of understanding about 18 the northwest coast. 19 MR. RUSH: My lord, I don't mean to interrupt my friend for the 20 purposes of making that argument. I would have 21 thought it was common ground that the statement that 22 all of these maps, that is the only point that I rise 23 to, was departing from the common ground that each of 24 us has different views of the existing cartography and 25 what it shows. 26 MR. GOLDIE: I preceded that remark, my lord, by saying, putting 27 to one side the minutia of the details, all one has to 28 do is to stand back and look at these maps and one 29 sees on the east detail, one sees in the northwest 30 lack of detail, and I say that applies to all of the 31 maps . 32 Jeffrey's map of 1768, which is number 4 I think 33 in Dr. Farley's submission or report, Jeffrey was a 34 person of significance because he was Geographer to 35 the King and was given access to at least some of the 36 military and civilian survey information generated in 37 the American colonies. The map incorporates 38 completely spurious information about northwestern 39 America. 40 THE COURT But this is obviously a hand-drawn map when compared 41 with Bowen's map of five years earlier, is it not? 42 MR. GOLDIE What the emphasis is, I am not aware of how that -- 43 those heavy black lines and black strokes occurred. I 44 am assuming that they were put on there either later 45 or even by the map-maker himself for purposes of 46 emphasis but some of the material is as -- is placed 47 on the page using apparently the same kind of 273? Submissions by Mr. Goldie

1 techniques as Bowen. 2 THE COURT: It's hard to give much credence to this map in view 3 of the details shown in Bowen's map. 4 MR. GOLDIE : I agree, but I repeat that if -- and this map 5 doesn'1 t go very far east so -- 6 THE COURT: Is my note correct that this map is dated in 1768? 7 MR. GOLDIE : Yes, that's the -- 8 THE COURT: Of course it purports to be a map of the discoveries 9 of de Fonte. 10 MR. GOLDIE : Yes. He is trying to focus on the northwest and 11 all -- it is apparent that that focus leads him into 12 fantasy, if not imagination. 13 THE COURT: All right. 14 MR. RUSH: Not just de Fonte's discoveries, my lord, but several 15 others as well. It is apparent from the legend. 16 MR. GOLDIE : Well, he traces the Russians or attempts to do so. 17 THE COURT: Yes. 18 MR. GOLDIE : The map was coloured. 19 THE COURT: But the legend says a general map or discoveries of 20 Admiral de Fonte exhibited a great probability out of 21 the northwest passage. 22 MR. RUSH: And then the explanation goes on to de Fonte's, 23 Russians, Juan de Fuca and Japanese. 24 THE COURT: Yes, I see that, thank you. 25 MR. GOLDIE : It is clear that the British were as interested in 26 trying to find the northwest passage as the French 27 were getting to the south seas and anything that came 28 along which related to that was a matter of some 29 significance as far as the British map-makers are 30 concerned. But the submission I am making, and it's 31 one that I say is apparent, is that a reputable 32 map-make] r seeking to apply the information he had 33 demonstratei s that it had no relationship to reality 34 whereas on the east coast by this time the maps were 35 indicating information which was -- they were able to 36 transcribe that had some relationship to reality. 37 My lord, the transcript -- reference to transcript 38 269 should be to transcript 268 I believe. 39 THE COURT: Where is that? 40 MR. GOLDIE : Paragraph 74. 41 THE COURT: Two-six -- 42 MR. GOLDIE : Eight. 43 THE COURT: Thank you. 44 MR. GOLDIE : Then we come now to a chart which does depict some 45 fairly accurate information about the northwest coast 46 and that's Captain Cook's chart which is number 21. 47 Whati it depicts as your lordship would imagine is 27389 Submissions by Mr. Goldie

1 the -- are the bearings that were taken from shipboard 2 as accurately as the instruments of the day allowed. 3 They don't really tell you anything because Cook 4 didn't go ashore to any great extent of the coast 5 beyond the immediate coast line, and the most obvious 6 thing which is shown there is the lack of knowledge 7 which resulted in him not being able to distinguish 8 Vancouver Island as an island. The chart portrays the 9 lands immediately adjacent to Nootka Sound and in 10 other areas which are now part of the United States 11 but there is a big gap in there that he didn't have 12 any information for and there is nothing shown on the 13 map. 14 The Arrowsmith map, number 22, is one that -- 15 Arrowsmith as your lordship has heard was an important 16 cartographer and produced what are generally regarded 17 as some of the best commercial maps of northwest 18 America available in Europe for the period 1790 to 19 1850. His map of 1790 provides a summary of what was 20 known about the coast of British Columbia up to 1789. 21 West of the Rocky Mountains the old myths persist, and 22 Vancouver Island is shown as part of the Mainland. 23 And the reference to old myths, my lord, is the 24 inscription on the maps of Teguaio, Quivira and 25 Mozeemlek. The outline of the coast is accurate where 26 bearings have been taken by the seagoing visitors 27 and -- but again nothing has been found which allowed 28 him directly to realize that there was a large island, 29 Vancouver Island. They have got Queen Charlotte 30 Island but not Vancouver Island. 31 In paragraph 77, I say in summary it is evident 32 that even the coast line of British Columbia was 33 little known in 1763. The maps of the day either 34 leave northwest America blank, or fill the area with 35 speculative geography taken from spurious accounts of 36 voyages. It was not known by Britain whether British 37 Columbia was land or sea. In that context, it is 38 improbable that the framers of the Royal Proclamation 39 intend its provisions to apply to British Columbia. 40 And of course it is equally improbable to suggest in 41 that circumstance that there were Indian peoples there 42 that were considered to be subject to the Royal 43 Proclamation or lived under the protection of the 44 Crown. I will come to this later. 45 My lord, turning to page 29, this subsection deals 46 with the evidence of the circumstances at the time and 47 it's headed The Framers of the Royal Proclamation did 27390 Submissions by Mr. Goldie

1 not Support Expansion to the West. The submission is 2 that if the framers of the Royal Proclamation are to 3 be taken as intending that document to apply to future 4 acquisitions in the west it must be established that 5 they anticipated western expansion. In fact, the 6 opposite is true. The men responsible for advising 7 the King and drafting the Proclamation were 8 mercantilists who opposed settlement beyond those 9 parts of the Colonies amenable to the import of the 10 British manufacturers. And put the maps away for a 11 minute and turn back to the yellow binder under tab 12 V/4-78. The definition of mercantilism is given by 13 Dr. Greenwood at page 20420 of volume 275, line 33: 14 15 "Q What is mercantilism? 16 A Well, it was the prevailing economic theory in 17 the 18th century which contended that the state 18 should regulate the economy, often in quite a 19 detailed way, in order to increase the wealth 20 of the state. It's obviously distinguishable 21 from laissez-faire, the theory of Adam Smith, 22 who publishes -- or published, however, only in 23 1776, as the Wealth of Nations. So that would 24 be a general description of mercantilism." 25 26 And then he went on to the next page to link the 27 question of mercantilism with expansion, line 17: 28 29 "A Well, expansionism is simply a word that I used 30 to get at attitudes. Dealing with whether 31 settlements should proceed west of the 32 Appalachian range or not. 33 Q ALL right. Perhaps you might link those two 34 things -- or discuss those two? 35 A Yes. Well, as I said, mercantilism had this 36 principle of colonial manufacturing should be 37 discouraged. And it was the opinion of many 38 people -- pamphleteers in the early 1760s, 39 officials who worked and the policies that were 40 later found in the Royal Proclamation dealing 41 with Indians -- there was a considerable body 42 of opinion that expansion should not proceed 43 westward, because if it did, the people who 44 went into the western parts of North America 45 would not be able to bring their bulky goods, 46 grain, cattle, timber, et cetera, to the 47 Atlantic for export, and they would not import 27391 Submissions by Mr. Goldie

1 British manufactured goods, and they would 2 also, themselves, take up manufacturing. 3 Q Now, the -- 4 A To the detriment to the mother country." 5 6 And tracing that through I start in paragraph 79. 7 The Board of Trade, guided by the Secretary of State, 8 was responsible for developing the policies to be 9 applied to the new acquisitions in North America. And 10 the reference to that, my lord, is a letter from the 11 Earl of Egremont to the Board of Trade of May 5, 1763, 12 and he starts off by saying: 13 14 "His Majesty having brought the Negotiation with 15 France and Spain to a happy conclusion, and 16 having given the necessary Orders for carrying 17 into Execution several Stipulations of the late 18 Treaty, is now pleased to fix His Royal 19 Attention upon the next important Object of 20 securing to His Subjects, and extending the 21 Enjoyment of the Advantages, which Peace has 22 procured." 23 24 Now, that's started the process, that started a 25 series of processes which led in its major part the 26 one that concerns us to the Royal Proclamation. Next 27 page 94, about a quarter of the way down the page 28 beginning with the paragraph: "The means of arriving 29 at these desirable Ends". 3 0 THE COURT: Yes. 31 MR. GOLDIE: 32 33 "...will perhaps be most distinctly pointed out, 34 by considering, separately, the several 35 Cessions stipulated he the Articles of Peace 36 and examining the different circumstances by 37 which each Cession becomes more or less 38 susceptible of the great Advantages of Commerce 39 and Security above mentioned. 40 North America naturally offers itself as the 41 principal Object of Your Lordships 42 Consideration upon this occasion, with regard 43 to which, I shall first obey His Majesty's 44 Commands in proposing to Your Lordships some 45 general Questions, before I proceed to desire 46 You will furnish that information, which His 47 Majesty expects from Your Lordships, with 27392 Submissions by Mr. Goldie

1 regard to the Northern and Southern Parts of 2 this Continent considered separately." 3 4 And then the questions: 5 6 "What new Governments should be established & 7 what form should be adopted for each new 8 Governments and where the Capital or Residence, 9 of each Governor should be fixed? 10 11 What Military Establishment will be sufficient? 12 What new Forts should be erected? 13 14 In what mode least Burthensome and most 15 palatable to the Colonies can they contribute 16 towards the Support of the Additional Expense?" 17 18 And then the next: 19 20 "What new Governments shall be established ... 21 what Privileges are reserved to His Majesty's 22 New Subjects by the terms of their 23 Capitulations; I therefore send Your Lordships 24 herewith the Capitulation of Quebec and 25 Montreal." 26 27 The departure from the present forms of Government 28 and so on. And then over the page, I should start at 29 the bottom of the preceding page: 30 31 "Tho' in order to succeed effectually in this 32 Point, it may become necessary to erect some 33 Forts in the Indian Country, with their 34 consent, yet His Majesty's Justice & Moderation 35 inclines Him to adopt the more eligible Method 36 of conciliating the Minds of the Indians by the 37 Mildness of His Government, by protecting their 38 Persons and Property and securing to them all 39 Possessions, Rights and Privileges they have 40 hitherto enjoyed and are entitled to..." 41 42 Et cetera. And then he goes on to direct them to take 43 into further objects of consideration and he becomes 44 quite specific about particular parts of the country. 45 Now, those were the general so to speak marching 46 orders given to the Board of Trade. And then in the 47 letter sent by the Secretary of State requesting their 27393 Submissions by Mr. Goldie

1 report, he attached two enclosures embodying policy 2 proposals relevant to expansion. One was entitled 3 "Plan of Forts and Garrisons" and a document entitled 4 "Hints", and Dr. Greenwood identified those in the 5 evidence that is noted under tab 80. He said at 6 page -- I am at the first transcript reference under 7 tab 80 transcript volume 275 line 22: 8 9 "Q -- on page 96 of the document under tab 30, you 10 find a reference to enclosures?" 11 12 Now, that is Egremont's letter that is being referred 13 to. 14 15 "A Yes. 16 Q Do you see that? 17 A Yes. It's written 'enclosure', but I presume 18 it should be 'enclosures'. 19 Q Does that set out the total number of 20 enclosures that accompany this letter? 21 A No, it does not." 22 23 And then he talks about the total number of 24 enclosures and he describes them. And then on page -- 25 the next page, line 19, after being referred to a 26 particular document: 27 2 8 "Q And you commenced to give the -- to give the 29 title. It's headed 'Distribution of Troops, 30 1763, Plan of Forts & Garrisons proposed for 31 the Security of North America, and the 32 Establishment of Commerce with the Indians'? 33 A Yes. 34 Q And you say there is no known author of that? 35 A No. Scholars have speculated on the author. 36 Q Is there any consensus amongst scholars? 37 A No, there is not. There is consensus that it's 38 a very important military policy document, but 39 no consensus on the author." 40 41 And then he identifies on the next page the third 42 important policy document is Hints. And then I am 43 going to come back to that in a minute. 44 Returning to the Plan of Forts and Garrisons, 45 paragraph 81. The "Plan of Forts and Garrisons" was a 46 very important policy document, setting out five 47 objects of the military in North America. The objects 27394 Submissions by Mr. Goldie

1 do not include the acquisition of more territory to 2 accommodate western expansion. And under tab 81 the 3 last document after the transcript references is 4 Exhibit 1159-32a, and the document starts under the 5 heading Distribution of Troops, 1763. And then after 6 a particular reference to individual units on the page 7 7, the author states: 8 9 "In forming the foregoing Project for a Military 10 Establishment in North America..." 11 12 And he sets out there are five objects in mind. And 13 the -- not one of them is what might be termed 14 offensive, that is to say the acquisition of more 15 territory to accommodate western expansion. Then 16 turning to the document entitled Hints. The author is 17 identified by Dr. Greenwood as Mr. Henry Ellis, former 18 governor of Georgia and a very influencial advisor of 19 Egremont himself. 20 And in paragraph 83 I say it was prepared sometime 21 between November 1762 and March 24, 1763. In Hints, 22 Ellis proposed the establishment of a western boundary 23 between the existing colonies and the Indian country 24 and expressed strong opposition to the expansion of 25 settlement into North America. Now, this is one of 26 the documents that Egremont sent along to the Board of 27 Trade, and the text of it is found under tab 83, my 28 lord. The particular reference is found on page 371, 29 the second to last paragraph on that page in which 30 Ellis states: 31 32 "It might also be necessary to fix upon some 33 Line for a Western Boundary to our ancient 34 provinces, beyond which our People should not 35 at present be permitted to settle, hence as 36 their Numbers increased, they would emigrate to 37 Nova Scotia, or to the provinces on the 38 Southern Frontier, where he they would be 39 useful to their Mother Country, instead of 40 planting themselves in the Heart of America, 41 out of the reach of Government, and where, from 42 the great Difficulty of procuring European 43 Commodities, they would be compelled to 44 commence Manufacturers to the infinite 45 prejudice of Britain." 46 47 As your lordship will see, the suggestions 27395 Submissions by Mr. Goldie

1 embodied in Hints were adopted generally in the 2 Proclamation, including the boundary line between 3 existing British settlement and the Indian country. 4 And that reference there is to Dr. Greenwood's 5 evidence. 6 Paragraph 85. Williams Knox was another 7 influencial advisor on the policies embodied in the 8 Royal Proclamation. He recommended confinement of 9 western settlement based on mercantilist arguments 10 which he developed in three memoranda sent to First 11 Minister Bute, and I won't read the transcript 12 references. The last document under tab 85 is the 13 document in question, and the references which I won't 14 read, my lord, are on page 114, two-thirds of the way 15 down the page beginning with the words: 16 17 "Now in order to make it the interest of the 18 Colinists, to employ themselves in raising such 19 bulky Commodities..." 20 21 And that continues right on down to the end of the 22 second paragraph on page 115 where he concludes with 23 the words: 24 25 "And the Colonys Dependence on Great Britain 26 will certainly be much easier continued, if 27 their Settlements be approachable by our Ships 28 or Craft, than if they can only be come at by 29 tedious and expensive Land Expeditions." 30 31 MR. RUSH: What's the date of this document please? 32 MR. GOLDIE: That was — the date of the document itself I will 33 he have to obtain from my friend. Well, I will come 34 back to that. 35 Paragraph 86. I say Bute was one of the King's 36 principle advisors. He agreed with the 37 representations made by Knox in his memoranda. And 38 that appears from those two references. 39 Paragraph 87. There is further evidence that 40 Knox's strong views opposing explanation were taken 41 into account in the policy-making process leading up 42 to the Royal Proclamation. Lord Shelburne, President 43 of the Board of Trade, considered the original three 44 Knox memoranda along with a fourth sent to Shelburne 45 by Knox in May or June of 1763. And that appears from 46 the secondary reference which was the Life of Knox. 47 And then paragraph 88. The anti-expansionist 27396 Submissions by Mr. Goldie

1 policies contained in Ellis' Hints and Knox's 2 memoranda were adopted by the Board in its report to 3 the King. In May or early June of 1763, in response 4 to Egremont's request to the Board of May 5 for advice 5 on the new acquisition John Pownall, Secretary to the 6 Board, prepared the first draft of their report. That 7 document was referred to in evidence as the Sketch. 8 And the transcript references lead up to that and then 9 the document itself is under tab 89. 10 Now, this is regarded as probably the most direct 11 precursor of the important parts of the Proclamation 12 and I say in tab 89 -- paragraph 89: In the sketch, 13 Pownall accepted the suggestion in Hints of a western 14 boundary at the back of the older colonies, on the 15 basis that this concept served the twin purposes of 16 protecting British mercantile interests and pacifying 17 the Indian frontier. If your lordship would turn to 18 the second page of the sketch at 259 in the upper 19 right-hand corner, and it's the first complete 20 paragraph and it is dealing with the question of 21 Egremont's letter: 22 23 "What new government should be established in 24 the countries ceded to your Majesty in 25 America..." 26 27 And Pownall says, and I quote: 28 29 "The first consideration necessary to be 30 attended to in the formation and division of 31 the new acquisitions upon the continent of 32 America into separate governments, is, the true 33 interest and policy of this kingdom, in 34 reference to its colonies, either as that 35 interest and policy arises from their nature 36 and situation in general, or relatively to our 37 commerce and political connections with the 38 various nations and tribes of Indians now under 39 your Majesty's dominion and protection; both 40 which cases do, in the present object, by a 41 happy coincidence of circumstances, meet 42 together in the same point, and form an exact 43 union of system for as in the one case the 44 permitting the colonies, for the present at 45 least, to extend their settlements beyond the 46 heads and sources of those rivers and waters 47 which do directly discharge themselves into the 27397 Submissions by Mr. Goldie

1 Atlantick Ocean or Gulph of Mexico, would 2 probably induce a necessity for such remote 3 settlements (out of the reach of navigation) to 4 ingage in the production and manufacture of 5 those articles of necessary consumption which 6 they ought, upon every principle of true 7 policy, to take from the mother country, and 8 would also give rise to a separation of 9 interests and connections, in other points, not 10 consistent with that policy, so in the other 11 case, such settlements would not be made or 12 colonizing allowed without a manifest breach of 13 our general engagements with the Indians which 14 would naturally excite in them a jealousy and 15 disgust which that might prove of fatal 16 consequence." 17 18 So that calls for Pownall's description of two 19 things constituting a happy coincidence, placating the 20 Indians and keeping the colonies in a state that 21 coincided with what he thought was in the true 22 interest of the Kingdom. And of course the submission 23 is that that coincidence completely negates the 24 proposition that the Royal Proclamation was intended 25 to stretch across the continent to British Columbia. 26 Now, in the final form of the Board's report sent 27 to the King in June, 1763, Pownall added a long 28 section detailing the advantages of the cessions as 29 requested by Egremont. No mention was made of 30 expansion of settlement west into North America. To 31 the contrary, the Board advocated channelling any 32 increase in the population north and south along the 33 seaboard. Didn't succeed in populating Nova Scotia, 34 but there are references there to Dr. Greenwood and 35 to -- and the final -- now, this is the report of June 36 8, 1763 and it's the last document under tab 90, and 37 it's headed Document 11 and there is a short covering 38 letter which your lordship will see at the top and 39 then the main report is in the form of an enclosure, 40 and my reference, my lord, is over on the next page 41 and it's the last complete paragraph on the left-hand 42 column beginning with the words "another advantage". 43 44 "Another advantage attending the late Treaty is 45 the secure settling of the whole Coast of North 46 America, as its produce may invite, or 47 Convenience for Settlement may offer, from the 2739? Submissions by Mr. Goldie

