Jeddore v. The Queen, docket 96-2182-IT-G

Date: 20011109

Docket: 96-2182-IT-G

BETWEEN:

JOHN N. JEDDORE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

Bell, J.T.C.C.

ISSUE:

[1]            Whether the Appellant, in his 1984 taxation year, resided on a Reserve, as defined in subsection 2(1) of the Indian Act. If he did reside on a Reserve, it is admitted by the Respondent that income earned by the Appellant from his business on that Reserve was exempt from taxation by virtue of paragraph 87(1)(d) of the Indian Act and paragraph 87(1)(a) of the Income Tax Act ("Act").

[2]            At the conclusion of 29 days of hearing, Respondent's counsel submitted that the investment portion of the Appellant's income was not exempt from tax on the basis that it, having been received from a source not on the Reserve, was not personal property of an Indian situated on a Reserve. There was no allegation or assumption in the Respondent's Reply respecting investment income.

PERTINENT INDIAN ACT and INCOME TAX ACT PROVISIONS:

[3]            Subsection 2(1) of the Indian Act defines "Reserve" as follows:

"Reserve"

(a)            means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a Band.

Section 36 of the Indian Act provides that:

Where lands have been set apart for the use and benefit of a Band and legal title thereto is not vested in Her Majesty, this Act applies as though the lands were a Reserve within the meaning of this Act.

Paragraph 87(1)(b) provides that:

Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, the following property is exempt from taxation, namely:

                ...

(b)            the personal property of an Indian or a Band situated on a reserve.

Section 81 of the Income Tax Act provides that:

There shall not be included in computing the income of a taxpayer for a taxation year, ...

(a)            an amount that is declared to be exempt from income tax by any other enactment of the Parliament of Canada, other than an amount received or receivable by an individual that is exempt by virtue of a provision contained in a tax convention or agreement with another country that has the force of law in Canada.

GENERAL:

[4]            The hearing of this case commenced on June 1, 1998. It was adjourned because of the discovery of documents by Respondent's counsel when preparing his case. The manner of conduct of the split hearing, involving the generation of many thousands of pages of paper and conducted over a period of 29 days, together with the illness of one of the Appellant's witnesses, resulted in the hearing not concluding until May 1, 2001. The Respondent's case consisting of extensive evidence required an inordinate amount of review time by the Court: much of that evidence which was not necessary for resolution of the issue.

FACTS:

APPELLANT'S HISTORY:

[5]            The Appellant, at the commencement of the hearing, was 75 years of age. He testified that he was "born on the reservation in Conne River". He said that he went hunting and trapping "in the country" when he was eight years old. He testified that his father was a Mi'kmaq from Conne River and that he was a trapper or hunter. He said that his grandfather, Noel Jeddore, was Chief of the "reservation in Conne". He stated that there were no chiefs after his father but that he was described as President of the Native Association "or something like that" but was referred to as "Chief". He said that his grandfather was born in 1863.

[6]            He testified that his grandfather and father would "do the Mi'kmaq prayers and that". He said that they were looked up to, even in the country and that they conducted the ceremonial prayers around Christmas and also conducted other ceremonies. He described how successive Chiefs wore a medal that his grandfather wore. He said that his mother was "a white woman" and was not popular with the Mi'kmaq people.

[7]            The Appellant said that he had a little store which he started in 1968-1970. He sold hardware, groceries and some clothing.

[8]            Appellant's counsel introduced a letter received from Revenue Canada in response to a letter the Appellant said he had sent to it. That letter, dated February 20, 1975, written by one R. Murray for The Chief of Verification and Collections, said:

This will acknowledge receipt of your letters of January 2nd and January 20th, 1975.

You are correct in that you are not taxable on income earned on the Conne River Reserve and any tax paid from 1971 on is refundable to you. As you are self employed, you are subject to Canada Pension Plan contributions on your net income.

For 1971 and 1973, you were assessed Canada Pension Plan contributions only. Your taxable income for both years was nil.

However, in 1972 you were assessed tax of $312.50 as well as Canada Pension Plan Contributions. Reassessment to your 1972 Return will be processed to refund this amount to you as soon as possible.

If you happen to hire employees in the future, they will also be exempt from tax. I trust that this is satisfactory.

[9]            The Appellant then testified that his son said that he was:

taxable for investment income ... not earned on the Reserve if you have money in the bank and had a bit of interest on it, then he said that was taxable income.

[10]          He testified that he was a full-time trapper or hunter prior to opening the store, first having left the reservation in the fall of 1931, living in a wigwam for the fall and trapping and hunting with his father every year until 1941 when he went overseas with the army. He said that they would go into the wilderness in the country by canoe and walk about 50 or 60 miles inland to the trapping area and spend the fall and winter there. He described in some detail how they hunted deer, speared eel and trapped otter, rabbits and muskrats. He also described the moccasins, skin boots, that they wore. He said they also hunted and ate caribou and bear fat with a little bit of flour. He described bartering with a merchant who acquired their furs.

[11]          The Appellant said that he learned about his people and his customs from his father. He said he trapped with Mi'kmaq people and they "would tell me things". He said that he acquired most of his knowledge when trapping and hunting. He also told stories about killing beaver and about the creation of the partridge, ducks and geese according to legend. In describing an incident involving the shooting of a bear, he said:

... this is a true story and it's never, nobody ever got it right, I can read it in history but nobody got it right. But my father told it so I know the right thing about it.

[12]          He also described the building of a wigwam followed by walking seven days, erecting another wigwam, and repeating this until they had seven wigwams complete in a circle. He told other stories about medicines, poultices and home cures.

[13]          The Appellant then described his bout with tuberculosis and difficulties with wardens seizing their weapons and hindering their hunt. He also spoke of his trips to the Indian Affairs people in Ottawa and the establishment of a Native Council "for Conne".

[14]          In response to a question as to what the Native Association was trying to do, the Appellant said:

It was trying to get the reservation recognized, that's what their main point is, you know, Conne River, that's what they were fighting for then, for the benefits, you know, what the rights -

[15]          He described how he was starting with his "grandfather's times right up onto now" putting stories on his computer for succeeding generations.

[16]          Respecting the Indian occupied territory at Conne River the Appellant said:

... that's what my father used to say, when he said, you know, we live on a reservation. He used the word "reservation" all the time.

[17]          He said that he was seven or eight years old when he heard this and that he was about ten years old when he realized their place was different from others. He said an old Indian woman called Katie Burke told him when he was rowing with her one day:

... that's Murray's post there ...that was about the last of the posts, because it was there then but it's decayed, there's only a post stuck in. And she said there's another one down to Reuben's Point ... McDonald's Cove there ... but I didn't go down, that was about a mile or two miles to row.

[18]          He said that they used to refer to somebody as a surveyor, surveying land for the Indians. When queried as to what he surveyed, the Appellant responded:

This the reservation thing there. His reservation in between ... for the Indian people that's what he ... that's what he used to say, this is our land in here.

[19]          He said that the Murray post was at Hinks' Point and reiterated that there was another post down at Reuben's Point. He said that he lived between the two posts - "not exactly in the middle but mostly out towards the Hinks' Point ... ".

[20]          When asked if he had ever seen any diagram of Murray's post:

Oh yeah, yes, father had one ... My father had one.

[21]          He also said that his father had called a map relating to the land "a grant". He said that his father referred to it as a reservation but said that the piece of paper was a grant. He said further that he had seen it, that the land was by the waterfront, and was all blocks with people's names on it. He named people whose names were on the plan blocks, namely, Benoits, Jeddores, McDonalds, and a man called George Hoskins. He said:

That come from, well they refers to it as reservation, but the blocks come from somebody like Mr. Murray who surveyed it. Now I don't know too much about what his reasons are or what, you know, for surveying and that, but my understanding from my father, it was for land for the Indian people.

[22]          He recalled, from what he was told, that Alexander Murray ("Murray") did the survey in the 1800s. He said that his grandfather's name, Noel Jeddore, was on the map and that he was born in 1863. When shown a map by his counsel, the Appellant said:

... this is the same my father had and also a fellow by the name of Louis John, he had one of them ... the one Louis John had was supposed to have been coloured...

[23]          He then said that Louis John's father was Nicholas Jeddore, Noel's brother, and that:

It come down from Nicholas through Louis' mother

... but the priest wanted to see this and from that day on they never seen it anymore, we don't know what happened to it.

[24]          Although the Appellant referred to Hinks' Point, he pointed to Murray's post on the map, it being the same thing to him. He also identified another Murray's post on the north-east side of the map and said that "everybody was in between here".

[25]          That document, entered as Exhibit A-2 was entitled:

PLAN

OF

SETTLEMENT

CONNE RIVER

BAY DESPOIR

[26]          The two Murray's posts are shown on this plan, one at the top of the longest lot on the left side of the plan and the other at the top of the highest lot on the right side of the plan, there being 25 lots in all. Then the Appellant testified that he lived on block number 6. The names on that block were Noel Jeddore and George Hoskins. He then identified lot 1 as Hinks' Point and said that it used to be called Burnt Woods where people who did not speak Mi'kmaq came to live. He said that people by the name of Collier settled in Burnt Woods.[1]

[27]          He then said that lot 1 was in the name of Stephen Joe. The area was bounded on the east end by a steep hill and on the front by Conne Arm and on the south side by a wooded area.

[28]          The Appellant testified that Burnt Woods and Conne River were made one Reserve by the federal government in the 1980's. He said that, prior to this, Burnt Woods and Conne River Reservation had separate postal codes. He then testified that there was a sawmill, Lake's Mill, at the top of lot 7. He said that:

They came in there and, one time and slapped this mill down there and like I said, this is the fellows who didn't, well, they look at Indians as nobody. So they came in there, there's a lot of saw logs up back of the Reserve so they came in and built a mill there and start to, you know, cut the logs in back and, although they weren't allowed to cut it on the reservation, they went back on the land, back, and they came out through down the lower end of the reservation and that's what they used to do all winter long, now in the summer they would open up this mill and saw this, saw the boards and ship it out by schooners. Now, they kept that up for quite a few years but nobody there could sell them and they wouldn't buy a log off our fellows, they wouldn't even give them employment, not the Indians, they wouldn't employ the Indians. The Indians were very displeased about it, but they didn't get employment there.

[29]          He then said that Lake was not an Indian. He said further that the mill "went out in '35 or '36 or somewhere around there".

[30]          The Appellant said that his father "was born there" and his father was there, as far as he knew, in Conne River, on the reservation:

...but I never, we never had much knowledge, all we know there was two families of Jeddores, where they come from, I don't know.

[31]          On cross-examination, the Appellant said that he first saw the plan, Exhibit A-2, around 1968 on a small piece of paper. He stated that his father always, from the time he was young, said that:

This was Indian lands ... From Hinks' Point here, to Reuben's Point down there, and I knew about the land because, like I said, this old woman pointed out the post to me prior to you know when I was about ten years old, eleven years old, something like that.

[32]          He also said that his father "always swore on that man" George Hoskins asking how he got his name "on our land". He repeated that Hoskins was not an Indian. With respect to the smaller plan to which the Appellant referred, he said that his father:

didn't tell me who had written that piece of paper but he used to always say it was surveyed by Mr. Murray, you know. ... I don't even know where he got it. He never told me.

[33]          He said that the "Miawpukek", on Exhibit A-2, was Conne River. He said he heard that word many times. He said that his father gave the plan to a Mrs. Stoker who visited his father and wanted old artifacts. He said he saw the letter that his father had written asking her to return the map but that he did not know if his father "got it back".

[34]          With respect to how stories were passed on in this community, the Appellant said:

Well we did a lot of this travelling and there was nothing left to do and probably sometime somebody bring up, talked about it. It just passed on as a little yarn or whatever it is, you know, just somebody telling it because there's nothing else to do. We didn't have anything else to do at night, long nights and that. ... I would be a youngster listening at probably somebody or even my father in the country. He had nothing else better to do, he'd tell me yarns, you know, just one thing and another like that. That's a general thing.

[35]          The Appellant's 1984 income tax return, entered in evidence, shows total income in the amount of $64,292.96. This includes interest and other investment income of $5,159.31 which, according to the oral evidence, came from the Bank of Montreal at St. Alban's, Newfoundland, Scotiabank in Grand Falls, Newfoundland, and Royal Bank in Grand Falls, Newfoundland. The total sum also included the benefit of a promotional excursion to Florida in the sum of $1,300.

[36]          On re-examination, the Appellant, when referred to a copy of Exhibit A-2, said:

Oh this is our land here, this is Indian reservation, that's what I'm saying. This is Indian land. I didn't bother any more, it's no big deal, I mean this piece of paper.

[37]          He then said that the first time he recalled seeing it was:

... somewhere in the 30's I suppose, could be sometime in the 30's, somewhere around that time.

[38]          The Appellant was referred to Tab 34 in Exhibit R-2 which was a copy of an undated[2] petition signed by a number of people living on the reservations. This had been referred to in direct examination. The document is undated. The petition itself stated that 98 percent of the population of Conne River "do not want a reservation established here".

[39]          The Appellant said that they felt they would be treated like a concentration camp. He said:

The reason I signed it was because I didn't want to go down any further than what we were down; we were starving then. I didn't want to go down below that. So if that was what a Reserve was going to give us - nobody said anything about benefits of a Reserve. We were never told that. There were benefits for Indians, but we were never told, not in Newfoundland. They were taken away rather than be told that there was any benefit.

[40]          When queried as to why he was being asked to pay taxes in 1984 as opposed to 1985 and 1986 he said:

Because they considered that, some people considered that it wasn't a Reserve before that time, you know. It was a Reserve but it wasn't recognized. To me, it was a Reserve, but nobody recognized it. In my belief, it was always a Reserve before I was born.

Chief Misel Joe's Evidence:

[41]          Saqamaw Misel Joe[3] described life at Conne River. He said, with respect to Exhibit A-2, that there was always somebody in the community that knew about Murray and the Murray survey. He said that, supposedly, he was sent by the government to survey a reserve for Mi'kmaq people. He testified that he had seen the map of the area surveyed by Murray periodically while he was growing up and that some of the older people would bring out a map and look at the map of the survey that Murray had done. He said that his grandfather had a copy of that map. He said he understood the decision of the colonial government to survey Reserve boundaries for the people of Conne River was to set up reserved land. He described this as being Indian land. He stated that sometimes if the Mi'kmaq went to Burnt Woods, a non-Mi'kmaq area:

... we got told to go back to Conne River and go back to the Reserve where you belong and things like that.

[42]          Saqamaw Joe said that he had acquired an understanding and knowledge from grandfathers and fathers and mothers that Conne River was communal land set up to provide a base to make some sort of living. He, in referring to the petition not to have a Reserve, said that the only reason he knew that any petition was signed was out of fear:

...that there would be a fence put around our lands, we wouldn't be allowed to leave, the gate would be locked at night, and if we got caught outside the fence we would be arrested.

[43]          He referred to a Reserve in Sydney that had a gate which was locked at night. He said further:

We lived free. We lived off the land. We provided for our people through any means that we can off the land. We didn't depend on the federal government for welfare to take care of us. Our houses were poor but they were our own. We had no Indian agent to come in to dictate to us what we should do or shouldn't do.

[44]          He generally, and in some cases, in detail, described the Mi'kmaq way of life.

[45]          In cross-examination Saqamaw Joe said that the federal government had acknowledged the existence of a Reserve at Conne River. He said:

... basically saying that we had wanted the federal government to go down and re-survey the old Murray lands acknowledging that the Reserve was there. And we pointed out it would have been the easier way to deal with this other than creating a new Reserve since there was already a Reserve in place. And their response was that if we did that then we would have to go back into 1949 compensation since the obligation was there in 1949. Then we would have to go back to 1949 to do that and we're not prepared to do that since the cost would be phenomenal beyond what's already been put into this Reserve at this time. ... To me, it was an acknowledgement that there was a Reserve there already.

[46]          Further, on cross-examination, Chief Joe was referred to a document being a letter of June 2, 1975 to Revenue Canada from Indian and Northern Affairs. The following exchange occurred:

Q.             Okay. Now, first just starting at that second paragraph, "none of the Indians in Newfoundland and Labrador are registered". And you would agreed with that statement as of 1975?

A.             Yes. There were no registered Indians in Newfoundland.

Q.             Okay. And registration didn't occur, as you've already told me, until ten years later in 1985?

A.             That's right.

Q.             Okay. And second sentence, this is, "Historically the province has dealt with all of its people as Newfoundlanders and it made no ethnic distinctions." And you've already commented that you didn't feel that was entirely accurate, correct?

A.             No.

Q.             All right. Have you heard that statement made from time to time, no?

A.             Yes.

Q.             Okay.

A.             Are you referring to everyone in Newfoundland being treated as Newfoundlanders?

Q.             Right.

...

Q.             Okay. And then the next paragraph, "With regard to Reserves, none have been established in Newfoundland". Does that accord with your understanding of what the Federal Government's position was in 1975?

A.             Yes.

Q.             Okay. And then skipping the next line, but continuing in that paragraph, "In Conne River land grants were made to individual families about 1872 of about 30 acres each and 24 blocks." Are you in a position to say whether that is accurate or not?

A.             Well, we didn't look at it as a grant we looked at it as a reserve land set aside for our original people. Mi'kmaq people.

Q.             Yes, okay. Do you agree that land - okay. We can get back to that. And the next sentence, "These were individual grants and were not a Reserve in the usual sense of the word in that a Reserve land is communal property to the Indian people, the particular Band." You don't agree with that, I don't take it, right?

A.             Well, it was communal land.

Q.             Yes.

A.             It was used by the community for the benefit of the community.

Q.             Yes. But this sentence is, do you agree, reflective of the Federal Government's position at that time?

A.             Yes.

Q.             Very good, okay. And then it continues, "However, certain conditions were attached and these were never fulfilled so to the best of our knowledge no title has been issued to any of the people living there."

A.             That's not true. We pointed out to the Federal Government and they acknowledged many times that we did fulfil the agreement set out in place by the Colonial Government in terms of how we were to -

Q.             Is that the cultivation?

A.             Cultivation, clear the land, and use it for to try and farm because we were poor miserable souls.

Q.             I take it you've seen - you're obviously referring to the text of some of these Licences of Occupation?

A.             Yes.

...

