Mr. GEOFFRION : Let us see what is on pages 1079, 1080 and 1081, to put the facts before your Lordships ; as I suggest he asked from the Hudson's Straits to the River St, Lawrence on page 1079, and he is told at page 1080 : if you get the grant North of the Hudson's Straits, that will take in a large part of what has already been granted to the Hudson's Bay Company, and then comes page 1081 : “ Upon the Coast of Labrador between the River St. John and the Southern limits of the territory granted to the Hudson's Bay Company.” I say that therefore you have the picture that in 1774 they were still unwilling to grant in express terms up to the Hudson's Straits.
The LORD CHANCELLOR : This is a very small part of your case.
Mr. GEOFFRION : Your Lordships have my argument.
The LORD CHANCELLOR : You will take much longer to persuade me that that line which you call the proposed line was ever confirmed. However, as I say, it is a small part of your case.
Mr. GEOFFRION : It is, as regards the Indian Reserves and the Hudson's Bay Company. I suggest coming back to the Indian Reserves that it was dealing with what you call a residuum ; coming back to the Reserves, it is a residuum for the present ; it is significant by the exceptions it mentions, and much more even by the exception it does not mention. I have dealt with the exception it does mention, Newfoundland ; but the exception not mentioned is the Hudson's Bay Company. The Hudson's Bay Company there was no reason to except at all for many reasons. The Hudson's Bay Company was not in territory dealt with by the Proclamation, because it had not been territory ceded to or conferred on France under the Treaty of Paris. The point I wanted to make was escaping me: the territory of the Hudson's Bay Company is quite clear, so how could they overlook the other. On my learned friends theory the territory of the Hudson's Bay Company is just near alongside the territory of Newfoundland, but my learned friend says the Reserve did not deal with that part of the world, it dealt with the Great Lakes. I will have to suggest later to your Lordships why it does not deal with the great Lakes ; but, may it please your Lordships, it is noticeable as I pointed out a minute ago, that in 1759 the Hudson's Bay Company were not concerned with its Western limits. The limits it was concerned with, and the limits which were then claimed, were the limits Grimington Inlet to 49 degree and stopping there, so that when the Proclamation refers to the limits of the Hudson's Bay Company, they are the very limits in the Labrador Peninsula, because the others were not yet a concern to anybody, and if they were the limits in the Labrador Peninsula, then how can it be suggested that this Reserve did not apply to the same territory ; how can it be suggested that this Peninsula was so far considered to be included as to make it necessary to exclude the Hudson's Bay Company, and that it was so far not included as to make it unnecessary to reserve
the Newfoundland Grant ? I suggest that since the exception applies to the Hudson's Bay Company, which is just a neighbour, it is almost inconceivable that Newfoundland mould not have been mentioned if the hinterland had been intended to be given. My Lords, I suggest that the maps about Indian territories to which my learned friend has referred, help us in so far as they play a part, particularly the map introduced by my learned friend Mr. Macmillan on that point, which is very strong, but it seems first that where we must look for the reservation is in the terms of the Proclamation, and the thing did not reserve what was occupied by Indians conditionally on its being occupied by Indians. It reserved it completely. I can make the same remark to the various phrases to which my learned friend refers in the letters of the Lords of Trade. It is true the Lords of Trade speak of lands around the Great Lakes. I might answer “ but it happens that the King did not take those words, he was not satisfied with those words, and used other words,” and therefore, their value as a contribution to the interpretation is very slight ; but there is more : If these words of the Lords of Trade were discarded as insufficient—probably they were not suggested with the intention that they would be accepted, but only as a description—if they are to be considered, I find something in my favour in them. I must come back again, my Lords, to that phrase which has often been read to your Lordships (I will say only a few words about it) in Volume III, at page 910, line 20, where they suggest a reserve of the lands lying about the Great Lakes and beyond the sources of the rivers which flow into the River St. Lawrence. Now, my Lords, I take it that “ Lands beyond the sources of the rivers ” in the plural, which fall into the River St. Lawrence, are lands beyond the height of land ; I cannot conceive of an area behind the sources of the rivers which is on this side of the height of land ; if there is, it is because you use the distinction between a river and a brook and a stream, and say, there is the river's source, and there is a brook beyond. Obviously, this is the way of defining the height of land——
Viscount HALDANE : You say it is interior waters.
