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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-05-25] British Columbia. Supreme Court May 25, 1989

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 16784  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 Vancouver, B.C.  2 May 25, 198 9  3  4 BARBARA LANE, Resumed:  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia,  7 Vancouver, Thursday, May 25, 1989.  Calling the matter  8 of Delgamuukw versus Her Majesty the Queen at bar.  9 I caution the witness, you are still under oath.  10 THE COURT:  I expect that counsel know that Mrs. Ritchie is  11 going to leave us.  12 MR. RUSH:  We learned that this morning.  13 THE COURT:  You are all aware of that unhappy fact.  We are  14 grateful for what she has done and we are grateful for  15 what she will do in the time with us.  We welcome Ms.  16 Tompson to take her place and she is looking forward  17 with eager anticipation and pleasure to this trial.  18 All right.  Thank you.  Mr. Rush.  19  20 EXAMINATION IN CHIEF BY MR. RUSH:  21 Q   Dr. Lane, I would like to address you again -- have  22 you look at tab 64, please, of volume 2 in the  23 document book that is before you.  This is a document  24 in the papers relating to Mr. Nind to The Honorable  25 the Colonial Secretary, July 17, 1865.  Do you know  26 this document, Dr. Lane?  27 A   Yes, I do.  28 Q   And can you give us the context for it, please?  29 A   I beg your pardon?  30 Q   The context for the document.  What were the  31 circumstances of it?  32 A   Oh, yes.  Mr. Nind was reporting to the Colonial  33 Secretary on a dispute regarding Indian land claims in  34 the interior of British Columbia.  I would direct your  35 attention -- the dispute were Indian claims and  36 efforts of white settler's contentions over the land.  37 I would direct your attention to the recommendation  38 made by Mr. Nind at the close of the description of  39 the difficulty in which he says:  40  41 "I believe the only method of settling this matter  42 satisfactorily and with equity to both Indian and  43 whites will be for the Government to extinguish  44 the Indian claims, paying them what is proper for  45 so doing, and giving them certain reservations for  46 their sole use."  47 16785  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  THE  MR.  THE  MR.  COURT:  Where is that, please?  WITNESS:  I'm sorry, that is at page 30 at the end of the  Nind communication.  COURT:  Yes.  Thank you.  Who is Mr. Nind, please?  WITNESS: He was a justice of the peace at that time with the  responsibility of settling such disputes between  whites and Indians.  I believe this is 1865.  In 1863  he was a member of the Legislative Council, I believe.  But I am not certain whether all J.P.s were or not,  and whether he still was when he was writing this in  1865 I don't recollect.  RUSH:  And, Dr. Lane, what Indians of what area is being  referred to here if you know?  COURT:  Well, it says at the top "The Indian land claims  above Kamloops and in its vicinity."  MR.  RUSH:  Q  A  RUSH:  Q  A  Q  A  Q  A  A  Yes, thank you.  Well, he also deals with another branch of the same  tribe if you will see in the succeeding paragraph.  I  think that he is describing several areas of dispute,  one of the Thompson River.  Now, Dr. Lane, the colonies of Vancouver Island and  British Columbia were united.  What was the date of  that?  1866.  And after that union is there further documentary  evidence that relates to government consideration  about native title?  Yes.  And if I can direct you, please, to tab 69, I would  ask you if this is one such document.  This is a  document entitled "Legislative Council Proceedings",  February 11, 1867.  It apparently appears in the  British Colonist.  Yes.  It was printed in the newspaper on February 18,  1867, but refers to the previous Monday's discussions  in the Legislative Council, yes.  All right.  And can you direct his lordship's  attention to the portion, if any, of this that you  consider significant?  I would ask you to look on  pages 2 and 5.  Yes.  Before doing that I would perhaps direct  attention to the fact that the initial paragraph there  sets out who was present during these discussions and  they include Mr. Crease who is now Attorney General of  the United Colony, and Mr. Trutch is there and Mr. 16786  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 O'Reilly.  And, I'm sorry, you were directing me to  2 what?  3 Q   To page 2.  4 A   To page 2.  Yes, Mr. Crease, the Attorney General, in  5 the first full paragraph on page 2 draws attention to,  6 and I quote the language here:  7  8 "The Indians were particularily sensitive of their  9 rights as original possessors of the soil and were  10 entitled to the greatest consideration."  11  12 THE COURT:  Where is that, please?  13 THE WITNESS:  The first full paragraph on page 2 of the typed  14 transcript.  15 THE COURT:  Oh, yes.  16 MR. RUSH:  17 Q   And page 5, Dr. Lane?  18 A  And at page 4:  19  20 "Mr. Southgate asked whether it was contemplated  21 to pay the Indians for their land because this was  22 a great question with the Indians on the Island."  23  24 And finally on page 5 of that resolution another  2 5 member:  26  27 "Mr. Wood showed the difficulties that stood in  28 the way of the settlement of the Indian title to  29 lands, and the critical eye with which any  30 acquisition of title would be watched at home and  31 in the Colony."  32  33 MR. GOLDIE:  I wonder, my lord, if the witness could again  34 identify where this -- the original of this was found.  35 THE WITNESS:  In the Provincial Archives of British Columbia in  36 Victoria.  37 MR. RUSH:  38 Q   This is a typescript prepared by you, is it?  39 A   Yes, it is.  I believe that I read this particular  40 typescript in the collection at the Provincial  41 Archives.  If this particular issue was not readable  42 there, I may have taken it from the microfilm copy at  43 the public library in Victoria.  44 Q   At this time, Dr. Lane, there was a reference in the  45 article that you have just referred us to, to "the  46 Indians on the Island".  And you made references  47 yesterday to the documentary record to the land in the 16787  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  A  4  Q  5  6  A  7  THE COURT  8  MR. RUSH:  9  Q  10  11  A  12  13  Q  14  A  15  Q  16  17  THE COURT  18  A  19  20  21  22  23  24  25  26  27  28  Q  29  30  31  32  33  A  34  Q  35  36  37  38  A  39  Q  40  41  A  42  Q  43  A  44  45  Q  46  47  A  Cowichan Valley.  Was that issue still outstanding at  this time?  Yes , it was.  And may I direct you, please, to tab 72.  Can you  identify this for us, please?  Yes.  This is again my typed transcription of a --  :  I'm sorry, where are you going?  Tab 72, my lord.  This is apparently an article in the  British Colonist of July 9, 1868.  It is not an article.  It is a letter to the editor, I  believe.  Thank you.  And the typescript prepared by you?  Yes.  And would you direct us to a passage here of  significant to the court?  :  Do we know who the author is?  No, we don't or I don't.  Well, in the close of the first long paragraph  which opens the letter, the writer says:  "The question of the extinguishment of the Indian  title to the lands in Cowichan and the outlying  districts cannot be much longer deferred, and if  not soon settled will produce a fruitful crop of  mischief."  Now, Dr. Lane, I want to direct your attention now  please to tab 73.  I would ask you if there was  further government consideration evident in the  documentary record with regard to Indian title in the  year following 1869?  Yes.  And this document at tab 73, can you identify it,  please?  It is entitled "The Chief Commissioner of  Land and Works to the Colonial Secretary", December  30, 1869?  Yes.  And it is signed by Joseph W. Trutch on the 30th of  December 1869?  Yes.  Now, who was Mr. Trutch at that time?  Mr. Trutch at that time was the Chief Commissioner of  Lands and Works in the United Colony.  And the Colonial Secretary, was that position held by  an official in London?  No.  No, this is the Colonial Secretary in Victoria. 167?  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 Q   I see.  Thank you.  Now, can you direct us in this  2 tab, Dr. Lane, to a passage or passages which you  3 consider to be of significance to the court?  4 A   Yes.  A dispute -- may I give you the context?  5 Q   Go ahead.  6 A  A dispute had arisen with respect to the Indian  7 reserve at the City of Victoria which had been  8 established under one of the initial Douglas treaties.  9 The report -- the memorandum which Trutch submits here  10 is a review of the history of that reservation and how  11 it was established and its status at this time.  And  12 he says at the second paragraph on the first page.  13 Q   This is in the letter on page 64?  14 A   Yes, this is in his letter of transmittal on page 64.  15 He points out after Arabic number 2:  16  17 "It is certain that the tract of land known as the  18 Songish Indian Reserve, was formally set apart by  19 the competent authority of the Hudson's Bay  20 Company's Agent, acting on behalf of the Crown,  21 for the perpetual use and benefit of the Indians  22 of that tribe.  And that this land is now held in  23 trust by the Crown, acting under a solemn  24 obligation, as guardian of the rights of the  25 Indians in this respect."  26  27 MR. GOLDIE:  I take it, my lord, that the context requires this  28 next paragraph also to be considered.  2 9    MR. RUSH:  30 Q   Now, Dr. Lane, the memorandum which is attached at  31 page 65, it says, "Memorandum as to the Songish Indian  32 Reserve at Victoria"?  33 A   Yes.  34 Q   This was appended to the transmittal letter, was it?  35 A   Yes.  36 Q   And is there anything in this that you would draw to  37 his lordship's attention from your perusal of this  38 record?  I just direct your attention perhaps to the  39 bottom of page 65 where Mr. Trutch apparently is  40 outlining the history with regard to the Songish  41 Indians.  42 A   Yes.  This again alludes to the initial history in  43 which Mr. Trutch points out that:  44  45 "When the first settlement was made at Victoria by  46 the Hudson's Bay Company, the Songish Indians,  47 composed of many families or septs, possessed by 16789  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 occupation the whole south-eastern portion of  2 Vancouver Island, including the Saanich  3 Peninsula."  4  5 And mentions where their principal village was and so  6 on.  And then says:  7  8 "And in 1850 the possessory rights of the  9 various families of this tribe in the lands before  10 claimed by them were purchased by Sir James (then  11 Mr.) Douglas, Governor of the Hudson's Bay  12 Company, at that time lessees of Vancouver  13 Island from the Crown, with full executive powers  14 by written agreement (the original of which is in  15 this office) which sets forth as one of the  16 conditions of the purchase that - 'our village  17 sites and enclosed fields are to be kept for our  18 own use, for the use of our children, and for  19 those who may follow after us.  And these lands  20 shall be properly surveyed hereafter.'  21 Under this condition the tract of land which  22 the Indians had taken up their residence upon  23 opposite Fort Victoria (about 90 acres in extent)  24 as stated in an official return made in 1859 to  25 the House of Assembly, was set apart by the  26 Company's Agent in the Colony for their use and  27 benefit."  28  2 9 Q   All right.  30 A "And has since formally been laid out and  31 established as an Indian Reserve, known as the  32 Saanich Reserve."  33  34 Q   Now, Dr. Lane, did Mr. Trutch express himself on the  35 subject of native entitlement on subsequent  36 communication?  37 A   Yes, he did.  38 Q   May I direct your attention, please, to tab 74.  And  39 if you can just identify first what is at tab 74.  40 A   Yes.  The copies of this correspondence, the cover  41 letter at the top of the page from Governor Musgrave  42 to Earl Granville back in England and the enclosed  43 memorandum which begins midway down the page which is  44 authorized by Mr. Trutch are taken here from again the  45 collection of papers relating to the Indian land  46 question which were published by the Province of  47 British Columbia in 1875.  I have compared these with 16790  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the originals, and I'm satisfied that they conform to  the originals accurately.  Q   Dr. Lane, can you express in summary form what the  context was for the transmittal of the memorandum and  the preparation of the memorandum to Earl Granville?  A   I'm sorry, the context?  Q   Yes.  The context, please.  A   Yes, Mr. Sebright Green in Victoria was one of those  people who was much concerned and exercised about the  failure to extinguish title --  MR. GOLDIE:  Well, my lord, this is a letter from Mr. Sebright  Green which is the context.  And with due respect to  the witness, the letter is far more exstensive than  the witness suggests.  MR. RUSH:  Well, she hasn't expressed —  MR. GOLDIE:  She said:  Much concerned about the extinguishment  of Indian title.  I object to any characterization of  that kind when the document is here.  I don't know  whether it is in this collection, but that's the  context.  THE COURT:  Is the letter here?  MR. RUSH:  It is not here, my lord.  THE COURT:  Well, I take it that what the witness is doing is  sketching the context for the purpose of making a  connection between other things and the letter.  In  other words, I suppose, painting a context or  background.  But what she says must be taken in that  way when the whole context is available from the  deceased if somebody puts it before me.  Is it any  more than that?  MR. RUSH:  I don't think so, my lord.  If I had the letter I  would certainly put if before you, and no doubt you  are going to see it from Mr. Goldie.  But in my  submission what Dr. Lane is doing is to put you in a  sense of understanding of why these letters were sent.  And to that extent, in my submission it is appropriate  for her evidence.  THE COURT:  Well, you see the transmittal says in paragraph 2:  "If the statements made by Mr. Sebright Green's  letter, forwarded to your lordship by the  Society..."  which is the Aboriginal Protection Society,  "...were statements of facts, they would be a  matter of reproach to the Colonial Government." 16791  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2 Now, what I gather the witness is telling me is that  3 Mr. Green, Mr. Sebright Green, had expressed concern  4 about the extinguishment of Indian title.  I don't  5 know whether the concern was -- I assume from the  6 nature of his office that there was concern favourable  7 to the Indians, but I don't know.  8 MR. GOLDIE:  Mr. Green, as stated, was a member of the  9 Aboriginal Protection Society which is an English  10 organization, and he corresponded with the people in  11 England to a very considerable extent.  They were  12 concerned about the state of aborigines throughout the  13 empire.  Mr. Green, I believe, was also the editor of  14 the British Colonist, and at the time I think it is  15 fair to say probably anti-government.  16 THE COURT:  Yes.  17 MR. GOLDIE:  But the context, my lord, is stated in his letter.  18 In my submission it is inappropriate to summarize a  19 document which is, I think, in my submission it is the  20 duty of the plaintiffs to put forward.  Unless the  21 position being taken is that in the considered opinion  22 of the witness Mr. Sebright Green's letter is not part  23 of the context then in my submission we are just  24 wasting time by having the witness state something  25 which is already clearly stated in the letter.  But if  26 the witness' view is that Mr. Sebright Green's letter  27 is not part of the context then we don't even need to  28 hear the answer to the question my friend put.  29 THE COURT:  Well, the problem with all this, of course, is that  30 one can always find a reason to, I'll use the  31 vernacular, second guess the collection.  The witness  32 may have thought that it should be here.  It is in  33 counsel's hands and if they didn't put it in it is not  34 there.  But she is telling me that this letter is an  35 important one, and it refers to Mr. Green's letter  36 which was one expressing concern about the  37 extinguishment of aboriginal rights.  38 Now, I think the letter should be before me.  But  39 I don't think that the fact that it isn't is a matter  40 that can stop the witness at this point without going  41 on to deal with this letter.  42 MR. GOLDIE:  Well, my point, I can put it very shortly, is it is  43 like reading discovery.  If the previous question  44 should be read -- if the question that is being read  45 should be read in the context of the previous  46 questions, then those questions go in.  47 THE COURT:  But with this exception that with the reading of 16792  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  THE  MR.  COURT  RUSH:  THE COURT  MR.  THE  RUSH:  COURT  MR.  RUSH:  Q  discovery the whole context is available in its -- and  is available conveniently.  Here I don't know if the  letter is available.  I don't know who has got it and  who hasn't got it.  I think that if one applies the  analogy to discovery and say it is connected,  therefore it should be included and I think that it is  connected, it should be included but it doesn't have  to be right now.  My lord, I can only answer in this way that if all of  the documents that could be considered to paint the  context were to be put in the document book we would  have a pretty fat document book.  :  I'm sure we would.  There was an effort made to whittle out.  Now, if my  friend thinks this document is important no doubt he  will put it to the witness.  The decision was  counsel's decision, not the witness' decision.  Now, in my submission Dr. Lane can address the  context by reference to that document.  And if she is  wrong in the summary of the document no doubt my  learned friend can point that out.  But I do say that  we can proceed with what we consider to be matters of  significance, and there is nothing to require us to  put in this other letter.  Although, I should say that  we have no objection to putting it in either.  And if  the court wishes it, then we certainly don't have any  problem with having it before your lordship.  In fact,  I'm happy to produce it.  If you would like to see  another letter, my lord.  :  Well, I think the only thing I can add to that, Mr.  Rush, is I do not think that in this particular  circumstance that it is necessary that your friend put  it to the witness.  I think that if it is shown to be  connected and I think it is and I think it is  something that I can call for and ask you to let me  have a copy then I can consider it along with the  contextual evidence that I have received.  I agree with that, my lord.  :  Your friend may forget about it when the time comes  to cross-examine.  I think the point having been  raised of being so obvious that Mr. Sebright Green's  letter is connected that I can ask you to produce it  and have it before me.  I ask you to kindly do that.  All right.  I just want to ask the witness about a few  factual inaccuracies stated by Mr. Goldie in his  attempt to summarize the context.  Mr. Sebright Green, 16793  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 Dr. Lane, who was Mr. Green, please?  2 A  Mr. Green was a local resident in Victoria.  He was  3 one of those who had purchased land in the Cowichan  4 Valley on the understanding that the government was  5 going to extinguish the native title and was prevented  6 from taking peaceful settlement with his family in the  7 valley because the natives were disturbed that the  8 Indian title had not been extinguished and he had, for  9 some years, urged the government to take action so  10 that the people who had purchased that land like  11 himself would be able to enjoy the peaceful occupation  12 of their land.  13 Q   Now, we've been discussing a letter that he wrote?  14 A   Yes.  He eventually wrote to the Aborigines'  15 Protection Society in England asking whether that  16 society could exert any pressure to do something about  17 the situation of Indians in the Colony of Vancouver  18 Island or at this stage in the United Colony.  19 Q   Do you know whether or not Mr. Green was a member of  20 that society?  21 A  As far as I am aware he was not.  