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I Ontario Lands

I CTiSE.

ARGUMENT OF MR. BLAKE, Q.C.. BEFORE
THE PRIVY COUNCIL.

N.«

Press op The Budoet, 64 Bay Stfkst.
1888.

mi.

From EDWARD BLAKE.

gn tge (prit>g Counctf.

CorxciL Chambhr, ^Vhithhall,

Friday. 20th July, 1888.

(}}re6cnf :

The Ri(;ht Honblk. Thk Eakl ok Selburne.

ThK KllJUT HdNBLK. LOKI) WaTSO.V.

Tin: ItKaiT HoNBi.K. Lokd Hobhoise.
'I'm; HiiiiiT HoNBi.K. Sik Montague Smith.
The IlicHT HoNBi.E. 8ik Barnes Peacock.
The IvicHT HoNBi.K. Sir Richard C'oucn.

THE ST. CATHARINE'S MILLING AND LUMBER COMPANY

THE QUEEN.

.\K(a;.mi:nt of .mk. jjlaki:. oi- colnsi:i.

FOR ()\T.\RI().

TORONTO:

I'KKSS W I'm. lil Dtil-.T, 64 llAY .SiKKirr.

18%

PREFATORY NOTE.

M^HE case of The Qukk\ and Thk 8t. Cathakink'w Millixc; Company

^^ was in substance a controversy between Canada and Ontario as to

the ownership of a large portion of the soil of the Province, with

its timber and minerals ; which were all claimed by the Dominion

as its property under the Act of Union, or by virtue of an Indian Treaty

made bv its government.

The speech for Ontario, now printed, was delivered towards the
close of a discussion which lasted seven days.

It is hardly needful to inform the professional reader that at so
late a stage many topics had been exhausted, much had become familiar,
some points had been settled, and there were several indications of the
opinions of the Bench.

It was of course the advocate's duty to have regard to these condi-
tions in the choice of methods and matter, and to touch or omit, state or
reiterate, amplify or curtail, according to the exigencies of the cause.

Therefore it is not pretended that this aigument is even an attempt
to examine completely all the interesting questions involved.

For convenience of reference extracts of the most material parts
of the B.N, A. Act are appended.

L-tctmbtr ..'4th, ISSS.

EXTRACTS FROM B. N. A. ACT,
1867.

S. 91. — It shall be lawful for the Queen,
by and with tlie advice and consent of
the Senate and House of Coninions, to
make laws for tlie peace, order and good
government of Canada, in relation to all
matters not coming within the classes of
subjects by this Act assigned exclusively
to the legislatures of the provinces ;
and, for greater certainty, but not so as
to restrict the generality of tlie foregoing
terms of tliis section, it is hereby de-
clared that (notwithstanding anything
in this Act) the exclusive legislative
authority of tlie Parliament of Canada
extends to all matters coming within the
classes of subjects next hereinafter enu-
merated ; that is to say :

1. The puldic debt and property.

8. The raising of Uioney by any mode
or sj'stem of taxation.

o. Postal service.

7. Militia, military and naval service
and defence.

9. Beacons, buoys, lighthouses and
Sable Island.

10. Navigation and shipping.

24. Inilians and lands reserved for the
Indians.

29. Such classes of subjects as are
expressly excepted in the enumeration of
the classes of subjects by this Act as-
signed exclusively to the legislatures of
the provinces.

S. 92. — In each province the legisla-
ture may exclusively make laws in rela-
tion to matters coming within the classes
of subjects next hereinafter enumerated :
that is to say :

10. Local works and undertakings
other than sucli as are of the following
classes :

(a) Lines of steam or otlier sliips,
railways, canals, telegrajihs, and other
works and undertakings connecting
the province with any other or others
of the provinces, or extending beyond
the limits of the province.

S. IDS.— The pul)lic works and pro-
perty of each province enumerated in the
third schedule to this Act shall be the
property of Canada.

T1!K THIRD SCHEDI'LE.

Provincial public works and property
to be the property of Canada :

1. Canals with lands and water power
connected therewith.

2. I'ublic haibors

8. Lighthouses and piers, and liable
Island.

4. Steamboats, dredges and public
vessels.

.■). Rivers and lake improvements.

6. Railways and railway stocks, mort-
gages, and other debts due l)y railway
companies.

7. Military roads.

8. Custom houses, post offices and all
other public buildings, except such as the
government of Canada appropriate for
the use of the provincial legislatures and
governments.

9. Property transferred by the Im-
perial government and known as ordnance
property.

10. Armories, drill sheds, military
clothing and munitions of war, and lands
set apart for general public purposes.

S. 109. — All lands, mines, minerals and
royalties belonging to the several pro-
vinces of Canada, Xova Scotia and New
Biunswick at the Union, and all sums
then due or payable for such lands, mines,
minerals or royalties shall belong to the
several provinces of Ontario, Quebec,
Nova Scotia and New Brunswick In
whicli the same are situate or arise, sub-
ject to any trusts existing in respect
thereof, and to any interest other than
that of the province in the same.

S. 1!7. — The several piovinces sliall
retain their respective public property
not tiierwise disposed of in this Act,
subject to the right of Canada to assume
any lands or public property retjuired
for fortirications or for the defence of the
countrv.

ARGUMENT.

Mk. Blake — It seems to me, my
Lords, that three views have been sug-
gested as to the character of the Indian
interest. My learne<l friends, for the
Appellants, suggest tlie view that the
Indians liave practically the entire bene-
ticial interest in unsurrendered lands.
Then there is a middle view which, I niay,
for tiie present purpose describe as tluit
whicli was very frecpiently suggested by
Lord Watson in tlie earlier part of tlie
Appellant's argument, which is the view
stated in tlie general run of tlie United
•States decisions, namely that tliere is
a legal or recognised right in the Indians
of occupancy or enjoyment, of a special
kind, periiaps limited to tlie purposes of
hunting ami fishing, triljal in its charac-
ter, capable, not of transfer, but only of
extinguisiiment or of surnndei- to the
owner of the fee or of the allodial title ;
consistent with tlie existence in the
State of an allodial title, and with the
existence in a private owner of a title in
tee simple, subject in each case to that
burthen. And again tliere is a tiiird
view, suggested Ijy the Responilents,
whicli is not much less effective for the
purposes of the Indians than the nii«ldle
view. It is that, wiiile the Indian in-
terest, such as it is, is of the character
I have just endeavouretl to describe, it
is not absolutely of right, but it lias its
foundation in grace and policy, in the
political department of the (Government :
although the repeated instances in which
the grace has been sliown. and the
Icngtii of time during which the policy
has lieen pursued would render it at this
time of day, almost impossible to sup-
pose that the grace had been withdrawn
or the policy reversed, or to allege tiiat
it was within the power of the political
ilepartment of the government to witli-
tlraw the grace or reverse the policy
without giving the Indian just cause of
complaint.

Tills latter, I conceive to be the
lowest view of the Indian title. I just
state these tiiree views now, because I
propose to diverge from the order I had
intended to pursue, the chronological
order, and to ask your Lor<lsliip"s per-
mission to treat the case in the first
instance on the assumption that the
middle view is the sound view of tiie
Indian title. I cannot make the con-
cession that it is the sound view, because
of the magnitude of the iuteiests in-

volved, not merely with reference to this
area of twenty million acres in which the
Indian interest, if the treaty is effective,
has been extinguished, but to another
area double the size of this — forty million
acres more — in which the Indian title is
not as yet extinguished ; I cannot make
the concession, because although for all
practical purposes, the Indian title may
be regarded as ecjually secure under the
lower view, yet that view, which seems
to us the sound one, may l»e, as between
the Dominion and the Province, very
much to the advantage of the Province.
However that may be, for the moment
passing it by, and assuming the interest
of the Indians to be such as was sug-
gested ]}y Lord Watson, I propose in
the first instance, without touching on
tlie condition in the old colonies, in the
United States or in old Quebec, to
trouble your Lordships witii some consi-
derations on the meaning and effect
of the British Nortli America Act,
as applied to such an interest as
I iiave descril^ed, in the lord of the
soil and in the Indian, respectively,
in order to a decision of the (juestion
whether the interest of the lord of the
soil belongs to tiie Dominion or to the
Province.

Xow it is (juite true, as my Lord Wat- -
son observeil, tliat a very large part of
the constitution of the United States
is to be found in judicial decisions — a
larger part than probably ever will be
found in such decisions in the case of
Canada ; but it is nevertheless true, I
think, that the written constitution of
Canada in two aspects demanils a very
large, liberal ami comprehensive inter-
pretation, a survey in which the inter-
preter shall look both before and after, if
lie is to effectuate, and not to frustrate
the objects of the .Statute. First the act
is an attempt -perhaps a somewhat am-
bitious attempt — to create in one short
document a very complicated written
constitution, dealing actually with five
political entities, and potentially with
many more ; and dealing not merely
with their creation or re-organization,
but also with the <listribution of politi-
cal, legislative and executive power,
ainl with the adjustment of their reven-
ues and their assets. It is therefore an Act
in its nature dealing with many topics,
as has been truly said, of high political
import. Thus, its very nature reijuires a
large, comprehensive and liberal spirit of
interpretation. But its frame also de-

mands tlie same spirit. We know well
that even where the draftsman has
used an abundance of words, he is not
always able to make his meaning clear ;
but upon this occasion there has been no
attempt to expand tlie meaning of the
draftsman ; the attempt lias rather
been to deal in the fewest possible words
with subject matters of the highest
possible importance. One sentence, one
phrase, even one vord, deals with a
whole code or system of law or politics,
disposes of national and sovereign attri-
butes, makes and unmakes political
communities, touches the ancient liber-
ties and the private and public rights of
millions of free men. and sets new limits
to them all. And therefore 1 submit
that we are hound, in attempting to
ascertain the meaning of these clauses,
to become very conversant with tiie
•surroundings, to allow due weight to
the conditions, and to be tlioroughly in-
formed with tlie spirit of the law, in
order that we may so read it as to ac-
complish its great intents. In ti'uth the
Act is in many points little mo'e than
a skeleton, which is to be clotiied with
flesli and muscle, nerve and sinew, into
which the breath (.f life is to be breathed
by interpretation. Nay it is not even a
complete skeleton ; and as from a single
bone or fragment the naturalist pro-
jects the anatomy of a whole creature,
so here from one word or phrase, we must
sometimes construct or develope a sys-
tem. For instance you find a single
phrase, as I conceive the governing
phrase in this Act, appearing only in the
preandile, but operating upon the whole
statute — tlie phrase " Federally united."
The word " federal ' is the key which
unlocks the clauses, and reveals their
contents. It is tiie glass which enables
us to discern what is written. By
its light the Act must be construed. So
again we have a description of the con-
stitution — " Similar in principle to that
of the United Kingdom ;"' where a single
line imports into the system tiiat
mighty and complex and sf>mewhat
indefinite aggregate called the British
Constitutioi.. So further a few words
in other cases comprehend vast and com-
plicated subjects ; for example we have
" laws for the peace, order and good
government of Canada," touching "the
regulation of trade and commerce, ""
"navigation and shipping" "the
criminal law," "municipal institutions,"
" property and civil riglitc," "the ad-

ministration of justice." Upon a sound
and comprehensive interpretation of
these meagre phrases the most impor-
tant interests depend. I submit then
that in the interpretation of an Act like
this a most important enquiry, if not the
most important enquiry preliminary to the
decision of the meaning of any word or
clause is this, what is tlie general scheme
of the Act, what is its general purpose and
intent in those particulars which bear on
the (juestion to be immediately decided ?
and what possible construction — what
fair construction if moie than one con-
struction be open — will best round tlie
scheme and effect the purpose ':

What then was tiie general sclieme of
this Act? First of all, as I have sug-
gested, it was to create a fetleral, as
distinguished from a legislative union ;
but a union composed of several existing
and continued entities. It was not the
intention of Parliament to mutilate,
confound and destroy tlie provinces men-
tioned in the preamble, and, having done
so, from their mangled remains, stewed
in some legislative caldron, to evoke by
some legislative incantation absolutely
new provinces into an absolutely new ex-
istence. It was rather, I submit, the
design and object of the act — so far as
was consistent with the redivision of the
then province of united Canada into its
old political parts. Upper and Lower
Canada, and with the federal union of
the four entities. Nova Scotia, New-
Brunswick and the reconstituted parts
of old Canada, Ontario and Quebec — it
was the design I say, so far as was con-
sistent with these objects, by gentle and
considei'ate treatment to preserve the
vital bi eath and continue the political
exister.ce of the old provinces. How-
ever this may be, they were being made,
as lias been well said, not fractions of a
unit, but units of a multiple, -riie
Dominion is a multiple, and eacii pro-
vince is a unit of that multiple ; and I
submit that undue stress lias been laid
in the judgment of one of the learned
judges below, upon the form whicli is
said to have been adopted, of first unit-
ing and then dividing the provinces. I
submit that the motive and cause of that
form was the very circumstance to which
I have adverted, the necessity of the re-
division of old Canaila. Three provinces
there were ; four there were to be ; and
the emphatic word in that clause is the
word "four." But for tiie special cir-
cumstance of the redivision of old

Canada, there would have been no such
phrase. A^ain, consistently witli and
supporting the suggested scheme of tlie
Act, there is to be found important lan-
guage with reference to provincial
institutions and rights of property,
which are spoken of as "continued " and
" retained," words entirely repugnant to
the notion of a destruction and a fresli
creation.

Then, my Lords, without further elab-
orating this point, which 1 have but
touched, my next proposition as to the
scheme of tliis Act is, that it was to place
on an eijual footing, and to secure equal
riglits and like conditions under like cir-
cumstances to each of the provinces
which were to constitute the federation.
It is (|uite true tliat there were some
special provisions which were perhaps
needed, or which at any rate were in-
serted by arrangement ; for example, in
the cases of Nova Scotia and New Bruns-
wick some provisions were made by con-
tinuance, while in those of Ontario and
Quebec they were necessarily made by
fresh enactment : again, Ontario did not
want a Lovjislative Council, Quebec did
want one ; and in consequence you Hnd
that dirt'erence in the original constitu-
tion of each province, although each
province has power to alter its constitu-
tion if it pleases. There are some differ-
ences of that description, but, subject to
those exceptions, whicli only prove the
rule, tliere was to be similarity and equal-
ity of condition. Thus I ask your Lord-
ships to say that the scheme was one for
preserving and not for destroying the
provinces, and for securing to them equal
rights and similar conditions. And if so,
we must seek an interpretation preserva-
tive and not destructive, and a construc-
tion efjualizing and not discriminating.

My next proposition is, tliat the
scheme of this Act is to leave the conti'ol,
the tenure, tlie management, the owner-
ship and the developnsent of the lands in
which there is a public, state or Crown
interest with tiie province in which those
lands are situate ; and if one available
construction would practically and satis-
factorily accomplish that object as to all
the four provinces, while anotlier con-
struction, whicii for the moment I assume
is also available, would leave those lands
to three of tlie provinces, but would
abstract from the fourth half its area,
the extent of a mighty kingdom ; and
would so destroy the similarity and
eijuality of condition between the
provinces, then I say we are to look for

and to choose the construction which
will accomplish the former and not the
latter result. Next, the scheme of this
Act is to deal with Indians and lands
reserved for Indians in each province
alike ; no distinction is suggested as to
the treatment ; and therefore again I
argue that, if one construction would
accomplish this result, while the other,
leaving in three of the provinces vast
areas of unsurrendered lands as pi-ovin-
cial property, would take away from tiie
fourth half its land because unsurren-
dered — in case we have a choice, it is not
the latter construction which we should
choose. Again the scheme of this Act is
to pi'ovide provincial revenues for local
ser\ices, wliich local services include,
amongst the most important, the devel-
opment of the lands of the province and
the execution and maintenance of public
works incidental to that development.
These revenues are mainly provided from
one potential and two actual sources.
The actual sources are the Dominion
subsidy, and the revenues from the
lands. The potential source is the power
of direct taxation — a power which Avas
not expected to be much exercised, which
it was tliought would not be required,
and which in fact has hardly been used ;
partly from an "ignorant impatience" of
direct taxation, and partly from an un-
informed conviction that whatever the
province could secure bj' Dominion sub-
sidy would be clear gain to the province,
although in fact all would pay, and some
of them would pay nioie than they re-
ceived. So it has happened that in prac-
tice the power of direct taxation has
been but little used : the Dominion sub-
sidies, though enlarged, are inadequate :
and the main and essential supply for
the deficiency has been and is tlie rev-
enue from the Innds. I would beg your
Lordships further to observe that, while
unsettled timber lands do produce from
the timber, so long as settlement is quite
sparse, a very large revenue, the very
instant you rise from that condition into
a condition of substantial settlement and
improxement, ttie ([uestions of develop-
ment, of administration, of making roads
and bridges and of municipal and other
government, come to the front, and tend
to absorb the whole of the net revenue,
and practically to establish the proposi-
tion that the fund is t(j be devoted to the
purpose of fleveloping the lands from
which it springs.

Now if one construction would leave
this great revenue intact in all the prov-

inces, putting them all upon a like foot-
ing, giving theai all similar appliances
for the discharge of those duties which
devolve upon them all alike ; while the
other would deprive the principal prov-
ince of the revenues of an area etjaal to
the Kingdom of Irelandj many times
larger than Nova Scotia or New liruns-
wick, and threefold even these great di-
mensions considering the whole tract in-
volved, but would leave that province still
cliiirged with its higli duties, still liable
to the great expenditures their accom-
plishment would involve, yet stripped of
the means to meet them — can tliere be a
doubt which of those two constructions
should be preferred ':

My next proposition is, that the
scheme proceeds on opposite principles
in accomplishing tlie two objects of dis-
tributing the legislative powers and
arranging tlie proprietary rights. As to
to the legislative powers, a residuum — I
do not say th<- residuum but a I'esitluum —
a part not specifically reserved to the
Provinces, is granted generally to the
Dominion : I say "a part," l)ecause in-
herent in the federal form there is, witii
its advantages, great as they are, what
may be deemed a defect — it has "the
defe^'ts of its (jualities " ; and there are
some things which Ctannot at all be done,
or at any rate dime by the central author-
ity i!i a federal union —which cannot at all
be done '' moilo <t forma " in wiiicli they
may l)e tlone in a legislative union. Hut
passingtliatl(y,therule is as I havestated;
and that rule has been recognized as a
safe and guiding clue towards the inter-

f)retation of the clause distiibuting the
egisiative powers. Hut when you come
to proprietaiy riglits tiiere is another
rule, just as clear, and furnishing just as
plain a chie ; but tiie rule is opposite,
the clue is of <|uite a diU'erent color, and
it leails ((uite another way. The resi-
duum of property goes to the provinces
ami hot to the Dominion; ami tl)i.>4 fact
uuist be treated as an eijually important
factor in construing that ))rauch of the
Act as the opposite fact is consiileieil in
construing tliat part which relates to the
distribution of legislative powers.

TiiK Kaki. ov Ski.hoknk — In resjM-ct
of wliich luanch ui the Act do \ou use
this circUMistance t

CocNsKi. Well, I use it now with
reference to the question of proprietaiy
riglits.

FuK Kaki, ok Skmiorne— It struck
me that sectitms (M and \(fi are the same.

Counsel — I am speaking of 109 and
117. ^'our Lordship sees that 109 gives
the lands, and 117 gives the residuum of
proprietary rights to the Provinces ;
whereas 91 and 92, dealing with legisla-
tive jurisdiction, give to the Dominion
all that is not specifically handed over to
the Provinces.

Thk Earl of Selboknk — You say
you do not take 102.

Counsel— That is the Revenue Clause ?

The E*rl of Helbokne — Yes.

Counsel — No ; for reasons which will
appear later on. I was endeavouring just
now so far as I could to state the various
lines of argument which converge, in my
mind, to one conclusion ; and 1 propose
to enlarge on some of them later.

SiK M. Smith — You do intend to en-
large upon them ?

Counsel — Yes, my Lord. I thought
the general liearing of the propositions
wliicli 1 wat> about to advance would be
more plain i*^ I summarised them all in
tlie first placi as I am attempting to do.

My iifxt point is that the scheme of
the Act is to specifically grant every item
of property wliich is intended to go to
the Dominion ; and tliis -even altliough
legislative power f)ver ti'i't ir*.'in iias lieen
already, by a previous clause, granted to
the llominion ; and, that being, as 1 sliall
presently shew more at large, the scheme,
1 ask is a construction to be favored
which would in one isolated case trans-
fer, by mere implication from tiie grant
of legislative power, a vast territory,
while in all other tra.ses items of even
small value, over which legislative juris-
diction is already given, are yet expressly
transferred iiy grant '/

The next point is that the scheme of
the Act is to secure to each individual
his own proprietary rights, and not to
transfer these under the operation (if law
to any body politic or corjiorate ; and
here again the same ipiestion must he
put ; is a construction to lie adopted
which would, contrary to the scheme,
imply in one isolated case from the grant
of legislative powei' the transfer of the
proprietary lights of others. I say "of
others" because, according to the Appel-
lants cimtention, the Indians have pro-
prietary riglits, and not merely proprie-
tary rights, but the substantial pro)>erty
in this land : and they certainly have
proprietary right>» of an eipiitable nature
in the specific reserNcs and the lands
which are held in trust for tliem.M liich are
vlearly includeil in the (bs(!i iption in con-

troversy iii tliis case ; and since, whatever
the construction of the words, " Lands
reserved for Indians " may be, they com-
prise at all events the Indian interest as
distinguished from all other interests,
the Appellant's construction would trans-
fer to the Dominion })y implication, tluit
proprietary interest, whicli he contends
exists in the Indian. Tliat construc-
tion, I sul)nnt, ougiit not to he adopted
in preference to a simple, symmetrical
and /larmonious constructi'^n whicii will
avert all these dilticulties, and <lo justice
to all alike. Now, that is a summary of
the points whicii strike nie as applicable
to the consideration of tiie principal (jues-
tion arising upon the iiritish North
America Act.

If your Lordships will allow me, I w ill
now eidarge upon one or two only of
these main propositions, leaving the
others to stand on the brief statement of
them whicii I have made. The first pro-
positifui I venture to elaboi-ate is, tliat
th»,'re is no transfer to Canada of any pro-
priet.iry iiiteiest in lands reserved for the
Imlians, whatever that phrase may mean.
Whatever that phrase means, 1 say, there
is no transfer to Ciuiada (jf a proprietary
interest in those lands.

How are proprietary interests trans-
ferred to Canada ? Is it by express grant,
or by implicatifiii from the liestowal of
legislative powers? As already stated,
it is always by express grant ; and never
bj- such imjilication. 1 cannot conceive
how it is possible to overcome thatoliser-
vation. 1 cannot conceive how it is pos-
silde, after contrasting the grant of legis-
lative power ellected by 91 with the
transfer of proiiiietary interests made by
ion, to doubt that there is a canon, a
scheme, obviously, deinoiistiabiy indi-
cate<l, whicii makes it ontof the (piestion
to inter a transfer of property from a
grant of legislative power.

Thus by 91 legislative J iwov is granted
over .\Iilitin. Military or Naval seivice,
antl Defence. Hut military roads, ord
nance ])roperty, armouries, drill sheds,
clothing and munitions of war, were not
conceived to Im; so ti-ansferred. Knch of
then» is expressl\ vested by 108.

Legislative power is granted over navi-
gation and shipping. Hut tiiete is an
express transfer of lighthouses, beacons,
buoys, canaU, harbours, sti-andioats,
dredges, public veiutels, river and lake
linprove?nents.

Legislatixe |H)wer is granted ovei' indi-
rect taxation. Hut there is an express
transfer of the ciiBtcmi liounes.

Legislative power is granted over the
postal service. But there is an express
transfer of the post offices.

Legislative power is granted over the
public property. But there is an express
transfer of land set apart for general
public purposes.

Legislative power is gi'anted over Sable
Island: Hut there is an express transfer
of Sable Island.