1 mouth of the Mississippi to the boundaries of 2 the Hudson's Bay settlements." 3 4 I just pause there to note that in the mind of the 5 Board the whole Coast of North America for them was 6 the eastern seaboard. 7 8 "...with the whole Variety of Produce which is 9 capable of being raised in that immense Tract 10 of Sea Coast, either by the Industry of 11 Emigrants from Europe, or from the Overflowing 12 of Your Majesty's ancient Colonies - previous 13 to the late War. Nothing is more certain than 14 that many of Your Majesty's ancient colonies 15 appeared to be overstocked with Innhabitants, 16 occasioned partly from an extremely increasing 17 Population in some of those colonies, whose 18 Boundaries had become too narrow for their 19 Numbers, but chiefly by the Monopoly of Lands 20 in the Hands of Land Jobbers from the 21 extravagant injudicious Grants by some of Your 22 Majesty's Governors, whereby a great many of 23 Your Majesty's industrious Subjects were either 24 forced into Manufacturers being excluded from 25 planting by the high Price of Land (a Situation 26 which they otherwise would have preferred) or 27 forced to emigrate to the other Side of the 28 Mountains, where they were exposed to the 29 irruptions of the Indians as well as the 30 Hostilities of the French. And though, on the 31 one Hand, Your Majesty's Province of Nova 32 Scotia according to its true and just 33 Boundaries, and on the other, that of Georgia, 34 would have contained many more of your 35 Majesty's Subjects..." 36 37 And so on. Now, the whole point in my submission is 38 that one of the advantages which was being pointed out 39 there is that Nova Scotia and Georgia would be able to 40 take the surplus of the population and no mention was 41 made of expansion of settlement west into North 42 America. 43 And paragraph 91. Lord Shelburne, President of 44 the Board of Trade, supervised the drafting of the 45 June 8, 1763 report to the King. His ideas were 46 reflected in the section on advantages, which ran to 47 over 2,000 words. Shelburne's public statements on 27399 Submissions by Mr. Goldie

1 the recent acquisition in North America indicate he 2 was not an expansionist. The transcript references 3 are to Dr. Greenwood's introduction that Shelburne's 4 statements -- and then there is a typescript of 5 Shelburne's notes for a speech which is Exhibit 6 1164-235, and the particular reference that I make and 7 it's only the last page, my lord, what he does is to 8 sort of draw up almost a balance sheet of pluses and 9 minuses in the -- in relation to the trade which 10 becomes available, and he says in the last page 11 that -- and he is now talking about the Sugar 12 Colonies: 13 14 "...wherever sugar grows, Population decreases, 15 and that our Sugar Colonies weaken and 16 depopulate our Mother Country -- Sugar 17 requiring Moist & Heat are the causes of 18 Putrefaction. 19 On the contrary the Northern Colonies 20 increase Population and of course the 21 consumption of our Manufacturers, pay us for 22 them by their Trade with Foreigners and thereby 23 giving employment to millions of Inhabitants in 24 Great Britain." 25 26 The emphasize that I make, and it's throughout his 27 speech, is to the English manufacturers and the 28 colonial produce of food and raw materials. Then I 29 note British policy against expansion following the 30 Proclamation, and I say the anti-expansionist policy 31 embodied in the Royal Proclamation prevailed I say in 32 British circles long after 1763. Two months after the 33 Proclamation was issued, the King instructed Murray, 34 Governor of the newly formed colony of Quebec, to 35 refrain from assenting to laws which would encourage 36 westward expansion. As I have said a minute ago, the 37 whole rationale for manufacturing in North America 38 being thought to be distance from seaboard, and that's 39 under tab 92 paragraph 63, these are the royal 40 instructions to Murray. 41 42 "You are to use your best Endeavours in 43 improving the Trade of those Parts, by settling 44 such Orders and Regulations therein, with the 45 advice of Our said Council, as may be most 46 acceptable to the Generality of the 47 Inhabitants. And it is Our express Will and 27400 Submissions by Mr. Goldie

1 Pleasure, that you do not, upon any Pretence 2 whatever, upon pain of our highest Displeasure, 3 give your Assent to any Law or Laws for setting 4 up any Manufacturers and carrying on any 5 Trades, which are hurtful and prejudicial to 6 this Kingdom; and that You do use your utmost 7 Endeavours to discourage, discountenance and 8 restrain any Attempts which may be made to set 9 up such Manufacturers, or establish any such 10 Trades." 11 12 Now, these were standard instructions which were 13 given to the Governors of the Royal Colonies in the 14 years 1761 to 1763. And the evidence -- that's the 15 evidence of Dr. Greenwood under tab 93. 16 And then in 1766, the Secretary of War, Mr. 17 William Wildman, prepared a document setting out his 18 "thoughts upon North America". And in referring to 19 the policy in the Royal Proclamation of forbidding 20 British subjects to settle beyond the Appalachian 21 line, said of the policy that it was founded on the 22 protection of Britain's mercantile instruments. 23 THE COURT: Interests. 24 MR. GOLDIE: And under the tab there is the description of who 25 Mr. Wildman was and then the last document is taken 26 from Exhibit 1164-247, one of Dr. Greenwood's primary 27 references, and the reference that I have in mind, my 28 lord, is the last paragraph on the first page 29 continuing over to the end on the second page 30 beginning with the words: 31 32 "The policy of forbidding British Subjects to 33 settle beyond the heads of those rivers which 34 run into the Atlantic Ocean is founded on this 35 consideration that as the North American 36 Productions are weighty and of great bulk, 37 water carriage is extremely necessary to convey 38 them to the Seaside for Exportation and to 39 something to the inland country." 40 41 THE COURT: "Reconvey". 42 MR. GOLDIE: Beg your pardon, my lord? 43 THE COURT: "Reconvey ". 44 MR. GOLDIE: Yes: 45 46 "...to the inland country of the manufacturers 47 of Great Britain the convenience without which 27401 Submissions by Mr. Goldie

1 such settlements can have little or no 2 communication with the Mother Country or be of 3 much utility to it." 4 5 That's an echo of the -- what benefit can these 6 colonies place, what benefit can they confer upon the 7 Mother Country. 8 And then paragraph 95, I note: In April of 1772 9 the Board of Trade responded to Benjamin Frankin's 10 petition for a grant of land on the Ohio River to 11 found the colony of Vandalia. That colony was well 12 inland and the point that we note here is that the 13 Board of Trade's response revealed a strong and 14 continuing opposition to western expansion. And that 15 is evident in the material under tab 95, and I refer 16 to the last paragraph on the left-hand column in the 17 extract paragraph number 3, I won't read it, but it 18 records the Board's opposition to the whole scheme and 19 the reason for it being -- that they would lie outside 20 the reach of the trade and commerce of the Kingdom. 21 Now, that scheme was, as it so happens, was 22 approved by the Privy Council but it came to not by 23 reason of the beginning of the American Revolution. 24 Now I turn to the Treaty of Stanwix and the 25 Quebec Act, and we do so, my lord, because as we 26 understand it the Plaintiffs rely on the Treaty of 27 Stanwix and the Quebec Act of 1774 as examples of 28 British expansionist policy following the 29 Proclamation. 30 THE COURT: I think, Mr. Goldie, we'll take the morning 31 adjournment before you start that section. 32 MR. GOLDIE: Thank you, my lord. 33 THE REGISTRAR: Order in court. Court stands adjourned for a 34 short recess. 35 36 (PROCEEDINGS ADJOURNED AT 11:00 a.m.) 37 38 I hereby certify the foregoing to 39 be a true and accurate transcript 40 of the proceedings transcribed to 41 the best of my skill and ability. 42 43 44 45 Tannis DeFoe, 46 Official Reporter, 47 UNITED REPORTING SERVICE LTD. 27402 Submissions by Mr. Goldie

1 (PROCEEDINGS RECONVENED AT 11:15 A.M.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Goldie. 5 MR. GOLDIE: Thank you, my lord. 6 I was about to deal with the Treaty of Stanwix and 7 the Quebec Act on the basis that, as we understand it, 8 that the plaintiffs rely upon these two instruments as 9 examples of British expansionist policy following the 10 Proclamation. And in my submission, a review of the 11 historical record indicates that neither the treaty 12 nor the Act can be so construed. 13 Now, the treaty of -- by the Treaty of Stanwix in 14 1768, Sir William Johnson, Superintendent of Indian 15 Affairs in North America (Northern Department) 16 obtained a surrender from the Six Nations of a vast 17 tract of land in the Ohio country which stretched from 18 the Appalachian Mountains almost to the Mississippi 19 River. That treaty appears to have been negotiated by 20 Johnson without consulting British authorities and 21 without their approval. 22 That -- the Board of Trade was asked by the King 23 to comment upon the Treaty of Stanwix, and under tab 24 4-97 is found the first page of a communication from 25 the Board of Trade to the King after reviewing the 26 Treaty of Stanwix. The date of it is April the 25th, 27 1769. My lord, the first comment that I wish to draw 28 your lordship's attention to is in the first 29 paragraph, the second to last sentence beginning with 30 the semicolon and the words "As we humbly conceive." 31 And it reads: 32 33 And as we humbly conceive, that the Proceedings 34 of your Majesty's Superintendents in this 35 Business do, each, relate to Bodies of Indians, 36 having separate and distinct interests, and 37 that such proceedings have, as far as they have 38 hitherto gone, been carried on without any 39 inter-Communication or Concurrence. We humbly 40 crave leave to consider the Transactions. 41 42 And then they go into the -- what was done on each 43 case. But the excerpt in the -- in the yellow binder 44 doesn't carry with it the full implication of the 45 Board's unhappiness over what had been done by the 46 superintendent, and I'm going to read from a couple of 47 additional pages that are not in the yellow binder. 27403 Submissions by Mr. Goldie

1 Page 159 they say -- 2 THE COURT: Sorry, is there an exhibit number for this? 3 MR. GOLDIE: Yes. It's Exhibit 1164- 243. 4 THE COURT: Yes. Thank you. 5 MR. GOLDIE: And I can have these additional pages later added 6 to the exhibit. 7 THE COURT: Thank you. 8 MR. GOLDIE: The Board refers to the expectations of the Indians 9 as having been aroused despite the clear instructions 10 of the King. At page 159: 11 12 That the Indians have been suffered to 13 entertain expectations, and thereupon to ground 14 conditions acquiesced in by your Majesty's 15 Superintendent which appear to us to have 16 relation only to the plan proposed in 1764, 17 which plan has been since laid aside, and do 18 not correspond with that, which your Majesty 19 has now adopted, and which has been so fully 20 explained in your Majesty's Instructions. 21 The stipulations have been -- 22 23 This is page 160: 24 25 The stipulations have been made, by which 26 particular bodies and tribes of Indians have 27 been excepted out of the General Conditions of 28 the Treaty: and lastly, 29 That the claims and interests of private 30 persons, not stated to, or approved by your 31 Majesty, have been allowed to mix themselves in 32 this Negotiation, and to be introduced, not as 33 propositions submitted to your Majesty's 34 Determination, but as Rights derived from the 35 Indians, your Majesty's acquiescence in which 36 is demanded by them, as a condition of the 37 Treaty. 38 39 And they said: 40 41 It is ... unnecessary for us to recite all 42 the passages in the minutes of the Proceedings 43 with the Indians at Fort Stanwix, that verify 44 the foregoing observations; the Facts will be 45 found in the Talks of the Chief Speakers on the 46 part of the Indians, made at their Conferences 47 with Sir William Johnson. 27404 Submissions by Mr. Goldie

1 And there are other provisions, but it is on that 2 basis that I submit that the treaty was negotiated by 3 Johnson without consulting British authorities and 4 without their approval. 5 Now, the Quebec Act of 1774 revoked the 6 application of the Royal Proclamation to Quebec, and 7 enlarged the colony towards Labrador on the east and 8 the Ohio and the Mississippi Rivers to the southwest. 9 It also established civil jurisdiction in those areas. 10 Nonetheless, the legislative history of the Quebec Act 11 indicates that it was consistent with the 12 "containment" policy of the Royal Proclamation. 13 My lord, I wish to correct a transcript 14 reference. The second line, transcript 277 page 2057, 15 it should be 20577. Just add an additional seven 16 there. 17 Now, the legislative history that I refer to is 18 indicated in the following paragraphs: 19 Paragraph 99. Lord Hillsborough (who had 20 succeeded Shelburne as President of the Board of 21 Trade), objected to the extension of Quebec's 22 boundaries and the granting of civil jurisdiction in 23 that area because both steps seemed to foreshadow the 24 movement of settlers into the northern part of the 25 Reserve. And Dartmouth, Secretary of State for the 26 American Colonies, assured Hillsborough that his 27 concerns were unfounded and that the British Crown did 28 not intend by the Quebec Act to extend settlement to 29 the west. 30 Now, first I refer to the -- by way of background 31 to the Quebec Act itself, and that's under tab 95, and 32 the relative provision is found at the bottom of page 33 402. They recital begins with the words "Whereas the 34 provisions made by the said Proclamation". 35 THE COURT: Sorry, I haven't got to that. Tab 95? 36 MR. GOLDIE: Yes. Four dash -- I beg your pardon, it should 37 be -- no, I have it under 95. Does your lordship have 38 95? 39 THE COURT: 95 is Report of the Lords Commissioners for Trade 40 and Plantations on the Petition. It's a two-page 41 document. 42 MR. GOLDIE: Well, that sounds like the Vandalia matter. 43 THE COURT: Yes, it is. That's all I have under tab 95. 44 MR. GOLDIE: Well, if your lordship would look under 98. 45 THE COURT: Unless — is it quoted in these archives? 46 MR. GOLDIE: Yes, it is. 47 THE COURT: All right. 27405 Submissions by Mr. Goldie

1 MR. GOLDIE: The upper right-hand corner it should be Exhibit 2 1166, footnote number 261. 3 THE COURT: Yes, I have it. 4 MR. GOLDIE: Yes. If your lordship would go over the page, this 5 is an extract from the Quebec Act. 6 THE COURT: Yes, all right. 7 MR. GOLDIE: And what I'm referring to is the last paragraph on 8 that page, which begins with the words: 9 10 And whereas the Provisions, made by the said 11 Proclamation, in respect to the Civil 12 Government of the said Province of Quebec and 13 the Powers and Authorities given to the Govenor 14 and other Civil Officers of the said Province, 15 by the Grants and Commissions issued in 16 consequence thereof, have been found, upon 17 Experience, to be inapplicable to the State and 18 Circumstances of the said Province, the 19 Inhabitants whereof amounted, at the Conquest, 20 to above Sixty-five thousand Persons professing 21 the Religion of the Church of Rome, and 22 enjoying an established Form of Constitution 23 and System of Laws, by which their Persons and 24 Property had been protected, governed, and 25 ordered, for a long Series of Years, from the 26 First Establishment of the said Province of 27 Canada; be it therefore further enacted by the 28 Authority aforesaid, That the said 29 Proclamation -- 30 31 And that refers back to the Proclamation of the 7th of 32 October, 1763. 33 34 -- So far as the same relates to the said 35 Province of Quebec, and the Commission under 36 the Authority whereof the Government of the 37 said Province is at present administered, and 38 all and every the Ordinance and Ordinances made 39 by the Governor and Council of Quebec for the 40 Time being, relative to the Civil Government 41 and Administration of Justice in the said 42 Province, and all Commissions to Judges and 43 other Officers thereof be, and the same are 44 hereby revoked, annulled and made void, from 45 and after the First Day of May, 1775. 46 47 Then there are the other provisions which 27406 Submissions by Mr. Goldie

1 extended the bounds of the Province of Quebec, as 2 established in 1763, substantially westward so that it 3 reached right down into the Ohio country. And that 4 provoked, when that Act was in the Bill stage, 5 provoked some concerns which I now refer to and should 6 be under tab 99. 7 THE COURT: In this tab does it describe the boundaries? 8 MR. GOLDIE: Not in this — oh, I'm sorry, yes, at the top of 9 page 402, which was the page that I began to read 10 from. 11 THE COURT: Oh yes. 12 MR. GOLDIE: And I'll be coming back to that, my lord, because 13 that's the -- it's that description which subsequently 14 led to the dispute between Ontario and Manitoba over 15 the boundary. 16 And the relevant parts begin with the words: 17 18 ...and from thence along the said Northern and 19 Western Boundaries of the said Province -- 20 21 That's of Pennsylvania. 22 23 -- until the said Western Boundary strike the 24 Ohio: But in case the said Bank of the said 25 Lake shall not be found to be so intersected, 26 then following the said Bank until it shall 27 arrive at that Point. 28 29 And so on and so forth. 30 31 ...and thence, by a right Line, to the said 32 Northwestern Angle of the said Province; and 33 thence along the Western Boundary of the said 34 Province, until it strike the River Ohio: and 35 along the Bank of the said River, Westward, to 36 the Banks of the Mississippi, and Northward to 37 the Southern Boundary of the Territory granted 38 to the Merchants Adventurers of England. 39 40 And that's the Quebec that existed between 1774 41 and the conclusion of the American Revolution. 42 And it's the one that is outlined in the map, my 43 lord, that -- identified -- the fourth one. It's 44 identified with the words 1774 and it extends right 45 down into the Ohio and then up the Mississippi and 46 then that was cut back following the Treaty of Paris 47 following the conclusion of the American Revolution. 27407 Submissions by Mr. Goldie

1 THE COURT: But if it extended northward to the territory 2 granted to the company of Adventurers trading to 3 Hudson's Bay, then it -- it interrupted any corridor 4 through which the Royal Proclamation could have flowed 5 into the west. 6 MR. GOLDIE: Yes. And I come to that. There are several — 7 several matters which fall into that category. One of 8 them is the description which I've just read. The 9 other is the basis upon which the northern boundary of 10 the United States was fixed, and in the Treaty of 11 Paris following the Revolution. 12 THE COURT: All right. 13 MR. GOLDIE: And if your lordship would turn to the yellow 14 binder under tab 99, there should be a transcript 15 reference to Volume 277, page 20578. 16 THE COURT: 99? 17 MR. GOLDIE: Yes. 18 THE COURT: Yes. 19 MR. GOLDIE: And the question at line seven asks: 20 21 Q Now, the effect -- without going into the 22 specific provisions of the Quebec Act, 23 but the effect was to enlarge 24 substantially the Colony of Quebec; is 25 that correct? 26 A Yes. Towards Labrador and especially 27 towards the Ohio and the Mississippi, 28 yes. 2 9 Q And was this commented upon by the Earl 30 of Hillsborough? 31 A Yes, it was. 32 Q And did he raise objections, and were 33 those observations answered, and if so 34 can you make reference to a document? 35 A Yes. Hillsborough objected that the 36 extension of the boundaries plus the 37 granting of civil jurisdiction in the 38 area of the northern part of the reserve 39 seemed to imply that settlers would be 40 going there, because there would be civil 41 jurisdiction for the first time. 42 43 Now, if I may pause there, my lord, the -- the 44 jurisdiction in the Indian reserve created by the 45 Royal Proclamation was military in character and 46 that's the -- that's the antecedent to this comment; 47 there would be civil jurisdiction for the first time. 2740? Submissions by Mr. Goldie