Q.             ... And then their conclusion, "In other words, they are living on provincial crown land." And that's not a statement - would you agree with that statement?

A.             No.

Evidence of Appellant's Witness, Gerald Penney:

[47]          The Appellant's next witness was Gerald Penney ("Penney"), an archaeologist and heritage consultant. He was qualified as an expert witness in the "Pre-history Archaeology of Newfoundland and Labrador"[4] with particular emphasis on the Recent Indian and the Newfoundland Mi'kmaq.[5] His abbreviated opinion report outlined that elder band members at Conne River acted as guides for coastal and interior archaeological surveys and hunting trips. Quoted portions of that report follow:

As sources of oral history, all demonstrate a knowledge of the interior based on their use continuous with use by their parents, and grandparents and extended families, since time out of mind. Their children and grandchildren continue this use.

[48]          The report stated that most explorers, hunters and government geologists used the services of Mi'kmaq guides for their interior excursions and their reports describe Mi'kmaq guides' abilities in guiding, hunting, fishing, stamina and travel. The report further spoke of the ease with which Mi'kmaq guides were pre-arranged through St. John's merchants. This indicated an organized contact process, especially in light of the fact that Conne River guides could be arranged from St. John's for hunters in various areas. Penney stated that a long-term tribal social structure existed among Newfoundland Mi'kmaq throughout the period of recent history and suggested this lineage extended back to an earlier period, as recorded from oral sources by Frank Speck and J.B. Jukes. He referred to a number of authors who had written on Mi'kmaq issues in Newfoundland with particular reference to Governor William Governor MacGregor (1908) ("Governor MacGregor") who recorded heads of families at Conne River on March 29, 1908. The report stated that an official list of Mi'kmaq hunting guides (Prowse 1905), and Governor MacGregor's 1908 visit to Bay D'Espoir confirms a government awareness of Mi'kmaq presence.

[49]          There followed an extensive bibliography with descriptions of aspects of the Mi'kmaq activities and history.

[50]          Penney's oral evidence revealed that Murray, born in Scotland in the mid-1800's, came to Canada after a military career, to assist Mr. Logan, the first director of the Geological Survey of Canada. He referred to Murray's connection with Conne River saying:

That's been explained.

[51]          He said that the other thing of significance to Newfoundland, "and probably to the Mi'kmaqs" was Murray's hiring of J.P. Howley as his assistant from the 1860's. He took over the Geological Survey of Newfoundland upon Murray's retirement in 1883 and for 40 odd years conducted geological exploration throughout Newfoundland.

[52]          Penney's "overview" of his opinion was that in the 19th century the Mi'kmaq in Newfoundland were an organized society and had certain institutions and certain lands and certain customs and cultures distinct from the rest of Newfoundland society, being, at the same time, harmonious with the Mi'kmaq people in other regions of Atlantic Canada and Maine and Quebec. He also said that for 200 or 250 odd years the Mi'kmaq were the masters of the Newfoundland interior.

[53]          Penney described the duties of the Mi'kmaq Chief, and said they were responsible for settling disputes from arguments and dealing with hunting and trapping areas. He said that the sources of oral history in the Conne River community are the elders. He stated that Conne River became the focal point for Mi'kmaqs in Newfoundland in the 19th century. He said that Conne River, an isolated post, at the bottom of Bay Despoir was very close to the interior of Newfoundland and that it was on the doorstep of the interior and its resources and was also close to St. Pierre and Miquelon. He explained that Mi'kmaq were not like the Newfoundlanders in lifestyle. He said they were not fisherman and "Everybody in Newfoundland is a fisherman". He described them as hunters and trappers and in certain ways as nomads because they had no fixed home or village or settlement as such until recent times. He described them further as opportunists seeking a lifestyle on the resources of the country.

[54]          He said that the Mi'kmaq use of the Newfoundland interior pre-dated a European exploration by 150 years and a European exploitation by 250 years. He stated in his report that:

An important aspect of demographic information (often recorded as an aside) is the identification of the Chief, his duties and members of his family. These instances show a traditional, long-term tribal social structure existed among Newfoundland's Mi'kmaq throughout the period of written history and suggests this lineage extends back to an earlier period ... Mi'kmaq use and exploration of the island was organized, systematic, and successful. He testified that there was oral history in the community of Conne River, the sources being the elders.

[55]          In response to a question from Appellant's counsel as to whether the Conne River Mi'kmaq always regarded themselves as living on a reservation, Penney said:

I can only answer that question by, you know, my personal experience over the 20 years association with Conne River, you know. First when I went there, and for a certain time after that, I never really heard much about the word Reserve. But I always did, from the first time I went there, hear the word Indian land and Indian settlement and stuff like that. People were certainly proud or could easily point out that there was land for Indians at Conne River and they knew, I guess, roughly the dimensions of them as the Chief pointed out to you already. The word Reserve seems to have crept into the vocabulary more in recent years, probably reflects the fact that they now have, you know, a legalized Reserve. But, you know, the word that I certainly heard and the way I heard it expressed was that there was Indian lands and that they knew where it was and they were proud of it.

[56]          He testified that Governor MacGregor, a Scotsman, came to Newfoundland in 1904 where he resided for 57 months, having visited the natives in Conne River. Mr. Penney described him as having a great interest in natives.

Evidence of Appellant's Witness, Robert Cuff:

[57]          Robert Cuff ("Cuff") was qualified as an expert historian. He testified that the first history of Newfoundland was written by the first Chief Justice, John Reeves in 1793 in an attempt to investigate the constitutional status of Newfoundland, it not being, in any way, similar to any of the other colonies in the British Empire. He said it was an attempt to investigate the British role in terms of the government of Newfoundland.

[58]          He also referred to a history of Newfoundland written by Judge D.W. Prowse and published in 1895. He referred to it as a history of Newfoundland from the colonial, English and foreign records. He said that at that time there was an institution in Newfoundland called the French shore. He added that the entire west coast of Newfoundland and much of the northern coast was the French shore and was an area where the French were exercising a degree of sovereignty. He said that despite the fact that at that time the British had declared their sovereignty over the island of Newfoundland, they had not exercised it. He stated further that up until 1949 there was no clear indication as to who, constitutionally, was sovereign over Newfoundland. He then said that the first time that the question of exactly what constituted the province or the colony of Newfoundland, in terms of territory, was settled in 1949 when it became part of Canada. Cuff referred to a book by a Professor McLintock which suggested that Newfoundland was not a colony but was a fishery until 1824 when it acquired a Governor and a council. He said that it was 1819 before the ownership of private property in Newfoundland for purposes other than fishery was legal. However, he added that prior to the establishment of a civil government in the 1820's, from 1729 to 1824 Governors had been appointed and sent to Newfoundland for the summer fishing season. He said that there was no civil establishment, no financing and no staff. He said further that Governors could issue proclamations but had no means to enforce them. He reiterated that in 1824 there was actually a civil establishment and, from that time, British sovereignty in Newfoundland. He said, however, that British sovereignty was not exercised over any part of Newfoundland other than the coast, there being no knowledge of the interior and no map of Newfoundland showing Bay D'Espoir prior to 1789.

[59]          Cuff referred to the general election of 1869, in the middle of Murray's visit to Conne River. That election, based on the issue of confederation with Canada, was won by the anti-confederate party. He testified that in 1855 Newfoundland had a responsible government under which there was a Premier and a Cabinet chosen from the people elected. There was still a Governor at that time who was appointed. There was also a Legislative Council appointed by the Governor General on the advice of the governing party. Cuff said that the Crown Lands Registry was established in 1820 and was a responsibility of the Surveyor General and members of the Executive Council. He said that around 1869 the Governor was not only a member of cabinet, as a member of the Executive Council, but was, depending on personality, a dominant force in the Executive Council. Cuff said that Murray was the founder of the Newfoundland Geological Survey. He was originally from Scotland and had been in Upper Canada for a number of years with the Geological Survey of Canada. He said that there was no map of the interior of Newfoundland in 1864 and that it was the task of Murray and Howley and those who worked with them over many years to map the interior. Their purpose was to identify mills and other resources of the land, including good stands of timber, and to construct a map of Newfoundland that was not blank in the middle. Cuff said that Murray had come to Conne River early in 1869 planning to go into the interior, presumably on a mapping expedition. He referred to Executive Council Minutes which contained the following:

[Grant of Land to Indians, Conne River]

His Excellency the Governor laid before the Council a letter from Mr. Murray, the Geologist, in reference to an application made by him to the Government in 1869, and also in 1870 for a grant of land to the Indians of Conn River, Bay Despair; - The Council concurred in the propriety of the application and referred the matter to the Honourable Surveyor General with the view of carrying its object into effect.

[60]          Cuff testified that he had been unable to find the letter from Mr. Murray. He then said that the Surveyor General, Major Henry Renouf ("Renouf"), acted upon that minute in 1872 by issuing a series of Licenses of Occupation. He said there was no documentary record of anything respecting the Minute done in 1870 or 1871. He said that in 1872, however, the Surveyor General issued 17 Licenses of Occupation in Conne River. Cuff stated that Murray was in Conne River in 1869 and in 1870, for the second time, when he wrote a letter to the Governor eliciting some form of action. He said that Murray would have been in that area to engage Mi'kmaq guides to help him explore the interior for the purpose of mapping same. Cuff added that field logs of Murray's activities in those two years made reference to survey work in Conne River. Cuff then said the field logs:

... make reference in 1869, I believe, first to - well he called it "Indian inhabitants of Conne River claim for land". He gathered names of heads of household and he established at the shoreline the limits of what we would call today the colonial reserve, the reserve that we've been talking about. There doesn't seem that - although he collected names of heads of households, it doesn't seem from his notes that he surveyed any individual lots within the community of Conne River, with one exception. And he also surveyed a plot of land across the river for a family of white settlers which were living on the other side of the river.

[61]          Cuff said that he was unable to identify precisely the area surveyed by Murray. His view was that the area was the shoreline and "not the back of the lot". He also said that from his understanding of Murray's notes, Murray did not survey an area but "sort of established a base line for a survey".

[62]          Cuff then referred to photocopies of 17 Licenses of Occupation dated April 1, 1872. Cuff said, looking at a survey map made by Gordon Isaacs ("Isaacs"), Respondent's surveyor witness, that the Licenses of Occupation were issued in the names of 17 heads of Mi'kmaq household people at Conne River. Cuff referred to versions of the Isaacs map that were historic maps and dated much earlier but said that:

... it is quite clear to me from looking at this map that Mr. Isaacs has prepared, what particular lots are being referred to.

[63]          He pointed out lots 1 and 2 and lots 4 to 18 as representing the Licenses of Occupation, lot 3 not representing a License of Occupation issued in 1872. Cuff said that no other Licenses of Occupation were issued to Mi'kmaq at Conne River. In response to a query from Appellant's counsel as to whether there was any relationship between the Executive Council minutes and the Licenses of Occupation Cuff said:

There would be a relationship, I would guess, in that the minute of the executive council which I'm not sure is actually any different from an Order in Council, but a minute of the executive council, referred the matter of a grant of land to the Indians of Conne River to the Surveyor General and I would assume the Surveyor General in response to that, ordered the preparation of these Licenses of Occupation, it certainly would have been within his purview as having that position in cabinet.

[64]          Cuff said that the Governor in 1870 was Stephen Hill ("Governor Hill"). He also testified that at that time in Newfoundland history, Executive Council minutes and Orders in Council were one and the same. He said:

The minutes of the executive council are the same thing that we would now refer to as an Order in Council. There was no separate record keeping for Orders in Council.

[65]          He said it is clear from the Minute that it was a letter from Murray to the Governor and that the Governor brought it to Council. He said that this was normal procedure at that time. In response to a query as to whether there was anything unusual about the licenses issues at Conne River in 1872, Cuff replied:

There are a number of things unusual, yes. There were a large number of licenses all issued on the same day, all issued at the same time. In the Musgrave settlement [not near Conne River], for instance, which was a sort of a concerted effort to open up agriculture lands in the bottom of Bonavista Bay, we would get - certainly you would get issues of licences clumped together in time, if you like. Like, over the course of two or three months you'd get a number for one particular area but nothing like 17 on the one day. They are unusual in that each of them contains reference to a plan.

[66]          In explaining why these were unusual he said:

Well, what would make it unusual I guess is that first of all there is no plan with these numbers associated with these licenses in the Registry. There is no plan with these numbers elsewhere in Crown Lands Records - I wouldn't say there is no plan with these numbers, there are plans with numbers but there's no plan dated 1872 with these 18 numbers on them I guess you could say. In looking at materials in the Crown Lands Registry, if you have a grant or a license or a special grant or whatever, you generally can find, if you look, the diagrams or the petitions or the preliminary surveys which were made for the preparation of the license or the grant or whatever. Sorry, I've got to sort of backtrack on this. You can't always find these plans and you can't always find these surveys in Crown Lands. You can find reference to them however. There is a Register of Surveys, there is a Register of Diagrams in which the various field diagrams and one thing and another like that were entered chronologically and assigned numbers. Now it happens fairly often that when you look up these numbers, when you look at an individual diagram, for instance, you cannot find the diagram if its gone and lost, whatever has happened to it. (Doesn't generally happen but that you don't find it entered in the Register.) You find the entry in the Register and then you can't find the diagram but it doesn't happen that you can't find these preliminary drawings or preliminary surveys. So, the unusual thing, I guess, is that they referred to a plan ... and I've been able to find no reference in Crown Lands to this plan filed or a reference to how or where it would have been filed.

[67]          Cuff explained that normally when someone wanted a mining or timber license the General Surveyor's office would send a surveyor with a description of the land and the surveyor's comments as to the validity of the application and the signature of the person applying. He then testified that to the best of his knowledge there were no petitions apart from Murray's letter to the Governor "if that could be called a petition".

[68]          Appellant's counsel then referred Cuff to a map bearing the endorsement on its front: "Plan of Indian Settlement Conne River Bay D'Espoir" and on the back, "INDIAN RESERVATION CONNE RIVER #70". The front of the map has a smaller map with these words "General Plan of Upper Part of Bay D'Espoir" showing relation of Indian Reservation to mills operated by John E. Lake. Cuff said that that map showed generally the north-east arm of Bay D'Espoir. He stated that it shows two mills, one at what is now called Milltown and a second one south of it on Conne Arm and on Conne River which is now called Head of Bay D'Espoir. Cuff stated that a shaded area on that map corresponds to the area of land enclosed by the Plan of Indian Settlement, Conne River, Bay D'Espoir, being the large map on the left of the same document. Cuff described some differences between the names on the Licenses of Occupation and on this map[6]. Cuff said that although he did not know whether Murray's letter would have been a petition he said:

my assumption would be that Murray's letter to the Governor is the petition that initiates this process, a petition from Mr. Murray himself.

[69]          He said that there was something unusual about the issue of Licenses of Occupation because no other licenses issued in Bay D'Espoir, no Licenses of Occupation issued in Bay D'Espoir in that period and there were no Crown land grants issued in Bay D'Espoir in that period. He also said that he had never seen Crown land grants issued before 1896.

[70]          Cuff referred to two pages from Murray's notes for 1869. One page had the names of heads of households, several of whose names appeared on the 1872 Licenses of Occupation. The other list was entitled "Indian inhabitants of Conne - Claim for Land". Cuff also stated that he recognized several of the names as appearing on the Licenses of Occupation. He said that many of the names were associated with the Licenses of Occupation but that there were 25 names on the list as opposed to 17 Licenses of Occupation.

[71]          Cuff then referred to an extract from the journals of the House of Assembly dated October 3, 1872. The article in question was signed by Henry Camp ("Camp") who lived at Pushthrough and had been appointed to a number of government offices for the Bay D'Espoir area including that of salmon warden. The original of the letter was, according to Cuff, addressed to the Colonial Secretary, James Noonan. It read, in part:

If one could be at Conn when a Man-of-War goes in the bay I think great good might be done with these fellows. They are very saucy the past three or four years; some one has been telling them they have exclusive right both to land and water in Conn, in fact they have a license to hold the Southside of Conn, about two and a quarter miles in length, and thirty-three chains deep, thereby excluding any settler or native from cutting any timber or firewood, and it is on that side that the frames of many of the Western Schooners have been cut; there is still a quantity of timber inside, being one of those places that escaped the fire of 1870. To keep an Indian from spearing salmon, trout and eels, I believe you must take his arms off.

[72]          Cuff then testified that the letter's description of land would correspond better to the Balfour plan than to the Licenses of Occupation in that the length of two and one-quarter miles is from lot number 1 to lot 25, larger than lots 1 through 19 related to the Licenses of Occupation. Cuff then said:

... he does not say some of those Indians have been issued licenses. He says they had been issued a license. He speaks of Conne River as an Indian settlement. That is absolutely consistent ... with nineteenth century records of Conne River. Nobody went there and failed to remark that it was an Indian settlement. Nobody went in there and said this is - there is a village on Conne River, oh, and by the way, there are some Indians there. It's always a village of Indians or an Indian settlement.

[73]          He also referred to the fellows being very saucy the past three or four years and pointed out that three years prior to this letter was 1869 when Murray was at Conne River.

[74]          Cuff stated that there was legislation which authorized the Crown to issue Licenses of Occupation, the purpose of same being the encouragement of agriculture[7].

[75]          The Licenses of Occupation included the following:

Provided always that if the said Maurice Lewis shall have settled on and have occupied the said Land, for the said term of Five Years, and have cultivated two acres thereof, within the said time, and have conformed to the provisions of the said Act, he shall be entitled to a grant in fee, under the Great Seal for the said Land; but should he fail to comply with the conditions of this License, and conform to the said Act, he shall forfeit all claim to the said Land and Grant aforesaid.

[76]          Cuff referred to Governor MacGregor's report of July 8, 1908 and read the following portion therefrom:

These Mi'kmaqs are hunters and trappers and are ignorant alike of agriculture, of seamanship, and of fishing. They have not more than three or four acres of cultivated land in the whole settlement. The greatest cultivator would not grow in one year more than three or four barrels of potatoes and a few heads of cabbage. There are two miserable cows in the place, and some of the least poor Mi'kmaqs possess three or four extremely wretched sheep. They have practically no fowls, but I saw one fowl and a tame wild goose. Their houses are small and inferior of sawn timber, but have windows of glass. A few hundred yards of road, constructed at the expense of the Government, traverses the end of the settlement where most of the people reside.

