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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-09-18] British Columbia. Supreme Court Sep 18, 1989

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 19644  Opening by Mr. Goldie  1 Vancouver, B. C.  2 September 18, 1989.  3  4 THE REGISTRAR:  In the Supreme Court of British Columbia, this  5 18th day of September, 1989.  In the matter of  6 Delgamuukw versus her Majesty the Queen at bar, my  7 lord.  8 THE COURT:  Mr. Goldie?  9 MR. GOLDIE:  My lord, in accordance with the schedule which I  10 had indicated we would follow, I propose calling this  11 morning Dr. A. L. Farley, F-A-R-L-E-Y, who will be the  12 first of two witnesses called in respect of the Royal  13 Proclamation issued.  14 Your lordship will recall that the plaintiffs say  15 the Royal Proclamation of 1763 applies to British  16 Columbia; that the territory they claim was thereby  17 reserved to their benefit until surrendered with their  18 informed consent; that their aboriginal title  19 ownership and jurisdiction is recognized by virtue of  20 the Royal Proclamation; and that there is a special  21 relationship between the plaintiffs as Indians and the  22 Imperial or Federal Crown.  23 And so much of that is set out in paragraph 65 of  24 the amended statement of claim, as it stands before  25 the amendments proposed, and which are still under  26 consideration.  27 So far as I can follow the prayer for relief, there  28 is no relief sought in the form of a declaration that  29 there is a special relationship between the plaintiffs  30 as Indians and the Imperial or Federal Crown as  31 alleged.  And your lordship will also have in mind  32 paragraph 66 of the amended statement of claim, where  33 the plaintiffs say that in the alternative, by virtue  34 of the Royal Proclamation, they enjoy rights, firstly,  35 a right of ownership to lands, waters and resources in  36 the claimed territory; secondly, a right of  37 jurisdiction over the plaintiffs and their house  38 members, and all the lands, waters and resources in  39 the claimed territory; and, thirdly, a right of  40 protection from the Imperial or Federal Crown in  41 reserving these rights until surrendered to either.  42 Again I note there is no relief sought based on the  43 last allegation, that is to say, a right of protection  44 from the Imperial or Federal Crown and I proceed on  45 the basis that a claim for that right, if it ever  46 existed, is abandoned.  The defence to these claims,  47 my lord, is, of course, set out in the amended defence 19645  Opening by Mr. Goldie  1 and it is the position of the province with respect to  2 the Royal Proclamation is that it never applied to  3 what is now British Columbia or to the native peoples  4 in it and, alternatively, if it did, the rights  5 granted have been extinguished.  6 My lord, I propose outlining very briefly the  7 nature of the evidence that will be called.  And first  8 there will be an outline of the relevant physical  9 characteristics of North America.  And reference to  10 the political situation there shortly before and after  11 making of the treaty in 1763.  As your lordship knows  12 some of that evidence has already emerged in the  13 plaintiffs' case.  14 The area drained by rivers which flow from the west  15 and the northwest into the sea, and that's almost a  16 quotation from the Royal Proclamation, will be  17 identified and the evidence will identify the most  18 northerly of the sources of those rivers.  The central  19 portion of the continent, to the west and to the south  20 of the Great Lakes is drained by the Mississippi River  21 system, and the Mississippi flows in a southerly  22 direction into the Gulf of Mexico.  Evidence with  23 respect to its true source and of the beliefs with  24 respect to that source in the 18th century will be  25 given.  To the north of the Great Lakes lie the  26 drainage areas of the rivers flowing into the Arctic  27 Ocean, James Bay and Ungava Bay, and the extent of  28 these drainage areas will be identified.  29 Dr. Farley, as a geographer and cartographer, will  30 review the maps that were in existence prior to the  31 Treaty of Paris, others which were more or less  32 contemporary, and more current maps, which indicate  33 the evolving state of knowledge of North America, with  34 reference -- with some particular reference to the  35 northwest coast of North America.  36 Your lordship has already heard some evidence about  37 the political situation before the Treaty of Paris.  38 There were some four European countries laying claims  39 to parts of North America, Britain, France, Spain and  40 to a lesser extent, Russia.  Reference has been made  41 to the Treaty of Utrecht, under which Nova Scotia  42 became a British colony, and as a result of the war  43 which concluded with the Treaty of Paris, Acadia was  44 in British hands.  Your lordship has heard reference  45 to Rupertsland, which comprised the territory granted  46 to the Hudson's Bay Company and which it constituted a  47 colony of the United Kingdon since 1670.  An attempt 19646  Opening by Mr. Goldie  1 to fix its southerly and eastern boundaries, following  2 the Treaty of Utrecht, had been unsuccessful.  3 Fronting on the Atlantic ocean were, of course, the 13  4 so-called American colonies, the westerly boundaries  5 of which, some of which were claimed to extend beyond  6 the Appalachian Mountains, and the Appalachian  7 mountain chain will be identified.  Florida belonged  8 to Spain, France claimed what was called Canada and a  9 very considerable area of the continent, both east and  10 west of the Mississippi River.  In all, a territory  11 extending from the gulf of Mexico on the south to the  12 gulf of St. Lawrence and Labrador to the north.  13 On the Pacific coast, Spain owned Mexico, including  14 territory within the present State of California, and  15 claimed this at least as far as present day San  16 Francisco.  The Treaty of Paris, which will be gone  17 into in greater detail by Dr. Greenwood, and which  18 some reference has been made to your lordship, by  19 Article IV, France renounced all pretensions to Nova  20 Scotia or Acadia, and guaranteed the whole of it to  21 Great Britain and ceded and guaranteed to Great  22 Britain in full right, Canada, with all of its  23 dependencies, as well as the Island of Cape Breton and  24 all of the other islands and coasts of the gulf of the  25 River of St. Lawrence.  By Article V, France -- French  26 subjects were to have the liberty of fishing and  27 drying on a part of the coasts of the Island of  28 Newfoundland.  And by Article VI Great Britain ceded  29 to France the Islands of St. Pierre and Miquelon.  30 Article VII, which left to France Louisiana and New  31 Orleans, stated that, "In order to re-establish peace  32 on solid and durable foundations, and to remove  33 forever all subject of dispute with regard to the  34 limits of the British and French territories in the  35 continent of America, it is agreed that for the future  36 the confines between the dominions of His Britannick  37 Majesty and those of His Most Christian Majesty, in  38 that part of the world, shall be fixed irrevocably by  39 a line drawn along the middle of the River Mississippi  40 from its source, to the river Iberville, and from  41 thence from a line drawn along the middle of this  42 river and the lakes Maurepas and Potchartrain to the  43 sea."  And then follows some particulars with respect  44 to that.  45 The island of Grenada was ceded by France to Great  46 Britain, and there are a number of other matters which  47 related to Spain.  Great Britain was to restore to 19647  Opening by Mr. Goldie  1 Spain the territory which it had conquered on the  2 Island of Cuba and Article XX provided that, "In  3 consequences of the restitution stipulated in the  4 preceding article..."  that is to say, the restitution  5 of the territory and the Island of Cuba, "...his  6 Catholic Majesty...", that is to say, the King of  7 Spain, "...cedes and guarantees in full right to His  8 Britannick Majesty, Florida, with Fort St. Agustin and  9 the Bay of Pensacola, as well as all that Spain  10 possesses on the continent of North America to the  11 east or to the southeast of the river Mississippi."  12 My lord, it -- I do not need to outline the  13 political situation in North America that followed  14 from that, because all of those matters were carried  15 into effect.  16 Now, that -- on the northwestern coast, there were  17 no settlements or forts representing European  18 occupancy or sovereignty between the most northerly of  19 the Spanish possessions and what is now called the  20 Alaska panhandle, and the Treaty of Paris didn't  21 purport to deal with this portion of the continent.  22 The there will be evidence of the effect of the  23 explorations of the LaVerendrye family in 1742 to '43,  24 so far as records were left behind with respect to it.  25 I should state that it will also be our submission  26 that by its own terms the Royal Proclamation does not  27 apply to what is now British Columbia.  28 With that, my lord, I call Dr. Farley.  29  30  31 ALBERT LEONARD FARLEY, a witness  32 called on behalf of the Provincial  33 defendant, after first being duly  34 sworn, testified as follows:  35  36 THE REGISTRAR:  Will you state your full name, please?  37 THE WITNESS:  Albert Leonard Farley, F-A-R-L-E-Y.  38  39    EXAMINATION IN CHIEF BY MR. GOLDIE: (On Qualifications)  40  41 MR. GOLDIE:  Dr. Farley is tendered, my lord, as a witness, an  42 expert geographer with a specialty in cartography,  43 And he will describe to the court the state of  44 knowledge of North America in the relevant periods as  45 revealed through the maps of the day.  46 Q    I am going to deal first, Dr. Farley, with your  47 qualifications.  You obtained a honours B. A. from the 19648  A. L. Farley (for Province)  In Chief by Mr. Goldie  on qualifications  1 University of British Columbia with -- having done  2 your first two years of undergraduate work at Victoria  3 College in Victoria?  4 A   Yes.  5 Q   And you obtained a first class teaching certificate  6 from the Provincial Normal School in Victoria and you  7 then joined the navy; is that correct?  8 A   Yes.  9 Q   And you obtained in the navy a specialist's  10 certificate as a navigation officer?  11 A   Yes.  12 Q   And you obtained a masters degree at the University of  13 British Columbia and a PhD from the University of  14 Wisconsin in 1960; is that correct?  15 A   Yes.  16 Q   Your M. A. thesis was entitled A Regional Study of  17 Southern Vancouver Island and your supervisor was Dr.  18 J. L. Robinson of the University of British Columbia?  19 A   Yes.  20 Q   And Dr. Robinson at that time occupied what position?  21 A   Head of the department.  22 Q   Of geography?  23 A   Yes.  24 Q   Thank you.  Your PhD thesis was entitled Historical  25 Cartography of British Columbia?  26 A   Yes.  27 Q   You have been -- you were awarded the University of  28 Wisconsin fellowship in 1951-52 and the Canadian  29 Social Science Research Council fellowship in 1952; is  30 that correct?  31 A   Yes.  32 Q   Prior to joining the University of British Columbia,  33 you were employed with the B. C. Land Service as a  34 field officer in 1947-48?  35 A   Yes.  36 Q   And a teaching assistant at the university of  37 Wisconsin in 1949-1950?  38 A   Yes.  39 Q   What courses were you assisting in at the University  40 of Wisconsin?  41 A   In the geography programme, courses to do in the  42 undergraduate level with physical geography,  43 essentially.  44 Q   And by the university -- you were employed by the  45 University of Wisconsin Press as a cartographer in  46 1951-52?  47 A   Yes. 19649  A. L. Farley (for Province)  In Chief by Mr. Goldie  on qualifications  1 Q   And by the British Columbia Land Service as director  2 of geographical studies in 1952 to 1958?  3 A   Correct, yes.  4 Q   And you were first appointed to the University of  5 British Columbia in 1958 as an instructor?  6 A   Yes.  7 Q   And you became or you were appointed assistant  8 professor and held that position from 1959 to 1963?  9 A   Yes.  10 Q   And associate professor with term from 1963 to 1966?  11 A   Yes.  12 Q   And without term, that is with tenure, from 1966 to  13 1980?  14 A   It would be after 1980 until I retired.  15 Q   Yes, you became full professor in 1980; is that  16 correct?  17 A   Yes.  18 Q   And you retired in 1985?  19 A   Yes.  20 Q   And you are now Professor Emeritus?  21 A   Yes.  22 Q   And you have, for the whole of your time at the  23 University of British Columbia, been a full-time  24 member of the geography department?  25 A   Yes.  26 Q   And within the department you were chairman/supervisor  27 of the Cartographic Services Committee?  28 A   Yes.  29 Q   And a member of the Interdisciplinary Committee on  30 Remote Sensing; is that correct?  31 A   Yes.  32 Q   And you were acting head of the Department of  33 Geography in the summer of 1984?  34 A   Yes.  35 Q   Your publications, with others, you were responsible  36 for the British Columbia Atlas of Resources, produced  37 for the British Columbia Natural Resources Conference  38 in Vancouver in 1956?  39 A   Yes.  40 Q   And you were responsible for the Atlas of British  41 Columbia, People, Environment and Resource Use,  42 published by the University of British Columbia Press  43 in 1979?  44 A   Yes.  45 Q   And for the British Columbia Population Distribution,  46 a map published in 1965, depicting the distribution of  47 population in 1961? 19650  A. L. Farley (for Province)  In Chief by Mr. Goldie  on qualifications  1 A   Yes.  2 Q   And —  3 A   If I may say so, sir, it was a map prepared for the  4 International Geographical Congress.  5 Q   Yes.  And you prepared a series of some 26 maps  6 depicting climatic variables for British Columbia,  7 prepared for the Canada Land Inventory in 1967?  8 A   Yes.  9 Q   And you have prepared a map of land utilization in the  10 Strait of Georgia with descriptive and interperative  11 text by yourself for the Canada Department of  12 Environment in 1973?  13 A   Yes.  14 Q   And you have published papers, first, "Fact and Fancy  15 in mapping Northwest America to 1800, an occasional  16 paper of the B. C. Division of the Canadian  17 Association of Geographers" in May, 1962?  18 A   Yes.  19 Q   The Development and Classification of Maps, a paper  20 given at the 10th British Columbia Natural Resources  21 Conference in 1957?  22 A   Yes.  23 Q   A paper on "Cartographic Perceptions of Northwest  24 America, 1570 to 1800", "Exploration and Discovery" at  25 the 6th Conference of the Canadian Society for 18th  26 Century studies in 1979?  