1 And continuing at line 24: 2 3 -- These objections were laid to rest in a 4 letter from Dartmouth, Lord Dartmouth -- 5 Q Under tab -- 6 A -- to Hillsborough. 7 Q 262? 8 A 262. 9 Q Yes. 10 A Dated 1st of May, 1774. I consulted the 11 original and used that, but have filed 12 the shortened copy. Should I read that? 13 Q Yes, please. 14 A 15 "To Lord Hillsborough. My Dear Lord. 16 Mr. Knox has stated to me your 17 lordship's two objections to the 18 Canada Bill which I propose to lay 19 before the House of Lords tomorrow." 20 21 There is an interjection by Dr. Greenwood: 22 23 That is the bill, not the objections. 24 25 "And I have communicated them to the 26 Cabinet, who are unanimously of 27 opinion that the extension of the 28 Province to the Ohio and Mississippi, 29 is an essential and very useful part 30 of the Bill, it provides for the 31 establishment of civil government 32 over many numerous settlements of 33 French subjects but does by no means 34 imply an intention of further 35 settling the Lands included within 36 this extension, and if it is not 37 wished that British Subjects should 38 settle that Country nothing can more 39 effectually tend to discourage such 40 attempts, which in the present state 41 of that county, your lordship knows 42 very well, is impossible to prevent. 43 Your objection to the clause allowing 44 a change of tenure their lordship's 45 thought proper to come into and was 46 accordingly struck out of the bill" 47 27409 Submissions by Mr. Goldie

1 That's the second and irrelevant objection. So 2 of his two objections, the relevant one was noted and 3 he was assured that there would not be further 4 extension westward. And in my submission, that 5 negates the proposition that the Quebec Act, in 6 extending the boundaries of Quebec west and south into 7 part of the so-called Indian reserve, constituted an 8 act of expansionism which can be pointed to as 9 justifying the westward extension of the Royal 10 Commission -- Royal Proclamation. 11 THE COURT: What do you think he means by "numerous settlements 12 of French subjects"? 13 MR. GOLDIE: I think he is referring there, my lord, to the 14 French trading posts which were considerably to the 15 west of the original boundaries of Quebec. Your 16 lordship may recall that the original boundaries were 17 almost along the -- well, they turn sharply eastward 18 at the end of Lake Nipissing. 19 THE COURT: He must mean former French subjects, does he? 20 MR. GOLDIE: Well yes, that's correct. The French speaking. 21 THE COURT: All right. 22 MR. GOLDIE: But all of the French forts which were still 23 inhabited -- former French forts which were still 24 inhabited were -- extended down into the Ohio. 25 THE COURT: Yes. But that had been — they had been British 26 subjects since 1763? 27 MR. GOLDIE: They were by this time, yes, that's correct. 28 And what's more to the point, he -- I shouldn't 29 say more to the point, but it is equally relevant, is 30 that the interjection he makes at line nine, "your 31 lordship knows very well, is impossible to prevent." 32 And that is -- attempts to discourage settlement in 33 that country. And there had been British settlement 34 from the old colonies. 35 This extension of the Province of Quebec is 36 regarded by some historians as one of the reasons for 37 the outbreak of the American Revolution, because it 38 seemed to place in the path of westward settlement a 39 civil jurisdiction which was catering to the Roman 40 Catholic religion, and feelings ran very high in those 41 days on that point. 42 Now, I make reference in the next paragraph to 43 the instructions which were sent to Governor Carleton 44 on the 3rd of June, 1775. And I say: Furthermore, 45 after the passage of the Quebec Act the imperial 46 instructions to Governor Carleton of 3 June 1775 were 47 redrafted to take account of that Act; the 27410 Submissions by Mr. Goldie

1 instructions prohibited settlement beyond the 2 boundaries of the original limits of Quebec. 3 And the instructions are found under tab 100 -- 4 or that portion of the instructions which are 5 relevant. And the one I refer to is paragraph 31: 6 7 The institution of inferior Judicatures 8 with limited Jurisdiction in Criminal and Civil 9 Matters for the Illinois, Poste St. Vincenne, 10 the Detroit, Missilimakinac, and Gaspee has 11 been already pointed out, and the Appointment 12 of a Superintendent at each of these Posts is 13 all, that is further necessary for their Civil 14 concerns; But it will be highly proper, that 15 the limits of each of those Posts, and of every 16 other in the interior Country should be fixed 17 and ascertained; and that no settlement be 18 allowed beyond those Limits; seeing that such 19 Settlements must have the consequence to 20 disgust the Savages; to excite their Enmity; 21 and at length totally to destroy the Peltry 22 Trade, which ought to be cherished and 23 encouraged by every means in your Power. 24 25 And in paragraph 101: Of the contemporary 26 authors supporting expansion westward, only one 27 advocated expansion west of the Mississippi. The 28 transcript references are noted. The document itself 29 is omitted, my lord, because it was almost totally 30 illegible when the witness was giving evidence and 31 it's certainly no better now, but the evidence -- the 32 transcript evidence, I think, is sufficiently clear. 33 And then in paragraph 102: In summary, there is 34 no evidence in the historical record to support the 35 view that the framers of the Royal Proclamation 36 intended that instrument to anticipate settlement west 37 of the Appalachian line. To the contrary, it was 38 designed to prevent such settlement. 39 And the reference there again is to the -- to the 40 transcript. And I won't read that, but the question 41 was put to Dr. Greenwood at -- under tab 102, the page 42 20560, transcript 277, line ten: 43 44 Q Did you find any explicit evidence, and 45 that's what I meant by the word positive? 46 A And this is in the documents outlined by 47 the Proclamation? 27411 Submissions by Mr. Goldie

1 Q Yes. 2 A I guess the answer is no, but with a 3 qualification. There is a letter from 4 Amherst to Egremont, I believe, in 1762 5 suggesting interior colonies and there 6 are one or two other documents of the 7 same nature which were ignored by the 8 Board of Trade. Subject to that caveat 9 the answer is no. 10 11 Then the next part that I come to, my lord, is 12 construction of the terms of the Royal Proclamation. 13 And the first part that I address is the proposition 14 that the Reserve has definite boundaries and that 15 these do not include British Columbia. 16 Paragraph 103. The defendant province submits, 17 and the historical record demonstrates, that the 18 framers of the Royal Proclamation intended the reserve 19 to have fixed, contiguous boundaries. To the east, 20 the boundary was the Appalachian Line; to the south, 21 the northern limits of the colonies of East and West 22 Florida; to the west the Mississippi; and to the 23 north, Rupert's land. 24 And I start with the instructions sent to the 25 British negotiator in Paris dated September 4th, 1762, 26 directed him to ensure that the article of the Treaty 27 dealing with the international frontier was to be 28 written in such clear and explicit terms that it could 29 form no basis for misunderstanding or a French claim 30 to any territory east of the Mississippi River. 31 And I refer to the material under tab 104, and 32 this constitutes the instructions that were sent to 33 the plenipotentiary who was the chief negotiator for 34 the British in the Treaty of Paris. And the reference 35 I want to make is to the second page opposite the map 36 that is shown there, and beginning with the words 37 about half-way down, "Our will and pleasure": 38 39 Our will and pleasure is that you exert your 40 utmost attention with regard to this article 41 which is to be treated in such clear and 42 explicit terms as shall render it incapable of 43 any misconstruction. And as shall for the 44 future, remove even a pretence on the part of 45 France to claim either as part of Louisiana; or 46 under any other denomination whatsoever. 47 27412 Submissions by Mr. Goldie

1 Now, the -- probably the next page of that should 2 have been in there, but it is reflected in the article 3 of the treaty which I'll come to in a minute. But at 4 paragraph 105, I note Chief Justice Marshall's summary 5 of the effect of the treaty and he stated, and I 6 quote: 7 8 Great Britain, on her part, surrendered to 9 France all her pretensions to the country west 10 of the Mississippi. 11 12 And he concludes by saying: 13 14 She surrendered all right to acquire the 15 country; and any other attempt to purchase it 16 from the Indians would have been considered and 17 treated as an invasion of the territories of 18 France. 19 20 And that's found -- the relevant part of the 21 treaty of -- the relevant part of the judgment is 22 found under tab 105. 23 Now, I want to -- perhaps I ought to note for 24 your lordship's book there, the words of the Treaty of 25 Paris itself: It's -- if your lordship would go back 26 to tab 4-5. It's the third one from the -- 27 THE COURT: Yes, I have it. 28 MR. GOLDIE: — from the top, and it's Exhibit 1159-3. 2 9 THE COURT: Yes. 30 MR. GOLDIE: And this is in relation to the instructions that 31 were given to ensure that there should be no 32 misunderstanding over the limits between the French 33 and British possessions. 34 THE COURT: These are instructions, are they? 35 MR. GOLDIE: No. This is the treaty itself but it's in relation 36 to how -- I want to turn to the treaty to show how the 37 instructions were carried out. 38 Article 1 is a statement that: 39 40 There shall be a Christian universal and 41 perpetual peace as well by sea as by land, and 42 a sincere and constant friendship shall be 43 re-established between their Britanic most 44 Christian Catholic and most faithful Majesties 45 and between their heirs and successors, 46 kingdoms, dominions, provinces, et cetera. 47 27413 Submissions by Mr. Goldie

1 And then Article 7 introduced the boundary between 2 the British and the French in North America with these 3 words: 4 5 In order to re-establish peace on solid and 6 durable foundations and to remove forever all 7 subject of dispute with regard to the limits of 8 the British and French territories on the 9 continent of America, it is agreed that, for 10 the future, the confines between the dominions 11 of his Britanic Majesty and those of his most 12 Christian Majesty in that part of the world 13 shall be fixed irrevocably by a line drawn -- 14 15 And so on. 16 And in my submission, the language is emphatic 17 and reflects the instructions to -- that there shall 18 be no misunderstanding on the westward limit, which 19 was to be the limit between what France was retaining, 20 namely Louisiana, and what was ceded to the British, 21 namely Canada or New France. 22 Now, I go back to paragraph 106. The plaintiffs 23 argue that the Royal Proclamation applied to Indians 24 throughout the continent of North America, and that 25 the Reserve was thus open-ended. They reach this 26 conclusion on the basis that the Proclamation must be 27 interpreted with a "purposive approach" and in light 28 of the mischief that instrument was designed to 29 address. The defendant province agrees with the 30 plaintiffs' characterization of that mischief as the 31 weakening of the British alliance with the Six Nations 32 and their allies, which was detrimental to the 33 position of the English in the continuing hostilities 34 with France in the 1750s and 1760s. As the plaintiffs 35 say, the general uprising of the numerically superior 36 Indians of the Ohio country would have destroyed in a 37 very short time all of the military gains the British 38 had made during the war. 39 Now, I'm paraphrasing what I understand to be the 40 plaintiffs' argument there. I don't necessarily agree 41 with the conclusion they reach, I simply say that that 42 is the strongest position which could be taken on 43 behalf of the plaintiffs. 44 Now, paragraph 107. A review of the working 45 papers of the framers of the Royal Proclamation 46 demonstrates that this problem of colonial security, 47 which the framers addressed in setting up a reserve, 27414 Submissions by Mr. Goldie

1 was considered to extend only as far west as the 2 Mississippi River and as far north as Rupert's Land. 3 The Indians of Western Canada, and in particular those 4 of British Columbia, posed no threat to British 5 security in 1763. And I just interject there, my 6 lord, that -- and remind you of the words in the 7 Proclamation itself. What I was referring to is the 8 preamble at "S" which reads as follows: 9 10 And whereas it is just and reasonable and 11 essential to our interest and the security of 12 our colonies. 13 14 That's the introduction to the so-called Indian 15 Provisions of the Royal Proclamation. 16 Now, going back to my argument, I say, and I 17 repeat, the Indians of Western Canada, and in 18 particular those of British Columbia, posed no threat 19 to British security in 1763. It is not surprising, 20 then, that the Reserve contemplated by the framers of 21 the Royal Proclamation was confined to territory 22 adjacent to the existing British colonies. 23 And I want to interject something here which is 24 not in my written argument, but I don't wish it to be 25 overlooked at this point, and that is, that the treaty 26 was an international instrument which defined 27 England's relationship with two of the most important 28 world powers; France and Spain. The Royal 29 Proclamation gave domestic effect to the treaty's 30 provisions, and I say that it would have been a breach 31 of the solemn undertakings in the treaty --, and I 32 particularly referred to Article 1 -- as well as 33 demonstrating the failure of the British negotiators 34 to carry out their instructions, if the Royal 35 Proclamation is to be interpreted as extending into 36 lands belonging to France. 37 Now, as I understand the plaintiffs' position, 38 they say, "Well, we don't say the Royal Proclamation 39 crosses the Mississippi into what was Louisiana, we 40 say there is a little gap through which it extended 41 into the Canadian territory." But at the same time, 42 they say that territory was part of France which 43 isn't -- so that we have the peculiar circumstances of 44 the Proclamation stopping at the Mississippi in one 45 circumstance and going around the top of it for 46 another. 47 THE COURT: But the plaintiffs' position is that that was ceded. 27415 Submissions by Mr. Goldie

1 MR. GOLDIE : They say that was ceded. 2 THE COURT: Yes. 3 MR. GOLDIE : That's correct. But what I am saying is that if 4 the Royal Proclamation is to be taken as intending to 5 apply to all future possessions, then it is saying -- 6 in my submission, it is saying it extends across the 7 whole of North America and that, I say, would be a 8 domesti1 c breach of an international undertaking. 9 Now, referring to -- 10 THE COURT: I just want to see if I can think about it, a way of 11 putting that. Are you saying that if it was -- if the 12 boundary between France and Britain did not extend 13 north of the headwaters of the Mississippi, then it 14 wasn't ceded, Western Canada wasn't ceded? 15 MR. GOLDIE : Oh, I don't -- I don't say Western Canada was 16 ceded. I mean, I take issue with them initially on 17 that, right off the bat. I say that the boundaries of 18 old Canada or New France extended around the 19 headwaters of the St. Lawrence but it -- not 20 indefinitely into the -- into the western country. 21 THE COURT: Well, I understood your friend's argument to be that 22 because -- amongst other things, expiration of La 23 Verendrye and because of the declaration of 24 sovereignty at Sault St. Marie and no doubt other 25 reasons, the territory to the east of -- sorry, to the 26 west of the Great Lakes was part of what was ceded to 27 France when they gave up all of its possessions in 28 North America except Louisiana, and therefore was part 29 of British territory into which the Royal Proclamation 30 could flow. 31 MR. GOLDIE : Yes, that's my understanding of their argument. 32 THE COURT: Yes. And you say that it -- and I would go the next 33 step then and say, if that is so then Western Canada 34 became British. 35 MR. GOLDIE : Yes. In their concept. 36 THE COURT: Yes. And the Mississippi is relevant for that 37 purpose. 38 MR. GOLDIE : Yes. 39 THE COURT: North of the Mississippi is relevant for that 40 purpose? 41 MR. GOLDIE : Yes. 42 THE COURT: All right. 43 MR. GOLDIE : But that only works if there is a gap. 44 THE COURT: North of the Mississippi and south -- 45 MR. GOLDIE : North of the Mississippi and south of Rupert's 46 Land. 47 THE COURT: South of Rupert's Land, yes, all right. And if the 27416 Submissions by Mr. Goldie

1 maps are right and the 49th Parallel, which your 2 friend doesn't agree with, but if that is the boundary 3 then there is a gap between the headwaters of the 4 Mississippi and the 49th Parallel; a narrow one but a 5 gap. 6 MR. GOLDIE: It will be my submission that when you look at the 7 documents, nobody at that time thought there was a 8 gap. 9 THE COURT: Yes. Right. 10 MR. GOLDIE: And I am not relying just upon maps when I say 11 that. 12 THE COURT: But you say now that what is now Western Canada was 13 not ceded by -- 14 MR. GOLDIE: No. 15 THE COURT: North of the Mississippi and south of Rupert's Land, 16 or do you say it wasn't ceded because it was already 17 part of Rupert's Land? 18 MR. GOLDIE: It was already part of Rupert's Land. 19 THE COURT: Yes. 20 MR. GOLDIE: The British never acknowledged that the French had 21 any rights in Rupert's Land. They had insisted in 22 1713 that Rupert's Land was restored, not ceded. 23 THE COURT: Yes. 24 MR. GOLDIE: And the point that I made yesterday was that the 25 whole British practice was to treat the territory that 26 was identified as the watershed of the Hudson's Bay as 27 accruing to the Hudson's Bay Company and not becoming 28 British dominions outside that colony. 29 THE COURT: Yes. All right, thank you. 30 MR. GOLDIE: Now at this point, my lord, I am back to my summary 31 of my argument, and at paragraph 108. And the thrust 32 of my submission here is that if one looks at the 33 circumstances which formed the -- out of which the 34 Proclamation arose, then one -- the only conclusion 35 one can come to is that whatever the knowledge was of 36 the headwaters of the Mississippi at the time and of 37 the scope of Rupert's Land at the time, the intention 38 was that Canada, the area ceded, would be closed off 39 with the northwest by the intersection of the 40 Mississippi headwaters and the boundary of Rupert's 41 Land. 42 And starting at page 108 I say this -- or 43 paragraph 108: In the draft report of the Board of 44 Trade prepared by John Pownall, and known as the 45 Sketch, he describes the reserve as lying between the 46 Appalachian Mountains and the Mississippi from east to 47 west, and between the Great Lakes drainage system and 27417 Submissions by Mr. Goldie

1 the Gulf of Mexico from north to south. The summary 2 of the plaintiffs' argument -- and if this was 3 repeated in the oral argument, I needn't make any 4 further reference to it -- but the plaintiffs' in 5 their written summary said that the sketch did not 6 define the western boundary for the reserve. And I 7 refer to the Sketch which is Exhibit 1159-52 at page 8 260. The -- under tab 108 is the plaintiffs' summary 9 of their argument to which I refer, and I needn't. 10 And then — 11 MR. RUSH: My lord, perhaps just to make the point, that I think 12 in our argument, our final argument, we -- our point 13 was that it was the northwestern boundary and not the 14 western boundary; the western boundary being the 15 Mississippi. There is no northwestern boundary was 16 our point. 17 THE COURT: Yes. In the Proclamation or in the Treaty of Paris 18 or both? 19 MR. RUSH: In the sketch. 20 MR. GOLDIE: In the sketch. 21 THE COURT: In the sketch. 22 MR. RUSH: And I think we included that as part of the argument. 23 Well, we did. 24 MR. GOLDIE: Well, the written summary is stated and I accept my 25 friend's correction of it. 26 The western boundary of the Indian territory was 27 not defined. And then turning to the -- 28 THE COURT: Where is that? 29 MR. GOLDIE: That's under tab 108, my lord. 3 0 THE COURT: Yes. 31 MR. GOLDIE: Sorry — yes, 108. The — I want to turn to the 32 sketch which is the first document under tab 108, and 33 this is Pownall's sketch, at the top of page 260, and 34 he introduces this discussion by saying at the bottom 35 of page 258 -- sorry, 259 is missing so I can't give 36 you the full introduction, but the words I'm referring 37 to start at line four: 38 39 ...all the country lying between the ridge of 40 the Apalachian [sic] mountains and the river 41 Mississippi as low down to the Gulph [sic] of 42 Mexico as the settlements and claims of the 43 Indians extends, as also all the country lying 44 around the Great Lakes as far as the heads of 45 every river or water that falls into them, 46 should be considered as lands belonging to the 47 Indians, the dominion of which to be protected 2741? Submissions by Mr. Goldie