[77]          Cuff said this was probably descriptive of Conne River in 1872 as well as in 1908. He also said that he did not think that Murray would have expected the people of Conne River to cultivate those 17 lots issued under the Licenses of Occupation because Murray knew that the majority of lots were outside the settlement to a considerable degree and would not have expected any of them to be farming because he was employing them as guides in the summer season.

[78]          Cuff referred to grants of Crown Land issued in 1896 and 1897 to the Collier family of Conne River saying that they did not refer to Conne River but referred to the Indian settlement. He also referred to a memorandum from Governor Sir Henry McCallum of January 3, 1900 to the Colonial Secretary. This dealt with a Mr. Lake having built a mill, without permission, on certain lands. A portion of the memorandum reads:

The Premier was with me when the Indians complained of Mr. Lake having a mill on what they considered their reservation.

[79]          Cuff was referred to a memorandum of January 1, 1900 in which the following sentence appeared:

In connection with the question of the Indian reservation at Conne River, I learnt from Mr. Duder that Mr. Lake has no title whatever to the ground upon which he has established and is working a mill at Conne River and that he was refused a timber license for this locality.

[80]          Yet another memorandum, Government House, January 29, 1900 to the Colonial Secretary R. McCallum said, in part:

It was relative to illegal occupation of Crown Lands. In connection with the Indian reservation at Conne River I ascertained from Mr. Duder that Mr. Lake had asked for a timber license in this locality and that it had been refused to him. In spite of this, he has erected here a large mill on Crown Land.

[81]          Cuff said that official action resulted from the meeting with the Governor and the Premier in that the Governor took up the Mi'kmaq's cause with the colonial government respecting Lake's mill. He said that the Governor started out by referring to what the Mi'kmaq considered to be their reservation and that by December, 1900 when he wrote to Eli Dawe ("Dawe") he identified it as "Government Reserved Land". Dawe was elected to the House in 1899 and was Minister of Agriculture and Mines.

[82]          Cuff was then referred to an exhibit entitled EXCERPTS FROM REGISTER OF SPECIAL GRANTS, VOLUME I. It has an alphabetical index. Under the "Index" the words "Indian Arm Reservation" were written in ink. Then the word "Arm" was scored out and the words "Conne River" were added at the end in pencil which made it read "Indian Reservation Conne River 360", with 360 being the folio number. After that the whole description was struck out and under it was written "See Vol. I. License of Occupation". Cuff then testified that folio 360 was in the same volume. By that he appears to have meant the blank folio which had been inserted between 359 and 361. That page was marked in the exhibit by an orange tab with the words "GLUE PAGE" typed on it. Cuff testified that the folio which would be 360 has a number of glue stains on it. The largest stain was at the top of the page and extended the width of the page. There are eight or nine other glue stains along the length of the page.

[83]          Appellant's counsel then referred to the exhibits containing excerpts from Licenses of Occupation. Cuff explained that the Licenses of Occupation Volume which includes the aforesaid 17 Licenses of Occupation has a page facing Chief Maurice Lewis' license and this page contains a map of Conne Arm which shows roughly the same area, the Reserve, described to have given rise to the Licenses of Occupation. Cuff's words are as follows:

It shows a series of lots laid out. The lots are not numbered, unlike the licenses, the references to the plan in the license. At the top of the page in the upper right hand corner is written in ink "360". And also at the top of the page there are two glue stains. The darker of the glue stains, I guess, the one in the foreground, goes across about 80 percent of the middle of the plan. The lighter glue stain directly across the top goes across the whole top of the plan. There are also some other smaller glue stains on the plan.

[84]          He said that it was glued to a blank sheet opposite the Maurice Lewis license. He said although it appears there it is not part of that folio, not part of that license.

[85]          Cuff said:

My opinion of the sequence of events relating to the entry in the Special Grants Registry would run like this:

That the map that we called Plan of Conne River, that that was entered into the Special Grants Registry as folio 360 sometime between the registration of folio 359 and 361.

[86]          He then referred to paragraph 359 in the Special Grants Register which, on the second page, bore these words:

Given under the Great Seal of our Island of Newfoundland at St. John's in our said Island this 4th day of August in the Year of Our Lord One thousand eight hundred and ninety-nine. ...

[87]          Cuff said that this was followed by the blank 360 and then folio 361 registered on January 26, 1900. Cuff then said that his opinion was that at some point between August 4, 1899 and January 26, 1900 the map of Conne River which currently appears in Volume 1 of the Licenses of Occupation was entered as a special grant in the Registry of Special Grants, formerly having been glued on to the page, folio 360. He said further:

... That the number 360 which is written in the upper-right hand corner of the grant refers to the folio within the volume of special grants and that at some time, which is underdetermined, this map was removed from the volume of special grants and was placed in the volume, Licenses of Occupation opposite the License of Occupation which had been issued to Maurice Lewis and the glue stains, I think, are the thing that more than anything else bears out this contention. Well actually, no, actually I think the number 360 in the upper right-hand corner is probably the most significant item.

[88]          Cuff, after months of absence due to illness, summarized his view of events as follows:

Well, my opinion I guess, would be that at some point after Governor McCallum and Premier James, Sir James Winter, had met with the Mi'kmaq in August of 1899, a special grant was entered into the Register of Special Grants, Volume I, because we've only got sort of a bracketing date between August of 1899 and I think it's the 21st of January, 1900, I can't see precisely when that grant was entered but at some point in this a special grant was entered into the Register of Special Grants and the map that we refer to as the Balfour plan was prepared as a larger version, I guess, of the small map that we find in the Special Grants Register. ...

[89]          Referring to the index to the Special Grants Register, Cuff said:

Well, it's been overscored and written over. Originally it says "Indian Arm Reservation" and the word "Arm" appears to have been crossed out and at some point "Conne River" added. So it reads, "Indian Reservation Conne River 360" and then the whole crossed out and under written "See Volume I, License of Occupation".

[90]          He then referred to the glue page in the Special Grants Register which had nothing but a glue stain at the top and then continued:

... first of all, the grant was originally entered between August of 1899 and January of 1900. That secondly, somebody corrected the Register entry from "Indian Arm Reservation" to read "Indian Reservation Conne River". Thirdly, the item which was previously glued to this page at folio 360 was removed and that the index was amended for a second time to read "See Volume I, Licenses of Occupation" and that finally the map which previously had been entered in Special Grants was removed and was pasted in Volume I of the Licenses of Occupation.

[91]          Then referring to the map Cuff said:

... well, it's a map of what we would call the Colonial Reserve in Conne River. That is historically what it has been recognized, as the Colonial Reserve at Conne River. In the upper right-hand corner, it has Folio 360 or it has the number 360. Going across the top are two glue stains. There's a darker one which is the more recent stain and there's a lighter one in under it. The lighter stain directly at the top of the map corresponds with the stain on the phantom 360 in the Special Grants Register.

[92]          Cuff said that the entry in the index was written by one person in pen, that it was crossed out and "Conne River" was written in by another person and that the whole was crossed out and "see Volume I, License of Occupation" was written in by a third person which suggested to him that the removal and re-positioning did not take place the same day that it was put in. Cuff stated then that the License of Occupation could supposedly be called a conditional grant. He also said that he went through the first two Volumes of Special Grants and that this was the only one that had been moved. He said that he had seen on occasion something stamped as cancelled, on another occasion something written across something that said "cancelled". He then said that most often what he has seen is appended to the document a letter either from the Minister or from the Deputy Minister saying that the grant is cancelled or is no longer in effect or is replaced by "this, that or the other".

[93]          When asked whether the Mi'kmaq of Conne River would have had any knowledge about the special grant, Cuff replied:

Yes, I think they were. I think they were in that copies or maps of the Reserve were available and were circulated in the community. Certainly it's the tradition among the Mi'kmaq people that individuals had copies of these maps and I believe that the map that they had or the maps that they had were copies of what we call the Balfour Plan.

[94]          Cuff then testified that all the historical evidence on the Balfour plan pointed to it being prepared originally in 1899 or 1900 or possibly later reflecting the situation in those two years. He said that it was clear that what the plan shows is the situation in Conne River in one of those two years.

[95]          His reasons included the names of the heads of household on the Balfour plan and a small inset map of Bay D'Espoir called "General plan of upper bay of Bay D'Espoire showing relation of Indian reservation to mills operated by John E. Lake", showing a mill that was built in 1899 and one that was built in 1904. A third mill was built in 1905, suggesting the map was made before 1905. A surveyor's report identifying a James McDonald to lot 23 was made in 1903 thus reducing the date to sometime between 1899 and 1903. Further, lot 2 on the Balfour plan describes Joseph Bernard as "Chief" which, according to Cuff, narrowed the date down to either 1899 or 1900 because he ceased being Chief in 1900. Cuff then said:

... I think it is clear that the smaller map, if you like, was the map that was entered into Special Grants. I think that it would be an absolutely astounding coincidence if this map here was prepared at the same time without any association whatever to this grant of a reservation. I mean, the map itself says the word, has the word, "reservation" on it a couple of times showing relation of Indian reservation to mills operated by John E. Lake.

[96]          The endorsement on the back of the Balfour plan was "Indian Reservation Conne River" which Cuff said was the same as the index entry in Special Grants as amended from the original description, namely "Indian Arm Reservation".

[97]          Cuff testified that Governor MacGregor, in his report, used the term "Reserve" or "Reservation" ten or fifteen times.

[98]          Cuff, in discussing Governor MacGregor's report said that the report went back to Alexander Murray in, as he thought, 1872 and that the whole report is the recommendation that something is owed to Mi'kmaq people and that something ought to be done. He said:

Well, what my research tells me is that something had been done. You know, there had been a special grant issued. There were people in Newfoundland, including civil servants, politicians, clergy, who recognized that the Mi'kmaq had some special claim to the land at Conne River, that the Reserve at Conne River had some substance, so in that sense he didn't have to do anything. However, it's also clear that some of MacGregor's - it's also clear that MacGregor was not completely informed about the sequence of events in 1899 and 1900. He talks in his report about the history of the situation and the history that he is referring to is in 1872. He does not refer to anything that's happened in 1900, to any of the actions of his predecessor, Governor Sir Henry McCallum, and frankly I think there were people around him who knew the difference, people around him who could have said something. Now, there is no question that Governor MacGregor was regarded in Newfoundland as being a little bit of an interferer.

[99]          Cuff said that Dawe, the Minister of Agriculture and Mines in 1900 specifically responded to a query from Governor McCallum, using the word "reservation" saying that they didn't have to worry about "this timber lease or whatever, it is 14 miles from the reserve". Cuff then suggests that Governor MacGregor assumed that the Plan of Indian Settlement - Bay D'Espoir included in his report was made "in 1872 or something". He also stated that Archbishop Howley used the word "Reserve" in referring to the Mi'kmaqs at Conne River. Cuff stated further that Sir Charles Alexander Harris was Governor of Newfoundland from 1917 probably until 1923 or 1924. He stated further that that Governor contributed an article to a publication called "The Native Races of the Empire" which described the Beothuc and the Mi'kmaq and in that article referred to the Mi'kmaq reservation being at Conne River. Cuff also stated that there was no legislation governing how one would grant land to Indians and establish reservations, et cetera. There was also no Indian Act in Newfoundland. He said:

Of course, there was no Indian Act in Canada at the time. I mean that comes later but we were not a part of Canada. I think the Surveyor General's office did - well, like the civil service always did, they kicked it around and they figured out the best thing they could do. And in this instance they issued a series of Licenses of Occupation.

[100]        Cuff further stated that there was no other place in Newfoundland, besides the Conne River area, where a group of people was given a block number of Licenses of Occupation. With respect to why the Special Grant was removed from the Special Grant Books to the Licenses of Occupation Cuff said:

As a historian, no, I didn't come up with anything that satisfied me as an explanation of why this was happening. I know, as a historian, I know a lot of the people who were involved in this. I know the politics of a lot of the people who were involved in this. I know the general situation regarding timber licenses in Bay D'Espoir in the early 1900's and I can make a couple of guesses, but only one of them would be right and who knows if even one of them would be right. But I certainly do believe that it had to do with politics, it had to do with political situations and it had to do with the question of control really over the land in Bay D'Espoir, which at this point in history, the turn of the century, was becoming a matter of some concern. ... because there were tremendous amounts of timber down there and the elite of Newfoundland were speculating heavily on timber licenses, including Members of Cabinet, high-ranking civil servants, all that kind of people. There was a lot of miscellaneous "hanky-panky" going on with respect to timber licenses. The other thing is that very shortly after that they began a series of proposals to develop Bay D'Espoir as a pulp and paper centre which never took place but which also related to the speculation of land down that way.

[101]        Cuff also made the point that no thinking person would expect an Indian Reserve and legislative policies in 19th century Canada to correspond to Newfoundland policy. He stated that Newfoundland was not part of Canada but was a separate dominion.

[102]        Cuff then described the structure of governments in Newfoundland. He said that in 1870 Newfoundland had had responsible government for 15 years. A Head of State, in lieu of Her Majesty, was the Governor. He was appointed by the Colonial Office in England. He would have had a House of Assembly which was elected. There would have been a Prime Minister or Premier, the terms being used interchangeably, who was the head of the largest party in the House and who would have formed the cabinet. The Executive Council would have been the Governor in Council, that is the cabinet. The Governor would have been included as an active member of the Council, in addition to the Legislative Council which was an Upper House. To review, Cuff stated that generally the cabinet would consist of the Governor, the Premier, the President of the Legislative Council and the heads of the major departments.

[103]        Cuff said also that the issue of Licenses of Occupation in 1872 was not consistent with the way in which the Department was treating white settlers stating that the manner in which the surveyor made a request for a grant of land to the Indians was not consistent with the way the surveyor treated white settlers in Newfoundland. He stated that the Special Grant of 1899 or 1900 was not consistent with the way white settlers were treated, there being no bands or tribes of white settlers. He said that it seemed clear from the sequence of events that the issuing of Licenses of Occupation was a response to the Minute of Council in 1870 directing the Surveyor General to put into effect a grant of land for the Indians.

[104]        In conclusion, Cuff said:

Well, there's no question in my mind that a Reserve had been established in Conne River in the sense that it was land set aside for the use of a band of people, of Mi'kmaq people. It was a Reserve in that there were defined boundaries to it. The Balfour plan produced in 1899 or 1900 establishes what, you know, with a fair degree of precision, what the boundaries of this piece of land was, what the boundaries of this Reserve was. I think that the justification in calling it an Indian Reserve or an Indian Reservation comes from the Special Grant of 1899, 1900, Indian Reservation at Conne River, from the Balfour plan which is, its filing title on the back is "Indian Reservation Conne River". It contains that inset map showing the sawmills which show sawmills owned by John E. Lake in relation to the Indian Reservation. I think the fact that surveyors were using the term "Reserve", "Reservation", "Indian Territory", demonstrates clearly that in the minds of the Department of Agriculture and Mines, under whose authority this whole question came, there is something very different at Conne River than there was anywhere else in Newfoundland. There was in fact an Indian Reservation. There was in fact Indian territory.

[105]        On cross-examination Cuff said, with respect to the existence of the Reserve, that certainly the significant date was some time in 1899 or 1900. He said that the Licenses of Occupation of 1872 were part and parcel of the process. He then said that it was a sequence of events beginning with the Mi'kmaq approaching the Governor in August, 1899 and also involved the entrance of folio 360 in Volume I of Special Grants for an Indian Reservation or an Indian Arm Reservation.

[106]        Respondent's counsel referred to Governor McCallum's memorandum to the Honourable Colonial Secretary which read in part:

The Premier was with me when the Indians complained of Mr. Lake having a mill on what they considered their Reservation.

[107]        This was written on January 30, 1900, four days after the registration of Special Grant 361, the special grant said to create an Indian Reservation having been entered in the Special Grants Register before that date. Counsel then suggested to Cuff that if something significant had been done in Special Grants before January 26, 1900 the Governor would not, a mere four days later, be referring to the Reserve or Reservation as what the Indians considered it to be but now would be referring to a Reserve which had just been created or something to that effect. Cuff's response was that it was possible but that he also could interpret the Governor's words as referring to an event in August, 1899 where the Indians approached him and approached the Premier, Sir James Winter, and complained or Mr. Lake having a mill on what they considered their Reservation.

[108]        Cuff said that he could not conclude that a Reserve could have been created by the Executive Committee without any kind of record because "there's an awful lot of records that we don't have". Cuff also said that Murray never used the term "Reservation" or "Reserve" but referred only to Indian inhabitants of Conne River claim for land. He stated further that those terms did not appear in the Executive Council Minutes which used the term "Grant of Land to the Indians". He also said that the words did not appear in any of the 17 Licenses of Occupation issued in 1872.

[109]        Cuff agreed with Respondent's counsel respecting "Reserve" or "Reservation" as follows:

Q.... any of the documents of the day, 1872, you know, years prior and years going forward until early 1900 - sorry, you mentioned maybe 1899 with the Balfour plan ... apart from that, nothing for years and years and years, upwards of almost thirty years from the government even mentioning Reserves or Reservations. Correct?

A.             Yes.

[110]        Cuff said that if there was a Reserve one would presume that there would have been a person in government whose job it was to deal with Indians or deal with reservations. He then said that there certainly was nobody whose job it was "to keep an eye" on Conne River. Cuff then agreed with Respondent's counsel that nothing on the Licenses of Occupation identified those named therein as a Mi'kmaq of Newfoundland or a native of Newfoundland and stated that the word "Indian" is only used in "Indian Village Point". In respect to Respondent's counsel's query about the removal of the special grant from the Special Grants Register to the Licenses of Occupation Volume the following exchange took place:

Q.             So, if someone was trying to hide it, they are doing a pretty poor job of hiding it, aren't they?

A.             If someone was trying to hide it, destruction would be the matter that suggested itself to me.

[111]        With respect to the 360 page moved to the Licenses of Occupation Volume described by Cuff as a Special Grant, he said that it was a map of Conne River and that the only name shown on it was George Hoskins, that no other names including names of the Licenses of Occupation were shown on it and that the term "Reserve" or "Reservation" was not shown anywhere on the document. It is Cuff's speculation on the reason for George Hoskins' name alone appearing on Plan 360 that it would be connected with the original survey by Alexander Murray, Murray having talked about surveying a plot or something for Hoskins. Cuff suggested that the map may have been prepared from Murray's notes which were made in 1870 but could not say when the map was created except that it was at some point before January 26, 1900. Cuff said further that he had not found any special grant consisting only of a simple drawing such as the plan or map in the 360 document but had found a couple of others which consisted of a map but with other documents, "a letter for instance from the Minister attached to the map". Then the following exchange took place:

Q.             ... your theory, as I understand it, Mr. Cuff, turns on the fact that, in your view, this document with 360 on it was filed in Special Grants some time in the, what we call the bracket period, correct?