I can shew youi' lordships tliat the
same principle applies throughout. Lord
Selborne adverted to the circumstance
that one does not find in 91 an express
reference to railways, though the railways
are transferred by 108 : i)Ut it is to be
found; the scheme is complete even in that
particular. Your Lordships will find that
by the 29th article of 91, " such classes
of subjects as are expressly excepted in
the enumeration of the classes of subjects
by this Act assigned exclusively to the
Legislatures of the Provinces." are ex-
pressly included in the Dominion legisla-
tive authoritv.

Now, amongst those expressly ex-
cepted classes are Railways and other
umlertakings, connectir.g the I'l'ovince
with any other or others of the Prov-
inces : and the only public lailways
were at the date <if the Act covered by
that description. Therefore these were
excepted from the local control and ex-
pressly inclutled in the legislative au-
thoi-ity of the l>ominion ; but yet the
property in them was not thought by
such inclusion to be transferied, but tliey,
like all the other subjects, are expressly
transferred. Thus we find that the
scheme, from the greatest to the snail-
est, ."rom the largest to the most insig-
nificant item, is carried out. Kvery one
of these iten s. over each of which legis-
lative power has been already given, is,
when intended to be transferretl, trans-
ferred liy express grant. And then hav-
ing dealt with all such items, we come at
last to " Indians antl lands reserved (or
the Indians.'

TiiK K\kt, OK Skliuiknk ^'<»u say
where there is a ci'se in which it is expe-
dient that it should be under Dominion
control, there was an express stipulation
to that ellect, and you say x* hen- that is
not done, it is not transferred.

Col NsK.i. Yes. We find by 91 Legis-
lative |Miwer confei'red over "Indians
an<l Innils reserved for the Indians, " ami
we turn to lOH, whiih supplements 91 in
all cases in which proprietary interests
were intended to ln' tiansferied. and we
find no mention of lands reserved for tlie

Indians, any more than wc find mention
of the Indians themselves. But we are
to imply it, forsooth 1 I say yoii might as
well imply a proprietary rij^ht in the
Indians themselves, and turn them into
slaves, as was sonietimes done in the old
times, as you might imply a proprietary
right over tlieir landfc 1

But your Loi-dships are asked to imply
a transfer, not of a minute article, hut a
transfer, as I have said, of a kingdom, in
a form shown to be deemed inadeiiuate
to ertect the transfer of mere triHes I
Barren wortldess Sable Island, tiiat little
mass of sand which is diminishing year
by year until it is about half a mile wide
and twenty irdles long — that is expres-ly
transferred, because the property was to
go. Buoys and beacons, boats and
dredges, fire locks and soldiers' breeches
— these are all expressly ti-ansferred ;
they are thought worthy to be expressly
granted : implication does not suffice for
them. But at the same instant, under the
same Act, half Ontario is left to be trans-
ferred by an implication from the giant
of legislative power, thought inadeciuate
in every otlier case to produce sucli a
result I

I submit, my Fiords, witli great confi-
dence that the fi'ame of sections !•! and
108 taken together, does not merely give
rise to an inference against the view of
the Appellants, but demonstrates con-
clusively that it was not intended to
effect any transfer to Canada of the pro-
prietary interest in these lamls; and that
to decide otlierwise would be to frustrate
and not to effectuate the plain intent of
the Act.

Now, I pass over for a moment the
meaning of "lands reserved for tiie In-
tUaus, ' and tlie question of what may
fairly be implied from the grant of legis-
lative piwer, in order that witli ytuir
Lordships' leave I may contrast at once
the clauses which touch the vesting of
property in the provinces with the
clauses which I have just now l)een dis-
oussing : because, having, as 1 hope,
shown, altluuigli 1 have not completed
the argument, that this property is not
transferr<'d to ('ana la. my seiond proposi
tion is that it is exDressly vested in On
tario by section HMK By that section,
with which your 1. «rdships are painl'idly
familiar, "all lands, mines, minerals and
royalties belonging to the provinces at
the union, and all sums tlien due and
payable," etc., etc., "shall belong to the
•everai provinces in which the watne are

situate or arise, suljjeet to any trusts ex-
isting in respect thereof, and to any in-
terest other than that of the province in
the same." \ow the meaning of that
clause is expounded in The Attorv<>y-
(iriu ral V. Mercfr, and so expounded as
to fully cover this cuse in any aspect,
and at any rate upon that middle con-
struction of the Indian title on which
I am just now arguing the case, namely,
the idea that there is a legal, established,
recognised and permanent right in the
Indians, the nature of which 1 have
entleavoured to indicate. I say that the
whole current of the autlutrities in the
United States, thougli some of then) state
the case of tlu- Indians in the strongest
way, yet biings you to the con-lusion
that the lord paramount was the state ;
that the ilom'niiinn >(irerfnm was in the
state ; that there was an allodial title in
the state, and a seisin in fee in the
grantee of the state : au<l that the inter-
est of the Indian was an interest carved
out of tile allodial title of the state.
Then what is the interest with which
that title of the state is burthened ? It
is burthened with a servitude, with a
right of tribal occupation for the accus-
tomed purposes, so long as the triV)e
either subsists or chooses to remain. If
the tribe dies out or removes (and great
numbers of these tribes have died out,
and some have reiiu>ved) the servitude
ends. And in this connection one must
remember that this is not a treaty with
"2. (MM) Indians in bulk who claim common
rights over .")."), (MK) s(|uaie miles ; it is a
treaty with numercuis small bands,! think
about thiity, each of which claims its
specific portion of the ').■), 00<) scjuare miles;
and the snuiller the band the greater the
chance, either of removal from the local-
ity, or of extinction of the band; while, if
there is either a removal from the local-
ity or an extinction of the band. the right
becomes abscdute and t!ie servitude ends.
In the meantime, not further pursuing
this branch of the argument, I say, upon
these United States" autlK>ritie8, stating
the law as they understood it to l>e appli-
cable to the old colonial times as well as
to their own, there was in the state a
right comprehending a seisin in fee —
and a jiower to giant in fee, while yet the
lanil was unsuiTendered, although \>€-
foH' surrender or extinguishment the
oecupaticui of the huliaii oould not be
disturlwd : and again I say that the
Indian right f)f occnpatinn was not trans-
ft<rable by him, but was subject ti> l»»

extinguislied, eitlier by coiKjiiest or )jy
surrender to the owner of tlie soil. That
being so, I say tliat it is impossible
witliiii the case of the Aftoriny-ditu ral
V. Miirer to treat the interest of the old
Province of Canada — putting it upon a
lower ground tlian 1 believe it can fairly
be put on — to treat that interest as otlier
than "land" at the time when the Hritisli
Xortli America Act was passed.

\ow some of the phrases whicli ai-e
used in the judgment in the Atlormy-
(I't ncrai v. Merrer show thi'.t no technical
or narrow signification is to be given to
the word "land " in this Act. but (juite
the coitrary. B^or example : " It was
not disputed'" — let me ijuote these words
—"in tlie argument for tlie Dominion at
the Bar. that all territorial revenues
arising within each Province from 'lamls'
(ill irhi'h ti rni iiiii.sf he roiiifin htin/nl nit
estatfx ill Iniiil )." Tliere is a <lefinition
of the term " lands." It comprehends all
estates in land. Again, "The general
subject of tiie whole section is of a liigli
political nature ; it is the attiibution of
royal territorial rights for pnr[)oses of
revenue and government to ti>o Prov-
ince in whicii they are situate, oi- arise."
So the whole subject matter of the whole
section is described in comprehensive
terms by yoni Lordships as " royal terii-
torial rights. " Then towards the con-
clusion of tiie Judgment your Lordships
point out that "The larger interpreta-
tion (which they regard as in itself the
more proper anil natural) also seems to
be that most consistent with the nature
and general objects of this parti<ular
enactment, which certainly includes all
otiier oidinary territorial revenues of the
Crown aiising within the respective
province!?. '

Now I ask, is it possible seriously to
contend tluiC this interest was other than
"land " within tlie meaning and signifi-
cation which is given to that term in this
judgment, always provided th:it the in-
terest behuiged at the date of the .Vet to
the Province ; and my learnetl friend has

fiointed out. and your Lo''dshii)s also
lave rightly said that it is admitted that,
at the time the liritisii North .\merica Act
was passed, the interest, whatever it was,
had becoiiiH an interest of the old Prov-
ince. Ci>on that I shall have to dilate
a little further in another biniich of my
argument : but I Htjtt>t> with asstiranee
that the inteiest. whatever it was, was
an interest lielonging to the old Province.
Again, if the interest was not "land,"

surely it was " an interest in land," surely
it was "an estate in land," and thus comes
within tlie definition in Mercer's case.
Hut if not, tlien it was at least " a royal
right " in the land. 1 cannot argue that
this is the best description, for it seems
to me to be an inadecpiate description of
an interest so large and substantial, being
in truth the land. I>iit if it was no more,
it was at least a royal right.

Thk Eakl (IK .Sklhokne — The Crown
apparently b:'d a fee simple in lands sub-
ject to a burden.

Co! NSKI- — Ves, bi'rdened by this ser
vitude.

LoKi) \V^.4TS()S — There are two events
which may happen and one is a mere
casualty .

CorssKi. — One is a mere casualty which
may never arise. This is the land, it is
at any rate an interest or estate in the
land ; but if, by some process of reason-
ing which I confess 1 am unable to grasp,
it is to be cut down to some point which
I connot perceive, it is reducible at any
rate no lower than the point f)f royalty ;
there is a royal right ; there is a public
interest ; it is a part of the "Jura
rnjnlin "' ; and it is larger than the right
of escheat because it comprehends the
right of escheat.

In this I'onnection just one reference to
t)ie provincial statutes. 1 hope not to
trouble yoni' Lordsliips with many such
leferences ; but your Lordships will ob-
serve that even in the case of the
specific reserves, long before Confeder-
ation, provision was made for the
gi'adual enfranchisement of the Indian ;
and as part of the emancipatory process
he might receive to himself an estate in
part of the land allotted to the tribe ; he
was allowed to devise siicii j)art amongst
his children, with certain rights to his
wife : and if he die*l intestate, then it
passed to the children ; but if he left no
children, then there was an escheat to
the Ci'owit. >io that there was a special
extended escheat provided in the case,
because the sjH'cial tenun- even of the
enfranchised Indian was lower than the
onlinary tenure of the white, 'i'he in-
ference is obvious. Now there were
other interests which itis admitted passed
umler this word " land ' ; for example
( j'own lands sold before the union. 'J he
ordinary i;ourse was to make a contract
of sale, not as a rule for cash, but on
cretiit ; and the land r»'mained vested in
the Crown until |Niid for. Ni>w there is
no doubt wliativer that the int4>rest of

the province at Confederation in such
land as tliat wouM belong to the pro-
vince after Confederation ; the legal
estate, the allodial title in fact yould re:
main in the Province — would remain
in the Crown in tiie interest of the
Province I suppose is the more accurate
phrase — and the Pr<Jvince would have
the right to collect the purc'iase monej'
which W'as its l)bnericial Lntorest in the
land. Subject to that the Province
would be of course bound in honour to
fulfil the ol>ligation wliich had been
previously undertaken l)y the Crown to
convey to tlie purcliaser his property.
}}ut this Act is so careful as to expreS'-sly
provide that tiie vesting of the prop"rty
in the lan<l sliall be subject to any ex-
isting interest ; and thus tliere is a
recognition of eacli private right, appli-
cable to eaoli special case, and to each
particular interest, (ioa little furtlier—
supposing tlie case to be that the land
had been wiiolly paid for before Confeiler-
atioii, but that tlie patent li id nut been
issued; as it often liappeneil tiiat years ot
delay occurred in tlie issue of patents.
There you find what yon might call ii
naked trust, no beneficial interest in the
Province. Vet the legal title would go
to or remain in the Province ; the
Donunion would have no interest in it.
It would belong to the Province, tiiough
the [)urchase money having been paid,
there would be lU) beneficial interest, and
tliere would remain only an obligation to
transfer the legal estate to the purchaser.
Thus I contend that the old Province in
this case possessed the (lUi)iliitiii, and the

f>rovince of Outai-io since ('onfederation
las possessed the 'i//oiiiiiiii. subject to this
Indian burden whatever it may be.
Now one of their l^iordships below speaks
of this clause as saving trusts only, and
says that the word "trusts " was inap-
propriate to the Indian interest. I
think it was hardly inappi(»priate ; if it
had stood alone, I tiiink, according tu
the view which slu) dd be taken of
the character of this interest, " trusts "
was nnt a very inappropriate word ; in
truth many reserves are very much like
trusts, and in many cases the Acts of
Piii'liaiueut spc- ik of such lands as being
held in trust -see the Pith Victoria,
ch.ipter 9, for example.

I'liK. K\KI. OK .Ski.iiohnk— I supuose
that means what we call a trust, which
may Fie vi'Mted in some persons to lie used
by them for the benefit of others?

("oiTNSKi. Ves, my Lord ; and there
Were alsr) some express Hoyal trusts; there

were some lands wiiich were held by the
Crown royally in trust for the Indians ;
howevei-, ' pass this by, because, though
his Lordahip, by an extraordinary acci-
dent, entirely omits to take notice of it,
yet the fact is that the word " trusts " is
not the only relevant word. He entirely
overlooksthewords. "or any interest other
than that of the Province," and, these
words having escaped his attention, he
fastens upon the inappropriate character
of the word " trust," and points out that
as a I'eason why this land should not be
treated as vested in the Province, be-
cause the Indian interest would not by
the word "trust " be saved. His attention
failed him or he would have observeil. only
a line or two below, the worils "or any
other interest other than that of the
Province " ; and I say that phrase clear-
ly, incontrovertibly, beyond cavil or
criticism, must comprehend the Indian
interest, whatever that may i)e. There-
fore, I do not protract this part of the
argument. I do not think it is necessary
after theiliscussion here, to say much upon
that on which the same learneil judge
has placed great stress, namely, the
use of the word "public," which he
erroneously conceived to be in the clause
which I am now discussing, but which,
in truth, he imported from the Hinil
clause. It is not found in the clause
under discussion, lint the insertion of
that word wovdd make no ilirt'ereuce
whatevci'. " These lands," that is to
say, " the interests of the Province, if
any, in these lands," were /nih/iri Jnrix.
The word " lands" ade(|U:itely and clearly
expresses that, and I should feel as strong
in my argument if the word " public "
had been inserted here, as I do in its tib-
seiice ; but I claim that ditl'eience ; it is
not to be found here, and if tliere is an
intentional omission, tliiit omissi<>ii must
have been for the purpose of widening,
and certainly not of narrowing, this
clause.

Then a suggestion was made 1 do not
remember whether it was pressed here -
but a suggestion was niaile that the word
" pul)lii' ' should be I'Kustrnecl by the
light ot the foruu'r provincial Acts. I
think your Lordships' observation as to
limiting the meaning of the words, " land
reserved for tlie Indians," by reference to
local legisliitiun, is directly applical
to this t:onteiition: and I wonhl also recall
an obsei x'atioii from I^ord Watson, who
pointed (lut that which is perfectly true,
that he who would seek to extract one
uniform meaning fi-om the word " public'

in these Acts would have a very liard
task.

The Earl of Sklborne — Is it neces-
sary to import the wonl ?

CoTN^iEL — The misfortune is that a
vei'y able dissentini^ .J uilge has imported it
for us, and a large part of his argument
was founded on its existence in a place
where we do not find it.

We must, however, give a construction
to this word whicli will l)e applicable to
the various Provinces. We cannot put
a paiticular constiiietion on the wt)rd
"public," becau.se that construction is
useil in the case of old Canada ; while,
turning to Nova Scotia and New iiruns-
wick,we tind no uniform meaning, nor can
extractanysiinilarconstruction. The word
is not tlie sole, or even the governing
word in the clau.ses in which it occurs. I
do not trouble your Lordships further on
tliis point, l)ecause it seems to me thai a
fair and reasonable view of this word
" lands " would be that if there was any
distinction between it and " pulilic
lands," as used in tiie 91 st section, it is
to widen the phrase ; and even if your
Lordships regard the two phrases as
e(juivalent, tiie result is tlie same — that
this interest is included in " public
lands '" as well as in " lands." These were
lands held for the State interest even in
tha old ("rown Colonies : they were held
under statute, and were under public con-
trol. Now, I say that even if tiie words
in section 91 , " lands reserved for the In-
dians," include tiiis tract, that df)es not
at all preclude this lainl belonging to the
Province. The argument for the Appel-
lants on this subject of the legislative
power is wholly fallacious. Ihey say it
excludes a proprietary interest in others
than the Dominion, and therefore settles
the (juestion against \18. But I submit
that legislative power in tiie Dominion
does not exclude a proprietary interest
in the Indians. I do not think my friends
would seriously contend, with respect to
the special reserves and so forth, that
the fact that the Dominion has exclusive
legislative power, would pieclude a pro-
pi ietary interest in tiie Indians, for
wliose welfare tliey are so anxious : and
if so. if the proprietary interest in the
Inilians is to lie preserved notwitlistand-
ing tiie grant of cxciiisive legishitive
power to tiie l>ominion, wiiy siiould not
tiie proprietary interest of tlie Province
in tiie same lands, wliy siiould not the
proprietary interest of anybody else in
the same lands be also maintained, not-

witiistanding the grant of that same ex-
elusive legislative power? Each Prov-
ince has exclusive power of legislation
over all private lands, over tlie lands of
everyliody situate in the Province, but
the proprietary interest still resides in
the private owner. And therefore I suij-
niit with confidence that the legal estate
and the beneficial estate, and the rigiits of
old Canada are by 109 expressly declare<l
to belong to tiie Province of Ontario.
lint, tiiirdly, if, foi- some reason which I
am utterly unable to grasp, 109 should rot
be held to cover this interest, then I ap-
peal with gieat assurance of success to
clause 117 as covering it ; and I contend
that by 1 17, if not already vested by 109,
the property is not indeed given, but is re-
tained to Ontario. "The several Proviiu-es
sliall retain all tlieir respective public
property not otherwise disposed of in
this Act.'" Now let me pause here and
venture to reiterate that, if not taken
away by the Act, it is to stay witii tlie
Province. If it is not otlierwise disposed
of, it is to remain with the I'rovince.
Tlien I ask, has it lieen taken aw ay ?
Has it been (illu ririsi disposed of ? 1
submit not. But it may lie said, and it
has been said in the Court below, tiiat
" lands" are specially dealt with by I(i9,
and therefore they are not comprehended
within the meaning of 117. 'J'iiat seems
to iiie to lest upon a fallacy. If this
particular interest in lainl is dealt with
by 109, all is right. The property
is vested in tiie I'rovince by viitue
of that dealing. Hut if this particular
interest in land be not dealt witii iiy 109,
then there seems to be no reason agiinst
this particular interest being dealt with
V)y 117, wliicii was intended, as one of
your Lordships suggested during the
Appellants argument, to sweep in what-
ever might not have been otlierwise dis-
posed of.

TiiK Eaki. ok Sklhohnk- It would be
very "iitficult, would it not, to say tiiat
land was not witliiii that section because
it is subject to tile rigiits of Canada to
assume land ?

CoiNsKi.— I was just coming to that,
my Lord. I liave been endeavoring to
argue so far without tln> assistance of
that point. Hut I say tiie iiuestion is
.settled l>v the rest of tlie clause, " siiii-
ject to the right of Canada to assuine
any lands or public j>rojM'rty required for
fortifications or for the d lence of the
country." That seems t<i me to make it
abnntlantly clear tliat tlie I^egislature

was dealing witli 'amis in tlie main part
of the clause, since it saves a right of
Canada, or rather, as 1 conceive, createsa
right in C'anada to assume and exercise
the power of eminent domain in respect of
land as well as of other public property
required for fortirieations or the de-
fence of the country. Tiius tht> clause
touclies lands — any possible inteiest in
lands which may remain after giving effect
to the other clauses of the Act.

The Eaki. ok Sklhoknk — Perhaps
public property would not include such
a riglit as that right to esciieat, I do not
think in tlie Mercer case much stress
was laid on that clause.

Ct.>rNSEK — No, we did not get down to
it. You use tlie ret,iduary clause only
in case the principil clause does not
art'ect the subject. I cannot lay mucli
stress on it now, simply because I be-
lieve we do not in reality reach it ; but
I say if we do reach it, it disposes of the
case. Your Lordships in Mercer's case
di<l not consider it had much bearing.

Tut Kari, ok Ski.hornk — My im-
pression was tnat it was not tliought
sufficiently large.

LoKii Watson (<|Juotiiig) " They evi-
dently ine:in lands Ac, which were at
the time of the Union in some sense, and
to some extent /mh/iri juris and in tiiis
respect they receive illustrations fioin
another section, tiie 117th (which their
Lordships do not regard as otherwise
very material)."

Coi'NSKr, -Then the saving clause iu
117 is in itself not unimportant. My
learned friend .Mr. McCarthy said that
tliat saving clause was a very puzzling
clause. He did not know wiiy it was
there — because the Dominion had un-
(juestiouiibly this right without it ; anil
therefore it was impossible to understand
why it was put there. But 1 submit it
is a very plain indication of the view of
the liegislature that the rights of the
Dominion in reference to land were
limited to such as were expressly (iiven
to it : and that it is upon this clause,
and not on some other or general pro-
vision, that the right to takt; laiuls for
tlie purpose of defence and so forth must
rest. It is, in fact, an indication of the
limited nature of the power of eminent
domain in the Domain. If there had been
a general power of eniincut doinaiii in the
Dominion, of course that clause would
have been needless and iniprojier. Ihitit is
here, and it leads to the inference I sug-
gest. Then I suhmit to your Lortlships

that, if there be no other disposal of the
property up to this point in the Act, we
clearly find its destination here ; and
that it is not to be withdrawn from the
Province by implication. It is rather to
be left to tlu, province under the express
woi'ds to which I ha^e referred.

Now if your Lordships will permit me
to return for a moment to tiie argument
from etjuality, to which I made allusion
a while ago, I will state briefly the
grounds which seem to me to lead to my
conclusion. I submit tliat eijuality of
treatment of the several Provinces as to
their enjoyment of the crown lands de-
mands our construction. Tlie British
North America Act, as I venture to sug-
gest, deals on an equal footing with (Que-
bec, Nova Scotia, New Brunswick and
Ontario actually ; and potentially with
the rest of British North America. It is
T/u British North America Act. It
contemplates a federal union of the whole
northern part of the continent under its
provisions, excepting in so far as there
may be some alterations of those pro-
visions in the special instruments of
union. And to construe it intelligently
I submit we must see how things stood
as to the other Provinces in order to dis-
cern what will be the effect of our con-
struction. They brieHy stood thus. In
the Province of (Quebec there had heen
no surrender : there had been no recog-
nition of an Indian title : theic had been
settlement of a vast ai'ea. But a far
vaster area was open for settlement as
Clown lands. unsuirendere<l. and with
the Indian title iin recognized. There
had been certain allotments made by the
Crown, by tiie Legislature, and priv-
ately by individuals, specially appropri-
ated to the maintenance and education
of some Indians.

TiiK Kaki. OK Ski.hoknk Are you not
treading on dangerous ground there ? In
a certain sen.se of course it is true that
these provisions are to apply to all the
provinces ; but we can neither presume
that the circumstances of the pi'ovinoes
were all alike nor that the Act intended
to make them so.

Counsel -Not absolutely alike ; but
my proposition is, that that leading view
as to equality of treatment, both with
reference to control and development of
lands and with regaxl to the revenues
arising from lands, htis force where there
are two available constructions, one of
which leads to the equalizing leault and
the other leads to a different result.

The Eaki. of Selboknk — I quite
understand wliat you mean in that re-
spect. Supposing that in some of these
provinces tlie (juantity of land reserved
for the Indians was very small and in
others very large. Of course the pro-
visions bearing on that ([uestion would
necessarily he mure important in the
province where there were many such
lands than in the province where there
were few : but 1 <lo not see that any
presumption can l)e made that it was
meant to ei|uali/e tliose provinces in that
respect.

CocNSEi, — Xo, my Lord, I have not
expressed myself \ ith sutticient clear-
ness. 1 do not intend to argue at all
that it was meant to alter the existing
Conditions ; but merely to argue that in
interpreting the constitution if one con-
struction will lead to a conclusion which
will preserve eiiuality of condition in
this sense that 't will leave tiie same
control o\er its own public lands to (jne
province as is left to the other provinces,
whereas another construction will take
that control away from the one, while
leaving it to the otiiers, we should prefer
the first.