1 for them by forts and military establishments 2 in proper places. 3 4 Now, it will be my submission and it is my 5 submission that that was intended to provide a 6 complete -- although he didn't flesh it out, a 7 complete description of the -- of the reserve. 8 Now, the Board of Trade's report to the King of 9 June the 8th -- which substantially adopted Pownall's 10 suggestions -- recommended a reserve in accordance 11 with the Sketch. Although the precise limits of the 12 reserve were not laid out, reference is made to the 13 Mississippi as the western boundary. And I make 14 reference under tab 109, and it's about midway down 15 page -- about two-thirds of the way down page 102, 16 beginning with the sentence: "And We apprehend that no 17 such Delay can be attended with very material 18 Inconvenience". And then these are the principal 19 words: 20 21 ...since if Your Majesty shall be pleased to 22 adopt the general proposition of leaving a 23 large Tract of Country round the great Lakes as 24 an Indian Country, open to Trade, but not to 25 Grants and Settlements, the Limits of such 26 Territory will be sufficiently ascertained by 27 the Bounds to be given to the Governors of 28 Canada and Florida on the North and South, and 29 the Mississippi on the West; and by the strict 30 Directions... 31 32 Et cetera. 33 Now, as we will see, in my submission, the -- 34 that was intended to provide for a boundary which was 35 ascertained -- if not known on the ground, was 36 ascertainable. 37 The reference to "the limits of the governors of 38 Canada and Florida on the north and south", are 39 explained by the fact that at this point, it was 40 intended to give to the new Province of Quebec an 41 extended geographic definition rather than the one 42 that finally emerged and this is what is dealt with 43 next. 44 When Secretary of State Egremont received the 45 report he reviewed it, noted his concern about the 46 lack of civil jurisdiction over the reserve, and 47 brought that matter to the attention of cabinet. 27419 Submissions by Mr. Goldie

1 And the circumstances -- the evidence is under 2 that tab and the particular document I refer to is the 3 one that is -- begins at page 4 under that tab, it's 4 immediately following the first blue separator. It's 5 document Exhibit 1159-62, one of Dr. Greenwood's 6 footnotes. And midway down the column on that page -- 7 I'll read the whole thing. 8 9 I take it for granted that the Restriction of 10 the New Government of Canada to the Boundary 11 specified in the Report of the Board of Trade, 12 is only supposed to relate to the 13 Settlements -- Plantations and Grants of Lands, 14 to be confined to those limits. But this 15 government as to Jurisdiction, will certainly 16 include, in the Governor's Commission, all the 17 Indian Country as far to the North as where it 18 may meet with the Grant to the Hudson's Bay 19 Company. 20 21 Now, at the request of the Cabinet for assistance 22 in resolving this matter, Egremont wrote to the Board 23 suggesting that they consider giving Canada 24 jurisdiction over the reserve. And in that letter he 25 outlined what the boundaries of the extended Canada 26 should be and described them as stretching as far 27 north and west as the limits of the Hudson's Bay 28 Company and the Mississippi River. 2 9 And my lord, I refer to the document under tab 30 4-111, and this is Egremont to the Board of Trade of 31 July 14th, 1763. And about two-thirds of the way down 32 the first paragraph are the words beginning as 33 follows: "And other Powers". Has your lordship found 34 that? 35 THE COURT: Not yet. It's in that first full paragraph? 36 MR. GOLDIE: It's in the first full paragraph. I said it's 37 about two-thirds. It's really more accurately about 38 half-way down and the word "And" begins at the 39 right-hand margin and it reads: 40 41 And other Powers, who might hereafter find 42 Means of Access to those Countries, might take 43 Possession thereof, as derelict Lands: The 44 King therefore is of Opinion, that, in the 45 Commission for the Governor of Canada, all the 46 Lakes, [that is] Ontario, Erie, Huron, 47 Michigan, and Superior, should be included, 27420 Submissions by Mr. Goldie

1 with all the Country, as far North & West, as 2 the Limits of the Hudsons Bay Company, and the 3 Mississippi. 4 5 Now, Egremont died very shortly after that, as I 6 understand it, and in any event, before the 7 Proclamation was issued, and Lord Halifax became 8 Secretary of State responsible for the colonies. Four 9 days after the Royal Proclamation was issued, Halifax 10 wrote to General Amherst, Commander-in-Chief in North 11 America, advising him that the Proclamation adopted 12 the Board's report with respect to the interior 13 country to be reserved to the Indians. No mention was 14 made of changing the limits of the reserve defined by 15 the Board. 16 And that's found in the document under tab 112, 17 and it's at the top of the first page, and it -- and 18 Mr. Humphreys, who is the editor, quotes -- I'm sorry, 19 not the editor, but he is the author of this 20 particular note, writes as follows: 21 22 "By this Proclamation," wrote Halifax to 23 Amherst, "you will perceive that the 24 propositions made by the Board of Trade in 25 their report of the 8th of June last, have in 26 general been adopted, with respect to the new 27 governments to be erected, and the interior 28 country to be reserved for the use of the 29 Indians. 30 31 And then he says that the new country is to be 32 called the Province of Quebec. And the transcript 33 reference is under the same tab. And Dr. Greenwood 34 noted that Halifax mentioned a boundary change in 35 respect of East Florida but that was all. 36 That, in my submission, indicates that so far as 37 the documents that may be looked at with respect to 38 the circumstances giving rise to the Proclamation go, 39 they indicate clearly that it was the intention to 40 provide a fixed boundary as to the reserve and the 41 northern -- sorry, that the -- the northern boundary 42 was the lands of the Hudson's Bay Company and the 43 western boundary was the Mississippi and that they 44 were thought to intersect. 45 Now, I go to the eastern boundary and there 46 really is no particular question about that. 47 MR. RUSH: Just before my friend proceeds to do that point, I 27421 Submissions by Mr. Goldie

1 rise to just correct my friend's written argument. On 2 paragraph 109, the last sentence, our final argument 3 indicated that there was no northwestern boundary. 4 MR. GOLDIE: Oh yes. That's the reference to the plaintiffs' 5 summary. I accept my friend's position that he was 6 talking about the northwestern boundary. My lord, I 7 don't think there is any such thing as the 8 northwestern boundary. There is the eastern boundary, 9 there is the western boundary and there is the 10 northern and there is the southern. 11 THE COURT: Somewhere between north and west is northwest. 12 MR. GOLDIE: Somewhere -- that's correct. But in my submission, 13 nobody thought of a northwest boundary in terms of 14 anything which was separate and distinct as from the 15 intersection of the Mississippi and the Hudson's Bay 16 Company's holdings. 17 I was going to go on at page 43 to the eastern 18 boundary of the reserve. 19 The defendant province submits that there is no 20 dispute about the location of the eastern boundary of 21 the reserve -- and I add the words -- described in the 22 Proclamation as lands to the west of the sources of 23 the rivers which fall into the sea from the west or 24 northwest. And I say that is in the Proclamation as 25 viz and where the words that I have just referred to 2 6 are found. 27 And then I submit that scholars have reached a 28 consensus that the demarcation between the colonies 29 and the reserve is the Appalachian Ridge or 30 watershed - often referred to as the "Appalachian 31 Line" or "Proclamation line". And that is more -- is 32 more extensively discussed a little later. 33 My lord, under tab 114 is a map which I'll refer 34 to in a minute. And under tab 113 there should be a 35 coloured extract from the Historical Atlas. Is 36 that — 37 THE COURT: Yes. 38 MR. GOLDIE: In my submission, that represents what emerged from 39 the Treaty of Paris and the Royal Proclamation -- not 40 without some dispute by various people -- but that, I 41 say, is substantially it. And your lordship will see 42 the extent of the Indian territory which purports to, 43 and does in fact, hem in the British colonies on the 44 east coast. It also extends to the northeast in the 45 sense that it includes -- it appears to include the 46 lands lying between the southern boundary of Rupert's 47 Land and the northern boundary of the 1763 Quebec. 27422 Submissions by Mr. Goldie

1 The Newfoundland -- coast of Labrador is what was 2 first established and which was then later transferred 3 back to Quebec under the Quebec Act of 1774, and then 4 was later re-retransferred back to Newfoundland and 5 all of which gave rise to the reference to the 6 Judicial Committee in 1927. 7 Going back to paragraph 114. Antecedents of the 8 Appalachian Line may be found in Pownall's Sketch, 9 Ellis' Hints, and the Report of the Board of Trade 10 date1 d June 8, 1763. The Bowen chart sent to the King 11 with the Board's record shows the line in dark pink 12 running along the back of the older colonies on the 13 Appalachian watershed. Other contemporary maps use 14 the Appalachian chain as the western boundary of 15 settlement. And the Bowen map is -- your lordship can 16 see it, the difference in the tinting. 17 Under tab 114 is Exhibit 1164-195, and, my lord, 18 that is a map identified as John -- by John Gibson, 19 "The British Governments in North America laid down 20 agreeable to the Proclamation of October 7th, 1763," 21 as published in Gentlemen's Magazine of that year. It 22 conforms fairly substantially to what the Historical 23 Atlas has shown us. 24 THE COURT: This is published in 1765? 25 MR. GOLDIE : 1763 itself. 26 THE COURT: That's the date of the Proclamation, isn't it? 27 MR. GOLDIE : Yes. But apparently it was published -- 28 THE COURT: All right. 29 MR. GOLDIE : -- very close around that date. 30 Now, the northern boundary of the reserve, in 31 paragraph 115 -- well, I should say that the eastern 32 boundary of the reserve appears to be fairly clear. 33 It created some disputes amongst the colonies and it 34 gave rise to the argument that I referred to that was 35 deal1 t with by Chief Justice Marshall in Johnson and 36 ]M'Intosh . 37 Now, going to the northern boundary. 38 THE COURT: I think if you are starting a new section we will 39 adjourn, Mr. Goldie. 40 MR. GOLDIE : All right, my lord. 41 THE COURT: Is it convenient if we adjourn at 4:30 this 42 afternoon? 43 MR. GOLDIE : Yes. 44 THE COURT: Yes. 45 MR. RUSH: To adjourn to 4:30? 46 THE COURT: No. At 4:30. 47 MR. RUSH: I couldn't believe my good luck. 27423 Submissions by Mr. Goldie

1 THE COURT: Unless you have something more important in mind. 2 THE REGISTRAR: Order in court. This court stands adjourned. 3 4 (PROCEEDINGS ADJOURNED AT 12:30 P.M.) 5 I hereby certify the foregoing to 6 be a true and accurate transcript 7 of the proceedings transcribed to 8 the best of my skill and ability. 9 10 11 12 13 14 Toni Kerekes, 15 Official Reporter, 16 UNITED REPORTING SERVICE LTD. 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 27424 Submissions by Mr. Goldie

1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT) 2 THE REGISTRAR: Order in court. 3 THE COURT: Mr. Goldie. 4 MR. GOLDIE: My lord, couple of things that were left 5 outstanding this morning I can deal with. The date of 6 the Hints, February 25th, 1763. 7 THE COURT: Can you instruct me where I might usefully make that 8 notation? 9 MR. GOLDIE: Miss Fenlon will get that for me. Prince of Wales 10 Island, it's west of Ketchican, north of the Queen 11 Charlottes and part of Alaska. 12 THE COURT: We're both right. Both possibilities are right. 13 MR. GOLDIE: Paragraph 82 of Part IV is the reference to Hints, 14 and the document which is under the yellow binder tab 15 number is -- the date of that is February 25th, 1763. 16 THE COURT: Tab 82. 17 MR. GOLDIE: Yes. It actually would be under 83. 18 THE COURT: All right. And the date was? 19 MR. GOLDIE: February 25, 1763. 2 0 THE COURT: Thank you. 21 MR. GOLDIE: And then I pick up at page 44 of Section 4 of Part 22 V, the northern boundary of the reserve. And the 23 submission here is that by necessary implication the 24 reserve is bounded to the north by Rupert's Land. 25 THE COURT: Where is that again? 26 MR. GOLDIE: That's page 44, paragraph 115, my lord. 2 7 THE COURT: Yes. 28 MR. GOLDIE: And, of course, the implication is in reference to 29 the construction of the Royal Proclamation. While the 30 western extent of Rupert's Land was not known 31 precisely in 1763, contemporaries held two views as to 32 the southern reach of the Hudson's Bay Charter. 33 Commonly the southern limit was held to run either 34 along the 49th parallel or along the heights of land 35 to the west of Lake Abitibi. And the reference there 36 is to the evidence of Dr. Greenwood. The -- 37 THE COURT: How far north would that 49th parallel be? 38 MR. GOLDIE: The heights of land to the Lake Abitibi? 39 THE COURT: Yes. How far north would that put it from the 40 source of the Missippi? 41 MR. GOLDIE: Well, of course, that depends -- in reality or -- 42 THE COURT: Yes, in reality. 43 MR. GOLDIE: The source -- it's above the source in reality. 44 MR. RUSH: Considerable distance. That was the point of 45 difference. 46 MR. GOLDIE: It intersected the source of the Missippi, 47 according to the belief at the time. 27425 Submissions by Mr. Goldie

1 Now, the Bowen map, which is the one up on the 2 board, my lord, shows the southern boundary of 3 Rupert's Land running west from a point south of James 4 Bay along the 49th parallel indefinitely. It is 5 marked "The Southern Boundary of the Hudson Bay 6 Company's Territories Settled by Commissaries after 7 the Treaty of Utrecht." 8 And in the next paragraph I note the background of 9 that, which I think your lordship may already be 10 familiar with. The issue following the Treaty of 11 Utrecht was never resolved. And I read to you from 12 the work of Mr. McNeil on the significance of the word 13 restored in the -- in the Treaty of Utrecht itself. 14 And then in paragraph 117 on page 45 I say 15 nonetheless -- and by nonetheless I mean the failure 16 to agree -- from 1749 on it is almost invariable that 17 British maps of the day showed the 49th parallel as a 18 southern limit, and referred to the boundary as one 19 agreed on by the Treaty of Utrecht even though that 20 assertion was without foundation. 21 Now, the transcript reference there should read 22 page 20585 line 16 to page 20586 line 43. Now, the -- 23 the -- the document reference is referred to by Dr. 24 Greenwood in the evidence that is noted there and it 25 is once again to the -- to the -- to the material 26 gathered up for the Ontario-Manitoba boundary dispute. 27 And Dr. Greenwood notes that on the pages that are 28 referred to. And if your lordship would look at the 29 documents following the blue separator sheet, it's 30 taken from "Notes on Maps 1632-1857", which is from 31 the publication prepared for the Government of Ontario 32 and the annotations, I believe, are those of Mr. 33 Mills, the relevant references on pages 136 T, U, P. 34 Those pages must be out of order, but be that as it 35 may, it's to -- on page 136T, the statement of the 36 annotator is: 37 38 "Our knowledge of this map is derived from the 39 author's remarks in support, et cetera, London, 40 printed for Thomas Jefferys, 1753, in which he 41 says: 'I have drawn the line which parts the 42 French from English Canada, by beginning it at 43 Davis' Inlet on the east coast of Labrador, or 44 New Britain, (in the latitude of about 56 45 degrees) drawing it with a curve through the 46 Lake Abitibi down to the 49th degree of 47 latitude; from thence to be continued to the 27426 Submissions by Mr. Goldie

1 northwest ocean, as it was settled by 2 commissioners after the Treaty of Utrecht." 3 4 And then on page 136U -- and this refers to a map sent 5 by the Hudson's Bay Company apparently to the Dominion 6 Government. And the first half of it refers to the 7 line that was drawn there. But the one I want to 8 refer to is (83) on page 136P, which again contains 9 the statement — 1749: 10 11 "A line" ... 12 13 This is the second paragraph. 14 15 "A line is drawn through Lake Mistassin to the 16 49th parallel marked '1712'. This line by the 17 Treaty of Utrecht was settled as the dividing 18 line between Canada and Hudson's Bay. Another 19 line drawn along 48th parallel to the river St. 20 Lawrence has on it the inscription: 'This line 21 of north latitude, 48 degrees, was the northern 22 boundary of the grant made by King James the 23 1st, to the Council of Plymouth, in 1621; but, 24 in the year 1632, King Charles the 1st ceded 25 all the lands laying to the northward of Canada 26 (St. Lawrence) River to the French, and Canada 27 or New France was indefinite in its northern 28 boundaries till the year 1712'. 29 There is also on the map this further 30 inscription: 'By the Treaty of Utrecht, the 31 lines between the English and French were thus 32 adjusted: Beginning on the North Atlantic 33 Ocean, in north latitude 58 degrees 30 minutes; 34 thence running south-west to Lake Mistassin; 35 and thence continuing south-west till the line 36 touched 49, north latitude; and thence west 37 indefinitely." 38 39 And then there is a note, which purports to give the 40 history of the assertion that the limits of Canada -- 41 of Hudson's Bay Company and Canada were never settled 42 pursuant to the stipulations of the treaty. And those 43 all have in common the 49th parallel. 44 And I -- then at paragraph 118 I make reference to 45 the proceedings before the Judicial Committee. In 46 1884, as a result of the border dispute between 47 Manitoba (supported by Canada) and Ontario, the 27427 Submissions by Mr. Goldie

1 Judicial Committee of the Privy Council ruled in its 2 application of an arbitration award. I think that was 3 the actual effect. That the southern limit of 4 Rupert's Land to the west of Lake Superior ran west 5 from between 50 and 51 ending in the north, ending in 6 the west just north of the 50th parallel at Lake of 7 the Woods. And Dr. Greenwood's reference to that is 8 in the transcript. 9 In conclusion, the Defendant Province submits that 10 the prevailing view in 1763 was that the southern 11 reach of Rupert's Land ran west of Lake Superior and 12 intersected the Mississippi River in about 49 degrees 13 north. That maps containing this information were 14 relied upon by the framers of the Royal Proclamation 15 will be demonstrated at a later point in this summary. 16 And then the western summary -- western boundary. 17 Although the western boundary of the reserve is not 18 specified in the Royal Proclamation, the historical 19 record demonstrates that the framers intended the 20 reserve to extend no farther west than the Mississippi 21 River. 22 Once again the starting point is the Treaty of 23 Paris. Article VII of the Treaty fixes the 24 international frontier between France -- I say in 25 reality Spain because France very shortly after the 26 treaty, or perhaps even at the time the treaty was 27 being negotiated, had secretly agreed to cede 28 Louisiana to Spain and England by a line drawn along 29 the middle of the Mississippi River from its source to 3 0 the mouth. 31 Next, the understanding of the framers of the 32 Royal Proclamation regarding the location of the 33 source of the Missippi must be considered. 34 Today the Mississippi River is agreed by scholars 35 to rise in Lake Itasco at latitude 47 degrees 13 36 minutes north. While the latitude of the mouth of the 37 Mississippi River was known in 1763, that of its 38 source was not. 39 And, my lord, that takes us into the next binders. 40 And I provide your lordship with Volume 15. The 41 transcript reference under Tab 1-123 is Dr. Farley's 42 evidence in chief in which he identifies the 43 co-ordinates for Lake Itasco. 44 And then in paragraph 124, because the terrain in 45 the upper reaches of the Mississippi River abounds 46 with lakes and swamps, drainage patterns are 47 remarkably difficult to determine. The resulting 2742? Submissions by Mr. Goldie