A.             Yes. It's certainly a crucial part of the theory.

Q.             Yes, okay. And the theory - and the bracket period of course is, runs from late August, as we discussed, of 1899?

A.             4th of August.

Q.             Thank you. To 26 January, 1900, correct?

A.             Yes.

Q.             Okay. Now, does your theory give any insight or as to why a little map prepared, reasonable assumption, 1871, showing only George Hoskins' name on it would be filed in the fall of 1899? Why that document and not any other, Balfour plan or otherwise?

A.             I don't have a theory that offers a full and complete answer to that question. As I said, just right off the bat what occurs to me is that it fit ...

Q.             It's the size thing?

A.             ... and the Balfour plan did not.

[112]        Cuff then said that he had no problem accepting the fact that the smaller map was a pre-existing map, that the Department of Agriculture and Mines already had and it went in without any text or anything else. In response to a suggestion that the most reasonable interpretation of the crossing out of the index was evidence of someone believing a mistake had been made, Cuff said:

It's one of the possible interpretations, yes.

[113]        Cuff then said, with respect to a suggestion that a mistake had been made in the index by a relatively junior level clerk:

I would not rule that out, I would not totally rule out that interpretation. It would not be consistent with the references that one sees in the years succeeding to "reserve" and "reservation".

[114]        Cuff also said that it was unusual for the map not to show at least the name of a deputy surveyor.

[115]        Respondent's counsel then referred Cuff to a grant in the Special Grants Volume I which was signed by James Crowdy who was "at least at times the Colonial Secretary". Also, below that was:

EXAMD

sgd

E.M. Archibald

H.M. ATTY GENL

Further, document 359, in that register, was a grant signed:

Arthur Mews

Dep. Colonial Secretary

Under that was signed:

Thos. C.Duder

Minister of Agriculture and Mines

[116]        The next document referred to as document 361 was signed as having been examined by J.S. Winter, Minister of Justice and signed by Henry McCallum who was the Governor.

[117]        In response to counsel's suggestion that respecting the origin of the Balfour plan the Governor came back from his trip where he met the Mi'kmaq and requested that a map be prepared, Cuff said:

It's the best explanation that fits the facts. I mean, we can date the map through one method. We have evidence that the question of the Conne River Mi'kmaq and their claims for a reservation had come up so it's certainly the most plausible explanation.

[118]        Cuff agreed with Respondent's counsel that the Crown Lands Act, 1884 of Newfoundland to which Murray had greatly contributed, contained nothing with respect to Indians or Indian lands or Reserves.

[119]        Subsequent evidence established that J.P. Howley was regarded in government circles as the individual most familiar with the Mi'kmaq from his years of geological fieldwork and that he had visited the Conne River area with Governor MacGregor in 1908. He was the Geological Survey head in Newfoundland. Cuff said that he would expect Howley to be aware of something significant happening with respect to the status of the lands of Conne River in 1899 or 1900. In response to a request from a missionary to the Secretary of the Governor of Newfoundland on March 12, 1902 to have information on the Mi'kmaq Indians of Newfoundland, Howley, to whom the Governor's Secretary had passed the letter request made no reference to a grant or a Reserve or a Reservation being created in 1900. Cuff's explanation of that absence was that he was not surprised because Howley saw himself first and foremost as a scientist and secondly as a civil servant and that if the Reservation or Conne River was in any way politically related he would not refer to it.

[120]        He said that Sir Cavendish Boyle replaced Governor McCallum in 1901 and was succeeded by Governor MacGregor in 1907. He said that he saw no correspondence or indication from Governor Boyle or Ministers of the Crown during his tenure using or reflecting the terms "Indian Reserve" or "Indian Reservation" in connection with Conne River. Cuff also said he found no such reference in Governor MacGregor's materials.

[121]        Cuff also said, with respect to a letter from Governor MacGregor to Howley dated October 13, 1908 that there was no record of Howley writing back and telling him that he had left something out. He said further that a similar letter had been sent by Governor MacGregor to the Right Honourable Sir Robert Bond on October 13, 1908 and that there was no record of Bond writing back and advising that he had left something out - i.e. the 1899/1900 special grant. Also, with respect to a letter from Governor MacGregor on the same date to The Honourable J.A. Clift, K.C., Minister of Agriculture and Mines, Cuff said that he was aware of no correspondence from Clift to Governor MacGregor. Cuff also agreed with Respondent's counsel's suggestion that there was no mention in Governor MacGregor's report of anything having happened in 1899 or 1900 with respect to the status of any alleged Reserve.

Evidence of Respondent's Witness, Stephen Patterson:

[122]        Stephen Patterson ("Patterson"), an historian, on behalf of the Respondent, was qualified as an expert witness for the purpose of giving opinion evidence regarding British Colonial history to 1867 with particular attention to Nova Scotia and New Brunswick and also with particular attention to contacts and encounters between colonial authorities and aboriginals in the Atlantic region. He said in his report that Nova Scotia and New Brunswick had far more dealing with aboriginal inhabitants than did Newfoundland. He said that both Nova Scotia and New Brunswick interpreted British Imperial policy narrowly, assuming that natives were entitled to lands that they traditionally occupied and used and that it was the duty of Crown officials to identify those lands and set them off and take steps to protect them. He said that it was the position of Crown officials that the Mi'kmaq in Newfoundland from the 1760's onward were not indigenous to Newfoundland and that whatever rights they enjoyed as aboriginal people were rights that must be exercised in the territories whence they came. He stated that the Secretary of the Board of Trade expressed the official imperial view that Mi'kmaq sailors off Newfoundland had no right to special consideration outside of Nova Scotia, the colony where they belonged, and that they should apply for their needs to the Governor of Nova Scotia. He stated that in 1861 the Nova Scotia Commissioner of Indian Affairs reported to the Governor that the number of Mi'kmaq residing in Cape Breton was around 400 and about "seventy are to be found in Newfoundland". He said it appeared clear that even as late as 1643 Newfoundland Mi'kmaq were seen as belonging to Nova Scotia.

[123]        The next part of his report reads as follows:

Since Licenses of Occupation were used in Newfoundland in the 1870s to place settlers on land, it would appear that authorities viewed the Mi'kmaq as settlers and allowed them land using the same instrument they used for non-natives. If it had been the intent of government to create Indian Reserves, or to use Licenses of Occupation for the specific purpose of creating Reserves of the sort that existed in New Brunswick or Nova Scotia, one would expect to find references to this intention in the legislation. But in fact, Newfoundland legislation respecting Crown lands as amended in 1860 provides for the reserve or setting apart of public lands for certain public purposes such as schools, churches, marketplaces, and the like, and says nothing about the reserve for Indians. Moreover, the 1860 legislation providing for Licenses of Occupation provides for the issuance of grants in fee after five years providing conditions of cultivation are fulfilled, and makes no special arrangement for Indians. The provision implies that the license was meant to encourage settlers; giving such licenses to Mi'kmaq individuals suggests that government saw them as settlers whose needs should be met within the forms and procedures at hand, not that the Mi'kmaq were a people with aboriginal rights in Newfoundland, whose rights must be protected by the creation of special reserved land.

[124]        Patterson also said that:

... the documentary material I'd seen in the 1760s were that there were no permanent communities of the Mi'kmaq in Newfoundland in 1760 and '61, so therefore they'd have to be somewhere and that somewhere would be in the traditional band locations in Nova Scotia and all of those had treaties, so that the treaties would continue to have effect and impact on the Mi'kmaq. They have submitted to the British Crown in these treaties.

[125]        He testified that Murray, born in Scotland in 1810, emigrated to Canada (Ontario) in 1836. He assisted William Edmond Logan until 1864 in the geological mapping of Upper and Lower Canada. He said that Murray was familiar with Canadian land tenure and surveying practices and also with Indian and Indian Reserves. He stated also that in 1864 he moved to Newfoundland to become the first Director of the Geological Survey of Newfoundland and was given the task of preparing the first completed geological map of Newfoundland. Patterson said that in so doing, he travelled across the island and prepared yearly reports. Further, he testified that in 1868 Murray hired James P. Howley as an assistant and they hired Mi'kmaq guides to help them in surveying the interior.

Evidence of Respondent's Witness, Dr. von Gernet:

[126]        Dr. von Gernet ("von Gernet"), who was qualified as an expert, appearing for the Respondent, is an anthropologist specializing in the use of archaeological evidence, written documents and oral history or tradition to reconstruct the past cultures of aboriginal people, including the Mi'kmaq, as well as the history of contact between aboriginal people and the European newcomers throughout Canada. He said of Murray's 1869 and 1870 reports:

Well, the reports are rich in detail when it comes to many observations. But what is noticeably missing is an emphasis or any mention, really, of the matters relating to the Mi'kmaq parcel of land that was being surveyed. There was no mention of the events that took place in 1869 and in 1870. These reports are silent on those matters.

[127]        von Gernet also said that Murray had an extensive knowledge of the land tenure system elsewhere in Canada and had recommended that similar matters be adopted in Newfoundland. He also said that in terms of the land tenure processes of the day, Murray was obviously familiar with the way the system worked in Upper Canada having been a geological surveyor there for many, many years and that he understood that there must be some kind of protection for these Reserves. He added that the only protection that could be afforded to land set aside for Indians was having separate legislation "in place" and a separate system of rules and regulations which in essence removes the power to have fee simple. He said that if you grant "any lands to Indians", particularly if "you grant them to individuals" or provide the opportunity for individuals to obtain the fee simple title to lands "you are not", in essence, protecting these lands at all because if an individual has the power to dispose of them then it defeats the whole purpose of a Reserve. He added:

That's why throughout North America the concept of Reserve is inextricably linked to a system of land tenure that is distinct from "what you find" in statutes relating to aboriginal peoples. It was believed that the best way, and indeed the only way you could "protect Indian Reserves" from encroachment was to remove the possibility of having grants and fee simples. In other words, always investing titles in the Crown so that Indian use of the lands would be in the nature of usufruct, as opposed to our fee simple.

[128]        von Gernet, when questioned on this point, said:

In my report I referred to that possibility and I said Mr. Murray may merely - well, I can't remember, something like Murray would merely be attempting to Canadianize the land settlements. It's clear from other writings relating to Murray that he had a particular interest in encouraging agriculture and in applying what he had learned in Canada, to Newfoundland.

[129]        von Gernet referred to a loose piece of paper in Murray's 1869 field book saying that it had not been written by Murray and did not have Murray's spelling and that it contained a list of 25 names which were clearly Mi'kmaq names. This piece of paper had a notation which appears to refer to 25 families. The first entry in Murray's 1869 notebook was September 13, 1869 and included a number of names. von Gernet said, with respect to these two lists:

The two lists are on the whole, quite similar and indeed are 25. .... I noticed actually that in neither list was there any mention of any mention of Reserve or reservation.

[130]        He stated that:

... the list is started with an entry "Indian Inhabitants of Conne River" - sorry, as Conne/for land" and then there was a list of 25 names ...

[131]        von Gernet said that many names on the list appeared later on the Licenses of Occupation. He testified further that, while conducting his shoreline survey, Murray referred to George Hoskins' house or home, and was styled by Murray as non-aboriginal.

[132]        von Gernet said:

And the extraordinary thing about this whole affair is that instead of actually mapping out a Reserve or even a grant of land what he did in 1870 is he focused on a particular lot that happened to belong to a non-aboriginal person, and he surveyed that lot specifically. This is the lot of Mr. Hoskins.

My suspicion, and it is confirmed, I believe, by the documentary evidence is that he only met Hoskins in 1870. He had learned his name the previous year but had misspelled it. By 1870 he knew the correct spelling and it seems he had, in fact, been in contact with Mr. Hoskins.

By 1870 he appears to have recognized that the situation on the ground was a little more complex than he had originally - than what he had originally been led to believe. It would not be so simple to create a block of contiguous lots if there were, in fact, non-aboriginal interests within that block of lots. And so for some reason or another, and this may remain obscure, he looked at this one lot and I believe that a map of some sort was produced at that time. Whether it is the infamous 360 map or not, I don't know. It may be that the 360 map was based on something from the 1870s because it can't be coincidental that Hoskins is the only name on that map. I think there is no question that the two are related in some way documentarily.

So generally, the conclusion that I reached was that while Murray had ample opportunity to adopt what he had learned in Upper Canada and recommend that either statute or some other form of legislation or some kind of system be adopted to account for an Indian presence on the Island, he did not do so. He did it with other aspects of land tenure but not with Indians. Instead he basically just followed the Crown Lands Statute which was a generic one and we end up in 1872 with a series of 17 Licenses of Occupation.

[133]        von Gernet, having earlier expressed his clear opinion that Murray knew of the 1870 Executive Council Minutes, said:

Well, the Minutes suggest that some type of survey should be conducted.

Murray doesn't seem to have surveyed a grant of land. What he had done is he had earlier mapped out a section of the waterfront and divided it into lots that matched the general parameters of an existing statute. So when he went back into the field he didn't really act on the Council's recommendation in any further way other than to focus on a particular lot that was associated with the non Mi'kmaq person.

[134]        von Gernet, speaking of the move of the 360 page to the Licenses of Occupation, said:

I don't think anything really turns on it. Quite frankly, I think far too much has been made of this already. The only thing that is certain is that a map showing the general parameters and lots of the parcel and mapped out by Murray in 1869 and 1870 are found here. They were entered here at some point in time. They were removed from this position and placed with the Licenses of Occupation, which is more properly where they belong, given the sequence of events and the complete lack of any evidence that there was accompanying documentation with this map. The map itself, of course, has George Hoskins' name on it as the only name and it's very difficult for me to understand why or how that could be construed as an Indian reservation or a special grant. George Hoskins, as I indicated in previous testimony, was a non-Mi'kmaq who was singled out by Murray in 1870 and whose lot was surveyed at that time. This map clearly belongs to that era. Whether it was actually done by Murray or not I have no knowledge, or whether it was copied from something Murray had done or whether it was a map produced as a result of scrutinizing his notebook, I have no knowledge of that. But it clearly belongs to that era. It cannot be coincidental that Hoskins is the one that Murray went back to survey. And here he is, the only individual on a map of Conne River and then the next thing we find is the map is associated with the Licenses of Occupation. And in the Licenses of Occupation the only license that is not given is to that lot.

[135]        Respecting the Licenses of Occupation, twelve of the names found on the licenses are listed in Murray's 1869 field book. The first page of each license was signed by Governor Stephen J. Hill, Joseph Little, Attorney General, and Joseph L. Noonan, Colonial Secretary. All three of them were members of the Executive Council of the Government of Newfoundland at the time the licenses were signed. They sat on the Executive Council in 1870 when it passed the minutes approving the propriety of Murray's application on behalf of the Conne River Indians. There are two volumes containing Licenses of Occupation at the Crown Land Registry in Newfoundland. All licenses were registered between December 7, 1867 and December 14, 1889. The 17 Licenses of Occupation granted in1870 to inhabitants of Conne River are similar to all the other Licenses of Occupation. von Gernet said:

They are all the same. They just fill in different names and in some cases there is a slight alteration in the wording but on the whole these are the same forms with the same conditions.

[136]        Some of the Licenses of Occupation excluding the 17 Conne River licenses, evolved into issuances of grants in fee simple.

[137]        von Gernet said:

I mean, all of these individuals are signing off on these Licenses of Occupation. What I would have expected would have been an Order in Council specifically setting apart a Reserve and then this Reserve would have been held in common. Instead, what we have are Licenses of Occupation signed off by the same individuals who gave the Order to begin with two years earlier.

[138]        Other evidence established that an Act passed on April 29, 1844 was entitled:

An Act to make provision for the Disposal and Sale of ungranted and unoccupied Crown Lands within the Island of Newfoundland and its Dependencies and for other purposes

It provided for the sale of Crown Lands and the issue of grants of such land in fee simple.

[139]        von Gernet then referred to the following statute passed on May 14, 1860 and entitled:

An Act to amend an Act passed in the Seventh Year of Her Majesty's Reign, entitled "An Act to make Provision for the Disposal and Sale of Ungranted and Unoccupied Crown Lands within the Island of Newfoundland and its Dependencies and for other Purposes" and to make provision for Granting Mining Licenses, Leases and Grants of Mineral Lands and for other Purposes.

It provided that it would be lawful for the Governor, with the advice of the Council, to issue free Licenses of Occupation for a term not exceeding five years,

Of any ungranted and unoccupied Virginous Lands, to such Person or Persons as shall be desirous of permanently settling and cultivating the same, in quantities not exceeding Fifty Acres for each Settler ....

It also provides that it would be lawful for the Governor to issue grants in fee to such persons as shall have occupied and settled on the land for a period of five years after the date of the license and have cultivated two acres of the land.

[140]        von Gernet referred to an 1896 petition resulting, on October 30, 1897 in George Michael Collier, a non-aboriginal, receiving from the Colonial Government a Grant of Land in fee simple located on the land described by the Appellant as a Reserve. In 1916 Collier sold this lot to a nephew, George Collier, who was moving his family, including a seven year old son, John Collier, to St. Alban's so that, following the advice of their priest, he could attend school regularly. John Collier's parents are not aboriginal. In 1986, with a view to creating a Reserve at Conne River, the Federal Government purchased that lot.

[141]        von Gernet's interpretation follows:

What interested me about this particular petition is that in the column where it says: "Whether any other person has any other claim on the land" there is an entry "none". And in the entire petition there is no reference to an Indian Reserve, there is no reference to even the Licenses of Occupation or a grant.

Hadden had been in the field in, I believe it was August, as he notes in his surveyor's report, and he had measured off this particular parcel. So he was familiar with the situation on the ground. And while he was in Conne River in 1896 he had done extensive surveying and had surveyed for the various petitioners who were there. I suspect that he was in the Conne River area in 1896 because the whole issue of timber and sawmills was becoming paramount and the surveyor had to go in and check out the situation on the ground. This sort of grant was entirely inconsistent with the concept of a Reserve.