27 A   Yes.  28 Q   "Thoughts on the Historical Cartography of British  29 Columbia" an occasional paper of the B. C. Division of  30 the Canadian Association of Geographers in 1961?  31 A   Yes.  32 Q   And you -- with respect to the Atlas of British  33 Columbia, you made a report to the Association of  34 Canadian Map Libraries in 1978?  35 A   Yes.  36 Q   And you are the -- you have been the editor of papers  37 of a cartographic workshop and colloquium at the  38 University British Columbia in 1979?  39 A   Yes.  4 0 Q   And you have given -- you have produced a paper on  41 topographic changes and available cartography in a  42 spring symposium of the Ocean Studies Council in  43 March, 1985?  44 A   Yes.  45 Q   And you have reviewed a number of papers appearing in  46 other publications?  47 A   Yes. 19651  A. L. Farley (for Province)  Cross-exam by Mr. Rush  on qualifications  1 Q   In the regional sense, you have produced a Chapter 5  2 in Studies in Canadian Geography, British Columbia,  3 1972, entitled The Forest Resource?  4 A   Yes.  5 Q   In the Canadian Geographer, paper entitled Applied  6 Geography in British Columbia?  7 A   Yes.  8 Q   That's 1954.  A paper "A Summary Map of Soil Surveys  9 and Land Utilization Studies in British Columbia", the  10 annual report of the British Columbia Land Services in  11 1950?  12 A   Yes.  13 Q   And "The Impact of Industry on the Municipality of  14 Kitimat", an analysis and report undertaken for  15 Eurocan Pulp & Paper Company in 1965?  16 A   Correct.  17 Q   And you have been an editor of a bibliography of  18 climatology for British Columbia as prepared for or on  19 behalf of the Canada Land Inventory of 1968?  20 A   Yes.  21 Q   Now, without going into others, I ask you if you are  22 responsible for articles for the Encyclopaedia  23 Britannica on British Columbia, these were prepared in  24 May and June of 1959, British Columbia, Cariboo  25 Mountains, Queen Charlotte Islands, Selkirk Mountains,  26 Vancouver Island and Victoria?  27 A   Yes.  28 Q   Of varying lengths.  29 And articles for the Encyclopaedia Britannica under  30 the heading British Columbia for 1968?  31 A   Yes.  32 Q   And you have been a referee of book manuscripts and  33 major grant applications?  34 A   Yes.  35 MR. GOLDIE:  I tender Dr. Farley as an expert witness in the  36 fields I have described.  37 THE COURT:  Thank you.  Mr. Rush?  38  39    CROSS-EXAMINATION BY MR. RUSH: (On qualifications)  40  41 MR. RUSH:  42 Q   Dr. Farley, it's fair to describe, is it not, that  43 your field is cartography?  44 A   I would say that my field is geography, with a  45 specialism in cartography.  46 Q   You can give expert evidence in the field of  47 cartography? 19652  A. L. Farley (for Province)  Cross-exam by Mr. Rush  on qualifications  1 A   Yes.  2 Q   And that's what you are being asked to do in terms of  3 the opinion evidence that you have provided to the  4 provincial defendant's counsel?  5 A   I would have to offer a qualified yes.  I was asked to  6 prepare a geographic -- an outline of the geography of  7 North America, against which an argument, a legal  8 argument on aboriginal title could be set.  So that I  9 would, in answer to your question, say that it's more  10 than cartography per se.  It involves other aspects of  11 geography.  12 Q   I would like to suggest to you that you have described  13 your work itself as -- and the purpose of your written  14 opinion -- as emphasizing the main elements of  15 cartography?  16 MR. GOLDIE:  Sorry, is my friend referring to a letter or  17 document?  18 MR. RUSH:  If you will allow me the cross-examination.  19 MR. GOLDIE:  Sorry, my friend's question suggests that he is  2 0 quoting from something.  21 MR. RUSH:  22 Q   Can you answer my question, sir?  23 A  Would you mind rephrasing it or stating the question  24 again?  25 Q   Is it fair to say that the way you describe the  26 opinion which you prepared on behalf of counsel for  27 the province --  28 THE COURT:  I am sorry Mr. Rush, already I can see a problem.  29 The way you describe, I am not sure if the witness is  30 going to understand you to mean that he has done so in  31 the past or he is doing it now.  32 MR. RUSH:  No.  All right.  I will endeavour to reframe my  33 question.  34 Q   Is it fair to say, Dr. Farley, that you have described  35 what you have done in terms of your opinion, as  36 emphasizing the main elements of cartography?  37 A   It emphasizes the main elements of -- the main  38 cartographic developments, but it involves more than  39 cartography, as the word is generally accepted, the  40 meaning of the word is generally accepted.  41 Q   Dr. Farley, you indicate or I understood your  42 background to be that you received a masters of arts,  43 an MA., in 1948 to '49; is that right?  44 A   Yes, '49.  45 Q   And you started your PhD work in 1949?  46 A   Yes, I went to the University of Wisconsin in 1949.  47 Q   And you stayed there until 1952, correct? 19653  A. L. Farley (for Province)  Cross-exam by Mr. Rush  on qualifications  1 A   Yes.  2 Q   And did you not receive your PhD until eight years  3 later, in 1960?  4 A   That's correct.  5 Q   And for part of the time, between 1950 and 1960, you  6 were working as a cartographer with the University of  7 Wisconsin Press?  8 A   Yes.  9 Q   And to be exact, that's between 1951 and '52?  10 A   Yes, between '51 and '52.  11 Q   And from 1952 to 1958, a period of about six years,  12 you worked for the British Columbia Land Service as a  13 cartographer?  14 A  As a geographer.  15 Q   You tell me what you did with them, please?  16 A  With the Land Service?  17 Q   Yes.  18 A   I was with the British Columbia Land Service, I did --  19 I prepared a considerable number of reports that were  20 used in the land series bulletins, I did a good deal  21 of field work, sat on various government committees,  22 and -- I am not -- if you would wish a fuller  23 answer --  24 Q   Did you prepare any maps?  25 A   Yes.  Well, I had a hand in their preparation.  You  26 will understand that in that capacity I had a lot of,  27 not at my entire disposal, but I had access at least  28 to the drafting services of the geographic division so  29 maps were prepared, for instance, a series of land  30 form maps which were initiated under my direction were  31 prepared at that time.  32 Q   And, so we understand ourselves, is it not true, Dr.  33 Farley that, cartography is a technique for depicting  34 information on maps?  35 A   I think it's more than that.  Cartography involves an  36 understanding of the evolution, not just of the  37 technology and the techniques, but also the whole  38 history, the philosophical background to the  39 preparation of maps and the economic background to  40 that.  So I think it's certainly more than a  41 technique.  I would hope to think it would be.  42 Q   Your PhD thesis was on the historical cartography of  43 British Columbia?  44 A   Yes.  45 Q   And that contained a separate appendix of maps?  46 A   Yes.  47 Q   And, as you said, that was obtained in 1960? 19654  A. L. Farley (for Province)  Cross-exam by Mr. Rush  on qualifications  1 A   Yes.  2 Q   And is it fair to say that the purpose of that study  3 was to trace the evolution of the map of British  4 Columbia?  5 A   Yes.  6 Q   And I take it that from the topic heading your focus  7 was on the land mass of present day British Columbia?  8 A   Yes, the focus, since the title says Historical  9 Cartography of British Columbia, clearly the focus was  10 on British Columbia.  However, the work embraced an  11 area larger than the present province, by necessity,  12 because the map evolution could scarcely be understood  13 without some reference to the broader area of what I  14 refer to as the Pacific Northwest.  15 Q   That was part of your historical study of the  16 evolution of maps of British Columbia, you had to go  17 back before British Columbia was known?  18 A   Before it was rendered on maps, yes, yes.  19 Q   And is it fair to say that in doing your work on your  20 PhD thesis, you looked at various map products for  21 selected periods?  22 A   Oh, indeed.  23 Q   And do I understand that in the course of that thesis,  24 that you evaluated those maps against what you knew to  25 be the cartography of British Columbia in 1960?  26 A   Yes, one does that in such a study.  It's perhaps the  27 only way one can appreciate how good the mapping of  28 the given period was.  So that is part of it.  29 Q   Part of the project that you undertook for that thesis  30 was to look at those maps, which we might call  31 historical or ancient maps, and evaluate them as  32 against what you knew to be maps of the previous day?  33 A   Yes, in assessing the importance of the respective  34 maps through the years, one inevitably makes a  35 comparison of what one knows or believes to exist at  36 the present.  And so, for example, an Arrowsmith map,  37 the Arrowsmith of 1790 is an example, that's an  38 outstanding map, as was the Trutch map of 1871,  39 outstanding in comparison to what had existed before,  40 and outstanding in the sense of the kinds of  41 information they incorporate.  The sources and kinds.  42 Q   Is it fair to say, Dr. Farley, that cartography as a  43 specialty, as you have described it, is dealing with  44 spatial relationships as they appear on maps?  45 A   Yes.  46 Q   And in terms of that field, your concern, is it not,  47 and I will again deal specifically with your 19655  A. L. Farley (for Province)  Cross-exam by Mr. Rush  on qualifications  1 historical -- the historical cartography, you did in  2 relation to your thesis, your focus was concerned with  3 matters of scale and distortions in maps?  4 A   Yes, scale and projection system, yes.  5 Q   And relative distances and water courses and things of  6 that sort?  7 A   Yes, the basic planemetry and the basing of that --  8 Q   You used the word planemetry?  9 A   Yes, two dimensional space.  10 THE COURT:  You mean two dimensional in relation to a third  11 point?  12 A  My lord, what is generally accepted in -- planemetry  13 to mean is relationship between points in a plane  14 coordinate system, where differences in the surface  15 are reduced to a common plane.  So it's really two  16 dimensional space, and hypsometric mapping, if I may,  17 my lord, would refer to establishing position in three  18 dimensional space.  19 MR. RUSH:  20 Q   For your PhD thesis, sir, I understand your thesis  21 advisor was Dr. A. H. Robinson?  22 A   Yes.  23 Q   He was a cartographer at Wisconsin?  24 A  A distinguished cartographer.  25 Q   I understand your thesis was never published, is that  26 right?  27 A   Not published in the sense of presenting it to a  28 publishing firm but published in the academic sense  29 since it was sent to the University of Chicago and  30 their system makes the information available to other  31 researchers and so on.  32 Q   Well, it was deposited in their repository, but you  33 know what I mean by published, don't you, Dr. Farley?  34 A   I am not clear what you mean by published.  35 Q   I mean published in the sense that your historical  36 Atlas of B. C. was published?  37 A   I don't recall publishing a historical Atlas of B. C.  38 Q   You don't?  39 A  Well, I -- please ask it again.  40 Q   That Atlas of British Columbia —  41 A   That's not a historical Atlas, that's an Atlas of  42 British Columbia published by the University of  43 British Columbia Press.  44 Q   That's a publication, however?  45 A   Yes.  46 Q   That's a a book?  47 A   Yes, well, an Atlas, book, Atlas, yes. 19656  A. L. Farley (for Province)  Cross-exam by Mr. Rush  on qualifications  1 Q   It's the only book you have published?  2 A   Yes, it's the only one that I have been solely  3 responsible for, yes.  4 Q   In the sense that the Atlas of British Columbia was  5 published, your thesis was never published?  6 A   No, not in that sense.  I understand what you mean  7 now.  8 Q   You are saying the Atlas of British Columbia wasn't a  9 historical Atlas?  10 A   The Atlas of British Columbia, no, it was not.  It  11 includes some historical maps.  12 Q   It contains a series of map plates about the land mass  13 of British Columbia; is that correct?  14 A   Yes.  15 Q   Would you agree with me, sir, that most of your -- and  16 I have been provided with a CV -- and judging from  17 your evidence, that most of your written work involves  18 either editing or publishing studies concerning maps  19 or cartography?  20 A  Most of it, yes, has to do with mapping.  21 Q   Well, at the University of British Columbia, you were  22 head of the cartographic section in the Department of  23 Geography?  24 A   Yes, I was responsible for that.  25 Q   And you taught cartography for the last few years?  26 A   Several years, yes.  I can't just recall when I  27 started.  28 Q   As I understand it, Dr. Farley, you were recognized at  29 the University of British Columbia as being a  30 specialist in cartography?  31 A   Yes.  32 Q   Now, is it correct to say, sir, that in terms of the  33 preparation of the opinion that you provided to  34 counsel on behalf of the Province of British Columbia,  35 you did not do any archival research?  36 A   Oh, that's not correct.  37 Q   What did you do, sir?  38 A  Well, I certainly spent a good deal of time at the  39 university library, both the main library and special  40 collections and the geography department library.  41 Q   Determining the whereabouts of certain maps?  42 A  Well, one has to find the whereabouts but it's  43 studying the maps themselves and documents related to  44 them.  45 Q   Did you attend -- did you review the collections at  46 the Hudson's Bay archives in Winnipeg?  47 A   No. 19657  A. L. Farley (for Province)  Cross-exam by Mr. Rush  on qualifications  Did you review the Traders Journals or the post  journals of the Hudson's Bay traders?  Well, not in the collection -- are you referring to  the Hudson Bay archive now?  Yes.  No, I did not go to Winnipeg.  Well, I am asking you more than that, I understand you  didn't go to Winnipeg, but you didn't review the  traders' journals, I think you have agreed with that?  Only from secondary sources such as Terrill.  My question is, you didn't review, for the preparation  of your opinion, the journals in their primary state?  Well, as you know, the Champlain Society has published  journals, for example, of Kelsey and I -- I am not  quite sure what you expect in the way of an answer.  I understand that housed at the Hudson's Bay archives  are certain documents referred to as post journals or  district reports?  Yes, yes.  Did you review those, sir?  No, I did not feel that it was appropriate to go into  that kind of detail for the purposes of presenting a  geographic background of North America, included  cartography-related, in this outline.  