1 confusion in 1763 about the source of the Mississippi 2 was exacerbated by the relatively primitive 3 cartographic methods of determining location available 4 to explorers in the 18th century. And that reference 5 is to Dr. Farley's report in which he speaks of the 6 difficulty in taking bearings, especially in heavily 7 timbered lands, and the corresponding accuracy of 8 bearings taken at sea close to the land. 9 Contemporary beliefs about the source of the 10 Mississippi River can be gleaned from the maps of the 11 day. A cross-section of reputable 18th century maps 12 shows the source of the Mississippi River ranging from 13 46 degrees 15 north (The Jefferys/Bowen map), number 14 16 of Dr. Farley's folio, to 51 degrees north (Bowen's 15 map 1149). That's number 11 of Exhibit 1149. 16 Reference is often made in the maps to the source of 17 the Mississippi River being unknown. 18 And the first reference is to Dr. Farley's report, 19 and that includes part of the earlier comment about 20 the primitive nature of the tools the map makers had 21 to work -- not the map makers, but the people on the 22 ground taking observations, as well as the statements 23 about the confusions on the -- the confusion over the 24 exact location of the source. Dr. Farley starts out 25 at page 21 and refers to Bellin and Bowen/Jefferys 26 map. And then at page 23 there is a summary of the 27 findings that he makes. And your lordship may recall 28 that he did some overlays in which he traced the 29 Mississippi in terms of these maps that he looks at in 30 his table. And the point of it simply is, as he said, 31 to demonstrate how very widely these maps indicated 32 the source. 33 THE COURT: What was that red line? 34 MR. GOLDIE: The red line, my lord, is — that is Popple of 35 1733. 36 THE COURT: Is that intended to depict the Mississippi? 37 MR. GOLDIE: That's what it is purported to do, my lord. 38 THE COURT: All right. 39 MR. GOLDIE: And then the purple line is Bowen's map 12, and 40 that's the one that just dwindles off to the left. 41 And then the green one is Bellin. 42 The Bowen map -- I'm at paragraph 126. The Bowen 43 map attached to the Board of Trade's report shows the 44 Mississippi headwater at 47 degrees 45 minutes north, 45 but bears the inscription "Mississippi R.", or river, 46 "its head very uncertain situated according to the 47 Indians in a very marshy country about the 50th degree 27429 Submissions by Mr. Goldie

1 of latitude". A smaller scale Bowen of the same year 2 shows the heads of the Mississippi in latitude 50 3 degrees north. The -- the two references are to the 4 two Bowen maps. One is the small one in the folio and 5 the other is the -- is the larger one, which is with a 6 separate exhibit number, which is up on the board 7 there. 8 And then in paragraph 127, a map used by the 9 British Military in North America dated 1765 depicts 10 the Mississippi arising north of Lake Superior. 11 That's the cantonment maps. And, my lord, they are -- 12 they are -- we have copies here. As the name implies, 13 my lord, it is the -- it is the state of the army, not 14 in terms of numbers but in location of units, as of 15 the 11th of October, 1765. And I've already made 16 reference to it, but I simply refer your lordship to 17 the heavy line where my left forefinger is. And in 18 relation to Lake Superior it is -- just it purports to 19 show the Mississippi arising just north of Lake 20 Superior. I don't mean north in the sense of arising 21 north, but in latitude, North of Lake Superior. 22 The Board of Trade -- in paragraph 128 I refer 23 there to the -- to the Bowen map, which is on the 24 board, and I say that it is the scholarly consensus 25 that the chart so annexed was Bowen's large scale map 26 of North America. And the map indicates by way of a 27 printed note, as I read from Dr. Farley, that the 28 Mississippi headwaters arise at about 50 degrees 29 north. 30 And in paragraph 130 I submit that it is likely, 31 to the point of near certainty, that the Board of 32 Trade, the Secretary of State, and the King referred 33 to the Popple map of 1733 and the Mitchell map of 1755 34 in their deliberations leading up to the Royal 35 Proclamation. These maps were the preferred maps of 36 the Board of Trade in the sense that both had been 37 commissioned by the Board. Pownall had signed the 38 Mitchell map. That's the secretary of the board. 39 Both maps suggest that the headwaters of the 40 Mississippi were located at about 50 degrees north 41 latitude. And both those maps are found in Dr. 42 Farley's folio number 9, being Popple, and number 10, 43 being Mitchell. Your lordship may recall that Dr. 44 Farley mentioned that Mitchell's map particularly had 45 widespread use on the British side. 46 Continuing at paragraph 131, a copy of the 47 Mitchell map was found among the personal papers of 27430 Submissions by Mr. Goldie

1 Egremont and three copies of that map were found in 2 the King's personal library after his death. In 3 addition, Mitchell was a close friend of Halifax, who 4 had been president of the Board of Trade. Dr. 5 Greenwood's basis for that -- those assertions are 6 found in the transcript. 7 Contemporary beliefs about the source of the 8 Mississippi can also be determined from records other 9 than maps. A report prepared for the British 10 Commander-in-Chief by one Philip Pittman, detailing 11 settlements along the Mississippi in 1770, suggested 12 that the Mississippi rose 700 leagues (approximately 13 2100 miles) north of the falls of At. Anthony. Now, 14 the falls of St. Anthony themselves were a very 15 considerable distance from the mouth of the 16 Mississippi. And I'll just refer to the document in 17 question. It is printed in London in 1770. It's 18 under Tab 132, my lord. 19 THE COURT: Yes. 20 MR. GOLDIE: And the particular chapter or section is headed 21 "The Present State of the European Settlements on the 22 Mississippi". The last paragraph on the page: 23 24 "Nothing can, with propriety, be asserted with 25 respect to the source of this river, tho' there 26 are people still existing, who pretend to have 27 been there. The accounts, which I think should 28 be paid most attention to, are those which have 29 given by the Sioux, a very numerous itinerant 30 nation of Indians, who generally reside in the 31 countries north of the Mississippi: A few of 32 them have sometimes come to the French post, on 33 the River Illinois, to barter skins and furs; 34 but in general they dislike the Europeans, and 35 have little inclination to be much acquainted 36 with them. Their account is as follows: The 37 River Mississippi rises from a very extensive 38 swamp, and its waters are increased by several 39 rivers (some of them not inconsiderable) 40 emptying themselves into it in its course to 41 the fall of St. Anthony, which, by their 42 accounts, is not less than 700 leagues from the 43 great swamps: This is formed by a rock running 44 across the river, and falls about twelve feet 45 perpendicular, and this place is known to be 46 800 leagues from the sea." 47 27431 Submissions by Mr. Goldie

1 So that your lordship will see that the falls of St. 2 Anthony were asserted to be 2400 miles from the Gulf 3 of Mexico and the source was said to be another 2100 4 miles. So that -- and he concludes: 5 6 "So that it is most probable that the 7 Mississippi runs, at least, four thousand five 8 hundred miles." 9 10 The cartographer Jonathan Mitchell wrote a book 11 published in 1757 in which he described the 12 Mississippi River as draining from latitude 50 or 51 13 north to the Gulf of Mexico. And that is under the 14 next tab. And this is Mitchell's book called "The 15 Contest in America Between Great Britain and France". 16 And the original of -- the facsimile of the original 17 page is in the next page. That's 1757. And on page 18 77, which is the right-hand column, it -- the first 19 complete paragraph begins with these words: 20 21 "As for the Mississippi it is still more 22 extensive than the river St. Lawrence. It 23 springs in the northern and western parts of 24 North America, about the same sources with the 25 waters that fall into the great lakes and the 26 river St. Lawrence, and runs through that whole 27 continent almost, from the latitude 50 or 51, 28 to the latitude 29. Its branches again spread 29 from east to west, rather farther perhaps than 30 this its course from north to south." 31 32 And I now deal with the boundary which I say 33 wasn't really a boundary. The framers of the Royal 34 Proclamation believed that the headwaters of the 35 Mississippi River arose at about 50 degrees north, 36 that Rupert's Land extended as far south as 49 37 degrees, and accordingly that the meeting of the 38 Mississippi and Rupert's Land formed a contiguous 39 north/west boundary for the reserve. 40 A number of historical documents dating after 1763 41 confirm that the reserve had been given definite 42 boundaries to the north and west. My lord, I 43 interject at this point to refer to the Labrador 44 boundary reference, the judgment of the Privy Council, 45 which is in my friend's authorities, Volume 8 Tab 15. 46 And I refer at page 422 to these words: 47 THE COURT: 42? 27432 Submissions by Mr. Goldie

1 MR. GOLDIE: 422, yes, my lord. 2 THE COURT: Yes. 3 MR. GOLDIE: 4 "The colony of Newfoundland claim to support 5 its case founded on the documents by a 6 reference to evidence showing that the 7 annexation of the coast had from the years 1763 8 onwards been understood and treated by everyone 9 as including the whole area lying between the 10 sea and the watershed or height of land." 11 12 And I now come to the words that I say are relevant to 13 my next submission: 14 15 "And there is no doubt that where a document is 16 ambiguous, evidence of a course of conduct 17 which is sufficiently early and continuous may 18 be taken into account as bearing upon the 19 construction of the document. In this case"... 20 21 That is to say the Newfoundland case. 22 23 "In this case, the events of the 60 years next 24 after the year 1763 have a special relevance, 25 as the Statute of 1809, under which the present 26 title of Newfoundland directly arises, and the 27 Statute of 1825 may be assumed to have been 28 passed with knowledge of the public events 29 which had occurred before their passing." 30 31 With that background, I turn to paragraph 135 and say 32 as follows: Among the original papers of Colonial 33 Secretary Dartmouth, preserved at the National 34 Archives of Canada, is an anonymous document which had 35 an influence on the Quebec Act of 1774. The document 36 outlines the proposed extension to the boundaries of 37 Quebec. The southern boundary is described as 38 extending in the south to the confluence of the Ohio 39 and Mississippi River. The northern boundary is 40 described as following the limits of Rupert's Land 41 west as far as the Mississippi, and then south along 42 the Mississippi River to the Ohio. 43 Now, if I may refer -- first I should ask your 44 lordship to stroke out the first exhibit number; that 45 there is only the one exhibit. The first 1167-316 is 46 not relevant. I turn to Tab 135. And this is a 47 handwritten copy of Exhibit 1167-314. And then 27433 Submissions by Mr. Goldie

1 following the -- following the blue separator sheet is 2 a printed version of that found in the Shortt and 3 Doughty constitutional documents. And I refer first 4 to footnote number 1 on page 381: 5 THE COURT: Yes. 6 MR. GOLDIE: 7 "Canadian Archives, Dartmouth Papers. The 8 boundary line as here proposed indicates the 9 limits within which it was desired to confine 10 the English colonies. That it was largely 11 adopted, despite the opposition of some 12 supporters of the Ministry, will be seen from 13 the third draught of the bill which follows. 14 No clue is given as to the author of this 15 proposal, but as may be observed from a letter 16 of Dartmouth to Cramahe of December 1st, 1773, 17 this extension of the limits of the Province, 18 like the establishment of the Roman Catholic 19 religion, was represented as a direct 20 concession to the Canadian noblesse and clergy 21 in response to their petition." 22 23 Now, referring to the last paragraph of that document, 24 which ends at page 382, those two paragraphs on that 25 page are introduced by the words "Limits and 26 boundaries of the Government of Quebec should be 27 altered and enlarged in the following manner, that is 28 to say". And then I won't bother with the first 29 paragraph. And the second paragraph traces the line 30 to the entrance of the Lake Ontario from the St. 31 Lawrence. 32 33 "That the said line should pass from thence 34 across the said lake to the mouth or entrance 35 of the Strait of Niagra and should pass along 36 the East side of the said Strait until it falls 37 into the northern boundary of the province of 38 Pensylvania, and from thence it should follow 39 the course of the said boundary line as well as 40 on the north as the west, to the point where it 41 intersects the River Ohio, and so following the 42 course of the said river, from the said point 43 to its confluence with the River Mississippi. 44 That the said government should comprehend all 45 the coast of Labrador as far east as Esquimaux 46 River and be bounded on the north by a line 47 drawn drawn due west from the mouth of the said 27434 Submissions by Mr. Goldie

1 river to the southern limits of the territory 2 granted to the Hudsons Bay Company and to 3 follow the course of the said limits as far as 4 the River Mississippi, the said river to be the 5 boundary on the west from the point where it is 6 intersected by the southern limits of the 7 territory granted to the Hudson's Bay Company 8 as aforesaid, as low down as the mouth of the 9 River Ohio." 10 11 So that would complete the loop, so to speak. 12 The commission to Governor Carleton of Quebec 13 (December 1774) I have referred to and it was drafted 14 to comply with the changes in the boundaries of 15 Quebec. And I won't repeat that reference, my lord. 16 It -- its inception is found in the -- in the document 17 at -- under Tab 136, which is an extract from the 18 proceedings of the Privy Council. And in 1774 on 19 December 10th the commission was referred to the 20 Attorney and Solicitor General for changes in 21 pursuance to the Quebec Act. 22 Going back to my summary, the portion of the 23 commission dealing with the western and southwestern 24 boundaries of Quebec traces that limit along the Ohio 25 River and then north along the banks of the 26 Mississippi to Rupert's Land. 27 When Sir Frederick Haldimand was appointed 28 Governor of Quebec in 1777, his commission contained a 29 similar description of the western boundary of Quebec. 30 Lord Dorchester's commission of 1786 as Governor 31 of Quebec also draws the boundary due west from the 32 Lake of the Woods to the River Mississippi. 33 The Treaty of Paris, 1783, which brought an end to 34 the American Revolution, settled the international 35 boundary between British North America and the United 36 States. That part of the boundary separating Rupert's 37 Land from American territory describes a line drawn 38 due west just above the 49th parallel to the 39 Mississippi River. And the references there, my lord, 40 are taken from the publication documents illustrative 41 of the Canadian Constitution, and Appendix A is the 42 treaty in question. And the part that is relevant in 43 paragraph two is in the first paragraph on that page 44 268 beginning with the words "Thence through the 45 middle of said long lake". It's about half-way down 46 the paragraph. It should be a side line that 47 indicates it. 27435 Submissions by Mr. Goldie

1 THE COURT: Yes. 2 MR. GOLDIE: 3 "Thence through the middle of said long lake 4 and the water communication between it and the 5 Lake of the Woods, to the said Lake of the 6 Woods, thence through the said lake to the most 7 western point thereof and from thence on a due 8 west course to the River Mississippi." 9 10 So that it -- at that point it was thought there would 11 be an intersection with the River Mississippi. 12 The other reference is to Dr. Greenwood's evidence 13 and at page 20625 of Volume 277, which is part of that 14 extract -- 15 THE COURT: I'm sorry. What page? 16 MR. GOLDIE: Page 20625. The extract begins at page — 17 THE COURT: Yes. 18 MR. GOLDIE: — 20624 and the witness' attention had been 19 addressed to the treaty language, the Treaty of Paris 20 of 1783. And at line 11 on page 20625, the question 21 is put: 22 23 Q "Right. About what parallel are we at when 24 the -- we're directed to go due west on a 25 due west course to the Mississippi? 26 A Just slightly above the 49th I believe." 27 28 And then at page line 30: 29 30 Q "What is being separated or what is 31 between -- between what political entities 32 are we looking at with respect to that 33 boundary? 34 A Essentially it's Rupert's Land. After the 35 Lake of the Woods it's essentially Rupert's 36 Land and the United States of America. 37 East of the Lake of the Woods it would be 38 Quebec." 39 40 I say in the Manitoba-Ontario boundary dispute 41 which has been referred to earlier, part of Manitoba's 42 case was that the line from the confluence of the Ohio 43 and Mississippi rivers should be drawn due north 44 rather than along the northwestern course of the 45 Mississippi. The dispute is significant because 46 Ontario's -- or that is to say Upper Canada from 1791 47 to 1867 -- boundaries tracked the limits of the 27436 Submissions by Mr. Goldie

1 western half of the old colony of Quebec. I say old 2 colony. I mean post-1774. 3 Now, Manitoba's position was rejected. The 4 Judicial Committee upheld Ontario's submission that 5 the 1774 colony of Quebec, which became Upper Canada, 6 extended north along the banks of the Mississippi. 7 That is to say, it tracked those limits. 8 Jay's Treaty between Great Britain and the United 9 States settled a number of outstanding issues in 1794, 10 but referred to an uncertainty about whether the 11 Mississippi River in fact extended as far north as the 12 southern limit of the British territories as specified 13 in the Treaty of Paris of 1783. A commission was to 14 be appointed to deal with this, but it never met. And 15 that's Dr. Greenwood's evidence. 16 The recently published Historical Atlas of Canada 17 is the result of the combined efforts of leading 18 cartographers and historians. Plate 42 of the atlas 19 shows the reserve extending only as far west as the 20 Mississippi and as far north as the limit of Rupert's 21 Land. And that's under Tab 144. 22 THE COURT: That's the one we looked at before. 23 MR. GOLDIE: And that's the one we looked at before, yes, my 24 lord. What I'm saying here is that the people within 25 whose memory the matter would be fresh in dealing with 26 boundaries assumed that the limits of the reserve were 27 fixed and at the northwest corner that were 28 constituted by the intersection of the Mississippi and 2 9 Rupert's Land. 30 Now, I go on to the plaintiff's argument on the 31 extension of the reserve to the north and west of the 32 Mississippi River and to British Columbia. And this, 33 I think, is a variation on the same theme, an open 34 door. The plaintiffs rely on trade licences issued 35 after 1763 by the Governors of Canada to traders for 36 the region north and west of the Great Lakes in order 37 to support an assertion that this area formed part of 38 the reserve. The licences issued were for the "Posts 39 of the Western Sea", which were located in and about 40 the Great Lakes of the prairies, extending no farther 41 west than Fort La Corne at the forks of the 42 Saskatchewan River. And the various posts themselves 43 are found located in the Historical Atlas excerpt, 44 which is Exhibit 1170. And that should be found under 45 Tab 145. Yes. And there should be a colour 46 reproduction of that, my lord. 47 Now, the -- in the exhibit itself, the numbers and 27437 Submissions by Mr. Goldie

1 names of the forts in French Canada -- not French 2 Canada, in the -- well, in French Canada and then in 3 the area exploited from French Canada are provided, 4 but one can locate the forts which are identified 5 elsewhere as the forts of the western ocean or western 6 sea, La Mer te 1'Ouest. The situation which developed 7 after the conquest and after the Treaty of Paris of 8 1763 was that the Montreal merchants -- the French 9 merchants who had been accustomed to trading in the -- 10 in Rupert's Land were joined by English-speaking 11 merchants and the competition with the Hudson's Bay 12 was very sharply increased. 13 Now, the submissions we make with respect to the 14 plaintiff's argument based upon these trade licences 15 and on the fur trade that it represents is set out 16 beginning at paragraph 146. I say first and foremost, 17 the region for which the licences were granted formed 18 part of the Rupert's Land. Now, as your lordship 19 was -- is aware, Rupert's Land was excluded from the 20 reserve by the express terms of the Royal 21 Proclamation. In addition, the Indian Management Plan 22 of 1764, which is ex post facto evidence of the 23 intended geographic scope of the Proclamation's Indian 24 trade provisions, expressly prohibits interference 25 with the Hudson's Bay Company territory by its opening 26 article. 27 And under Tab 146 there is the -- an excerpt from 28 the Royal Proclamation followed by an excerpt from the 29 1764 plan, which was never fully implemented but can 30 be looked at as a statement of intention. And article 31 1 or paragraph 1 of that plan reads, and I quote: 32 33 "That the Trade and Commerce with the several 34 tribes of Indians in North America under the 35 protection of His Majesty shall be free and 36 open to all of His Majesty's subjects, under 37 the several regulations and restrictions 38 hereafter mentioned, so as not to interfere 39 with the Charter to the Hudson's Bay Company." 40 41 Now, the -- the merchants of Quebec, especially of 42 Montreal, were not happy at any prospect of being shut 43 out of the areas that they had traded in before 1763. 44 But, nevertheless, in terms of the application of the 45 Royal Proclamation, the area itself was Rupert's Land. 46 The licences, in fact, to trade at "La Mer te 1'Ouest" 47 were rare in the years immediately following the Royal 2743? Submissions by Mr. Goldie