...

The whole definition of a Reserve excludes the possibility of the Europeans having an interest, whether it be a land fee simple interest or in many cases even an occupation interest. Even resource extractions would be rare. The reason why this was possible in Conne River in 1896 was because there was no Indian Reserve there in 1896. And because there were no statutes on the books, unlike elsewhere in North America which precluded this scenario from happening, and what's fascinating about the Collier grant is that in reviewing all of the literature on the Collier occupation of this particular parcel I found no evidence whatsoever of any kind in almost 90 years of any strong protest or any kind of protest by the Mi'kmaq at Conne River to the presence of Collier on this parcel of land.

And of course, when the Reserve was actually created by Order in Council in 1987 this matter was still unresolved and of course the government actually had to buy it, as I recall, from the literature I reviewed in relation to the creation of the 1987 reservation. And so before they could actually establish a reservation they had to buy Mr. Collier's land.

On June 28, 1984 an Order in Council declaring a Body of Indians at Conne River, Newfoundland, to be a Band of Indians for the purposes of the Indian Act. By Order in Council of June 25, 1987 the lands described therein were set apart "for the use and benefit of the Miawpukek Band of Indians in the Province of Newfoundland, to remain as the Samiajij Miawpukek Indian Reserve.

Evidence of Respondent's Witness, Gordon Isaacs:

[142]        Gordon Isaacs ("Isaacs"), a surveyor and expert witness produced by the Respondent said that on September 14, 1869 Murray, while still at Conne River completed his final calculations for the survey of the shoreline. Isaacs said in the addendum to surveyor's report:

During my research at the Crown Lands Registry in June, 1998 it was discovered that the smaller version of the settlement plan, mentioned above, was previously located in the Register of Special Grants book where it was registered between a lease document dated 1899 and a grant document dated 1900. The only lot on this plan which shows an occupant or owners' (sic) name is the one showing Geo. Hoskins. There are actually no lot numbers shown on this plan, however, Hoskins (sic) name is on the 6^th lot from the west boundary of the settlement, which relates to lot #6 on the current version of the settlement plan.

After reviewing the contents of Murray's field books and plotting them on the cadastral map ... it is apparent that, with the exception of the lot surveyed for George Hoskins, Murray did not survey any of the other lot boundaries or even of the perimeter boundaries as shown on The Plan of Indian Settlement. He was only at Conne River for two days surveying the shoreline and placing at least one and possibly two wooden posts marking the end points of the settlement limits along the shoreline. On September 16^th Murray headed in the country doing topographic surveys and mineral explorations. He returned to Conne River on October 1, 1869 and there were no further surveys carried out prior to returning to St. John's.

[143]        He then said that Murray was back at Conne River on July 11, 1870 and surveyed a lot for George Hoskins (his name previously having been recorded as Geo. Erskine). However, ten months later he was using this new spelling.

... this is the only individual lot surveyed, that I am aware of, which Murray carried out at Conne River and to my knowledge no license or grant was ever issued based upon this survey.

[144]        He then said that there were undated pages at the back of Murray's 1869 field book which show what appears to be his attempt to design a settlement lay-out based upon his base line measurement and shoreline survey. He stated there was one page showing lot numbers with what appeared to be acreages written beside them. He said this indicated that Murray was attempting to calculate individual lots for the settlement area but there was no detailed sketch in his field book definitive of the settlement plan design. He then said it was normal for surveyor to include sketches of their work in their field notes and that Murray's 1870 field book indicated a similar habit of making drawings of his surveys while in the field. Isaacs also wrote in his report addendum:

... in the 1879 field book Murray makes notes pertaining to errors that he has found on the new maps that he has taken with him from in the field. I guess the clearest would be Murray's review of maps prepared from his earlier surveyors which have been compiled by a draughtsman. This was most likely his mode of operation i.e. give his field notes to a government draughtsman to compile over the winter months. This is also the method which was most likely used in preparation of the Conne River Settlement Map. The smaller version of the settlement plan which was recorded between 1899 & 1900 at the Crown Lands Registry Office in St. Johns (sic) and found in June, 1998 was most likely a rendition of the settlement plan based upon Murray's notes and prepared using the above described methodology. In my opinion, Murray's survey of the shoreline and other topographic features together with a starting point marked by a wooden post and the calculation of a base line measurement was sufficient information to allow for preparation of a master plan for the Indian Settlement at Conne River.

[145]        Isaacs said, with respect to the 360 plan:

The baseline that's shown on this plan is the same baseline as Murray calculated in 1869 as I've just discussed and it actually was used as the base - the southern boundary of the plan that was developed by Balfour. It's parallel to that baseline. The interesting thing to note is that Balfour's plan doesn't show the baseline where this plan does, which would indicate to me that this is probably more close to what Murray would have prepared than what Balfour would have prepared.

and also:

... any information on the plan such as names or lot numbers would normally indicate that there is an intention to deal with that lot in some way, shape or form. It may recognize some kind of an occupancy on the lot, you know, but in this case here where one stands out, I would say that that particular purpose for that plan there was to show that that lot was surveyed.

Evidence of Respondent's Witness, Wayne Boggan:

[146]        Wayne Boggan ("Boggan"), who had been with the Crown Lands Division for 25 years and had for ten months been Acting Director of Crown Lands, with respect to document 360 in the Volume of Special Grants, said:

It would simply convey information relating to what was on the Plan. ... There was nothing there. All that's in the license volume in terms of the plan is a plan showing lots at Conne Arm. It seems to be somewhat inconsistent with the entry that's in Special Volume I which says "Indian Arm Reservation".

[147]        This was followed by this exchange:

Q. Okay. Mr. Cuff has testified as to his opinion that this, this document filed there and indexed in the way it was is some indication of a Reserve or reservation having been created at about this period. My question to you is do you see anything on that plan or that sketch as you also called it that indicates to you, as a Crown Lands person, any creation of a Reserve or reservation?

A. There is nothing on the sketch or plan that would indicate that, that I can see, I think it would be difficult to create such a reservation on the basis of such a sketch.

Q. Now it appears that ultimately that document identified as 360 was relocated to Volume I of the Licenses of Occupation.

A. That appears to be the case, yes.

Q. As you've already indicated, and it was placed opposite the Maurice Louis License of Occupation, correct?

A. Yes.

Q. And of course, the Maurice Louis License of Occupation, as you've already seen, is the first of what are 17 licenses filed sequentially all dealing with the Conne area, correct?

A. Yes.

Q. All right. Now does - again, on the basis of your experience and knowledge from Crown Land Registry work, do you take any meaning or are you able to take any meaning from the fact that it was put - that that document 360 was put adjacent to those Licenses of Occupation?

A. The only meaning that I can take is that someone, some other person in the registry, when finding this plan or sketch in the Special Grants Volume, came to the realization that it didn't belong there, that it belonged with the Licenses of Occupation and re-filed it accordingly and made the notation.

[148]        Boggan then said that if he had found document 360 in the Special Grants Volume he thought he would have made reference to the licenses assuming that he had knowledge that there were Licenses of Occupation. Specifically, he said:

Then I would certainly make that reference and that connection, nothing else being in the volume to indicate otherwise. That is in Special Volume I. This is the only sketch filed in Special Volume I, isolated by itself, referencing to Conne Arm and assume to my knowledge it's Conne River and of the licenses, I would certainly make that clear in the volume as the person has done, by making that notation ... I think I would have moved it.

Supplementary Report and Additional Evidence of Appellant's Witness, Cuff:

[149]        After the close of the case by both parties, Cuff, Appellant's expert historian, discovered further evidence and, upon the consent of Respondent's counsel, the presentation of such evidence was permitted. Essentially, Cuff had discovered a plan which could be inferred to have been prepared either by Geological Surveyor James P. Howley in 1883 or from field surveys he conducted in that year. This locates an "Indian Reserve" and "Indians" in the Village of Great Codroy. He said that very shortly after 1883 the Mi'kmaq are presumed to have largely abandoned this village.

[150]        Cuff then referred to a plan or township survey of the north side of Freshwater Bay, Bonavista Bay, dated 1899. It identifies a tract of land as a "Indian Reserve" in two different lettering styles. The words "Indian Reserve" had been crossed out and a note appended, "Crown Land .... and Ungranted Crown Land". In his report Cuff said:

It is my suggestion that despite the subsequent disappearance of the Codroy Bay and Middle Brook Bands and villages the Codroy Valley and Gambo-Middle Brook plans have significant usages of the term "Indian Reserve". Prior to the events of 1900, in that they demonstrate that Crown Lands Surveyors were familiar with the concept of Indian Reserve including:

1.              Lands in which the Mi'kmaq had a historic interest ... (Middle Brook also having been the sight of a historic Mi'kmaq village)

2.              Lands which Mi'kmaq were recognized as holding in a different, though still recognized, manner than those held by settlers of European descent.

3.              Lands which were held in a different manner than those held by individuals.

4.              Lands which were held in common by Mi'kmaq bands.

5.              Lands which Crown official s recognized as set aside from the standard Crown Grants process and procedure, for the use and benefit of Mi'kmaq bands.

[151]        Cuff then referred to a document titled "application of Reuben Leuis" incorporating a diagram prepared by deputy surveyor W.H. Taylor in March, 1907 and copies of two letters dated January, 1900 and a letter from John E. Lake dated May, 1907. The first letter to Mr. J. Bernard at Conne River from Thomas C. Duder, Minister of Agriculture and Mines stated that he had omitted in his previous letter to mention that nothing could be done respecting grants to the Colliers, which being in fee, must hold good. He suggested that the most likely scenario for Taylor having copied this letter was that he was supplied with it by Chief Reuben Leuis in March 1907 while at Conne River to engage guides to assist him in survey work relating to timber licenses in the southern interior of Newfoundland. The next letter of January 10, 1900 to Chief Joe Bernard from Hugh H. Carter, Private Secretary stated:

I am directed by His Excellency the governor to inform you that he has x [it was explained to the Court that "x" should be read as "asked"] the Government to issue grants for the lands included in the Indian reservation at Conne River instead of licenses and thus he is informed that a letter has been sent you stating that this will be done, except for three lots recently granted to the Colliers.

[152]        Cuff's interpretation of this material is that it raises the likelihood that a question relating to Mi'kmaq land at Conne River arose while Taylor was in the field and that Chief Reuben Leuis had made an approach to Taylor, that Taylor did not see anything radical in the concept of lands reserved for the use of the band and that Chief Leuis was regarded as being in a position of trust with respect to Mi'kmaq lands at Conne River by the 14 families mentioned. Cuff further opined that there was still a concern among the Mi'kmaq about the continued presence of Lake's mill in 1907, that Taylor did not consider it likely that Lake's mill could be removed, and that Taylor did not observe that George Hoskins or any other white settler apart from Lake had any interest in the lands he surveyed at Conne River.

[153]        Cuff then wrote in his report:

I would further suggest that the letters of Duder and Carter in January 1900 are a response to Mi'kmaq complaints, presumably through a delegation headed by Chief Joe Bernard, raised with Governor McCallum in August 1899. The bringing to light of these letters, promising action by the Department of Mines and Agriculture in January 1900 further supports the Appellant's contention that the entering of the Special Grant "Indian Reservation Conne River" during the period August 1899 - January 1900 was a deliberate act.

[154]        Finally, Cuff in that supplementary report, referred to a 14 acre "Indian Reserve" on the north side of Harl's Bay where an historic Mi'kmaq village at Beachy Cove, Plan 406A identifies several tracts which are held by individual Mi'kmaq by Crown Grant. He said that given its situation and limited area, two alternate explanations might be offered for the presence of such a Reserve on the Harl's Bay plan:

1.              That the Reserve had a limited or seasonal communal use, such as a winterhouse.

2.              That the 14 acre plot represents the unalienated residue of an earlier and a larger Reserve.

The Harl's Bay band was reduced in size by 1920 and all of it disappeared during the following decade.

[155]        On cross-examination Cuff said that he had been able to find no grants or other instruments with respect to the two aforesaid plans confirming or creating Reserves. He said that he did not think that a government employee such as an official in the Crown Lands Registry had the authority to create an Indian Reserve simply by writing Indian Reserve on a map. He then agreed with counsel that the fact that "Indian Reserve" was written on those plans did not create a Reserve, "absent anything else".

[156]        Cuff also said:

I've taken it as an indication that the words "Indian Reserve" were not being used so loosely as to be meaningless; but there was an understanding that in using the words "Indian Reserve" they were referring to a plot of land with historic association with the Indians in which the Indians had some collective right that was worthy of some recognition.

Supplementary Report and Evidence of Respondent's Witness, von Gernet in response to Cuff's evidence:

[157]        von Gernet's supplementary report is substantially reproduced as follows:

...

Recall that at the time of Alexander Murray's 1869 survey a non-Aboriginal named Geo. Erskins had a building on the subject lands. On July 11 of the following year - after the Executive Council meeting and presumably with full knowledge of the decisions made at the time - Murray returned to Conne River. At some point he probably realized that the situation on the ground was more complex than what he had originally been led to believe. A series of individual, contiguous lots for the Mi'kmaq was not possible since there was an extant non-Aboriginal interest in at least some of the lands. Indeed, instead of mapping out an Indian reserve, Murray surveyed a lot for Mr. George Hoskins who I take to be the same individual as Geo. Erskins. The lot is identified on what in the present proceedings has come to be referred to as the "360 Plan". This sketch map on which only Mr. Hoskins' name appears may at one time have been inserted in the Register of the Special Grants, although it subsequently appeared in the Licenses of Occupation Register for Crown Lands. The lot was not among the seventeen Licenses of Occupation issued in 1872 pursuant to the Crown Lands Act, 1860 and was deliberately skipped in the process.

The years 1900-1901 saw the emergence of the Lake's mill affair. I noted that this had more to do with lumbering than with Aboriginal reserves. In fact, instead of generating statutes to protect Indian lands as was common elsewhere in Canada, the controversy was soon followed by an Act for the restriction of sawmills.

As I indicated previously, I am of the opinion that the Balfour Plan was drafted specifically to help clarify where Mr. John Lake's sawmills were located on the ground. The plan is essentially a palimpsest that began with Murray's original conception of twenty-five lots configured to conform with the Crown Lands Act. Names were later associated with each lot, even though there are on record only seventeen Licenses of Occupation. More importantly, due to uncertainties, the draughtsman was obliged to place two names on some lots. One such case involves lot number 6 where we read "George Hoskins or Noel Jedore". Another involves lot number 21 where George Collier competes with John Benoit.[8]

[158]        von Gernet then referred to the same two letters described by Cuff as follows:

The new documents include copies of two letters to Chief Joseph Bernard which were written during the period of the Lake's mill affair and the Balfour Plan. The first is dated January 9, 1900 and is signed by Thomas Duder, Minister of Agriculture and Mines.

Sir: -

In my letter of yesterday I omitted to mention that nothing can be done in the matter of the grants to the Colliers which being in fee must hold good. I will thank you to inform me on whose licensed land these grants are situated.

The second letter is dated the following day and is signed by Hugh Carter, Private Secretary of the Governor:

Sir

I am directed by His Excellency the governor to inform you that he has x [it was explained to the Court that "x" should be read as "asked"] the government to issue grants for the lands included in the Indian reservation at Conne River instead of Licenses and thus he is informed that a letter has been sent you stating that this will be done except for 3 lots recently granted to the Colliers ... and which cannot be cancelled.

It seems clear from the evidence that the misnomer "Indian reservation" arose during this period as a description of a series of Licenses of Occupation. As of early 1900 the Mi'kmaq at Conne River still had individual licenses (which had technically lapsed) rather than an Indian reserve in the sense it was normally understood elsewhere in North America. Nevertheless, in a proposal remarkably similar to one made eight years later by his successor, the Governor was requesting the government to convert these licenses into grants.

The fact is that even the conversion of licenses into grants could not be made to resemble a communal reservation. As I stressed throughout my previous testimony, the issuing of grants in fee simple is inimical to the raison d'être of an Indian Reserve. The whole purpose is to protect such lands from the open market by vesting title in the Crown and prohibiting individual ownership. In this case, the subject lands did not resemble an Indian reserve for another reason: they included within them parcels which had fee simple ownership vested in non-Aboriginal individuals. The new documents confirm what Murray must have realized thirty years earlier, that a plan for 25 contiguous lots for the Mi'kmaq could not be realized in the absence of a statutory recognition that Indians had special rights and in light of competing claims to the same lands by non-Mi'kmaq parties. In 1900 nothing could be done to cancel grants issued to non-Mi'kmaq people such as Collier. Not only was there no reserve created, but even the Governor's request to have the licenses converted into grants does not appear to have been operationalized.

There follows von Gernet's description of the 1907 Reuben Leuis Petition:

Included in the recently-discovered materials is an interesting document that appears to be a printed form apparently for the use of any petitioners (Indian or otherwise) who could apply to his Excellency the Governor in Council for certain lands. This Crown Grant Application is undated, but I believe circumstantial evidence allows a reasonable estimate of c. 1907. The application is by "Reuben Leuis" and involves 363 acres of land situated at Conne River. Curiously, the form was not completed and most of the pertinent fill-in-the-blank sections and columns were left empty, including the places for "provisional Approval" and "Approved and Notified." Furthermore, someone has scrawled diagonally (in a manner reminiscent of voiding a negotiable instrument) the following notations: "Cannot be granted. See Plan of Indian Reservation #103. Also Lakes letter enclosed."

An entirely new map which was apparently found associated with the application was drawn in March 1907 by W.H. Taylor. This map shows the parameters of a 363-acre tract "surveyed for R. Leuis, Indian Chief Conne River." Here we find a reference to fourteen Indian families who live on the subject land. Interestingly, a parcel within the tract has the notation "To be reserved for J E Lake".

John Lake's letter of May 30, 1907 has also been preserved:

Dear Sir: -

I find when W.H. Taylor was at Bay D-Espoir this Winter, he measured some land on which is one of my Saw Mills, for some Indians. This land I bought from Mr. George Ausking [Hoskins] who obtained it from Gov. Murray, and lived on it, and cleared it, and occupied it for about 50 yrs, before sold to me. I have occupied it for 12 years, and hold my agreement from Mr. Auskins. Please accept my protest against it being granted to anyone else, as it is mine, and out buildings of the Mill and Dwelling House, wharf, etc. on it, and own five acres of it surrounding the Mills, as specified on the document from Mr. Auskins.