Well, I suggest to you, sir, that the reason that you  did not feel that was because your main focus was  other maps itself or the cartographic map itself?  Let me --  Is that not true?  Let try to answer the question this way --  :  Let him try and answer the question, please.  He may answer the question but I think he should  answer my question then he can explain what he wants  to do with his answer after that.  The witness said he would like to answer the  question.  Yes, I heard that.  Well, I think it's now apparent that the orderly  flow of ideas back and forth has been disturbed and I  think we will have to start all over again with a new  question.  Dr. Farley, if you would address yourself to my  question and then if you feel that you would like to  explain, please do so.  My question to you, sir, is  the emphasis on your study was on the main elements of  the cartographic record; is that correct?  1  Q  2  3  A   '  4  5  Q  6  A  7  Q  8  i  9  10  A  11  Q  1  12  13  A   '  14  15  16  Q  17  18  i  19  A  20  Q  21  A  22  23  24  25  Q  26  i  27  28  A  29  Q  30  A  31  MR.  GOLDIE  32  MR.  RUSH:  33  34  35  MR.  GOLDIE  36  37  MR.  RUSH:  38  THE  COURT:  39  40  41  42  MR.  RUSH:  43  Q  44  45  46  47 19658  A. L. Farley (for Province)  Cross-exam by Mr. Rush  on qualifications  Yes.  And the cartographic record, I suggest to you, are the  map products themselves; is that correct?  Yes.  Yes.  Maps represent what was known or thought  to be known at the time of their preparation.  So that  the details of explorers' journals or traders'  journals are, to greater or lesser extents,  incorporated in those products.  Yes.  But, is it not the case that not all of the  explorers or traders made maps?  Oh, that is the case, not all made them by any means.  And, for example, McGillivray, Simon McGillivray made  no map, did he?  I can't think of any he made, but I can't be sure of  the answer on that.  In terms of Anthony Hendy, he made no maps, did he?  No, there is no map that survives to us anyway that he  made.  In fact it's very difficult to sort through his  j ournals.  Did you try?  Yes.  And what about Henry Kelsey, there were no maps made  by him, were there?  No, no.  And even his narrative is in a kind of  curious doggerel.  And William Brown?  I don't recall.  You don't know William Brown?  No.  You don't know him to be a Hudson's Bay trader in the  northwest of British Columbia?  There were hundreds of them.  Yes.  A couple of more points, Dr. Farley.  My  understanding is that with respect to the Atlas of  British Columbia that was published in 1979, you are  described there as the cartographic editor of the B.C.  Atlas of Resources; is that correct?  Yes.  That was the Atlas of 1956 that you refer to.  Yes.  Thank you.  And I would like to provide you with  a -- what I understand to be -- your curriculum vitae,  you can identify that as such, can you not?  Yes.  I would like that to be an exhibit, please.  1147:  CURRICULUM VITAE OF DR. ALBERT LEONARD FARLEY)  1  A  2  Q  3  4  A  5  6  7  8  9  Q  10  11  A  12  Q  13  14  A  15  16  Q  17  A  18  19  20  Q  21  A  22  Q  23  24  A  25  26  Q  27  A  28  Q  29  A  30  Q  31  32  A  33  Q  34  35  36  37  38  A  39  Q  40  41  42  A  43  MR. RUSH:  44  45  (EXHIBIT  46  47  MR. RUSH: 19659  A. L. Farley (for Province)  Cross-exam by Mr. Rush  on qualifications  1 Q   And I direct your attention, sir, to page 3, which  2 sets out the cartography under Roman I, do you see  3 that?  4 A   Yes.  5 Q   And the cartographic commentary under Roman IIB?  6 A   Yes.  7 Q   Thank you.  8 Were you retained by way of contract or retainer  9 letter by the counsel on behalf of the Province of  10 British Columbia?  11 A   I was contacted -- I can review with you the  12 procedure, if that --  13 Q   Well, I don't need to know the whole of the procedure,  14 unless it's relevant, and if it is, please tell me.  15 MR. GOLDIE:  There is a letter that I handed you this morning.  16 MR. RUSH:   Well, there was some documents handed to me this  17 morning, my lord, which I haven't had an opportunity  18 of reading fully.  19 Q   But I understand there was a form of agreement that  20 was reached, was there, sir, between yourself and the  21 Province of -- counsel for the Province of British  22 Columbia with regard to the preparation of your  23 opinion?  24 A   Yes.  2 5 Q   And —  26 MR. GOLDIE:  It's a letter dated June 16th, 1987.  27 MR. RUSH:  I am just now having my first opportunity to read  28 this.  29 Q   And, Dr. Farley, are you -- I take it that you were  30 paid for the services that you rendered on behalf of  31 the province?  32 A   Yes.  33 Q   And up to the time of the production of your final  34 report, would you advise the court what it was that  35 you were paid, please?  36 MR. GOLDIE:  What is the purpose of that question, my lord?  37 THE COURT:  Well, I suppose —  38 MR. GOLDIE:  We are talking about qualifications at the present  3 9 time.  40 THE COURT:  It might show bribery, I suppose, or inducement.  41 MR. RUSH:  My lord, the question has been canvassed and ruled  42 upon by your lordship, that question of the payment to  43 experts is a permissible area of examination.  And I  44 simply raise that.  45 MR. GOLDIE:  I know that, but we are dealing with qualifications  46 at the present time and I don't see that it's relevant  47 to qualification.  If my friend wishes to ask it after 19660  A. L. Farley (for Province)  Re-exam by Mr. Goldie.  on qualifications  1 the witness has been qualified, he is welcome to do  2 so.  3 THE COURT:  It did come out in -- of the other witnesses, it  4 seems to me, probably came out in cross-examination,  5 didn't it, Mr. Rush?  6 MR. RUSH:  I think, my lord, it came out in both areas.  It was  7 pursued in respect to both.  But I am not overly  8 concerned about pressing it now.  9 THE COURT:  All right.  10 MR. RUSH:  If there is a magic time, I can carry it forward.  11 Those are my questions.  12 THE COURT: Thank you.  Ms. Koenigsberg?  13 MS. KOENIGSBERG:  I have no questions.  14 THE COURT:  Thank you.  15 MR. GOLDIE:  My lord, I have one question arising out of my  16 friend's cross-examination.  17  18 RE-EXAMINATION BY MR. GOLDIE:  19  20 MR. GOLDIE:  21 Q   Dr. Farley, in order to review the main elements of  22 the cartographic record, is it a recognized part of  23 the specialty of cartography within the discipline of  24 geography to have any knowledge of the political and  25 other major historical events of the geographic areas  26 under study?  27 A   Yes.  28 MR. GOLDIE:  Thank you.  My lord, in my submission, the witness  29 is qualified.  30 THE COURT:  Thank you.  Mr. Rush?  31 MR. RUSH:  My lord, my submission is that the witness is  32 qualified too, but not quite so broadly as my learned  33 friend attempts to tender him.  In my submission, if  34 your lordship examines the curriculum vitae, and I  35 think in assessing the weight of Dr. Farley's  36 evidence, that Dr. Farley's expertise is in the  37 specialty of cartography, within the field of  38 geography.  And, perhaps, although my friend did not  39 make the point in attempting to qualify Dr. Farley,  40 but I think it's implicit in his question on re-direct  41 that he seeks to demonstrate that today Dr. Farley has  42 expertise about history.  And I don't really contest  43 that one would have to have some understanding of the  44 historical process and, therefore, I would submit that  45 it's likely that a proper definition of Dr. Farley's  46 specialty is that of historical cartography.  47 19661  Submissions by Mr. Rush  1 And that's it.  In my submission, the evidence  2 indicates that what he does in fact, and what his  3 specialty and emphasis has been in terms of his  4 previous writings, his PhD dissertation, in terms of  5 his specialty at the University of British Columbia,  6 is his emphasis on cartography and the manifestations  7 that that specialty involves.  8 In terms of his PhD thesis he indicated that he  9 traced the historical evolution of maps, I suggest  10 that what that means is that they are represented in  11 chronological sequence and they are analyzed in that  12 sequence relative both to themselves and against  13 present day understandings of the same area.  All of  14 which, I suggest, are cartographic functions.  15 I suggest, my lord, and I don't really see that any  16 case is being made for this, but I do think it's  17 important relative to what your lordship perceives as  18 the parameters of Dr. Farley's expertise.  He is not a  19 social or an economic or historical geographer in the  20 sense, for example, that Dr. Ray was, who examined  21 social and economic relations of the fur trade as  22 against their spatial relationships at the period  23 under study.  24 In my submission, again hearing what Dr. Farley has  25 done in his academic history, he does not deal in his  26 discipline with the relationships of people and events  27 to the ground, his concern is not, I suggest, the  28 social or dynamic or economic context supporting the  29 maps but rather, I suggest, what he is interested in  30 are the maps themselves as historical products as  31 documents of history, and contextual information in  32 relation to those documents.  33 In my submission, my lord, the authorities support  34 the proposition that one gives evidence in the  35 specialty of his particular field and I don't think  36 that I hear him arguing that there is -- there ought  37 to be an unduly restrictive or arbitrary line or  38 boundary drawn around Dr. Farley's expertise.  What I  39 think, the case is that he has particular expertise  40 which would be of assistance to the court with respect  41 to the maps and their sequencing.  But he does not  42 have anything more than that.  And to go beyond the  43 cartographic expertise that he demonstrates, I think  44 would be to overstate and in fact to place him outside  45 the real expertise he has.  46 So it's my submission that Dr. Farley should be  47 qualified, but in the area of cartography and in the 19662  Submissions by Mr. Rush  1 area of historical cartography.  2 THE COURT:  Thank you.  I don't think I need to hear from you  3 Mr. Goldie, Ms. Koenigsberg.  4 I am satisfied that Dr. Farley is qualified to give  5 opinion evidence, at least on historical cartography,  6 which is not disputed, but counsel have the advantage  7 over me by reason of having seen, I assume, a report,  8 that even if not, I am not able to predict at this  9 moment what matrix of fact and opinion and learning  10 and recordings are part of the inventory a historical  11 cartographer.  I think other witnesses called by the  12 plaintiffs in connection with various disciplines or  13 sub-disciplines, but not qualified as cartographers or  14 historical cartographers, made reference to maps.  15 And that seems to me to be eminently sensible.  If  16 something is intelligible, from which some  17 intelligence can be extracted, it may well fit into  18 more than one discipline or sub-discipline, therefore  19 I think I should merely qualify Dr. Farley to give  20 opinion evidence in the fields which have been  21 described and leave it to counsel to raise  22 specifically any problems which may arise in which  23 they think take him beyond any permissible level of  24 expertise.  I do not wish at this time to try and draw  25 lines around what is a historical cartographer, as  26 opposed to a geographic cartographer or any other  27 class or species of learned person in his field.  But  28 I will hear counsel if he gets in to an area which, in  29 their view, requires a more specific ruling.  30 Mr. Goldie?  31 MR. GOLDIE:  Thank you, my lord.  32 Q   Dr. Farley, you have told his lordship what you were  33 asked to do in this case.  And I take it that you have  34 prepared a report and that -- and I can advise you  35 that a copy of that has been furnished to my  36 friends -- do you have a copy in front of you?  37 A   Yes.  38 Q   And would you just describe it to his lordship,  39 please?  When I say describe it, just describe it by  40 name and what it consists of?  41 A  My lord, it is titled "Appendix A, Geographic  42 Background for the Legal Arguments on Aboriginal  43 Title."  44 Q   And there is aattached to it a summary of your  45 evidence?  46 A  Attached to it is a summary under the same title, and  47 consisting of six pages. 19663  Submissions by Mr. Rush  1 MR. GOLDIE:  Could I hand up, my lord —  2 MR. RUSH:  I object to the tendering of the report.  3 MR. GOLDIE:  On what basis?  4 THE COURT:  On grounds additional to what I have dealt with?  5 MR. RUSH:  Oh, yes.  In fact, your lordship's words regarding  6 the way in which you intend to deal with questions  7 pertaining to expertise is apropos to the objections  8 which I raise regarding the report.  I have a number  9 of objections to this report.  10 MR. GOLDIE:  Well, I think it ought to be in front of your  11 lordship, if my friend is going to take exception to  12 various parts of the report.  That's the way we have  13 dealt with these matters.  14 THE COURT:  I will hear what Mr. Rush says and if it becomes  15 necessary, I will call for it.  16 MR. RUSH:  Thank you.   My lord, my objections break down into  17 two basic areas.  Well, really, three, but  18 fundamentally two.  In this written document, Dr.  19 Farley purports to offer opinions as to the meaning  20 and interpretation of historical documents.  Most of  21 these historical documents, but by no means all, are  22 old maps, which I say speak for what they say on their  23 face.  24 THE COURT:  Meaning of historical documents, i.e., old maps?  25 MR. RUSH:  No, not just old maps, but mainly old maps.  There  26 are a number of documents to which reference is made,  27 some primary source, most in secondary source,  28 documents which similarly speak for themselves on  29 their face.   Now, in the course of the evidence  30 already, my lord, you have ruled, and in particular in  31 the course of Mr. Morrison's evidence dealing with the  32 same period covered by the evidence that will be  33 proffered by Dr. Farley, in dealing with similar  34 historical documents in the case of some, the same  35 historical documents, you have ruled that it is the  36 function of the trial judge, and not the expert, to  37 determine the meaning and interpretation of documents.  38 Now, what I have done, my lord, is to prepare for  39 you a collection of the rulings which you have made on  40 the subject.  41 THE COURT:  That's most unfair, Mr. Rush.  42 MR. RUSH:  Seen in their historical context my lord, it can be  43 seen as quite a flattering selection.  44 MR. GOLDIE:  It's incomplete.  45 MR. RUSH:  Well, I am sure my friends will assist you in  46 completing it.  And I direct your lordship to tab 1,  47 which is at volume 221, 222, and my lord, it's at page 19664  Submissions by Mr. Rush  1 16155.  