1 Proclamation. The plaintiffs put in evidence only 2 three such licences, the earliest of which was issued 3 in 1769. And those exhibit references are to the 4 documents in question. 5 Then at paragraph 148, the issuance of the 6 licences for trading in Rupert's Land resulted from 7 the increasing pressure on colonial officials in 8 Canada after 1763 to grant licences to individual 9 traders (and eventually the North West Company) 10 operating out of Montreal. And there is a reference. 11 The -- the first one under Tab 148 is to minutes 12 prepared by Lord Shelburne. The -- and I won't 13 comment on that further. But my point here is that 14 the Montreal merchants were determined to compete with 15 the Hudson's Bay Company for furs in Rupert's Land. 16 And your lordship will recall from what I read from 17 rich this morning that the Hudson's Bay Company 18 charter was being questioned at home and it was -- as 19 we will see, it was one that was regarded as very 20 shaky by the Montreal merchants, and they weren't 21 prepared to -- to acknowledge its monopolistic 22 features. 23 And as I will note, particularly in part 7 of my 24 summary, and I'm back in paragraph 148, the resulting 25 conflict between the Hudson's Bay Company and other 26 traders was ultimately resolved only by the merger of 27 that company with the North West Company. 28 The second flaw, in my submission, with respect to 29 the plaintiffs' reliance on trade licences is that 30 their argument assumes that the Indian trade 31 provisions were co-extensive with the Proclamation's 32 land provisions. As will be demonstrated later, this 33 was not the case. For example, it appears the trade 34 provisions apply to Nova Scotia, but the land 35 provisions did not. Now, when I say the trade 36 provisions apply to Nova Scotia, I'm referring to the 37 fact that its tribes were listed in the Indian 38 Management Plan of 1764. And I will acknowledge that 39 that plan in itself differs somewhat in its intentions 40 than the proclamation. 41 And then paragraph 150, thirdly, the issuance of 42 trade licences was not conclusive of the application 43 of the Royal Proclamation to the region named in the 44 licence. After the American revolution licences were 45 issued for lands recognized by the British as American 46 territory. And there is a reference to a treatise 47 there, my lord, under Tab 150. And I won't read it, 27439 Submissions by Mr. Goldie

1 but it is part of the history of the British -- what 2 happened in the years following the American 3 revolution, the British retained some possession of 4 fur trading posts in what was then American territory, 5 what became American territory, and licences were 6 issued for that. 7 Montrealers trading with Indians in Spanish 8 Louisiana also appeared to be subject to colonial 9 trade regulations. And it, of course, is unlikely 10 that the proclamation was intended to apply to Spain 11 or to territory owned by Spain. 12 Fourthly, the plaintiffs' argument assumes that 13 the Royal Proclamation was the only source of 14 authority for the issuance of licences. The evolving 15 plan or policy for dealing with Indian trade in North 16 America was the result of a number of instruments 17 subsequent to the Royal Proclamation, such as 18 governors' commissions and instructions. 19 And under Tab 152 is the copy of Carleton's 20 instructions of January 3rd, 1775. And paragraph 30 I 21 may have already referred to, but it refers to: 22 23 "The extension of the limits of the province of 24 Quebec"... 25 26 And parenthetically, of course, I note that's the 27 Quebec Act of 1774. 28 29 "... necessarily calls forth your attention to 30 a variety of new matter and new objects of 31 consideration. The protection and control of 32 the various settlements of Canadian subjects 33 and the regulation of the peltry trade in the 34 upper or interior country, on the one hand, and 35 the protection of the Fisheries in the Gulf of 36 St. Lawrence", et cetera, on the others. 37 38 So the Governor of Quebec is being told that the 39 regulation of the fur trade is something that he can 40 take into his own hands. 41 That the British policy on Indian trade was 42 independent of the provisions of the Royal 43 Proclamation is made evident by the fact that the plan 44 came to embody policies inconsistent with the express 45 terms of the Royal Proclamation. For example, the 46 Quebec ordinance of 1791 eliminated the requirement 47 that traders obtain licences from the Crown. And 27440 Submissions by Mr. Goldie

1 under Tab 153 is the Quebec ordinance of April 14th, 2 1791. And just down towards the bottom of the page, 3 my lord, on the English column are the words, quote: 4 5 "That from and after the publication of this 6 Act, it shall not be necessary for any of His 7 Majesty's subjects carrying on trade or 8 other -- or other something residence of this 9 province, to take out anywhere or from any 10 person or persons any licence, something or 11 other, permit, or other writing whatsoever; for 12 egoing into and something with the Indians as 13 other inhabitants of the western countries, 14 district or counties of this province, or 15 territories whatsoever." 16 17 That was, of course, directly contrary to the Royal 18 Proclamation provisions. The bottom -- 19 THE COURT: It's sidemarked, isn't it? 20 MR. GOLDIE: Yes, my lord. It is, my lord. 21 MR. GOLDIE: Now, that -- the next paragraph I have made a 22 reference to the judgment of the court of appeal in 23 Bear Island. And the -- I -- what is included here is 24 a reference to what occurred in Quebec after the -- 25 after the Quebec Act of 1774 was repealed a Royal 26 Proclamation. And as I've just read, the licences 27 were issued notwithstanding the repeal up till 1791, 28 whereas by virtue of the repeal, the court of appeal 29 notes that the procedural requirements for purchase, 30 that is to say of Indian lands, at some public meeting 31 or assembly was repealed. All I'm saying here, my 32 lord, is -- or not all I'm saying, but emphasizing the 33 fact that the -- the -- the Royal Proclamation in 34 respect of Quebec was repealed in 1774, but the 35 licences continued to be issued until 1791, and that 36 the court of appeal appears to view the effect of the 37 appeal in 1774 as immediately repealing the 38 requirement that the purchase be made at some public 39 meeting or assembly. So there is no necessary 40 parallel connection between the regulation of the fur 41 trade and the land provisions of the Royal 42 Proclamation. 43 So I say in paragraph 155, in summary, the 44 evolution of the Indian Management Plan and the 45 licences issued under it are not evidence of the 46 application of the Royal Proclamation to the northwest 47 as a part of the reserve. Nor do the licences suggest 27441 Submissions by Mr. Goldie

1 that the Royal Proclamation was prospective in nature. 2 And certainly the colony of Quebec in 1791 didn't 3 require that -- didn't even consider that the Royal 4 Proclamation required the continuation of licencing. 5 The plaintiffs also argue that the language used 6 in a number of Imperial acts demonstrates that British 7 Columbia was part of the reserve. And the -- they 8 refer to the Act of 1803. And I introduce my 9 consideration of that in the next paragraph. 10 A desire to bring all British holdings in North 11 America within the civil and criminal jurisdiction of 12 the governments of upper and lower Canada led to the 13 passing of "An Act for extending the jurisdiction of 14 the Courts", 1803, 43 George III, Chapter 138 (the 15 1803 Act), and then some years later "An Act for 16 regulating the fur trade and establishing a criminal 17 and civil jurisdiction within certain parts of North 18 America. And that should be 1821, my lord, instead of 19 1828, 1821, George IV, et cetera, the 1821 Act. The 20 1858 Act, that's the British Columbia Act, 21 establishing the colony of British Columbia repealed 22 the application of both the 1803 Act and the 1821 Act 23 to the territory that became that colony. 24 Both the 1803 and the 1821 Acts conferred upon the 25 provinces of upper and lower Canada the 26 extra-territorial jurisdiction to deal with matters 27 "... within any of the Indian territories or parts of 28 America not within the limits of either of the said 29 provinces"... 30 The plaintiffs say that the Acts of 1803 and 1821 31 apply to British Columbia because it was part of the 32 Indian territory, which the plaintiffs interpret to be 33 synonymous with the reserve. And in my submission 34 this argument is unsound. 35 First, the phrase "Indian territory" is not used 36 in the Royal Proclamation in referring to lands 37 reserved to the Indians and it cannot be equated with 38 that reserve. The phrases "Indian territory", "Indian 39 country", "interior country" and "upper country" were 40 all used interchangeably to refer to unsettled areas 41 frequented by Indians where the fur trade was carried 42 on. The phrases carried with them no connotation of 43 an area having anything like fixed geographic 44 boundaries. The areas covered by these phrases were 45 subject to change as the areas penetrated new regions. 46 For example, the framers of the Royal Proclamation 47 thought of the Indian country in the northwest as an 27442 Submissions by Mr. Goldie

1 area around the Great Lakes where the French had 2 traded. And the reference there is -- 3 THE COURT: Well, these two statutes don't include any 4 geographic boundaries, do they? 5 MR. GOLDIE: Not in precise terms, my lord. They do it by - by 6 exception, if may put it that way And perhaps I 7 should -- 8 THE COURT: These are Imperial statutues? 9 MR. GOLDIE: These are Imperial statutes, yes. 10 THE COURT: It says in the first one: 11 12 " Whereas crimes and offences have been 13 committed in the Indian territories, are not 14 and other parts of America, not within the 15 limits of the provinces of Lower or Upper 16 Canada, or either of them, or of the 17 jurisdiction of any of the courts established 18 in those provinces, or within the limits of any 19 civil government of the United States"... 20 21 MR. GOLDIE: Yes. That's what I meant by exception. 22 THE COURT: Yes. All right. 23 MR. GOLDIE: 24 Q Paragraph 161. After I noted that the framers of the 25 Royal Proclamation thought of the Indian country in 26 the northwest as an area around the Great Lakes, I say 27 while it may be argued that British Columbia lay 28 within the Indian territories, it may be argued with 29 equal force that it lay within the other parts of 30 America referred to, and so no conclusion in favour of 31 either choice to the exclusion of the other can be 32 arrived at by reading the Acts of 1803 and 1821. And 33 nor does it particularly matter. Caledonia before it 34 became British Columbia was a British territory not 35 within the bounds of a colony. 36 And, finally, of course, the Acts themselves make 37 no reference to the Royal Proclamation, although if -- 38 if my friends are correct, that they repeal by 39 implication a provision of the Proclamation, and that 40 is the provision at AA on the last page of the -- of 41 the proclamation, which expressly enjoins and requires 42 all officers whatever, as well military as those 43 employed in the management and direction of Indian 44 Affairs, to seize and apprehend all persons whatever 45 who stand charged with certain matters and who fly 46 from justice and take refuge in the said territory or 47 descend them under a proper guard to the colony where 27443 Submissions by Mr. Goldie

1 the crime was committed. Now, the Acts of 1803 and 2 1821 expressly contradict that by saying that the 3 people who commit crimes within the territory should 4 be sent to Lower Canada. 5 Then I have a final submission at page 61 of the 6 summary. As a final point on the existence of fixed 7 limits to the reserve, the Defendant Province submits 8 that it cannot have been the intention of the framers 9 of the proclamation to extend the reserve to the 10 Pacific Ocean. That -- this is the substance of what 11 I earlier submitted. That it would be contrary to the 12 intention of the Treaty of Paris to extend the 13 proclamation beyond the Mississippi or in any way in 14 the territory that was not clearly ceded and could be 15 definitely established as ceded. 16 And then at the bottom of page 61 I -- 17 THE COURT: I think we'll take the afternoon adjournment, Mr. 18 Goldie. 19 THE REGISTRAR: Order in court. Court stands adjourned for a 20 short recess. 21 22 (PROCEEDINGS ADJOURNED) 23 24 I hereby certify the foregoing to be 25 a true and accurate transcript of the 26 proceedings transcribed to the best 27 of my skill and ability. 28 29 30 31 Kathie Tanaka, Official Reporter 32 UNITED REPORTING SERVICE LTD. 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 27444 Submissions by Mr. Goldie

1 h2 Submissions by Mr. Goldie 2 (PROCEEDINGS RESUMED AT 3:20 p.m.) 3 4 THE REGISTRAR: Order in court. 5 THE COURT: Mr. Goldie. 6 MR. GOLDIE: My lord, I am at page 61. 7 THE COURT: Yes. And this is the submission that even if the 8 reserve did not have our definite northern and western 9 boundaries, which we submit it did, these cannot -- 10 this lack of definiteness does not include British 11 Columbia. 12 Paragraph 165. The Province submits that, even if 13 the reserve can be construed as having in some part 14 indefinite western limits, British Columbia was not 15 included in the reserve as defined in the Royal 16 Proclamation. 17 Paragraph V of the Proclamation describes the 18 Indian Reserve carved out of the British acquisitions 19 in 1763 in the following words, and then I set out the 20 words which constitute the reserve. And part of the 21 exceptions are the exclusion of the lands and 22 territories not included within the limits of our said 23 three new governments or within the limits of the 24 territory granted the Hudson's Bay Company. As also 25 all the lands and territories of the sources of the 26 river which fall into the sea and northwest as 27 aforesaid. That's not an exception. 28 There are ambiguities in the description of the 29 reserve in item V. First, the lands and territories 30 are defined by exception as "all the lands not 31 included within..." Rupert's Land and the new colonies 32 of Quebec and east and west Florida. 33 The second part of the definition requires 34 identification of "the sources of the rivers which 35 fall into the sea from the west and northwest". 36 Dealing with the plaintiff's submission, the 37 Plaintiffs argue that British Columbia falls within 38 the reserve created by the first part of the 39 definition of the reserve: that is to say all the 40 lands and territories excluding the three new colonies 41 and Rupert's Land. That argument has been answered by 42 the Province in the section of this Summary dealing 43 with the extent of British holdings or claims to 44 sovereignty in North America in 1763, and the status 45 of British Columbia as terra incognita. Britain 46 cannot be taken to have reserved to the Indians 47 territory over which it made no claim in 1763. 27445 Submissions by Mr. Goldie

1 And I add, nor could it have been known to have 2 been said colonies to which the prerogative Canada 3 apply. 4 Paragraph 170. Further, to avoid absurdity, the 5 scope of lands and territories (which on a strict 6 construction could mean all the lands and territories 7 in the world other than those excepted) must be 8 limited by their context to those acquired under the 9 Treaty, as recited in paragraph A of the Proclamation. 10 I emphasize again, my lord, that the Proclamation is 11 the means of putting into effect the consequences of 12 the Treaty of Paris. 13 Then in paragraph 171. The plaintiffs also argue 14 that British Columbia falls within the Reserve created 15 by the second part of the definition in the 16 Proclamation: 17 18 "...As also all the Lands and Territories lying 19 to the Westward of the Sources of the Rivers 20 which fall into the Sea from the West and North 21 West as aforesaid." 22 23 The lands reserved are limited to those lying "to 24 the westward" of those sources. The northern boundary 25 of the Reserve may be determined by finding out which 26 of the sources lies furthest to the north, and drawing 27 a straight line west from its beginning. A similar 28 exercise could be conducted to determine the southern 29 boundary. The Reserve lands will lie between the two 30 lines. 31 Such a drawing of lines is not in the least degree 32 fantastical, nor is it a mere general way of speaking. 33 See in Paragraph F of the Royal Proclamation, which is 34 the government of west Florida which speaks of a 35 boundary: "to the northward by a line drawn due east 36 from that part of the River Mississippi which lies in 37 31 degrees north latitude". Governors' commissions 38 referred to in previous parts of this argument are 39 replete with similar descriptions. 40 It is submitted that when the northern boundary of 41 the lands lying to the west of the described rivers is 42 determined, and extended to the Pacific Ocean, that 43 line falls south of the 49th Parallel. Accordingly, 44 the Reserve does not, even on this liberal 45 characterization of its western extent, include 46 British Columbia. 47 Paragraph V describes -- 27446 Submissions by Mr. Goldie

1 THE COURT: What river do you choose as the most northerly? 2 MR. GOLDIE: I think that was determined by Dr. Farley to be 3 either the St. Johns or the Penobscot. 4 THE COURT: Yes, I remember. All right. 5 MR. GOLDIE: Either one has its origin below the 49th parallel. 6 And this goes on. We are coming to that very point 7 now. And paragraphs 175 or 176 state principles to be 8 applied. 9 177. Applying that definition the river with the 10 most northerly headwaters which flows into the 11 Atlantic Ocean is the Penobscot, which we know today 12 to rise in Crescent Pond at 46 degrees 27 minutes 13 north. That's Dr. Farley's calculation. Well, not 14 his calculation, that's an accepted location. 15 If standard terminology for bodies of water is 16 ignored, the St. John River, which drains into the Bay 17 of Fundy rather than directly to the Atlantic, is the 18 stream with the most northerly headwater. We know 19 today that the St. John rises in 48 degrees 5 minutes 20 north. 21 The most northerly point from which any stream 22 could reasonably be understood to "fall into the sea" 23 that is to say a point on the land from which a stream 24 could have its source, is Mt. Jacques Cartier, located 25 at the Gaspe Peninsula in 48 degrees 59 minutes north. 26 Mt. Jacques Cartier is the highest point in the 27 Peninsula. 28 For the purposes of establishing the northern 29 boundary of the lands lying to the west of the rivers 30 it is necessary to consider what the framers of the 31 Proclamation believed, and I mean with respect to the 32 geography of this area, in 1763. Prior to 1763 the 33 watershed described in paragraph V formed the 34 international northeast boundary between French and 35 British holdings in North America, so perceptions 36 about that boundary may be relevant as well. 37 It is inconceivable that the framers of the 38 Proclamation could have had access to more than a 39 general knowledge of this rather remote area of 40 northeastern America. Even the northeastern boundary 41 separating Canada from the British colonies between 42 what are now the state of Maine and the province of 43 New Brunswick was indefinite as late as 1783. All 44 these references are to Dr. Farley's report. 45 Prior to 1763 the uncertainty was exacerbated 46 because national ambition led cartographers to push 47 the boundary north or south to expand the territory of 27447 Submissions by Mr. Goldie

1 their respective sovereigns. 2 Contemporary maps variously show the Penobscot 3 River rising at 45 degrees 40 minutes north, 46 4 degrees 30 mintues north, 47 degrees north, or 47 5 degrees 30 minutes north. The Bowen map attached to 6 the Board Report shows the headwaters of the Penobscot 7 at 46 degrees 30 minutes north. 8 My lord, Mr. Farley's or Dr. Farley's overlay with 9 respect to the northeast drainage does the same thing 10 as he did with Mississippi and plots the location of a 11 number of the -- again to show the wide variation. 12 On the same maps, the source of the St. John River 13 ranges from 47 degrees 10 minutes north through 49 14 degrees north. The Bowen map shows the headwaters of 15 the St. John River at 48 degrees north. 16 Boundaries between the British colonies and Canada 17 are not always shown. Where they appear to be 18 indicated, the most northerly point of the boundary is 19 variously represented as 45 degrees, 48 degrees 15 20 minutes, 48 degrees 30 minutes, 49 degrees 15 minutes, 21 and so on. The Bowen chart has a dotted line 22 following the Penobscot to its headwaters, then 23 extending due north to the St. Lawrence. The 24 intersection with the St. Lawrence is at 48 degrees 30 25 minutes north. However, the line may not have been 26 intended to represent a territorial limit. 27 A line drawn west from the most northerly source 28 of either the Penobscot or the St. John Rivers as 29 those sources which would be understood to be in 1763, 30 the sources which would be understood in 1763, would 31 extend the Reserve no farther north than 49 degrees 32 north. The mainland of British Columbia lies to the 33 north of that parallel. 34 If anything can be taken from the northwest 35 boundaries between British and French territory in 36 North America tentatively represented on the maps of 37 the day, the northern limit of the Reserve might lie 38 as far north as 49 degrees 55 minutes. The territory 39 claimed by the Plaintiffs in this Action lies above 40 the 53rd parallel. 41 And then in Regina vs. Sikyea, Mr. Justice Johnson 42 of the Northwest Territories Court of Appeal 43 considered the location of the "sources of the rivers 44 which fall into the sea from the west and northwest" 45 and found that the Northwest Territories lay to the 46 north and not to the westward of those rivers. Based 47 on this finding and the finding that the area was 27448 Submissions by Mr. Goldie