But he wrote to that  22 society since they were active in that regard, and  23 that society then forwarded his letter to the Colonial  24 office which then forwarded it to Governor Musgrave  25 asking for a response.  Governor Musgrave then asked  2 6              Mr. Trutch to prepare the memorandum which was the  27 response.  2 8 Q   All right.  And that memorandum, is that set out on  29 page 10 of the tabulation at tab 74?  30 A   Yes.  It begins at page 10 and carries on to page 13.  31 Q   Right.  And it is apparently the name of Joseph W.  32 Trutch is there signed on page 13?  33 A   That's correct.  34 Q   Now, in this document what would you draw his  35 lordship's attention to that is of significance, Dr.  36 Lane?  And I will first direct you to the memorandum.  37 A  Well, Mr. Trutch is responding to Mr. Green's letter  38 which has been given to him.  And in the second  39 paragraph he says:  40  41 "It is not true, as he avers, that in this Colony  42 we have 'no Indian policy whatever'."  43  44 And then much of the memorandum sets out Mr. Trutch's  45 statements as to what the Indian policy has been.  46 Q   Now, I ask you if you will, please, to turn to page  47 11.  Can you draw his lordship's attention to what, if 16794  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 anything, is significant in this memorandum at page  2 11?  3 A   Yes.  I would draw attention to the paragraph mid-page  4 which begins:  5  6 "But the title of the Indians in the fee of the  7 public lands, or any portion thereof, has never  8 been acknowledged by Government, but, on the  9 contrary, is distinctly denied.  In no case has  10 any special agreement been made with any of the  11 tribes of the Mainland for the extinction of their  12 claims of possession; but these claims have been  13 held to have been fully satisfied by securing to  14 each tribe, as the progress of the settlement of  15 the country seemed to require, the use of  16 sufficient tracts of land for their wants for  17 agricultural and pastoral purposes."  18  19 And in the following paragraph he describes the  20 Douglas treaties in this fashion, and I quote:  21  22 "In 1850 and 1851, shortly after the first  23 settlement at Victoria by the Hudson Bay  24 Company - at that time grantees from the Crown  25 of the whole of Vancouver Island, with full  26 executive powers of government - their agent,  27 Governor Douglas, made agreements with the various  28 families of Indians then occupying the  29 south-eastern portion of the Island, for the  30 relinquishment of their possessory claims for the  31 district of country around Fort Victoria, in  32 consideration of certain blankets and other goods  33 presented to them.  But these presents were, as I  34 understand, made for the purpose of securing  35 friendly relations between those Indians and the  36 settlement of Victoria, then in its infancy, and  37 certainly not an acknowledgment of any general  38 title of the Indians to the lands they occupy."  39  40 Q   Okay.  41 A   I draw attention to these passages not for the content  42 in terms of --  43 MR. GOLDIE:  Well, in that case, my lord —  44 THE WITNESS:  I have not finished my answer.  45 MR. GOLDIE:  Excuse me, I am raising an objection.  46 My lord, if it is not drawn for the purpose -- if  47 the witness is not drawing it for any other purpose 16795  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  MR.  RUSH:  6  7  MR.  GOLDIE  8  9  THE  COURT:  10  11  12  1  13  14  15  16  17  18  19  1  20  21  22  23  24  MR.  RUSH:  25  26  27  28  THE  COURT:  29  30  31  MR.  RUSH:  32  Q  33  34  35  A  36  37  38  39  40  41  MR.  GOLDIE  42  1  43  THE  COURT:  44  MR.  RUSH:  45  46  THE  COURT:  47  MR.  RUSH:  than content, the document speaks for itself.  I will  object to any submission, whether made by my friend at  this point or whether made by the witness, on the  interpretation of this document.  What were you about to say, Doctor, please, before  you were interrupted?  :  Well, I have made an objection, my lord.  My friend  wishes to hear this witness interpret the document.  Well, I'm not sure that that is what is intended.  Even if she did I would have to sublimate or actually  replace her interpretation for my own if there were a  difference.  What I think this witness can do is to explain the  context of these documents so that I will be in a  position to put what appears to me to be a proper  construction on them.  If the witness phrases her  answer in a way that sounds like an interpretation,  then it seems to me that I must either view it in a  different light or I must disregard it.  I'm not sure  that it goes any further than that.  At the moment I  have now forgotten what the precise language was that  the witness was using when Mr. Goldie made his  objection.  Can I be reminded?  Well, she was about to say that she draws your  lordship's attention to these documents not for the --  and she was about to say something else.  I think your  lordship should hear that.  She has drawn the --  Yes, I think I should find out what she was going to  say and then I can find out whether that is something  that I should pay attention to or disregard.  Now, Doctor, you have read the two paragraphs on this  page of the memorandum and you were about to state  something about the paragraphs.  I simply wanted to make it clear that in directing  attention to particular passages I was not doing so  because I regarded the content of those passages as  necessarily being an accurate or inaccurate rendition  of fact, but simply to draw attention to those  statements.  :  Well, I assume that statement applies to every  document that has been read.  I should think so.  Well, I hadn't thought that my friend should be so  concerned about it.  All right. 16796  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 Q   Dr. Lane, is there anything else on page 11 of the  2 memorandum that you sought to draw his lordship's  3 attention to?  4 A   Yes.  The following paragraph as well:  5  6 "In reference to the Cowichan settlement, it  7 appears from the records - for I cannot speak  8 of this matter from personal knowledge, as I had  9 no official connection with Vancouver Island until  10 the year before last - that portions of the  11 Cowichan Valley were surveyed by Government and  12 sold in 1859.  The settlement dates, therefore,  13 from that year, although the unoccupied lands in  14 this district were not thrown open for preemption  15 until 1862.  When these lands were surveyed,  16 certain sections, containing in all 4635 acres,  17 were set apart as reserves for the use of the  18 Cowichan Indians and are now held in trust by  19 Government for that purpose, with the exception of  20 500 acres which have since been withdrawn from  21 this reservation, with the consent, as appears  22 from the recorded correspondence in this office,  23 of the Indians interested therein."  24  25 And then he continues in the next paragraph:  26  27 "I can find no record of any promises having been  28 made to these Indians that they should be paid for  29 the lands in the Cowichan Valley which they may  30 have laid claim to, nor can I learn that any such  31 promises has ever been made.  But it is probable  32 that the Cowichans, when the white people began to  33 settle among them, may have expected and  34 considered themselves entitled to receive for the  35 lands, which they held to be theirs, similar  36 donations to those which had been presented to  37 their neighbours, the Saanich Indians, years  38 previously, as before mentioned, on their  39 relinquishing their claims on the lands around  40 their villages.  It is further very likely that it  41 was Governor Douglas' intention that such  42 gratuities should be bestowed on this tribe,  43 although no direct promise to that effect had been  4 4 made."  45  46 And the rest of the sentence goes onto mention that  47 agricultural implements and tools had been authorized 16797  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 to be given them.  And then I quote again:  2  3 "Although no demands for payment for their lands  4 had, to my knowledge, been made by these Indians  5 of Government."  6  7 Q   Now, Dr. Lane, have you evaluated this memorandum in  8 the light of the documentary record which you reviewed  9 up to this point?  10 A   Yes.  11 MR. RUSH:  And in so doing that, how do you evaluate Mr.  12 Trutch's letter of the date of January 13, 1870 in  13 light of that record?  14 MR. GOLDIE:  Well, I object to that.  That's a matter of  15 argument.  16 THE COURT:  I think it is.  I think what the witness can be  17 asked is for a list of references to documents which I  18 can consider in assessing the correctness or otherwise  19 of what Mr. Trutch has written.  20 MR. GOLDIE:  Well —  21 THE COURT:  And I think that has partly been done already.  22 MR. RUSH:  It has, yes.  23 MR. GOLDIE:  To my mind, and in my submission, that is the very  24 essence of counsel's job.  2 5 THE COURT:  Yes.  26 MR. GOLDIE:  And my friend, Mr. Rush, at the end of the day is  27 going to be saying:  You ought to accept this with a  28 grain of salt or I will demonstrate from this document  29 that that statement is correct or incorrect.  And your  30 lordship at that time in argument will be hearing from  31 me by reference to other documents.  But at the  32 present time to talk about evaluation of the document  33 when the record is half complete is to introduce at  34 this stage the very function of argument at the  35 conclusion of the case.  36 THE COURT:  Well, I think the problem is semantical.  I haven't  37 any doubt that in a situation such as this where there  38 is a written record that the meaning of these  39 documents is for me to decide.  I think, however, that  40 there are places that I have tried to indicate all  41 along for historical researchers to direct my  42 attention to matters that I ought to have in mind when  43 I embark upon the interpretive process.  Is that what  44 you meant by your question, Mr. Rush?  45 MR. RUSH:  I was going to direct her to the documents which she  46 would have taken into account in evaluating the  47 letter. 1679?  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 THE COURT:  Well, I think the problem is whether or not she can  2 be allowed to evaluate the letter.  I suppose -- I  3 suppose even if she is entitled to evaluate the letter  4 she might think it is the most obvious piece of  5 nonsense that she has ever read, but I don't think  6 that is her function.  I think her function is to  7 say -- it is almost like when you ask a witness for a  8 statement of reputation the person has for character  9 they always lapse into specific detail.  We are all  10 supposed to be shocked by it, but I don't think we  11 should be because that is the way people talk.  12 MR. RUSH:  My lord, I am not asking this witness what she thinks  13 of this letter.  14 THE COURT:  Well, I think in one sense that is what you are  15 asking when you say:  Did you evaluate?  16 MR. RUSH:  No, my question is:  Did you evaluate this letter in  17 the context of the previous records?  The answer was:  18 Yes.  And my question was:  How do you evaluate in the  19 context of the previous --  20 THE COURT:  Well, are you asking the witness:  By what process  21 did you evaluate the letter?  22 MR. RUSH:  I think there are two questions which is a  23 methodological question.  24 THE COURT:  I see no difficulty with that one.  25 MR. RUSH:  But I also wish to direct the witness' attention or  26 have the witness direct the court on what the previous  27 record was that she considered to be of significance  28 in the process of evaluating the letter.  29 THE COURT:  I have no difficulty with that either.  I don't  30 think your friend will either, but I may be wrong.  31 MR. GOLDIE:  No, I think that the methodological question is  32 perfectly all right.  33 THE COURT:  Yes.  34 MR. GOLDIE:  But the word "evaluation" connotes judgment.  35 THE COURT:  Well, it is one of those beautifully ambiguous  36 words.  I remember with Mr. Justice Verchere asking an  37 expert how he found the landslide.  Mr. Justice  38 Verchere couldn't understand whether it meant how was  39 it discovered or how was it feeling.  4 0 MR. RUSH:  41 Q   Well, maybe I can try this question, my lord, and see  42 if this assists.  Dr. Lane, in considering Mr.  43 Trutch's memorandum of the 13th of January, 1870, what  44 methodological tools did you bring to bear in term  45 determining the significance of the passages that you  46 have directed to his lordship?  47 A  Well, I used the standard historical, 16799  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 historiographical, ethnohistorical techniques in  2 assessing a given document by looking at the writer,  3 who the writer was, what position he held at the time,  4 who the written document was prepared for, what the  5 circumstances were that occasioned it to be written  6 and prepared context which we discussed just before  7 looking at the document.  And then since it purports  8 to review history, I looked back to the  9 contemporaneous events in that history and writings by  10 the actors in those events, by the documents that were  11 referred to, and by commentary at that time on those  12 events and those documents.  13 So that in this instance certain comments that  14 purport to relate historical events such as whether  15 the Cowichan Indians demanded payment for their land  16 or whether government had ever promised them payment  17 for their land.  Specific items like that can be  18 tested against a large body of other records which  19 were made in the past to which Mr. Trutch is making  20 reference to see whether his summary accords with the  21 record that has been laid down in the previous years.  22 And I find, for example, I would look to Mr.  23 Douglas' language used in the treaties as to what he  24 says the payments are for, whether they are for amity  25 and friendship from the Indians or whether they are  26 for lands that are seeded or claims to land which are  27 being extinguished, whatever language was used in the  28 document.  I would look then to Douglas' reports on  29 his treaties to London in which he says what it was he  30 did and what he spent that money for.  I would look at  31 the series of letters initiated by Governor  32 Blanshard's correspondence to the Colonial office as  33 to the manner in which the Hudson's Bay Company at  34 Victoria was accounting for the monies spent for the  35 extinguishment of Indians lands and the series of  36 letters between the office and the Hudson's Bay  37 Company in London which purport to describe what those  38 monies paid for by Douglas to the natives were for.  39 And then I would look at the whole series of  4 0 documents that we have been reviewing, I believe  41 yesterday, as to the need for government to take  42 action to expend money to extinguish Indian claims in  43 London which occurred, as I recall, in the  44 contemporaneous accounts of the discussions in the  45 House of Assembly and the address of Governor Douglas  46 to the assembly in which he alerts them to the need to  47 expend money to extinguish Indian land claims in 16800  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 Cowichan Valley and elsewhere.  2 I would refer specifically, and I don't recall the  3 date, but it would have been sometime in mid-year in  4 1862 which describes the return of Governor Douglas  5 from the Cowichan Valley with the 100 intending  6 settlers and recounts that he had explained to the  7 Indians who were there that they would return later in  8 the fall and pay the Indians for their land claims in  9 that valley.  But they wouldn't do it now because most  10 of the Cowichan Indians were away at their fishing  11 stations.  And perhaps I have said enough to respond  12 to the question.  There is a large volume of  13 documents, only some examples of which we have  14 discussed so far.  15 MR. GOLDIE:  Well, my lord, that is my concern.  What the  16 witness has done, assuming every reference that she  17 has in mind is in these documents is perfectly all  18 right.  But for her to say there are a large number of  19 other documents is, in my submission, unsatisfactory.  20 If there is anything which supports what she thinks  21 that your lordship should have before you which would  22 assist my friend in whatever submission he wishes to  23 make on this letter, then it should be before the  24 court.  25 THE COURT:  Well, I'm not sure, Mr. Goldie, what you're imposing  26 upon counsel carrying the burden of proof is a burden  27 of calling all the evidence that relates to a point  28 rather than calling enough evidence to establish what  29 he thinks he needs in order to satisfy that burden.  I  30 think when one embarks upon an exercise of this kind  31 it's necessary to be selective.  I speak subject to  32 correction not having had complete argument.  But I  33 think counsel still has the right to select the  34 evidence which he thinks necessary to succeed.  And  35 for opposing counsel in an adversarial process to  36 supplement it to the extent that it thinks necessary  37 to answer whatever case is made out without any burden  38 of exclusivity being -- not exclusivity, exhaustion  39 being imposed upon either party.  I don't think either  40 of you have to pursue the burden of producing  41 everything.  You both have to produce what you think  42 you need to succeed.  43 MR. GOLDIE:  I accept that.  4 4 THE COURT:  Thank you.  45 MR. RUSH:  Dr. Lane, I want to refer you now please to the cover  46 letter that is at the same tab.  47 THE COURT:  Page what? 16801  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  THE COURT:  MR. RUSH:  Q  A  Q  Page 10 at 74.  Thank you.  It is tab 74, page 10, Governor Musgrave to Earl  Granville of January 29, 1870.  Do you have that in  front of you, Dr. Lane?  Yes, I do.  I direct your attention, please, to the second  paragraph which you have already directed his  lordship's attention to.  But I ask you, in  particular, to look at -- well, the whole of the last  sentence, and perhaps for context beginning earlier.  "As the circumstances alleged and referred to by  Mr. Green were antecedent to my aquaintance with  the Colonly, I referred to his letter to Mr.  Trutch, the Commissioner of Lands and works and  Surveyor-General for a report; I now enclose a  memorandum from that officer upon the subject.  From other sources of information I have every  reason to believe Mr.  Trutch's statement to be  correct."  Now, I direct your attention to, -- in particular to  this statement "from other sources of information."  I  would ask you if in your review of the documentary  record whether you have been able to find other  sources of documentary information to which Mr.  Governor Musgrave made reference or to which he had  reference at the time of making this statement?  MR. GOLDIE:  His statement, of course, is not confined to  documentary information.  THE COURT:  No.  MR. RUSH:  Unfortunately we are, my lord.  THE COURT:  Yes.  MR. GOLDIE:  Yes.  And I entirely agree with that.  MR. RUSH:  Q   Go ahead, Doctor.  A   Yes.  I made a diligent effort to search the  documentary records which would have been available at  that time and is still extent and available to us to  discover if there were any written records to which  Governor Musgrave referred that I might be able to  refer myself.  I was unable to find in any records  that I have searched anything that would support the  voracity of the allegations made in the memorandum.  I  did find a number of records from the government's own 16802  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  THE  MR.  MR.  THE  MR.  holdings of that era which appear not to conform to  Mr. Trutch's characterization, but I didn't find any  that would have supported it or supported the various  contentions made or statements made.  Q   Dr. Lane, would you look at tab 75, please.  Is this  document that is contained here a copy of the document  that is in appendix B to the previous tab, that is to  say the Musgrave to Earl Granville?  A   Yes.  Q   It seems to be from another source?  A   Yes.  If I may give the context of this.  Q   If you could just identify the source, please.  A   Yes.  This was a publication of the Aborigines'  Protection Society and the society had published Mr.  Green's letter and then published the response to it.  It was forwarded by the government.  COURT:  How did the society get it, I wonder?  WITNESS:  The Colonial office transmitted the reply that  they had received from the Aborigines' Protection  Society and suggested that they publish it.  