And after argument with regard to the  2 documents that were put to Mr. Morrison, you said the  3 following:  "Well, I'm persuaded that I should not  4 have the witness summarize his conclusions based upon  5 this documentary material.   I do not base that ruling  6 on any lack of qualifications on the part of the  7 witness.  I do not think you have to have a PhD in  8 history as opposed to years of experience and research  9 to express a historical opinion in proper  10 circumstances."  11 You then carry on discussion about the Brandeis  12 brief and then about seven lines from the bottom you  13 say that, "I do not think the judicial process is  14 designed or expected or intended to have collections  15 of material placed before it which are readily  16 understandable after having the assistance of counsel  17 and to add to that the wrap-up opinion of someone who  18 based upon the same information has the chief -- will  19 give his views on what it all means.  I think the  20 courts have gotten along very well with the underlying  21 facts and the submissions of counsel and I think  22 that's as far as we need to go."  23 Then you consider the cases that were cited to you,  24 Sengbusch, Emil Anderson, R. v. Turner.  25 And then if you look on the next page, my lord, in  26 terms of the practical application of your ruling, at  27 page 16157, Ms. Mandell asks:  "And could you explain  28 the significance of the letter as you see it with  29 respect to the Royal Proclamation and its evolving?"  30 Mr. Goldie interjects:  "Well, I object to any  31 suggestion the Royal Proclamation is evolving.  That's  32 pure argument."  "THE COURT: I think in view of my  33 ruling you should ask the witness, Ms. Mandell, what  34 parts of the letter he thinks I should pay particular  35 attention to."  36 Now, I ask you, my lord, if you will turn to the  37 next tabulation, and this again is another form of the  38 application of your lordship's ruling where, at line  39 21 the witness in describing the question of the Seven  40 Years War, was cut off by this interjection by Mr.  41 Goldie, and he said:  "Well, excuse me, my lord,  42 that's purely the witness's characterization.  What he  43 is talking about is the unsuccessful peace  44 negotiations of 1761, all of which were documented.  45 MS. MANDELL: My lord, this is historical context.  I  46 think that the witness can give his view of it and, if  47 my friend has other evidence to tender or cross, he 19665  Submissions by Mr. Rush  1 can do that.  MR. GOLDIE: No, no, I am sorry.  I am  2 entitled to know the facts upon which an expert  3 relies, and if he is going to make any statement, I am  4 entitled to know documents upon which he founds that  5 opinion."  6 And then a source is cited at the next page.  7 And then I refer your lordship to the next  8 tabulation, again in the same volume, same day of Mr.  9 Morrison's evidence, at page 16220, after hearing  10 argument on the issue, your lordship made this ruling.  11 "Well, that doesn't trouble me because I have the view  12 that counsel are just as competent to give me the  13 historical context as the witness is even if the  14 counsel is reading from historical opinion.  I mean,  15 there is nothing magic about having these words  16 mouthed in the witness box, if they don't come from  17 the personal and unique knowledge of the witness  18 unless they fall within that category of scientific  19 matters that a mind of a judge can't understand.  I  20 think I can be as convinced by counsel as I can by a  21 witness what the a documents mean and I think that  22 every road should be paved for the ease of counsel in  23 having the documents available from which to make the  24 argument, but I must confess to some serious  25 temtations to short circuit the need for viva voce  26 evidence to establish what I think counsel can do on  27 their own.  I mean, what is the advantage that you,  28 for which you contend in having the witness, who  29 obviously has made the selection of documents for you,  30 in having him describe them and you argue from them  31 again using the same descriptions.  He selected them,  32 he has put you in a position to put them before me,  33 and if I somehow either mark them as exhibits for this  34 purpose or I give you leave to put them in in a  35 separate brief, that can be used in argument.  That's  36 what's then lacking in the presentation of your case."  37 Ms. Mandell carries the argument forward and then I  38 ask your lordship to turn to page 16222 where part way  39 through your lordship's ruling, and I direct your  40 attention to line 22:  "If we were talking about  41 physics or chemistry, which I don't understand and  42 can't expect to understand even by the written record,  43 I would say that it would have to be explained by a  44 witness, but history is far too vast, far too  45 unspecific and far too unmanageable to have it  46 explained in the witness box.  It has to be proven by  47 documents and it has -- or by -- in the case of an 19666  Submissions by Mr. Rush  1 oral history by those who remember it, and explained  2 by counsel and I see no harm to anyone by taking that  3 easier route."  4 Then, my lord, the next page is, if I may say, your  5 ultimate decision on this subject -- well, your  6 penultimate, your ultimate is yet to come, and I am  7 reading again from line 20:  "When you are dealing  8 with a matter of history where the evidence flows from  9 documents..." and I daresay that's precisely the  10 situation with Dr. Farley's evidence, "...and which  11 the witness does not have that personal knowledge of  12 but is merely using his intellectual advantages to  13 make the selection and explain the significance of  14 them, then it seems to me that the sensible course to  15 follow is to give counsel the opportunity to ensure  16 that the right documents are identified, either by  17 being marked as exhibits or being collected together  18 in some way and identified in that way, and for the  19 significance and the connection between them to be  20 explained by counsel in argument, keeping in mind that  21 counsel in such circumstances is at liberty to read  22 from a briefing paper or opinion of an expert.  There  23 is no advantage to be gained, as I presently see it,  24 in having the person who collects the documents  25 explain them to me when it is going -- when it is  26 inevitably going to be done again by counsel in  2 7 argument."  28 I would just like to remind your lordship that Dr.  29 Farley testified that the title of his document is  30 Geographic Background for the Legal Argument on  31 Aboriginal Title.  32 On the next page, your lordship concludes with  33 these words, 16224, at line six:  "My conclusion is  34 that I don't see any advantage in the witness going  35 through the documents seriatim and having them  36 labouriously identified and marked the way we have  37 been going, interesting as it has been, when I know  38 full well it is all going to be done by counsel again  3 9 in argument.  40 My conclusion, therefore, to which I have driven  41 myself, is that I should only be concerned at this  42 stage in ensuring that the documents in some suitable  43 way, are made available for you in argument and that  44 is, as I say, that's what I am driven to."  45 Well, my lord, the next day, the matter was  46 revisited by all counsel, and I turn now to tab 4,  47 these are the proceedings on April 26th, 1989, again 19667  Submissions by Mr. Rush  1 in the course of the evidence of Mr. Morrison, and  2 after hearing extensive submissions by counsel on the  3 subject once again, you made this ruling found at line  4 16:  "I have the settled conviction that the  5 plaintiffs must be given every opportunity to place  6 before the court whatever historical facts that they  7 think should be in evidence for the purposes of the  8 arguments they will make at the end of the case.  I  9 seek in no way to impede or hinder that necessary  10 endeavour.  I have an equally settled conviction that  11 when one is coming to determine judicially the meaning  12 and effect of a proclamation, for I equate that to a  13 statute or enactment, it is not competent for a  14 witness to tell me what it means.  It is competent and  15 it is expected for counsel to discharge that function.  16 I do not think I should allow this or any witness to  17 give me the theory of construction.  I think that he  18 may put in evidence, if requested by counsel, whatever  19 historical facts he has or can direct my attention to  20 in the way of documents for the purposes that I have  21 mentioned.  That is for counsels' arguments.  But I do  22 not think that I can allow him to give me theories of  23 construction or theories of history that go beyond the  24 proof of historical facts."  25 I will be referring in a few moments, my lord, to  26 the fact that it is precisely these theories that Dr.  27 Farley indulges in in terms of his report.  28 "I do not know where that leaves you, Ms. Mandell,  29 I think there is a clear distinction being drawn  30 between historical facts and historical conclusions.  31 And more particularly, construction of proclamations,  32 and will have to leave that to you to resolve that  33 problem."  34 And then I direct your attention, my lord, to the  35 next page, where after posing another question to Mr.  36 Morrison, Ms. Mandell engaged in an exchange with the  37 court, and you said at the bottom at line 32:  38 "But you're not asking the witness for historical  39 facts.  You've asking him to draw a conclusion as to  40 who are the witnesses with whom His Majesty was  41 connected or associated, connected I think was the  42 word, isn't that so?  43 You see, we are into this question now because we  44 are dealing with the proclamation which I think is the  45 equivalent of a statute for this purpose.  We are not  46 talking about historical matters generally, that are  47 directly in issue in this case.  We are talking about 1966?  Submissions by Mr. Rush  1 historical facts that will aid in the construction of  2 the proclamation."  3 And that, my lord, you can judge from Mr. Goldie's  4 opening on this issue, is precisely the reason that  5 Dr. Farley is being tendered as a witness to put  6 before your lordship facts which will aid in the  7 construction of the proclamation.  8 Now, then the matter was raised again and your  9 lordship issued formal reasons for judgment on July  10 14th, 1989, and that's found at tab 5.  And this dealt  11 with two issues that came before you at the time, my  12 lord, and one was on the question of historical  13 documents and the other was on the question of  14 historical opinions.  And to place opinions in  15 context, I simply want to refer you, at page 2, the  16 second full paragraph, and at line 16 thereof, where  17 it says:  "Four of the recent witnesses called by the  18 Plaintiffs, who have just completed calling their  19 witnesses, are historical scholars.  Mr. Morrison is a  20 trained researcher who specializes in Indian land  21 claims.  He tendered four large volumes of historical  22 documents relating to the Royal Proclamation of 1763.  23 He did not file an opinion report but he described  24 many of the documents, explained their context, and  25 identified many of the authors and other persons  2 6 mentioned in the documents.  While it may not have  27 been identified as such at the time I have no doubt  28 that he expressed some historical opinions in the  29 course of his evidence."  30 Now, your lordship then, after summarizing the  31 evidence, and dealing with historical documents, went  32 on to deal, as a subsection, if I can call it that, of  33 a question of historical opinions, and that's found at  34 page 13.  And beginning at the bottom of page 13, line  35 22:  "It will be obvious that the preliminary ruling I  36 made near the beginning of this trial..."  that is to  37 say, with regard to historical or oral evidence, I  38 believe, "...on the admissibility of historical  39 opinions as an exception to the hearsay rule, does not  40 respond adequately to the realities and difficulties  41 of this case as it has developed over the last two  42 years.  At the time of the 1987 argument I did not  43 have the advantage of seeing any of these ancient  44 documents or of hearing them described by the  45 historians, and I was required to deal with the matter  46 on an entirely theoretical basis."  47 You then review Zundel and you make the first of 19669  Submissions by Mr. Rush  1 what I think are a number of interconnected rulings at  2 page 16, at line 5:  "I still hold the views I  3 previously expressed with respect to general history."  4 And I dare say, my lord, this issue arose in Mr.  5 Morrison's evidence, Dr. Lane's evidence, Dr. Galois's  6 evidence and Dr. Ray's evidence.  "That is to say  7 opinion evidence may be given about topics of common  8 or general knowledge, but conclusions based upon  9 inferences drawn from unproven facts and, therefore,  10 subject to revision, and not admissible on any other  11 ground, belong not to the courtroom but rather to the  12 historical community."  13 And then at page 17, you went on to say this:  "It  14 is neither sensible nor possible to prove every fact  15 individually and separately from other related,  16 contemporaneous or serial events.  I still have the  17 view that, for the purposes of litigation, historians  18 cannot usefully pronounce on matters of broad  19 inference which may be open to serious disagreement or  20 to subsequent revision.  But I think that they can  21 give much useful evidence into which some opinions and  22 inference will be interwoven with references to  23 admissable documentary declarations.  Such opinions  24 will be most useful, if not invaluable, in placing  25 historical events or occurences in context, and  26 explaining how some of these matters relate to or do  27 not relate to others."  28 And you go on to say that you agree with Mr.  29 Willms, "...however, and I do not understand Mr. Adams  30 to disagree, that experts cannot usurp the function of  31 the court in construing written material.  What a  32 document says is for the court but in this process the  33 court not only needs but urgently requires assistance  34 of someone who understands the context in which the  35 document was created.  36 It is accordingly my judgment that qualified  37 experts may give many useful opinions based upon  38 inferences from the documents about recorded facts of  39 history in order to explain matters in issue, but they  40 may not, in my view, either construe a written  41 document, which is the province of the court, or  42 generalize upon the broad sweep of history which is so  43 often subject to learned disagreement and revision."  