1 terra incognita in 1763, Mr. Justice Johnson concluded 2 that the Royal Proclamation did not apply to the 3 Indians of the Northwest Territories. And I remind 4 your lordship that the Supreme Court of Canada came to 5 the same conclusion with respect to Rupert's Land, 6 that that was the judgment of Mr. Justice Hall of Mr. 7 Narvay would have us disregard. 8 THE COURT: I am sorry, Mr. Narvay. 9 MR. GOLDIE: Well, my friends drew to your lordship's attention 10 an article by Mr. Narvay in which he said as a result 11 of a personal communication from Mr. Hall that 12 regarded his judgment in that case as erroneous. Even 13 if he did, there were eight other judges of that 14 court. 15 THE COURT: What's the name of that case? 16 MR. GOLDIE: Sigeareak. I have some trouble pronouncing it, my 17 lord, but -- 18 THE COURT: That's not bad, I have trouble remembering it. 19 Which is worse? 20 MR. GOLDIE: Sigeareak, it's in the plaintiff's authorities I 21 believe. 22 THE COURT: That's good enough, thank you. 23 MR. GOLDIE: I will give your lordship the citation to it. 24 In summary, British Columbia lies north, and not 25 west of the rivers which flow from the west and 26 northwest into the Atlantic Ocean. 27 Now, paragraph 190. I say in some parts of their 28 argument and I perhaps should stand corrected, in some 29 parts of the summary of their argument the Plaintiffs 30 reject the accepted eastern boundary of the reserve 31 and argue that the boundary described by "the sources 32 of the rivers which fall into the sea from the west 33 and northwest" cannot be equated with the Appalachian 34 line. The Plaintiffs assert that the rivers referred 35 to include those draining into the Gulf of St. 36 Lawrence. 37 Now, I think -- I think that issue has been 38 resolved, my lord. I believe the Plaintiffs do accept 39 that the eastern boundary is the Appalachian line. 40 In any event, the expression used in paragraph V 41 of the Proclamation refers to "the sea...as 42 aforesaid". The previous reference to the sea occurs 43 in paragraph U -- that the antecedent and then to the 44 sea as aforesaid is in U and it's heads are sources of 45 any of the rivers which fall into the Atlantic Ocean. 46 So it is the Atlantic Ocean we are talking about. The 47 Plaintiffs say, at least we understood them to say, 27449 Submissions by Mr. Goldie

1 that the framers of the Royal Proclamation did not 2 distinguish between the Gulf of St. Lawrence and the 3 Atlantic Ocean. They suggest that Dr. Farley's 4 distinction between the gulf and the ocean is 5 misleading in the sense that it is based on 6 "contemporary hydrological" definitions. The fallacy 7 inherent in this argument is apparent on a review of 8 the Bowen map of 1763 which was relied upon by the 9 Board of Trade and sent to the King for his 10 consideration. 11 MR. RUSH: I don't think there is any evidence that it was 12 relied upon by the Board of Trade. 13 MR. GOLDIE: Well, the evidence, my lord, of course is that the 14 Board of Trade sent it to the King and the reliance 15 derives from the fact that the Board would not send 16 something unreliable to the King. That's the 17 submission that I would make. 18 MR. RUSH: Well, if it is an argument, my lord, I don't — I 19 can't take contest with it but, if it is a factual 20 statement, I don't think the evidence bears it out. 21 MR. GOLDIE: Your lordship has my position on that. 22 The fallacy is that I have repeated -- I have 23 repeated that that map shows the Gulf of St. Lawrence 24 as a body of water distinct from the broad Atlantic 25 Ocean. The Gulf is surrounded by land on all sides 26 except for two narrow channels. 27 THE COURT: I am having trouble with that. Oh, you are talking 28 about -- 29 MR. GOLDIE: It's part of — it is — the part that I am 30 referring to is not on the part that's up on the 31 board. 32 THE COURT: I am looking at the northeast drainage and I see the 33 Gulf St. Lawrence there and what are you talking 34 about, the two narrow channels? 35 MR. GOLDIE: On either side. 36 THE COURT: Yes, all right. 37 MR. GOLDIE: Narrow is relative, my lord. 38 THE COURT: Not by British Columbia standards. 39 MR. GOLDIE: It's wide by my standards but in terms of sailing 40 vessels that are beating against the wind it might not 41 be. 42 The Plaintiffs argue that the Proclamation line 43 cannot be the Appalachian watershed because Labrador 44 was part of the Reserve and does not fall to the 45 westward of the Appalachian Mountains. This 46 submission ignores the dual aspect of the definition 47 of the Reserve. The Reserve as defined consisted not 27450 Submissions by Mr. Goldie

1 only of land to the westward of the rivers but also of 2 lands not included in the three new colonies and 3 Rupert's Land. The latter aspect of the definition of 4 the Reserve encompasses Labrador and the corridor 5 between Rupert's Land and Quebec, as ceded. 6 The reference to the Sigeareak case is, 7 S-i-g-e-a-r-e-a-k vs. the Queen, 1966 Supreme Court 8 Report, 645. 9 THE COURT: 1966. 10 MR. GOLDIE: Supreme Court Report, 645, and it's found in the 11 Plaintiffs' authorities, series 4, volume 23 tab 5. 12 THE COURT: How is that spelled? 13 MR. GOLDIE: S-i-g-e-a-r-e-a-k vs. the Queen and it was a 14 judgment of the full court given by Mr. Justice Hall. 15 And he stated at page 650: 16 17 "The Proclamation specifically excludes 18 territory granted to the Hudson's Bay Company 19 and there can be no question that the region in 20 question was within the area granted to 21 Hudson's Bay Company. Accordingly, the 22 Proclamation does not and never did apply to 23 the region in question. The judgments to the 24 contrary are not good law." 25 26 And going to page 71 of my summary, item C, By 27 its Terms the Royal Proclamation did not Apply to the 28 Indians of British Columbia. The Defendant Province 29 submits that by its terms the Royal Proclamation 30 applied to a limited number of Indian tribes which did 31 not include the Indians of British Columbia. 32 All of the Indian provisions of the Royal 33 Proclamation set out at paragraphs S through Y refer 34 to "the said Indians". My lord, that -- the 35 provisions in question are introduced by this preamble 36 and whereas it is just and reasonable and essential to 37 our interest in the security of our colonies that the 38 several nations or tribes of Indians with whom we are 39 connected and who live under our protection should not 40 be molested or disturbed in the possession of such 41 parts of our dominions and territories as not having 42 been ceded to or purchased by us a reserve to them or 43 any of them as their hunting grounds". My submission, 44 that is a very specific reference and it does not 45 include the Indians of British Columbia. The Indians 46 contemplated -- I am at 196, my lord, the Indians 47 contemplated by paragraph S are those nations with 27451 Submissions by Mr. Goldie

1 whom the King was connected and who lived under his 2 protection. In other words, the preamble refers to 3 Indians who are subjects of King George III. The 4 Board of Trade in its supplementary report of August 5 5, 1763, described the Indians to whom the 6 Proclamation was to apply as "those Indian Nation 7 Subjects of your Majesty". 8 Now, the Indians of British Columbia were not in 9 fact and were never considered by anyone at this time 10 to be subjects of his Majesty in 1763. 11 Furthermore, the Indians referred to in paragraph 12 S were those under the protection of the British 13 Crown. The tribes of Indians in British Columbia were 14 not living under the King's protection in 1763: they 15 had no access to the King's courts, magistrates or 16 military commanders. And -- well, that's simply a 17 fact. The King was quite unable then or in the 18 contemplated future to ensure that Indians living on 19 the west coast of North America were not "molested or 20 disturbed in the Possession" of their lands, which 21 according to the preamble is the whole immediate 22 purpose of the ensuing section. The preamble, 23 moreover, applied to territory where Indian lands 24 could be ceded to the Crown, in that it promised 25 protection to lands "not having been ceded to or 26 purchased by us". Cession of Indian lands to the 27 Crown was not a prospect in the British Columbia of 28 1763. 29 That the illusory nature of the premise that the 30 Indians of British Columbia fell under the protection 31 of King George in 1763 can be shown by considering the 32 corollary: subjects under the protection of the King 33 owe allegiance to him. The Indians of British 34 Columbia were not bound to obey and serve King George 35 in 1763. The reference there is to Calvin's case 36 under tab 199. This is from the English reports and 37 it's -- 38 THE COURT: This is the case of Calvin. 39 MR. GOLDIE: This is the case of — yes, I think that's right. 40 It starts off midway down the page: 41 42 "1(a) Ligeance is a true and faithful obedience of 43 the subject due to his Sovereign. This 44 ligeance and obedience is an incident 45 inseparable to every subject: for as soon as 46 he is born he oweth by birth-right ligeance and 47 obedience to his Sovereign." 27452 Submissions by Mr. Goldie

1 2 And then a number of lines further down after a Latin 3 quotation, the words and -- and just below where the 4 side lining begins: 5 6 "And therefore it is holden 20 H. 7.8..." 7 8 Chapter 8 I suppose: 9 10 "...that there is a liege or ligeance between 11 the King and the subject." 12 13 And then about five lines further down: 14 15 "Ligeance is the mutual bond and obligation 16 between the King and his subjects, whereby 17 subjects are called his liege subjects, because 18 they are bound to obey and serve him; and he is 19 called their liege lord, because he should 20 maintain and defend them." 21 22 The use -- well, the Indians of British Columbia were 23 not only not subjects to the King, they were not bound 24 to obey or serve him, nor was he bound to protect 25 them, nor could he. 26 The use in paragraph S of the words "The several 27 Nations or Tribes" suggests that a limited number of 28 distinct tribes were affected by the Proclamation and 29 could be so identified. A review of the documents of 30 the day indicates this is so. Approximately three 31 weeks before the Proclamation was issued, Halifax had 32 instructed the Board to prepare a management plan 33 dealing with Indian Trade in a general way. The 34 Board's first attempt was followed by a second. This 35 was sent to Sir William Johnson, Superintendent of 36 Indian Affairs for the Northern District, on July 10, 37 1764. The letter indicates that the Board intended to 38 have the Plan put before Parliament, although that 39 never happened. And that is evident from the document 40 itself which is Exhibit 1159-90B. 41 The plan was much more ambitious than the Royal 42 Proclamation, it was never fully implemented. Sir 43 William Johnson from the year 1766 to 1768 implemented 44 the plan in part by restricting trade with Indians to 45 trading posts, and imposing a tariff. Complaints by 46 the merchants about the restrictions, and the expense 47 of administering the plan, led the Imperial Government 27453 Submissions by Mr. Goldie

1 to abandon it. 2 After the passage of the 1774 Quebec Act, which 3 gave Quebec control of the fur trade in the Reserve, 4 the Plan was revived to some extent. Governor 5 Carleton was instructed to have the Legislative 6 Council enact ordinances implementing the Plan, and a 7 copy of it was enclosed with his instructions. And 8 that's found at tab 202, and it's paragraph 32 on page 9 428. 10 Now, the model that he was to follow was not the 11 model of the Proclamation but the model of the Plan 12 proposed in 1764 which was enclosed and which would 13 serve as a guide in a variety of cases in which it may 14 be necessary to make provision by law for that 15 important branch of the American commerce. That, my 16 lord, is Carleton's instructions of 1775, the 3rd of 17 January, and that was in part complied with with an 18 ordinance that was passed in 1777, and that is under 19 the next tab, and the relevant part is Article 3 in 20 which "from and after the publication of this 21 ordinance it shall not be lawful for any person to 22 settle in any Indian village or in any Indian country 23 within this province without a licence and writing 24 from the governor". Your lordship will bear in mind 25 that this was the expanded province that ran down to 26 the Mississippi. That -- and I note that in paragraph 27 204 that ordinance was enacted following the Quebec 28 Act, and it applied to the boundaries of Quebec which 29 then stretched to the Ohio country. 30 The "Plan for the future management of Indian 31 affairs" ends with two appendices. Appendix A is a 32 "List of Indian Tribes in the Northern District of 33 North America". Appendix B is a "List of Indian Tribes 34 in the Southern District of North America". 35 The appendices to the 1764 plan list 54 tribes. 36 These included staunch British allies such as the 37 Mohawks, tribes of fluctuating loyalty like the 38 Delawares, as well as traditional French supporters 39 such as the Ottawas and the Chipeweighs of the Great 40 Lakes region. 41 My lord, it's my submission that the Royal 42 Proclamation had a specific application to those 43 tribes who were disaffected at the time and that the 44 Crown wished to placate, that was the view that Chief 45 Justice Marshall took. The plan, on the other hand, 46 is much more ambitious and extends to tribes that had 47 very little to do with the problems of the frontier 27454 Submissions by Mr. Goldie

1 country below the Great Lakes and to the west of the 2 American colonies where the difficulties were. I 3 shouldn't say below the Great Lakes, it extended 4 from -- over from below the Great Lakes to the east of 5 the Great Lakes over to New York. 6 Continuing at 207. For the southern district 12 7 tribes were included. For the northern district the 8 Appendix listed 42 tribes to be affected by the Indian 9 provisions of the Royal Proclamation. Proceeding 10 north to south the tribes ranged in location from the 11 Algonkins between Lake Huron and Rupert's Land to the 12 Shawanese living on the fringes of Pennsylvania and 13 Maryland. From east to west the tribes ran from the 14 Micmacs of Nova Scotia to the Sioux, whose hunting 15 grounds were situated southwest of Lake Superior. It 16 was these tribes of Indians whose freedom from 17 molestation or disturbance was "...essential to our 18 Interest, and the Security of our Colonies..." My 19 lord, I have to say this: That the -- it is not 20 necessarily the case that all of those tribes who were 21 those referred to in S, the inclusion of tribes in the 22 plan does not necessarily mean that they were referred 23 to in the Proclamation, but they -- the tribes in the 24 plan certainly included those whose freedom from 25 molestation or disturbance was essential to our 26 interest and the security of our colonies. 27 None of the tribes listed for the northern 28 district was located west to the Mississippi River, 29 with one exception. Maps of the mid-18th century 30 locate the Sioux straddling the headwaters of the 31 Mississippi, with the nation usually divided into 32 "western Sioux" and "eastern Sioux". The 33 cartographers located the former group west of the 34 river between about 44 degrees and 47 degrees north. 35 The eastern Sioux were invariably placed east of the 36 river between about 45 degrees and 48 degrees north. 37 An example of this is the Bowen map enclosed with the 38 Board of Trade's report of June 8, 1763, which has a 39 printed note "eastern Sioux" at about 46 degrees north 40 between the eastern bank of the Mississippi and a 41 point just south of Lake Superior. The exhibit 42 references are firstly to the Bowen map, part of which 43 is on the board, and a second is to the historical 44 atlas. And I think -- yes, there is an earlier 45 reference to the historical atlas which is coloured 46 and tab 145. I won't take your lordship's time up 47 with it now. 27455 Submissions by Mr. Goldie

1 Johnson's report to the Board of Trade of November 2 13, 1763, referred to the Sioux as a wandering people 3 who were little known to the British. Johnson made no 4 claim that those Sioux who hunted or wandered to the 5 west of the Mississippi River were subjects who came 6 under his jurisdiction. And the references there are 7 to Johnson to the Board of Trade, November 13, 1763. 8 The Board followed Johnson's report closely and 9 included the Sioux in Appendix A as one of the tribes 10 in the northern district. This was a sensible course, 11 because the historic hunting grounds of the Sioux lay 12 in part to the east of the Mississippi River, as noted 13 in reference to the maps above. It is likely, in my 14 submission, that the plan referred only to the eastern 15 Sioux. 16 Paragraph 211. The tribes of Rupert's Land (for 17 example the Crees, Blackfoot, Ojibwas, Chipewyans, 18 Assiniboines) were not listed in the plan. Nor, 19 obviously, were any of the tribes residing in British 20 Columbia. These tribes of Rupert's Land and the 21 unknown tribes in British Columbia were neither 22 essential to the King's interest nor to the security 23 of the colonies. 24 Support for the view that the Proclamation applied 25 to a closed number of Indian tribes may be found not 26 only in the text of Preamble "S" but also in the 27 reasons of the Judicial Committee in St. Catherines 28 Milling. The Committee held that the Indian 29 provisions had been "made by the Royal Proclamation in 30 favour of all Indian tribes then living under the 31 sovereignty and protection of the British Crown". I 32 interject here that the value of the judgment in St. 33 Catherines Milling not only lies in the court that 34 pronounced it but in the very extensive arguments that 35 took place in the courts below, three courts below, 36 and which a great deal of historical evidence was put 37 before the courts. 38 Paragraph 213. In support of their argument that 39 the Proclamation applies to the Indians of British 40 Columbia, the Plaintiffs have asserted that the 41 Proclamation is prospective, and therefore intended to 42 include any tribes coming into connection with the 43 British Crown in future. Reliance is placed in "S" on 44 the phrase "are reserved to the said Indians, or any 45 of them". The plaintiffs submit that the reference to 46 "any of them" indicates that the land was reserved for 47 the Indian race at large. The words "or any of them" 27456 Submissions by Mr. Goldie

1 are taken as signalling the Crown's indifference to 2 the ebbing and flowing of the nomadic Indians in North 3 America; to the protestations of amity in the Treaty 4 of Paris which would be disregarded by claims of 5 sovereignty extending beyond what was ceded in that 6 Treaty, and to the constitutional limitations which 7 would be breached if the Proclamation was applied to 8 future settled colonies. I might interject here, my 9 lord, that when we come to Part 7, I am going to be 10 referring to some of the treatises or one treatise in 11 particular introduced by the Plaintiff which will give 12 some indication to your lordship of the nature of the 13 ebbing and flowing of the nomadic Indians. 14 Paragraph 214. This interpretation by the 15 plaintiffs of the phrase is contrary to the plain 16 meaning of the words. The phrase is a descriptive one 17 designed to ensure that the Proclamation applied both 18 to lands which had been reserved to the Indians 19 generally (such as the Reserve) and lands which had 20 been reserved to some of them only (such as land 21 described in treaties entered into with individual 22 tribes prior to 1763). In my submission, it is 23 intended to negate the implication that the protection 24 from molestation or disturbance could be invoked only 25 when the whole of the area is molested or disturbed. 26 I mean by that this, my lord: What is being done here 27 is to secure for the benefit of the security of the 28 colonies it is deemed important that the nations or 2 9 tribes with whom we are concerned and who live under 30 our protection should not be molested or disturbed. 31 The words "or any of them" was intended to ensure that 32 that protection was extended to them individually as 33 well as to the general provision for the reserve as a 34 whole which was subsequently created. 35 I say on a strict grammatical interpretation "or 36 any of them" must refer to the "said Indians", who are 37 defined by the preamble as the Indians then living 38 under the protection of the British Crown. 39 And then at paragraph 216, I say: As a final 40 point, the Province refers to the purpose of the 41 Indian Provisions of the Proclamation. The Plaintiffs 42 have argued that the Royal Proclamation must be 43 construed in light of the mischief it was intended to 44 address: past and threatened attacks on colonial 45 settlers by Indians dissatisfied with encroachment 46 upon their territories. The historical record leading 47 up to the issuance of the Proclamation is replete with 27457 Submissions by Mr. Goldie

1 references to concerns about native discontent and 2 disaffection and with the resulting prospect of 3 uprisings. And as your lordship knows the news of 4 what is called Pontiacs uprising arrived in London 5 almost simultaneously with the final approval of the 6 Royal -- of the Proclamation. The continued threat to 7 colonial security posed by the Six Nations and other 8 Indians located in the regions in and adjacent to the 9 American colonies was an immediate and pressing 10 problem in 1763. The Indians of British Columbia were 11 not part of the problem, and accordingly the Royal 12 Proclamation should not be construed to apply to them. 13 And then I add this: Conversely there were no known 14 settlers who might molest and disturb the Indians of 15 British Columbia in 1763. I will be making a final 16 submission as to why the Proclamation became important 17 in a particular area of Canada and I will come back to 18 that later, but that particular area of Canada is what 19 became known as Upper Canada and is largely Ontario, 20 that part of Ontario, which at one time formed part of 21 the old province of Quebec. 22 Paragraph 217. In August of 1764 Sir William 23 Johnson described the Crees and other Indians from 24 northwest of Lake Superior as "rather remote to give 25 us much trouble". 26 In conclusion, the Defendant Province submits 27 that, on its terms, the Royal Proclamation did not 28 apply to the Indians of British Columbia. Now, the 29 next deals with the proposition that the Proclamation 30 followed the flag and that's language which has been 31 used on a number of occasions. And this deals with 32 that. 33 The Plaintiffs argue that the Proclamation 34 followed the British flag because a Proclamation is 35 like a statute which is "always speaking" and deemed 36 to be applicable to new circumstances. This argument 37 does not take into account the inapplicability of 38 prerogative instruments to settled colonies such as 39 British Columbia. Nor does it take into account the 40 established practice when prospective application of 41 instruments was intended. 42 When it was intended by the Imperial Crown or by 43 Parliament, the proclamations, acts, or letters patent 44 were to apply to after-acquired colonies, that 45 prospective intention was expressly stated. A common 46 expression used was: "Any of the colonies or 47 plantations in America which now or hereafter may be 2745? Submissions by Mr. Goldie