COURT:  I see.  WITNESS:  Which they did.  RUSH:  Q   And this document I think it is called, what, "The  Colonial Intelligencer" is their house order?  A   It was a publication.  RUSH:  Now, Dr. Lane, I would like to ask you now to turn to  tab 81 please.  80?  COURT  RUSH:  Q  A  A  Q  A  81.  This is a publication entitled "Correspondence of  Sir John Macdonald".  I wonder if you could direct his  lordship's attention to any letter which you  considered in the course of your research.  Yes.  Beginning midway on page 183 there is a letter  dated October 14, 1872 which was sent by Lieutenant --  then by that time Lieutenant Governor Joseph Trutch to  Sir John A. Macdonald.  This is after the union of British Columbia with  Canada in 1871?  That's correct.  And what, if anything, would you direct his lordship's  attention to in this letter?  Well, there is a discussion of the appointment of Dr.  Powell to be the first Indian agent or superintendent  for the Dominion in the New Province of British  Columbia and discussion of Indian affairs and Indian 16803  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 policy in British Columbia.  And at page 185 in the  2 first long full paragraph -- it is not a full  3 paragraph.  It begins at page 184.  But midway in that  4 long paragraph at the top of page 185 Trutch advises  5 Macdonald as to his views regarding Indian policy in  6 British Columbia.  And he says, and I quote:  7  8 "Then as to Indian policy I am fully satisfied  9 that for the present the wisest course would  10 be to continue the system which has prevailed  11 hitherto, only providing increased means for  12 educating the Indians, and generally improving  13 their condition moral and physical.  The Canadian  14 system, as I understand it will hardly work here.  15 We have never bought out any Indian claims to  16 land, nor do they expect we should, but we  17 reserve for their use and benefit from time to  18 time tracts of sufficient extent to fulfil all  19 their reasonable requirements for cultivation or  20 grazing.  If you now commence to buy out Indian  21 title to the lands of B.C. you would go back of  22 all that has been done here for 30 years past and  23 would be equitably bound to compensate the  24 tribes who inhabited the districts now settled  25 farmed by white people, equally with those in the  26 more remote and uncultivated portions.  Our  27 Indians are sufficiently satisfied and had better  28 be left alone as far as a new system towards them  29 is concerned, only give us the means of educating  30 them by teachers employed directly by Government  31 as well as by aiding the efforts of the  32 missionaries now working among them."  33  34 Excuse me, I will also direct attention -- I won't  35 read it here, but I will also direct attention to the  36 following paragraph in which Trutch suggests that the  37 Lieutenant Government, the post which he holds, would  38 be the appropriate one for directing any new policy in  39 the province.  40 Q   Now, Dr. Lane.  41 A   Yes.  42 Q   Did you evaluate this correspondence between Trutch  43 and Macdonald at that date in light of the record  44 which you have examined?  45 A   Yes.  I employed the same methodology as I have  46 already described.  47 Q   And in terms of that description with regard -- I take 16804  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 it when you say that you had previously described it,  2 in relation to what?  3 A   I looked to the context of this particular document,  4 the purpose for which it was written, the time at  5 which it was written, the decisions which were being  6 taken by the Dominion Government at this time in  7 respect of establishing Indian policy and a framework  8 of officials to carry it out.  And considered that  9 context in which these statements and recommendations  10 and statements about past policy were made, and  11 reviewed them in that context as well as comparing  12 them with statements that had been made earlier by  13 Trutch and by others.  14 Q   Now, Dr. Lane, would you please look to tab 85?  15 A   Yes.  16 Q   Dr. Lane, just before I take you to this tab, in  17 reference to Mr. Trutch's letter of the 13th of  18 January of 1870, you indicated that you had reviewed  19 certain documents in the course of assessing or  20 evaluating that letter.  I would ask you in terms of  21 the documents that you reviewed in respect of Mr.  22 Trutch's letter to Mr. Macdonald, did you look at  2 3 similar documents?  24 A   Yes.  25 MR. GOLDIE:  Similar document to which, please?  2 6    MR. RUSH:  27 Q   Similar documents -- my use of the word "similar" was  28 similar documents in reference to your review of the  29 record in relation to the letter of the January 13,  30 1870?  31 A   Yes, I did.  32 Q   Now, tab 85, Dr. Lane.  What is -- can you identify  33 this document, please, Dr. Lane?  34 A   Yes.  This is an order of the Privy Council which was  35 approved by the Governor General of Canada on 16th  3 6 June 1873.  37 Q   And to what passage would you direct our attention to,  38 please?  39 A  Well, to the entire document which is concerned with  40 setting up a board of commissioners or two boards of  41 commissioners, actually, to deal with Indian affairs  42 in the Northwest Territories and the New Province of  43 Manitoba on the one hand, and the second board to deal  44 with Indian affairs in the New Province of British  45 Columbia.  I would direct your attention to the first  46 paragraph which sets that general matter out.  And  47 then on the second page of the -- no, excuse me, the 16805  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 third page of the document --  2 Q   All the pages seem to be marked three.  3 A   Because they were item three in a collection of  4 documents.  The pages are not numbered.  5 Q   Is this the fourth page in sequence?  6 A   I guess it is the fourth page in sequence that I am  7 looking for.  8 THE COURT:  I'm sorry, starting "That this board"?  9 THE WITNESS:  Yes, "That this board".  The final word on the  10 page is "should" underlined.  I believe it is the  11 fourth page of the tab.  12 THE COURT:  Yes, I have it.  13 THE WITNESS:  "That this Board under the direction of the  14 Superintendent General of Indian Affairs at Ottowa  15 should suggest the general principles under which  16 the Indians are to be dealt with, arrange under  17 the directions of the Superintendent General all  18 negotiations and treaties with the Indian  19 Tribes and report from time to time the bases upon  20 which all questions of general policy re Indian  21 Affairs should be settled."  22  23 Now, this board in the first -- the beginning of the  24 first sentence there refers to the board that is being  25 set up to deal with Indian affairs in the Northwest  26 Territories and the New Province of Manitoba.  But if  27 you continue to the next page, it says P.C.14 at the  28 top.  The first full paragraph beginning there:  29  30 "The Secretary of State recommends that a Board  31 with similar Powers should be constituted in  32 British Columbia consisting of the Lieutenant  33 Governor and two subordinate Commissioners - one  34 of those to be a Protestant, the other a Roman  35 Catholic - that they should be jointly the  36 Executive officers, and should so alternate their  37 duties that one would always be at the Head Office  38 at Victoria..."  39  40 et cetera, et cetera.  41 Q   Dr. Lane.  42 A   Yes.  43 Q   In your review of the documentary record, were you  44 able to determine whether or not the board as  45 suggested to be constituted was in fact constituted?  46 A   Yes, it was constituted.  Mr. Trutch as Lieutenant  47 Governor was meant to be the chief officer and Dr. 16806  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 Powell who had been appointed the first Indian agent  2 for British Columbia was the second member and Mr.  3 Lenihan was appointed subsequent to this to be the  4 third member of the board.  5 THE COURT:  What is that name?  6 THE WITNESS:  Lenihan, L-E-N-I-H-A-N.  7 MR. RUSH:  8 Q   And does the documentary record indicate whether or  9 not the board functioned?  10 A   The board started to function, but immediately there  11 was a problem because Mr. Trutch disapproved of  12 actions taken by Mr. Powell who felt he had the  13 authority to act as the Indian superintendent for  14 British Columbia.  Mr. Trutch felt that the actions  15 taken by Mr. Powell were inconsistent with Trutch's  16 other role as Lieutenant Governor of the Province of  17 British Columbia.  There was correspondence relating  18 to this, and eventually the board was terminated  19 because Mr. Trutch felt it couldn't function with him  20 as Lieutenant Governor and head of the commission.  21 THE COURT:  Is that name Howell or Powell?  22 THE WITNESS:  Powell, P-O-W-E-L-L.  2 3 MR. RUSH:  24 Q   Now, I would like to address -- have you turn your  25 attention, Dr. Lane, to Dominion policy with regard to  26 native title in British Columbia.  My question is that  27 after the union of British Columbia with Canada in  28 1871, do the documents address the issue of the  29 recognition of Indian title in British Columbia?  30 A   Yes.  31 Q   And what would you direct our attention to in this  32 respect to begin with?  33 A  Well, I think the first substantive action taken by  34 the Dominion Government was the setting up of the  35 board just discussed which was to make treaties with  36 Indians in British Columbia for the extinguishment of  37 the native title.  38 MR. RUSH:  And I want to direct your attention to tab 78.  39 MR. GOLDIE:  Excuse me, what document are we referring to for  40 that, please?  41 MR. RUSH:  That was document 85.  Tab 85.  42 MR. GOLDIE:  Is that what the witness is relying on for her last  43 answer?  4 4 MR. RUSH:  45 Q   I'm not sure.  In terms of your last --  46 A   I was just referring to the last document we were  47 referring. 16807  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  THE  THE  THE  THE  THE  THE  MR.  THE  MR.  COURT:  Does it mention Indian title?  WITNESS:  No, I believe it does not.  I believe it says  "treaties".  COURT:  Where is that?  WITNESS:  Oh, that was at page -- the fifth page of the tab.  COURT:  Which page?  WITNESS:  The fifth page.  The one where the word "should"  is at the bottom of the page.  COURT:  Yes.  WITNESS:  "That this Board under the direction of the  Superintendent General of Indian Affairs at Ottawa  should suggest the general principles under which  the Indians are to be dealt with, arrange under  the directions of the Superintendent General all  negotiations and Treaties."  COURT:  Yes.  GOLDIE:  That's the board for the Northwest Territories.  I  assume the witness is referring to the word "similar  powers" with respect to B.C.?  Yes.  COURT:  RUSH:  Q  A  Q  A  Q  A  Q  A  Q  A  Now, Dr. Lane, I had directed your attention to tab  78.  This is an extract taken from the papers  relating.  And I, in particular, ask you to look at  enclosure number 2, a memorandum at page 78.  It is  page 151, enclosure 2.  That is from Mr. Laird, David  Laird of the Interior?  That's correct.  Could you just advise his lordship -- Minister of the  Interior of the Dominion Government?  Yes.  And to whom is this memo directed?  To the Governor General and Council so stated in the  first sentence of the memorandum.  All right.  And the context of the document, Dr. Lane,  can you advise us of that?  The unsatisfactory state of the land question in the  Province of British Columbia.  And what would you direct our attention to in the  document, please?  I ask you if you would look to page  152.  Well, before going there I would simply say that the  introductory sections of this memorandum refer to the  ongoing disputes that have -- between the Dominion  Government and the Province that have been going on  since the establishment of the province and the  discussions between the two governments relating to 1680?  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  THE  COURT  5  MR.  RUSH:  6  Q  7  8  9  A  10  11  12  13  14  15  16  17  18  19  20  21  THE  COURT  22  MR.  RUSH:  23  THE  COURT  24  MR.  RUSH:  25  26  THE  COURT  27  MR.  RUSH:  28  Q  29  30  31  A  32  Q  33  A  34  Q  35  A  36  Q  37  38  39  40  A  41  42  43  44  Q  45  46  A  47  Q  Indian affairs in British Columbia.  These concern the  land question in the final paragraph on page 151 which  I would direct your attention to.  :  Yes, I've read that.  And on page 152, Dr. Lane, I am just directing your  attention and I will direct your attention to the  paragraph after halfway beginning "When the framers".  Yes.  Mr. Laird's observation, and I quote:  "When the framers of the Terms of admission of  British Columbia into the Union inserted this  provision, requiring the Dominion Government to  pursue a policy as liberal towards the Indians as  that hitherto pursued by the British Columbia  Government, they could hardly have been aware of  the marked contrast between the Indian policies  which had, up to that time, prevailed in Canada  and British Columbia respectively."  :  Where do you find that, please, on page 152?  Yes.  :  Whereabouts?  It is just after the middle hole beginning "When the  framers".  :  Yes.  And on page 155, Dr. Lane, I direct your attention to  the first paragraph and would ask if you took that  into account as being significant?  You mean the first paragraph at the top of the page?  That's correct.  In the Laird memo?  Yes.  Yes, I did.  And, Dr. Lane, the circulation of the memo -- I direct  you to tab 79.  Would you assist the court in  determining the circulation by reference to enclosure  number 1?  Yes.  The Laird memorandum was made available to the  Privy Council by the Governor General and was  eventually circulated to the colonial office in  England.  And was it circulated to the representatives of the  Province of British Columbia?  Yes, if you --  I would ask you to go to tab 80. 16809  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 A   Thank you.  2 Q   The bottom of page 150 at tab 80.  3 A   Yes.  This is a document from The Under Secretary of  4 State to the Lieutenant Governor of British Columbia  5 in which the memorandum is provided to that government  6 for their consideration.  7 Q   Who was the Governor General at this time?  8 A  Mr. Dufferin.  9 Q   Now, are you able to determine from the record whether  10 or not he received a copy of the memo?  11 A  Mr. Dufferin?  12 Q   Yes.  13 A   Yes, he did.  It was he who forwarded it with one of  14 his dispatchers to England to Lord Carnarvon.  15 Q   I would just ask you to look at tab 82, please.  And  16 at tab 82 is a document with the heading "The Earl of  17 Dufferin to the Earl of Carnarvon", December 4, 1844.  18 Is this what you are referring to?  19 A   This is the document I was referring to in which one  2 0 of the documents was the Laird memorandum.  21 MR. GOLDIE:  That would be one of the papers attached to the  22 Order in Council.  23 THE COURT:  That was the Order in Council which set up the  24 board?  25 MR. GOLDIE:  No, this was an Order in Council that considered  2 6 Mr. Laird's memorandum and recommended certain action  27 to be taken.  2 8 THE COURT:  We haven't come to that yet.  29 MR. GOLDIE:  And I don't know whether it is in here, my lord.  30 THE COURT:  All right.  31 MR. RUSH:  32 Q   What is the source of this document, Dr. Lane?  33 A   I procured this document from the Public Archives of  34 Canada in Ottowa.  It is dispatch number 294 dated  35 December 4, 1844 from the Governor General, Mr.  36 Dufferin, to the Earl of Carnarvon.  37 It was a very long dispatch concerned with Indian  38 matters in British Columbia and contained as an  39 enclosure the Laird memorandum that we've been  40 discussing.  But it sets out in great length in  41 official dispatch the concerns of the Governor General  42 about Indian policy in British Columbia at that time.  43 MR. GOLDIE:  My lord, excuse me.  These are official documents.  44 This isn't a private correspondence.  In accordance  45 with his constitutional duties, the Governor General  46 of Canada is transmitting an Order in Council with the  47 attached procedures.  This was the appropriate 16810  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 procedure to the Colonial office.  2 THE COURT:  Yes.  3 MR. GOLDIE:  Now, I am at a loss to understand the basis for  4 excluding the Order in Council.  5 MR. RUSH:  Well, my friend may be at a loss, my lord, but I  6 think I am entitled to demonstrate the circulation in  7 the manner that I have indicated.  If my friend wishes  8 to allude to the Order in Council, he may do so.  9 MR. GOLDIE:  I want to point out, my lord, that this is not a  10 private letter.  This is the manner in which all  11 Orders in Council went to the Colonial office.  12 THE COURT:  Well, it starts by saying:  "In transmitting for  13 Your Lordship's consideration the enclosed Order in  14 Council."  15 It falls within that category of documents we  16 mentioned earlier which I think I should have before  17 me as part of the context of the document.  18 Shall we take the morning adjournment?  19 THE REGISTRAR:  Order in court.  Court will recess.  2 0 (PROCEEDINGS ADJOURNED AT 11:20)  21  22  23  24 I hereby certify the foregoing to  25 be a true and accurate transcript  26 of the proceedings herein to the  27 best of my skill and ability.  28  29  30  31    32 LISA FRANKO, OFFICIAL REPORTER  33 UNITED REPORTING SERVICE LTD.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 16811  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  B. Lane (for Plaintiffs)  In chief by Mr. Rush  (PROCEEDINGS RESUMED AT 11:35 a.m.)  THE REGISTRAR:  Order in court.  THE COURT  MR RUSH:  THE COURT  MR RUSH:  THE COURT  MR RUSH:  THE COURT  MR RUSH:  Q  A  Q  A  Mr. Rush.  Thank you.  Direct your attention again to tab 82, Dr.  Lane, and I would ask you if you would look please to  the 11th page in sequence and unfortunately, my lord,  these aren't numbered.  The 11th page.  The 11th page along from the beginning, and I would  ask you if you had reference to this in your selecting  this document?  Is this part of the letter from Lord Dufferin?  Lord Dufferin.  The Earl of —  That's right, beginning, "In Canada, you accept the  theory has been..."  Yes, I did.  And —  You are referring to the paragraph that begins:  "In Canada, the accepted theory has been that  while the sovereignty and jurisdiction over any  unsettled territory is vested in the Crown,  certain territorial rights, or at all events  rights of occupation, hunting, and pasture are  inherent in the aboriginal inhabitants."  Yes, I took that into account.  Q   And I would just ask if you would look over page 11 -  balance of page 11 and 12 and if you took that into  account in determining the significance of this?  A   Yes.  This is the discussion about the need to -- or  the past policy of always extinguishing Indian title.  THE COURT:  Over the page, "Extinguished and the Districts..."  THE WITNESS:  "... formally surrendered by the tribes or bands  which claimed them for a corresponding equitable  consideration."  MR RUSH:  Q  A  Q  A  And that's down to the end of that page, is it?  Yes.  All right.  Dr. Lane, would you look at tab --  That doesn't end at the bottom of the page.  It  continues to the next. 16812  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  Q  2  A  3  Q  4  5  A  6  7  8  9  10  11  Q  12  A  13  14  15  16  Q  17  A  18  MR.  GOLDI  19  20  21  22  23  MR  RUSH:  24  Q  25  26  A  27  Q  28  A  29  MR.  RUSH:  30  MR.  GOLDI  31  MR  RUSH:  32  Q  33  34  35  36  A  37  38  Q  39  40  41  42  A  43  44  45  Q  46  47  Thank you.  Direct your attention now to tab 83?  Yes.  And can you identify this for us, please, and its  source?  Yes.  This is a typescript copy at the Public Record  Office, the specific source being listed there as  CO.42/730.  It is a minute which was placed on  Dufferin's dispatch to Carnarvon of 4 December 1874,  the same one we had been looking at, and it was a  minute which was entered on that dispatch in England.  And what does that indicate to you, if anything?  Well, the minute by Mr. Blaine, which was made  December 18, 1874, discusses whether action is  required at this juncture from the colonial office on  the matters raised in the dispatch.  These are public records, are they, doctor?  Yes, they are.  E:  I wonder, however the witness might assist us,  these are of course all written in longhand on the  original document.  