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 I CTiSE. 
 
 ARGUMENT OF MR. BLAKE, Q.C.. BEFORE 
 THE PRIVY COUNCIL. 
 
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 Press op The Budoet, 64 Bay Stfkst. 
 1888. 
 
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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 
 
 V. 
 
 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% 
 
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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- 
 
6 
 
 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 
 
10 
 
 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»» 
 
11 
 
 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 
 
12 
 
 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' 
 
13 
 
 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 
 
14 
 
 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. 
 
15 
 
 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- 
 
16 
 
 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 
 
i: 
 
 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 
 
 B 
 
 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 
 
18 
 
 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 
 
19 
 
 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 — 
 
20 
 
 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 
 
21 
 
 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 
 
22 
 
 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. 
 
23 
 
 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- 
 
24 
 
 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 
 
25 
 
 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, 
 
26 
 
 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 
 
27 
 
 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 
 
28 
 
 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. 
 
29 
 
 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 
 
30 
 
 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 
 
31 
 
 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, 
 
32 
 
 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 
 
33 
 
 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. 
 
34 
 
 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 
 
35 
 
 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 
 
36 
 
 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 
 
87 
 
 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» 
 
38 
 
 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- 
 
39 
 
 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 
 
40 
 
 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 
 
41 
 
 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§. 
 
42 
 
 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- 
 
44 
 
 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 
 
45 
 
 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 
 
46 
 
 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 ; 
 
47 
 
 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 
 
48 
 
 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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