Mr. GEOFFRION : I say it must be a name for a watershed substantially, and your Lordships must not forget that at that moment the Lords of Trade were suggesting as the boundary, not the boundary ultimately accepted, of a straight line for Quebec, but the height of land. Having suggested the height of land as a boundary, they then suggest a reserve of the land lying about the Great Lakes and beyond the sources of the rivers which fall into the River St. John from the North, to he thrown into the Indian country. Now that is beyond the water shed : when they were suggesting the North water shd was as the limit of Ouebec. It cannot be in Hudson's Bay Territory, because Hudson's Bay Territory is excepted in anything, and the King would not purport to put that in the Indian lands, so there is nothing left, not either the whole of or a part of the disputed territory, in that Peninsula, when you have taken the Hudson Bay watershed, the
Atlantic Ocean water shed, and the St. Lawrence water shed, you have excluded that ; in fact, one of the peculiarities of the use of the word “ coast ” by my learned friend is that except in very exceptional parts of the world, like the Caspian Sea, all Continents are composed of coasts.
Lord WARRINGTON: You must pay some attention to what. the Lords of Trade are talking about.. In this paragraph they are talking about the settlement of the boundaries of the New Government of Canada. That is what they are talking about, not of Newfoundland or Labrador, or anything of that sort ; they are considering what shall he the boundary of the New Government of Canada, and in settling those boundaries, they say certain lands should not he included, but left to the Indians, that is what they are talking of.
Mr. GEOFFRION : They are clearly dealing with it, if I may suggest it, in view of the Proclamation they are going to draft, and in that Proclamation there is to be a Reserve of the rights of the Indians ; there has been a discussion about it, and the Reserve for the Indians eamiot be in Newfoundland.
Lord WARRINGTON : I was proposing to ask you at some time or other what really is the effect of the reservation. Is not it reserved so as to prevent—the words of the last clause of the Proclamation seem to show it, the acquisition of ownership in the land that is reserved : settlement and ownership.
Mr. GEOFFRION : Of course, my Lord, this is going to the root of my argument.
Lord WARRINGTON : It is still reserved to the Ring, you see the King has jurisdiction and must administer it through some agent.
Mr. GEOFFRION: No, my Lord, if I may suggest, the correspondence which was read to your Lordships——
Lord WARRINGTON : Just look at the words of the Proclamation again.
Mr. GEOFFRION : I have them before me, my Lord.
Lord WARRINGTON : It seems to me they are important. You see that paragraph which we have read so often on page 156, the reservation is expressed iii these terms, “ To reserve under our Sovereignty, protection and dominion, for the use of the said Indians,” and then it ends with the words, “ and we do hereby strictly forbid ” and so on, “ our loving subjects from making any purchase or settlements whatever, or taking possession of any of the lands above reserved.” That is not a reservation, surely, directed to saying that the land shall not be invaded by the settlers.
Mr. GEOFFRION : It is more than that, if it was that, it would be a definite policy. May I suggest that it is a reservation “ for the present as aforesaid.” The King, as the correspondence shows, had not made up his mind ; he dissented with the Lords of Trade at first ; the Lords of Trade wanted him to keep the Indian lands under his dominion ; he wanted to give the Indian lands to Quebec : he yielded, but only temporarily, because we find him doing it in 1774. He yielded to the Lords of Trade suggestion in 1763 by keeping the land under his dominion, but, during his pleasure, “ for the present as aforesaid,” until his further pleasure is known, and we know his further pleasure was known in 1774 when he gave it to Quebec.
Lord WARRINGTON : Yes.