Is the typescript the one that is  found in Ottawa or the typescript as taken from  microfilm here?  Dr. Lane, in the upper left-hand corner of the first  page at tab 83, it indicates Public Record Office?  Yes.  Is that the place where this document was housed in?  Yes.  Britain.  E:  That's the original now.  I will just lead to it, please.  And the typescript  that you have made reference to, is that a typescript  that was housed in that office or a typescript housed  in some other facility?  I cannot determine that from looking at the material  in the tab here and I cannot recollect at this time.  Thank you.  I was about to ask you if there were any  letters which were of a private nature that related to  the subject of the public correspondence on -- written  by Lord Dufferin?  Yes.  Lord Dufferin wrote both officially as in the  dispatch that we have been discussing and he also  wrote privately to Lord Carnarvon.  Now, I direct your attention to tab 84.  Excuse me, my  lord, it wasn't 84.  I had intended to direct the  witness' attention to -- yes, I am sorry.  Just before 16813  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 we go to the private correspondence, Dr. Lane, I had  2 neglected to direct your attention to tab 84 and if  3 you could just identify this document for us?  It is  4 signed by David Laird, Minister of the Interior, and  5 it indicates enclosure in Lord Dufferin number 294,  6 December 4, 1874.  7 A   This is simply a handwritten copy of the material that  8 we have looked at earlier.  The same Laird memo that I  9 mentioned had been sent by Dufferin to Carnarvon when  10 you asked me earlier about the circulation of the  11 Laird memo.  12 Q   Yes, all right.  Thank you.  That's the longhand  13 version of the memo?  14 A   Yes.  I simply --  15 Q   The Laird memo?  16 A   -- included it here because it's marked at the top,  17 Enclosure in Lord Dufferin's dispatch number 294,  18 December 4, 1874.  19 MR. RUSH:  And for cross-reference, my lord, the Laird memo that  20 the witness has referred to is at tab 78.  21 THE COURT:  Yes.  22 MR RUSH:  23 Q   Thank you.  Now, I am going to ask you about --  24 A   If I might just assist here, the handwritten copy of  25 the memo at tab 84 is the copy that was sent to me by  26 the provincial archives in Ottawa -- not the  27 provincial, the national archives -- the public  28 archives in Ottawa when I requested the Dufferin  29 dispatch of the date with enclosures.  30 Q   Now, I'd like to have volume 2 set aside, madam  31 registrar, and refer the witness to volume 3.  And if  32 you will turn please, Dr. Lane, to tab 86 and I would  33 ask you if this is one of the letters of private  34 correspondence of Lord Dufferin that you made  35 reference to a moment ago?  36 A   The letter dated November 26, 1874, which begins at  37 the bottom half of page 111 and continues over to 112,  38 is one of the private letters from Dufferin to  39 Carnarvon that I made reference to, yes.  40 Q   Okay.  And would you direct his lordship's attention  41 to any particular part of that letter?  42 A   Yes.  At page 112, I believe, the final paragraph  43 begins:  44  45 "By next mail I shall be sending you very important  46 Despatch covering an Order in Council relative to  47 the unsatisfactory position of the Indian question 16814  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 in British Columbia.  That Province appears to be  2 treating its Indian subjects with great harshness.  3 It does not recognize any obligation to extinguish  4 the Indian title, before dealing with the Crown  5 Lands."  6  7 And then it goes on discussing the size of the  8 reserves.  9 Q   At tab 87, is this another private letter from  10 Dufferin to Carnarvon?  11 A   Yes, it is.  12 Q   It is in the Dufferin/Carnarvon correspondence, and  13 dated December 21, 1874.  I direct your attention to  14 page 125 of that letter?  15 A   Yes.  In the middle of the page there is a paragraph:  16  17 "I don't think I have written to you privately on  18 the subject of the long 'British Columbia Indian'  19 Despatch I had to send you.  I don't think that  20 there is anything to add to the case set forth in  21 the official papers.  The B.C.'s have evidently  22 been behaving very badly, and they certainly  23 should be required to extinguish the Indian title  24 before assuming possession of the lands, which is  25 the universal principle observed in every province  26 of the Dominion, but the truth is British Columbia  27 is hardly a large enough Community to have as yet  28 developed a conscience.  If we leave out of  29 account the mining population, who are a migratory  30 class, I don't think there are more than two  31 thousand families in the whole Province, including  32 the capital, and most of those are more or less  33 adventurers, without that sense of responsibility  34 which is engendered under a more multiform and  35 important polity."  36  37 Q   Now, I refer you to tab 88.  This is the report of the  38 Honourable the Minister of Justice, approved by His  39 Excellency the Governor General in Council dated  40 January 19, 1875, and it's over the signature of Mr.  41 Bernard who is Deputy Minister of Justice?  42 A   Yes.  43 Q   And what were the circumstances of this report, in  44 summary, Dr. Lane?  45 A  Well, you will recall that the dispatch of Dufferin to  46 Carnarvon is December 1874, and we are dealing here  47 with a report a couple weeks later in 19 January 1875. 16815  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 I think the context is somewhat clear.  There were  2 concerns and discussions going on about the state of  3 Indian affairs in British Columbia, the failure to  4 extinguish Indian title, and this is a report  5 concerned with whether certain laws enacted in British  6 Columbia should be allowed or disallowed by the  7 Dominion Government, and there is a reference here to  8 an act to amend and consolidate the laws affecting  9 Crown Lands in British Columbia which is discussed in  10 the report.  It is a report prepared by the Justice  11 Department and approved by His Excellency the Governor  12 General in Council, 23 January 1875.  13 MR. RUSH:  All right.  I direct your attention to —  14 MR. GOLDIE:  Well, my lord, surely that's an inadequate  15 description of the context.  This is the usual manner  16 in which the Dominion considered the disallowance of  17 Provincial legislation.  The Provincial legislation  18 being passed on the 2nd of March, 1874, and if it  19 isn't disallowed within the year, it operates.  20 THE COURT:  It operates until the disallowance even until --  21 MR. GOLDIE:  Yes, that's correct, which has caused some  22 problems.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  This is -- the power of disallowance was of course  25 exercised many times by the Dominion during this  26 period.  2 7 MR RUSH:  28 Q   And this was one of those times that was exercised,  29 was it, Dr. Lane?  30 A   That's correct.  31 MR. RUSH:  And, Dr. Lane, can you say whether or not this was a  32 usual or an unusual manner with regard to the means by  33 which disallowances occur.  34 MR. GOLDIE:  My lord, that is a question of law.  35 THE COURT:  The question is, is this the usual manner of  36 disallowance, was it not?  37 MR. RUSH:  Yes.  My lord, my friend makes an assertion that this  38 is the usual manner, and whether it is usual or not, I  39 am not directing the witness' attention to it but, if  40 he raises it, I think it becomes a matter of fact and  41 we should find out if the witness knows whether or not  42 it is the usual manner or it isn't.  43 THE COURT:  There is only one way to disallow, and that's by the  44 exercise of the authority of the Governor General in  45 Council, is it not?  46 MR. GOLDIE:  Under I think it is Section 55 of the British  47 North America Act. 16816  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  MR ]  RUSH:  2  3  THE  COURT  4  MR.  RUSH:  5  6  7  8  9  10  11  12  THE  COURT  13  MR ]  RUSH:  14  THE  COURT  15  MR.  RUSH:  16  THE  COURT  17  MR.  RUSH:  18  Q  19  A  20  Q  21  A  22  Q  23  24  A  25  26  27  28  29  30  31  32  33  Q  34  35  36  37  A  38  Q  39  A  40  41  42  43  Q  44  A  45  Q  46  47  A  I took it to mean by means of a report of the Deputy  Minister of Justice.  :  You mean the proceedings leading up to disallowance?  Yes.  Not talking about the legal means by which it  is done, but here -- these are the physical means if I  can put it that way.  In any event, Dr. Lane, let's return to the  document and I direct your attention to tab or page  1027 and at the bottom of the page, would you take  this into account in determining the significance of  the document, Dr. Lane?  :  1027?  Yes.  :  The bottom?  Yes.  :  Last paragraph?  Yes.  Yes, I did.  That runs over to the top of the page 1028?  Correct.  And Dr. Lane, I ask you to look at the middle  paragraph on page 1028 of that tab?  Yes.  The two line paragraph mid page reads:  "That which has been ordinarily spoken of as the  'Indian Title' must of necessity consist of some  species of interest in the lands of British  Columbia."  The context of that remark is explained in the  preceding discussion.  Thank you.  Now, at tab 89, Dr. Lane, there is a  report of the Minister of Justice of November 10,  1875, Minister at that time being Mr. Edward Blake.  Now, was this report approved?  Yes , it was.  And what is the indication of its approval?  Just above the date line 30 October 1875, in  italicized print, report of the Honourable the  Minister of Justice, approved by His Excellency the  Governor General in Council on 10 November 1875.  The date of this report is October 30, 1875?  Yes.  Just ask you to look at the concluding two paragraphs  on page 1036?  Yes. 16817  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 Q   Did you take those into account in determining the  2 significance of this document?  3 A   I did.  4 Q   Now, if you will look to page 1038, there is a report  5 of a Mr. Humphries.  Do you see that?  6 A   Yes.  7 Q   And this says dated or approved on the 20th of April,  8 1876?  9 A   That's correct.  10 Q   And I wonder if you took any portion of that into  11 account in relation to the previous report?  12 A   Yes.  We have skipped over it, I believe, but I think  13 in the previous report the -- well, the question  14 that's being discussed is whether the act relating to  15 the Crown Lands in British Columbia which had been  16 disallowed earlier and has been slightly altered cures  17 the defects or not that were objected to by the  18 Department of Justice, and the comment is made that  19 they haven't been cured but that -- and I am reading  2 0 now from the paragraph above Mr. Humphries' name that  21 you were directing my attention to:  22  23 "That the objections to the Act, amending the Crown  24 Lands Act, are considered to be removed by the  25 agreement for the settlement of the Indian land  26 question by commissioners."  27  2 8 Q   And —  29 A   So they in effect allow the Act to go because of the  30 creation of a new device for settling such problems as  31 still exist.  32 THE COURT:  You mean allow the Act to be disallowed?  33 THE WITNESS:  No.  They allowed it — this time they didn't  34 disallow it.  They allowed it to go without being  35 disallowed because -- not that the defects in the law  36 that had been objected to had been cured but because a  37 new apparatus was going to be set up --  38 MR. GOLDIE:  Well, my lord —  39 THE WITNESS:  — described here.  40 MR. GOLDIE:  The report of the Minister of Justice makes it  41 perfectly clear, and he concludes with the words:  42  43 "Upon this assurance of the Government of British  44 Columbia the undersigned recommends that the Act  45 be left to its operation."  46  47 Which again is the usual points. 1681?  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 THE WITNESS:  Yes, that was the section I was looking for.  2 Where is that?  3 THE COURT:  Where is that, please?  4 MR. RUSH:  5 Q   Dr. Lane, would you look next to the report of the  6 Minister of Justice on May -- approved on May 6, dated  7 April 28, 1876, it follows on 1038 over to 1039, that  8 of Edward Blake, Minister of Justice, and I'd like to  9 direct your attention, if you will, to the middle of  10 page 1039.  I think you, at least by implication, had  11 referred to this?  12 A   Yes.  This is the passage I believe I was looking for.  13 Q   Now, if you will just direct us specifically, Dr.  14 Lane, to what it is you were directing us to?  In  15 paragraph 2, numeral 2, "By minute in council"?  16 A   Yes.  17 Q   It refers to the Act and then following that there was  18 a reference to the Lieutenant-Governor's communication  19 on this Act.  Do you have that?  20 A   Yes.  This was not what I was looking for.  This  21 simply repeats that:  22  23 "The Lieutenant-Governor's communication upon this  24 Act states that the objections taken by council to  25 it are considered to be removed by the agreement  26 for a settlement of the Indian land question by  27 commissioners."  28  29 And then the following material I believe is what I  30 was looking for:  31  32 "Although the undersigned cannot concur in the view  33 that the objections taken are entirely removed by  34 the action referred to; and, though he is of  35 opinion that, according to the determination of  36 council upon the previous Crown Lands Act, there  37 remains serious question as to whether the Act now  38 under consideration is within the competence of  39 the provincial legislature, yet since, according  40 to the information of the undersigned, the statute  41 under consideration has been acted upon, and is  42 being acted upon largely in British Columbia, and  43 great inconvenience and confusion might result  44 from its disallowance; and, considering that the  45 condition of the question at issue between the  4 6 two governments is very much improved since the  47 date of his report, the undersigned is of opinion 16819  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 that it would be the better course to leave the  2 Act to its operation."  3  4 Q   Now, the reference to commissioners, Dr. Lane, in the  5 preceding paragraph, what is that to, do you know?  6 A   This refers to a three-man body of Indian reserve  7 commissioners which were set up by joint agreement of  8 the two governments, the Government of Canada and the  9 Government of British Columbia.  The one commissioner  10 being the representative of the Dominion Government,  11 the second commissioner being a representative of the  12 Provincial Government, and the third commissioner  13 being a joint commissioner answerable to both  14 governments.  And they were to try to resolve the  15 questions relating to Indian lands in British  16 Columbia.  More specifically, they directed their  17 attention to the allocation of reserves -- Indian  18 reserves in British Columbia.  19 Q   All right.  Now, that report is dated April 28, 1876.  20 Following upon that, Dr. Lane, are there documents  21 which indicate any statements of policy with regard to  22 Native title in British Columbia?  23 A   Yes.  24 Q   And to what would you draw his lordship's attention?  25 A  Well, the following year, 1877, was one of great  26 excitement about the Indian land question in British  27 Columbia.  As the Indian reserve commissioners began  28 their work in the interior of the province there was,  29 among other things, concern that there might be a  30 general outbreak of Indians dissatisfied with the  31 non-extinguishment of Indian title.  32 Q   And I direct you to tab 90.  33 A   Yes.  34 Q   The document entitled The History of the  35 Administration by the Earl of Dufferin, Governor  36 General of Canada.  And I would ask firstly if you can  37 identify what this document is?  38 A   Yes.  The title is The History of the Administration  39 of the Right Honourable Frederick Temple, Earl of  40 Dufferin, and this is a book published in 1878, the  41 author is William Leggo of Ottawa, Barrister, Late  42 Master in Chancery at Hamilton, Ontario, and discusses  43 the questions that we have been discussing here at  44 page 454, 455, and following.  45 Q   And I direct your attention to 471?  46 A   Yes.  47 Q   Well, just before — first to 455 — 16820  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A   Yes.  Q   -- Dr. Lane.  It indicates at the bottom of 455 that  the Earl of Dufferin made a speech at Government  House, and it seems to be then in parenthesis and  indented the speech?  A   That's correct.  Q   Am I correct?  Now, may I just ask you what the  circumstances were of Lord Dufferin being in British  Columbia at that time?  A   Yes.  There were grave questions and dissatisfaction  as between the British Columbia Government and the  Dominion Government over the failure of the Dominion  Government to live up to some of the promises made to  British Columbia at the time of union, and the  Governor General had come out on a mission of  diplomacy in order to reassure the people of British  Columbia that the Dominion Government would not  neglect their interests.  Q   And this speech that he -- that is reported here  beginning at page 455, is that a speech that touches  on some of those matters at issue between the two  governments ?  A   Yes, it is, and it is made at the conclusion of  Dufferin's visit to British Columbia.  He has  travelled up the coast and visited various places and  received petitions and memoranda and so on from  various groups, both in Victoria and elsewhere, during  his travels in the province, and this is his final  address as he is quitting British Columbia to go back  to Ottawa.  Q   And in the course of that address, does he make  mention of questions pertaining to Native title in the  province?  A  At the close of the speech he does so, yes.  Q   And I direct you to 471, page 471 in the tab?  A   Yes.  About a little better than midway down the page  there is a sentence that begins:  "And now, gentlemen, I must bid you good-bye, but  before doing so there is one other topic upon  which I am desirous of touching.  From my  first arrival in Canada I have been very much  preoccupied..."  THE COURT:  I am sorry, I haven't found that yet.  THE WITNESS:  I am sorry, little better than midway down the  page and in the middle of the line: 16821  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  THE WITNESS  "And now, gentlemen, I must bid you good-bye."  Yes, all right.  Thank you.  "But before doing so there is one other topic upon  which I am desirous of touching.  From my first  arrival in Canada, I have been very much  preoccupied with the condition of the Indian  population in this Province.  You must remember  that the Indian population are not represented in  Parliament, and, consequently, that the Governor  General is bound to watch over their welfare with  especial solicitude.  Now we must all admit that  the condition of the Indian question in British  Columbia is not satisfactory.  Most unfortunately,  as I think, there has been an initial error ever  since Sir James Douglas quitted office, in the  Government of British Columbia neglecting to  recognize what is known as the Indian title.  In  Canada this has always been done:  no Government,  whether Provincial or central, has failed to  acknowledge that the original title to the land  existed in the Indian tribes and communities that  hunted or wandered over them.  Before we touch an  acre we make a treaty with the chiefs representing  the bands we are dealing with, and having agreed  upon and paid the stipulated price, oftentimes  arrived at after a great deal of haggling and  difficulty, we enter into possession, but not  until then do we consider that we are entitled to  deal with an acre.  The result has been that in  Canada our Indians are contented, well affected  to the white man, and amenable to the laws and  Government.  At this very moment the Lieutenant  Governor of Manitoba has gone on a distant  expedition in order to make a treaty with the  tribes to the northward of the Saskatchewan.  Last  year he made two treaties with the Crees and  Chippeways, next year it has been arranged that he  should make a treaty with the Blackfeet, and when  this is done the British Crown will have acquired  a title to every acre that lies between Lake  Superior and the top of the Rocky Mountains.  