The Kaki, ok Selbokne— If that in-
equality is used in the construction placed
on the Act, prol)ably youare (juite right ;
but supposing that is merely the differ-
ence of circumstances of the provinces.

C'dinsei.— There was an ine<iuality in
tliat sense ; and I do not for a moment
pretend that the British North America
Act levelled up things by force, tiiougii
I shall show to your Lordships later that
the arrangements for union did "level
up" in certain cases by agieement.

'liiK Kaki. ok .Ski.hok.se It dealt
with things as they happened to be pei-
haps without perfect knowledge of every
detivil ontiie part of the iiritish legislature.

CoUNSEl. — Of course the plan the
British legislature pursued is well known.
Sets of resolutions were passed by
tlie legislatures of all the provinces.
They were sent over here under ad-
dresses, 'i'hen tleputations of leading
men from the various provinces came
heie and sat in conclave during the pass-
age of tlie Bill, and witli hardly more I
think than two exceptions, one as to the
title which was proposed in the original
draft— the Kingdom of Canada, instead
of th^ Dominion of Canada — and another
with regard to tiie pardoning power, the
views of that conclave representing
under tlie authority of the diJl'erent legis-

latures the several provinces, were em
bodied in the Act. So that, presumably,
we find embodied in the Act the knowl-
edge of those who were best actjuainted
with local public affairs. However, I do
Lot intend at all to enlarge upon this
I ,iiit, but merely to state it in the brief-
est possible way ; and, as I have said, the
cases of Quebec, Nova Scotia and New
Brunswick are in this particular alike.
In Prince Edward Island the whole area
had Ijeen patented in one <lay, under in-
structions from the executive in England,
without any surrender or recognition ;
and private charity had bought Lennox
Island for an Indian refuge. In Van-
couver Island, in the early days of the
Hudson's Bay Company, there were some
few surrenders and insignificant reserves :
but on the enormous mainland of British
Columbia, comprising 300,000 scjuare
miles — ten times the area in dispute and
inhabited by over "25,000 Indians, there
was no recognition or surrender. I ask
your L(jrdships to mark that those terri
tories of Bi'itish Cohnnbia arc covered
by this proclamation of 17U3— that those
territories are covered just as much as
is the territory now in question by that
very clause of tiie proclamation under
which tliis Indian interest is reserved.
There the local government dealt with-
out hesitation, and undei' the authority
granted to it, with the lands of the
Indians, assigning them whatever morsels
it tiiought fit, without any question or
bai'gain or compact, not recognizing in
them any right in the soil, but reserving
for tiiem their residences, their burial
grounds, and so on. Then in Rupert "s
Land and the North -West Territory the
only surrender ever olitained was the
Earl of Selkirk's surrender at an early
period ; and the Hudson's Bay Company,
without any leference to the Indiar. title,
to the extent to which in their own in-
terests they found it necessary, used to
alien lands to settlers ; and things stood
thus in relation to these various countries
as to the Indian title at the union.

The Kaki. ok Sei.hokne — When you
speak of the proclamation as applied to
the Pacific I suppose what yon mean is
that, from the construction of these
words it would so apply. You do not
mean that the then representatives of the
British government were brought into
contact with the Iiulian natiunR as far as
Vancouver Island.

Col'N.HKL — I am not aware that they
were : but I say that that area was re-

served for the Indians just as ' ■ ;h as
the present area.

The Earl of Selborsk — From the
construction of the words I quite follow
what you say, hut it might perliaps tend
to explain any difference in tiie way of
actinj^upon it that there had really never
been any coirmiunication l^etween tliose
remote regions which v.ere pt haps
hai'dly discovered at that time, so that
the Crown did not feel fettered as by an
actual engagement given to persons wlio
could claim the performance of it.

Counsel — It may be so. With your
Lordship's permission, as I am about to
deal with the proclamation later, I will
deal with this point then. I am only
desirous to make a bare sunmiary at this
moment.

The Eakl of Selborne — I quite
follow you and I think you are right in
saying the words of it would cover the
whole ground. France claimed every-
thing though they had not really settled
it.

Counsel — And besides we must always
remember that tliis proclamation is not
limited by any means to what France
claimed. It deals with the lanil the sub-
ject of the cession, but it deals also with
the old colonies.

The Earl of Selborne — There are
other clauses.

Counsel — 15ut this clause

The Earl of Selborne — It may be
that your proposition might apply to
that, but this was not an old colony
surely.

Counsel — No, but I am merely point-
ing out that even if that area did not
pass by tlie cession, in whatever way it
passed, whether it was ours before the
cession, or whether it was Fiench, it is
included in the language of the proclam-
ation.

The Earl of Selborne — You will
show that when you come to it.

Counsel — V'es. Then I wish to turn
for a moment to the other argument for
eijuality, which I suggested to your
Lordships. I have pointed out the
grounds for e((uality of treatment with
regard to Indian lands, an<l with regard
to the enjoyment by tlie provinces of
their own lands ; .ind. without saying a
word moi-e as to the original provinces
than tliose few words I liave already
used, pointing out tlie duties which
ilevolved upon the provinces, tlie funds
out of which it was expected they would
discharge those duties, and the elements

of control and the important functions
assigned to them with reference to lands
within their boundaries, I wish to show
that the argument is strengthened by
the facts as to all the additions to the
Dominion contemplated at the time and
ultimately effected or negotiated. Some-
times indeed the plan of union ditfered ;
l)ut the diH'erence in the plan only em-
phasises ihe argument for ecjuality. For
example : Prince Edward Island w;is
proposed to be joined at the period of
the original union ; but the negotiations
failed at tiiat time owing to the Frince
Edward Islanders not desiring union.
In Prince Edward Island tlie Crown
lands had all l^eeii very improvidtntly
granted by the Crown, and so the Island
iiad no Crown lands. What was (huie ?
The fact that the otlier provinces had
their Crown lands, out of whicli tliey
were to discharge these duties, was recog-
nized. Tlie fact that Prince p](l\\ard
Island was in a disadvantageous position,
was recognized. And she was made a
special allowance of .*!4.5,000 a year out
of the funds of the Dominion. Tiiat was
in the original proposal of union, and
was afterwards agreed to when she did
come in a year or two later. Siie was
made a special allowance of .$45,000 a
year to make up for the fact that she
had not got any Crown lands. It was
true that Canada had notlost them for her;
but it was felt that slie could not dis-
charge her functions without the revenue
she might have derived if she had had
Crown lands. And the I)omini<jn,
though not responsible for the loss, ax
iK'Ci-xxifnti' undertook to make it good.
As to Newfoundland, in 1869, she was
given the option of handing over her
Crown lands to the Dominion ; and if
she agreeil she was to get .^I.IO.OOO a
year in perpetuity for her local services
in consideration of the surrender of her
Crown lands. So that when it was pro-
posed to depart from the scheme of the
Act, it was proposed immetliately to
compensate the pi'ovince for that depart-
ure. In British Cj)lumbia an arrange-
ment was made, in tlie terms of union, for
a grant of twenty miles on each side of
the route of the Canadian Pacific Kail-
way, to assist the Dominion in construct-
ing that great railway through tlie
province ; and in conse(|Uence of that,
because Britisli Columbia was going to
lose the revenue from hei' thrown lands
for twenty miles on each side of the
route, she was given ij? 100,000 a year for

ever, out of the Dominiuii funds, to put
her in tlie position she .vonlil have occupi-
ed had tliat portion of lier Crow n hinds
not been taken from iier. In Manitoba,
where tlie lands were Dominion hinds,
because all that province was carved out
of tiie North- Western Territory, they
seem to have been largely appropriated
by the Dominion towards the construc-
tion of the railway and sold ; and, when
it was ileciiled at first to retain the resi-
due as Dominion property, .^45,000 a
year were allowed to Manitoba to "even
up," as they call it. in consequence of her
not having Crown lauds. That sul)sidy
was afterwards increased to .^100, 000 a
year ; and a portion of the lands that
remained was also handed over to the
province. Now that series of facts I
submit to your Lordships is exceedingly
strong, and in fa(;t conclusive in support
of my argument that the general «ciieme
of this Act was that the provinces
sliould iiave all their public lands, or al-
lowances proportionate to what might
have been realized out of their public
lands, in f)rder to disciiarge tiiose political
and governmental functions with which
they were charged under the British
North America Act.

Now so much with regard to tiie argu-
ment for efjuality ; and I return if your
Lf)rdships will allow me, to tiie question
of the meaning of "Indians and lands
reserved for the Indians" in the Biitish
North America Act, so far as one is able
to discuss tiuit (juestion without a treat-
ment of the various descriptions of the
Indian title to which I have referred.
Treating it therefore on the hypothesis
that it is of the nature I have described
as the middle title, I ask, after constru-
ing these other clauses which I have
discussed, is there to be found in the
language of the Olst clause in which
that '2-ith article is contained such a
clear ami plain intent to grant to Canada
the provincial proprietary interest in
these lands as will take them out of the
operation of the other clauses ? Because
that is really the (juestion. Unless we
can find in this particular clause, grant-
ing a legislative power, a clear and plain
intent to transfer to Canada a proprietary
right, that right is certainly disjjosed of
by the otiier clauses.

Sir M. K. Smith— It only professes
to give legislative power.

CouNSKL — Quite so.

SiK M. E. Smith — Then to give the
proprietary interest or whatever it may

be, it must be necessary implication,
must it not ?

Coc.NsEi— Quite so. I think it is im-
possible to give any other answer to that
question.

Sir M. E. Smith — Is it necessary
implication ?

CoiNsEL^It is not necessary certainly ;
it is not even probable ; and the argument
is strengthened when we look at the
language of the clause.

Sir M. E. Smith — I think they used
it on the other side to assist their argu-
ment on tiie words of the other clauses.
Tliis Act having given legislative power
is it not likely they h.ave given the pro-
prietary power to the province ? That
is the way they use it.

CoUNstL — -I think the arguni int is a
very lame one; and that this is a very poor
crutch. T!ie clause is this : "It shall be
lawful for the Queen,'' and so on, " to
make laws for the peace, order and good
government of Canaila.'" — I omit the im-
material words — " in relation to all mat-
ters not coming within the classes of
sulijects by tliis Act assigned exclusively
to the legislatures of the provinces,"
including as No. 24, " Indians and lands
reserved for the Indians." There is your
clause. The primary and express, and
as we say the sole object of this clause is
to confer the power to make laws, is to
confer the legislative power ; and it must
be read primarily at any rate, and as we
argue with contidence exclusively, with
reference to that object. Then secondly,
the two subjects must be read together.
The first throws light on the second.
" Indians " and " lands reserved for the
Indians " ; " Indians and the lands of
the Indians " ; "Indians and their own
lands"; "The Indi.an interest only."
I submit that when you find these two
things together as the subject of the
legislative power, you find in effect that
it is the Indians and the Indian interest
in their reserved lands that is the subject
matter of the legislation.

Lord Watson' — Under section 91 it
is impossible to suggest that anything
went but the legislative powiT.
Cor.vsEL— Certainly.
Sir M. E. Smith — You argued before
that it could be only legislative power
and not property because when property
is expressly granted it is given to them.
Counsel — Certainly. I am now deal-
ing with the argument altogether irre-
spective of the difference between the
conveyancing clause and the legislative

clause. I now take the language of that
clause by itself; I took it before perhaps a
little inconveniently out of its proper
order, because Ifeltitnecessarytocontrast
the two sets of clauses at the moment.
I say then, as I suggested a while ago,
that there is no grant of a proprietary
interest in the Indian himself. He is to
be legislated for. There is nowhei'e any
such grant as to his lands. They are to
be legislated on for him and in his in-
terest. That is tlie purpose of the clause ;
and it surely would be a straineil con-
struction to imply a grant to Canada of
tiie proprietary interest of the Indian in
these lands ; and a still more strained
construction to imply a grant to Canada
of t)ie vast proprietary interest of the old
province. 1 will not after the long discus-
sion that has taken place, and after your
Lordship's expression of opinion during
that discussion, allude further to the
clue to the meaning of this plirase which
is to be found as is suggested in tlie pre-
confederation legislation of all the prov-
inces. It does not seem to nie to be
useful to trespass on your Lordships' time
furtiier oi. that subject, but it is to be
pointed out that in three out of the four
provinces

TuK Earl of Selborne — It was very
right that it should be gone into, because
several of the learned judges appear to
have attributed importance to it.

Counsel — Certainly, and but for what
has taken place I sliould have felt it my
duty to go into it.

The Earl ok Selborxe — It has been
fully g(nie into.

Counsel — I do not feel that I can use-
fully add anything ; l)utl may just point
out that in three out of the four original
provinces any Indian interest is repu-
diated in unsurrendered lands, and in
none are such lands treated as reserves.
And we have submitted in accord-
ance with tliose views of tlie learned
judges below, that the phrase here means
only lands of that special character, and
that in so far as reserves are lawfully
carved out of this area, as is contemplat-
ed by the treaty, they would come clearly
and plainly within clause 24.

Now it has been said by both the dis-
senting judges, but more strongly by
Mr. Justice Strong, that our general
contention would effect an abrogation
of the old policy, ami a destruction of
the ancient claims of the Indians. But
tliat is a most extraordinary misconcep-
tion. I have not been able to dnd in any

of the arguments addressed to the court,
certainly not in any of the written argu-
ments or pleadings, any suggestion tliat
what we propose is to eti'ect any altera-
tion whatever in the nature or extent of
the Indian interest. U hatever the na-
ture or extent of that interest may have
lieen, it is preserved just as it was. If
it be an absolute right, the province takes
expressly subject l(» it. If it be depend-
ent on policy, or good will or discre-
tion, that is all unchanged ; and all tlie
arguments which would lead the politi-
cal department of the government in
charge, whatever that government may
be, to pursue thac policy and to continue
that system subsist, and receive increas-
ing force every year during which it is per-
mitted to continue. In connection with
the suggestion also made by a learned
judge, that it was not thouglit safe in
eti'ect to entrust any discretion or power
to the province, I submit that a small
part, for it is a small part only of the
power entrusted some time before Con-
federation to 10,000 oi 1-2,000 souls in
British Columbia over '2.5,000 Indians and
.'100,000 s(juare miles of unsurreinlered
territories, might be fairly presumed tit
and proper and safe to be entrusted to a
million and a half of sul)jects in Ontario
with reference to 2.r)00 Indians and
30,000 scjuare miles of territory.

But I do not stop at the proposition that
nothing we advance here impairs the posi-
tion of the Indians : because I contend
that possibly, nay probably, the Indian
position is by our construc^'on of tlie Act
materially improved; since the Dominion
of Canada may be set up, ainl in my
opinion probably is set up, without self-
interest, witliout anj'thing to gain by
making an advantageous or a hard bar-
gain with the Indians, is set up as the
superintendent or guardian of the In-
dians, and the protector and vindicator
of the Indian rights. I will submit pres-
ently the authorities which would seem
by analogy to maintain that view. But
then it may be asked, if so limited a
meaning of the Indian interest was in-
tended, why was there no grant to Can-
ada of tile special reserves in which the
Indians are interested ? Is it not reason-
able that there should be sucli a grant ?
Not at all. It is just because it was the
Indian interest, that there was neither
necessity nor reason for making any
proprietary grant to Canada. There is no
such grant, as I have shewn, in any part
of this Act ; there is no grant to any one

of the interests of another, as there would
be here if the proprietary interest of tlie
Indian were granted to (Jauada. There
was, my Lords, iutruth no beneficial inter-
est to grant in the case : because part was
the Indians', and tlie rest was tlie pro-
vince's ; and that is tlie reason you rind
nothing granted. You do not rind anything
at all in the granting clauses, just l)ocause
there was notliing at all that could with
honesty or propriety be granted. The
auth(jrity to legislate for the Indians and
tlieir lands would cover all that was
necessary or proper ; and that is all tliat
is given. As I have said, the powers
tliat are conferred upon Canada of legis-
lation, and correlatively of adnunistra-
tion, would in all probability entitle Can-
ada to intervene in any negotiation that
was proposed with reference to the sur-
render of the Indian title ; and that
independent, disinterested intervention
(which it was of course presumed would
be constitutionally exercised, witliout
any capricious departure from the old
methods, or any improper detriment to
the interests of the province, but in a
manner conducive to the interests of all),
would, no doubt, produce a distinct,
theoretical improvement in the condi-
tion of the Indians, as it stood in the
province of Canada just before confeder-
ation, prior to which time, as has been
pointed out, the province of Canada had
for long proceeded to make bargains
with the Indians, having in view the
proposition that whatever it should pay
was to be paid out of its own pocket,
and whatever it should get would be to
its own profit ; and thus liaving a direct
and immediate selfish interest to make a
hard bargain, while it was bound from
motives of duty and propriety to make a
fair bargain with the Indians.

I submit, however, my Lords, that our
position is not sensibly impaired if the
view be adopted that there was a grant
to Canada of legislative power over the
existing Indian interests, if any, in these
lands. Assume, whatever the Indian
interest be in these lands, that the grant
is of legislative power thereover. Now,
what would the general result be of that
proposition ? First, continued enjoy-
ment by tiie Indians of tlieir interest,
whatever it might be, in their lands,
wiiatever they were ; that more absolute
enjoyment which they had in the special
reserves, that more limited enjoyment
which they had in these reserves, would
remain to them ; next there would exist a

legislative power in Canada over the In-
dians and over their interest in all lands,
including their interest in tliese hinds ;
next there would exist continued owner-
ship by the province of these lands, subject
to the Indian claim ; and lastly there
would exist a legislative power of the pro-
vince over its own interest in these lands,
liutit is suggested that this would be very
confusing indeed. " Wliat ! a legislative
power in the Dominion over the Indian
interest, and a legislative power in the
province over its own interest ? That
would never do ! " It would do per-
fectly well ; because, according to the
theory which is presented by my learned
friends, and upon which I am just now
arguing the case, it is impossible for the
lord paramount of the soil to interfere
with the land, unless and until there has
been an extiuguisliment of tlie Indian
title ; and therefore the legislative right
of tlie province would remain, so to
speak, ill abeyance so far as meddling
witli the lands is concerned, until the
accomplishment of that preliminary,
which, according to this theory, is essen-
tial, of the extinguishment of the Indian
title. In the meantime the Dominion
would legislate for the Indian interest.
So nothing towards settlement, nothing
towards occupation, notliing towards
development, nothing towards interfer-
ence could be attempted by the province
until, first of all, tiiere had been an ex-
tiuguisliment of the Indian interest. At
that moment, for the first time the pro-
vincial legislative power, existing, but
not capable nieantiine of being usefully
and practically exercised, would come
into full force and effect ; and also the
Dominion power of dealing effectually
with the special Indian reserves which
would be created on the extinguishment.
Then tiiese things being done, over the
Inilian reserve the Dominion would have
ample legislative power, the Indians full
enjoyment ; and over the surrendered
lands Ontario would have full legislative
power, and full enjoyment too ; and here
is a simple and satisfactory adjustment
of this whole apparently complicated
case.

But, my Lords, I submit that the diffi-
culties in the way of implying or finding
a grant of a proprietary interest in the
Dominion in these lands are not by any
means as yet exhausted. It is clear that
" lands reserved for the Indians "' in-
clude, if they are not actually satisfied
by the lands of the Indians themselves —

the reserves as we call them, the special
reserves. The words certainly inelutle
these. As to these a certain legislative
power is clearly given. l>nt if it be held
that the words embrace an Indian interest
in this tract of whatever natnre, and also
the whole estate in the tract, as my learn-
ed friends suggest, then how greatly is the
ditticulty of implying a proprietary in-
terest enlianced I Because in what
character does Canada on this hypothesis
become a transferee ? Somehow or
other, somewhere or other, there is found
sometliing or other wiiich vests in Can-
ada the proprietary interest in the lands
absolutely. Now in wiiat cliaracter ? Is
it Ijeneticially as to tiie whole? Is it in
trust fur the Indians as to their interest,
and beneficially for Canada subject to
their interest ?

Lord Watso.v — They put it in this
way : they do not read it as giving the
Indians a reserved right, but it is read
by .Mr. McCarthy as lands reserved by
the Crown for the use of the Indians.

CorxsKL — Quite so ; lands reserved
for the use of the Indians.

LoKii Watsox -Even in that view it
is a mere right to legislate.

CoUN'SKL — It is a mere right to legis-
late. I am endeavoring to point out the
difficulties that follow from anything
more, because, as I was saying, in what
character does Canada become the trans-
feree of a proprietary interest ? Is it bene-
ficially as to the wliole ? Is it in trust
for the Indians as to their interest, and
beneficially for Canachi subject to tlieir
interest ? Is it in trust for the Indians
as to the whole ? Or is it in trust for the
Indians as to tlieir part, and for the
province as to its part? It cannot be
beneficially as to tlie whole. It must be
in trust for the Indians in the special
reserves at any rate. Yet there is no
safeguarding of their interest. You do
not find tliat added which is added in
the otiier case where lands are trans-
ferred, " subject to existing trusts or
interests." You must then imply a trust
as well as imply a grant, unless tlie
Indians are to be robbed by the British
North America Act. However, I sup-
pose it will be admitted that it is not
beneficially as to the whole ; that as to
the Indian interest, at any rate, it is in
effect in trust for tlie Indians. Bnt liow
then as to the remainder ? The appel-
lants claim a beneficial transfer of the
remainder : but why in the world, if the
Indian interest be transferred only in

trust for tlie Indian, should the interest
of the province be transferred bene-
ficially to the Dominion ? why in the
world should a different character be
given to the transfer in one case from
that which is given in the other ?

LoKij Watsox — These headings, if I
recollect right, are incorporated into the
statute.

Counsel — Y"es.

LoKU Watsox — I mean the headings
such as " Kxecutive power"' and "Legis-
lative power" and "Distribution of
Legislative power," and there is another
which deals with " Revenues, debts,
assets, and taxation."

CouxsEL — I am not familiar with
the ([uestion how far these are treated
as parts of the Act. This is, of course,
an Imperial Act, my Lord. But I know
that they are not marginal notes.

Lord Watsox — No, they are part of
the statute.

Sir Riohaku Couch— That has been
considered in some cases in England.
Marriaije v. The Eaxttni Coinitits Kail-
way was one case.

Sir Barnks Pkacock — In the printed
copy which I have, in the Act, and I have
no doubt it is copied from the Imperial
Act.

CotJXSEL — Yes, they are in the body
of the Act. Here is the official copy,
and your Lordships will find that the
only difference is that they are in italics.

Sir Richard Couch — There is no
doubt they are printed in the Act.

Sir Barnes Peacock — There is noth-
ing in the Act to show that they are not
part of it.

Counsel — No.

Lord Watsox — It has been held that
these are parts of the statute. They are
not marginal notes. They are the sub-
ject matter of legislation.