In addition to the application, the map and the Lake letter, the new documents include several loose sheets from what appears to be a field book. Some of the contents seem to relate to the survey done by Taylor in March, 1907, raising the possibility and perhaps even probability that these are pages from his original fieldnotes.

Overall, the material adds significant pieces to the puzzle. First, the existence of this 1907 Application is in and of itself further evidence that an Indian reserve had not as yet been created. After all, why would the Chief petition for lands if the common understanding is that his people already have a reserve?

Secondly, what is immediately striking is that the application apparently includes lots 1 through 7 of the Balfour Plan, as well as additional territories to the south, but ignores lots 8 through 25. One must again ask, if the Balfour Plan really was intended to represent a colonial Indian reserve, how does one explain what happened in 1907?

Thirdly, it seems clear that the application was turned down. While there may have been additional reasons, the ones cited make sense on their own. The "Plan of Indian Reservation #103" I take to be the Balfour Plan which is the only known contemporary map containing both "Indian Reservation" and the number 103. A comparison by a competent official between the application and the Balfour Plan would likely have raised red flags. Among other things, part of the lands applied for had already been divided into seven lots and associated with certain individuals, rather than a collectivity of fourteen families. Only one (#3) was listed as "common". Paradoxically, Reuben Louis, the petitioner himself, was associated with a lot (#25) that was far outside the lands applied for. And then there was the uncertainty surrounding the George Hoskins/Noel Jedore lot (#6).

Evidently, the Leuis application was also turned down on the weight of the Lake letter which reveals a surprising connection with Hoskins. According to Lake, Hoskins had cleared, occupied and lived on the subject lands for a very long time. Lake's estimate of half a century may have been exaggerated, but we do know from independent evidence that Hoskins already had a building on site during Murray's visit in 1869 and that Murray surveyed a lot for him the following year. In any event, in 1895 Lake apparently bought from Hoskins some land - a transaction formalized in a now lost instrument. In the Balfour Plan, Hoskins is associated with lot #6, while Lake's mill is located on the waterfront of the adjacent lot #7. On the other hand, a notation on the Taylor map has the land to be reserved for Lake covering the northern quarters of lots 6 and 7. Whatever the exact bounds of the purchased lands, it is apparent from the letter of May 30 that Lake had erected much more than a waterfront mill. He speaks of outbuildings, a dwelling house, a wharf and five acres of land. We have here a significant non-Aboriginal occupation of the subject lands over a period of at least 38 years, as well as land transactions between private individuals. Both are entirely inconsistent with the concept of an Indian reserve.

In the course of my oral testimony, I noted that it was Governor MacGregor's understanding in 1908 that the land interest of the Mi'kmaq at Conne River took the form of Licenses of Occupation. The Governor wrote his report with the benefit of the Balfour Plan (which likely influenced the use of the term "Reservation"), but at no point did he intimate that a special Indian reserve had been created by the Colonial Government. Instead, he merely noted that, while the conditions of the Licenses of Occupation had not been met, the Government of Newfoundland would not withhold grants, as a matter of grace, if only the Mi'kmaq applied for them. This suggests that the events of 1900 and 1907, as evidenced in the new documents, did nothing to change the status of the subject lands.

Historically, the concept of an Indian reserve was created precisely to overcome most of the problems associated with encroachment by non-Indians. In my view, the fact that in this case no statutory distinctions were made between Indians and non-Indians, the occupation and sale of parcels by non-Aboriginal parties, as well as the competing claims and the uncertainties about who had rights to particular lots is ample demonstration that the subject lands did not constitute an Indian reserve prior to 1987. Had a colonial reserve been in place, these situations would not have arisen. The new evidence only fortifies this view and contains nothing that cases me to alter my original opinions.

[159]        von Gernet, responded to Cuff's supplementary report on "The Colonial Reservation at Conne River" is substantially quoted below:

Respecting Codroy Gambo-Middle Brook - "Indian Reserve" he wrote:

...

In addition to the new materials I discussed in my own supplementary report, Mr. Cuff introduces "other cogent new evidence, which came to light during the attempt to establish the historical context" of the Reuben Leuis application of 1907. These materials, which relate to different times, different places and different issues, do little to illuminate the important application that Mr. Cuff had previously unearthed. Indeed, some of the material has nothing to do with an application for a Crown Grant, and more to do with an issue I addressed during the first phase of trial: the significance of the term "Indian Reserve" or "Indian Reservation".

The first document is a plan of the Codroy Valley which is divided into numbered lots. Some lots are associated with individuals (e.g. Donald Gillis on Lot No. 26), while others are associated with several related individuals (e.g., Thomas Downey, John Downey, and Michael Downey on Lot No. 23). In still other cases, several related individuals are given separate but contiguous lots (e.g. John Hall, Paul Hall, and Mary Hall on Lot Nos. 15, 16 and 17 respectively). One lot (No. 22) has the words "Indians" and "Indian Reserve" associated with it. The most that can be inferred from this evidence is that an unspecified number of "Indians" was treated much like their non-Aboriginal neighbours, the Downeys, who were also assigned a collective lot. The "Indians" were in this instance not assigned individual lots like the Halls of Codroy or the Jeddores of Conne River in Balfour's day. Indeed, the only significant similarity with the Conne River case is the use of the term "Indian Reserve".

Yet, did this so-called "Indian Reserve" actually exist aside from its appearance as a regular lot among others on a map? Mr. Cuff provides no evidence whatsoever for an Order in Council or other formal mechanism leading to the creation of such a reserve. Much like the Balfour Plan, the map itself neither establishes a reserve nor serves as evidence that a reserve has been or will be established.

Mr. Cuff infers that this "master plan" or "Official Plan Codroy" was prepared either by Geological Surveyor James P. Howley himself, or from field surveys he conducted in 1883. In light of Howley's experience in the Codroy Valley, this certainly seems plausible. ...

...

If the Codroy Valley plan was in fact generated at the time of Howley's survey or shortly thereafter, then it represents an effort by a government official to impose order on a fluid settlement pattern, prevent overlapping claims, and prepare the way for officially sanctioned Crown Grants. Here was an excellent opportunity to suggest special protections for Indian inhabitants. Yet, there is nothing in Howley's otherwise detailed dairy (sic) of the Codroy survey to indicate that an Indian reserve was contemplated and that Indians would be treated differently than non-Indians. Indeed, the Mi'kmaq are scarcely mentioned, and one must assume they faced the same stark reality as their neighbours - either they accept the lines run, or their claim would not be considered for a Crown Grant.

There is also no indication that lot No. 22 was recognized as an Indian reserve subsequent to the surveying and mapping of the region. On the contrary, the parcel was apparently later divided and conveyed by Crown Grant to farm families. Mr. Cuff provides a copy of the 1895 grant of James George to a portion of the subject lands. As I have often repeated, the fee simple possession of lands by either Indians or non-Indians is inimical to the raison d'être of an Indian reserve. Had lot No. 22 actually been an Indian reserve, a non-Aboriginal farmer could only have been granted property within it after a transfer of the lands to the Crown had been accomplished through an instrument of cession. No such instrument has been brought forward. The Codroy example lends further support for the premise that in Newfoundland the misnomer "Indian Reserve" was loosely applied to tracts which on closer scrutiny were not Indian reserves as this concept is commonly understood. Simply labelling a lot an Indian reserve does not make it so.

Mr. Cuff's Supplementary Report also points to an 1899 plan or township survey of Gambo-Middle Brook which contains the words "Indian Reserve". Once again, no evidence is furnished to establish the existence of such a reserve. Nor does this have anything to do with the Leuis application for a Crown Grant at Conne River. Instead, Mr. Cuff employs this map, together with the Codroy plan, to make the following point: these plans "are significant usages of the term "Indian Reserve" prior to the events of 1900, in that they demonstrate that Crown Lands surveyors were familiar with the concept of Indian Reserve ..."

No one has ever suggested that all Crown Lands surveyors were unfamiliar with the concept of an Indian reserve. As I testified during the first phase of these proceedings, Howley's mentor and boss, Alexander Murray had had extensive experience in the Canadas where during the course of his work he almost certainly acquired a tolerable familiarity with the manner in which Indian reserves were established, surveyed and protected. This makes it all the more surprising that the Indian reserve system was not part of his recommendation to adapt the Canadian model of land tenure to the needs of Newfoundland. In any event, the question is not whether Crown Lands surveyors were familiar with the concept, but whether the concept had a reality on Newfoundland soil.

As I noted in my first report, the Crown Lands Act made it lawful for the Government to "reserve" or set apart lands for the purpose of erecting court houses, market places, churches, chapels, school houses, and even bogs to supply manure for fuel, but made no mention whatsoever of Indians. It also authorized the Governor-in-Council to issue Licenses of Occupation and grants in fee, again with no special provision for Indians. In fact, when it came to land, there was no statutory recognition of a distinction between the Mi'kmaq and other Newfoundlanders - a circumstance that makes it virtually impossible to protect Indian lands, because once grants in fee are obtained there is nothing to prevent land transactions on the open market. Writing "Indian Reserve" on a map does nothing to change this salient fact.

Mr. Cuff suggests that the Codroy Valley and Gambo-Middle Brook plans somehow demonstrate that the Crown Lands surveyors' concept of "Indian Reserve" included the following:

1.              Lands in which the Mi'kmaq had a historic interest ...

2.             Lands which Mi'kmaq were recognized as holding in a different, though still recognized, manner than those held by settlers of European descent.

3.             Lands which were held in a different manner than those held by individuals.

4.             Lands which were held in common by Mi'kmaq bands.

5.             Lands which Crown officials recognized as set aside from the standard Crown Grants process and procedure, for the use and benefit of Mi'kmaq bands.

This suggestion is problematic. In my opinion, the Codroy and Gambo-Middle Brook maps do not in and of themselves demonstrate that the concept of "Indian Reserve" included a recognition that Mi'kmaq lands were "held" in a manner different from those "held" by non-Aboriginals. In fact, while the maps do suggest that there were "Indians" in the area who were distinguishable from non-Aboriginal settlers, the plans reveal little about similarities or differences in the nature of the holding or land tenure. There is no evidence whatsoever that an Indian interest in these lands was contemplated in a manner other than through the usual Licenses of Occupation or grants in fee. Remarkably, if the communal nature of the tenure and deviation from the "standard Crown Grants process and procedure" were indeed distinguishing features of a peculiar Newfoundland Crown Lands surveyors' concept of an Indian reserve, then Conne River - with its Licenses of Occupation, individually-assigned lots, and a failed application for a communal grant - can hardly be said to fit the bill. Paradoxically, when the maps are accepted on their face, the Downey's of Codroy turn out to be more communal than the Jeddore's of Conne River.

Mr. Cuff moves on to a consideration of the new documents which I already discussed in my supplementary report. Here, at least on most issues, we are of like mind. A notable exception involves the conclusion that the Duder and Carter evidence "further supports the Appellant's contention that the entering of the Special Grant "Indian Reservation Conne River" during the period August 1899 - January 1900 was a deliberate act." From what I gather, the Appellant has over the course of these proceedings shifted from an original argument that an Indian reserve was created at Conne River in the early 1870s, to a new theory that an Indian reserve was established by special grant in late 1899 or early 1900. The contention, which in my view defies Occam's razor, is now said to be supported by the recently-found correspondence between government officials and Chief Bernard. But does it?

The Duder letter does no more than confirm that a reservation comprised of 25 contiguous lots could not be realized because nothing could be done to cancel the existing grants in fee issued to a non-Mi'kmaq settler. The Carter letter merely reveals that the Governor had requested the government to replace the Licenses of Occupation with "grants" (plural). As I indicated in my supplementary report, this action does not create a reserve and even the Governor's request to have the licenses converted into grants does not appear to have been operationalized.

Furthermore, there are two indisputable facts which in my professional opinion prove fatal to the argument for a special grant and establishment of an Indian reserve in 1899-1900. First, there is the grant application of 1907 which makes no sense if it was understood by the Mi'kmaq and Crown Lands officials that a reservation had already been established. Second, there are Governor MacGregor's comments of 1908 to the effect that, while the Mi'kmaq had still not complied with the conditions set forth in their Licenses of Occupation, the Government of Newfoundland would not withhold from them grants, as a matter of grace, if only they applied for them. The events of 1907-8 suggest that there was an expectation on the part of both the Governor and the Mi'kmaq that the land interest of the latter was to be handled not by any "special" grants, but by applications available to all inhabitants of Newfoundland.

Mr. Cuff intimates that the testimony of Mr. Lake might be unreliable. Since Lake's allegations could easily have been challenged or corroborated by people living in the Bay D-Espoir vicinity, it seems unlikely that he would risk constructing an entirely self-serving tale. That Gisborne has Hoskins settled in nearly Ship Cove in 1851 is irrelevant. We know from other evidence that Hoskins did indeed have a building on the Conne River subject lands in 1869 and that Murray surveyed a lot for him the following year. In my view, this completely independent corroboration is sufficient to give Lake's evidence a ring of truth, notwithstanding the possibility that his recollection about the antiquity of Hoskins' presence at Conne may have been exaggerated.

Respecting the Balfour Plan von Gernet wrote in his Supplementary Report:

It appears that Mr. Cuff has problems with "the Respondent's characterization of the Balfour Plan as having been prepared because of concerns about Lake's mill". As I have testified previously, there is strong evidence that the Balfour plan was drafted to help resolve the Lake mill affair that was raging at the turn of the century. After all, the map itself not only locates Lake's Mill, but contains an inset map with the notation "General Plan of Upper Part of Bay Despoir Showing Relation of Indian Reservation to Mills Operated by John E. Lake". Balfour clearly recognized that Lake had a mill on the so-called Indian Reservation, although in the absence of survey the extent of Lake's interest on the ground and the basis for his claim may not have been understood.

Mr. Cuff's suggestion that Lake's claim to the five acres surrounding the mill may have been investigated and dismissed in 1900 is vitiated by the serious consideration it apparently received seven years later. In fact, Mr. Cuff's argument can just as easily be turned on its head. The fact that Lake expressed concern only in 1907 - after his lands were physically surveyed in the field in relation to a grant application by a rival party - could suggest that he did not consider any actions made in St. John's in 1900 as being prejudicial to his interest. If, as is alleged, a special grant to the Indians had been made in 1899-1900, surely any sitting member of the House of Assembly with personal interests at stake would have made his opposition well known. It is also possible that Lake did in fact express oral (and, hence, unrecorded) objections and that these, together with other conflicting claims documented independently by Balfour, contributed to the abandonment of the proposal made by the Governor in January, 1900. In the midst of all these uncertainties, a few things remain clear: the Mi'kmaq were not issued grants, and years later Lake still understood that a portion of the lands were his own.

Respecting the Beachy Cove Plan von Gernet wrote:

Finally, as was the case with the Codroy and Gambo-Middle Brook maps, the Beachy Cove plan tells us little other than the obvious: some lots are associated with individual Mi'kmaq, while another tract is identified as "Indian Reserve". Once again, there is no indication in this record that the people associated with these lands were treated any different from their non-Aboriginal neighbours, and no evidence that the so-called "Indian Reserve" existed as a grant or any other form of tenure.

The evidence brought forward by Mr. Cuff contains nothing that causes me to alter my original opinions.

SUBMISSIONS:

[160]        Each counsel, at the direction of the Court, made written submissions. The Appellant's submission was forwarded to the Court and to Respondent's counsel. Respondent's submission was then forwarded to the Court and to Appellant's counsel and, finally, the Appellant's reply was forwarded to the Court and Respondent's counsel. Then, after several months, each party, directed by the Court to make succinct and cogent representations, made oral submissions to the Court.

APPELLANT'S SUBMISSIONS:

[161]        Appellant's counsel said that the Appellant, a Mi'kmaq had, over his lifetime, been active in his band and community with the interest of improving the economic and cultural status of his people. Some of his predecessors had been Chiefs of the Newfoundland Mi'kmaq. She described him as an elder and traditional leader of long experience within his community and band. She said that:

The Miawpukek Band is located at Conne River, Newfoundland, in lands held in the name of Her Majesty the Queen in the Right of Newfoundland which were set aside in 1870 by Her Majesty as the Conne River Indian Settlement. The Conne River Indian village site was commonly referred to at the time by both the Mi'kmaq and Colonial officials as a "reserve" or "reservation".

[162]        She then referred to the 1987 Order in Council recognizing lands at Conne River as reserved for the purpose of the Indian Act and known officially as the Miawpukek Reserve.

Oral History:

[163]        Appellant's counsel stated that the Supreme Court of Canada had determined that it is essential in formulating and applying the rules of evidence that the perspective of the First Nation and the oral history presented by its members be taken into proper account. She submitted that it is essential that the evidence of Aboriginal peoples be given weight equal to recorded evidence of the Europeans.[9] She said that something reported in writing should not automatically be determined as having greater weight than the evidence of Aboriginal peoples presented in a manner consistent with their customs and traditions. She stated that support for this can be found in VanDerPeet [1996] 2 S.C.R. 507 at paras. 49-50, R. v. Simon [1988] S.C.R. 171 at paragraph 04[10] and Delgamuukw v. B.C. [1997] 3 S.C.R. 1010[11].

[164]        She referred to the necessity of admitting oral evidence citing R. v. Hawkins, (1996) 111 C.C.C. (3d) 129 at paragraphs 66-68, 71., M. Asch and C.L. "Definition and interpretation of fact in Canadian Aboriginal Title Litigation" and "An Analysis of Delgamuukw (1994) 19 Queen's L.J. 503 at 531-543.

[165]        Counsel also said that the reliability of oral history must be grounded on the basis that the declaration was made in circumstances analogous to statements under oath providing the declaration is made or passed down in a setting or ceremony which, consistent with the First Nations laws and customs, is a solemn occasion at which a special value is placed on the veracity and accuracy of the statements. She referred to VanDerPeet, supra. She submitted also that the evidence of the Appellant and Saqamaw Misel Joe:

... is worthy of consideration as reliable, credible and accurate.