But  in British Columbia -- except in a few places  where, under the jurisdiction of the Hudson Bay  Company or under the auspices of Sir James 16822  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 Douglas, a similar practise has been adopted --  2 the Provincial Government has always assumed that  3 the fee simple, in as well as the sovereignty over  4 the land, resided in the Queen.  Acting upon this  5 principle they have granted extensive grazing  6 leases, and otherwise so dealt with various  7 sections of the country as greatly to restrict or  8 interfere with the prescriptive rights of the  9 Queen's Indian subjects.  As a consequence, there  10 has come to exist an unsatisfactory feeling  11 amongst the Indian population.  Intimations of  12 this reached me at Ottawa two or three years ago,  13 and since I have come into the Province my  14 misgivings on the subject have been confirmed.  15 Now, I consider that our Indian fellow-subjects  16 are entitled to exactly the same civil rights  17 under the law as are possessed by the white  18 population, and that if an Indian can prove a  19 prescriptive right of way to a fishing station, or  20 a right of any other kind, that that right should  21 no more be ignored than if it was the case of a  22 white man.  I am well aware that among the coast  23 Indians the land question does not present the  24 same characteristics as in other parts of Canada,  25 or as it does in the grass countries of the  26 Interior of this Province, but I have also been  27 unable to understand that in these latter  28 districts it may be even more necessary to deal  29 justly and liberally with the Indian in regard to  30 his land rights than on the prairies of the  31 North-West.  I am very happy that the British  32 Columbian Government should have recognized the  33 necessity of assisting the Dominion Government in  34 ameliorating the present condition of affairs in  35 this respect, and that it has agreed to the  36 creation of the joint commission for the purpose  37 of putting the interests of the Indian population  38 on a more satisfactory footing."  39  4 0    MR. RUSH:  41 Q   Now, the commission that's referred to there, Dr.  42 Lane, you previously referred to commissioners.  Does  43 this have any relationship to the --  44 A   The commission was made up of three commissioners.  45 Q   This was a public statement by Lord Dufferin?  4 6 A   Yes, it was.  47 Q   Did Lord Dufferin comment privately on similar 16823  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  2  A  3  Q  4  5  6  A  7  Q  8  9  10  11  A  12  MR.  RUSH:  13  MR.  GOLDIE  14  15  MR  RUSH:  16  Q  17  18  19  1  20  A  21  22  23  24  25  26  ]  27  MR.  GOLDIE  28  MR  RUSH:  29  Q  30  31  32  33  A  34  Q  35  i  36  37  38  i  39  40  41  THE  1 COURT:  42  MR  RUSH:  43  THE  1 COURT:  44  MR  RUSH:  45  THE  ; regist:  46  MR.  GOLDIE  47  MR  RUSH:  '  subj ects?  Yes, he did.  And if I turn you to tab 91, this again appears to be  a letter taken from the correspondence between  Dufferin and Carnarvon, July 27, 1877?  Yes.  And I direct your attention in particular to the first  two paragraphs.  Would you take this into account, Dr.  Lane, in considering the significance of this private  correspondence?  Yes, I did.  Now, did federal --  :  Your lordship will find the context in the third  paragraph, my lord.  I suspect your lordship will find the context in the  entire document but -- Dr. Lane, is there anything you  wish to comment in terms terms of the context of this  document?  Yes.  The first two paragraphs refer, or at least the  second paragraph refers retrospectively to the past  history and the first one-sentence paragraph and the  third paragraph set the context of the problems of the  summer of 1877 when, as I said earlier, there was fear  of a general Indian uprising with respect to the  matter of the unextinguished Indian title.  :  As a result of the Indian wars to the south.  Now, Dr. Lane, did the -- did representatives of the  Federal Government have an occasion to comment upon  Dominion policy or Imperial policy regarding Native  peoples in British Columbia?  Yes.  I want to direct the witness' attention to two  documents, neither of which are as yet tabbed but  which I will hand up to your lordship, which ought to  be placed in tabs 92 and 93, first of which is a  document David Mills to Powell, August 2, 1877, and I  am sorry, I will just give you the bench copy and the  witness' copy.  I am sorry, did you say 91 and 92?  92 and 93.  I am sorry, which series now?  It's in volume 2, it is the next tab.  RAR:  Volume 3.  :  Volume 3.  Volume 3, my lord. 16824  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  B. Lane (for Plaintiffs)  In chief by Mr. Rush  THE COURT  MR RUSH:  THE COURT  MR RUSH:  THE COURT  MR RUSH:  Q  A  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  MR RUSH:  Q  A  :  All right, volume 3.  Where were we at --  We are at tab 92 of volume 3.  Just insert it in  there.  :  I see, yes.  All right.  There is a place for it.  :  All right, thank you.  Now, Dr. Lane, David Mills, can you tell us who he  was, please?  He was at that time the Minister of the Interior.  Of Canada?  I am sorry?  Of Canada?  Yes.  Q  A  Q  A  Q  A  Q  A  A  Q  A  Q  A  And Mr. Powell?  Was the Indian Superintendent for the Dominion  Government in British Columbia.  Do you have tab 92 in front of you?  I am sorry?  Tab 92, the document at tab 92?  Yes, I do.  I will assist there.  And this document is dated  August 2, 1877, Ottawa?  Correct.  Now, Dr. Lane, I'd like to ask you if you would just  look at this document and direct his lordship's  attention to the passage of which you consider  significant?  The copy I have before me is very difficult to read.  Perhaps you could assist by giving me a page number  that I could scan here.  My copy is also difficult.  If you will turn to page  2, Dr. Lane, in the middle of the page beginning, "In  reading over..."  Do you see that?  Yes.  And I wonder if you consider that to be a significant  passage?  If you will give me a moment to read.  Yes, thank you.  Yes.  There is a word I can't read on this copy, but  this is a paragraph which sets out the prior policy  that's been pursued toward Indians in the province of  British Columbia and contrasts it with the policy in  other parts of the Dominion in Canada.  And if you can direct me to the word, perhaps I can  assist? 16825  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  A  2  Q  3  A  4  5  6  7  Q  8  9  10  A  11  Q  12  A  13  Q  14  15  16  17  A  18  Q  19  A  20  21  22  23  Q  24  A  25  26  27  28  29  30  31  32  33  34  35  Q  36  A  37  Q  38  39  A  40  MR. RUSH:  41  42  43  44  45  46  THE COURT  47  MR RUSH:  Well, turns out there is more than one word.  All right.  I can provide you -- I am sorry, I have a transcript  of this.  You don't seem to have it.  I'd be happy to  give you a typed transcript but I am having difficulty  reading the copy that's provided to me.  Perhaps we can provide the court with a typescript of  it in due course.  Now, Dr. Lane, I want to refer you  to page 5.  Of the same document?  Of the same tab.  Yes.  5 is also difficult to see but at the bottom of the  page, what appears to be the beginning of a new  paragraph, it says:  "I do not know whether..."  You  see that?  Yes.  "...the Government of Canada were fully aware"?  "...of the condition of things at the time British  Columbia was admitted into the union."  Yes.  "Whether they were aware that the Government of  British Columbia had undertaken to deal with the  Indian lands of this Province without first having  extinguished the Indian title, but however this  may be, there can be no doubt whatever that no  arrangement between the Government of Canada and  the Government of British Columbia could take  away the rights which the Crown has always  recognized as belonging to the..."  "...Indian natives"?  It appears to be Indian natives, yes.  All right.  Now, Dr. Lane, you have done an excellent  job in reading this.  Do you have a typescript of --  Yes, I do.  And perhaps we can assist the court with that as  well.  Now, I want to refer Dr. Lane's attention, my  lord, to the next document which I will ask you to  insert at tab 93 which is a letter from Mr. Mills to  Mr. Sproat of August 3, 1877.  :  Mills is the Minister of the Interior.  Yes, my lord. 16826  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR RUSH:  Q  And Sproat'  What position did Mr. Sproat hold at that time, Dr.  Lane?  A  Mr. Sproat was the joint -- he was one of the three  Indian Reserve Commissioners in the joint Indian  Reserve Commission and he was the commissioner that  represented jointly both the Provincial Government and  the Federal Government.  THE COURT:  I guess it is Sproat, is it?  MR. GOLDIE:  Sproat, yes.  THE COURT:  That's how the lake is pronounced anyhow.  MR RUSH:  Dr. Lane, if I may ask you to turn to the first  4 beginning the paragraph, "It is true that in  ."  Do you see that?  it is this paragraph  Q   Now,  page  the. .  A   Yes.  Q   And perhaps if I can assist  that you took into account?  A   Yes.  I think I can read that.  Q   All right.  A   Is that where you were?  Q   Yes.  I was going to ask if you could but, if you  couldn't, I will give it my best shot.  A   I think I can.  If I run into trouble, perhaps you can  assist.  "It is true that in the negotiations which took  place between the Government of British Columbia  and the Government of Canada, with a view to the  admission of that province into the union, the  Government of British Columbia assumed that they  had entire control of the territory of the  province."  I am not certain about the next word.  MR. GOLDIE:  And this assumption.  MR RUSH:  Q   And this assumption.  A  "And as this assumption was not questioned by the  Government of Canada but however..."  MR. GOLDIE:  There is an insertion.  MR RUSH:  Q   It looks like an insertion.  A   I guess the insertion is the material to the left. 16827  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  2 "...nor does it appear that the Canadian  3 authorities were at that time informed that no  4 treaties had been made with the Indians for the  5 surrender of the country."  6  7 And then it goes on.  I am afraid I cannot read my  8 copy.  9 Q   All right.  10 A   Oh, I can read it.  11  12 "But however this may be..."  13  14 Q   It is obvious.  15 A  16 "It is obvious that agreement between the  17 Government of Canada and the Government of British  18 Columbia could affect the rights which, in this  19 particular, the Crown has always recognized the  20 Indian population as having in the soil."  21  22 Q   Now, Dr. Lane, may I turn you as well to page 6, the  23 top of the page, seems to be an insertion in the  24 left-hand column?  25 A   Yes.  26 THE COURT:  Is this a letter or is this a draft?  Seems to be a  27 pretty --  28 THE WITNESS:  This appears to be — I am sorry.  29 THE COURT:  — pretty scribbled-up letter if that's what it is.  3 0 Do we know?  31 MR RUSH:  32 Q   Are you able to assist us?  33 A   I believe so.  34 THE COURT:  You believe it is a communication?  35 THE WITNESS:  I believe this is the copy that was retained in  36 Ottawa from which a clerk made a fair copy for  37 sending.  This is the only copy that we have been able  38 to discover.  The other copy would have gone to the  39 recipients and that final copy may no longer be  40 extant.  41 MR. RUSH:  42 Q   All right.  And the passage at the top of page 6,  43 please?  44 A   But if it will assist, this is the copy that's  45 retained in the records of the Department of Indian  46 Affairs.  It is with the collection of the papers of  47 the Indian Reserve Commission.  I am sorry? 1682?  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 Q   At the top of page 6?  2 A   Yes.  There was the -- I directed your attention to  3 the paragraph beginning, "In order that the question  4 may not be raised..."  5 A  6 "...and war avoided, it is of the utmost  7 consequence that the commissioners, in setting  8 apart reservations for the Indians, should make  9 them so ample as to avoid the necessity of  10 possible of raising the question.  It is certainly  11 in the interests of British Columbia, quite as  12 much as it is in the interests of any other  13 portion of the Dominion, that an Indian war should  14 not be provoked and the people of Canada generally  15 would not sustain a policy toward the Indians of  16 that province which is, in my opinion, not only  17 unwise and..."  18  19 THE COURT:  But also illegal.  20 THE WITNESS:  Yes, it is the word before "but" that I can't  21 read.  "Unwise and..." I am afraid I can't make out  22 the next word.  23 MR RUSH:  All right.  Thank you, Dr. Lane.  Now, my lord, I am  24 going on to another subject.  25 THE COURT:  All right.  Two o'clock, please.  26 THE REGISTRAR:  Order in court.  Court will adjourn until two.  27  28 (PROCEEDINGS ADJOURNED AT 12:30 p.m.)  29  30 I hereby certify the foregoing to be  31 a true and accurate transcript of the  32 proceedings herein, transcribed to the  33 best of my skill and ability.  34  35  36  37  38  39 TANNIS DEFOE, Official Reporter  40 United Reporting Service Ltd.  41  42  43  44  45  46  47 16829  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. RUSH:  Q  A  Q  A  Q  A  Q  A  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  :  Mr. Rush.  Referring the witness to tab 96 in volume 3.  This is  Treaty Number 8, Dr. Lane, made June 21, 1899.  I  would like to direct your attention, if you will, to  page A3 and would ask if there is language there that  you would direct his lordship's attention?  Yes.  The third from last paragraph, the very large  paragraph on the page that begins:  "As it is in the interest of the Province of  British Columbia, as well as that of the Dominion,  that the country to be treated for should be  thrown open to development and the lives and  property of those who may enter therein  safeguarded by the making of provision which will  remove all hostile feeling from the minds of  Indians and lead them to peacefully acquiesce in  the changing conditions, he the Minister would  suggest that the Government of British Columbia be  apprised of the intention to negotiate the  proposed treaty; and as it is of the utmost  importance that the Commissioners should have full  power to give such guarantees as may be found  necessary in regard to the setting apart of land  for reserves the Minister further recommends that  the Government of British Columbia be asked to  formally acquiesce in the action taken by Your  Excellency's Government in the matter and to  intimate its readiness to confirm any reserves  which it may be found necessary to set apart  within the portion of the Province already  described."  Thank you.  This refers to the north-eastern part of British  Columbia, Province of British Columbia, all that land  from the Rockey Mountains to the eastern boarder of  the province that is to be covered in Treaty 8 which  is made by the Dominion Government with the Indians.  Dr. Lane, this document comprises Treaty 8?  Yes.  It refers on the face page to adhesions?  Yes.  The treaty was first made in 1899.  But then the  decision had been taken, although they wouldn't be  able to meet with all of the Indians at one time since 16830  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 a large area was covered, to make one treaty and then  2 add on different groups of Indians from time to time  3 to adhesions to the treaty.  The first British  4 Columbia Indians were included in adhesion in the  5 following year, and some as late as 1910.  6 Q   Thank you.  Please refer to tab 97.  7 A   Yes.  8 Q   There are two typescripts of correspondence in this  9 tab?  10 A   Yes.  11 Q   The first typescript, is this prepared by you?  12 A   Yes, it is.  13 Q   And this appears to be a letter.  Can you indicate who  14 the sender and receiver were?  15 A   Yes.  A print-off from the microfilm is included under  16 the typescript.  The letter is from the Lieutenant  17 Governor of British Columbia to The Honourable  18 Secretary of State in Ottawa.  19 Q   And I direct your attention to the passage fourth line  20 from the bottom:  21  22 "That I have referred to the favorable  23 consideration of my Executive Council the request  24 that my government formally acquiesce in any  25 necessary steps taken by the Commissioner in  26 setting apart a reserve within the portion of this  27 Province mentioned in the said Minute."  28 A   Yes.  29 Q   And "my Government", do you understand that to be the  30 Government of British Columbia?  31 A   That's correct.  32 Q   The print at the next page is that microfilm?  33 A   Yes.  And you will notice that this is a carbon copy  34 of a letter.  It doesn't show the letterhead.  It is  35 undated.  And I should say that I made this typescript  36 quite a long time ago when I first found this letter  37 and the subsequent one under this tab, both of which  38 were in the Provincial Archives of British Columbia  39 and the correspondence records of the Lieutenant  40 Governor of British Columbia.  And at that time I was  41 undecided as to the exact date.  I wrote in  42 parentheses at the top there "(prob. December 1898 or  43 January 1899)".  I have since realized from looking at  44 associated correspondence that this was in fact  45 December 1898.  46 Q   And the next typescript Dr. Lane.  47 A   Yes. 16831  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 Q   The sender and receiver, please?  2 A   In this case the microfilm copy was signed, although  3 you can barely read the smudge and perhaps not at all  4 in the copy, xerox copy that was made.  The sender was  5 T.R.E. Mclnnes, the Lieutenant Governor, the same  6 author as the preceeding letter, but this one is  7 addressed to the Provincial Secretary of British  8 Columbia.  9 Q   All right.  And the last document --  10 A  And again the date is December 1898.  This letter, in  11 fact, is the one that is alluded to in the previous  12 letter.  He does, in fact, formally ask the Government  13 of British Columbia to acquiesce in the action taken  14 by His Excellency, that is the Dominion Government, in  15 the matter of Treaty 8.  16 Q   And the document that follows the -- I guess it is the  17 microfilm copy seems to be under the number 2749.  18 What is that?  19 A   This was an extract of a report of the committee of  20 the Privy Council which was approved 6th December,  21 1898.  22 Q   The two letters just so that I can be clear about this  23 that you referred to in this tab were letters of a  24 date prior to the signing of Treaty 8?  25 A   Yes.  The treaty had not yet been negotiated and this  2 6 was the advance notice that the Dominion Government  27 gave to the Province Government and asked for their  28 formal acquiescence so that when the Treaty Commission  29 met with the Indians they would be sure that the  30 province would agree in confirming any reserves that  31 the Treaty Commissioners might make for the Indians  32 under that treaty.  33 Q   And this document of December 6, 1898, is similarly  34 prior to the negotiation of the treaty?  35 A   That's correct.  36 MR. GOLDIE:  If it is the one that is set out, my lord, in type  37 form under the heading Treaty Number 8 that my friend  38 first referred to.  3 9    MR. RUSH:  40 Q   Thank you.  Is that so, Dr. Lane?  41 A   I believe that's correct.  42 Q   Yes.  43 A   That this is the Privy Council original.  The other is  44 a printed booklet about the treaty and the associated  4 5 documents.  46 THE COURT:  Well, this looks like it is a letter to the  47 Superintendent General of Indian Affairs.  No, I'm 16832  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  B. Lane (For Plaintiffs)  In chief by Mr. Rush  sorry, it is headed "Extract From A Report Of The  Committee".  Who is the Superintendent General of  Indian Affairs, British Columbia or Canada?  THE WITNESS: No, Canada.  MR. RUSH:  Q   And the report is that of the Privy Council?  A   That's correct.  THE COURT:  So this is Canada talking to itself.  THE WITNESS: That's correct.  The seal is the Privy Council of  Canada in the left-hand margin at the top.  All right.  THE COURT  MR. RUSH:  Q  A  Q  A  Q  A  Q  A  A  Q  A  Q  A  Q  I am  Now, my lord, I am going to turn the witness'  attention to another subject area.  Dr. Lane,  going to ask you if you reviewed documents to which  you can refer the court's attention between  representatives of the Province of British Columbia  and Gitksan and Wet'suwet'en people or their  representatives which address issues of native title?  Yes.  