Counsel— Then, as I was observing,
if in order to accomplish justice to the
Indians you are to iMiply that the trans-
fer of their interest is in trust for them,
it seems impossible to contend success-
fully that a transfer of the remaining
interest should be implied to be in
another character, beneficially for the
transferee ; because all is contained or
implied in one set of words, framed to
accomplish one endeavour of the legis-
lator — that of a grant of legislative
power. The legislative power is single ;
and if a proprietary grant is to be im-
plied, it must be single too ; it can-
not be a double grant — a grant in

part, on trust, &o as to preserve the
rights of the Indians, and in part
beneticial, so as to destroy the rights
of tlie province. Xow all tliis maze and
trouble into which a departure from the
true path plunges us, seems to ha escaped
by a return to that path. It was not
intended to transfer to Canada eitlier the
Indian interest or the interest of tlie
province. Each still belongs, so to speak,
to its owner. Canada has ample powers
to protect and deal with the Indian
interest. That is all that was necessary.
It is all that was proper. It is all that
was intended. Else we should have
found words of grant, and words of lim-
itation as well. Then as to the argument
of eipuility also applicable in this aspect,
and very notably witii regard to Uritish
Columbia, J do no more than simply
advert to it, because it seems to mc that
my learned friend stateil it fully, with
this single observation that as to
British Columbia, which does possess
territory which I think I shall be
able to show, was clearly within the
proclamation of 1763, it is perfectly
plain that the local government had and
exercised the discretion and power to
deal with the Indians as if the proclama-
tion was of none effect ; and that when
the Imperial government, in settling the
terms of union, coming to deal with this
important question as affecting that large
body of Indians, made a stipulation
in their interest, that stipulation was
not an affirmance of their right under
the proclamation to an extinguishment,
and to a bargain, and to a treaty ; but a
stipulation that as liberal grants as, of
its own policy, free will and discretion
the British CoUnnbia Government had
been in the habit of making to such of
these Indians as it dealt with, should be
continued. >So we find it treated as a
question of policy ; we find an altogether
diverse policy pursued ; we nnd recogni-
tion of the pursuance of that policy ; and
we find the limited safe-guarding of the
Indians' interests which was thought
adequate by the Imperial authorities and
by Canada, namely, to secure that that
policy, or a policy as liberal, should be
continued. Thus, if there had been no
such stipulation, there would have been
no obligation at all ; and the province
of British Columbia might have left the
Indians without any reserves. Thus
again the reserves were to go in that
case to the Dominion by a grant from
the province ; and the lands otherwise

were to remain with the province — ex-
actly the contention that we make as to
Ontario. That is what was recogniv;ed
as the condition of things with refer-
ence to these 300,000 square miles and
25,000 Indians in British Columbia -all
policy ; and the policy maintained, Once
again in the negotiations between the
Hudson's Bay Company and the Imperial
and C'anadian Governments, negotiations
completed, not mere diplonuitic discus-
sions, but actually consumnuited agree-
ments, you find that the most maiked
distinction is made between the ordinary
rights of white subjects to lands and
the Indian title so-called. Canada
offers courts and machinery for ad-
nnnisteiing justice with refeience to
the i-ights ol the white suljjects; Can-
ada otters the customary, libeial and
humane policv with reference to the In-
dians ; and upon that opening sugges-
tion, marking the distinction between
rigiit and policy, the negotiations are
concluded ; and the last letter of the
Secretary of State for the colonies, in
announcing their conclusion, is an appeal
to Canada to carry out a liberal policy
towards the Indians. The same line of
argument has been advanced by my
learned frier 1 as to the conventional line
between Ontario and Canada ; on which
his point, as I understood it, was simply
this : that there was the agreement and
concession of both parties to that con-
tract that the question of the title to
this very land depended upon the single
question within whose bounds it fell.
At that time (not as when the case came
before your Lordships, l)ecause in the
meantime Manitoba had been introduced
into the dispute), but at that time this
disputed territory, if it was not Ontario,
was Donunion territory ; and the Do-
nunion Government and the Ontario
Government both agreed by solemn acts,
upon which titles passed — not merely
negotiations but acts upon which titles
passed — to the pi-oposition that the set-
tlement of the boundary would settle the
f>wnership of the soil. Wherever that
line lay, within that line it was Ontario
property ; outside that line it was Do-
minion property. Then again tliis very
treaty is framed, hardly as a bargain
about rights, but rather as an act of
bounty and good will ; and it does give
a definition of reserves as there uniler-
stood : and so far is it from the sugges-
tion that the Indians had, so to speak,
a paramount title, and that the reserves

were retained by them as of their original
title, that your Lordships will rind that in
this treaty, as in some other treaties,
the reserves were not made at the
time at all ; that everything passed, and
that there is simply a stipulation that
there should be carved at a subsequent
time out of tlie whole property what are
called reserves, after a consultation with
tlie Indians. So that they were not in
fact reserved. The phrase, indeed, is
used, but it is not applicable. The whole
passed ; anil afterwards they were to be
appropriated out of tliat whole.

TiiK E.VKL OK Sklkorne — Was that
evfr done ?

Cot'N.SEL — Yes, my Lord ; that has all
been done.

The Earl of Selburne— So that there
have !>eeii reserves in the narrower sense
of the word createvl out of these lands.

Counsel — Yes, my lord. The public
documents sliew tl»at beyond dispute.
In fact it was done <juite shortly after
the treaty. Tlien everytlnng in the
ti'eaty itself, in the negotiation at any
rate, is based upon such a construction
of the words Indian reserves, and on
such an assertion of tiie power of the
legislature to moulil even the reserve
title, as is vvholly inconsistent with the
present extreme contention of my f rieiuls,
and, as I conceive, inconsistent even with
their secondary contention ; l)ut certainly
destructive "f the priiruiry contention —
that tiiere was sc::"e paramount or supe-
rior right of the Indians practically ex-
hausting tlie whole ; on the cDntrary, the
whole of the lands are treated as if the
Clown had them. I submit, on the whole,
that tliis general set of the current, this
unvaried series of executive legislative
and political acts, is of very great conse-
([Ueuce, am) should turn the scale if tlie
scule be at all doubtful.

Now I desire to make a few oliserva-
tioiis to your Lordships witli reference
to the (juestion of th<> executive authority
of the i)ominion. As I have already in-
timated, my contention is that the Do-
minion has not of itself the right to
make the treaty. It has not. as I con-
ceive, the power on its own account, and
for itself and by itself, to treat with tiie
Indians for the surrender to itself of
Ontario lands.

The Karl of SELBtmsE— In connec-
tion with that subject yon will not foiget
to take notice of the Act of I8H8. wliich
was a legislative Act, and under which I
suppose the treHty whs made.

CouN.SEL — The Act of the Dominion ?

Sir Barnes Peacock — Yes.

The Earl of Selborne — On the sup-
position that the Dominion had a right
to legislate for " Indian and iands re-
served for Indians " and that these were
such lands, then we have in the next
year actual legislation concerning Indians
and their lands, which legislation, 1
assume, would apply to these lands.

Counsel — Yes ; it may be so.

The Earl of Selborne — It was under
that legislation, as I understand, that
this treaty was made.

Coi'NsEL^I understand that has been
suggested.

The Earl of Selbo.ine — I call your
attention to it because if. seems "o me it
may be of some importance that we
should thoroughly understand the bear-
ing on the case of that Act and also of
tlie treaty.

Counsel— Yes, my Lord, I will state
brietly the position that I will elaborate
later. I think it may be found that that
Act was an attempt to bring togetlier
the powers that the old provinces for-
merly had, and that the Dominion was
thereafter to exercise with reference to
the Indians all over tiie Dominion.

The Earl of Selborne — Very likely.

Counsel — I think it may be fniuul
that in the intention of parliament the
language would be applicable, and appli-
cable only, to the (juestifm of obtaining
surrenders of reserves in the sense in
which we liave been using that term —
specific reserves.

The Earl of .^^elborne — Do you
mean in the narrower sense?

Counsel — Yes.

The Earl of Selborne — You will
liave to make that out. That is not the
present impression of their Lordships,
but you may satisfy them that it is so.

Sir Harnes I'eacock Do you mean
reserves which are created by express
treaty ?

Counsel — Yes, which had been cre-
ateil. Then with your Lordships" per-
mission, not having tiiat statute before
me at the moment, I would defer that
part.

Sir Richarl. Comi— It is page 105
of these statutes.

Lord Watsov — I should have thought
that it was under the powers granted to
the Secretary of State for Canada by this
Act that the license came to be issued.

Counsel -I'liat may be so. I was
rather referring to the treaty power.

Lord Watson — But it was under the
powers given by this Act that the sanc-
tion was given.

CoussKL — It is perliaps fitting that,
before discussing wliat tlie effect of this
Act may be, and whether it wouhl apply
to these lands if the Dominion had tlie
power to deal wit!i them, I should do
do what I was about to do, namely, dis-
cuss the (juestion whether it has any
such power, whether it has any such
right. My suggestion is not at all limited
to the proposition that the executive has
not the power without some legislation,
but my proposition is

TnK Karl of Selbokse — That they
are iiiei)iu[)etent to legislate.

CoussKL — Yes ; that not the executive
and tlie legislative pciwers together can
make the Dominion competent by itself
to arrange this treaty for tiie benefit of
tl'.e Doiainion itself.

Thk Kakl ok Ski.bohnk — I (juite
follow that : Init tlie first (piestiun is to
see under wiuit autliority the treaty was
made, and then when we have seen that
to see wliether it is validly made, and
then after that comes the important
(juestion you have stated as to what is
its e fleet.

Coi'NSKL — Yes. I was endeavouring
to ascertain whether it could be validly
made.

Thk Earl of Selbornk — There is no
magic in tlie word '" treaty " of course.

CoirNSKL — Xo ; it is simply a liargain.
We say indeed that tlie language wliich
my learned friend has pointed out is
ratlier tlie language of bmnity and good
will : but putting it in the other ligiit,
it is a liargain for the surrender, or,
rather, as my learned friends on the
otiier side put it, for the transfer of the
Indian interest. It is nothing more than
a bargain ; although it is called a treaty.
Now my proposition is, tiiat tiie I)omiii-
ion executive has not the power, mu' could
the D.iininion Parliament confer on that
executive the power, to treat with the
Indiana for the surremler or transfer to
the Dominion of lands m liith are (Jntario
lands. Hut if your Lordships should
hold that tlio executive has tiie power,
or that the power can be conferred upon
it to treat, then that such power is to
be exercised for the benefit of tlie
province, and does not include any right
in the Dominion to accjuire tn itself
Ontario lands which aro subject to
this claim ; that no such right as that
exiotB ; and, if it does not exist, of

course the Dominion legislation, being
beyond the competence of the Dominion,
can make no difference. The supposed
power, if it exists, is to be used as 1 sub-
mit for the benefit of whom it may con-
cern. Canada has the power to legislate
for the Jitdians ; but that does not mean
that it has the right to deal with them
as it now alleges that it has dealt with
them. It does not imply a right to
acquire their property. Still less tloes it
imply a right to appropriate the property
of Ontario. Now in order to decide this
point we must ascertain what the prin-
ciple was with reference to the suriendei .
or extinguishment of the Indian interest :
in whom the right to deal existed, upon
whom it devolved. Conformably to
precedent and to authority, invariably
so far as I can make out, this Indian
title or interest, which is in its various
forms an arbitrary creation, subject to
diverse limitations and stipulations of
the governing and creating power, this
Indian interest was invariably subject to
this limitation, namely, that it was not
transferable by the Indians, that it was
not alienable by the Indians, that it was
surrenderable or extingiiishable only in
favor of the allodial owner, whether the
Crown, or a lord proprietor, or a chart-
ered colony, or in favor of the individual
owner of the fee, who became such in
some early instances liy the grant or
license of the crown or its grantees with-
out any prior extinguishment of the
Indian title.

L"Hi> Watson — I should like to hear
your arguments on both these points.
*rhe first (|uestioii I wish you to answer
is: Can tlu- Dominion executive take a
surrender fr<')m the Indians, the latter
stipulating that the lands which they
have surrendered should be settled for
and the price given by the settlers paid
to them, or retained for tluir benefit.
That is not the case which is said to have
occurred ?

ClM'NSEL — No.

Lord Watmos — That is one kind of
case. That is one view of it. Then there
is anotln-r ; whether they could by any
possibility arrange with the Indians to
take a cession, the Indians not receiving
the full benefit of the prices derived from
the ceded land ?

(^ifTNSKL To take a cession of a por-
tion of the lainl.

LoKD Watson -Could they so deal
with the Indians as to take an advantafie
to themselves, assuming that the prop-

erty would pass ? That is not precisely
the same (jiiestion.

Coi'NSEL — No. One question is,
whether they could so arrange as to
utilise tlie whole beneticial interest in
the property for the henetit of the In-
dians ; the other (jiiestion is whether
they could divide the spoils.

•Sir Hahnes Pkacock — Then there is
another (juestion as to the effect of tliis
treaty, which you will come to. The
treaty hahtmlnm is, " To hold it to Her
Majesty the Queen, and her successors
for ever."' Not to hold it to the Do-
minion.

Cor.NSEL — Quite so. I am al)out to
argue that these words produce the etiect
of a surrender to Ontario, notwithstand-
ing all the difficulties raised on the other
side.

Sir Bvunes Pe.U'Oik— And there is
the question, wlien it is ceded to the
Queen, to whose benefit did it enure,
whether to the Queen as represented by
tlie Uominion.

Coi'NSEL — Quite so. I luq)e to reach
that point in a little wlule. Now, witli
reference to Lord \Vatsou"s (juestions,
of course my argument is entirely in
negation of tlie rigiit of tlu; l)oiijiuiun to
do either of those two tldngs, because
the right of the Dominion to do tlie hrst
of those two things, wiiich is to so
arrange with the Indians as tliat they
sliall enjoy the wliole beneficial interest
in the propertj', is eiiuivaleiit to saying
tliat, while tlie province has, according
to my argument, a substantial lieiieficial
interest in tlie property, it is in the power
of the Dominion autiiorities at their will
to anniliilate lliat interest. I do not see
liow these two positions are reconcileable
with the sound line of argument which,
with a retiiiement of »ul)tiety I liave
not been al)le to reach, lias lu'cn applied
in the court below, on thcasHiimed incon-
sistency of legislative powers existing as
to the land in botl> legislatures in a cer-
tain sense.

Sir IIarnks Pkacock— It is not quite
so, l)ecause it may be that the Dominion
niiglit -I do not mean to say that it
ooiiltl take what was tlie iutei'est of the
Indians for their own bemtit, leaving in
the province what was in the Crown.

Coi'NSEi. - Ii<n'd Watson's first ques-
tion was whether the Dominion could
make sueh an arranurment with the In-
dians as would inviilvt" the realization of
the property for the exclusive benefit of
the ludiaus, su that every shilling that

was derived out of the property, whether
by way cf licenses to cut timber, or by
way ot sale or other use of the property,
would go to tlie Indians. I say, of
course, if they can do that, it simply
means that the right wiiich the province
has it holds by the will ()f the Dominion.
It has not gt)t any absolute liglit. Wliat
another can legally take from iiie at his
pleasure is ratlier Jiis th.m mine.

The Eaki. ok Selhorne — I am not
sure whetlier that is so clear. .Mippos-
ing that tlie province lias a rigiit, subject
to the Indian I'iglit. and tliat aceoicling
to usage under the previous statutes witli
the consent of the Crown, the Indians
had been able to alienate the land, either
to the Crown or any licensee of tlie
Crown, they would «jt course in that case
lia\e put the iiioney into their own
pockets, or it would be expended in some
way for their benefit. If so, would not
that be witliin the power to legislate
given by section •J-1 :;

Coinsee — We must never forget the
distinction which subsists, even iqion
the largest and most liberal view whii.'h
can be fairly taken, between this particu-
lar interest and the interest w hiili the
Indian had in a special reserve which
became his upon a cession. In that
special reserve, wliiidi became his iqxui
a cession, he was supposed to have an
absolute e(|uitable property, if i may
say so. liis right might be imiulded
according to the views of his lord j>aia-
inount, the legislature, in acconlance
with what might be thought ti> be his
real interest and advantage from time
to time. From time to time the tribal
right might be more or less infringed
ujion in order tf) give an individual Indian
a portion of the tiibiil interivst, ami from
time to time portions of even that reserve
might be surrendered : but invariably
such portions were surrend;'red on the
view that it was a mere michinery for
enabling the Indian to get in money the
whole benefit of that wiiich was regarded,
as his absolute property. That was the
state of things ; and of course justly
ouviht to be the state of things with
reference to special reserves. It would
be entirely unju»<t that anything else
should be done as to them.

The Kaki, ok Ski.uornk- I suppose
that as to the special leserves the Crown
would have tJie same ultimate right. In
east's of escheat they wmihl go to the
Cr(»wn, ami if by any mean.s tiie Indian
interest were entirely got rid of, they

would go to the Crown ; and I suppose
you would say that the province would
take them ?

CouN.sKL — Yes, my lord.
Thk Eakl of Selbokne — I do not see
the distinction as to the special reserves.
Counsel — Wlien you come to the
other class of reserves, accoidingto the
theory on wliich 1 have been putting the
case as to the Indian interest, it is
equally clear tliat it would be contrary
to justice and reiison to say that tlie In-
tlian interest of occupancy, his triltal
interest of occupancy as a hunter and a
fisher, was ecjuivalent to the whole bene-
ficial interest, as I can show from a very
important American authority. Chief
Justice Marshall sliows the state to liave
the residuary interest ;and tluit interest of
the state is sliown to have furnislied the
fund out of wliich large expendituie was
incurred, and by which large works were
performed by the United States in the
early days, and by the states for whose
benefit some of these surrenders were
made ; and it would be wrong, as I sub-
mit, to hold it competent to the Domin-
ion to extinguish or annihilate that
beneficial interest of the province by
saying to the Indian

LoKi) Watson — There was a judgment
cited to us — I do not recollect whether
it was by Chief Justice Marshall or not
— to the effect that a direct purciiase
from the Indians by people with the con-
sent of the Crown was sust.iinable in the
United States.

Coi'NSEi. — Yes, my L(ird.

Sih IJaknes I'ea<-()ck — That was witii
the consent of tiie Crown given by tiie
province who held the rights tif the
Crown.

CoiTNSKL — Unciuestionably.

Sir Hxknes I'eaoock — Not by tlie
[Nonunion.

CoiNsEL — It was held rightly or
wiongly as I understand in that case,
tliat there was a power in the governor,
with reference to this peculiar title,
which is unknown to our law and which
has its own arbitrary linutntions, to
create a fee simple by the combination
of the treaty or bariiain with the Indians
ami the license <>f the Crriwn. .My
learned friend argued on that "Oh the
fee simple must be included." Hut in
truth it wai but a nictiiod uf convey-
ancing.

SiK MoNTAurit Smith— It might bo a
very illunory bargain if the iKiminion
were to take this enormous territory and

sell it and apply all the money for the
benefit of the few Indians remaining.

Sir Barnes Peacock — Tiie piovince
Jiad the interest of the Crown. Treating
the interest of the Crown as separate,
and assuming the Crown had a separate
interest from the native and that that
was vested in the province, the province
migiit probably have arranged with the
Indians to get their interest. Therefore
w hen they made an agreement with tlieni
that the money wliich should arise from
the sale of tlie lands which were after-
wards settled should be appropriated to
the Indians, that was merely the prov-
ince giving up to the Indians that inter-
est which they held from the Crown,

CoiNSEL — Yes, my Lord.

Sir 1>*rnes Peacock— It is not the
Dominion.

Coi'NsEL — I may be better able to
illustrate my position l>y pursuing the
thread of the argument which I intended
to advance, which was rather to indicate
to your Lortlships where I thouglit the
power rested on precedent and author-
ity ; because, if I find the power some-
where else, it is not with the Dominion ;
and my argument is that according to
the invariable limitation, one thing
certain, if there be anything certain in
reference to the Indian title, is that the
power of obtaining the surrender was
limited to the state or corporation, prov-
ince, government or individual having
the allodial title or the fee as the case might
be. I contend that this view is recog-
nized throughout from the earliest times ;
that it is recognised in this very proclam-
ation where that class of question is
being dealt with : and this being so, if
we find that the province is the owner of
the allodial title subject to this l)urden,
we find that the province is the projier
party to make tiie Imrgain with the
Indians I contend that tiiis is the true
result ; and I point out that in the later
]X!riods of the colonial governments of
Kngland, n<it very long befoie the revo-
lution, having regard to this rule,
Knglimd eHtat)Iisheil general superin-
tendents of Indian alluirs, wlio were
entrusted with j^owers analogotis to those
with which, as I suggest to your Lordships,
the Dominion is entrusted, namely, to
guaid the interests of the Indians in
making the liargains f<u' tlie extinguicii-
ment of the Indian title with or on lielialf
of the provinces, just as. after the levolu-
tinn, under the constitution of the United
States and the ordinances on thisauhjeet,

the United States undertook tlie task of
making or supervising like bargains ; but
so that tlie bargain had to be made with
the consent and acquiescence and for the
benefit of the states or individuals in
those cases in which states or individ-
uals, and not the United States, were the
owners of the land. That is the proposi-
tion which I advance. In tlie old
colonial times then, my Lords, take the
different classes of governments. Take the
case of the chartered govern nents

LoKi) HoBHorsK — In %viiatway would
the Dominion interfere ? You ai"e argu-
ing that the Dominion niiglii interfere.

Cor.NxKr. — Yes, my lord.

Lord Hobholsk — Tliat the province
miglit and ought ti) have made this bar-
gain with tlie Indians ?

CorxsKL— Yes.

LoRDHoBiiiirsE — At what point would
the Dominion interfere ?

Counsel— I will show your Lonlsiiip
by showing how it has in fact been man-
aged. My view is that its power of legis-
lation and its correlative executive
power might be fairly argued to give to
tlie Dominion — and I think it is reason-
able that it should give to the Dominion
— a right to intervene as protector of the
Indians, and, if you can assume that it
would act improperly, which we do not as-
sume, a I'iglit, perhaps, to block a treaty
— a right at any rate to intervene and say,
"Now we will make this treaty, or we
will assist in making this treaty, we will
assist in the negotiation of the bargain,
we arc here to see fair play" — just as the
United States sent its commissioner, and
just as Indian superintendents in the old
colonial times came forward to see fair
play, liut the simple proposition, remov-
ing "the mystery and the magic" of the
Indian title is this : I find A witli an
easenu'ut of occufaney ; I riml \i the
owner of the land subject to that ease-
ment of occupancy ; I rind A, the occu-
pant, according to the nature o' Ids
tenure entitled only to surrender nis In-
terest to the owner, not entitled to trans-
fer it to a stranger. Who then are to
bargain as to the terms'? The two par-
ties in interest, the occupant and the
owner. Hut the occupant is recognized
to be of an inferior race, and in an infe-
rior state of civilization, to be under sub-
jection and liable to imposition ; there-
'^ fore he is to have a guardian or a pro-
* tector in the makinii of that bargain.
Hut the bargain is still made between A
and B, the two parties in interest ; A,

the occupant, having the protection of
his guardian in the making of the treaty.

The Earl of Sklbokne — This really
is not a case of that sort of bargain at
all. An exclusive legislative power con-
cerning lands reserved for the Indians is
give.] to the Dominion. An act is passed
regulating the manner in which aliena-
tions of Indian lands may take place,
and ex hypothaxi this treaty was made in
a manner consistent with that Act, and
authorized by it. All that was done by
the Dominion. How is it ultra vires
if they have the exclusive legislative
power. The effect of it is another thing.
That lies behind.

Coc.N'sEL— Hut if it be the case that in
point of law the province is the owner of
the soil — the owner of this land ?

The Earl of Selborne — Is there not
a little fallacy in that ? You make the
same observation that one of your oppon-
ents made while addressing us. You
speak of the province or of the Dominion
as owner. The Crown has tlie title to
the land, but it has appropriated it for
the service or the use of the province or
the Dominion, as the case may be.

Coi'NsEL — I (jiiite .agree with your
Lordsiiip that it is the Crown in t itlier
case — and we speak of the Dominion or
the province, meaning the Crown in the
interest or right of the Dominion or the
Crown in the interest or right of the
province as the case may be. If the
Crown — whose movements are advised
as we know, uiidei constitutional govern-
ments, by the responsible executive — if
the Crown's movements and powi-rs are
exercised through the provincial author-
ity, and if the province, that is the Crown
in the right of the province, is the owner
of the land, it seems inconsistent and
absolutely incompatible with the relation
between the province and the occupant
that somebody else should have the
power to make the bargain on behalf (»f
the province without the assent of the
province

The Earl of Selborne— If it is made
on behalf of the proviuce it may be that
the province takes the benefit of it except
so far as the Indiiins do. That may be
so, but if it is not made on behalf of the
province, then it is made in exercise of
the legislative power as to Imlians and
lands reserveil for the Indians, and they
are so reserveil.

CorvsEi. — Well, my submission to
your Lordship is that that legislative
power is in truth a legislative power

over the Indian interest or use in the
lands : that it is not a legislative power
wiiieh entitles the Dominion to alienate
for example, the whole of the land.
There are two subjects. It is the
Indians, and the Indian's lands, that the
Dominion is concerned in.

LoKij Watson — That would have been
very shortly raised if instead of tlie
treaty with the Indians there had been a
provision to say that B or C had no right
wliatever in the land.