Creation of Reserves:

[166]        With respect to the creation of Reserves, counsel said that in St. Catherine's Milling and Lumber Company v. The Queen, (1888)14 A..C. 46, the Privy Council held that the words "lands reserved for Indians" are to be interpreted according to their natural meaning "sufficient to include all lands reserved, upon any terms or conditions, for Indian occupation."

[167]        She also referred to Ontario Mining Company v. Seybold, [1903] A.C. 73 in which the Appellants claimed lands under Letters Patent issued by Canada which had been included in territory previously ceded by the Indians in 1873 under Treaty Number 3. She said that under that treaty Canada undertook to set aside Reserves for the Indians and that the disputed land was included in the Reserve ... the selection of the Reserve was not confirmed by an Order in Council. She said that the evidence established that the Province of Ontario owned the disputed land. She then said that all Courts, including the Supreme Court of Canada and the Privy Council assumed that the selection of lands by the Dominion Government officials, after consultation with the Indians, would have been effective to establish a reserve had it not been for the proprietary interests of the province. She then said:

In other words the de facto creation of a reserve would have been sufficient notwithstanding the absence of an Order in Council or other official instrument.

[168]        Counsel referred to Ross River Dena Council Band v. Canada [1998] Y.J. No. 63 (Y.T. Supreme Court) respecting the establishment of a Reserve in the Yukon without an Order in Council. However, she referred to the trial division only, not having dealt with the judgment of the Yukon Territory Court of Appeal reversing the trial judgment.

[169]        Counsel said that in 1864 the Geological Surveyor Alexander Murray came from Canada and in 1869:

... whether at his own initiative or at the request of the Mi'kmaq, he selected and conducted a preliminary survey of a parcel of land. Thus was the historic rendez-vous of Conne River to be set aside for the use and benefit of the Mi'kmaq, and as a protected site for their village.

[170]        She said that he followed up his preliminary survey in response to the "Indian inhabitants' of Conne River claim for land" with a request to the Governor for "a grant of land to the Indians of Conne River Bay D'Espoir". She said also that in 1870 the Executive Council of the Colony agreed to take action in the matter and then referred to the issue, in 1872, of 17 Licenses of Occupation accounting for most of the lands within the parcel originally delineated by Murray. She said:

It is worthy of note that although there were by 1872 settlers of European descent living in Bay D'Espoir, no instruments of title whatever were issued to these settlers prior to 1896.

[171]        She then stated that the Mi'kmaq regarded these licenses qua licenses as of little import:

... yet embraced the notion that this defined parcel and their historic occupation indicated that their communal sense of land use and ownership was accepted by the colonial authorities...

[172]        Counsel then referred to Camp's report referring to the "Indian Settlement" at Conne River and the fact that someone had been telling them that they have exclusive right to both land and river in Conne. She then quoted from the report as follows:

... in fact they have a license to hold the South side of Conn, about two and a quarter miles in length and thirty-three chains deep, thereby excluding any settler or native from cutting any timber or firewood ...

[173]        Counsel then referred to the Mi'kmaqs' overtures to Governor Sir Henry McCallum ("Governor McCallum") and Premier Sir James S. Winter by the Mi'kmaq who:

... complained of Mr. Lake having a Mill on what they considered their reservation.

Special Grant/360 Plan and Balfour Plan:

[174]        Counsel contended that this approach by the Mi'kmaq to the Governor began a chain of events which resulted in correspondence to Chief Joseph Bernard of Conne River in January, 1900 from Thomas Duder, the Minister of Agriculture and Mines, and Hugh Carter, Secretary to Governor McCallum, indicating that Mi'kmaq concerns would be addressed by the Department of Agriculture and Mines. She stated further that a Special Grant "Indian Reservation Conne River" and the preparation of the Balfour Plan, both of which dated on "internal evidence to 1899 or 1900" indicate that such commitment resulted in further action by officials of the Department of Mines and Agriculture. Counsel then referred to the index entry in Crown Lands Special Grants, Volume I, referring to "Indian Arm Reservation" amended to read "Indian Reservation Conne River" indicating that a plan now in the Licenses of Occupation, Volume I opposite an 1872 License issued to Maurice Lewis was once entered there as a "Special Grant". She stated that that plan indicates a perimeter boundary corresponding both to Mi'kmaq tradition concerning the boundaries of their lands surveyed and identified at Conne River and to the rough survey made by Murray in 1869. She stated further that it did not appear to be in dispute. Such plan was placed in the Special Grants Volume I during the period August, 1899 to January, 1900.

[175]        In reference to the Balfour plan, counsel submitted that it:

... can also be dated to 1899 or 1900, although with less precision.

It strains credulity and a preponderance of historical evidence to deny that this document was also a response to Mi'kmaq approaching Governor McCallum in 1899 concerning:

"what they considered their reservation".

[176]        She said that this plan prepared by Francis H. Balfour, the Office Surveyor with 20 years experience in the Department of Agriculture and Mines indicated that a plot of land on the south side of Conne River was regarded as an "Indian Reservation" and and "Indian Settlement". She submitted that the Balfour plan was not a representation of Murray's survey nor of the 1872 Licenses of Occupation, only 17 licenses having been issued. Counsel then said, respecting the Mi'kmaq approach to Governor McCallum, the two surviving letters to Chief Joseph Bernard and Special Grant No. 360 so close in time:

... seems the Balfour plan was part and parcel of a declared intent to put the existing Mi'kmaq interest in a defined plot of land on the south side of Conne River, on formal footing.

[177]        Counsel then referred to the Appellant's oral evidence using the term "reservation" and the term "Indian land" supporting the contention that a colonial reservation was established at Conne River. She also referred to Saqamaw Misel Joe's "traditional knowledge of where the boundaries were", and that native and non-native people were aware of them.

[178]        Counsel then said that turn of the century references to a Conne River "Indian Reservation" by Minister of Agriculture and Mines, Dawe in 1900, to "Indian Territory" and "Indian Reserve Land" by Deputy Surveyor H.J. Hadden in 1902 and to an "Indian reserve" by Assistant Surveyor W.H. Taylor in 1907, were all in differing contexts, including two applications for timber licenses and a Crown Land grant. She then said that in each case officials of the Department of Agriculture and Mines felt it of moment to indicate, erroneously in the case of Hadden, that the lands in question did not infringe on the lands which had been reserved for the Mi'kmaq. She said that references such as Archbishop M.F. Howley's (1913):

... they have a government reserve

indicate that Conne River was accorded a special and recognized status within the wider community. Counsel then said that the record of actions both by the Mi'kmaq and government officials support the contention that lands had been set aside at Conne River for Mi'kmaq use and benefit.

[179]        Appellant's counsel then referred to other "Indian Reserves" located at Codroy Valley, Gambo-Middle Brook and Hall's Bay.

[180]        Counsel said that the 1870 Minute of the Executive Council is indistinguishable in the context of its time and place from an Order in Council. She referred, without specific reference, to Cuff's testimony in support of the statement and to pages submitted by Respondent's counsel from Dawson's "The Government of Canada" sixth edition, at paragraph 4 on page 224 reading as follows:

4.              The cabinet, acting as the governor-in-council, enacts subordinate legislation under the authority delegated to it by acts of the Canadian Parliament. Its legislative output may be known as minutes or Orders in Council, the distinction being largely one of form and apparently of little consequence. The subject-matter of this delegated legislation may range from questions of purely departmental routine to those of first-rate importance with far-reaching consequences, from the approval of a contract or the amendment of a minor regulation to the establishment of a nation-wide system of price control in time of war.

[181]        Counsel then submitted that, in the absence of a formal instrument, the Supreme Court of Canada held in R. v. Sioui [1990] 1 S.C.R. 1025 that consideration must be given to the legal nature of a document recording a transaction with Indians. She said that, in particular, they must take into account the historical context and perception each party might have as to the nature of the undertaking contained in the document under consideration.

[182]        Appellant's counsel's position was that a tract of land had been set aside for the use and benefit of the Mi'kmaq. She said that as von Gernet "highlighted", there were many ways reserves had been created and are now recognized in Canada. She then said:

And I guess what we're saying is, the fact that terms of union were entered into in 1949 doesn't really affect the applicability of the Indian Act to the land in question because they still had responsibility for Indians under the federal legislation, being the Constitution Act, section 91(24), ...

[183]        That section follows:

91             Legislative Authority of Parliament of Canada - it shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order and 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 the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say ...

...

(24)          Indians, and Lands reserved for the Indians.

Special Reserve Submission:

[184]        Counsel then referred to section 36 of the Indian Act, suggesting, in the alternative, that should the Court not find the 1870 reservation to constitute a Reserve for the purposes of the Indian Act, section 36 of the Indian Act applied. It reads:

Where lands have been set apart for the use and benefit of a band and legal title thereto is not vested in Her Majesty, this Act applies as though the lands were a Reserve within the meaning of this Act.

RESPONDENT'S SUBMISSION:

[185]        Respondent's counsel, Terrence Joyce, submitted that the use of the word "Reserve" does not make an Indian Reserve.

[186]        He agreed with Appellant's counsel that the 1870 Minutes of Executive Council have equal footing with an Order in Council. He said, however, that it did not create a Reserve but, rather, simply referred the matter to the Surveyor General. Counsel said that at the time of the minute, Newfoundland was still a British colony and there was no colonial legislation for the creation of an Indian Reserve.

[187]        Counsel further submitted that the test to be applied was whether there was an Indian Reserve at Conne River on September 4, 1951, the date upon which the Indian Act became applicable to Newfoundland.

[188]        Counsel then referred to Delgamuukw, supra, at page 1116 and 1117. He referred to the judgment of the Privy Council in St. Catherine's Milling. He said that one of the issues in that appeal was the federal jurisdiction to accept the surrender of lands held pursuant to aboriginal title. It was argued that the federal government, at most, had jurisdiction over "Indian Reserves". There follows:

Lord Watson, speaking for the Privy Council, rejected this argument, stating that had the intention been to restrict s. 91(24) in this day, specific language to this effect would have been used.

[189]        He accordingly held that (at p. 59):

... the words actually used are, according to their natural meaning, sufficient to include all lands reserved, upon any terms or conditions, for Indian occupation.

[190]        Counsel then said that Lord Watson's reference to "all lands" encompasses not only Reserve lands but lands held pursuant to aboriginal title as well. He added that section 91(24) in other ways, carries with it the jurisdiction to legislate in relation to aboriginal title.

[191]        Counsel submitted that aboriginal title was different from a reserve and that it means some right or title held by the Indians other than a Reserve or fee simple. He submitted that the gist of Delgamuukw and St. Catherine's Milling was that under section 91(24) the federal jurisdiction extends beyond the Reserve under the Indian Act and gives the federal crown jurisdiction over any kind of aboriginal title, whether it be a right to fish or a right of occupancy pursuant to the Royal Proclamation of 1763. Counsel said further that the word "Reserve" under the Indian Act includes only Reserves created by treaty or by Order in Council or other exercise of the Royal prerogative. He said that in St. Catherine's Milling the Privy Council was not dealing with a Reserve under the Indian Act as suggested by Appellant's counsel but with aboriginal title under section 91(24) of the British North America Act. He submitted that this has no bearing in that, respecting income tax liability, section 87 of the Income Tax Act deals only with Indian Act Reserves. Counsel summarized his submission by saying:

... you can't sort of intersperse 91(24) reference to "land reserved for Indians" with reserves under the Indian Act. They have totally separate meanings.

[192]        Respondent's counsel then referred to the Yukon Court of Appeal decision in Ross River Dena Council Band v. Canada, [1999] Y.J. No. 121. He read the following portions to the Court:

... The main issue on appeal is whether an Indian Reserve, as defined in the Indian Act, was created at Ross River by the correspondence and conduct of federal government officials responsible for Indian affairs, despite the absence of any Order in Council or other official instrument reflecting the exercise of the Crown's prerogative power ...

The issue in this litigation is not whether a Reserve should have been created but whether a "Reserve" was in fact created. ...

Overriding the examination of the evidence it is common ground that the words of the Indian Act involve a lacuna with respect to the basis upon which a Reserve should be created and the mechanics of such creation. That alone should be a reason why the Court should not declare the existence of a Reserve pursuant to the Indian Act, but that the lacuna should be resolved by legislative means or by the exercise of the Crown prerogative.

[193]        Counsel then stated that in Newfoundland, up until 1951, there was more than a lacuna, there was no legislation at all with respect to the creation of an Indian Reserve. He submitted that because of the absence of legislation, an Indian Reserve could only be created by an Order in Council or other exercise of the Royal prerogative. He then submitted that the only exercise of the Royal prerogative in this case was the 1870 minute of the Executive Council which, he submitted, did not create a Reserve. He then stated:

This is the case as we see it in a nutshell. We are going into other aspects of it because we have to respond and show what was relevant and what the effect of law is of certain documents but when it gets right down to it this, we submit, is the issue.

[194]        Respondent's second counsel, Patrick Vezina, said that J.P. Howley was with Murray at Conne River in 1870 and that 30 years later he was with Governor MacGregor in 1908 at Conne River. He then said:

Mr. MacGregor wrote a thorough report about Conne River and he went on a trip with Mr. Howley and it is suggested that Mr. MacGregor did not know what went on at Conne River, while he had with him one of the key players, or one of the most knowledgeable persons about the 1870s at Conne River.

[195]        He referred to Isaacs' evidence that the only lot surveyed at Conne River by Murray was the lot associated with George Hoskins, a non-Indian. He then referred to von Gernet's evidence as follows:

While the Minutes suggest that some type of survey should be conducted. Murray doesn't seem to have surveyed a grant of land. What he had done is he had earlier mapped out a section of the waterfront and divided it into lots that matched the general parameters of an existing statute. So when he went back into the field he didn't really act on the Council's recommendation in any further way other than to focus on a particular lot that was associated with a non-Mi'kmaq person.

[196]        He submitted that this was inconsistent with the proposition that the 1870 Minute was the starting point to create a Reserve.

[197]        The Respondent's position with respect to its second submission, namely that page 360 was just a plan and not a grant was, counsel submitted, supported by Boggan's evidence. Further, the Respondent submits that in all likelihood the plan was entered in the Special Grants Volume by mistake and indexed by mistake and was then amended and then moved to the Licenses of Occupation Volume.

[198]        Counsel then said that the Licenses of Occupation did not constitute a Reserve but were simply entitled to lead to a grant in fee simple if certain conditions were met. He referred to the Act of 1844 permitting the issue of grants in fee simple and then the Act of 1860 being the authority for the issue of Licenses of Occupation. He submitted that this could not constitute Reserves because the concept of fee simple title was inconsistent with land being held for the common use of Reserve inhabitants. He also referred to Patterson's evidence to the effect that the giving of such licenses to the Mi'kmaq suggests that the government saw them as settlers whose needs should be met in the forms and procedures at hand and not as people with aboriginal rights that must be protected by the creation of special reserved land.

[199]        Respondent's counsel then quoted a portion of von Gernet's evidence which is set out above. Its effect was that the definition of Reserve excludes the possibility of the Europeans having an interest in Reserve land and that, with respect to the Collier grant in fee, von Gernet found no evidence in almost 90 years, of any strong protest or any kind of protest by the Mi'kmaq to the presence of Collier on that land.[12]

[200]        Counsel then referred to Cuff's evidence acknowledging that no grants were ever issued to the individual Mi'kmaq for lots at Conne River. He also referred to von Gernet's evidence respecting the Duder letter which von Gernet said did no more than confirm that a reservation comprised of 25 contiguous lots could not be realized because nothing could be done to cancel the existing grants in fee to a non-Mi'kmaq settler. He stated that von Gernet also referred to the Carter letter as merely revealing that the Governor had requested the government to replace Licenses of Occupation with grants, those grants never being "operationalized".

[201]        Respondent's counsel referred to a memorandum from the Colonial Secretary John Alexander Robinson, on January 30, 1900 in respect of Governor McCallum's enquiries of January 10 and 29, 1900 respecting Lake. That memorandum concluded with the statement that Lake's case would appear to be exceptional and would be inquired into. Respondent's position, accordingly, is that it would have been impossible for a grant to have taken place before January 26, 1900 as contended by the Appellant. In effect, the Respondent suggests that a grant could only have "happened" after January 30, 1900.

[202]        Respecting the Balfour plan, counsel referred to the evidence that the original was an undated coloured plan made of canvas with the name "F.H. Balfour" written on its bottom left corner. It was entitled "Plan of Indian Settlement Conne River Bay D'Espoir" and contained an inset with the note "General Plan of Bay D'Espoir showing Relation of Indian Reservation to Mills operated by John E. Lake". The evidence indicated that Balfour was a surveyor in the Crown Lands Registry Office and was likely the author of the Balfour plan. It was registered in the Newfoundland Registry of Crown Lands with a notation on the back, and would, according to Boggan's evidence, have been done by an office clerk. Boggan also said that the clerk may have written the words "Indian Settlement" on the plan.

[203]        Counsel then referred to von Gernet's opinion that the plan was likely drafted between January 29, 1900 and 1903 in response to the Lake's Mill affair and was, in his opinion, not made with any reference to the creation of an Indian reservation. Counsel referred to von Gernet's words:

So, in my opinion, this entire plan ... was generated to resolve the Lake Mill affair and it was probably done at the request of somebody who wanted further information on where this mill is in relation to previous information and maps and whatever vestiges have been mapped over from the Murray period of the 1870s. So the map itself, I don't think was created with any reference to the creation of an Indian reservation. It was created primarily because of Lake, Mr. Lake, and hence you have this insert which is the - the mark itself is the inset and then the close-up is given to show the exact location of the mill in relation to the rest of the land tenure in the area and, of course, that map itself also has non-aboriginal names on it.

[204]        Counsel said that those were names such as Collier, Hoskins and MacDonald.

[205]        Counsel then turned to the Reuben Leuis application of 1907. He submitted that had there already been a Reserve at Conne River in 1907 as alleged by the Appellant then the Chief, Reuben Leuis, would not have made an application to have that land granted to him. Counsel referred to von Gernet's evidence taken from his Supplementary Report as follows:

First, the existence of this 1907 Application is in and of itself further evidence that an Indian reserve had not as yet been created. After all, why would the Chief petition for lands if the common understanding is that his people already have a reserve?

Secondly, what is immediately striking is that the application apparently includes lots 1 through 7 of the Balfour plan, as well as additional territories to the south, but ignores lots 8 through 25. One must again ask, if the Balfour Plan really was intended to represent a colonial Indian reserve, how does one explain what happened in 1907?