1 in the possession or under the dominion of his 2 Majesty". This technique -- this drafting technique 3 had been used in many statutes applying to the empire 4 prior to 1763, including the Act of Supremacy (1559), 5 the Navigation Acts (1663 and 1696) and Molasses Act 6 of 1733. The references there, my lord, are gathered 7 together under tab 220, the first being the Supremacy 8 Act and that's of 1559, and the drafting provision is 9 found in paragraph 16 or Roman XVI which is page 111 10 or four pages in. And the substantive provision is 11 first set out "that no foreign prince, et cetera, 12 shall at any time after the last day of this Cession 13 of parliament use, enjoy or exercise any manner of 14 power, jurisdiction, superiority, et cetera, et cetera 15 within this realm or within any other Your Majesty's 16 dominions or countries that now be, or hereafter shall 17 be, but from thenceforth the fame shall be clearly 18 abolished out of this realm, and all other Your 19 Highness dominions forever". The statute, the 20 Navigation Act, which is 1161-131A, the provision is 21 on the first page left-hand column, the substantive 22 provision is that after a certain date goods -- no 23 goods or merchandise shall be imported into, or 24 exported out of, any colony or plantation to His 25 Majesty in Asia, Africa or America, belonging, or in 26 his possession, or which may hereafter belong unto, or 27 be in the possession of His Majesty, et cetera, and so 28 on. The words are clear when the draftsman wants to 29 apply the act to after-acquired territories he has at 30 hand a drafting technique which is well recognized by 31 Parliament. 32 The 1761 Commission of Charles Pinfold, Governor 33 of the Island of Barbadoes, includes an express 34 reference to future acquisitions. And the reference 35 there, my lord, is to the judgment in Campbell and 36 Hall and it's on the second complete page, page 246. 37 The reference to the Commission of Charles Pinfold 38 starts about a third of the way down the page 39 beginning with the words: 40 41 "George the third by the grace of God, of Great 42 Britain, France and Ireland, king, defender of 43 the faith. To our trusty and well-beloved 44 Robert Melville, esq. greeting: whereas we did 45 by our letters patent under our great seal of 46 Great Britain, bearing date at Westminster, the 47 fourth day of April, in the first year of our 27459 Submissions by Mr. Goldie

1 reign, constituted and appoint Charles Pinfold, 2 esq. captain-general, and governor in 3 chief..." 4 5 et cetera, et cetera, and then he names a series of 6 islands. 7 8 "...commonly called or known by the name of our 9 Carribee islands lying and being to the 10 windward of Guadaloupe, and which then were or 11 after should be under our subjection and 12 government, during our will and pleasure..." 13 14 And then so that even in Proclamation -- well, not 15 reason in Proclamation, that's a prospective clause in 16 the Royal Proclamation which is almost contemporaneous 17 with that of the Proclamation of 1761. 18 Paragraph 222. Following the Royal Proclamation 19 of 1763, "hereafter clauses" or "prospective clauses" 20 appeared in a number of statutes, the best known of 21 which was the Stamp Act of 17 65. And that's under tab 22 222 in the yellow book. And the language in question 23 is what we would say is the preamble but which is not 24 only the preamble but which is also the substantive 25 charging section, it's towards the end of the first 26 complete paragraph: 27 28 "That from and after the first day of November, 29 one thousand seven hundred and sixty-five there 30 shall be raised, levied, collected, and paid 31 unto His Majesty, his heirs, and successors 32 throughout the colonies and plantations in 33 America which now are, or hereafter may be, 34 under the dominion of his Majesty..." 35 36 Et cetera. 37 If the framers of the Proclamation had intended 38 the Indian provisions to "follow the flag", precedent 39 suggests that they would have included one or more 40 hereafter clauses in the Proclamation. This is 41 particularly so in light of the fact that Attorney 42 General Charles Yorke reviewed the Proclamation to 43 ensure that it was conformable to law, and made 44 several changes to the draft. Yorke in my submission 45 was very aware of the drafting issue involved. As 46 Solicitor General in 1759, he had been asked whether 47 the Navigation Acts applied to the recently conquered 27460 Submissions by Mr. Goldie

1 island of Guadeloupe. He advised in the affirmative 2 on the basis of the hereafter clause included in those 3 acts. And the references are set out, my lord, but 4 would you please delete the last one, Exhibit 1159-83. 5 Paragraph 224. British attorneys general of the 6 day were aware that, in the absence of a hereafter 7 clause, doubt could arise over whether a statute 8 applying generally to colonies should or should not be 9 confined to existing colonies. That problem had 10 arisen with respect to the applicability to the North 11 American colonies of the 1585 statute against Romam 12 Catholic priests. The document is extracted under -- 13 from Exhibit 1161-136 which is one of Dr. Greenwood's 14 footnote references and the language in question which 15 is taken, if I remember correctly, from an opinion, is 16 found right at the end, the last six lines of the 17 middle paragraph, and after a recital of the 18 particular issue, the words in question "that had 19 intended to all the dominions the Queen had when it 2 0 was made but some doubt hath been made whether it 21 intended to extend whether dominions acquired after as 22 the plantations have been". My submission is that if 23 the Royal Proclamation was one that was intended to 24 follow the flag and to provide legislative 25 arrangements as colonies were acquired that intention 26 would have been reflected in the appropriate language. 27 It is not. 28 In addition, the limitation on the King's 29 prerogative powers in respect of settled colonies was 30 well known in 1763. To treat the Royal Proclamation 31 as prospective is to assume, in order that it would 32 not be ultra vires in its future application, that all 33 future colonies would be conquered or ceded. There is 34 no factual basis for such an assumption. 35 In summary, the Defendant Province submits that 36 the framers of the Proclamation did not intend its 37 provisions to apply to after-acquired colonies such as 38 British Columbia. I say, and I will come back to this 39 in my final summary, it was dealing as it states with 40 an immediate problem in a particular area. Next major 41 submission: The Royal Proclamation does not 42 Recognize a General Right of North American Indians 43 to Ownership of all lands not Surrendered to the 4 4 Crown. 45 The Plaintiffs have pleaded that the Royal 46 Proclamation recognizes and confirms a number of 47 general principles, these being that all lands in 27461 Submissions by Mr. Goldie

1 North America belong to the Indians until they 2 surrender them to the Crown in a public forum. That 3 assertion is based on the interpretation of the Indian 4 provisions of the Royal Proclamation which the 5 Defendant Province submits is erroneous on a careful 6 reading of the words of the Proclamation and the 7 historical documents. First submission, The Indian 8 Provisions did not Apply to all British Colonies in 9 North America in 1763. And of course it is essential 10 to my friend's submission that there be a blanket of 11 application of the Proclamation if the submission that 12 he makes in the pleadings, not the submission but the 13 allegation in the pleadings, are to be brought home. 14 And our answer to that is: The Plaintiffs' 15 argument that the Royal Proclamation is the source of 16 general principles, which followed the flag and 17 applied to all British acquisitions in North America, 18 is substantially undermined by the incontrovertible 19 fact that the Indian provisions of the Proclamation 20 (paragraphs S to Y) did not apply to all of the 21 British colonies in North America in 1763. The 22 evidence indicates that Newfoundland, Nova Scotia, and 23 Rupert's Land were not subject to those provisions. 24 Now, the Prohibition on Land Grants which -- and I am 25 going to be following the Proclamation, my lord, if we 26 could have that in front of us. 27 Paragraphs T and U prohibit governors from making 28 land grants beyond certain bounds. T is the 29 prohibition directed to the Governor or Commander in 30 Chief of any of our Colonies of Quebec, East Florida 31 or West Florida. And to the Governor and Commander in 32 Chief of any of our other colonies or plantations in 33 America do presume for the present, and until our 34 further answer be known to grant Warrants of Survey. 35 The prohibition could not extend to Newfoundland 36 because the governor of that colony was not empowered 37 to make land grants. It could not apply to Rupert's 38 Land because that colony did not have a governor as 39 such. In addition, it was originally intended that 40 the provisions in paragraphs T and U would be 41 implemented by sending letters of instruction to the 42 governors of the old British colonies. It was not the 43 practice of the Crown to issue instructions to the 44 Governor of the Hudson's Bay Company because it was a 45 semi-autonomous trading corporation, not a Royal 46 province. 47 Now, I wish to refer to an authority which is 27462 Submissions by Mr. Goldie

1 under tab 229, well, that's following the binder -- 2 blue binder in that tab, is Egremont's letter to the 3 Board of Trade of July 14, 1763. 4 THE COURT: 22 9. 5 MR. GOLDIE: Beg your pardon, my lord? 6 THE COURT: 22 9. 7 MR. GOLDIE: 229, the first document is the Proclamation. 8 THE COURT: Yes. 9 MR. GOLDIE: And then the second is Egremont acknowledging -- I 10 shouldn't say acknowledging, he is dealing with the 11 report of the 8th of June, and he states that it has 12 been laid before his Majesty and the King approves 13 various parts in it. And then at page 109, and this 14 is in support of my allegation that -- my submission 15 that they weren't talking about Newfoundland or 16 Rupert's Land, fourth line down: 17 18 "And your Lordships will also prepare Drafts of 19 such Instructions, as shall be necessary, for 20 the several governors of the ancient Colonies, 21 for preventing their making of any New Grants 22 of Lands, beyond certain fixed Limits to be 23 therein laid down for that purpose; and in 24 these Instructions as well as in Those for the 25 New Governors, your Lordships will insert a 26 Clause directing most particular Regard to be 27 had, in the granting of any Lands, to Officers 28 and Soldiers, more especially Those residing in 29 America, who have served so faithfully and 30 bravely during the War, and who may be now 31 willing to undertake any New Settlements under 32 proper Conditions." 33 34 It's my submission that clearly Egremont was 35 talking about instructions to the people who had the 36 power to deal with lands. I also note that the 37 instructions were to include directions with respect 38 to providing lands for officers and soldiers of the 39 army who settle in America, a proposition that would 40 have been guarded as fantastic in its application to 41 Rupert's Land. The first settlement in Rupert's Land 42 did not occur until 1817. And I will make a further 43 reference to that. 44 Prohibition against further private purchases. 45 Paragraph Y contains a prohibition against the private 46 purchase of Indian lands within the colonies. The 47 evidence indicates that paragraph Y did not apply to 27463 Submissions by Mr. Goldie

1 Nova Scotia, Newfoundland or Rupert's Land. 2 Unlike the instructions sent to governors of 3 Quebec, Murray and Carleton, the instructions to the 4 Governor of Nova Scotia contained no direction to 5 comply with the Indian provisions in the Royal 6 Proclamation. In 1762, Lieutenant Governor Belcher of 7 Nova Scotia attempted to implement the Indian land 8 policy suggested in Egremont's circular letter of 9 December, 1761. Belcher, my lord, that was one of the 10 predecessors to the Proclamation when the governors of 11 the American colonies were urged to mend their ways or 12 the ways of the settlers, but with respect to the 13 Indians. Belcher issued a Proclamation reserving to 14 the Indians about one-half of the colony's northern 15 and eastern coast line. The Board of Trade 16 reprimanded Belcher for this action and in 1764 17 disallowed any claims of the Indians to land in Nova 18 Scotia. Many Historians hold the view that the 19 British government never recognized Indian title in 20 Nova Scotia. And the reference there is firstly to 21 the transcript and it identifies the nature of the 22 footnote reference which is Mr. Stagg's work on 23 Anglo-Indian relations. And Dr. Greenwood simply 24 summarizes what evidence there is with respect to the 25 application and he's asked the question, at line 21: 26 27 "Q Is there any evidence of any acknowledgement 28 that perhaps the Royal Proclamation did have 29 some application here?" 30 31 That's Nova Scotia: 32 33 "A Not to my knowledge, unless one looks at the 34 plan..." 35 36 That's the 1764 Plan: 37 38 "...and the plan includes in some of its tribes 39 the Micmacs, for example, that were in what is 40 now New Brunswick, so to that degree the 41 documentation does refer to Indian tribes, but 42 the plan was mainly concerned with trade, not 43 lands —" 44 Q And was there any instruction to the governor 45 of Nova Scotia comparable to that, to the 46 governor of Quebec to implement the plan or any 47 part of it? 27464 Submissions by Mr. Goldie

1 A No, there was not." 2 3 And then turning to the excerpt from Mr. Stagg's 4 work, he introduces the discussion at page 270 in the 5 last paragraph on that page: 6 7 "Into this atmosphere of relative tranquility 8 between natives and colonists which existed in 9 Nova Scotia in the early part of 1762..." 10 11 And then he describes what the instructions from the 12 King from Egremont of 1761, and at the top of that 13 page this is the comment that Stagg makes on the 14 application of that circular letter in Nova Scotia: 15 16 "To many in Nova Scotia the advice in the 17 document must have seemed inappropriate, 18 perhaps even absurd. Native rights to large 19 tracts of land in Nova Scotia had never been 20 acknowledged by Britain, or by its official and 21 administrators to exist. Secondly, no real 22 threat appeared then to exist to the province 23 from Indians living within or beyond Nova 24 Scotia's boundaries. What seemed patently 25 obvious about the king's Instruction was that 26 it was designed to meet exigencies in other 27 parts of British territories on the continent - 28 not in Nova Scotia." 29 30 And then he sets out what Belcher, the Lieutenant 31 Governor did. And he says he managed to alienate most 32 of the executive council. And next page he says: 33 34 "In the early spring of 1762, Belcher set about 35 his task of complying with the Royal 36 Instruction by conducting what he termed an 37 "Inquiry" into the "Nature" of the pretentions 38 of the Indians." 39 40 And up in the next page, the results of his search, 41 and then the next paragraph: 42 43 "To conform with his interpretation of the 44 intent of the Royal Instruction, Belcher issued 45 a Proclamation on 4 May 1762 to reserve the 46 seacoast area described in the 1754 - 1755 47 Indian requests for lands." 27465 Submissions by Mr. Goldie

1 2 And over the page at 274: 3 4 "On 3 December 1762 the Board drafted a series 5 of reproachful Minutes for transmittal to 6 Belcher... their Lordships expressed their 7 'greatest Astonishment and concern' over the 8 lieutenant-governor's 'impudent' reservations 9 of lands for Indians to the exclusion of his 10 Majesty's other subjects." 11 12 And the Board minute -- and this is at the bottom of 13 page 274: 14 15 "The Board Minute further explained that the 16 Proclamations of 4 May 1762 was 'not warranted 17 by His Majesty's Order in Council of the 9 18 December 1761. ' The latter document, the Board 19 stated, referred 'only to such Claims of the 20 Indians as had heretofor at long usage admitted 21 and allowed on the part of government and 22 confirmed them by solumn Compacts." 23 24 I suppose by compacts they mean treaties. And 25 then he notes that Belcher, I say, was reprimanded for 26 doing that. 27 Now, Stagg argues that the language of the 28 Proclamation could apply to Nova Scotia, I am 29 referring to what was done. 30 Paragraph 232. The only indication that the Royal 31 Proclamation had any application to Nova Scotia is the 32 inclusion in Appendix A of the Indian management plan, 33 that's of 1764, of the main tribes located in that 34 colony. And I have noted already the plan was 35 primarily concerned with trade rather than land. 36 The publishing of the Proclamation in Nova Scotia 37 does not indicate that the Indian provisions applied 38 to the colony. The Proclamation's publication was 39 warranted regardless of it publicized in the 40 Quebec-Nova Scotia boundary, and so on. 41 The colony of Newfoundland was a fishing station, 42 subject to prohibitions against settlement and without 43 colonial civil government the usual sense. Reference 44 there is to the Labrador Boundary case. 45 In the Board's report of June 8 it recommended 4 6 that no regular government was needed for 47 "Newfoundland, where a temporary Fishery is the only 27466 Submissions by Mr. Goldie

1 object". 2 The prohibition against purchase of Indian lands 3 in Y is restricted to "those parts of our Colonies 4 where, we have thought proper to allow Settlement;". 5 On October 7, 1763 Newfoundland was not a colony where 6 His Majesty had thought it proper to allow settlement, 7 and so was not subject to paragraph Y. 8 And then I deal with Rupert's Land. It was a 9 British colony with respect to which settlement could 10 be authorized by the Company, but settlement had not 11 been permitted by 1763. For decades prior to the 12 Proclamation the Company had discouraged settlements 13 as incompatible with the fur trade. No change in the 14 wilderness character of Rupert's Land was contemplated 15 by the framers of the Proclamation. If your lordship 16 would delete the first reference 1156 footnote 18 -- 17 THE COURT: Well, isn't Rupert's Land a different situation 18 because it was specifically excluded? So it couldn't 19 follow the flag to Rupert's Land, could it? 20 MR. GOLDIE: That's correct, but the proposition that the 21 plaintiffs make is that regardless of the wording of 22 the Act -- of the Proclamation, it was designed to 23 match the commerce and they say that the commerce took 24 place in Rupert's Land in the fur trade. Mr. Justice 25 Mahoney notes in Bakers Lake, this is an insert in 26 my -- in what I have here, my lord, that the Hudson's 27 Bay Company was not required to provide for settlement 28 until 1817, that's page 565 Baker Lake. 29 Then paragraph 238. Paragraph Y includes the 30 provision declaring trade with the Indians to be free 31 to all subjects whatever. The trade provisions could 32 not have been intended to apply to Rupert's Land 33 because it would have amounted to a serious breach of 34 the 1670 Charter which granted the governor and 35 company of adventurers trading into Hudson's Bay "the 36 sole Trade and Commerce of their territory". And 37 already as I have noted, Mr. Justice Mahoney concluded 38 that Rupert's Land was a settled colony to which the 39 Royal Proclamation could not apply. And then the 40 Royal Proclamation itself was never sent to the 41 Hudson's Bay Company. That appears from the -- it's 42 the negative of the proposition that a search was made 43 for the Royal Proclamation and it could not be ever 44 found to have been sent to the Hudson's Bay Company. 45 In summary the Indian provisions of the Royal 46 Proclamation did not apply to the British colonies of 47 Newfoundland and Rupert's Land, and except set for the 27467 Submissions by Mr. Goldie

1 trade provisions, probably did not apply to Nova 2 Scotia. It follows, in our submission, that the 3 Indian provisions cannot be construed as establishing 4 principles applicable to all then existing and after 5 acquired British colonies in North America. 6 THE COURT: Should we adjourn? 7 MR. GOLDIE: All right, my lord. Is it 9:30 tomorrow morning? 8 THE COURT: 9:30 in the morning, please, to 12:30. All right, 9 thank you. 10 THE REGISTRAR: Order in court. Court stands adjourned until 11 9:30 a.m. tomorrow morning. 12 13 (PROCEEDINGS ADJOURNED AT 4:30 p.m. TO MAY 26, 1990) 14 15 I hereby certify the foregoing to 16 be a true and accurate transcript 17 of the proceedings transcribed to 18 the best of my skill and ability. 19 20 21 22 23 24 Tannis DeFoe, 25 Official Reporter, 2 6 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