The Eakl of Selborxe — They could
not have done that, I should think, if
you are right in saying that section 109
gives you tliese lands.

CouNSKL — No, my Lord.

The Earl of Selborne — But that is
a very different thing, it seems to me at
present, from what they actually did.

Lord Watson — They seem to have
done that which in the ordinary course
of administration it migiit be very proper
and expedient that they siiould do, and
if done in tlie ordinary way by a simple
cession to the Crowr :t could not disturb
the interest of the province.

('oUNSEL — Of course your Lordships
will understand that assuming tlie con-
clusion which his Lordship Sir Riciuird
Couch suggested a little wliile ago, and
8ir Barnes Peacock too, I tliink, naniely,
that the (?rown to wliom tliis hahi'ndinn
applies is tlie Crown as representing or
in riglit of the province, and that the
cession is for whom it of right ought to
be. then rdilil (juivslin. I so contend.

LoRK HoiuiorsE — The Crown is in on
both sides in this document.

The Earl of Selhorne — I do not
know whether it is material, but in con-
stituting the parliament of the Dominion
the Crown is a member as in tins
country, but is not in the provincial
legislature.

C«KNSEL — That is quite true.

The Earl of Selrorne — It seems to
me to show that the Ijhieen is connecteil
with the province througli the Domiidon.

CoHNSEL — Yes.

LoRi> Watson — All tlie governors of
the provinces derive their appointments
from the federal government.

Coi'NSEL— That is (juitc so. and yet
your Lordships will find that when the
legislative power is to be exercised the
Lieutenant-Ciovenior is authorised to
summon the legislature in the Queen's
name.

LoKi> HniiH(H?sE — I doubt very much
whether it really ntTucts the subject in

question here, only you must not use
language which seems to imply that
there is anything special in the relation
of the Crown to the province.

Counsel — Oh no, my Lord, I quite
observe that ; and I have never been
able to reconcile to myself the manner in
which the local legislatures are formed —
consisting, as they do, of the Lieutenant-
Governor and the House or Houses — with
the fact that the Lieutenant (jovernor is
expressly ordered to call together the
legislature of which he is one part, in tiie
Queen's name. The Act says so.

Lord HoiiHorsE— That is an executive
act — calling the parliament togetlier.

CoLNSfcL— Yes. lint if alltiie executive
acts were to be in the Queen's name, why
was tliis particular act specially provided
to be done in the Queen's name ?

LoRi> HoHHorsE — All prosecutions
have to be in the Queen's name.

t'ot'NsEL — Of course. That is one of
the proofs — in spite of the peculiar nature
of tlie link to which his Lordship Lord
Selbornc has referred between the
Crown and the province — that is one of
the grounds why we contend that by
reason of universal piactice and of neces-
sity the provinces are entitled to use the
name of the Crown in all acts in which
according to usual British principles and
practice the Crown's name is used.

Sir Barnes Peacock — All the grants
to settlers are in the Crown's name.

CoT'NsEL — Yes, and informations are
in the Crown's name, and they are the
Queens courts, and the Queen's judges,
and so forth. So that, notwitl^standing
the complication an(' puzzlement, unless
everything that has been done for
twenty-one years is to be upset, it is
certain as to these things wliich were
done before, and which, i)eing done be-
fore, were cf)ntinued to be done by the
provinces after confederation, that, as they
were done before, bo they have been d<me
since, and wid be done in the future, in
the (Queen's name.

Lord HoitHorsE — You are suing in
the (Queen's name.

CoiNSEL — Yes, and .Mr. Justice
(J Wynne considers that that is a most
extiaordinaiy thing.

Lord Hobhoi'se— And the Queen has
justified.

CouN.sEL — Yes, the Queen is on Iwjth
sides.

The Earl of Selborne— It is not a
(piestion of property in the Dominion or
property in the province as if it were a

corporation, but it is a question of appro-
priation by this particular Act of Parlia-
ment of the benefits of certain property
to the one or to the other.

Counsel — Yes, my Lord, that is the
real (juestion for argument.

Thk Eakl (tF Selbi>kxe — It is per-
fectly consistent with tliat, that for the
sul)jects included tlie Dominion may
have a very large and complete legisla-
tive power ; even althougii as t<> some of
those subjects the province is empowered
to legislate.

Counsel — Unquestionably. All that
I am careful to do is to prevent the
Dominion from havinsjr an anniliilatinK
powei'.

The Earl of Seliiorne — You use
that word very boldly and very itigeni-
ously, l)ut I am not sure that it is in the
nature of that.

Counsel — Well, it seems to me to
ratlier tend to annihilate the substantial
intei'est of Ontario.

The Eakl ok Selhdkne— In one .sense
every sale admits the previous state of
the title.

Counsel — I was using tlie word with
reference to one of Lord Watson's ([ues-
tions put to me, namely, wliethei it was
competent to tlie Dominion (Jovernnient
to arrange with the Indians that they
would take these 5.), 000 scjuare miles,
and that it should i)e all ceded on the
terms that the whole should be sold and
realized for the i)en!iHt of the Indians.
If tiiat be competent to tlie Dominion
(iovernment I tliink that it annihilates
the benelicial interest of tlie province.

The Earl or Selborne — Tlie jnovince
would maintain against the purchaser, I
suppose, thu j 111 mjfili that it h.td before,
that is to say, it would iiave tlie riglit of
escheat and wiiatever royal rights there
woulil be in mines and royalties and so
on.

Counsel — It may be so ; but to retain
the casual rights to which your Lor<lship
refers would he something very ilitFerent
from the allodial title l)urdened witii
H limiti'ii right of occupancy.

The Eakl ok .SELr.oKNE—Tiiat is not
(|nit<' HO clear to me. As long as the In-
dian right exists the rigiits of the prov-
ince seem to lie hardly benelicial. What
its nature is has been very ably argued,
and wc have to consider it, Init there
can be no <loubt at all that as lung a^tiie
Indian title subsists it i.s an impediment
of the exercise beneticially of any other
right over the same laud.

Lord Wat.son — It is beneficial — it is
not an entirely barren right.

C'oux.SEL— No, it is not ; but practic-
ally, from the very important and cogent
circumstances to which I have adverted,
the Indian beneficial right is enormously
diminished here. The Indians could in
practice make very little n.se of it.

Lord Watson — Supposing the Indian
said I will not take anything less than
the price the land was sold to the settler
for. Would he not be justified ?

Counsel — I do not know whether he
would be justified ; but I suppose he
might have the power to say so, because
it assumes a free bargain. It is true a
gentle pressure has been always put upon
the Indian.

Sir RichardCouch — A pressure would
be put ':

Counsel — Certainly. A gentle pres-
sure has always been put upon the In-
dian, to wliicli pressure he has always
yielded. It has never happened that the
Indian, although " tall talking" iias been
inilulgeil in, has not yielded.

LoKi> \Vatson — If that is so, it does
not show that the Dominion (Government
ought to sijueeze the occupants.

Counsel— Xo ; I say tliat the Indian
occupies a better position now.

LoKi> Wats(jn — Hut really that is not
the (jiiestion.

Sir Barne.s Peacock — It must be
liorne in mind tiiat in the Dominion Par-
liament the provinces are respectively
represented by their members in the
House of Commons, and also to a certain
extent by the (p;alification of the sena-
tors. A certain portion of the senators
must reside in the province as part of
their (lualification, ami hold property in
the province. Tiierefore the Dominion
Parliament cannot do anything without
its being done witli the consent of the
representatives in the House of Com-
mons and also of the Senate.

CoiTN.sEL — Quite so: but then, of
coiir.se, if you take a small province like
Prince Edward Islaml, which has six
meml)ers and two senators, they may all
vote one way, but their votes do not
count greatly.

LoRH Watson — The province has a
right of the same kind in the smaller
reservations which the Indians accepted
upon surrender, and apparently it is
recognized by statute that they may
stipulate for certain things, and there-
fore it wouM .seem that they have a right
to stipulate for the land.

Counsel — But the right is very much
smaller.

Lord Watson — It seems to be equit-
able.

Counsel — I think your Lordship will
find that it is distitictly laid down tiiat
where reserves have been made upon
cessions, the land is not held as niy
friend, Mr. McCarthy, contended, solely
as of the original title of the Indians ;
but tlie Indian holds the reserves, con-
firmed and strengthened by the cunipact
expressed or implied in the treaty, wliich
is that instead of his having the limited
occupancy of the whole, he has practic-
ally the entire equitable title in the part
reserved.

Lord Watson — If so, that simply
destroys the provincial interest in that
part.

CoUNSKL — It leaves even then a cer-
tain provincial interest, as for instance the
interest ot escheat. Xow, after the ap-
pointnient of the general Indian super-
intendents in the old colonial times,
there were several treaties made, and
amongst others treaties with the South-
ern Indians in I'.lJiJ, tiie very year of the
proclamation, and in ITO."*. They are to
be found in tue appendix, page 8.3. Your
Lot (Iships will find there the principle of
action which I venture to suggest ought
to and does apply in this case, and which
provides the best way of working out this
complicated nuitter. " Present — James
Wrigiit. Esq., (Governor of (ieorgin ;
Arthur Dobbs, Es(|., (Governor of North
Carolina; Thomas Boone, Esq., (iover-
nor of South Carolina ; Frans Fauquier,
Es(|., Lieut. -(iovernor of Virginia ; John
Stuart, Esq., Superintendent of Iiulian
Affairs for the Soutliern District in
North America, Headmen of tlie Cluck-
asows. Upper and Lower Creeks, Chac-
taws, Cherokees, Catawbas." These are
the persons wiio were present at the
treaty. Your Lordship sees it affected all
these colonies and it affected these tribe.s
of Indians. It was a treaty for a boun-
dary upon wiiicli I shall have to trouble
your Lordsliips witli some observations
later. "The Creeks grant that the
V)oundary between the English settle-
ments and our lands and hunting grounds
shall be known by a line extending," and
so forth. " The Catawbas confirm a foi'-
mer agreement and declare they will
remain satisfied with the tract of lanil
fifteen miles scjuare, a survey of wliich
was Iwgun," and the governors and super-
intendents promised that the survey

should be finished, and that the Cataw-
bas should not be molested within those
lines. Thus your LorUship sees the
method in wliich, after the appointment
by the Imperial (Jovernment of a super-
intending authority, who had, as your
Lordships will see from his instructions,
great executive and administrative con-
trol, the interests of the Indians and of
the provinces were adjusted. The prov-
inces were there by their representatives ;
the Indians were there by their head-
men ; and the Imperial power was there
by tlie superintendent overseeing the bar-
gain.

The Earl of Selborne— Is that a
precedent for the nuide in which it was
done under the British North America
Act.

Counsel — It seems to me to be prac-
tically a precisely analogous case. I say
that the superintending power of the
Dominion is very analogous to the super-
inteiKliug power whicii tlie chief suner-
intendent had in respect of the India 's.

There is a similar cession of land oi
the Cherokees to South ('aru!iiia, it
is dated October lOtli, 17<i-"), and is
approved by ^Villianl Bull, Es(j., (iover-
nor of South Carolina, and approval also
by John Stuart, Esq. Supei'intendent ;
so that you find the (Governor of
South Carolina a party to the arrange-
ment.

So again in the great treaty of Foit
Stanwick, determining the lioundary
line between the English Atlantic prov-
inces and the Indians, made in 1768,
which is to be found in the appellants'
supplement, and is useful to them for
some purposes. This document is in the
form of a deed deteiniining the boun-
dary line lietween the whites and the
Indians, although it is called the Treaty
of Fort Stanwick ; and it is agreed toby
the chiefs and by Sir William Johnson,
the chief superintendent — the famous Sir
William Johnson — "the whole being
fully explained tf) us in a large assembly
of our people before Sir U'illiani Joiin-
sou, and in the presence of His Excel-
lency the (iovernor of New Jersey, the
commissioners from the provinces of Vir-
ginia and Pennsylvania, and sundry
other gentlemen, by whicli line so agreed
upon a considerable tract of country
along several provinces is by us ceded
to His said Majesty," and so on. Now,
how was that ilone ? .Just as here ; a
sum was paid i'10,000 odd — by Sir
William Jolinson, tlie sole agent and

superintendent of Indian affairs for the
Northern Department, and the Indians
" j;rant, sell, release and confirm to our
Sovereign Lord King George the Third,"
all that tract.

Thk Earl of Sklhorne — The only
difference being that tliere was no Brit-
ish Nortii America Act.

Counsel — No; there was no British
North America Act.

The Earl of Selborse — That is the
only thing we have to do with.

Counsel — I hope I shall be able to
satisfy your Lordsliip that there is no
reason why the British North America
Act should not receive an interpretation
whicli would make to a treaty, properly
made, the province a party, the Indians a
party, and the Dominion itself also a
party.

Lord Watson — It proceeds on the
express assumption that the IniUans
have absolute rights over the land in
question.

Counsel — Yes, my Lord, there are a
great many expressions of that kind to
be found scattered about in such docu-
ments. In fact, it was not thought wrong
to please the Indians, whenever they could
be so gratified, by swelling words, always
provided that the English got from tlicm
just wliat they wanted. Then there is
to be found in the Joint Appendix, at
page 47, under the date of 1768, the
representation of tlie Lords of Trade to
the King on the state of Indian affairs,
whicli contains also a statement of a plan
for the management of Indian affairs,
and points out the position wliich the
superintendents are to occupy, and the
powers they should liave. It refers to a
plan for the management of Indian
affairs, prepared by the Board in 1704,
in which the fixing of a boundary
l)etween the settlements of the subjects
antl the Indian country was proposed to
be established by a compact with the
Indians ; tlie plan was conimunicateil to
tiie superintendents ; anil then it speaks
r>f those treaties to which I liave just
referred as applicable to tlie provinces of
North and South Carolina, and to the
Northern District as well, under Sir
William Johnson. Then it says, "We
submit that their other branches of duty
and service which require the inter-
vention of officers acting under your
Majesty's immediate authority, and
which as they have reference to the
general interests of the Indian, independ-
ent of their connection witli any partic-

ular colony, cannot be provided for by
the provincial laws. Such are the re-
newal (.'f ancient compacts or covenant
chains made between the Crown and
the principal tribes of savages in that
country, the reconciling differences and
dispi :es between one body of Indians
and c .lother ; the agreeing with tlieni for
the sale or surrender of lands for public
purposes not lying within the limits of
any particular colony." So that there,
where there were no colonial interests,
they were to agree absolutely ; while in
the other cases, as I have pointed out,
they were present as supervisors who
were assisting, and acting in a superin-
tending position when the colonies were
interested in tlie making of the treaties,
whicli accordingly were to be made be-
tween tlie colony and the Indian.

LoRO Watson — No doubt, but at that
time the most urgent duty of the man-
ager was to negotiate concerning the
boundary line.

[AiljoiiriK'd.]
[HcinimeAl TucMlny 24'h July.]

Mr. BlaivE — My Lortls, when your Lord-
ships adjourned I had concluded, with a
single exception, the earlier references I
intended to make illustrative of tlie
practical operation of the working which
1 suggested of the IJritish Nortli America
Act. My remaining reference prior to
the Revolution is to the Imperial plan
of 1704 for tlie management of Indian
agencies, the 11th paragraph of whicli is
in these words : " That the said agents
or superintendents do in all affairs of
political consideration respecting peace
or war with the Indians, purchase of
lands and other matters in which it may
be necessary to hold any general meet-
ings with the Indians, advise and act in
concert with the governor or governors
and councils, as the occasion may arise,
of the several colonies within their re-
spective districts," and in this wise, as I
have already pointed out, things were
actually done.

Then, my Lords, to carry on that line
of reference to the making of the
treaties in Upper Canada in the old
times, my learned friend, Mr. McCarthy,
produced a book which contains these
treaties ; but that book is not complete,
in this sense, that it gives only the sub-
stance of the treaties without giving the
names of the signatories : and I have to
call your Lordships attention to the fact
that a full copy of those treaties would

disclose the application of the same prin-
ciple. In the early days, while the prov-
ince was not yet enjoying responsilile
government, before the cession of the
territorial revenues of the Crown, while
everything was largely, and Indian
affairs were very specially retained under
the supervision of the Imperial authori-
ties ; yet, even then, commissioners on
behalf of the province intervened in the
making of the Indian treaties in those
territoiies in Upper Canada in which the
Indian title had not been extinguished.
For example : there was a treaty of tlie
21st August, 1797, in winch Robert Mil-
lar and Lieo. Chisholm signed as comnus-
sioners on behalf of Upper Canada. On
5th August, 1816, F. \V. Allan and Alex-
ander Wood signed as such commission-
ers. On ;Wth June, 1798, David Cowan
an<l Robert Pollard signed as such com-
nassioners ; and so on. I need not trouble
your Lordslups with a long list. Enough
has been said to state the principle and
establish the proposition that, even in
that condition of the province anil of the
Indian title, and with reference to terri-
tories emV)raced in the proclamation,
there was full recognition of the provin-
cial interest in the making of the treaties
for lands which were not special reserves,
but which may be called unceded lands
within the proclaimed linuts ; and tins
on the ground that it was cjuite under-
stood tliat, although the territorial
revenues were retained in the Imperial
control, they were retained for tlie pur-
poses of the colony, to meet the expenses
of the civil list and tlie adnniustration
of justice, and that the management of
the lan<ls surrendered and the real bene-
ficial interest in them belonge<l to the
province, which, therefore, ought to
have a voice in the making of the treaty
and in the establishment of the terms
upon which the title should be extin-
guished.

So, my Lords, again, in the case of the
United States immediatelj' after the
Revolution, arrangements were nuide
under wliicli, as I previously intimated,
the central authority acted. A very
large proportion of the territories of the
United States at tlie time of the revolu-
tion consisted of the western extensions,
so to speak, of the Eastern and seaboard
states. Their areas were inordinately
large and cumbrous for single states.
That fact was recognised. It was recog-
nised that as settlement advanced and

population increased, they .should prop-
erly be carved into several independent
states, and therefore new limits were by
their own consent assigned to these orig-
inal provinces — large limits, it is true,
but still limits greatly contracted com-
pared to their former bounds ; and they
freely and voluntarily ceded the western
parts of their country, beyond those
limits, to the United States as a common
property for the purposes of the whole
Union, and with the intent that they
should be erected from time vo time,
first into districts, and afterwirds as
events ripened, intestates. So that the
United States had a double intfvist. It
had the interest, in respect of these
western lands, that of them it was the
lord paramount ; it had also an interest
in respect to the general peace, order and
good government of the country, to take
care that the Imlians were properly
treated, even within the state limits :
therefore authority was reserved to the
central power to make or to supervise
the execution of ,h11 treaties with the
Indians, even in respect of lands which
were the property of proprietary govern-
ments or state governments, or indi-
viduals. So section 4 of the Ac^ of Con-
gress in 1790 reads thus: "And be it
enacted and declared, that no sale of
lands made by any Indians, or any
nation or tribe of Indians within tlie
United States, shall be valid to any per-
son or persons, or to any state, whether
having the right of pre-emption to such
lands or not, unless the same shall be
made and duly executed at some public
treaty held under the authority of tlie
United States." In furtherance of that
view, Mithout troubling your Lordships
witli a single (juotatioii, I may ask your
Lordships to refer to pages 102 to 125 as
evidences of numerous actual transac-
tions in which treaties for lands to which
certain individuals had ac(juired tiie
right, or which were the lands of a state,
were made under the supervision of the
Laiited States, but with the presence
and participation in every case of the
representatives of the owners of the soil,
whether those owners were individuals
or whether they were states.

Thk EarlokSemiornk — Will you say'
how you apply that ?

CouNSKL — My Lord, I am attempting
to state a principle and course of action,
the adoption of which, it seems to me,
will give a reasonable interpretation,

satisfying all the exigencies of the case,
to the clause of the British North
America Act.

Lord Watsox — Are we to assume that
the course of action is necessarily the
same iu one case as the other ?

Cot'N.sEL — Nay, my Lord, not neces-
sarily the same ; but not unreasonably
may we argue thi: "■■ tlie same principle,
which hail been proved to be erticacious,
and wliich, as I shall contend in a mo-
ment, is the most efficacious and most
fair principle in the interest of the Ira-
dians and of all parties, wliich had re-
ceived the sanction of the Britisli author-
ities l>efore and after tlie Revolution,
and also of the United States, is the
principle whicli, if tiie clause of the Act
is susceptible of its application, your
Loi'dsliips should be disposed to apply.

LoKU Watson — Do you suggest it is
necessary to go into such speculation as
tills iu order to determine what was the
course of dealing with the Indians by the
British authorities.

CorxsKL — Not in order to determine
what was the actual course ; but to give
an interpretation to the clause of the
British North America Act which gives
a certain legislative authority to the
Dominion in respect of lands reserved
for the Indians.

Thk Earl of Selborne — I have a
ditiiculty in following that. It would
seem to show that the province and not
the Dominion ought to have had accord-
ing to tliat argument the special poM-ers
over Indians and the Indian lands which
were given to the Dominion.

CoiNSEL — Hardly, my Lord ; I hope
to be able to remove that impression by
this suggestion, that on the hypothesis
on which I have been arguing the case,
namely, that the Indians have a right of
the character which I have endeavoured
to describe, there can be no claim that
the province has the power to con-
trol the exercise of tlie Indian right at
all. The Indians on that hypothesis are
entitled to a limited occupation and
enjoyment of their hands according to
the immemorial custom, unless ami until
they shall freely extinguish or surrender
that right. The province has no power
to coerce an extinguishment, to compel
an extinguishment, to dictate the terms
of an extinguishment. But inasmuch as
the extinguishment or surrender, by the
invariable rule and by the vevy nature of
the operation, is to be in favor of the
owners of the soil burdened with the

easement, the province is to be a party
to the transaction ; but, further, in the
interest of the Indian, care is to be taken
by the intervention of the Dominion that
the Indian is not overborne or oppressed
or tricked.

SiK M. E. .Smith — Where would that
argument lead, because the treaty would
be of no avail without the consent of the
province ?

Cou NSEL — Yes.

Sir M. E. Smith — Then the rights
ai"e not extinguished ?

Cor.vsEL — No.

Sir M. E. Smith — Then it lands you
where you were before.

Counsel — Yes ; that is one view; sub-
ject to the submission that Ontario has
always been and now is willing to
validate this treaty ; but on the abstract
point of law I was proceeding to point
out that \'ery view.

Sir M. E. Smith — The extinguish-
ment depends on the treaty.

Counsel — Yes ; but the right of
Ontario to prevent the wasting of her
timber does not at all depend, as we con-
tend, on the treaty. It does not at all
depend on the extinguishment. We
contend that Ontario has a right to pre-
vent the spoliation of the timber whether
the title is or is not extinguished.

Lord Watson — Apparently the case
in the United States was that these
cessions by the Indians were niaile by
them to the people of the state.

Counsel — Sometimes to the United
States for the state or the individual
owner, and sometimes to the state or
owner direct There are'variations. Some-
times the treaty appears to be made by
the United States commissioners, the
other parties being present, and some-
times it is made by the parties them-
selves, the United States being present ;
but in all, the general principle is
observed. In the early Upper Canada
times, while the colony remained as yet
without responsible government and
these Indian affiiirs were managed at the
will of England and by English officers,
the province was yet a party to the
treaties ; and it is not to be forgotten in
this connection that the proclamation of
1763 itself, upon which so much in this
case depends, recognizes expressly the
right and the exclusive right of a pro-
prietary government to make a treaty in
cases in which there was a proprietary
government. Your Lordships will recol-
lect that the clause of the proclamation

which deals with treaties in che parts of
the ohi colonies antl governments which
were open to settlement, provides that
no treaty shall be made except at a
public meeting and so forth, that it shall
be made by the Crown anil in favor of
the Crown in the case of the royal gov-
ernments, and by the proprietary and in
favor of the proprietary in the case of
the proprietary governments.

The whole system then, as I maintain,
was one of recognition of the right of the
owners to make or participate in tlie
bargain, coupled with protective pro-
visions in later days in the interest of
the Indians.