44 And I will be submitting, my lord that it is on  45 both of those accounts that Dr. Farley's report is  46 inadmissible.  47 "Generally speaking", reading from the last full 19670  Submissions by Mr. Rush  1 paragraph at line 16, "I can have regard to the  2 opinions the historians have expressed about the facts  3 they think the documents are describing, and in some  4 cases where they think such things are happening, and  5 the consequences of these historical events even  6 though their evidence will in most cases be based upon  7 inferences drawn from statements found in the ancient  8 documents.  Impermissible opinions and the conclusions  9 they wish me to reach in connection with the subject  10 matter of their opinion will undoubtedly be interwoven  11 with permissible opinion, and it will  be my  12 responsibility to disregard former while profiting  13 from the latter."  14 My lord, if I can summarize what I think your  15 lordship ruled in the July 14th ruling, which I say is  16 consistent with your rulings made in relation to Mr.  17 Morrison's evidence, and his treatment of the  18 documents that were placed before him and tendered to  19 the court, these are your lordship's rulings:  20 Firstly, historians cannot give evidence upon  21 inference from unproven facts; secondly, historians  22 cannot give evidence on matters of raw inference;  23 thirdly, historians cannot give opinions about what a  24 document says or its interpretation; fourthly,  25 historians cannot construe a written document;  26 historians cannot generalize upon the broad sweep of  27 history.  Historians, however, can give evidence to  28 put the document referred to in context; historians  29 may offer explanations how matters relate one to the  30 other and, in some cases, I think your lordship, and I  31 am using your words to say why things are happening.  32 Now, in summary form, my lord, Dr. Farley's written  33 report goes far beyond what your lordship indicated  34 was permissible evidence of someone dealing with  35 ancient documents.  He interprets the broad sweep of  36 history, he interprets and offers opinions on the maps  37 and on other supporting documents; he offers opinions  38 on the language of the Royal Proclamation and what he  39 thinks its framers meant.  He offers opinions outside  40 of his expertise as a historic cartographer, he gives  41 opinion on legal questions, such as on the question of  42 the sovereignty of the British and the French and  43 their respective claims to territory in North America.  44 In my submission, he makes legal argument in this  45 respect.  46 Now, my lord, I have examined Dr. Farley's report  47 in some detail, and I can direct your lordship's 19671  Submissions by Mr. Rush  1 attention to the types of examples of what I am  2 speaking about and I am happy to do that now or after  3 the morning break.  4 THE COURT:  I think that would be a useful thing for you to do  5 but it's time for the morning adjournment and for the  6 reporters to change places and things like that, so I  7 will have the pleasure of hearing you further after  8 you return, Mr. Rush.  9  10 (Proceedings adjourned for short recess)  11  12  13  14  15 I hereby certify the foregoing to be  16 a true and accurate transcript of the  17 proceedings herein to the best of my  18 skill and ability.  19  20  21  22  23  24 Wilf Roy  25 Official Reporter  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 19672  Submission by Mr. Rush  1 (PROCEEDINGS RESUMED AT 11:35 a.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Thank you.  Mr. Rush.  5 MR. RUSH:  I indicated in the course of the commencement of the  6 argument that there were three areas that constituted  7 objections that I take to Dr. Farley's summary and  8 appendix.  Most of the objections were rolled up into  9 my first point but I will, just for the purposes of  10 identifying the other two, state that my second  11 objection, my lord, is that Dr. Farley's written  12 report contains numerous opinions involving his  13 interpretations of maps and other documents which was  14 really my first point but, in addition to that, his  15 report contains interpretation of legal documents; in  16 particular, the Royal Proclamation and certain  17 treaties and their effect, and this includes an  18 interpretation which he offers as to certain claims of  19 sovereignty and what he considers to be a claim of  20 sovereignty by a power.  His report on this point  21 attempts in my submission to define geographic terms  22 that are contained in the Proclamation.  Thirdly, the  23 written report constitutes in large measure a legal  24 argument and, as I have given to your lordship the  25 title, I think that it, together with the references  26 that I will shortly draw your attention, to  27 demonstrate how the structure of this document  28 purports in fact to be the legal argument of my  29 friends.  30 Now, just turning to the report itself, as is  31 indicated the document is divided into two parts; one  32 is a summary which contains in summary form some 20  33 paragraphs.  In this summary, my lord, on page 2 of  34 the summary, in a broad sweeping manner Dr. Farley  35 discusses, and I quote:  36  37 The political divisions of North America  38 immediately before the date of the Treaty of  39 Paris.  40  41 On that page, he pronounces on the territories that  42 Britain, he says, acquired --  43 MR. GOLDIE:  Well, my lord, I think my friend should read the  44 introductory sentence to all of this.  He says:  45  46 "I hold the following opinions:"  47 19673  Submission by Mr. Rush  1  2  3  MR.  RUSH:  4  5  6  7  THE  COURT  8  9  MR.  RUSH:  10  THE  COURT  11  MR.  RUSH:  12  13  14  15  THE  COURT  16  MR.  RUSH:  17  18  19  20  21  22  23  24  25  26  27  28  THE  COURT  29  30  MR.  RUSH:  31  THE  COURT  32  33  MR.  RUSH:  34  THE  COURT  35  MR.  RUSH:  36  37  38  39  40  41  THE  COURT  42  43  44  MR.  RUSH:  45  46  47  Those are his opinions that my friend is now referring  to.  Yes, this is precisely the point.  This is the  summary of Dr. Farley's opinions and there is no doubt  that he holds these opinions and it is these that I  say are objectionable.  :  You all have the advantage of me.  Are they  assumptions?  They are assumptions, my lord.  :  Upon which his research is based?  They are in part assumptions upon which his research  is based, yes.  They are partly assumptions on which  there is no research as far as I can see evident from  the appendix.  :  All right.  He states, my lord, on page 4 at paragraph 11, and I  am quoting, there are, the sentence reads:  "No published maps or other documents prior to 1763  show sovereignty of any country over what is now  the mainland of British Columbia."  The question of what is sovereignty, my lord, is not  an historical factual question; it is a question of  law, it is a question of argument, and it is a  question that will no doubt be argued at some length  but it is not within the purview of an expert.  :  But is that not a fact drawn from the examination of  maps?  No.  :  Maybe that sovereignty is a word of more than one  understanding but subject to that --  My lord —  :  -- is it not a fact?  No.  If it is a fact, it is in the document, and all  that Dr. Farley should do is to place the document  before you and place it in its proper context.  What  you take from the document is for your lordship to  take from the document, not with the assistance of Dr.  Farley.  :  No, but -- well, just on that point, if he doesn't  say that, am I not left to wonder if not to search for  something I won't find?  My lord, that is, as you have said adequately and has  been impressed upon you by Mr. Goldie, is a function  of counsel.  It is a function of counsel to explicate  on what the meaning of the document is and that will 19674  Submission 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:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  be done at the time of argument.  :  Well, if the fact is that the knowledge of the  witness at least that this map in year, let's say,  1763 is here, here it is, and I can't find any earlier  map that shows anything different from that, isn't  that a fact?  What is a fact, my lord, is what his search was, what  the search reveals, and that the search may be  consistent or inconsistent with the documents he  directs your attention to.  What you draw from the  document is your lordship's conclusion.  :  Yes.  What you draw from what you've drawn your attention  to with regard to whether it is consistent or  inconsistent is again your lordship's conclusion.  It  is not for the witness to say you should draw that  from this document and this line of documents strung  together in this way that the sovereignty or the claim  to sovereignty was such and such.  That is a question  that we, as a function of argument, have and nothing  more.  He goes on to say, my lord, on the same issue  in paragraph 13 of that summary:  "So far as Britain's sovereignty over the present  British Columbia is concerned."  And then he goes on to express an opinion as to the  effect of the Oregon Boundary Treaty of 1846.  Well,  my lord, it's none of Dr. Farley's evidence to tell  you what the effect or the meaning or the legal  implication of the Oregon Boundary Treaty is.  That,  in my submission, is purely a function of your  lordship.  :  Except I suppose you would agree to the extent shown  on subsequent maps if they show something different.  Well, he may draw your attention to other maps which  may say -- which may demonstrate something. My lord,  I don't object to Dr. Farley going through a sequence  of chronological maps and pointing things of concern  to my friends on those maps. That's not what he does  in this report.  Let me carry on.  In paragraph 14, he refers to some of the conduct  of Governor Douglas, and this pertains -- appertains  to certain documents that were read to you not two or  three or four days ago to you by Mr. Goldie and I am  reading in part: 19675  Submission by Mr. Rush  1 Douglas, governor of Vancouver Island, purporting  2 to act on behalf of the Crown, took control of the  3 situation, and his having done so was later  4 approved.  5  6 And I end the quote.  Well, he then goes on to quote  7 an Imperial Statute and the effect of the Imperial  8 Statute.  My lord, the whole point of Mr. Goldie's  9 reading the documents in was to demonstrate to your  10 lordship that there is a significance in the  11 documents.  None of this, in my submission, relates to  12 the proper interpretation of these documents and it's  13 not within Dr. Farley's purview to give you this  14 opinion.  15 Now, the question that I paraphrase, really  16 paragraphs 18 through to 20 on page 6, contain Dr.  17 Farley's overarching opinion about the effect and the  18 importance of the fur trade.  It covers a vast period  19 of time and he draws certain conclusions about the fur  20 trade.  And I simply quote from paragraph 16 as an  21 example here.  He says:  22  23 "In the latter half..."  24  25 and I am quoting:  26  27 "...of the 18th Century, competition for the  28 fur-trade drove its participants westward."  29  30 And then he goes on and he makes a number of  31 statements which, my lord, in my submission cover a  32 vast period of history and is particularly enjoined by  33 your lordship in every one of your rulings.  A witness  34 cannot come before you and with a broad brush give  35 statements about history which are open themselves to  36 contradiction by a different interpretation and  37 possibly subsequent revision.  38 He talks in paragraph 20 of his summary about what  39 was known about the interior of B.C. and there is no  40 support for this except, I say, the maps which again,  41 my lord, I say that Dr. Farley can well refer you to  42 the maps and you can be directed to matters that can  43 be drawn to your attention of significance, if  44 anything, on the maps.  Then I'd like to take you to  45 the appendix itself which appears to be the more  46 detailed version of the general summary opinions  47 contained in the first tab.  And the lead heading of 19676  Submission by Mr. Rush  1 the Appendix A under number 1 is Geographical Concepts  2 of North America Prior to 1763.  And what this is, my  3 lord, is a description of the broad sweep of  4 historical understanding from 1541 onward.  And in  5 this respect, Dr. Farley strays far and beyond the  6 particular maps that he directs our attention to.  He  7 draws direct specific attention to certain maps, and I  8 don't have an objection to that, but woven through  9 this throughout this whole section are his comments  10 about what he thinks the general sweep of the  11 conceptions of that period were, and I say with  12 respect, my lord, that none of the witnesses to this  13 point have been allowed to give evidence in respect of  14 that and it's particularly enjoined by your rulings.  15 On pages 5 and 6 of this document, a theme that  16 Dr. Farley comes to time and again is raised.  He  17 offers his opinions about the maps, he offers his  18 opinions about the maps that are presented to your  19 lordship, and I say going far and beyond what he is  20 permitted to do.  In my submission, what Dr. Farley  21 cannot do is tell you what a map means to you.  You  22 can be drawn to certain portions of the map.  You can  23 be -- certain items of that map can be placed in a  24 context, but Dr. Farley cannot tell you what the map  25 means no more than he can tell you what the Royal  26 Proclamation means or what its frames intend to mean.  27 That's a function of argument.  28 THE COURT:  Let me test you with this:  Can an historical  29 cartographer not say that the state of knowledge at  30 least on the part of the publisher of the map is such  31 and such?  32 MR. RUSH:  The state of knowledge is, my lord, represented by  33 the map, and yes, he can say as at 1641 the state of  34 knowledge is this, and this is the gentleman who  35 published the map and this is where he was from, and  36 he may be connected to this school of cartography or  37 that school of cartography, but you will know the  38 author, you will know the date, and you will know the  39 representation as it appears on the face of the map,  40 and precisely he can say that is the state of  41 knowledge as at that time.  42 THE COURT:  And can he refer me to documents and events which he  43 says are indicative of that state of knowledge or  44 which might explain that state of knowledge?  45 MR. RUSH:  I come back to your ruling, my lord.  What he can do,  46 on your July 14 ruling, is to provide a context in  47 respect of a document and he can provide an 19677  Submission 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  explanation that is permissible within the context of  the document, and that's not an easy thing to  determine unless you go document by document.  