And if I can ask you to please turn to tab 99 in this  volume.  This is a document dated 1884 over the  signature of what appears to be Robert Tomlinson?  Yes.  Now, in terms of the documents which you have  reviewed, have you been able to determine a date at  which communications between the Government of British  Columbia or the Government of the Dominion and  representatives or native people from the Gitksan and  Wet'suwet'en area, what the earliest date of those  communications was?  The earliest communications that I have been able to  discover between either the Indians or people writing  on behalf of the Indians from that area are at about  this date in 1884.  All right.  With respect to matters of Indian title or any other  matters, I should add.  Okay.  Now, this is addressed to  Commissioner of Lands and Works.  time, do you recall?  At this moment I don't recall.  All right.  And Mr. Tomlinson —  Was a missionary on the Skeena River at that time.  And you can identify this letter of February 27, 1884?  Yes, I recognize the letter.  Okay.  the Chief  Who was that at this 16833  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  A  2  3  4  5  Q  6  7  A  8  Q  9  A  10  11  12  MR.  RUSH:  13  14  15  16  17  18  THE  COURT  19  MR.  RUSH:  20  THE  COURT  21  22  MR.  RUSH:  23  THE  COURT  24  MR.  RUSH:  25  26  27  28  THE  COURT  29  MR.  RUSH:  30  THE  COURT  31  MR.  RUSH:  32  THE  COURT  33  THE  WITNE  34  35  36  37  38  39  Q  40  41  A  42  43  44  45  46  47  It was written on behalf of the Indian people,  according to Mr. Tomlinson, because they were  concerned about some land matters and asked him to  write on their behalf to the Provincial Government.  Now, Dr. Lane, to your knowledge was there a response  to this letter?  Yes, there was.  And do you recall who authored the response?  I believe it came back from the Chief Commissioner of  Lands and Works.  I cannot recall who that was at the  moment.  My lord, I understand that this matter has been  addressed by Dr. Galois in his evidence.  I don't  intend to canvass it with Dr. Lane.  But I can advise  your lordship that the response was from Mr. Robson to  Mr. Tomlinson and was dated February 29, 1884.  I will  get you the exhibit number.  :  This one is only February 27th, isn't it?  Did I say 24?  :  No, you said 29th.  That's two days quicker.  Mails  were quicker then.  Yes, they were.  :  All right.  Dr. Lane, referring you now to tab 100.  This is a  document again over Robert Tomlinson's signature dated  at Metlakatla on October 20, 1884.  Again, can you  identify this document?  :  I'm sorry, Metlakatla?  It says Victoria.  At tab 100?  :  Tab 1?  No, tab 100.  :  Sorry, there is 100 before that.  3S:  Again, if I may correct a misstatement that I made  in answer to your last question I said I thought the  response had been from the Chief Commissionerr of  Lands and Works.  I see from refreshing my memory from  this letter it must have been from the Provincial  Secretary.  And this particular document, Dr. Lane, you can  identify this, can you?  This was a further letter written by Mr. Tomlinson on  behalf of the Indians in response to the answer that  was received to the previous communication.  The  answer apparently came from the Provincial Secretary,  Mr. Robson.  His answer evidently did not satisfy  them.  This letter is written with respect to  clarification of language in his answer. 16834  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 Q   All right.  And he refers about six lines down in this  2 letter to:  3  4 "A document containing the petition of all the  5 Chiefs and principal men of the Kitwanga Village  6 situated on the Skeena River about 120 miles from  7 the mouth"?  8 A   That's correct.  9 Q   Do you understand this document to have transmitted  10 that petition to the Provincial Secretary?  11 A   That's correct.  12 Q   Now, my lord, I can advise you that in Dr. Galois's  13 evidence the petition was exhibited.  It is dated  14 October 10, 1884.  The question I have to ask you, Dr.  15 Lane, is that this letter is dated and placed at  16 Metlakatla.  Could you explain why that would be so?  17 A  Well, Mr. Tomlinson was sometimes farther up the  18 Skeena River and sometimes at Metlakatla near the  19 mouth of the river.  Mr. Duncan, another missionary,  20 was stationed at Metlakatla and Mr. Tomlinson spent  21 some time with him there assisting him.  22 Q   All right.  May I direct your attention, please, to  23 tab 1, tab 101 I think we can take it to be.  Now, Dr.  24 Lane, this is a further letter apparently over the  25 signature of Mr. Tomlinson dated November 12, 1984 in  26 Victoria.  27 A   1884.  28 Q   Excuse me, 1884.  Yes?  29 A   Yes.  30 Q   Can you give the circumstances around why the place of  31 the letter is postmarked Victoria?  32 A   Oh, because Mr. Tomlinson had come down on the boat  33 from the Skeena to Victoria and was in Victoria at the  34 time and hand delivered the letter, I guess.  35 Q   Now, appended to this letter are a number of -- he  36 calls them temporary arrangements?  37 A "Outline of a temporary arrangement to be enforced  38 until such time as the question is finally settled  39 between the Government and the Indians"  40  41 is the heading that I see.  42 MR. RUSH:  Yes, go ahead.  And with respect to those temporary  43 arrangements that he refers to there, what is there in  44 these arrangements that --  45 MR. GOLDIE:  They are not arrangements, my lord, they are Mr.  46 Tomlinson's proposals.  47 THE COURT:  Where are they? 16835  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  MR. RUSH:  2  THE COURT  3  MR. RUSH:  4  Q  5  6  A  7  Q  8  9  10  A  11  12  13  14  15  16  Q  17  18  19  A  20  Q  21  22  23  A  24  25  26  27  28  29  Q  30  A  31  Q  32  33  A  34  35  Q  36  A  37  38  39  40  41  42  43  44  45  46  47  They follow along in the letter.  :  Yes, I'm sorry, they are attached.  Now, Dr. Lane, I take it these arrangements  accompanied the letter, did they?  Yes.  And, to your knowledge, does the documentary record  indicate whether or not the proposals of Mr. Tomlinson  were acted upon?  It's a difficult question to give a simple yes or no  answer to because there is a variety of points  covered.  But perhaps the simple answer would be that  the government did not take formal steps to ensure  that all of the suggestions made in this outline were  followed.  Okay.  Now, I would like to take you back in  sequential order in these tabs, Dr. Lane, to tab 98,  please.  Yes.  Now, this is a typescript on the face page, Dr. Lane.  Can you just explain what is contained at this tab,  please?  Yes.  Again this is a transcription that I made and I  would hope it is self-explanatory.  The material on  the following pages which are then numbered page 1, 2  and 3 are excerpts that I have typed out of a bench  book of Judge Begbie.  The bench book is held at the  Provincial Archives of British Columbia in Victoria.  And this pertains to a trial that he sat on?  Yes.  And that's referenced in the note, in the note on the  face page?  Yes.  Attorney General and J.B. Nash v. John Tait.  There were several Metlakatla Indians.  And what was the context for this document?  Well, this was in 1886.  The context is that the  Metlakatla Indians were attempting to assert title,  native title, Indian title to their lands at  Metlakatla.  The Church Missionary Society had asked  the Provincial Government to have a small section of  land up there surveyed which the Church Missionary  Society claimed title to as a grant from the  government.  The natives disputed this saying that  since their title had not been extinguished the  government could not alienate portions of their land  to third parties.  And the Indians had been trying to  talk to the government about this, had been 16836  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 unsuccessful, so when the surveyor had been sent up to  2 conduct the survey there was some resistance on the  3 part of the Indians.  They were then accused of  4 trespass and this case was brought.  This was in fact  5 a test case about Indian title in that area.  6 MR. RUSH:  And, Dr. Lane, I want to refer you to the --  7 MR. GOLDIE:  My lord, I might ask that if my friend intend —  8 this is the celebrated Metlakatla incident which was a  9 contest between Mr. Duncan and the Bishop of Columbia  10 over jurisdiction, church jurisdiction.  But be that  11 as it may, it seems to me that the background of that  12 is essential to an understanding of any discussion of  13 the peripheral matters that occurred and this is one  14 of them.  It is a very celebrated incident.  It led to  15 several trips -- I shouldn't say several, but at least  16 one important trip by one of Her Majesty's ships.  And  17 eventually Mr. Duncan and his followers went to Alaska  18 and established a community there.  But I feel that  19 this is one of the circumstances in which the context  20 requires the report of the commission that was set up  21 to investigate this.  I think it is the  22 Cornwall-Planta commission that was set up to  23 investigate this whole issue and issued a report and  24 it is available and seems to me it provides the  25 context.  2 6    MR. RUSH:  27 Q   With regard to the context, Dr. Lane, I wonder if you  28 can advise the court whether at the time there was  29 consideration in the paper circulating in the colony  30 discussion about the issues raised in the case?  31 A   Yes, there was.  32 Q   And do some of those letters appear after the divider  33 in tab 98?  34 A   Yes, they do.  35 Q   And there are various views expressed here, I take it,  36 from various points of view?  37 A   That's correct.  38 Q   And it is entitled "Correspondence On The Church And  39 State Coercion, And The Indian Land Rights".  I wonder  40 if you can perhaps just place us a little more  41 precisely within the debate that apparently was going  42 on and the public media at the time of this case which  43 gave rise to Judge Begbie's comments.  44 A   Yes.  The central issue, as I have said, was the  45 question of Indian title.  4 6 Q   Go ahead.  47 A  And that is reflected in Judge Begbie's remarks from 16837  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 the bench as well as much of the correspondence in the  2 newspaper as well as -- well, let me stop there.  3 Q   In respect of at least one of those articles, I direct  4 your attention to page 431 of the document beyond the  5 divider.  And, in particular, I direct your attention  6 to the second page 432 in an article apparently  7 written by Edward Cridge.  8 A   Yes, it is a letter to the editor written by Bishop  9 Cridge.  10 Q   And, Dr. Lane, Bishop Cridge apparently sets out his  11 version of what occurred or what he perceived to be  12 the issue in the case?  13 A   That's correct.  14 Q   Who was Cridge, by the way?  15 A   Bishop Cridge was resident since 1854 in Victoria,  16 British Columbia.  He notes at page 432 at the last  17 part of the first paragraph on that page:  18  19 "The issue is twofold, first with the government,  20 and secondly with the Church Missionary Society,  21 an ecclesiastical sect (for in this province it is  22 simple a sect) whose services they have dispensed  23 with.  24 The issue with the government is vital, being  25 nothing less than denial of their title to the  2 6 land."  27  28 And then he goes on discussing these matters.  29 Q   Now, I take it that in this collection there are views  30 of various types expressed, is that so?  31 A   That's correct.  32 Q   Now, I want to direct your attention, please, to Judge  33 Begbie comments which I think you have typescripted as  34 well.  If you will go to the second page in sequence  35 in tab 98 we have a document entitled Begbie Bench  36 Book.  It is dated October 28, 1886?  37 A   Yes.  38 Q   Now, what passage in here would you draw our attention  39 to?  40 A  Well, to all because he is discussing the issue of  41 Indian title and whether it exists or not and how it  42 has been handled in the law.  But the thing which sets  43 him off is Bishop Cridge's letter from which I just  44 read an excerpt and which had appeared in the morning  45 newspapers.  And Judge Begbie -- I should say, of  46 course, that the defence of the Metlakatlan Indian  47 defendants in that case that was before the judge, the 1683?  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 charge of trespass was made by the Attorney General of  2 British Columbia against the Indians and the  3 defence -- and they were defended by Mr. Theo Davie,  4 later of the Supreme Court.  But at this time the  5 person defending the Indians the arguments that were  6 being made were arguments of native title.  7 Q   And I ask you --  8 A  And Judge Begbie's bench book from which I have taken  9 these comments was reacting to that argument of  10 defence.  11 Q   Thank you.  And I direct you to page 2.  He refers to  12 authorities cited by Mr. Davie.  Do you see there that  13 passage?  14 A  At the top of the -- yes, I do.  15 Q   And I just want to ask you if you have taken these  16 comments into account?  17 A   Oh, yes, I have.  One of the authorities that was  18 cited by Mr. Davie was the speech made by Lord  19 Dufferin when he was in Victoria in 1876, I believe it  20 was, and which we referred to earlier today.  21 Q   Yes.  22 A  And Judge Begbie notes in his bench book:  "And as to  23 the third authority" --  This is on page 1 of the  24 typescript.  25  26 "And as to the third authority, Lord Dufferin is  27 a most delightful speaker, and came here with the  28 object of cajoling or coaxing the inhabitants into  2 9 a better humour with the Dominion.  They were in a  30 very bad humour then.  And any expressions in a  31 flatterg speech made by him to win over a Victoria  32 crowd, it were ridiculous to suppose can in the  33 least modify the uniform universally established  34 law, acted on for centuries in every court  35 -- in Courts of justice in Canada, in the U.S.  36 (whose law is founded on ours) in the quasi  37 judicial opinions from the Colonial office, in the  38 Legislation of various Provinces.  These  39 authorities cited by Mr. Theo Davie may no doubt  40 be considered useful to excite passions in public  41 harangues or in letters to newspapers but they are  42 quite out of place here."  43  44 And then he goes on.  45 MR. RUSH:  Dr. Lane, in considering this document and the  46 comments of Judge Begbie, what would you have his  47 lordship take into account at the time of taking these 16839  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  comments into account in reference to this document?  MR. GOLDIE:  Well, my lord, I object to that.  That is a case of  evaluation.  THE COURT:  I thought that what Mr. Rush was asking was what  parts of this letter should I pay particular attention  to and what other facts there, if any, that should be  taken into account at the same time.  MR.  RUSH:  Q  Yes.  I am asking you to take more than this document  into account.  I am directing this witness' attention  to other documents to assist your lordship to  evaluate.  A   Yes.  I would refer back to Mr. Begbie's statement in  1860 when he asked to review the Clark suggestions for  a land policy in the New Province of British Columbia.  Mr. Clark having written as a preface to his suggested  scheme that he assumed Indian title had been  extinguished and to which, as we noted the other day,  Mr. Begbie responded:  The Indian title has by no  means been extinguished and must be soon and then goes  onto make some comments about what will need to be  done.  I would also refer to the context in which these  remarks from the bench occurred which, as I say, was a  test case on the Indian title issue at a time when  people were very much concerned about the events at  Metlakatla.  I would direct your attention to page 430  behind the blue divider in which the Daily Colonist  reported at an editorial, unfortunately undated here,  that they understood Reverand Duncan was going to  Washington D.C. to interview President Cleveland and  his cabinet with a view to removing the entire nation  to Alaska just beyond the border, and that if this  exodus took place the loss would be a serious one to  the province.  MR. GOLDIE:  My lord, I might ask what document is this that we  are looking at?  THE COURT:  It is an editorial from the Daily Colonist.  MR.  MR.  GOLDIE:  No, I am talking about the story of Metlakatla at  page 430.  RUSH:  Q  A  I think my friend is asking about the whole of the  documents, my lord.  Can you advise us on that?  Yes.  This was a book which was published in 1887  setting out the story of Father Duncan's mission at  Metlakatla and the development of the community there.  And at the end of the volume there are a number of 16840  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 appendices including these pages which have been  2 reproduced here.  3 MR. GOLDIE:  Can you provide us with the name of the author?  4 THE WITNESS:  Certainly.  The author was William Wellcombe,  5 W-E-L-L-C-O-M-B-E.  6 MR. RUSH:  7 Q   And that you said was 1897?  8 A   No, 1887.  9 Q   Thank you.  10 A  As I recall.  It was published in England, I think.  11 THE COURT:  Do we know whether these notes of Begbie represent  12 notes that a judge delivered or a journal being kept?  13 MR. GOLDIE:  No.  I think there was a case before him.  As far  14 as I am aware, the bench book is an indication that he  15 heard an application and disposed of it.  16 THE COURT:  I can take this as a judgment?  17 MR. RUSH:  No, my lord, that's not his judgment.  18 MR. GOLDIE:  I don't think so, my lord.  I think the case went  19 off on a procedural point.  But I have to confirm  20 that.  21 THE COURT:  That's the best way for it to go.  22 MR. RUSH:  23 Q   Dr. Lane, in terms of the comments recorded by Judge  24 Begbie are you able to illuminate his lordship on the  25 question of -- what's the basis for the recording?  26 How do you understand the recording?  27 A  Well, I can only refer to what I have read there.  And  28 I would point out that -- I'm sorry, in the enclosed  29 pages I believe one will find it.  I didn't type  30 everything which was on the enclosed pages.  Oh, yes,  31 it is here.  I did type it.  At page 2 of the  32 typescript about the beginning of the third line down:  33  34 "These authorities cited by Mr. Theo Davie may no  35 doubt be considered useful to" --  36  37 I read this before.  Then he says:  38  39 "The very book, the very case from which you cite  40 the unsuccessful advocate's view contains quite a  41 long historical chain of authorities (I took the  42 book from him and read at pages..."  43  44 so and so.  I assume that what is written in the bench  45 book is Judge Begbie recordings of what was going on  46 at the hearing.  47 MR. GOLDIE:  In answer to your lordship, I don't think that the 16841  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  judgment is in this material, but I will confirm that.  THE COURT:  These are just musings then?  MR. GOLDIE:  I beg your pardon?  THE COURT:  These are just musings?  MR. GOLDIE:  No, I think that they are his writings as he goes  along.  MR. RUSH:  Pretty close to musings, my lord.  THE COURT:  If it is not a delivered judgment then it's just a  note to himself.  MR. GOLDIE:  I understand that.  THE COURT:  Yes.  MR. GOLDIE:  My recollection -- it has been some time since I  looked at this.  I think they went off on a procedural  point, the actual proceedings before him.  THE COURT:  All right.  MR,  COURT  RUSH:  Q  A  Q  A  Q  A  A  Q  A  Now, I want to direct you back to the Upper Skeena,  Dr. Lane, and ask you if there were representatives of  the Government of British Columbia or Government of  the Dominion which attended there and for which there  are recordings for the purposes of establishing  reserves?  Yes.  The first official of the Indian department to  visit the Upper Skeena region at least in an official  capacity was the Indian Superintendent Mr. Vowell,  V-O-W-E-L-L in 1890.  And was his visit followed by visits of Mr. O'Reilly?  Yes.  And Mr. —  Go ahead.  I was going to ask you who was Mr. O'Reilly  at that time.  By this time the original three-man Indian Reserve  Commission had been reduced to a one-man commission  many years earlier.  And at this stage Mr. O'Reilly  was the single Indian Reserve Commissioner.  He  visited the area in 1891 in that capacity.  And at tab 102 of volume 3 this is the handwritten  account of an event which apparently occurred at  Hazelton on September 2, 1891.  