Now, my Lords, I submit that the
executive authority of the province,
which of course can if necessary be re-
inforced by its legislative authority, is
ample for the performance of the func-
tions which I am suggesting may prop-
erly be ascribed to the province ; and
without troubling your Lordships with
a repetition of the argument 1 would
take leave to refer to the judgment of
Mr. Justice Burton, on pages 46 and 47
of the llecord, as elucidating that view.
I submit that the division of executive
authority has, as I think is agreed on
the other side, reference to the functions
of government ; and that all the execu-
tive authority which is needed by the
provinces to discharge their functions,
remains to them. The province, as has
been said, grants Crown lands in the
Crown's name, and the province can
surely deal with claimants to or owners
of interests in Crown lands. If the
claimant or the owner of the interest
were Smith or Jones, no question coulil
at all arise ; and I cannot perceive tiiat
it makes any difference tliat his name is
Yellowquill or Strike him-in-the-Back
or any other of the euphonious names
used by these Indians. The only differ-
ence in truth is this, that the interests of
yellowquill and Strike-him-in-the-Back,
are specially protected under tiie law,
since their rights and interests are not
absolutely in their own hands and at
their own free disposal. They are in the
hands of the Dominion executive and
legislature, who are to act for and to
control tliem, and whose authorities are
to be parties to the treaty. Tliis, my
Lords, is the construction which is most
for the interest of the Indians. Tlie
reason of the change of policy whicli I
have already stated, and which was
continuous,' was this, that it was found

that where the state or the individual
held a double position, being on the one
hand the owner of the soil subject to the
Indian easement, and being on the other
hand clothed with that great authority
and influence which the government of
the country or the lordship of tlie soil
conferred, the temptation was too great
to make a liard bargain \\ ith the Indians ;
and it was in order to protect tlie Indians
by the interposition of a power at once
disinterested and exalted that this prin-
ciple of action was introduced. Apply
that reasoning to the present case, and
it gives, according to my reading of tlie
Act, the same lesults. But if it is not
applied, if it is held that the Dominion
has the power to make a treaty of wliich
it shall enjoy the benefit, a bargain
whicli is to be a bargain for its own
advantage, in which it is considering, or
attempting to consider, the interest of
the Indians by one mental operation,
while it is advancing its own interest by
another, of course under such circum-
stances all protection is removed.

Lord Watson — Tiiat is one reason for
holding tliat the powers of the Dominion
may not extend to making any transac-
tion for tlieir own benefit.

Corx.sEL — I said tiie other day cadit
qnestio, if your Lordships come, as I
hope you will, to that conclusion.

Loud \V.\tson — All that they did
under this treaty was to make a cession
to the Crown.

CoTNSEL — I am just about to reach
that point. All that I am desirous to do
is to maintain, by one mode or the other,
the proposition that the sauie party shall
not have power to make the treaty
which is to gain the benefit under the
treaty.

Lord '.Vatson — The reasoning of Mr.
Justice Burton really, on page 46 of the
record, resolves itself into an additional
argument in favor of a limited reading of
the word " reserved " in sub-sec. 24.

Counsel — In part it does.

Lord Watson — He reads it as an ar-
gument in favor of restricting the power
of the Dominion to these Indian reserves.

The Earl of Selrorne — He goes a .
very great length, indeed.

Counsel — Yes, I (piite agree tliat he
does go a very great length, further,
perhaps, than any of the other Judges ;
but the line of reasoning he pursues ap-
peared to me to exemplify my argument.

Lord Watson— His argument seems
to be ab inconvenient i, nothing more.

CorNSEL — Then, coining to that ques-
tion to which your Lordship lias just
alludeil, I submit tiiat it wouhl be
contrary to reason and to tlie recognized
canons of construction, to give sucli an
interpietation to tlie grant of legislative
power as would be destructive of the
otiier parts of the Act. The power in
tiuth is given — and J do not think
sufficient attention was paid in the
appellants' argument (with due respect
I say it), to this view — the power
is given in truth, as the other powers
are given by the 91st section, sub-
ject to the controlling clause that it
is a power to legislate for the peace,
order and good government of Canada,
of the whole Dominion. It is legislative
power of that description that is con-
ferred ; and, as has been held in one
important case and repeated and approv-
ed of by your Lordships, a fair reading
must be given, and such an interpreta-
tion assigned to that grant as is recon-
cileable with tlie continued existence of
the other rights and interests given by
the Act. If tnen, as I have contended,
Ontario retains the interest of old Canada
in these lands, it is not reconcileable
with the existence of such an interest in
Ontario that the Dominion should have
power to take them away and appro-
priate them to herself ; and all I contend
for, and all I desire to contend for is
such a limitation of the powers of
legislation as shall prevent them from
covering the proposition that Canada
can legislate into herself, or by executive
action appropriate to herself Ontario's
interest in the land.

Lord Watson— The argument on that
point of Mr. McCarthy, as I understood,
was mainly this, not wholly, that under
the general scheme of the Act property
was intended to follow or accompanj' the
right of administration and legislative
jurisdiction that where you find both the
administration and power of legislation
the right of property must also follow.

CocN'SEL — Yes, that seemed to be the
argument, and >ipon that I have ad-
dressed your Lordships ; I am not able
to add anything upon that.

SiK M. E. Smith — You showed that
where property was intended to pass in
certain instances there were specific
enactments giving the property.

The Earl of Selbornc: — We shall not
forget that argument.

CoiTNSEL^I have no intention in the
slightest degree of reiterating anything

I have said on that head if I can possibly
avoid it. I diil not discuss fully, but I just
fore-shadowed the particular line 1 am
now about to ask permission to lay be-
fore you ; and what I say is that if a
trust or a limitation can be implied which
would safeguard those rights of Ontario,
of course the question of the form of the
treaty ami whether Ontario should be a
party to the treaty becomes for this
purpose less material. In fact one
reason, though not every reason, for
Ontario's being a party to the treaty
would cease if the Dominion really
occupied an indilFerent position as be-
tween the Indians and the province.
The trouble arises the instant it is con-
tended, as my learned friends contend,
that the Dominion does not occupy an
indifferent position towards the Indians,
because it is to gain whatever the
Indians lose ; that it does not occupy an
indifferent position towards Ontario, be-
cause it may, by its treaty with the
Indians, act(uire Ontario's lands. I
dispute altogether the general contention
of my learned friend, Mr. McCarthy, as
to the effect with regard to property of
the grant of legislative power. I think
that contention was entirely extreme,
and was quite unsustainable. Take for
example the illustrations he gave, the
cases of public buildings or farms which
the Dominion may acquire. I may point
out that the acquisition of the agricul-
tural lands to which my learned friend
alluded was under an exercise of powers
specially granted, because the subject of
agricultuie is one of the few subjects on
which there is a concurrent legislative
power in the Dominion and the pro-
vinces; and those farms were acquired
in the interests of the development of
agriculture. But I say that, with refer-
ence to those properties which the
I^ominion has in the exercise of its
legislative power accjuired, that power
does not extend to enable it to alter for
example the tenure or the mode of
conveyance. It cannot devise a new
tenure for its properties. The tenure
which is devised by the oi'dinary law of
the province for all properties must be
the tenure of its properties. 80 also the
form by which they shall be granted or
aliened remains to be settled by the
province. So again even with reference to
general police or fire or sanitary regu-
lations, which may be essential to the
safety and comfort of all the neighboring
occupants of a city, I maintain that the

general power of legislation of the
JJoininioii would not extend to enaVde it
to exempt anything it might buy from
such regulations.

Sir M. E. Smith — I suppose if section
109 gives these lands to the province,
the JJoniinion legislation could not take
it away. It would be altering tlie
Imperial Act.

Cor.N'SKL — That is my argument. We
must tind a construction which shall
reconcile the legislative powers of the
Dominion, given in one section, with the
proprietary riglits, aye, and also with
the legislative powers of the province,
given in another. That, of course, is the
recognized canon of construction. As to
this extreme view of the legislative
power, I would refer to one express
limitation which shews the character of
this so-called exclusive power. I mean
section 125 where it is pro\ided that no
lands or property belonging to Canada
or any province shall be liable to taxa-
tion. This was doubtless to ensure that
tlie powers of taxation which were gi\'en
in that division of the Act, generally to
the province by direct taxation, and tc
the Dominion by direct and indirect
methods, should not be used destruc-
tively to the interests of the provinces
by the Dominion, or to the interests of
tlie Dominion l)y the pi-ovinces. Nor is
there any foundation I submit for the
view of my learned friend, Mr. McCarthy
that tile Dominion may buy property in
its uncontrolled discretion. It can only
buy property under its express powers,
or undei- its incidental powers in order to
the fulfilment of its proper functions.
Whatever its functions are, if the ac-
(juisition of a property be an incident of
their proper fultilinent, it may be able to
act^uire that property ; but there is no
unlimited power to actjuire for other
purposes. I think the whole argument was
reduced to an absurdity by the suggestion
wliich was made. Could tlie Dominion
buy up the soil of the island of Prince
Edward, wliicli is not a very large place,
and, by buying it up, get an absolute
exclusive legislative jurisdiction over the
whole lands of Prince Edward Island,
and take away from tiie province in
effect its jurisdiction over property in
the province?

LoKP Watson — It does not seem to
me to have much bearing on the real
question at issue. It is (piite obvious
the Dominion could lay no claim to land
of that description under section 10!).

CouN.SEL — Certainly not. The pro-
vince could not lay claim to those lands.
I was only endeavouring to answer my
learned friend's argument. I would not
myself have introduced the question.

L(iKi) W.vTsoN' — I did not see the
bearing of the argument on the real
(question.

CorxsEL — Then the lands which are
lawfully bought, and may be subject to
the legislative control of the Dominion,
which, as I have shown, is not unlimited,
are subject to that legislative control in
all things which concern the peace, order
and good government of Canada, and
perhaps in all things which are essential
to the preservation of tlie Dominion in-
terests. They 'nay have such powers of
legislation over those lands as are essen-
tial, in order that they, may effectively
deal with their own property and carry
out the objects of their purchase, lint
that is the furthest limit. Now, from
that construction it would follow, I sub-
mit, that no treaty that could be made
by the Dominion Government, and no
power that it has or can acquire to itself
by the action of Parliament, could de-
feat the claims of Ontario, those claims
being liased upon the proposition that
Ontario is owner, subject to the Indian
interest, and that the Indian interest is
not transferalle. but only extinguish-
able. I5ut I submit the case is made
easier and clearer, and in fact so ea.sy
and clear as to be beyond dispute and
discussion, by that fact to which allusion
was made by his Lordship Sir Barnes
Peacock, earlier in the argument, and to
which Lord Watson referred a moment
ago, that this is a Crown interest and
estate. It is the Crown that holds all
Ontario ungranted lands. Tlie hahcn-
(him in this treaty is to the Crown. Thus
the court is perfectly free to decide, the
hahemhun being to the Crown, in what
interest, ii: what right, the name of the
Crovvnis used. In what interest or right
can it be used ? It would surely be a
violent construction to liold that a ces-
sion which in its very title and terms is
a surrender, and thus has regard to the
fact that it is being made to the owner
of the main interest, of the proprietary
interest, of the lordsiiip, a cession which
is in terms to the Crown, whicliCrf)wn was
such owner in the interest or right of
Ontario, has the effect of extinguishing
the title of Ontario, and of converting both
the Indian title, and the entire title which
was tlieretf)fore held in the name of the

Crown for Ontario, into an estate lield
by the Crown for the Dominion I That
is an effect and operation which would
be most violent and unjust. 1 can sliow
that it was impossible that the transac-
tion could have taken any other form
than this of a surrender to the Crown.
But if we are to conceive an attempt to
put it in some other form, to clothe tlie
Dominiou with power, for example, to
take the title to a trustee for itself, I
submit that would be void. I am not
driven to that. It is not necessary to
discuss it ; because we have here a case
in which the interest of the lord of the
Boil was recognized. The soil was in the
Crown. It was, according to my argu-
ment, in the Crown in right of Ontario.
Then the cession and surrender to tlie
Crown was surely to the Crown in that
same right, namely, in right of Ontario I
Thus tlie treaty enures expressly to the
beuerit of Ontario ; the case being very
much easier than those in which ce.ssions,
though made to the United States of
America, have yet been held to enure to
the benefit of the state ur individual
really entitled.

Now as to the burdens which the
treaty involves, it is to l)e observed that
it has never been desired to disturb tlie
treaty at all. in view of the etfect of such
action oil the ignorant Indians, who do
not know anything of these legal ami
conslitutional subtleties of ours — <)ft«o
Crowns at Westminster or in Canada,
any more than at Brentford ; that it has
never been desired to repiuliate tlie i>iir-
dens which are involved

Thk Kaki. ok .Ski.ikikne— We must
not fall back upon the willingni'^s of the
province t» undertake the hiiKiens. It
the incidence of the burdens under the
treaty is material to the <|uestii>n you
mufit deal with it as it Htandx.

CtMNSKL— I (juite admit that. I do
not dispute that the mere vuluiitury
cuncession of the province can nut add to
or alter its legal rights.

Thk Kakl ok Sklimiknk I nee n<fth-
ing ill the treaty aa it at>tiidi« to throw
any |M>eiili»r biirilen u|miii the Crowu.

OmsmkL -Not ilirectly.

Thk K*hi, f>¥ Sklkokne — Neither
directly nor by iniplicMtioit on tiie ■iip-
positiiin tliat tiMt evasion oiierat*-* tor
the timeht of the pro* m- .

C'><irMitftLr — K*t, I <i*MUot liud any wouIh

Thk K*i»l ur .Kklhohkih-Oii thratip-
puaitiwii lUmt it upmr*tm» umtamitrtif mad

by law for the benefit of the province,
you must take that into account in look-
ing at all tiiat is said about burdens.
There is not a single word which by
Dominion legislation purports to say
that this shall operate conditionally upon
the province assuming its burdens. On
the other hand, as far as the Dominion
is concerned, tliere is positive stipulation
by the legislative power.

Coi NSEL — I do not know, I am sure,
whether your Lordships will hold that it
does not atl'ect the case

Thk Eaklof Sklbornk — I did not say
it did not affect the case.

CoLNSEL — I was intending to say that
I do not know whether your Lordships
will hold that it affects the case, but it
is tiie obvious fact that at the time this
treaty was made the boundaries of the
teiritory were in dispute. It was in
dispute between the Dominion and
Ontario as to within whose limits that
land was. At that time the Dominion
government was making the treaty upon
the theory, that it would be Ontario
property it witiiin the limits of Ontario,
and L>ominioii property if within the
limits <jf the l>omiiiion.

Thk P^\rl ok Sklbornk — I do not
follow you when you say Dominion pro-
perty within the limits of the Dominion.

Col'NSKL— The province of .Manitoba,
as originally constituted and as it stood
for many years alter this treaty was
made, extended only to a point west of
the Lake of the Woods. The title to
the intervening part from the then
eastern limit of Manitoba to Ontario was
disputed between the Dominion and
Ontario. .Manitoba hud no claim to it
whatever.

Thk Kari. ok Sklhoknk -Then there
was Dominion teiritoiy which was in no
province.

CoiN^Ki. .Surely, my Lonl, and there
is still. The very province of Manitoba
itself was Doiiiinion teiritoiy. It was
enibraced in the cexsion by the Im|>»*>'ia|
^ Government of the Hudson's Hay and the
North- Went Territories. There i» nonie-
thiiii: like two inilliona of iM|iiare miles,
I lielieve, altogether embraced in that
eewiionwliieh iM-eaine Ihiminioii U-rritory.
Out of ihfit they c«rve<l Manitoba : tuit
tlii-re was left a latge atrip iH-th < ii
Mtiiitolhi and Oiitirio. aa to all of which
in form. an<l aa to the fcn-ater pmrt of
whiiii in fact anil mi auiwtanrc. tiiere
«■« m ^qMrt* brtwt^n ttie provincr and

of Ontario covered it or no. The land
which is tlie subject of this treaty is in
great part within that portion which was
ultimately decided by your Lordships to
be in Ontario. Anotlier large i)art was
decided by your Lordships to be within
the limits of the Dominion ; but at the
time at which the treaty was made there
was no question of Manitoba's rights at
all.

8[R M. E. Smith — How came Mani-
toba to claim it ?

Cot'NsEL — Years afterwards the
Dominion extended by Act of Parliii-
ment the eastern boundaries of Manitoba
to the western limit of Ontario.

Sir M. E. Smith — Tlien it became
necessary to ascertain. Tlie simple (ques-
tion was as to the boundary of Ontario
because the Act of I'arliament brougiit
Manitoba down to it w^herever it was.

CouNSKL — Yes. So that at tlie time
at which this treaty was made the
Dominion was acting witli reference to a
property as to wliicii it was doubtful and
disputeil whether it was its own property
or Ontario's property ; and acting with
reference to that property upon tiie
theory, as shown by tlie papers, that the
4{uestion of tlie title to the soil depended
upon the limitary line.

Thk Eakl ok Sklbornk. — It struck
nie that at the beginning of the Act of
Parliament it is saiil that the provinces
of ('anada, Nova Scotia and New Mruns-
wick sliall form one Dominion under tlie
name of ('anada, and again that Canada
8hall be divided into four provinces
named Ontario, (Quebec, Xova Scotia
and New Brunswick. What parts of the
Act contemplate some other territory
not incbided in any of tlie provinces
which shall constitute ('an:ida.

("(H'VSKI. —There is the preamble and
a 8ub8e(|ueiit section.

Thk Eakl ok Sklbohnk -The clauses
I have read, in the rir»t aspect at all
events, cont<'niplate certain cxiHting
provinces wliiili are to ije united into
Cana<la.

('orvHrL —Certainly.

Thk Eakl ok Ski,B4»knk -Which are
the claua«s of the Act whicli kIiow that
there wm m ternUiry outaide thow-! prov-
iaoe« h^-loni^in^ to the l)<Hiiinion

KiK Kkimko Col i'h The 1 4({th sec-
tion I think the (Miwer Ut aaimit
llup«rt's l..aiid and the Nurtit W«»t«ra
Territory. All the North Wi^t«*rn Ter-
ritory VM I Xu M i ai tfa at tliat tine.

The Earl of Selborne— That is to
admit those colonies into the union.

CoiNSEL — There are addresses to
admit Rupert's Land and the North-
Western Territory or either of then; into
the union.

Lord Watson — That does not show
either of those provinces was in the
Dominion of Canada.

The Earl of Selborxe — What was
it that introduced the new state of
tilings'? I dare say you are (juite right,
but we wish to he (juite rigiit ourselves.

LoRii \Vats()v — It seems to have been
the Act of the Dominion itself. In
dividing the upper provinces they seem
to have made » delimitation of Manitoba.

CorN.sEL — Rupert's Land and the
North-West Territory forme<l an enorm-
ous tract — comprising, I think, two
millions of s(juare miles, the nortliern
part of the continent —in which no pro-
vincial or colonial governments had })een
formed.

The Earl of SELitoiiNE — Is Rupert's
Lan<l mentioned ?

CoiNSEL — Yes, in the latter part of
that 14(ith section.

The Eakl of vSelbornk — You are
(piite right. Then that authorized them
to admit the colonies or provinces men-
tioned and also Rupert's Laml and the
Noith West Territory into the union.

CoiNSEL— Yes. Then Rujiert's Land
and the North -West Territories were
simple territories without any settled
form of government :it all : and precisely
the same general process was adopteil in
those cases as was adopted with refer-
ence to the western lands of the United
States. To the central authorities wa«
handed over the jurisdictiim and the soil
of those ti-rritorieH by the lni{)erial
authority upon their own adtlress and
request, with the intent and design as
shown by the pa|ters, that they wouhl
proeeecl to settle and to colonise an<l to
lorm tiieni into provinces at their will.

Ihk Eakl ok .selimiknk N«)w we
uiiderst^ind it. I'nder that jMiwer sub-
WHjiieiit to the Act. Rupert'* l^ii I aud
the North W enter n Territory were, u|><in
the aiidreiHi of the I'arliaiiicnt of Catiaila,
Mimitt^d into the uiiii*n u[toti terms
which did not at the time make them
pioviiice*.

Corxiri C«'rt*inly : but which left
tw the |»fMW«i«»ti. »9 tt wa* nitpprtMHi (the
question was doubtful i. the power of
tnnuag tiMwi iMtw fiwrimomt. Tk»

Dominion exeroiseil in part that power,
and a oontirniatory Imperial Act was
obtained to make it <(uite sure that the
provincial rights of Manitoba should rest
upon tlie same secure foundation as did
the rights of the other provinces ; be-
cause it was argued tluit what the
Dominion Parliament had done by itself
it could by itself unilo, and therefore the
province iniglit occupy a subor<linate and
insecure position. Having decided to
exercise its power, the Dominion did so
by carving a small province out of the
large territory ; and this small province
was surrounded, except to the south-
wa?'d, by Dominion territories : but the
extent of the Donnnion territories to tlie
eastward depended on the extent to
which Ontario went to the westward.
That (juestion remained in dispute. It
was while that (juestion rcTiiained in
dispute, and while this territory was
subject to that dispute that this treaty
was made. It was matle, as it were, for
the benefit of wiiom it might concerii,
because it is quite clear from these papers
that at that time it was the opinion of
the executive and legislative authorities
on all sides tliat the title to the soil
would go with the political jurisdiction.
So it happened that the treaty was nuide,
and tile surrendei' was made to the
('rown. It was ultimately deci<led by
your Lordibhips in eH'ect that the Crown,
in 8<) far as we are now disputing about
it. meant the Crown in the interest of
Ontario. W hetiier the conseiiuenoe of
that is to make the treaty enuie to tht;
benefit of Ontario is what we are now
discussin/. 1 do not know whether your
LordHhip pro|>o»es to entertain the argu-
ment of n>y learned friend tiiat great
expense has Iwen gone to by the
Dominion. It seemed to nie extremely
remote.

TiiK Kaim. OF SK.l.KniiNK — That cannot
l)e nniterial. Thi- i|ueHtion of principle
of courHe deserves eonsiderution.

Cui'NSKi.— I woulil '>nly nay it »'eeniod
to me extremely remote. I would rather
wanh our ilirty linen at home. I do not
want to enter into, nor haxe \»e the
matt'iiaU here for ilim-iiiuiing the rcnnnn
•I that failure of MdniiniMtratjon if < "n
4iiriwit4-d witii the Muuceiwnf the provim lul
•i1niiiii»trNtioii of Crown I^imU. Kut
this oiiwrvation I niav make, th.it there
i* no doubt M halfStt lliMt the extftt'iice
of tHp (]is|mtf . ntt my \enmri\ tfi' ti'i ^^r.
Mt'f »itby «»id. did affei t iii< i- .•".i,,,iii.-
I of •<indiii>t. lis... ti . -• Ua<U is •

manner by winch profit might have been
realised had the administration been
judicious. .So that I maintain, if the issue
is to be tendered as a material issue in
this case, that what has been done

Thk Eakl of SELWtKNE — Vou are
quite right in thinking we cannot pos-
sibly go into that (juestion.

C'orNSKL — Xo, my Lord. Then I
woidd observe that the argument of my
learned friend, drawn ah iiicoiirminiti I
suppose, as to the very great expense to
the i)ominiou of looking after the
Indians is entirely overbalanced by the
consideration of the very uiucii greater
expense involved in the government and
adndnistration, the settlement and
development of the piopeity in which
the title is extinguished. When you
consider that in a new country into
which settlers go, having to make for
themselves homes, the government in the
initial omdition has to provide roads
and bridges and scIkjoIs. and the adndn-
istration of justice, and in vai'ious ways
to develop the country, that occurs
which I stated to your Lordships in the
opening, tliat the country, instead of
being a source of r.'-oJit, is at first a
lurce of great eN pense.

i^iKi" W ATsii.N — In the treaty tlie
Crown accepts certain obligations to the
Indians, and it is the prouiise of the
Crown duly to fulfil these obligations as
they arise, that forms the consideration
for a ce.ssion of teirit()ry by the Indians.

( orNSKl, — Ves, tliat is true.

LoKii \Va'i>o\ That seems to me the
inherent right of the Crown. Ihese ob-
ligations are the conditions iipcin which
the Crown claims a ceM«ion.