THE COURT:  Could he say this:  Here is a map drawn in 1763 and  it shows west of the Mississippi in French blue and  east of the Mississippi in British red and an  explanation of that may be found in the piece of  Treaty of Paris of 1763?  MR. RUSH:  Well, I think that he can give your lordship -- he  can direct your attention to certain writings and  drawings and lines and so on on the map, yes, he can  do that, and he can draw, I say, your attention to  perhaps certain documents that would have been aware  of, would have been made known to the publisher at the  time.  That's not what the opinion does.  THE COURT:  The reason why the line swings to the east when you  get down to Florida is because that wasn't included in  the French that -- the reason might be that the Treaty  of Paris doesn't make that distinction between France  and Britain but rather between Britain and Spain.  No, my lord.  I say he cannot go that distance.  That's what Mr. Goldie will do when legal argument  comes to be.  That is the very opinion, I say, that  the trend of your decisions disallowed.  But I don't understand why he can explain the red  and the blue without referring at the same time to the  same document as a possible explanation for whatever  the line colour would be, I guess it would still be  red when it gets down to Florida.  This would be red,  not because of the provision of the Treaty that dealt  with the division between France and Britain, but  between Britain and Spain.  MR. RUSH:  If the witness were to say that in the Treaty of  Paris there was a map intended to be attached to the  Treaty and it is the map to which he is referring, and  on that map there are to be lines and those lines are  to mean X and Y, then I don't have a problem with  that.  But that's not what happens.  What I object to,  my lord, is for the witness to use his own  intelligence to tell you what this means and that is  precisely what your lordship has said, that's your  function and not the witness' function.  Dr. Farley goes on in a footnote on page 6 to  describe his view of a particular voyage as it was  described and appears on certain maps, and he goes on  to say:  MR. RUSH:  THE COURT 1967?  Submission by Mr. Rush  1 "As is noted on page 34 of this Appendix Admiral  2 Bartholomew De Fonte was alleged to have led a  3 Spanish expedition northward from Mexico along the  4 west coast of America.  He was purported to have  5 discovered a water route from the northwest  6 coast."  7  8 Now, my lord, that language regarding that voyage is  9 riddled through there where he is dealing with that  10 issue and, if my friends want to make an argument  11 about what reliability you are to place upon maps  12 which represent that particular voyage or what was  13 shown by the De Fonte map or what was shown by some  14 other map, I say that's a function of argument, it is  15 not a function of Dr. Farley to tell you what is  16 alleged or purported or what is spurious, all words  17 that appear on this page.  I refer, my lord, to page  18 14 of his opinion, he is discussing a certain author  19 of a map and, in discussing the author of the map, he  20 says, and I quote:  21  22 "His..."  23  24 meaning the author's interest:  25  26 "His deep interest in the colonies led him into  27 contact with the circle of associates that  28 included members of the Lords Commissioners of  29 Trade and Plantations, the British government's  30 chief advisory panel on the colonies."  31  32 And then he says:  33  34 "It seems likely that these science-oriented  35 politicians felt the need for a new and  36 comprehensive map of the American colonies  37 especially in view of recent French incursions  38 into the Ohio country."  39  40 Well, my lord, that's pure and simple interpretation  41 of what he considers to be -- to have been going on at  42 the time.  There is no documentary support for that  43 proposition.  It is completely a speculative position  44 advanced by Dr. Farley.  45 THE COURT:  And if those facts are stated in some other material  46 that's already in evidence, you say that would be a  47 function of counsel to throw it together. 19679  Submission by Mr. Rush  1 MR. RUSH:  Well, he could then refer to the document.  2 THE COURT:  I see.  3 MR. RUSH:  And he could then say now you can look to this  4 document as a means of putting in context the map  5 that's here.  6 THE COURT:  All right, thank you.  7 MR. RUSH:  He then goes on to page 16 -- I go on to page 16, and  8 then he comments, my lord, in terms of a particular  9 map that he makes reference to, and I quote:  10  11 "While its comprehensiveness and accuracy were  12 laudable for its time, M's map must be regarded as  13 but one step in the long process of North American  14 mapping.  It is far from the rigorously-controlled  15 and truthful maps that are routinely produced by  16 mapping agencies today."  17  18 Now, my lord --  19 THE COURT:  That means accurate, doesn't it, truthful?  20 MR. RUSH:  I think it means accurate.  21 THE COURT:  Yes.  22 MR. RUSH:  My point here is that, firstly, it is irrelevant in  23 terms of his project to measure the state of the  24 mapping then as opposed to what a mapping agency might  25 do today, but more importantly, it's not for Dr.  26 Farley to say, well, it's not as accurate as the map  27 might be today.  What it is for Dr. Farley to do is to  28 put a map before you and to say this is the state of  29 cartography in 1979 or 1980, and it's for Mr. Goldie  30 to then say -- to draw from that whatever conclusions  31 he sees are necessary in the course of the argument  32 and that -- there is a following -- next following  33 paragraph here where Dr. Farley goes on to talk about  34 the quality of the river, of the mapping of the river  35 sources, and whether or not it is adequate by the  36 purposes of today's standards.  37 MR. GOLDIE:  I am sorry, what page are you on?  38 MR. RUSH:  16 still.  And I say, my lord, that that has no place  39 in his opinion.  40 MR. GOLDIE:  Well, I am sorry, just want to be sure.  Is it the  41 middle paragraph of page 16?  42 MR. RUSH:  That's the one I've been citing, yes.  I read the  43 first line there.  44 MR. GOLDIE:  Yes.  45 MR. RUSH:  Now, my lord, on page 18, Dr. Farley refers to a  46 number of maps and then he says this, and I quote:  47 19680  Submission by Mr. Rush  1 "Clearly, cartographers of the time did not  2 know..."  3  4 And then parenthetically he says:  5  6 "(nor could they have known) what lay in the  7 trans Mississippi west."  8  9 Now, my lord, that opinion and opinions like that have  10 no place here.  That's not an opinion for Dr. Farley  11 to draw.  That is a judgment for your lordship to  12 make.  And I say it is offensive in those terms and it  13 offends your lordship's rulings.  14 He goes on to say under a section on interpreting  15 the maps he calls it, he says, and I quote at the  16 bottom of that page, page 19:  17  18 "It is therefore fair to state that, for most of  19 the interior, any cartographic attempt..."  20  21 And he goes on to give his opinion.  And, my lord, it  22 is not fair to state for Dr. Farley, it is fair for  23 your lordship to conclude.  24 On page 20, in a section dealing with the  25 Mississippi River, he offers an opinion with what  26 cartographers, as he says, of the time in terms of  27 what they did, did not know about the source of the  28 Mississippi.  Now, my lord, it's not for Dr. Farley to  29 say what they did or did not know, that's a conclusion  30 from the evidence that he draws forward.  31 Dr. Farley will place a number of maps before you.  32 I will place a number of maps before you in argument  33 and perhaps to Dr. Farley, and I will ask you to draw  34 certain conclusions about what was known in terms of  35 the state of knowledge of those people at the time,  36 and I will ask you to draw conclusions, but it is not  37 for Dr. Farley to do that.  38 Page 21, he talks about having referred to a map,  39 he talks about a sentence here leading into another  40 paragraph, he says, and I use these words:  41  42 "Indeed, the confusion among cartographers  43 regarding the region west of Lake Superior is made  44 more evident."  45  46 Again, my lord, those types of conclusions are purely  47 conclusions drawn from the documentary record and it 19681  Submission by Mr. Rush  1 is the documentary record, namely the maps, that is  2 the evidence and not, I say, on your ruling Dr.  3 Farley's opinion.  He talks again and again about the  4 sufficiency of information and whether a portrayal is  5 better or not; in other words, what he does is to make  6 an assessment about the sufficiency of the material  7 portrayed on the map and, in my submission, my lord,  8 once again I say to you that that is a function not  9 for Dr. Farley, but it is something -- it is a  10 function of argument on by counsel.  11 On page 25, dealing with the heading The Sources  12 of Rivers that "fall into the Sea from the West and  13 North West", those are terms taken directly from the  14 Royal Proclamation.  Dr. Farley was asked and provided  15 an opinion with regard to language about the Royal  16 Proclamation and no doubt you will be asked to take  17 from his opinion what the framers of it must have  18 meant by the use of that language.  Well, with  19 respect, my lord, that's not for Dr. Farley to say.  20 He says -- he talks about -- he talks about, on page  21 25 under this same heading, after dealing with the  22 determination of certain watershed points, he says,  23 and I quote:  24  25 "It is inconceivable, however, that the framers of  26 the Proclamation in 1763 could have had access to  27 more than a very rudimentary knowledge of this  28 rather remote area."  29  30 Now, my lord, it's not for Dr. Farley once again to  31 say what they would have had access to or not; it is  32 up to Dr. Farley and my friends to pent what  33 documentary evidence they can muster as against the  34 documentary evidence mustered by the plaintiffs in  35 respect of this issue and for your lordship to draw  36 the conclusions.  37 On page 26, he talks about what was known about  38 the maximum northeasterly limit of the then British  39 colonies, and he offers what he thinks the scholars of  40 the day thought to be that.  And again, I am simply  41 making the argument again and again, the point is that  42 it's Dr. Farley who gives his opinion on the subject  43 and it is not him bringing forward the scholars and  44 letting scholars speak for themselves and the  45 documentary record.  46 THE COURT:  Well, let me pose this for you, Mr. Rush.  Let us  47 say there is a map that shows -- that doesn't show the 19682  Submission 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  Missouri River.  Could an historical cartographer say  there is a map that doesn't show the Missouri, I am  aware of no documentation that suggests that the  existence of that river was known at the time this map  was produced, and that probably explains why it is not  on the map?  MR. RUSH:  On one condition, I have a qualified yes to that and  it is that he brings forward the sources that he's  made reference to.  THE COURT:  If he says I have -- I haven't found any, there are  no references known to me to the Missouri prior to the  date of this map.  MR. RUSH:  Then firstly the type -- there are a few of the  negatives that your lordship hypothesizes in this  report, but there is very little of that type of  evidence in the report and I doubtless Dr. Farley  wouldn't give that type of evidence viva voce, but  taking your hypothetical, in my submission, providing  that the historian expressed to your lordship the  review that the historian did --  THE COURT:  That he's looked.  MR. RUSH:  That he's looked and where he's looked and what  efforts he has taken to determine that in that  particular time and place and that publisher of the  map that what's shown there is not inconsistent with  other written records on the subject.  Now, my lord, he draws a conclusion on page 27 of  his report and the language that he says this in, he  says :  "Clearly, no such streams could be conceived as  flowing from the west and northwest."  And he goes on.  And in my submission, once again this  is Dr. Farley's opinion as to what is clear and what  is conceivable, and I say that what he can do is to  bring forward his evidence but not to give those  opinions.  On page 33, this is on the question of Mapping of  Northwest America, and there is a section here that  again is a sweeping treatment of the mapping of  Northwest America, and there is language like this and  I quote:  "Though geographers for centuries had speculated  about its nature and extent, the first actual  sighting by Europeans was from seaward." 19683  Submission by Mr. Rush  1  2 And then, as I say, he goes into dealing with what I  3 say is a sweeping treatment of the early explorations,  4 and the treatment of the explorations by the way on  5 that particular assertion is not supported by any  6 documentary references.  Now, I say, my lord, once  7 again that he can't be allowed to give his theory of  8 history or to give his broad brush interpretation of  9 what history is.  10 Again, on page 35, after discussing a map, he  11 says:  12  13 "Thus the European perception of northwest America  14 was scarcely more..."  15  16 And then he goes on to give his opinion about it.  17 Well, my lord, what the European perception is that it  18 is a perception of all of Europe, that it is a  19 perception is in my opinion, in my submission, rather,  20 not a function of Dr. Farley's opinion.  21 At page 36, he comments on one of the maps by  22 saying:  23  24 "Emphasizing the state of geographic ignorance  25 about northwest America."  26  27 And then goes on and gives his opinion about a  28 particular cartographer's view of language on one of  29 the maps.  Well, again, I say that you can be directed  30 to the language but not to the opinion.  31 Now, in referring to one of the -- one of the  32 non-cartographic sources, a documentary source, Dr.  33 Farley had this to say, and I am quoting on page 38:  34  35 "When the official account of the expedition was  36 published in 1784..."  37  38 Dr. Farley offers the opinion:  39  40 " touched the imagination of men throughout  41 the western world..."  42  43 And then he goes on to give his opinion about what  44 that represented in terms of an incentive.  And, in my  45 submission, my lord, there is no basis whatsoever for  46 him, firstly there is no support for the proposition,  47 it is Dr. Farley's opinion on the subject; and 19684  Submission by Mr. Rush  1 secondly, it's not a conclusion that is open for Dr.  2 Farley to draw.  3 On page 41, he revisits again the question of the  4 accuracy of the maps as they -- he talks about the  5 standards of accuracy for a half century at the bottom  6 of page 41 with regard to certain of the maps that are  7 referred to here, and what I say, my lord, is that the  8 questions of accuracy are functions, I suggest, of  9 this court.  