Thirdly, it seems clear that the application was turned down. ...

[206]        Counsel recalled that the following endorsement appeared in handwriting on the back of the Reuben Leuis application, namely:

Cannot be granted see plan of Indian reservation #103 also see letter enclosed.

Counsel said that the plan referred to was the Balfour plan because the number 103 was written on the back of it. He also said the letter referred to was a letter by John E. Lake, and accordingly, the application was refused because of Lake's claim on what is shown as part of lot 6 and lot 7 on Isaacs' cadastral plan.

[207]        Counsel then referred further to von Gernet's Supplementary Report, which reads in part:

Evidently, the Louis (sic) application was also turned down on the weight of the Lake letter which reveals a surprising connection with Hoskins. According to Lake, Hoskins had cleared, occupied and lived on the subject lands for a very long time. Lake's estimate of half a century may have been exaggerated, but we do know from independent evidence that Hoskins already had a building on site during Murray's visit in 1869 and that Murray surveyed a lot for him the following year. In any event, in 1895 Lake apparently bought from Hoskins some land - a transaction formalized in a now lost instrument. In the Balfour Plan, Hoskins is associated with lot #6, while Lake's mill is located on the waterfront of the adjacent lot #7. On the other hand, a notation on the Taylor map has the land to be reserved for Lake covering the northern quarters of lots 6 and 7. Whatever the exact bounds of the purchased lands, it is apparent from the letter of May 30 that Lake had erected much more than a waterfront mill. He speaks of outbuildings, a dwelling house, a wharf and five acres of land. We have here a significant non-Aboriginal occupation of the subject lands over a period of at least 38 years, as well as land transactions between private individuals. Both are entirely inconsistent with the concept of an Indian reserve.

[208]        Respondent's counsel's next point was, as expressed by von Gernet:

... there was no change in the status of the lands between the time of Murray and the MacGregor's report. If such a change had occurred, surely it would have received more notice. Even if somebody had removed the entire file and any vestige of evidence of such a change, then for which there is no evidence whatsoever, then surely there would be a remembrance of this event in either the oral traditions of the people or on the documentary record available to MacGregor and the people associated around him.

[209]        Counsel submitted that Appellant's counsel's alternative argument that there was a special Reserve under section 36 of the Indian Act fails because that section provides that the lands must not be vested in Her Majesty and that the lands under question were Crown lands.

APPELLANT'S REPLY:

[210]        In reply, Appellant's counsel said that the evidence of the Appellant and of the Chief and "I guess from our expert witnesses" was that the people of Conne River:

... already believed that they had some sort of land ownership, some sort of tenure. They believed that the land was reserved for them. So, no, there wouldn't have been any reason for them to do it.

[211]        She also stated that the fact that the Mi'kmaq were not indigenous to Newfoundland was irrelevant.

[212]        She then referred to the Ross River case which was a "post-confederation matter whereas the Appellant's situation is pre-confederation". She said that the conduct of all "the government actors" were recognizing it as a Reserve and that the Mi'kmaq themselves believed it was a Reserve.

[213]        She then stated:

... that a Reserve was created between 1899 and 1900 in Conne River. It was a number of things that constituted the creation from the Executive Minute which is an Order in Council to the government actions to the beliefs of the Mi'kmaq themselves.

[214]        In summary, Appellant's counsel's points are:

1.              Murray went to Conne River in 1869 and 1870 and requested that a grant of land be made to the Mi'kmaq and initiated a survey. In 1870 a Minute of the Executive Council was issued and was equal, in effect, to an Order in Council elsewhere in Canada.

2.              The Licenses of Occupation issued in 1872 were a response by the Surveyor General to that Executive Council Minute. Further, the licenses were the best instrument available under the Surveyor General's authority.

3.              The understanding of the aboriginal people themselves as to the meaning of the foregoing events and accounts have to be taken into consideration. The Mi'kmaq themselves understood that Conne River was indeed Indian land. There is no record that any administrative act was taken in response to Salmon Warden Henry Camp's report to disallow the Mi'kmaq of their beliefs or to disallow them of their notions.

4.              In August, 1899 the Mi'kmaqs themselves took action to protest what they called an incursion on what they considered their reservation.

5.              The term "reservation" itself was used to mean land set aside for the Mi'kmaq at Conne River. Specifically, the use of the term "Indian reservation", "Indian Reserve lands", "Indian settlement" by the Mi'kmaq themselves, by Governor Sir Henry McCallum, Chief Justice James Little, Minister of Agriculture and Mines Eli Dawe and Francis Balfour, Crown Lands Registry, were not loose or unsophisticated use of the terms. Everyone knew that it meant lands for Indians at Conne River.

6.              That between August 1, 1899 and January 30, 1900 a Special Grant of the Indian reservation at Conne River was entered into the Special Grants Registry.

7.              When Newfoundland joined Confederation on March 31, 1949, there was no mention of aboriginal people and they were never contacted or consulted in terms of being part of the Terms of Union. Further, the Indian Act did not apply to Newfoundland until September 4, 1951. The import of this, according to counsel, was nothing adverse to the Indians' position should be drawn from the fact that the government did nothing in 1949.

ANALYSIS AND CONCLUSION:

[215]        Although Appellant's counsel did not quote any portions of the judgments to which she referred, it seems that the point she sought to make with respect to oral history and court procedure is taken from the words of Lamer, C.J. in Delgamuukw v. B.C. [1997] 3 S.C.R. 1010 at 1065:

The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case.

[216]        At page 1069 the Chief Justice said:

Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consist of historical documents. This is a long-standing practice in the interpretation of treaties between the Crown and aboriginal peoples: Sioui, supra at p. 1068; R. v. Taylor, (1981) 62 C.C.C. (2d), 227 (Ont.C.A.), at p. 232. To quote Dixon, C.J., given that most aboriginal societies "did not keep written records", the failure to do so would "impose an impossible burden of proof" on aboriginal peoples, and "render nugatory" any rights that they have (Simon v. The Queen [1985] 2 S.C.R. 387 at p. 408). This process must be undertaken on a case-by-case basis. ...

[217]        Counsel also stated that support for the proposition that something in writing should not automatically be determined as having greater weight than the evidence of aboriginal people presented in a manner consistent with their customs and traditions could be found in Van der Peet, 2 S.C.R. 507. However, that case dealt with section 35(1) of the Constitution Act, 1982 in respect of which Lamer, C.J. at R. 32 said:

As has already been noted, one of the fundamental purposes of s. 35(1) is the reconciliation of the pre-existence of distinctive aboriginal societies with the assertion of Crown sovereignty.

He went on to say that courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right. Van der Peet dealt with the right to sell fish on a non-commercial basis. The Appellant's case deals not with a right but with whether a "reserve" existed in 1984, the taxation year in question.

[218]        Counsel also referred to St. Catherine's Milling & Lumber Company v. The Queen, (1888) 14 A.C. 46 which she cited as authoritative respecting the creation of reserves. She said that the Privy Council held that the words "land reserved for Indians" are to be interpreted according to their natural meaning "sufficient to include all lands reserved, upon any terms or conditions for Indian occupation". Her interpretation is entirely out of context. The St. Catherine's case arose out of the Province of Ontario claim that the Dominion of Canada could not, as it did, issue a timber license to St. Catherine's. By an 1873 treaty the Salteaux tribe of Ojibbeway Indians released and surrendered to the Dominion their whole right and title to more than 32,000 square miles of land in Ontario[13]. The Indians, by that treaty, retained the hunting and fishing rights. The "Dominion" argued that its claim to the land was based on section 91(24) of the British North America Act of 1867. It conferred upon the Parliament of Canada power to make laws for "Indians, and land reserved for the Indians". The Province of Ontario argued 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 special interest, by treaty or otherwise, and did not apply to land occupied by them by virtue of the 1763 proclamation. The Privy Council rejected this argument by saying:

The argument might have deserved consideration if the expression had been adopted by the British Parliament in 1867, but it does not occur in sect. 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.

This had no bearing on the decision of the Privy Council. It found that the fact:

... that it still possesses exclusive power to regulate the Indians' privilege of hunting and fishing, cannot confer upon the Dominion power to dispose, by issuing permits or otherwise, of that beneficial interest in the timber which has now passed to Ontario. ...

[219]        Her reference to Ontario Mining Company v. Seybold, [1903] A.C. 73 is of no assistance to the Appellant's position. It does not support her statement that:

... the de facto creation of a reserve would have been sufficient notwithstanding the absence of an Order in Council or other official instrument.

[220]        Appellant's counsel did not deal with the Yukon Court of Appeal decision in Ross River Dena Council Band v. Canada [supra]. The main issue in that appeal was whether an Indian Reserve, as defined in the Indian Act, was created at Ross River by the correspondence and conduct of federal government officials responsible for Indian affairs, despite the absence of any Order in Council or other official instrument reflecting the exercise of the Crown's prerogative power. The court said that the issue in litigation was not whether a Reserve should have been created but whether a "Reserve" was in fact created. As set forth above, the Yukon Court of Appeal said:

... it is common ground that the words of the Indian Act involve a lacuna with respect to the basis upon which a Reserve should be created and the mechanics of such creation. That alone should be a reason why the court should not declare the existence of a Reserve pursuant to the Indian Act, but that the lacuna should be resolved by legislative means or by the exercise of the Crown prerogative.

[221]        I agree with Respondent's counsel that until 1951 there was, in Newfoundland, more than a lacuna. There was no legislation at all with respect to the creation of an Indian reserve. On what was placed before me, I also agree with him that in the absence of legislation, an Indian Reserve could only be created by an Order in Council or other exercise of the Royal prerogative. The only such exercise was the 1870 Minute of the Executive Council which did not create a Reserve.

[222]        Appellant's counsel was ambivalent about whether the Reserve was created by the 1872 Licenses of Occupation following the 1870 Minute of Executive Council or by the Special Grant/360 plan and the Balfour plan.

[223]        I am guided by and agree with von Gernet's expert opinion. It presents, in my judgment, a logical and reasonable construction of the result of the series of events referred to by Appellant's counsel. He said that the grant of Licenses of Occupation defeated the whole purpose of a Reserve, the best way to protect Indian Reserves from encroachment being to remove the possibility "of having grants in fee simple".

[224]        The 1870 Minute of Executive Council

... concurred in the propriety of the application and referred the matter to the Honourable Surveyor General with the view of carrying its object into effect.

[225]        Obviously, that Minute did not create a Reserve. Having regard to the legal effect of the Licenses of Occupation, namely that each holder was entitled, under conditions, to title in fee simple, the issue of such licenses did not form a Reserve. Although Cuff said that it seemed clear that the issuing of Licenses of Occupation, authorized by the Act of 1860, was a response to the 1870 Minute, he later said:

I think that the justification in calling it an Indian Reserve or an Indian Reservation comes from the Special Grant of 1899, 1900, Indian Reservation at Conne River, from the Balfour plan which is, it's filing title on the back is "Indian Reservation Conne River".

[226]        I also take cognizance of the evidence of Isaacs that Murray, in July, 1870, surveyed a lot for George Hoskins (non-aboriginal) and that it was:

the only individual lot surveyed, that I am aware of, which Murray carried out at Conne River.

This was on the land alleged by the Appellant to have constituted a Reserve. I rely upon von Gernet's conclusion that while Murray had ample opportunity to adopt what he had learned in Upper Canada and recommend that either statute or other form of legislation or some kind of a system be adopted to account for an Indian presence in Newfoundland, he did not do so. As set out above, von Gernet said:

He did it with other aspects of land tenure but not with Indians. Instead he basically just followed the Crown Lands Statute, which was a generic one and we end up in 1872 with a series of 17 Licenses of Occupation.

[227]        I also, upon close examination of the evidence surrounding the Special Grant/360 Plan, adopt the opinions of Isaacs and von Gernet. Isaacs said that the particular purpose for the plan was to show that one lot was surveyed. von Gernet said:

They were removed from this position and placed with the licenses of occupation, which is more properly where they belong, given the sequence of events and the complete lack of any evidence that there was accompanying documentation with this map. The map itself, of course, has George Hoskins' name on it as the only name and it is very difficult for me to understand why or how that could be construed as an Indian reservation or a special grant.

[228]        I cannot conclude from the evidence respecting the 360 plan being placed in the Special Grants Volume and then moved to the License of Occupation Volume that a Reserve for the Mi'kmaq at Conne River was created.

[229]        Although Boggan who had, at the time of the hearing, been with the Crown Lands Division for 25 years and was Acting Director of Crown Lands, was not around in 1900, his evidence, set out above, was that someone must have realized that the plan did not belong in the Special Grants Volume and refiled it with the Licenses of Occupation, making a notation to that effect. He also said that, had he been there at that time and knew that there were Licenses of Occupation:

... I think I would have moved it.

[230]        von Gernet was of the opinion that the Balfour plan was drafted specifically to help clarify where Lake's sawmills were located and had more to do with lumbering than to do with aboriginal Reserves. He said:

In fact, instead of generating statutes to protect Indian lands as was common elsewhere in Canada, the controversy was soon followed by an Act for the restriction of sawmills.

[231]        My conclusion that the Conne River lands were not a Reserve is influenced also by the 1907 Reuben Leuis petition for 363 acres of land at Conne River. von Gernet said:

First, the existence of this 1907 Application is in and of itself further evidence that an Indian Reserve had not as yet been created. After all, why would the Chief petition for lands if the common understanding is that his people already have a Reserve.

Secondly, what is immediately striking is that the application apparently includes lots 1 through 7 of the Balfour plan, as well as additional territories to the south, but ignores lots 8 through 25. One must again ask if the Balfour Plan really was intended to represent a colonial Indian Reserve, how does one explain what happened in 1907?

[232]        von Gernet also said:

We have here a significant non-aboriginal occupation of the subject lands over a period of at least thirty-eight years, as well as land transactions between private individuals. Both are entirely inconsistent with the concept of an Indian Reserve.

[233]        von Gernet said, further, that Governor MacGregor, at no time in his 1908 report, intimated that a special Indian Reserve had been created by the colonial government. He stated that Murray merely noted that while the conditions of the Licenses of Occupation had not been met the Government of Newfoundland would not withhold grants, as a matter of grace, if only the Mi'kmaq applied for them. He then said:

This suggests that the events of 1900 and 1907, as evidenced in the new documents, did nothing to change the status of the subject lands.

[234]        I accepted as admissible the evidence of the Appellant and Saqamaw Misel Joe. I have no doubt about their sincerity and about their belief that a Reserve at Conne River did exist. However, continuous reference to that belief, even including the use of the terms "Indian Settlement", "Indian Reservation" and "Indian Lands" does not, in my judgment, evidence the legal existence of a Reserve as sought by the Appellant. Equally, the evidence respecting Codroy, Gambo-Middle Brook and Beachy Cove plans referring to "Indian Reserve" are not helpful in establishing any of them or the Conne River lands as a "reserve".

[235]        The 1872 Licenses of Occupation and the 1900 Special Grant/360 plan are, in my view, the only two series of events that could found a credible argument for the establishment of a Reserve. It appears that Appellant's counsel sought to buttress submissions in this regard with the cumulative effect of other circumstances such as the use of the terms "reservation", Indian reservation", "Indian Reserve lands" and "Indian settlement" on various maps and plans and by various officials. Their use appears to have evolved as referential rather than as terms sanctioned by appropriate official action.

[236]        The Appellant's alternative argument that a Special Reserve at Conne River existed by virtue of the definition thereof in section 36 of the Indian Act which reads:

When lands have been set apart for the use and benefit of a band and legal title thereto is not vested in Her Majesty, this Act applies as though the lands were a Reserve within the meaning of the Act.

fails. The land was vested in Her Majesty.

[237]        Accordingly, I have concluded that the land at Conne River upon which the Appellant lived in 1984 was not, within the meaning of "Reserve", as defined:

... a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a Band.

[238]        I was, in this difficult case, very impressed with the knowledge, quality of preparation and demeanour of the expert witnesses, the major part of whose evidence was presented by Cuff and von Gernet. While in no way minimizing Cuff's efforts, I, as stated above, was led through my own analysis of the evidence to adopt von Gernet's view as a logical and reasonable interpretation of the events under review.

[239]        The appeal will be dismissed. There is, accordingly, no need to deal with the matter of the Appellant's investment income.

[240]        No costs are awarded. Should counsel wish to speak to the matter of costs a telephone conference can be requested.

Signed at Ottawa, Canada this 9th day of November, 2001.

"R.D. Bell"

J.T.C.C.

COURT FILE NO.:                                                 96-2182(IT)G

STYLE OF CAUSE:                                               John N. Jeddore v. Her Majesty the Queen

PLACE OF HEARING:                                         St. John's, Newfoundland

DATE OF HEARING:                                           commencing June 1, 1998 and heard on a

                                                                                split basis concluding May 1, 2001

REASONS FOR JUDGMENT BY:                      The Honourable Judge R.D. Bell

DATE OF JUDGMENT:                                       November 9, 2001

APPEARANCES:

Counsel for the Appellant:                  Gerard G. Griffin and Judy White,

                                                                until Gerard G. Griffin ceased to act as

                                                                counsel, Judy White continuing.

Counsel for the Respondent:              Bruce Russell and Patrick Vezina, until

Bruce Russell ceased to act as counsel, Patrick Vezina continuing together with Terrence Joyce, Q.C.

COUNSEL OF RECORD:

For the Appellant:                

Name:                Judy A. White

Firm:                  Judy A. White

                                                                                Conne River, Newfoundland

For the Respondent:                             Morris Rosenberg

                                                                Deputy Attorney General of Canada

                                                                                Ottawa, Canada

96-2182(IT)G

BETWEEN:

JOHN N. JEDDORE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal commenced on June 1, 1998, was heard by the Honourable Judge R.D. Bell on a split basis, at St. John's, Newfoundland, and concluded on May 1, 2001

Appearances

Counsel for the Appellant:                             Judy A. White

Counsel for the Respondent:                         Terrence Joyce, Q.C.

                                                                   Patrick Vezina

JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 1984 taxation year is dismissed in accordance with the attached Reasons for Judgment.

          No costs are awarded.

Signed at Ottawa, Canada this 9th day of November, 2001.

"R.D. Bell"

J.T.C.C.

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