Can you identify that  for us, please?  Yes.  This is one of several such accounts at various  places in the Upper Skeena region where Mr. O'Reilly  visited in order to speak with the chiefs at the  various locations about defining Indian reserves for  the various groups of people in that area.  This is taken from the RG 10 series at the National  Archives?  Yes, RG 10 being the Record Group 10, the records of 16842  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 the Department of Indian Affairs.  2 Q   Is this the handwriting of Mr. O'Reilly or does it  3 appear to be so to you?  4 A   I can't be certain about that.  5 Q   It indicates what appears Mrs. Loring, interpreter?  6 A   Yes.  7 Q   And by reference to Hazelton, does that suggest this  8 event occurred at Hazelton?  9 A   Yes.  And Mrs. Loring was the wife of the Indian agent  10 for the Babine agency.  They lived at Hazelton and  11 were stationed there.  12 Q   And along the side there appears in the margin to the  13 left words to the effect "commission in" --  14 A   Commissioner.  15 Q   Commissioner and chief?  16 A   Yes.  17 Q   Can you assist us in respect to what that means?  18 A   Yes.  The chief in each case refers to the chief of  19 that group of people that he has identified at the top  20 of the page under the population figure there with his  21 Indian titles and commissioner means Mr. O'Reilly.  22 Q   Now, Dr. Lane, I understand you have a typescript; is  23 that correct, of this?  24 A   I do, but I don't see one here.  25 Q   Thank you.  I want to ask you about several of these  26 tabs, Dr. Lane, in turn.  27 A   Yes.  28 Q   And if I may now direct your attention to tab 103.  29 A   Yes.  30 Q   This is a memorandum of an event apparently on  31 September 2, 1891.  Could you just identify each one  32 of these for us in turn, please?  33 A   Yes.  These are notes obviously for the same date as  34 the previous one setting out again population figures,  35 the name of the chief and what the chief said.  The  36 second chief notes such as where there was timber  37 opposite the village or gardens at the back of the  38 village and so on.  39 Q   All right.  40 A   This is in a different hand from the previous notes.  41 The third item is dated September 7th.  42 Q   This that 104?  43 A   I am still in the same -- I'm sorry, 104.  44 Q   Yes.  45 A   Tab 104.  It is at another village.  Babine Lake is  46 mentioned in the heading and the names of various  47 Indians in the left-hand margin next to presumably a 16843  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 summary of what they said.  And then words spoken by a  2 man named Hall, an Indian.  And then by the  3 commissioner and then by Big George who was one of the  4 chiefs and so on.  5 And turning to tab 105 we have more of the same  6 instead this time Old Fort Babine, Hagwilget Indians  7 September 10, 1891.  And again what was spoken by the  8 commissioner and various Indians.  9 Q   Tab 106?  10 A   Similarly, September 18, tab 106, Hagwilget Indians.  11 A different interpreter this time, George Short in the  12 upper left-hand corner.  And again the date is 18th  13 September, 1891.  And again a description of where  14 they are about 35 miles from Hazelton and the  15 population, the name of the chief and so on.  16 Q   All right.  17 A   Similar to the previous ones.  18 Q   And 107, please?  19 A   Same thing,this time September 30, 1891 at New  20 Kitsegukla about nine miles above Hazelton.  Mrs.  21 Loring is the interpreter.  And again a representation  22 of the words spoken at this meeting.  23 Q   All right.  And would you turn to 108.  24 A   Yes.  25 Q   This is a document said to be the statement of Mrs.  26 Loring interpreter made at Kitwanga on the 1st of  27 October, 1891?  28 A   Yes.  29 Q   And it is signed by Margaret Loring on the second  30 page?  31 A   Yes, that is Mrs. Loring.  32 Q   Yes.  And what does this pertain to?  33 A  Well, this is one of a series of accounts of an  34 incident that took place on September 26th in which  35 the commission ran into some resistance from the  36 Indians.  Individual accounts of what transpired were  37 recorded by those present from the commission side,  38 that is Mrs. Loring, Mr. Loring, the commissioner, Mr.  39 O'Reilly, and the surveyor Mr. Ashtown Green and also  40 an Indian policeman who accompanied them.  41 Q   And at tab 108 is that statement of Margaret Loring,  42 Mrs. Loring.  43 A   That's correct.  4 4 Q   And 109?  45 A   So the is the statement of Mr. Loring.  4 6 Q   All right.  And 110?  47 A   Statement of the Indian policeman, constable. 16844  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  Q  2  A  3  4  5  Q  6  A  7  8  9  Q  10  A  11  MR.  RUSH:  12  13  THE  COURT  14  MR.  RUSH:  15  16  17  THE  COURT  18  MR.  RUSH:  19  THE  COURT  20  THE  WITNE  21  MR.  RUSH:  22  THE  WITNE  23  THE  COURT  24  MR.  RUSH:  25  Q  26  27  28  29  A  30  31  32  33  34  Q  35  36  A  37  Q  38  39  A  40  Q  41  A  42  43  A  44  45  46  47  Q  And at 111?  It is not signed, but this is the statement of Ashtown  Green, the land surveyor that accompanied Mr.  O'Reilly.  Was he a Dominion land surveyor?  He was a B.C. land surveyor or employed by the  Dominion Government to survey Indian reserves in  British Columbia.  Okay.  One of several.  Now, tab 112, please.  Can you identify the  documents?  :  We didn't touch 11, did we?  Yes, we did.  Dr. Lane just indicated that that was  the account of the incident at Kispiox by Ashtown  Green, the surveyor.  :  What is 110?  The account of the constable.  :  That's the policeman?  3S: That is the Indian constable.  His name appears to be Louis Akacoket.  3S:  A-K-A-C-O-K-E-T, L-O-U-I-S.  :  All right.  Now, I have moved the witness' attention to tab 112.  It appears to be a letter from Peter O'Reilly of the  Indian Reserve Commission on October 20, 1891.  Can  you identify this document?  Yes.  I believe this is Mr. O'Reilly's handwriting.  This is one of his reports as Indian Reserve  Commissioner for the information of the Superintendent  General of Indian Affairs as to the progress of his  work as Indian Reserve Commissioner.  And he is reporting upon his visit to the Upper  Skeena?  That's correct.  And is this in relation to the events described in the  previous tabs 102 to 111?  That's correct.  And at tab 113?  Again it seems to be a letter from Mr. Peter O'Reilly  on July 18, 1892?  This is the following year.  He is writing as Indian  Reserve Commissioner and reporting to Mr. Vankoughnet  who was the Deputy Superintendent General of Indian  Affairs in Ottawa.  Okay. 16845  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  12  13  A  14  15  16  17  18  19  20  21  22  23  24  25  Q  26  A  27  Q  28  29  A  30  Q  31  A  32  33  34  35  THE COURT  36  THE WITNE  37  MR. RUSH:  38  Q  39  A  40  Q  41  42  A  43  Q  44  A  45  46  47  THE COURT  V-A-N-K-O-U-G-H-N-E-T .  Is this in Mr. O'Reilly's hand so far as you --  I believe it is.  And at tab 114, Dr. Lane?  Another such report, this one dated July 20, 1892.  Again by Mr. O'Reilly?  Yes.  And at tab 115?  Another dated February 9, 1894.  Now, at 116 there is a typed letter from Mr. R. E.  Loring, Indian Agent dated August 3, 1896.  What does  this refer to, please?  Well, the Indian agent at Hazelton, Mr. Loring, is  writing to the Indian Superintendent for B.C., Mr.  Vowell who is at Victoria with respect to the Indians  at Kispiox who had prevented Mr. O'Reilly and Mr.  Green originally in the incident that everybody was  commenting on or describing from defining reserves.  Apparently now they wished to have some reserves  defined for them, according to Mr. Loring.  And he has  been asked to report as to the character of the land  there how much would be needed for the Indians and  whether whites would be likely to want to take up  lands in the Kispiox Valley.  And at 117, Dr. Lane?  Yes.  This is with respect to the Hagwilget Indians and  seems to be dated at Hazelton?  Yes.  You can you identify this document for us?  Well, again this is one which seems to have chief and  commissioner written in the left-hand side and it  appears to be an extract of conversation.  But I have  great difficulty reading the copy before me.  :  This is Mr. O'Reilly's handwriting, is it not?  3S: I'm not certain.  Let me direct you to 118.  Yes.  Can you identify the author of this document?  It is  at Kispiox, July --  No, it is at Kis --  Kisgegaas, yes, thank you.  July 28, 1898.  And again it is similar to those that  we were looking at earlier.  But I cannot make out the  copy in front front of me.  :  Shall we take the afternoon adjournment, Mr. Rush? 16846  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 MR. RUSH:  Thank you, my lord.  2 THE REGISTRAR:  Order in court.  Court will recess.  3 (PROCEEDINGS ADJOURNED AT 3:00)  4  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings herein to the  9 best of my skill and ability.  10  11  12    13 LISA FRANKO, OFFICIAL REPORTER  14 UNITED REPORTING SERVICE LTD.  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 16847  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 (PROCEEDINGS RESUMED AT 3:20 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Rush, you mentioned this morning that some of  5 these documents are difficult to read which reminded  6 me of Boswell's encounter after her recital, said that  7 it was difficult to play the violin and make it sound  8 pleasant.  He said it isn't difficult, madam, it is  9 impossible.  I am having that trouble with some of  10 these documents and I wonder what you have in mind for  11 us.  12 MR RUSH:  Well, I have in mind for those documents that are  13 documents 102 up to 118, I hope to provide you with  14 typescripts, and I believe these are available and we  15 can provide your lordship with them, and I regret that  16 we haven't been able to do so.  17 THE COURT:  I was going to suggest that, if necessary, that  18 maybe I would really have to rely on counsel at the  19 time of their argument to furnish me with, in the  20 argument, otherwise with something that I can read  21 because I really can't make out much of several of  22 these.  And I don't think any amount of strain or  23 magnification will help.  24 MR. GOLDIE:  It gets worse.  25 MR RUSH:  Well, if you can leave that with me, my lord, my  26 intention was to provide you with a typescript with  27 those documents and I think that's where most of the  28 difficulty has arisen, where we haven't had a  29 typescript.  30 THE COURT:  I would even go further than that, Mr. Rush, and say  31 if you wanted to furnish me with just the part you  32 want to rely upon, that -- maybe that's adequate,  33 although the context might be lost in it.  34 MR RUSH:  Well, if your lordship can leave me with an attempt to  35 providing you with something that will assist you more  36 than these will.  37 THE COURT:  Thank you.  3 8 MR RUSH:  39 Q   Thank you.  Now, Dr. Lane, I am directing your  40 attention now to tab 119 please and this is a typed  41 letter from Mr. Loring, Indian Agent, and it is dated  42 March 25, 1904.  And this appears to be a report of  43 some kind, is it, Dr. Lane?  44 A   Yes.  At the close, it sites the date of the letter  45 and its identification number that it's in response  46 to.  47 Q   That's on page 3? 16848  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 A   Yes.  2 Q   And would you direct his lordship's attention to the  3 first paragraph?  4 A   Yes.  It's in response to a circular letter which was  5 sent out to all Indian agents and it reads:  6  7 "In referring to your circular letter (to all  8 agents) No...."  9  10 I believe it is H4, 254, another number:  11  12 "...dated respectively the 19th and 25th August  13 last in regard to the advisability or otherwise of  14 increasing or diminishing Indian Reserves through  15 this Agency, stating that in the opinion of the  16 Provincial Government, the time had come to do so  17 in British Columbia, on the grounds that in some  18 cases the native population has decreased whilst  19 in others it is thought that many of the small  20 reserves laid off for fishing and camping grounds,  21 et cetera, were now, owing to changed conditions,  22 not absolutely needed.  I have the honour here for  23 the present to state the following, to wit:"  24  25 And he then gives a report on the matters in his  26 agency indicating that the population has increased  27 rather than decreased.  And then talking about other  28 conditions.  29 Q   Can I now direct your attention to tab 121?  This is a  30 letter of Loring to Oliver, Hazelton, June 24, 1909?  31 A   Yes.  32 Q   Appears to be a copy and duplicate?  33 A   Yes.  34 Q   And this appears to be a report.  Am I correct on  35 that, Dr. Lane?  36 A   Yes.  It's supplementary to some other reports  37 respecting Indian unrest in the Skeena River area.  38 Q   Thank you.  And directing you now to 122?  39 A   Yes.  I should perhaps indicate that this is one of  40 the large series, and the Indian name Kapelano, who is  41 cited in the first paragraph of that letter, was one  42 of the leaders of the -- in the first decade of this  43 century of the B.C. Indian effort to have the matter  44 of Indian title addressed by the Dominion Government  45 or by the Imperial Government, or by the Provincial  4 6 Government.  47 Q   Kapelano there is spelled K-a-p -- 16849  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 A   It is spelled K-a-p-e-1-a-n-o here, yes.  2 Q   All right.  And please turn to 122.  If you could just  3 identify Mr. McLean, please?  4 A   J.D. McLean was the Assistant Secretary, the  5 Department of Indian Affairs in Ottawa, Assistant  6 Secretary-General.  7 Q   All right.  And he is directing this letter to Mr.  8 McLaughlin of the Indian Office in Victoria?  9 A   Yes.  10 Q   Thank you.  Now —  11 A  Well, this is a copy of a telegram at tab 122, I  12 believe.  13 Q   Yes, thank you.  Now, I just ask you to skip 123 and  14 move to 124, Dr. Lane.  15 A   Yes.  16 Q   This is a copy -- a typed copy that's somewhat too  17 difficult to read but the date appears to be 19/0  18 something.  Can you assist us with the date?  19 A   Yes.  This is part of a series of communications  20 between Mr. Charles Lugrin of the British Colonist in  21 Victoria with Mr. Laurier in Ottawa.  22 Q   Pertaining to what question?  23 A   Pertaining, again the preceding communications were,  24 the Indian unrest in the Skeena area.  25 Q   All right.  And is this -- can you assist us with the  26 signature or the absence of it?  It appears not to  27 contain a signature or a signed copy?  28 A   I am sorry, this was from Wilfrid Laurier to Mr.  29 Lugrin, and this is a carbon copy so it doesn't bear  30 the letterhead or the signature here but it comes out  31 of a series of correspondence, I think we have some of  32 the others right here.  33 Q   All right.  Now, just moving along then, I am going to  34 take you to a number of tabs, Dr. Lane.  125, this  35 appears to be Mr. Lugrin's response to Mr. Sir Wilfrid  36 Laurier of August 3, 1909?  37 A   Yes, responding to one of the 17th of the previous  3 8 month.  39 Q   And does this pertain to the same subject as you  40 indicated Wilfrid Laurier's letter referred to?  41 A   Yes.  42 Q   And 126, please.  43 A   Now, this is from the McBride papers.  This one again  44 unsigned is from Richard McBride to Sir Wilfrid  45 Laurier dated the 29th September 1910, respecting  46 discussions about Indian lands in British Columbia.  47 Q   All right.  Now, my lord, I am going to refer the 16850  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  MR. RUSH:  THE COURT  MR RUSH:  Q  A  A  witness back to 123, and if you will just refer to  that for a moment, Dr. Lane.  It is virtually an  unreadable typescript over the name of Mr. Newcombe.  I am going to refer Dr. Lane to 149 which is a  typescript, I believe, of what is contained at 123, if  you will just confirm that for us?  Yes.  This is a typescript which I prepared because  the print-offs from the microfilm were very difficult  to read.  And, my lord, rather than torturing through the  original, I'd ask you to turn to 149.  Thank you.  To what would you direct his lordship's attention with  respect of this document, Dr. Lane, signed by Mr. E.L.  Newcombe?  Perhaps before I ask you to answer that,  you will tell us who Mr. Newcombe was?  Yes.  Subsequently, Mr. Newcombe was a member of the  Supreme Court of Canada but at this stage he was with  the Department of Justice and prepared this memorandum  for the Prime Minister as background briefing material  on the discussions that had been going on about Indian  title in British Columbia because the Prime Minister  was about to meet with the Premiere of British  Columbia and Mr. Newcombe wanted him to be advised or  apprised of necessary facts that he should have before  such discussions.  And I'd like to direct your attention, if you have  taken this into account, Dr. Lane, to the few  sentences before the indent on page 1?  Yes.  There had been serious contention between the  two governments regarding Indian land matters in  British Columbia, and eventually Mr. Newcombe, on  behalf of the Dominion Government, had prepared a  series of ten questions to be submitted for decision  by the Supreme Court of Canada, and had been in  correspondence with the legal counsel for the Province  of British Columbia, Mr. Lafleur in Montreal, on these  matters.  Mr. Lafleur had agreed without amendment to  the ten questions that Mr. Newcombe had drafted and  then at the last moment things broke down because Mr.  McBride, the Premiere of British Columbia, declined to  a reference to the court of the first three of these  ten questions, the first three being specifically  directed to the issue of Indian title.  And that's  what's referred to here, Mr. McBride.  One of the  first three taken out in the other differences 16851  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 relating to competing Dominion and Provincial claims  2 regarding reserve lands to be addressed by the court.  3 And Mr. Newcombe writes here:  4  5 "I replied that I considered the first three  6 questions essential, and would not recommend any  7 reference which did not embody them."  8  9 And then goes on describing further efforts of  10 communication, and the reply that he received.  11 Q   Now, in the end, Dr. Lane, I am going to be referring  12 you to some other correspondence with regard to this.  13 Was there any reference?  14 A   Not in this planned procedure because of the  15 difference in opinion between Mr. McBride and the two  16 legal counsel.  Instead, there was a reference to the  17 Supreme Court of British Columbia which was brought by  18 on certain questions, not of course Indian title, by  19 the Province in which the Dominion did not  20 participate.  21 Q   Let me direct you now back in the sequence of tabs  22 that I had departed from a moment ago.  23 A   Yes.  24 Q   And I'd like to ask you to turn to page 127?  25 A   Tab 127?  26 Q   Yes, thank you.  And it is a document to Sir Wilfrid  27 Laurier dated October 22, 1910, apparently from the  28 Prime Minister's office in the Province of British  29 Columbia, and I direct your attention to the second  30 full paragraph beginning with, "Since, however".  31 A   Yes.  This is:  32  33 "Since, however, you prefer to proceed with the  34 reference to the Supreme Court, there is nothing  35 further to be done on this score.  If you  36 recollect, I mentioned this matter to you at  37 Government House, but in the midst of your many  38 engagements I can quite understand it having  39 escaped your memory."  40  41 This is referring to the differences between Mr.  42 McBride and Mr. Laurier as to how this matter should  43 proceed and be settled, be addressed.  44 Q   Tab 128 is a letter from Sir Wilfrid Laurier to Mr.  45 McBride, October 8, 1910?  46 A   Yes.  47 Q   If you will look to the full -- first full paragraph, 16852  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 appears to be a reference again to the judicial  2 reference to the Supreme Court?  3 A   That's correct.  Mr. Laurier said:  4  5 "I am in receipt of your favour of the 29th of  6 September confirming your telegram of the same  7 date.  On my return from the Western Provinces, I  8 immediately looked into this matter of the British  9 Columbia Indian lands.  