10 Page 42, he talks -- he opens the treatment of the  11 instructions given to Captain Cook, instructions that  12 have been referred to by Dr. Lane and probably have  13 been read by Mr. Goldie, though perhaps not yet.  He  14 begins at the top of page 42:  15  16 "Claims to sovereignty are not specifically dealt  17 with above."  18  19 And then, my lord, he goes into -- he goes into an  20 extensive section dealing with questions related to  21 claims to sovereignty.  And I say that again is a  22 function of argument.  23 And then the concluding portion of his report from  24 44 to 60 all deal with Dr. Farley's interpretation of  25 the Hudson's Bay fur trade, and it is -- it covers a  26 very extensive period of time from the latter part of  27 the 18th century and, in my submission, my lord, it's  28 not open to him to give his interpretation of history  29 of the Hudson's Bay fur trade or anything of the sort.  30 Documents can be referred to your lordship in much the  31 same way they were referred to Drs. Lane and Galois  32 and Mr. Morrison and Dr. Ray, but for Dr. Farley to be  33 allowed to go into such a broad sweeping rendition of  34 history I say is completely impermissible.  35 Now, that concludes my -- that concludes my  36 treatment of the report, my lord, and in summation  37 it's my submission to you that the opinions and  38 interpretations, the broad treatment of the historical  39 period offered by Dr. Farley, run contrary to your  40 lordship's ruling, and they are so intertwined in his  41 report with the descriptive that it is impossible to  42 separate out that which your lordship can usefully  43 accept as proper or admissible evidence and that which  44 is impermissible and runs contrary to your lordship's  45 rulings.  And I think that -- I don't intend to canvas  46 the authorities but I simply direct your lordship's  47 attention which has been directed on the subject 19685  Submission by Mr. Rush  Submission by Ms. Koenigsberg  1 several times I think to the Emil Anderson case Number  2 1 and Emil Anderson Number 2, and you might recall  3 that these were argued to your lordship by Mr. Willms  4 when he was taking the same view contrary to  5 objections which we raised and he provided a  6 convenient format for these, and they are to be found  7 in his book of authorities at tabs 7 and 8 of that, my  8 lord, and I think that that case provides ample  9 authority for the proposition that opinions offered of  10 the kind that I am saying are offered by Dr. Farley,  11 opinions running contrary to your rulings, opinions  12 amounting to argument, opinions which are dealing with  13 legal questions are not for the subject of expert  14 testimony but rather for the court.  15 Now, my lord, in my submission, the proper course  16 to follow here is not for Dr. Farley's report to be  17 tendered, because on its face it is objectionable, but  18 rather for Dr. Farley to be led to the sources of  19 his -- of his -- the documentary sources that underly  20 the opinion report and that he tender what essentially  21 amounts to permissible evidence.  And, in my  22 submission, if there are -- if there is evidence that  23 strays beyond what is permitted by the expressions by  24 your lordship on your rulings on the subject, then I  25 will object to those, and in my submission I will take  26 the steps that I need to at that time.  But in my  27 submission, it is proper for Dr. Farley to review the  28 documentary record and to point to contextual  29 considerations, to point to matters of relationships  30 and to have him explain them.  But to give the  31 opinions which he purports to give in this report in  32 my submission he cannot do.  So I suggest that that's  33 the proper course of action to follow and that's the  34 way to proceed from here.  Thank you.  35 THE COURT:  Thank you.  Ms. Koenigsberg?  36 MS. KOENIGSBERG:  I can't accede to my friend, Mr. Rush's,  37 characterization as in my submission this report as  38 written generally and the opinions expressed in it  39 fall precisely within that area, in my submission,  40 that the court does require help with; that is,  41 cartography and the art and science of geography as it  42 is applied to understanding maps and the state of  43 knowledge that those maps reflect historically as  44 depicted on maps is probably an area that is outside  45 the area of expertise of the average judge or lay  46 person, and to the extent that Dr. Farley can assist  47 with that, in my submission, his opinions and his 19686  Submission by Ms. Koenigsberg  Submission by Mr. Goldie  1 report is welcome and falls within that exception.  As  2 a specific instance, it is important to know what the  3 state of knowledge or the accepted geographical or  4 cartographical opinion is as to whether a voyage took  5 place and the map purporting to show that voyage is  6 bogus.  That is something which has stood the test of  7 time and, in my submission, would fall again within  8 the direct reasoning set out in Wigmore which has been  9 cited many times in support of the, I guess it's been  10 described as evidentiary purest view of learned  11 treatises.  That is, the body of knowledge of which a  12 witness is shown to be a master can come before the  13 court and tell your lordship what the body of  14 knowledge is and what the standard is and what the  15 accepted opinion is.  And I don't think I need to go  16 into further detail but, in my submission, there is no  17 question that from time to time and at least in minor  18 ways many of the opinions urge into what will  19 undoubtedly become legal argument but they also fall  20 within the province of a scientific type of report  21 and, in my submission, they should be admitted.  22 THE COURT:  Thank you.  Mr. Goldie.  23 MR. GOLDIE:  I note first, my lord, and this is just by way of a  24 general comment, the plaintiffs have had this report  25 since May 15 and the only specific objection that was  26 communicated to me was that Dr. Farley's report should  27 have been disclosed before Mr. Morrison gave his  28 evidence.  I have asked them to indicate what other  29 objections there might be and there has been none  30 forthcoming until this morning.  31 MR. RUSH:  That's not the case.  On September 5 I outlined in  32 considerable detail what my concerns were about Dr.  33 Farley and Dr. Greenwood's reports.  34 THE COURT:  I think Mr. Rush did say to you, Mr. Goldie, at that  35 time that he would be objecting to Dr. Farley and Mr.  36 Greenwood's report on the basis that they were riddled  37 with impermissible opinion.  38 MR. GOLDIE:  Yes.  I point out another point as a matter of  39 general observation, that Mr. Morrison didn't offer  40 any report, Dr. Lane offered no report.  The  41 objections that were taken to the reports of Dr. Daly,  42 Dr. Galois and Dr. Ray were all, in the end, rejected.  43 And your lordship in your memorandum of August 15 said  44 that this would be a question of weight.  You said:  45  46 "The material covered by this ruling include the  47 reports of Dr. Mills, Dr. Daly, Mr. Marvin George, 19687  Submission by Mr. Goldie  1 and Mr. Brody."  2  3 And it was to those that objections were raised of the  4 kind that Mr. Rush has raised now before the report  5 has even been marked even for identification.  6 Now, there is a difference in the way things have  7 been dealt with, where no report has been tendered, we  8 have had to deal with them on an item-by-item basis as  9 the witness was in the box.  I am going to indicate to  10 your lordship why that should be the course to be  11 followed here but I simply point out now that that was  12 the course that has been followed where those who  13 tendered reports that were dealt with, and in the end  14 your lordship as I said had marked -- has allowed.  15 The reports that were marked for identification and  16 that were objected to on the same grounds that my  17 friend has asserted here has said, I am going to allow  18 them to be marked and I am going to sort them out as  19 they -- on the basis of a question of weight.  20 Now, this -- turning now to my friend's specific  21 objections, my friend says that Dr. Farley purports to  22 offer interpretation of historical documents, most of  23 which are old maps.  Well, of course that's precisely  24 the point.  The objections taken with respect to Mr.  25 Morrison dealt with writings that can be read by  26 anybody.  A map is the opinion of the map maker and if  27 your lordship is going to evaluate the opinions of the  28 map maker it becomes essential to know from somebody  29 whose specialty it is is to study the background,  30 determine the facts available to the map maker, and to  31 know the context under which the map arose.  And that  32 is the field that Dr. Farley has excelled in.  33 My friend said he can say what the state of  34 knowledge is.  Well, that's all that he's doing.  He's  35 stating what the state of knowledge is at any given  36 time with respect to a particular map.  37 The series of rulings which your lordship made as  38 Mr. Morrison gave his evidence, and lack the ruling  39 that was made in volume 221, beginning at page 16099,  40 and he said, beginning at line 2:  41  42 "It seems to me that in a perfect world it would be  43 possible for the researcher to say these are the  44 important documents that you should have in mind  45 in deciding what was the matrix of fact in which  46 the Royal Proclamation was enacted, if such is the  47 word, and it would then be for counsel to urge the 196?  Submission by Mr. Goldie  1 significance arising out of the document.  But it  2 seems to me that, and I may have this wrong  3 because I haven't had the data recently, but there  4 is a golden rule of interpretation, I think this  5 is where the word comes in, and that is you look  6 at evil that was intended to be remedied as an aid  7 to determine what the meaning of the document is  8 or the meaning of the status is, I suppose, and  9 this is close to a statute, and if the evil to be  10 remedied is an aid in the determination of its  11 meaning, then it seems to me that it goes beyond  12 the narrow logical and I think with respect  13 rational submissions -- submission that you have  14 made, Mr. Goldie, and I think then it is competent  15 for the researcher both as a matter of  16 establishing the evil to be remedied and as a  17 practical matter to assist me by directing my  18 attention to the parts -- part or parts which are  19 specifically said to be relevant and useful."  20  21 And then he goes -- your lordship goes on to say, and  22 this is line 34:  23  24 "I think that's where we are and I think that it is  25 competent for the witness to fill in the picture  26 reasonably to give me some indication of what the  27 framers of the Royal Proclamation might have had  28 in mind, even though these particular documents  29 may not be shown to have been within their  30 personal cognizance."  31  32 All that this witness is doing is, will indicate to  33 your lordship the state of knowledge of the map makers  34 of the day and it will be a matter of argument for me  35 to say what significance your lordship should attach  36 to that.  37 My friend said you are entitled to hear an expert  38 in the field tell you what these represent.  Well,  39 that's precisely what is to be done.  Dr. Farley  40 provides the context in which these maps are to be --  41 were created.  Your lordship said with respect to the  42 reports of Dr. Mills, Dr. Daly, Mr. Marvin George, and  43 Mr. Brody on August 15:  44  45 "For greater certainty counsel should understand  46 that generally speaking I do not propose to rule  47 any of the disputed material or reports 19689  Submission by Mr. Goldie  1 inadmissible.  Rather, I think these questions  2 must be dealt with as matters of weight at the end  3 of the trial."  4  5 Dr. Farley has tendered a report.  There was only one  6 report in which a section was objected to and that was  7 Mr. Morrell's -- a section of his report dealing with  8 the future of the Fisheries, and the plaintiffs are  9 even seeking to have that admitted.  My friend  10 objected to certain sections and he read parts of them  11 in his summary which begins with these words:  12  13 "In support of my opinions below I rely upon my  14 knowledge, experience and writings and upon the  15 maps referred to therein and Appendix A attached  16 hereto, all of which are made parts of my said  17 opinions."  18  19 And he says :  20  21 "I hold the following opinions:"  22  23 And my friend referred to a certain section of them.  24 These -- my friend's objections attempt to put into  25 water-tight compartments the knowledge of learned  26 people.  Your lordship has rejected that argument when  27 made by me, amongst others, and has said that the  28 legal historian may express certain views that  29 properly fall within the field of anthropology;  30 conversely, the historian may express certain views  31 which appear to fall within other disciplines.  If  32 there is one thing that is clear, and it is this, that  33 an historical cartographer, Dr. Farley's stature, must  34 go into the context in which those maps arose.  It  35 would be idle for him to say, well, I shut my mind to  36 the events of the day.  And he's testified that it's  37 part of his discipline to know those things.  38 My lord, I see it's 12:30.  I would like to look  39 at my notes and I will be very brief after lunch.  40 THE COURT:  All right, thank you.  Two o'clock.  41  42  43  44  45  46  47 19690  Proceedings  1 THE REGISTRAR:  Order in court.  Court stands adjourned until  2 two o'clock.  3  4 (PROCEEDINGS ADJOURNED AT 12:30 p.m.)  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein, transcribed to the  9 best of my skill and ability.  10  11  12  13  14    15 TANNIS DEFOE, Official Reporter  16 United Reporting Service Ltd.  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 19691  Submissions by Mr. Goldie  1 (Proceedings resumed at 2:00 o'clock p.m.)  2  3 THE COURT:  Mr. Goldie?  4 MR. GOLDIE:  My lord, just before I go on to deal with the  5 specific objections, I would like to refer to your  6 lordship's ruling under tab 5 of my friend's book, it  7 is the ruling of -- that was pronounced July 14th,  8 page 16.  In the paragraph that my friend read, what  9 your lordship said: "I still hold the views I  10 previously expressed with respect to general history,  11 that is to say, opinion evidence may be given on  12 topics of common or general knowledge.  