Thk Kaui. ok Ski.mok.sk — As to some
of those you tohl us, I think, before, and
it did not Ncem to be dir^putcd that the
whole tiling had been <lone.

CorNsKl. - It is not dibpntecL

Thk Kvui, nr Ski.iioknk l»ut with re
){ard to tlie money payments, of course
tiiey continue.

CoivsKi, ^'es, they niu»t eontinnr.

Loni' \V AT^ov — Are there any otipnla-
tioiiM tor th • Crown tlmt it has « right to
take re«erv» » ?

Col >^Ki, -VeK; your I^tirdnhip (-ailed
my attention to the Act of IMM, and
ask*N) ni«! to 8t«t« whether I contended
that it did not anthorixr the makint; of
thlM IffMty. I have Bin<f r« •■XMiiiiiied
thnt \it i tiii.i it« l«nL"'iiL'« w tf h M-f»r-

< IK . t.. tll< ' ll.tliK t< I >-i til< i 'll'U u l<t< h

Bi«y Im- dealt witli by ti-> • v<' utivt- sab-

stantially iJentical with the language of
the provincial Act, from whicii it was
obviously copied.

LoKK Watsox — That argument we
may hold of course as applying to tiiat
Act, also as to the limit of the woid
" i serve " and public lands.

^ CNsEL — Yes.

i^oKD \\'ats(jx — The same argument
applies.

Coi'NSEL — Yes. It is not to be doubted
that in the mind of tlie Provincial Legis-
lature, and in the nund of the Dc)niinion
Legislature, at the time of the passing of
that Act, they were special reserves that
were being thought of.

Thk Kaki. ok Ski.bokne — I do not
innlerstand that to Ite the case. It is
not admitted, it is doubtetl at least.

Cdi'NSEL — I will give your Lordsliip
the reason ; because at that time there
was no subject at all on which tliis Act
couhl possibly operate, with reference to
wliich treaties could be made, save
special reserves. Xo one tiiouylit of
toucliing tiii.s particular area, whicli was
at tliat time disputed between Canada
and the Hudsons Bay Company ; and
there were no other lands to toucli.

Thk Kaki, ok Ski.buknk — \Vhat dirt'er-
ence would that make? Tlie legislatnie
does not tldnk of every item to which
the language may apply. It uses general
language. If tliese lantU fall witliin that
laiiiruage, tliat language applies to tliem,
aitliougli theie may have li.en a dispute
which it seems to me is not taken notice
of one way or tlie otlier. ' .r hi//ii>fhisi
these lands diil in point of fact belong
to Canada. If tiiey were Indian lands
witliin the meaning of this legisla-
tion, they fall within that legislation,
although nobody at the time thought of
them.

C<M\>sKi. All I was HUu'gestini.' was
that nobody at the time ever did think
of such athinu as being possible, iMscause
it waH in truth imposHible.

L<iH!t Watson The intention of this
Act seems to be to appoint iin ailndnix-
trntioii for till* control and ni.iuagenient
of the Indian lainU referred to in tlic Act
of IHHT.

(mi \«Kf I have failed to state my
prop<»aiti<>n tdearly. My profumition w>««
that it was not in the mind of th«- l<*t{is
latnre to t^iucli tliese lands nt that time,
althout;li the liiuiiage may Im- br<>a<l
•nouiih t" toll. Ii tliciii.

Tiir. Ku.i •>» ■^»l HiiK^K -W» know
BotliiiiK alMMit the miml '4 tim l«|fi*l*'

tiire, and in point of fact no legislature
has any mind, except tliat which is ex-
pressed in tlie words which it has used.

Counsel — And sometimes it is very
ditticult to tind it even there, my Lord.
The language of this statute, however,
does not appear to be directed to such
transactions as were effected by this
treat}'. It doe« not contemplate a treaty
with a large nund)ei- of l)ands of Indians,
acting together and at one time, in
respect of tlie extinguisiuiient of the sev-
eral tribal rights of this large number
over various areas. The language is more
applicable to the case of one l)and or
tribe or body of Indians dealing with
reference to its own special or other
reserve. It is to be remendiered that
although the statute refers to more than
one ciiief, many of the bands had more
than one chief, .'"•o that the force of my
observation is not interfered w ith by that
circumstance. Your Loidsliips w!.' als(j
observe a provision as to the residence
upon the land of the signatory or assent-
ing chiefs, which seems to be hardly ap-
plicable to a case in which it was (juite
impossible that the assenting chiefs could
reside upon the lands. Kach could leside,
it is true, upon the land of his band, but
no one had any relation to the land of
the othei' ban<is. .-\gain, uiidi'r the Act
there is to lie pioof on oath by the oath
of an officer on the white side.

LoKi) Watson — I do not quite uiuler-
stan.d the obfcrvatifin. I)oes a man not
i-eside on an areii of land if he Anvs not
sleep in the same place twice in a _\ ear.

Col NsKi.- Surely >es. I'.ut if \ou will
notice tliis tieaty bad relation to an area
of over ."»(;. (MH) »((mtte miles, and it was
not one trilx* of Indians that was sup-
posed to occupy that urea, biit some
twenty or thirty tribes were supposed
eaeh to occupy and rtside on a ditierent
fsirtion of that area. It is \\ ith relation
to that circumstance I s{X'iik. I (|nit«
admit the chief is Bupp<>sed to reside
witliin hi* own area, but n«>t within tite
area of the others. 1'hen. as I was say-
ing, there was to ]te piiMif <in oHtli on the
part of the w hites. anil also by one 4'|iief.

•Sir Hi< m \iii> Coll m Where is that?

Col >sKi It is the Hth s«-ction. The
tirat condition is that to which i referriMl
a moment mn<>. The seefind one is that
to which I am noa- referrinU'

.*»ih Hi< H\i(i> Col. II Vou said proof
on oath.

('oiKaci. ~Vea. the sei-ond sahMction.
It kt mm 9f tbt- r-trndttirms npon wbicii

the treaty is to be operative. It is to be
transmitted

The Earl of Sklborne— It is to be
certified on oatli by the officers author-
ised.

CorxsEL — Yes. I am not aware that
these conditions have been at all complied
with. There is no evidence that they
have.

The Earl of Selborne — We cannot
suppose that they were not complied
with. If all that does appear is consist-
eiit with action taken uniler this Act we
must presume tiiat they were complied
with. " Omnia pntKumuntur rite esKe
acta."

Coi'NSEL — Yes. But the 8th clause
provides that a release or surrender
shall he bindin<^ on the foUowii'g condi-
tions. Tiien it prescribes certain condi-
tions

Sir Richard Coich — This has never
been raised before, has it ?

CoiNSEL — I am not aware.

The Earl of Selbokxe — We cannot
presume the thing was done wrongly
when it may have been done rightly.

Ct>UNSEL — Of course if your Lordship
presumes tlie performance of the condi-
tions my argument falls to the ground.

Lord Watson — Surely the presump-
tion omnia rila I'sse arta applies. You
find it on the proceedings.

Coi'.NSEL — No ; I do not think we do.
That seemed to nie to sti'eiiuthen the
position of my friend Mr. McCarthy,
who said the treaty was made under the
authr)rity of the proclamation.

Lord Watson -We jnust face that
aspect of the case. Either there is a
treaty or not. The case li:i« l>eeii pre-
sented to us entirely on the footing that
thei'e is.

The Earl of SKi.itoRNK -And both
parties seem to nie to be contending
which shall have th>: iH-iiefit of the treaty.

SiK Kk-hard (,'orrii It has uever
tieen suggeBtcd until now that thiii was
not compbed with.

('orN>4KL Exci'pt in so far aa I have
ina<U> tii)'K(> HuggeMtiotis,

MkUkhikd Cnrcii In the previou*
proceetltug* in the lower c<inrt it waa
MXr M^MMIwI that th«'M- c<»iiditioiiB
ha<1 not h«4>n romplieti wit!:.

SiK VI K Smith Your »trt»ng point*
an- Hot lit l|i«><l \>\ yoiit wewker oima.

Cm NHKi My |fani«Hl frit^d the

Att < » r i > r > Irttif^al «rf <>ttt«(-i<t. whit ki
familiM' vitfa Ute pruutMi* liases t«duw, aaka
%kmk it WM aut argMMl ia Hm

lower courts that this treaty was under
the Act at all. It was, as my learned
friend Mr. McCarthy put it here, sus-
tained under the general executive
powers of the Dominion (iovernment and
by virtue of the proclamation.

The Earl of Selborne — If you find
an Act of Parliament and a thing done
we must couple the one with the other.
Of course if the Act has no reference to
the thing done, then we cannot make
that presumption. This Act binds as to
the matters comprehended within it if
they were intra rirtii. If we think these
matters were included in it they must be
governed by it.

Counsel — The information which I
have just communicated to your Lord-
sliips would well account for the fact that
attention was not directed to these con-
ditions earlier. If the contention was
not made on behalf of the other side that
the treaty was under the Act it would
not be material to consider the quefetion
of the Act at all. However, I do not
propose to add anything to what I have
said upon that sid)ject. It seems to me
that, if the treaty be effective, yet it must
be etfective in lespect of this cession and
surrender in the interest of tiie province,
all whose lands were held in the name of
tiie Crown, all whose lands are still held
in the name of the Crown, and whose
were the lands in respect of wliiuli the In-
dian interest was surrendered to the
Crown. I do not see iiow it is possible
to escape from this conclusion, or to
attirni tluvt by some violent operation of
conveyancing the act of cession or sur-
render to the Crown has not merely
given the Indian interest to the Crown
in right of tiie Dominion, but has taken
away the Outai io interest, up to that
moment held in the name of the Crown,
ami placed that intereht also in the
Crown in right of the Uondnion.

L«)Ki» Watson -You have Buccee4ie<l
apparently in all the coiirta Itelow u|Km
this grounti in the first place.

('oi'NsKL That is the line I am at tiiia
moment takir.g with reffience to the
treaty. Then my learned friends aug-
gest«ii that the In<lian title waa not in
effe*-! exting-u»he<l by the treaty, and
referred to the new privilege to hunt and
to fiah aa an indication of that reaiilt ;
hut that new nrivile|;e given i>> the
treaty ia not at all the nld. or an rvcltiaive
|»rivil«ij«* ; it ta merely a t#i«|tt»r»ry ««*l
ouotnoa privilr|(p. temiiitabif when ar
iU ar« made U* art <Mt tiie laa<la

for either cutting of timber or for settle-
ment ; and, as your Lordships observed,
the presumption upon the materials be-
fore us is (and I believe that presumption
is justified by the actual fact) that Orders
in Council were passed for providing for
timber limits in this district.

The Earl of Selbokne — I thought it
was arranged that that Order in Council
should be produced.

Counsel— I am not able to produce it.
It was in my learned friend, Mr. Mc-
Carthy's argument that that arrangement
was made.

LoRO Watson — There may have have
been some proceedings in this case
equivalent to taking up for the purpose
of lumber before.

Counsel — There must have been an
Order in Council.

LoRii Watson — I am not in a position
to say nuist have been. I can only say
may have been.

Counsel — His Lordship, Lord Sel
borne, observed during Mr. McCarthy s
argument, that the officer had no author-
ity unless there was some Order in
Council.

The Earl of Selborne — It certainly
was the inference I was prepared to draw
that some antecedent acts had \ taken
place under which he was exercising
authority.

The ATTORNEY-(iEXERAL OF EN(JLANI)

— I am told that Order in Council refer-
red to at page 10 of the Record, does not
purport to allot lands, but only to subject

fiersons to tlie penalties contained in tiie
>otninion Lands Act, 1879. Mr. Mc-
Carthy has sent for it and I l>elieve it is
coming across. It begins at line 9,
page 10.

LoKi* Wat.son — Do you dispute, Mr.
Att<»rney, that the area referred to in
the license was afterwards taken up tor
lumlxT pur|M>8e8 ?

The Am»UNEY(iENERAL— Yes.

L(>Ki> Watwin — Within the meaning
of the treaty ?

Wh. M«<"akthv— Ve«. No auch thing
ever ttN)k pla4.-e.

ThkKaklokSklhoknk— Will the Order
in Council \te produo«<i 7

TmK ATT<»KSEV-<iKSKRAL— My friend,
Mr. McCarthy, askeii ii>«* to mention t<*
v*4ir Lonlahip that he has M-nt for it.
It ia cMt the way. He aay* it iliici* u<>t
do anvthing m<Hre than •ul*jt<c't them to
pMMltimi m»*\ tktrs not pnrport to tek*
1^ th*- taiKt.

l>»ki> Watmik Dm- ticcoM rafH* to •
parttottUf- arra.

Mr. McCarthy — Perhaps your Lord-
ship will aU>>w lue to state what I have
done about this. The statute referred
to of 1879 authorized the governor and
council to set apart certain lands for
lumber purposes. That has not been
done with regard to this. The same
statute in that case authorized the issue
of licenses, each license lasting for a
period of twenty -one years, and entail-
ing on the person who obtains the license
the necessity of putting up a sawmill ;
but these permits, which were issued in
tliis case, are granted quite irrespective
of that over any and all parts of the
Nortn-West territory. I cabled to know
where that was to be found. The answer
I get is, " Order not printed on statutes
or sessional papers. It relates almost
exclusively to permit dues. It consoli-
dates former orders and provides that
permit shall set forth that permittees
nmst conform to conditions ; copy maile<l
you to-day.'

The Earl OF Selborne— That is not
the most satisfactory way of putting us
in possession of the tenor of that docu-
ment.

Mr. McCarthy— It was the best that
I could do, because it is not printed.

The Earl of SELB()RNE--Y(m are not
responsible. Those with wiioiii you have
been in communication ought to have
the means of sending over a correct c<jpy
of tlie <locument.

The Attorney-General— They have
sent it forwanl.

The Earl of Selborne— Then we
shall form our opinions as to what that
means.

Mr. Blake — At any rate, my Lords, 1
w.is about to argue that this is not a
material (juestion, because I contend that
the Indian title is extinguished in any
case, and the mere grunt of a new non-
exclusive privilege to hunt or tiHli over
the lanils until they are wanted in, in
point of fact, by no means incouHiiitent
with complete and abHuiut-c t*xtinguiBh-
ment. It is not the ohi title at all. Thty
have surrendered everything, and they
have a<.'quired Bini|(ly the privihjfe to
hunt and tiah over theae landa, aa long
as they remain Crown landa in which no
int^reat of a whit« ia creat««l by any act
of the C'n>wn.

1°H»: K«Ki. o» HKLMtKNK— Vmi CAB aay
whal^vtT may !•«• tlie t- Kt««t of thvtr prr-
TiwtM rtifiit, thia ia a <tirtrrfnt thiuK ami
daariy liifiit«>ii t<» a partK-ular HiaMer.

Cursfici. Ym. IIkv baas •■rM*'
Tiwy aurTeu<i«i **mry^kim§.

Lord Watsox — Tliey could not mine.

CorxsEL — No ; they could only hunt
ami tisli.

ThkEvkl ok Sklborxe — It is like a
riglit of chase and wanen.

•Sir Kk'Haru Cou(H--The government
may make any regulations they please.

Cor.NSKL — Ves. My learned friend
argued that the right of tlie Dominion
(lovernment to make regulations showed
they were to continue to interfere : but
the regulations would be necessarily
limitary regulations. As the right exists,
it is a temporary right to hunt and to
rish as long as the Dominion (iovernment
docs not limit or regulate that right, and
ceasing altogether the moment the lands
are set out for lumbering oi'for settlement.
All they could legislate upon would be
to limit the right of hunting and ri.-hing,
not to extend it. There is tlie whole of
it. That does not interfere in the slight-
est degree with the propositi' m that the
Indian title is al)solutely extinguished.

Then my learned frieuu claims that
the Dominion is under any circumstances
the assignee of the Indian right, and that
this justifies the cutting of the timber.
That was his secondai-y proposition.
But the Dondnion is not an assignee at
iill. This is in form and sul)stance a
surrender or cession to the Crown.

Lord Watson — There is no division of
the right. It is an undivided right in
the Oowu.

CofNsKi, — Yos, all is cot togetiier ;
and all is in tiie Crown in whose interest
it is gut together, lliat is the position
before your Lordships. I'nder any
circumstances the Indians could not
a8aign or transfer, bccau«e it is one of
the conditions of tiie peculiar tennre
upon which we have been arguink.' tlie
case til it assignment or tiansfcr w;is not
ivixsililc for them. The attempt at
assignment would operate an extinguish-
ment of the Indian title, it wotihl \>e
dcHtriietive of their title, llieir title
)>eiiig <ie8troy«!<l, nothing would remain
but that title wliicli existed already,
ab«olut«f and unimpaired save by tlie
la<iiaii title.

Then a« ut granting a ri^ht t'l out the
tiinlMT. I <lu at all 'iduiit that the
ln>iian» ha<l thernnelveM tiie riglit to cut
tiM* timlNT oil thetM* land* Utr the piir-
pomen of Nale, So far from tliit iM'iiig
l^rt of ttie iiiiaietiioiiai ^ \is;'>iii and
«U4M'iMmt of the IndMiiD. It wt- are to
>p|rfy (1m mlw of loiHiitoii u>t«!M>. It it'<Hit<i
Iwanarijr Mibt •!-!>• tiv-crf

the very interest which they were to
enjoy, namely, the hunting interest.
The continuance of the forest M'as the
condition of the continuance of the game,
and the idea of cutting the timber for
mercantile purposes has never, that I
know of, been snggested as an idea
relevant or other than repugnant to the
notion of the Indian title. I do not at
all say, of course, that, when special
reserves are created, that title may not
be moulded, and larger rights may not
be given according to the terms on which
the special reserves are established.

LoRi> Watsus — By the terms of the
treaty the Indiar are not to have the
right of hunting and fishing upon those
parts of the ceded lands which are taken
up for lumber. Ihey are expressly
excepted.

Counsel — Yes, they are expressly ex-
cepted ; and also the lamls for settlement.
In that view I will not pursue this argu-
ment at length. But I wish to refer to
an authority my learned friend cited in
answer to your Lordship's question
whether the Indians had a right to mine.

The Earl of Selborne — You mean
the Cherokees?

CorNSEL — Y'es ; my learned friend
cite<l from a note in the third volume of
the Commentaries of Kent.

The Kaki. ok Selhokne — Mining is
not mentioned in the note at all.

CorN.sEL — Yes.

LoRii Watson— I do not tldnk mines
and minerals are necessarily touched in
the case it gives a reference to.

Counsel —It seems so.

Lord Watson -There was a conviction
of an Indian uinler a local Act or Act of
the provincial legislature. It was held
tliat that Af't was passed with reference
to Indian land and Indian reserves and
was beyond tiie jxiwer of the provincial
legislatuie and aeconlingly they (plashed
the conviction, holding that the statute
was entirely beyond their powers but the
stiitute dill relate to niinee; within the
Indian reserves and apparently the
liidiaiis had traniigreiMed the rules laid
down with respect to mining by the
I'roviiuial Aet.

( ors-^KL ~1 had auunied it waa an-
other uote.

LiiKi> Wat«>n - It decitiea nothing
m<»re.

Thk K.4I11. <►»■ Sei-wrttNK -The not*
from Kent baa mittitiig atMMt auumg tu
it.

iAiriomt.L—Wt ImH f«mMl vkat my

learned friend intended to cite at any
rate, and I was about to state it to your
Lordship.

Sir Kkiiabd Couch — Tiiis is what
Mr. McCarthy said ; Indians were en-
titled to mines. Then he quoted S
Kent's Commentaries page 37S.

Thk AxTOHNEY-dENERAL — It is Origin-
ally page 380.

COUN.SEL — In my paging it is lecture
51, page 488.

LoKiJ VVatsok — What edition have
you got ? 1 have got 1840.

The Attokney-Genekal — I have 1851.

Coi'NSEL — Your Lonlship will tind it
at the close of a long note: — "M".
Justice Clayton, of (ieorgia, in the casi
of tlie State of Georgia v. Conatos, a
Clierokee Indian, brought up on habeas
corpus {reported in the Xational In-
tfUiiitiwr of October 24th, 1843) held,
that the right and title to land included
a right to all the mines and minerals
therein, unless they were separated from
the lands l)y positive grant or exception ;
and tliat if tlie State made a grant of
public lands to an individual, witiiout
any exception of ndnes and minerals,
the mines 'and minerals wo\dd pass to
the grantee as part and parcel of tlie
land, and tliat the Cherokee Indians had
a right to dig and take away gold and
silver from the lands in tlieir reserves, or
lands not ceded to the State, and were
not amenable to trespass for so doing,
inasmuch as they had as good a right to
the use of the mines and minerals as to
the use of the laml and its products in
any otlier respect ; that they were lawful
occupantd. not chargeable with waste ;
for the riglit of the State was a right of
pre-emption oidy, and never consiiiered
otherwise by the government <>t (Jreat
Britain, when it cbiimed and exercised
ilominion over this country, nor by our
own government wiiicii 8uccee«leil to tiie
Britisii powers."

LuKi> Watson — ^Tliat do«snot occur in
mine.

Mr. M«CAKTHY--Tli»t 18 not in the
••rlier edition. The OMt; wa« not
d«;ide<l till 184.1.

HiR Haknkk Pkaohk — IHd that reUt*
to latwls in r«sp«M*t uf which a treaty had
matte by th« guveraiueBt with the

GariHuu.— Ym.

i«f tiMtfalii*
CoraMUr— ]f«. Hm CtiaTOim ImUmm
a vksfljr •!

The learning about the Cherokee Indians
is very large and interesting. If your
Lordship refers to tlie cases in 5 and 6
Ptiters, you will find ample ground to
sustain tiie proposition I advance.

The Earl ok Selborxe — I want to
know exactly about this authority. It
M'ould seem to be the note of some late
edition of Kent. • «; ri^^ .

Coux.sEL— Yes.

Lord Watson — It appears to be an
edition by Comstock who appears to
have added that.

Counsel — Yes.

The Attorney -General — I think that
will turn out to be Chancellor Kent's
note.

Sir Barnes Peacock — How did the
Cherokee Indians get their title — by a
grant from the government or merely by
reservation in the Proclamation of
(ieorge III ?

Counsel — iliere were treaties, and
repeated treaties with them.

Sir Barnes Peacock — Therefore they
had a grant perhaps more extensive than
that in the reservation of (Jeorge III.

Counsel — So I contend, unijuestion-
ably. Nobody can read the cases witiiout
seeing that. The Clierokee Indians by
one of the earlier treaties were recogni/ed
as a nation, entitled to elect and semi a
deputy to the Congress of tiie Unite<l
States. Tlicy were treated with a great
degree of respect. They formed an
organized political community. I liey
had laws and customs and arrangements
which are described in the most eulogis-
tic terms by the .Judges in tliese cases in
.J and U Peters. They were appro>-ching
rapidly, if tiiey had not attained a high
condition of civilisation. 1 think it m ill
be found utt^-rly impossible, either with
reference to tiie general (jiiestion or with
refeience to this purticulur case, to hold
tiiat the position of the Cherokees could
in tiie sligiitest degree art'eet the position
of the title in <»rdinary uneonceded
laniis, ile|x'ndent ou tiie pnx-lamation.

Sir IJaknes I'KACoiii- Tiieie iniglit \te
a ditleit'nce b«twe«'n mining ami ciittini;
down tindMT. Tlic Indiana niigiit hav«
iind< I lilt I < ^<'i \ atiou a right Ut cut doM n
timlx-i III I Ml- jiurjKiae of building tiieir
hut« .tnd iioiiiiea.

M 1 hftv* ae dttulA tiiat waa
1 'ixT'ioMtl Mi|a)raM«t.

i - I'eMVM'm — Tbeir l»a<l a
! : .a.1 iiaAwt. "fSimk it ia

m aaaaai. that «i-

though the lands may not have passed
to the Dominion Government, at least
the right which the Indians had to cut
timber did pass.

Counsel — I say there is no question
that the Indians in those lands to which
the proclamation applied, on the
general theory of an Indian title in un-
surrendered lands, continued their accus-
tomed enjoyment. If they wanted tim-
ber to make passages across streams, or
for their wigwams, or for fuel, and so
forth, they could take it. Nobody would
dispute that. But to enter into the mer-
cantile operation of cutting down timber
for sale, was as much impossible for
them as it was contrary to every instinct
of the Indian population.