I find that the question  10 had not only been discussed between your  11 Government and this Government, but had been very  12 far advanced, with the view of having the rights  13 of the Indians determined by the highest judicial  14 authority, and that a series of questions had been  15 prepared by the Department of Justice and almost  16 agreed to by your Attorney General.  17 I see no reason why this reference should not be  18 carried out to the end.  I do not exactly  19 understand what there is to arbitrate at this  2 0                  moment.  We, the Dominion Government, are the  21 guardians of the Indians and we will not be on  22 safe ground unless the rights of the Indians are  23 determined judicially by the highest court of the  24 Realm.  You..."  25  26 Sorry.  27 Q   This is Mr. Laurier setting out the position of the  2 8 Dominion Government?  29 A   That's correct.  30 Q   Now, can we move along to 129 then, Dr. Lane?  31 A   Yes.  32 Q   This is a letter of Mr. J.N. Clark, apparently is a  33 solicitor, to the Honourable Richard McBride, December  34 3, 1910?  35 A   No, I think not.  I am sorry, he is a solicitor and  36 the letter is addressed to McBride.  I had misheard  37 you.  I thought you said he was a solicitor --  38 Q   All right.  39 A   — to Mr. McBride.  40 Q   No, I ran the words together.  And here I just direct  41 your attention to the first paragraph.  You indicated  42 that there was a lawyer in Montreal who acted on  43 behalf of either the Province or the Federal --  44 A   The Provincial Government.  45 Q   The Provincial Government in respect of this matter?  46 A   Yes.  47 Q   Do you know on whose behalf Mr. Clark was acting? 16853  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  A  2  3  4  5  6  Q  7  8  9  A  10  Q  11  12  13  A  14  Q  15  16  A  17  Q  18  19  20  i  21  i  22  A  23  24  Q  25  ]  26  A  27  Q  28  A  29  Q  30  31  32  A  33  Q  34  A  35  Q  36  37  A  38  Q  39  A  40  Q  41  42  43  A  44  45  46  MR. RUSH:  47  MR. GOLDIE  Yes.  Mr. Clark was retained, I believe at this time,  by the friends of the British Columbia Indians which  was a group of non-Indian people in the province and  elsewhere in Canada who were concerned about the  unresolved Indian title question in British Columbia.  All right.  And on page 2 of this letter, Mr. Clark  sets out his perspective on this question.  Is that  so?  Yes.  All right.  And, my lord, may I direct you to tab 130.  This is Mr. Laurier again to Mr. McBride of September  6, 1910?  That's correct.  And this is further correspondence on the same  question?  Yes.  Next I'd like to turn you to 131, and this appears to  be correspondence from a Chief Wedildahld dated  February 18, 1911, to The Honourable Richard McBride.  Can you tell his lordship what is the source of this  document, please?  This is, I believe, found with the McBride papers at  the Provincial Archives of British Columbia.  All right.  Now, I am going to ask you if Mr.  McBride's response is at tab 132, March 3, 1911?  Yes, it is .  And at 133, a further letter from Chief Wedildahld?  That's correct.  That's W-e-d-i-1-d-a-h-l-d.  And 134, Dr. Lane,  apparently a response, the date of which is not  readily visible.  And this is --  Yes.  -- the response of Mr. McBride?  That's correct.  Now, I direct your attention, please, to tab 135,  again a letter from Mr. Clark of May 5, 1911?  Yes.  Directed to Sir Wilfrid Laurier?  Yes.  And I previously referred to counsel acting on behalf  of British Columbia references apparently made in this  letter to a Mr. Eugene Lafleur?  Yes.  He was the Montreal lawyer that had been  advising the British Columbia Government in respect of  Indian title.  All right.  :  Well, I don't quarrel with that proposition but it 16854  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 doesn't necessarily flow from the fact that he's  2 retained as counsel.  3 MR RUSH:  I agree with that.  Perhaps it would be a long bow to  4 suggest that, but I might suggest it in argument.  5 MR. GOLDIE:  Yes, I would expect you would, given Mr. Lafleur's  6 reputation.  7 MR RUSH:  8 Q   Now, carrying on, Dr. Lane, at 136.  This appears to  9 be a letter to Mr. McBride of June 3, '11?  10 A   Yes.  11 Q   And from Mr. Sir Wilfrid Laurier, is it?  12 A   Yes, although the signature is not here.  13 THE COURT:  Who is it from, Laurier?  14 THE WITNESS:  Laurier, yes.  15 MR RUSH:  16 Q   Yes.  17 A   They were both in London simultaneously and apparently  18 missed a meeting that was scheduled.  19 Q   And at 137, Dr. Lane, this is a letter of Ashtown  20 Green, August 27, 1911?  21 A   Yes.  22 Q   And he apparently is reporting upon his return from  23 Kispiox in the Skeena Valley?  24 A   Yes.  25 Q   This is the same Ashtown Green you referred us to  26 earlier as being a surveyor?  27 A   That's correct.  28 Q   All right.  And I'd like to take you along to 138,  29 please, another letter from Chief Wedildahld, same  30 spelling, and speaking for a committee here, to The  31 Honourable Richard McBride of November 3 -- 13, 1911?  32 A   Yes.  33 Q   Now, Dr. Lane, to 139 if I can direct your attention,  34 this is a letter from Mr. Renwick, Deputy Minister of  35 Lands of November 12, 1911 -- excuse me, that's 22,  36 November 22, 1911.  This letter is addressed to Mr.  37 Green?  38 A   Yes, Mr. Ashtown Green, the surveyor.  39 Q   All right.  Could you just give us the context of this  40 letter, please?  41 A   Yes.  We have run rather quickly through a series of  42 documents that related to the resistance of the  43 Indians at Kispiox initially to having any reserves to  44 find for them because they claimed they owned the  45 whole of the Kispiox Valley, and the Dominion  46 Government was quite anxious to set aside some  47 important fishing stations in that area prior to them 16855  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 being taken over by non-Indians, and as it appears  2 from this letter, Ashtown Green -- you recall we  3 referred to a communication from Mr. Loring saying  4 that the Kispiox realized their mistake and were now  5 willing to have -- point out some areas and have them  6 defined as reserves.  And so Mr. Ashtown Green had  7 gone up and identified these fishing places, Kispiox  8 fishing stations and other points, and he'd sent a  9 blueprint of this to the land office, the Provincial  10 Land Office in Victoria, asking that those -- any  11 applications for those places from whites be held in  12 abeyance, not -- those places not be alienated by the  13 province to third parties even though they had not yet  14 formally been set aside as Indian reserves.  Perhaps  15 I'd better read his own language.  16  17 "I have the honour to acknowledge receipt..."  18  19 This is from the Lands Commissioner:  20  21 "I have the honour to acknowledge receipt of your  22 letter of the 2nd instant, enclosing blueprint of  23 the sketch of the Kispiox Indian fishing stations  24 on the Kispiox and Skeena rivers, and requesting  25 that any applications for lands that encroach on  26 these stations be disallowed until the Indian  27 question is settled.  28 In reply I beg to state that, as the Department  29 of Indian Affairs at Ottawa has already been  30 advised, until some steps are taken by the  31 Dominion Government with a view to securing the  32 necessary re-adjustment of Indians Affairs  33 generally throughout this Province it is not the  34 intention of the Minister of Lands to consent to  35 the creation of any more Indian Reserves nor to  36 make any further withdrawal of lands from  37 settlement by whites at the request of the  38 Departments of Indian Affairs."  39  40 Q   Thank you, Dr. Lane.  May I refer you to tab 140?  41 A   Yes.  42 Q   This is a letter to Mr. Rogers, apparently it is a  43 copy and unsigned.  Are you able to assist us with the  44 signer?  45 A   Yes.  Mr. Rogers at this time was Deputy Minister of  46 the Interior -- I don't mean Deputy, I mean Dominion  47 Minister of the Interior -- and I am not sure that I 16856  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 can identify at the moment the sender of this letter.  2 Q   All right.  Now, perhaps I could just refer you to the  3 bottom of the first page, reference is made to a Mr.  4 Newcombe?  5 A   Yes.  6 Q   And is that the same Mr. Newcombe or a different Mr.  7 Newcombe?  8 A   No, that's correct.  It is the same Mr. Newcombe with  9 the Department of Justice that we had reference to  10 earlier; in fact, it says so in the first paragraph  11 mid section.  12 Q   All right.  Just carrying on, Dr. Lane, if I may  13 direct you to 141, please.  This appears to be a  14 response to Chief Wedildahld of December 6, 1911?  15 A   Yes.  16 Q   And are you able to assist us in respect --  17 A   Oh, yes.  I guess these come from the McBride papers.  18 MR. RUSH:  All right.  Excuse me, page or rather tab 142.  19 THE COURT:  Does that mean it came from the Premiere?  20 THE WITNESS:  Yes.  I am sorry, it is from the McBride papers,  21 the Premiere's papers at the Provincial Archives in  22 British Columbia, and these are carbons without  23 letterhead or signature.  Copies of letters sent.  24 Yes.  2 5 MR. RUSH:  26 Q   Now, Dr. Lane, I was referring you to 142?  27 A   Yes.  2 8 Q   The memorandum for the Deputy Minister over the  29 signature of Mr. Bray, chief surveyor?  30 A   Yes.  31 Q   February 16, 1912.  He says at the concluding -- in  32 the concluding sentence:  33  34 "I beg to draw your especial attention to this  35 matter and to submit that it would appear to be  36 advisable that steps be taken to arrive at some  37 definite understanding with the Province at as  38 early a date as possible."  39  40 And reference is made to Mr. Green's application and  41 are you able --  42 THE COURT:  Mr. Green's report.  Is there an application  43 somewhere else?  4 4 MR RUSH:  45 Q   Well, he, in the previous sentence, the reference is  46 to Green's application.  Just asking Dr. Lane to what  47 that refers? 16857  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 A   Yes, Mr. Bray was the chief surveyor with the  2 Department of Indian Affairs at Ottawa to whom Mr.  3 Ashtown Green reported.  And this refers to the same  4 matter that we touched on a few moments ago where Mr.  5 Green had asked the Department of Lands in Victoria to  6 withhold from alienation those fishing stations that  7 had been identified as Kispiox Indian fishing  8 stations, and this is a letter from Mr. Bray apprised  9 of the same information repeating and discussing the  10 same matter.  11 Q   And in respect of that same matter, Dr. Lane, I direct  12 your attention to tab 143, letter from Mr. McLean,  13 Assistant Deputy, I can take it, of the Department of  14 Indian Affairs?  15 A   That's correct.  16 Q   And this is addressed to Mr. Renwick, Deputy  17 Commissioner, Department of Lands, Victoria?  18 A   Yes.  19 Q   And that's February 21, 1912.  And this letter is in  20 reference to this matter that you have just referred  21 us to?  22 A   That's correct.  23 Q   Okay.  Now, 144, this is a letter from the Methodist  24 Church to Mr. McBride, March 1912.  Where would this  25 letter have been found, Dr. Lane?  26 A   In the McBride papers, letters received.  27 Q   Thank you.  And 145?  28 A   Yes.  29 MR. RUSH:  Direct your attention to a letter of a Mr. Bodwell to  30 the Attorney General, the Province of British  31 Columbia, March 25, 1912.  And what is this document  32 in reference to, Dr. Lane?  33 MR. GOLDIE:  Isn't it self apparent, my lord?  34 THE COURT:  Well, tell me.  I haven't found out yet who it is  35 addressed to.  36 MR. GOLDIE:  The Attorney General.  It is an opinion addressed  37 to the Attorney General by Mr. Bodwell who is counsel  38 for the Province of British Columbia on the attempted  39 reference to the Supreme Court of British Columbia.  4 0    MR RUSH:  41 Q   It appears, Dr. Lane, by reference to the first  42 paragraph that Mr. Bodwell has been referred to  43 certain documents provided by "The Conference of the  44 Friends of the Indians of British Columbia" and then  45 he makes -- he offers an opinion following that.  And  46 can you assist us with regard to The Conference of The  47 Friends of the Indians of British Columbia? 1685?  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  A  Q  A  Yes.  This is the same group that I referred to  earlier which was a group of concerned citizens  including among them many methodist ministers and  missionaries who were attempting to solicit Government  action or court reference in respect of the Indian  title issue in British Columbia.  Now, at 146, please, another letter from Mr. McLean,  and are you able to -- oh, yes, to Mr. Ashtown Green,  June 15, 1912?  Yes.  And this appears to be with reference to the survey at  the Andimaul Indian Reserve.  Can you assist us with  regard to the last paragraph, Dr. Lane?  Yes.  "It is hoped that you will be able to overcome the  opposition of the Indians and to explain to them  that whatever outcome there may be to their claim  for the whole territory..."  "... that in any case ..."  "...that in any case the chosen spots which are..."  I can't make out the next part.  "... for their use ..."  THE COURT:  Necessary.  MR. GOLDIE:  Necessary.  THE WITNESS:  "...necessary for their use should be secured for  them."  Q  A  MR. RUSH:  Q  A  Q  A  Q  A  Q  A  Thank you.  Now, Ashtown Green appears to be the  author of the letter at 147, Dr. Lane, October 23,  1912?  Yes.  And Mr. McKenna is the recipient of the letter?  Yes.  At that time who was Mr. McKenna?  He is identified as  a Special Commissioner?  Yes.  Assist us as to what that means?  Yes.  Mr. J.A.J. McKenna held various posts with the  Department of Indians Affairs at Ottawa, and this is 16859  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 the same McKenna of the McKenna/McBride Agreement.  2 Q   Thank you.  Turn your attention now to tab 148?  3 A   Yes.  4 Q   And this styles itself Memo For Ministers Re British  5 Columbia Indians, May 1907 - April 1914, and it  6 appears to be a letter dated December 17, 1913 from a  7 Mr. Doherty?  8 A   That's correct.  9 Q   And can you explain in summary form what this pertains  10 to?  11 A   I believe at this stage Mr. Doherty was with the  12 Dominion Department of Justice and the subject matter  13 was the petition of the Nishga Indians of British  14 Columbia who were pressing the claim of Native title  15 in a petition at that time, and I would gather from  16 the title that this was a report prepared for the  17 perusal of various ministers of the Government.  18 MR. RUSH:  All right.  19 MR. GOLDIE:  Well, I am sorry —  20 THE WITNESS:  The Dominion Government, excuse me.  21 MR. GOLDIE:  Is that so?  It is addressed to somebody, in  22 particular, Dr. Roche.  23 THE WITNESS:  That's true.  2 4 MR RUSH:  25 Q   Did the cover letter -- did the cover -- Dr. Lane, I  26 suppose both is possible?  27 A   That's correct.  28 Q   The cover, did that attach to the letter?  29 A   Yes.  30 Q   In the repository from which it came?  31 A   Yes.  32 MR. GOLDIE:  Well, my lord, it may have attached to the letter  33 but the cover says May 1907 to April 1914.  The  34 document is October 17, December 1913.  It is hardly  35 likely that a letter of that date would be prepared  36 for a memo covering the period to April 1914.  There  37 is no particular mystery about it.  Mr. Doherty, I  38 believe at this time, was the Minister of Justice.  3 9 MR RUSH:  40 Q   Are you able to assist us here, Dr. Lane, in terms of  41 the source of this particular document?  It indicates  42 "Mbs 100 box" up in the upper left-hand corner?  43 A   Yes.  I believe this comes from the Public Archives in  44 Canada but I would have to refresh myself on this.  45 MR. GOLDIE:  In the upper right-hand corner of Mr. Doherty's  46 letter there is some stamp.  Is that decipherable?  47 THE WITNESS:  It looks like it says UC — U — I cannot make it 16860  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 out.  It may be -- no, I cannot read my copy.  2 MR RUSH:  3 Q   All right.  Now, Dr. Lane, can I refer you now to tab  4 150, please?  5 A   Yes.  6 Q   This is a lengthy enclosure, the tab runs some 52  7 pages, from Mr. McKenna?  8 A   Yes.  9 Q   And Special Commissioner of the Government of Canada,  10 and this is directed to Sir Richard McBride?  11 A   Yes.  12 Q   And what passages if any would you direct our  13 attention to in this document, Dr. Lane?  14 A  Well, on the first page -- I might say that this very  15 lengthy memorandum is part of the papers prepared  16 during the discussions between the two levels of  17 government in an attempt to resolve Indian land  18 matters in British Columbia, and follows the failure  19 of the reference to the courts of these questions that  20 were referred to earlier, and in this report, it is  21 the same Mr. McKenna that we referred to earlier.  He  22 sets out some of the questions that are at issue that  23 have been discussed in conversations and lists some  24 claims that are made on behalf of the Indians,  25 including the first one, the one of aboriginal title:  26  27 "That the various nations or tribes have aboriginal  28 title to certain territories within the Province,  29 which, to perfect the Crown title in the right of  30 the Province, should be extinguished by treaty  31 providing for compensation for such  32 extinguishment."  33  34 And then goes on to other matters between the  35 Provincial and Dominion levels of Government in  36 respect of Indian reserves, and third:  37  38 "That Indians should be freely allowed to pre-empt  39 lands open for pre-emption by others."  40  41 And then goes on to the question of Indians should be  42 enfranchised and so on.  And then says:  43  44 "As to the first claim, I understand that you will  45 not deviate from the position which you have so  46 clearly taken and frequently defined, ie., that  47 the Province's title to its land is unburdened by 16861  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 any Indian title, and that your Government will  2 not be a party, directly or indirectly, to a  3 reference to the Courts of the claims set up.  You  4 take it that the public interest, which must be  5 regarded as paramount, would be injuriously  6 affected by such reference in that it would throw  7 doubt upon the validity of titles to land in the  8 Province.  As stated at our conversations, I agree  9 with you as to the seriousness of now raising the  10 question, and, as far as the present negotiations  11 go, it is dropped."  12  13 THE COURT:  This is Newcombe's letter, is it?  14 THE WITNESS:  No, this is Mr. McKenna.  And this is just before  15 the McKenna/McBride Agreement.  16 THE COURT:  Yes, all right.  17 THE WITNESS:  And it is agreed that for the moment, or for the  18 purposes of these negotiations, the question of title  19 will be set aside.  20 THE COURT:  What do you want to do, Mr. Rush?  21 MR RUSH:  I think we will pause there, my lord, and I think I  22 can advise your lordship I will finish tomorrow but I  23 won't finish as soon as I had thought.  I will take  24 the day, and I think if we re-visit the discussion we  25 had the other day about the issue of sitting on  26 Saturday or not, and whether we should put the matter  27 over for cross-examination, I think, given the obvious  28 reality that we will have to put the matter over for  29 cross-examination, I propose that I complete the  30 direct tomorrow, that we adjourn to the 12th for the  31 cross-examination, and I think Mr. Goldie indicated  32 that yesterday or the day before, not disputed by Ms.  33 Koenigsberg, that that would be a convenient time to  34 have the matter stood over to.  35 THE COURT:  All right.  Will three days do it in mid June, Mr.  36 Goldie and Ms. Koenigsberg?  37 MR. GOLDIE:  As presently advised, yes, my lord.  38 MS. KOENIGSBERG:  Yes.  39 THE COURT:  All right.  I have made — and I have to leave on  40 the 15th, but we can sit some evenings if we have to.  41 All right.  Ten o'clock tomorrow morning.  Thank you.  42  43  44  45  46  47 16862  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 THE REGISTRAR:  Order in court.  Court will adjourn until ten  2 a.m. tomorrow.  3  4  5  6 (PROCEEDINGS ADJOURNED AT 4:05 p.m. TO MAY 26, 1989)  7  8  9  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein, transcribed to the  14 best of my skill and ability.  15  16  17  18  19  20 TANNIS DEFOE, Official Reporter  21 United Reporting Service Ltd.  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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