from the case in which Lord Watson delivered the judgment in regard to the Indian right being a usufructory right.
Mr. GEOFFRION : The case is the St. Catherine's Milling & Lumber Co. v. The Queen on the Information of the Attorney–General for Ontario. That is the case where they decided the Indians right was a usufructory right. That is reported in Law Reports, 14 Appeal Cases, at page 46 ; the passage begins at page 53.
Mr. MACMILLAN : There is also a reference in the judgment of Mr. Justice Duff, in the case of The Attorney–General for Quebec v. The Attorney-General for Canada, which is reported in Law Reports (1921) I, Appeal Cases at page 401, on the subject of the Indians carrying forward what Lord Watson said. It is merely a passing reference to the effect of the Proclamation there, in the judgment of Mr. Justice Duff ; it was not necessary for his judgment, but it was mentioned incidentally ; the incidental reference is to be found at page 410.
Lord WARRINGTON : What is the name of the case ?
Mr. GEOFFRION : It is The Attorney–General for Quebec v. The Attorney–General for Canada.
Sir JOHN SIMON : There are two cases running with that title, my Lord ; it is the first one of the two.
Mr. GEOFFRION : They are dealing with the Act of 1850, and I want to begin at the beginning of the phrase, near the bottom of page 410 :—“ and the view that the Act was passed for the purpose of affording legal protection for the Indians in the enjoyment of property occupied by them or appropriated to their use, and of securing a legal status for benefits to be enjoyed by them, receives some support from the circumstance that the operation of the Act appears to extend to lands occupied by Indian tribes in that part of Quebec which, not being within the boundaries of the Province as laid down in the Proclamation of 1763, was, subject to the pronouncements of that Proclamation in relation to the rights of the Indians, a region in which the Indian title was still in 1850, to quote the words of Lord Watson, ‘ a personal and usufructory right dependent upon the goodwill of the Sovereign.’”
My point is, and that definition by Lord Watson of the right of the Indians supports my suggestion, that on the words of this proclamation the King was reserving to himself provisionally, until his further pleasure be known, all these lands.
Viscount FINLAY : For the benefit of the Indians.
Mr. GEOFFRION : For the benefit of the Indians ; and he was not fully informed yet, and that is why he did not take the narrow words suggested by the Lords of Trade.
Viscount HALDANE : At page 59 of Lord Watson's judgment (14 A. C.) he says this : “ It was urged that the exclusive power of legislation and administration carried with it, by necessary implication, any patrimonial interest which the Crown might have had in the reserved lands. In reply to that reasoning, counsel for Ontario referred us to a series of provincial statutes prior in date to the Act of 1867 for the purpose of showing that the expression ‘ Indian reserves ’ was used in legislative language to designate certain lands in which the Indians had, after the royal proclamation of 1763, acquired a spcial interest, by treaty or otherwise, and did not apply to land occupied by them in virtue of the proclamation. The argument might have deserved consideration if the expression had been adopted by the British Parliament in 1867, but it does not occur in Section 91 (24), and the words actually used are, according to their natural meaning, sufficient to include all lands reserved, upon any terms or conditions, for Indian occupation. It appears to be the plain policy of the Act that, in order to ensure uniformity of administration, all such lands, and Indian affairs generally, shall be under the legislative control of one central authority.” The Indian title was defined by Mr. Justice Duff, quoting the words of Lord Watson, as “ a personal and usufructory right dependent upon the good–will of the Sovereign.” The Sovereign retained control.
Mr. GEOFFRION : May it please your Lordships, I dealt with Volume III, at page 910. As I said this is beyond the height of land ; it cannot be in Hudson's Bay territory, so the suggested Indian Reserve must be in the controverted territory. It therefore suggests that it was not the corridor which the people were thinking of then, because it is beyond the corridor ; I call the corridor the yellow area to the height of land. The only answer that was made was based on the use of the words “ the source of the rivers which fall into the River St. Lawrence,” and therefore it excluded the rivers that fall into the Gulf of St. Lawrence. This suggestion, I respectfully submit, is putting an undue precision on a mere letter of recommendation that was only descriptive, generally and did not intend to suggest the very words. Then any idea that the Reserve would stop east of the rivers falling in the River St. Lawrence, once we have decided where the river stops, seems untenable. You first determine where the River stops. Let us assume, as was suggested during the argument, that it stops at the River St. John ; then you must determine in what direction your straigh line will be drawn. Will it be due north from the source of the River St. John ? If it is, it takes in all the western extension of the watershed ; it takes in all these sources and the big lakes at the lead of the River. Your Lordship will notice that if you extend the River St. John all that sort of appendix to the Newfoundland claim would be in the Indian Reserve. Now it cannot be seriously suggested that the Lords of Trade wanted to cut it up by that illogical
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line, and that the mere use of the words “ rivers flowing into the River St. Lawrence,” meant that they wanted to put into the Indian Reserve the part of the Atlantic watershed shown by a line cutting off that appendix that your Lordships see on the sketch map, leaving the rest of the watershed to Newfoundland. It is a preposterous Indian Reserve to make. It is obvious that my learned friend is in great difficulty with his watershed theory the moment that he does not stop at the height of land, and it is obvious that on that phrase on page 910, the Lords of Trade were dislodging him from the most substantial and perhaps the most valuable part of that height of land.
My learned friend, Mr. Macmillan kindly draws my attention to the fact that the prolongation due north of a straight line from the source of the River St. John would take Sandgirt Lake into that Indian Reserve, the line passing somewhat to the eastward. I will read an extract from Low's Report on Explorations in the Labrador Peninsula, which your Lordships will find at page 2644 of Volume V : “ Sandgirt Lake is an important gathering place for the Indians of the interior, on account of the number of routes that centre here.” It is a place where they gather, whether they want to go to Hudson's Bay, Esquimaux Bay, or Melville Bay or the St. Lawrence, and the suggestion would be that the Lords of Trade would have intended by those words to limit the Indian Reserve by a straight line drawn due north from the head of the River St. John.