Mr. GEOFFRION : Because he discovered, quite naturally, that Quebec was the only Government which could really handle the Indian problem on account of its previous experience in the matter ; but at all events, I suggest that this is not consistent with its inclusion in the Newfoundland Government ; I do not see how you can reconcile, after having said We will put the coast of Labrador under the care an inspection of the Governor of Newfoundland, saying, “ We reserve under our sovereignty protection and dominion for the use of the Indians,” all the following lands. It cannot be suggested that he was thereby putting the same territory (that is my suggestion) under the Newfoundland Government and at that same time reserving it under his sovereignty protection and dominion for the present as aforesaid. Of course, that goes to the root of my argument, but my suggestion is that there is incompatibility between the two.
Lord WARRINGTON : Up above, where he first says “ for the present,” he says, “ no Governor or Commander in Chief in any of our other Colonies or plantations in America, do presume for the present, and until our further pleasure be known, to grant warrants of survey, or pass patents for any land beyond,” certain limits. I agree he is talking there about the Governors of the old Colonies, but the object of the King in reserving the land, appears to be to prevent any ownership of the land so reserved being established by other people.
Mr. GEOFFRION : This provides for the free trade with these Indians, my Lord.
Lord WARRINGTON : Yes.
Mr. GEOFFRION : That involves regulation. Regulation is required for the free trade with the Indians. For these Indians, this was their protection ; they should not be curtailed by settlement, but there was not only that, they should be protected against the white man's raids and lawlessness, apart from settlement. Their trade should be regularised, there were a lot of things to do, and the King knew he
was not in a position to shape a policy then, and he reserves it for the present, and later places it on the Government of Quebec, but I suggest it cannot be said he was reserving it to himself, or giving it to Newfoundland. That is my point. at all events.
Viscount HALDANE : Let us see what has been the issue of this. The Indian lands when Confederation took place in 1867 were handed over, not to the Provinces, but to the Dominion, and the Dominion had to keep them, the same lands, but if by arrangement with the Indians they were sold to the Provinces, then it was decided by this Board that the title would be in the Province and not in the Dominion ; the Indian lands, in other words, were taken out of the ambit of the Dominion of Canada ; they were encased by themselves and could not be got rid of except by special arrangement with the Indians, and then they became Province lands. The Indian lands have always been kept apart from the Provinces ; and that condition in the regulation of 1867 was inherited from the policy of the arrangement with Quebec before, so one would expect here the Indian land would remain under the Crown subject to special arrangement for the benefit of the Indians, and would not have been transferred either to Quebec or any other of the Provinces. As a matter of fact, they got into Quebec later perhaps because Quebec was an enormous Province, including what is now known as Lower Canada, and it was thought convenient to take not so much out of the boundaries of Canada. The policy seems to have been to withhold the Indian Lands from the Provinces of Canada.
Mr. GEOFFRION : It was the policy undoubtedly, in 1763. 1774 gets a little more doubtful. The question whether it was in 1774 or 1880 that these Indian lands fell into Canada is an interesting question, our suggestion is it was in 1774, but there has been considerable doubt on that and other views are maintained. It is not material to our ease, because we got it anyway if it was reserved. All I say is that in 1763 this was reserved by the King provisionally, because his mind was not made up, and in the broadest widest possible words, and he cannot have given it to Newfoundland under those words. I next say if our view of the 1774 Act is right, in 1774 it was thrown into Quebec, including Ontario presumably, because they discovered that there was a whole routine in Quebec for taking care of these people which was non–existent anywhere else ; they used to come to trade down to the Quebec shores. Then we come to consider, Quebec having been cut into two Provinces in 1791, that this matter, which belongs to the old Ontario and Quebec, was transferred to the Dominion by the Confereration Act or it may have been transferred to the Dominion only in 1880. That is the other question. But there is undoubtedly an express decision or policy to keep the Indian lands for the Indians out of any control in 1763 : it is admittedly a provisional decision which was possibly altered in 1774.
Viscount HALDANE : Is there any information to be obtained