Lord Watson — " Timber " is a large
word to employ.

Counsel — Aaything they wanted for
their usual and customary enjoyment I
have no doubt would be included.

Sir Barnes Peacock — That is a very
different thing from creating a public
company.

Counsel — That is what I was going to
say. Their personal riglit was their per-
sonal right. To allow them to sell or
transfer tiieir right, if regarded as uu-
liuiited, might be practically allowing
them to sell the fee simple, because the
timber was really often the whole value
of the land.

The Earl of Selborne — The matter
seems to stantl in this way under (^'han-
cellor Kent's authority. The note in
Chancellor Kent has not a word about
this. This book, which was published
in 1840, has not a word about it. The
case seems to have been decided in ]84:{.
Therefore, whatever its value may Iwj,
unless some later edition by the chan-
cellor himself containing this latter note
is produueil, we can liardiy avoid sup-
piising it was added by Mr. Coiiistock.

Coi'NsKL — It was not <leeiiied a case of
such importance as to Had its way into
the regular reports of the (Jnite<l Htates.
It is qautol from the SvfionnJ liittili-
ttfH'-'-r. It is the tlecision of a siujjte
jadjce. tjuoteil fnfin a newspaper.

L>oiU> Watmik— Wa« t4«
alive la I H-IT *

\Ukmi am extern e<tttina kutmtli is Ifttl.
Tm Raiu. «r itmummMU — It <

Lord Watson — It seems to have re-
sulted in ([uashing a conviction merely.
It does not appear what other objections
the conviction was open to.

Counsel — No.

Sir Barnes Peacock — According to
the claim this company cut down two
million feet of pine timber. That is very
different from what the natives would
have done if they have been allowed to
enjoy tiie land.

CouNSEL^Yes. And besides it in-
volves the proposition that they can
transfer, v/hich is contrary to the funda-
mental notion of the Indian title. They
may enjoy, but they have no right to
alienate.

Now, having argued the case up to this
stage upon the hypothesis I stated in my
opening, namely, that the middle view
of the Indian title applies, and that the
proclamation is in force, and that the
words, "lands reserved for the Indians,"
extend to these lands, I have to ask your
Lordships' permission to refer very brief-
ly to the earlier Idstoric views in order to
establish, so far as I atn able, the unten-
ability of the appellant's suggestion with
reference to the real character of the
Indian title, and the soundness of the
ground we take, namely, that the title
was not, in the case at any rate of Can-
a<la ami of these lands, one of extensive
and absolute right. Your Lordships will
recollect that both the Attorney -(General
in his opening, and my friend, Mr. Mc-
Carthy, in the opening an<l in tiie close
of his argument, contended that the gen-
eral cliaracter 6f the Indian title was
such that it was practically the l>enehcial
title in tlie land, that it was something
very much superior to the easement or
limited right on the hypothesis of which
I have been arguing the case — something
in effect paramount — anil that the inter-
est of the state was practically ui/. My
own view is that the <|iie8tion of the In-
dian title, iKtth as to its origin, as to ita
ktt^K^rdination to therigtibiof the Crown,
and as to iu extent, is sust-eptii>)e, in
reapect of theae parts of ('anaila. of very
ditferent and wmiA clearer treatm^t
tluui apptiea to tlw§— >iiiM of tbc Ia<Ua«i
title <tr riiH't in Hm aU mImmb aad in
tb* L'nitMi .>ta*ea. lat I Am M* adanit
tiMtevMi tlM> Moat
aa« ke fairif taibaa ellha liw af <
(I4» Mt ai^ 4rf 1

trary, I am satisfied that the fair con-
clusion from those judicial decisions as a
whole, is the middle view to which I
have referred, and that if you look to the
particular circumstances in the stronger
cases themselves it will be found that a
much narrower rule than may be indi-
cated in the judgments would suffice for
the decision.

Lord Watson — What difference do
you think it makes to your case that the
Indian title should be greater or less so
long as there is a substantial interest
underlying it in the Crown ? Does the
precise extent or limit of the Indian title
matter much to the result of your argu-
ment so long as there is left a right in
the Crown, a substantial right, not a
mere casualty which will depend on the
Indian title but a substantial title — a
substantial interest which is underlying
in the Crown.

Counsel — So long as it is agreed that
tiiere is such an interest as passed under
the word " land " in the 109th section,
then for the imiTiediate purposes of this
case I care for nothing more.

LoKD Watson — That is the answer
which I anticipated.

The Earl of Selborne — On the
other liand if tlie proposition could have
been maintained that the Indians were
what we call owners in fee siini>le of tlie
soil, then that decision would bring you
round to tlie word " royalties."'

CoiNSEL — Yes, certainly ; and would
remove c>ne of tlie grounds of my argu-
ment, because I rest uj>on botli at tliis
moment. And therefore it seemed to
me imiKjrtant, if my learned frieinl's
ar;;ument led your Lordships to lean
towards the adoption of ins view as to
the very extensive natuie of the Indian
right -it seemed t<j me to be very im-
portant to combat it. But I at nnee
concede the general proposition which
Lord WaUon has state«i, that it is utterly
iniiiiat«ri«l U> us for the purposes of this
case, providetl we have "land" withui
the meaiiitii^ of sectiim IOt>.

X«tw 1 <Mjnt(-n<i that fr«»ni the very l*e-
fiiiiiiiig tkut trsw restilt of Um principle*,
m«l tkm f ftrnfe H e a. with refer-
I k iipynat J tu tl»«
ml tite la4aMi htMrtecsi

subordinate to and carved out of the
paramount and alisolute legal estate of
the Crown. That is the proposition
which I shall endeavour to maintain by a
brief review without tedious reference to
tlie authorities. In the earliest days the
first foundation of the titles of Christian
nations to these countries was to be
found at Rome. In the earliest days it
was the pope who claimed the right to
grant away the kingdoms of this world
as well as of the world to come. England,
and France also, later on, as protestant
views and principles more prevailed,
repudiated tliose pretensions ; yet not
with any idea that there was no intrinsic
right in Christian states as such to take
the soil, but witli the view that the right
was not in the pope. Tlius it became
the recognized doctrine of the Christian
states that the discovery of heathen lands
gave the discoverer, being a Christian
state, the soil absolutelj-. Your Lord-
ship pointed out that there was rather a
difficulty about tiiis title arising from
discovery, suggesting that it would not
apply very happily if the Indians had
came over and found out England

The Earl of Selbornk — Tiie argu-
ment about the pope is a very extrava-
gant one. The pope s authority in these
matters can hardly be made an argument
at this time of day.

Lord Watson — A pretext has never
been wanted for taking land.

The Eakl of Selbmrne — It is the
rigiit of the stronger, the power to take
from the weaker.

Counsel — That is (juitc true ; but I
venture to submit that M'hat is n.ateriai
is not the solidity of the foundation, or
the justice and equity of the pro}M)sition,
but whetlier in point of fact in those
early days this was the fountlation and
the proposition — the thing which was
put forward : l»eing «lependent for its
suc'-ess. as it doubtless was. on the right
<«f the stronger. iH course, the propjsi-
tioii that the stronger should make any-
thiug which he piease^l the law, is a
profMJMtioti whidi oMUMft fsirly be pat
nmrard ifi argaoMBt at the
4my

tac Kau. «r Hojhiuis — If

mtk»i

ml
uJtrm to Iw •• is I

based upon this very theory, and that
the Crown did assume to grant the
soil as well as the sovereignty, and the
jurisdiction

LoKD Watsox — Without being in tlie
least aware of how it was occupied.

CorxsEL — And sometimes actually
knowing ; and in some cases even
saying, " whether vacant or occupied
by heathens ; " and that is the dis-
tinction which was taken. Respect
was to be paid to the discovery
and occupation by other Christian states
in America, to the absolute disregard,
the ignoring altogether of rights or
interests on tlie part of any Pagan in-
habitants.

The Earl of Selborxk — I think the
word " Christian " should be left out.

Counsel — I (juite agree.

LoRU VV^ATsox — We know what has
been done in the name of Christianity
in the taking possession of land.

Counsel — Yes, my Lord, my con-
tention however is that, founded upon
wliatevei fantastic .and, I might almost
say, revolting notions

Lord Watson — I do not dispute the
good title of the power who has taken
possession.

The Karl of Selborxe — \^'here pos-
sesssion is taken and the law is estab-
lisiied.

Counsel — However it may be as to
the principle, my contention is with
reference to the fact, the historical fact.
I maintain tliat the fact is in accordance
with the view taken in the opinion of
the Six (Counsel, whioli has been referred
to, and tliai tlie current of the author-
ities is to the eti'ect that tlie Imlian title
was such a title or interest, as those who
had possessed themselves of the land,
who claimed and ^'xercised full rights
over it. the right to grant it, the riglit
to use it, the riglit t<> occupy it, chctse to
assign to the Iniliau. it was an entirely
arbitrary title. \ol»o<ly pretcndx it wum
the original Indian title ; uoi><Mly pre-
tends it was known U> the aixtriginal
iniltiiiu : tMlnnly |M-etcuds that the
•utiwa wf such » titl« tut titi>,, with such
liMit«ti<»iu «.« tbcae, wa« tb« ^jti'Mi which
iJM ■hiirinlaii mlnfateMtewMet vt«.i. if in
d— d Im Btmmdn Irf— y lW» t itlj. u> thm
mtil vl kM iiwtrjr. Wmt jtut mmek m tills.
mm irum mmtivmmml

up as existing in the Indian — just such a
title or interest was all that the Indian
had ; yet always subordinate to the
claims of the strong discoverer

Lord Watsox — There are great tracts
of country at the present moment in
Europe and elsewiiere, tlie occupation of
whicii is in the Crown and yet they are
admittedly private property.

Couxsel — Yes.

Lord Watsox — Simply because it has
been found expedient that the property
should be recognized.

Couxsel — Yes, that is my whole
argument. In a word, it was and is a
question of expediency and policy.

Sir M. E. Smith— I suppose so, for
the French King had not recognized
tliese rights and therefore he had pos-
session. They were public lands of the
French Crown. Then the English Crown
proposed to limit its general power l)y
that proclamation, that is the state of
things is it not ?

Couxsel— Y'es. I was endeavouring
at the moment to state my view as to
the title in the colonies and the United
States, apart from the question of the
French cession altogetlier, because my
friends argument is based, if not wholly,
yet very largely, on the old colonial
title. They state that as the substratum
of everything

Lord Watson — I admit that the
argument starts from that point, that
the right sprang from legislation, pro-
ceedeil from legislation. Now legislation
may take away a right, no doubt of tiiat.

Counsel— If your Lordships hohl tiiat
the real and substantial argument for
the appellant is based on the proclama-
tion. an<l that that nmst be taken into
consideration as tiie groundwork when
you are looking at what the Indian
rights are

LoHit Wats<»S — I do not in the least
mean to suggest, if that is so, tiiat that
is not the starting |>oint.

CorssEL— If that is the starting poiut
of the right, then it beeon»e«, <»f courfe,
leiM nuteri«l to c-unsider wliat the right*
wt^re in the old coUmiek aud in th«
rnitfil States. I hate no desire t»
detaia ^was VtttiAkfm mm imttAsit hia^ser
th«« ihm cxiMMMiai m Mm cum; r«4uire ;

was the foundation of the Indian title
here. My own position has always been
that all that was not material, for the
simple reason that French Canada, before
tlie cession, was untjuestionably free from
the In<lian title ; and that, therefore, we
must rind the existence of the Indian title
there in something tliat was done after
the cession. And after your Lordsliips'
observations I will pass over the remain-
der of the argument whicli I had intended
to state with reference to tiie Indian
title elsewhere, and will turn at once to
the question of liow it stood in Canada,
only saying that it is not in my view the
true result that the Indian title in the
kStates and in the Colonies interfered at
all

Lord Watsos — The result of that
would be that these Indians, with whom
this treaty was made, woidd 1)C liable to
be squeezed out of tiie territory without
any compensation with regard to their
riglits, if your argument is correct.

CouxsKL — I was at present, my Lord,
only saying

LuKU Watson — I understand your
argument. Your argument at present is
directed to this, that these lands are free
from settlement, unencumbered by In-
dian title, is not that so 'i

CorxsKL — Yes ; unencumbered by In-
dian title as of light.

Lord Watsox — As of riglit ?

CoussKL — Yes • as <if right.

The Eahi. ok .Selik>kne — As a matter
of fact tiie Indian was there, and then
we came whatever became of the Indian
riglit and jurisdiction, and then certain
rights were recognized. You need not
labour tliat.

Cor.NstL — Very well, my lord.

The Kakl of Selbi>hne — We recognize
that fact.

CoCNSKL — Tliat being your LonUhips'
view, 1 past) by the argument which I
watt going Ui addreM t<* yuur Loriiiihi(>«
as to the coaditioii of thiugst elHewhere —

Tmk KaHL ok StLlM»KVK— The aiithori-
tieii wliieh yuu have cite*! lire at least ae
oiu'-li in your favour an agaiust you.

LoKD Watmjn — It really c<hi»«i t<* Xi%*
q « — tiu it m» to jr«Mtr iirguuMftit. either
tiwjr had mamm ri^t «r tt^y U*>i Dot. It
'jraw aiy lit li it wan tm
ktm tmtttiy mttomiug

-Ym : mtf mrmmmA vfil W

ftw laiSaA iittj Mi

that it was originally a question of policy
and discretion, and continued so to be ;
and next, that even if you put it upon the
footing of a right, yet it was a ris.'ht
under the proclamation, lower than any
contention of my learned friends, and
one which was obviously carved out of
the Crown title, and leaves the piovin-e
the main interest in the land. And I
start from that point to which Sir Barnes
Peacock alluded at an early stage of the
argument

Lord Watson— Unless I misunder-
stood the argument, it really appears to
me on this point that tiie parties are only
at issue upon what is materiallj' dis-
puted. It is not disputed on the other
side as to the underlying right on the
part of the C'rown ; it was conceded there
was such an underlying right that the
Indian right to the land depended on an
arrangement made with the Crown. You
are now discussing what was the precise
extent of the right.

Coi'NSKL — I understood so, certainly ;
but my friend, the Attorney-General of
England, suggests to me that no sucii
wide concession as your Lordship has
stated was made.

Lord Wais«jN — Then I misunderstood
the argument. I fancy that is a separate
point.

CoiNSKL — The concession, I mean that
the laiiil would have passed to the prov-
ince if there had been an extinguishment
before the union. My impression was
the same as your Lordships. I under-
stood Mr. McCarthy, in answer to tjues-
tions put to him, to make that statement,
l)Ut I have no desire at all

The Karl uk SKi.iioRSE— He concedetl
no more than that the Crown is lord of
the soil.

Lord Watson — I do not think it was
seriously di^puted that the Crown had
an int<'ie»t in the soil.

Col N SKI. —At any rate it is now dis-
putttd. my Lord, as 1 iindetxtaiiil, that
the Crou u liud such au iutereot in the
."toil as we coiit^rMd f«»r.

L<*KI« WlT'^i.N - Vee.

Oh NscL — Tvt tiiat w« tiuw utMlerstaiul
what is iMini^-ud**!

Lofei. WiT-»\-Ti»f Juttrest of Ui«
C'nMfin ii^ ix't i'«iri*-d b\ iMM.-tioo lOV.

(.'4jHrN«iLL I lUB about bu tr} Ui kbrv

it i*. W« ipM tikMi to til* vaat «f ^k*

title ^tmy cAMrly. W« iad tfw

_ tktitt «]itMic«MMd )* ^

td IIm Wmmtk, Thm Ftandi CtttArn

extinguished it. That proposition cer-
tainly, whatever doubt exists as to other
propositions, was stated by my learned
friend, Mr. McCarthy, in the clearest
possil)le terms, that the French Crown
did not recognize the Indian title, which
was therefore at an end : and reference
may be made to the judgments of Mr.
Justice Taschereau and Mr. Justice
Gwynne, and others, which are entirely
at one with that view. Well, then, it
was absolutely in the discretion of the
English Crown, when it became possessed
of the country and the soil, and of all
the rights of the trench Crown, to deal
with these at its pleasure. And there-
fore I take as my starting point that, the
Fi'ench right being absolute and entire,
the English right was the same. And I
am relieved, with reference to Canada
and this district, from any consideration
of any possible anterior or subsisting
Indian title. In this particular case it
required tlie voluntary act of the Crown
to create an Indian title. It must be a
new Indian title, the voluntary creation
of tiie Crown, whatever its nature and
extent. That is the only possible origin.
There is then, with regard to Canada, no
ground to contend for a paramount, or
superior, or anterior or subsistent Indian
title. Whatever it may he, it is carved
by the ('rown ont of that entirety which
the Ciown lield l)y the cession, and so we
get rid at once and forever of all sug-
gestions to the contrary.

Now the transactions subsequent to
the cession in respect of Indian affairs
were based upon general considerations
of state policy, and were adapted to tlie
English situation at the time. It
Would be a great error to suppose
that tliey were based upon the simple
proposition that it was just that an
Indian title of a certain description
Bhouhl lie recognized in such and
Bucli lands, and therefore England
recognized it. That was not tlone. As
to this ian<l. an«i as to the vast propc>r-
tiou of all tlie lan<is, no itiea of recogni-
ftioB by Englau<l on the one hand, or of
eemion by the Indians on the other hand,
wma coiiceive<i or attempted by the
procUuitAtioa or by any other Act. What
wa« dcme arose frotn nufijit^atuiu* of ex-
pedi«acT sad policy, witii «hic-h indc^l
tiie Indiaaa had aonM-thing t<> d<>. but not
tlie tmumt. The Mtaattua of Eu^lMtni.
akiwaffa at tiMt tUMC akm had htsoume.

the lord of the bulk of the continent,
was critical and difficult. England had
to consider the chances of a renewed
struggle with France for the recovery of
her lately ceded possessions, aided by her
former subjects, not yet devoted to their
new allegiance. England had to con-
sider the possibility also of a fresh con-
test with Spain for the recovery of the
Floridas, only just wrested from that
power. She hail to deal with the grow-
ing restlessness of her old colonies, so
soon after to culminate in the revolution-
ary war. And besides all these, she had
to cope with her Indian troubles. Dur-
ing the long and arduous French war,
England had flattered and stimulated
her Indian friends with the notion thai,
if they succeeded in conquering the
French, the interior settlements would be
done away with and the French pioneers
expelled. That was the Indian's dream,
his hope, his national aspiration. But
that could not be accomplished under
the capitulation. The French settlers had
the right, under its provisions, to remain
and be protected in their settlements,
wherever situate. Thus it had become
impossible to carry out the promised
policy ; and great disappointment and
vexation arose in tlie minds of those
Indians. Again, at this time fierce
Indian wars were raging. The gi'eat
conspiracy of Pontiac, the widest and
most far-reaching, the best organized
and most persistent of all the Indian
wars, had broken ont ; and it was only by
superhuman exertions, and under the
most trying vicissitudes of fortune, that
the Englisii held any part of their
ground in the interior. Therefore it
was ttiought necessary to conciliate the
Indians, and to get breathing time to
consider the situation. On the other
hand, the need of pushing English west-
ern settlements, formerly urgent in order
to occupy the country and keep out the
French, no longer existe<l ; l>et ause even
those French who stayed remained as
English subjects. Now in relation to
the whole situation, as is shown by the
public documents and historical reconls.
great problems of statecraft presented
themselves. The colonies ha<l lieen fonnd-
e<i and fostered tbattbey inightext«^nd the
crtminen-e and c-ousaine tiie uuuiuiacturt^
of Eiiglaiiil : ao'l supply iier with raw
materiaUi aa^l naval storifa. They had
f<Hin<i«-d with the idea that they
I sartai a a relatim of tafar io ri t r aod
Bmbtbmt

and was present to the mini] of tlie
Englisli govenniient, tliat tlie colonies
miylit tlieiuselves become manufacturers,
supply their own wants, consume their
own raw materials, and even presume to
export manufactured goods. Tliere was
also abi'oad in liritish America a painful
and )nexplical)le feeling of restiveness
and iiulependence. Thus tlie <juestions
whisli presenteil themselves to the
English government when this proclama-
tion, so wide and geneial in its terms
ami dealing with so many subjects, was
being considered, were, how could the
English possessions be best secured ;
how could the colonies be kept consum-
ers and dependent ; and what should be
the policy of settlement. There was a
division of opinion in the Cabinet. An
important nunc>rity thought interior
settlement should be vigorously pio-
moted. Themajinity held that settlement
for the time sliouKl be directed, not to
the interior but to the seaboard ; first, in
order to increase the available English
strength against Frencli attempts on
Xova Scotia aiul Spanish attempts on
Florida ; ne.\t, because settlers by the
sea could be more readily and adv;intage-
ously supplied with English manufac-
tures, and more etl'ectually kept in touch
with and controlled by England, than coidd
the remote inland people, who wouKl Ije
compelled to manufacture for themselves
and would be in a state of practical isola-
tion and independence : and lastly. '>e-
cause this cf)urse would, they thought,
lessen the danger of Indian wars. It
was admitted that the case was doubtful.
No final decision was reached. Hut time
pre.s.sed. Something iiad to be done, and
done quickly ; and at length a policy
was ailopte<l, in its material features,
so fai' as tiiey touch this case, purely
provisional. temporaiT and experi-
mental. That jK)licy was end^Klied
in the proclamation of 170.S. Now this
proclamation dealt with various suiijects,
under various titles and autiioritio.
in various ways, ant! witii various ef^ert^.
In part it was a legislative act of the
sovereign under liis prerogative power
with regard to eon<juer»Ml territories ; in
part it wa« an exei-utive act lta»ed on the
Kin^'«in<»reiiuiite<i p«iwerof dealing with
territories held by «liM.*<»very and <M-i-«ijiii-
titm ; in f«art it wh» fonnd«-d "fi •-ypr»«-«'
Igpidative aut!<
mmmrtifett : iu i

thm rrgai pfrtrer : fa part it wmm
Ml Hm asiwne : ia fmtx it waa

tenipovary ; and the part relating to this
area was of the temporary character.

If your Lordships will allow nie to
refer to the proclamation, you will see in
almost its earliest clauses provisions with
reference to (Quebec and the other
colonies. It lefers to the expetliency of
settling the government and of giving
autiionty to dispose of the lands, anil
provisi(m is made for the settlement of
lands within the colonies, and authority
to deal with lands, teneineiits and here-
ditaments witliin the colonies, and to alien
the Crown lands to settlers, is expressly
given. An argument was used by
one of the learned Judges below, that
the practical ett'ect of tlie proclamation
in dealing with unsurrendered and
with reserved lands is to produce
the result that unsurrendered lands
Were i/iso J'arto reserved lands. But I
submit to your Lordships that that
argument is not well founded. The
Words upon which that argument was
liased are these : " Such parts as not
having been ceded to and purchiased by
lis are reserved by us to the Indians."'
They give ground for no such inference.
And they are a second, and yet a third
time repeated, with the word " still" in-
troduced : " Such lands as not havingbeen
ceded ai'e sti// reserved,"' showing very
plainly that mere non-surrender does not
//'■<oy'rt'7o constitute reserve. And again
vast (piantities of unc^ded lanil in
(^>uebec are treateil in the proclamation
a» open to settlement. An<l yet again
an enormous area not yet surrendered is
by express piovision temporarily re-
served ; everything leading incontro-
vertibly to the conclusion that lack of
cession did not cieate reserve, but that
an act of reserve was essential.

Next there is a clause uirler which the
governois of t^uebec. East Florida and
West Fkirida, provinces created by the
projlaniati<in, are not to pass patents for
lands beyond their iMninds. which seems
at tiist sight an extiaordinary clause.
The only explanation 1 can suggest in
that when you e«fine to the governor's
instructions you find they sfieak of him
as " <ioveriK»r of the province of Quel*ec,
and of' all onr ttrntitrit a ihfuitiUtit
tkurnjti.'" So it mmM •upp»«jed tJiat there
were Dotne ten-it^»rie» defieudeut on the
pr««^in<-e. J<«n-otid it)< Ji«Min<'t< : auU |»ro-

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