I suggest that view is untenable, and my learned friend, once he is dislodged from the height of land, starts down away close to the sea ; and undoubtedly this phrase of the Lords of Trade, if it had been repeated in the Proclamation, would have dislodged him from the height of land and would have taken away a very notable proportion of the watershed which he now claims. Of course, the words are even broader than that, but the real answer is that these words were not used.
The LORD CHANCELLOR : I rather incline to your view that they did not intend to draw a precise definition between the River and the Gulf. If that distinction were material I am quite satisfied myself that the River is not so far down as Anticosti. You remember we had yesterday a discussion about the Hamilton Inlet, and there was a map produced showing the River St. Lawrence coming at the Point des Monts. I remember there was a discussion about it, and Sir John accepted it.
Mr. MACMILLAN : My Lords, may I say the reason I think we both had in mind was that the River St. John is described as falling into the River St. Lawrence, in the contemporary language, and I think that probably was in my friend's mind.
Sir JOHN SIMON : I am much obliged : I am not seeking at all to qualify it, though I think I did guard myself by saying that I did not agree the use of the term had been consistent throughout.
Mr. MACMILLAN : It has not.
Sir JOHN SIMON : I thought for the purpose of my friend's present point he was not putting it, if I may say so, unfairly, and I did not want to quarrel with him about what is necessarily a vague line. I do not think the use of the language is quite consistent.
The LORD CHANCELLOR : I do not think it m atters very much, but I thought it, right that attention should be called to it.
Sir JOHN SIMON : At any rate I do not think anybody would say it goes down further down.
Mr. GEOFFRION : I am going to say it in a minute ; I am going to find it in the Report of the Lords of Trade. My argument, of course, is that the Lords of Trade could not have intended to base their limits of the Indian line on the east on such a hazy expression as the rivers emptying into the River as distinguished from the rivers emptying into the Gulf.
Therefore my learned friend gets into difficulties, because if they take part, they want to take the whole. It is my case that there is no importance in the distinction. If the pursuit of the subject be interesting your Lordships will find in the same report of the Lords of Trade a a definition of what they called the River St. Lawrence, rightly or wrongly. That is at page 905, line 16. “ This Claim, and the Possession in consequence of it, of the whole Southern Coast of the Gulph of St. Lawrence, from the streights of Canceau to Cape Roziere, at the Mouth of the River, appears to Us,” and so on. Now from the position of Cape Roziere, I think that will carry it probably to the western end of Anticosti. As I say, my argument is that the Lords of Trade cannot have intended to base the eastern limits of the reserve on such a hazy basis as the distinction between the river and the gulf ; not only hazy in law but drawing an absurd line in the Indian territory. Therefore the moment my learned friend is dislodged by this phrase from part of his territory, he is in trouble with respect to all his territory.
My Lords, this brings me to the second branch of the Indian argument, on which we may be wrong, but to which we attach very great importance. I have been arguing on the assumption that it is irrelevant whether there were at that place Indians under the protection of the King of England, whose hunting ground the territory was. That was my first point that I have been trying to develop ; that the King made a provisional measure and wanting to be on the safe side, did not condition his reserve on that, but reserved his decision. I now come to the second point, which was so brilliantly developed by my learned friend, Mr. Macmillan, but to which I have another chapter to add ; that is the chapter with regard to the history and possession and occupation, namely, that there were there not only some Indians, but relatively to the other tribes, a substantial number of Indians whose hunting ground it was. They were unquestionably under the protection of the King of England. They were the first Indians of whom the French and English would have thought,
and the last ones they would forget. and it was their livelihood which was involved.
Viscount HALDANE : How far north did they come ?
Mr. GEOFFRION : There arc two tribes, there are two subdivisions of the immense Algonquin tribe. That starts from Lake Superior practically, or perhaps west of that.
The LORD CHANCELLOR : There were the Montagnais ; I am not quite sure about the Nascopies.
Mr. GEOFFRION: The Nascopies are practically Montagnais, and Nascopie is a word of contempt ; they are further north because they have been beaten.
The LORD CHANCELLOR : They are called Cree in this map.
Mr. GEOFFRION: The Algonquins are Crees, my Lord.
The LORD CHANCELLOR : They are distinguished on this map.
Mr. GEOFFRION : They are obviously of the same stock. Montagnais is a name given by the French ; it means mountaineer ; it was not their Indian name. Each tribe had an individual unpronounceable name that soon went into disuse in French mouths, and these were given the name of mountaineers because they came from the mountains behind—the plateau which we are dealing with here. What was read by my learned friend, Mr. Macmillan, and I hate to read it over again, describes the situation. The Indians, previous, of course, to the coming of the white people, lived exclusively on hunting for themselves ; they killed for their food, for their clothes and for everything. The coming of the white people, the French, in that region introduced a considerable change in their habits ; they killed to barter and they lived on the things they got that way. This introduced a new factor. I do not say that they did not still kill for their food at all ; but in both cases they killed and they hunted, and therefore their hunting ground was like the farm to a farmer in Europe ; it was their livelihood. These Indians had defined hunting territories, much as we have defined kingdoms and republics here, settled by immemorial usage. There were wars about them undoubtedly, like there are sometimes here, but at all events that was the position and the Montagnais hunting ground is described as being south of the Hamilton River and north of the St. Lawrence.
Sir JOHN SIMON : What description are you referring to ?
Mr. GEOFFRION : It was read in argument. My learned friend seems to doubt that, and I will get the page again.