But  13 conclusions based upon inferences drawn from unproven  14 facts and therefore subject to revision and not  15 admissible on any other grounds, belong not to the  16 courtroom but rather to the historical community."  17 Dr. Farley's evidence does not deal alone with  18 topics of common or general knowledge.  They deal, his  19 opinions deal with matters that relate to his  20 particular field and which, in my submission, are not  21 common or general knowledge.  22 And in the same reasons on page 17, lines 21 to 24,  23 where your lordship says:  "What a document says is  24 for the court, but in this process the court not only  25 needs but urgently requires the assistance of someone  2 6 who understands the context in which the document was  27 created."  28 And at page 18, lines 16 to 26, and I won't read  29 that but I will read only the last four lines:  30 "Impermissible opinions and the conclusions they wish  31 me to reach in connection with the subject matters of  32 their opinion undoubtedly be interwoven with  33 permissible opinion and it will be my responsibility  34 to disregard the former while profiting from the  35 latter.  36 It follows that, subject to all just exceptions  37 (for there there are always some documents which defy  38 classification), the collections of documents will be  39 admitted for the purposes and the extent I have  40 described, and the opinion reports, if not already  41 marked as exhibits, or marked for identification, may  42 be admitted into evidence subject to the foregoing."  43 Now, my lord, going to my friend's specific  44 objections, he, on page four of the summary, he  45 objected to the use of sovereignty.  Well, my lord, I  46 don't know what a witness is to use.  I suppose he  47 could say "the S word", to save my friend from the 19692  Submissions by Mr. Goldie  1 word sovereignty, but when he expresses -- uses  2 language which is -- and the reason for the use of his  3 language is indicated in his report itself, on pages  4 55 and 56, if he uses that word to indicate that there  5 is a certain European power has sovereignty or  6 jurisdiction or authority or whatever you want to call  7 it, over a piece of land, then I don't think that is  8 objectionable.  It's no more objectionable -- well I  9 won't develop that any further.  10 The same comment goes with respect to his objection  11 to the use of the word sovereignty in paragraph 11.  12 I just compare what Mr. Morrison said with respect  13 to context and a few other things like that, and it's  14 under tab 2 of my friend's book.  At page 16212, line  15 34:  16  17 "Q   All right.  If that can be marked as the next  18 exhibit."  19  20 He had just finished marking an excerpt from  21 somebody's biography of Sir Francis Drake:  22  23 "A  And the second one is the famous Bartholomew  24 DeFonte, and on the Bowen map which was looked  25 at earlier, there was the reference to the Lac  26 DeFonte, and DeFonte was a nonexistent person  27 but his apocryphal account of the geography of  28 North America had considerable influence and  29 had appeared  on several 18th Century maps  30 including -- a small portion of it appears on  31 the Bowen map, these lakes and interior areas  32 which didn't exist."  33  34  35 My lord, in a nutshell, that exactly covers the  36 ground that Dr. Farley is going to be covering, only  37 he applies to it certain learning which enables him to  38 allow your lordship to come to some understanding of  39 the reliability of these maps, which cannot be gained  40 from a simple examination of the language on the maps.  41 There is nothing on the Bowen map that says, "these  42 lakes are fictional."  43 Then my friend objected to Dr. Farley using the  44 word "purporting", in paragraph 14 of the summary.  He  45 said, "For several years beginning in 1856 there was  46 an influx of gold miners to the mainland north of 49  47 north.  Douglas, then governor of Vancouver Island, 19693  Submissions by Mr. Goldie  1 purporting to act on behalf of Great Britain, took  2 control of the situation as his having done so was  3 later approved."  4 Well, Dr. Farley has stated that it is part of his  5 field to know something of the history in which maps  6 are created and geography is defined and, in my  7 submission, he is amply qualified to make that  8 statement, quite apart from the fact that the  9 documents are now before your lordship which prove  10 those statements.  11 My friend objected to paragraphs 16 to 20 of the  12 summary as being, I think he said, "too broad."  Well,  13 I refer to paragraph 16, which says: "In the latter  14 half of the 18th Century competition for the fur trade  15 drove its participants westward.  Henry Kelsey of the  16 Hudson's Bay Company reached the plains of Manitoba in  17 1690.  And the period of 1741-43 the French explorer  18 LaVerendrye reached the South Saskatchewan River and  19 in 1754-55 Anthony Hendy of the Hudson's Bay Company  20 traded much further west, perhaps reaching the  21 vicinity of the present city of Calgary.  He was the  22 first European to travel in that area."  23 In his cross-examination on qualifications, my  24 friend asked Dr. Farley if he had ever heard of those  25 people and he said, yes he has read their journals and  26 he is entitled to express an opinion in the terms of  27 his own field with respect to the what he read there.  28 Whether he read it correctly is a matter for  29 cross-examination.  And I say that the paragraphs that  30 follow are those which are statements of somebody with  31 Dr. Farley's qualifications.  32 Now, on paragraph 14 of the appendix, he took  33 exception to the statement, and I quote:  "It seems  34 likely that these science-oriented politicians felt a  35 need for a new and comprehensive map of the American  36 colonies especially in view of recent French  37 incursions into the Ohio country."  38 Well, Dr. Farley states why that was so, in the  39 next sentence he gives the date of Mr. Henry Popple's  40 map and why it was the main cartographic reference and  41 why it was necessary with the encouragement of the  42 authorities, that a new map be brought into being.  43 It is pointless, in my submission, my lord, for a  44 scholar to be prohibited from expressing his opinion  45 in these terms.  46 And then at page 16 my friend took objection to the  47 word "truthful."  The sentence is:  "It is far from 19694  Submissions by Mr. Goldie  1 the rigourously controlled and truthful maps that are  2 routinely produced by mapping agencies today."  3 Surely all that that is, my lord, is a statement by  4 somebody who is qualified to make it, comparing  5 techniques, and the witness specifically stated that  6 his specialty was not limited to techniques but it  7 included it.  8 Page 18, he objects to a statement there which sums  9 up a series of factual statements.  The map shows a  10 blank and my friend's objection was that the  11 cartographers couldn't know what lay in the trans-  12 Mississippi west, itwould take someone with Dr.  13 Farley's background to state the significance of that  14 blank and why it was there.  Then my friend took  15 exception to the reference to the La Hontan fiction on  16 page 18 and the footnote on, footnote four, I think  17 it's -- yes, footnote four my friend referred to, it's  18 exactly the same thing that Morrison was talking  19 about.  But, in general terms, why is it, why is it a  20 witness precluded from saying on a map, that is  21 spurious.  22 And then at page 25, -- I am sorry, page 24, going  23 on from there, my friend takes objection to the  24 evidence with respect to "the rivers that fall into  25 the sea from the west and northwest."  Well, that's a  26 question of fact.  He will identify those rivers.  27 That's based upon geographic and cartographic  28 analysis.  Same thing on page 27, where my friend  29 objected to the witness saying, and I quote:  "Clearly  30 no such streams could be conceived as flowing from the  31 west and northwest and falling into the Atlantic  32 ocean."  Well that, as the evidence will show, is  33 based on geographic conventions.  34 And then at page 33, again there is a suggestion  35 that there is -- the treatment is too sweeping.  Well,  36 I have never heard of the proposition that brevity on  37 the part of an expert witness is grounds for  38 inadmissibility, if the witness gives his reasons for  39 stating why certain maps were remarkable and the basis  40 for them being remarkable.  He supports those  41 statements.  All these statements are illustrative of  42 what the trained mind sees and comprehends, which is  43 not obvious to the layman.  44 Page 38, if I understood it correctly, and the note  45 I made may not be -- I think his objection on that  46 page is to the last paragraph or sentence in the first  47 paragraph, when the official account of Captain Cook's 19695  Submissions by Mr. Goldie  1 expedition was published in 1784, "It touched the  2 imagination of men throughout the western world for  3 now a strong economic incentive existed for further  4 expeditions to the northwest coast."  5 In my submission, my lord, it is important for the  6 cartographer to know who made the observations and why  7 they were there. I mean, he is transmitting or  8 transposing observations on to a map and it is  9 important that he know why they were there.  They  10 weren't out on a pleasure cruise, they were there to  11 trade than they were there to take observations to  12 enable them to come back to the same place with some  13 degree of safety and accuracy.  14 And I think my friend objected to the witness  15 talking about the standard of accuracy of Arrowsmith  16 maps.  Well, in my submission that's entirely his  17 business and entirely his field.  I conclude with what  18 I stated at the beginning, namely, that the comparison  19 that my friend makes to Mr. Morrison is apples and  20 oranges.  Mr. Morrison did not tender a report.  21 Everybody whose report was tendered has been marked  22 and objections taken as the report was dealt with in  23 the course of the evidence.  And, in my submission,  24 that's the proper way to deal with it in Dr. Farley's  25 case.  26 And if I haven't done so already, I tender this  27 report as an exhibit.  28 THE COURT:  Thank you.  Mr. Rush?   I suppose I did call on you  29 first, Mr. Rush, you do have a right of reply.  3 0    MR. RUSH:  Yes.  31 THE COURT:  I would think I would hear you anyway.  32 MR. RUSH:  My first point of reply is in respect to Ms.  33 Koenigsberg, a point she makes is echoed by Mr.  34 Goldie, and that is that the report deals with what is  35 the state of knowledge and it is somehow suggested  36 that because it -- the report deals with a study of  37 the state of knowledge, that this somehow  38 exceptionalizes it in terms of your lordship's  39 rulings.  But it's my submission that what the state  40 of knowledge is is portrayed on the maps essentially  41 here.  And your lordship should notice that although  42 my friend is putting these little books in front of  43 you, that what you're really going to see are the maps  44 and they have been conveniently bound here for your  45 lordship, and you will be taken through them no doubt,  46 because this is what the evidence is all about.  And  47 at the front is an appendix, which is -- which 19696  Submissions by Mr. Rush  1 contains the source of the maps and reproductions, and  2 they go through map 1 to 30.  And when you look at the  3 first map, my lord, it's -- it looks like either a  4 photocopy or a photograph of a -- of the map that he  5 wishes to deal with, Zaltieri's map of 1566, and no  6 doubt you will be directed to what it is that is of  7 significance in the evidence of Dr. Farley to the map.  8 But the state of knowledge is the map, and there is no  9 way around that fact.  10 And I -- some effort was made by Ms. Koenigsberg to  11 suggest a distinction between a map and some other  12 written record of the day.  And, in my submission,  13 there is no difference and certainly no distinction in  14 principle, that can be drawn between historic  15 documents.  A map, it is true, expresses an opinion,  16 that -- for that reason one could well conclude that  17 the map is of a weaker value than a document that  18 expresses a fact.  But, in my submission, what is  19 likely the case about a map is likely the case about  20 any other historical documents, and that is that it  21 expresses an opinion and probably in some cases  22 expresses facts.  23 The material part of it, my lord, is not that it  24 expresses an opinion or expresses a fact, it's rather  25 the fact that it is a historic document, and must be  26 seen in that respect.  And there is, as I say, there  27 is nothing magical that Dr. Farley is going to bring  28 to your consideration of this historical fact.  29 Now, the second point, addressing now Mr. Goldie's  30 submission, it was said in his argument that your  31 lordship permitted the documents which were the  32 reports of Messrs. -- Dr. Daly, Marvin George and Mr.  33 Brodie, and Dr. Mills, and that, his argument was that  34 you were to take the objections raised with regard to  35 Dr. Farley in the same vein as the objections raised  36 in respect of those reports.  Not so.  If your  37 lordship looks at your memorandum of August 15th, the  38 August 15th memorandum makes it amply clear that the  39 objections raised, and for the most part by Mr. Willms  40 during the course of the evidence of these witnesses,  41 states here that Dr. Daly and Dr. Mills on grounds  42 of -- this is the objection being stated by your  43 lordship, "on grounds of failure to disclose  44 underlying facts early enough or adequately and there  45 was a general objection to opinions based on  46 participatory observation."  47 Both Dr. Mills, Dr. Daly, anthropologists, 19697  Submissions 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:  THE COURT  MR. RUSH:  ethnographers in their field, Marvin George on page 2  of the memorandum, "I can recognize Mr. George's  report for what it is and I can distinguish between  what he is depicting on his maps on the basis of  information received from others on the one hand and  his opinion as an expert cartographer on the other  hand."  Maps made by Mr. George, and the point of  objection there was what was the underlying factual  matrix that he relies upon?  Does he rely upon it from  third parties or does it get it himself?  Then finally the evidence of Mr. Brodie, and your  lordship doesn't deal with what the nature of the  objection was, but my understanding was that the  objection was raised to Mr. Brodie on the basis that  it was disguised argument.  Now, the point is,  however, that in respect of all of those reports, the  rulings of your lordship were not faced until Mr.  Morrison's evidence.  And it was in the course of Mr.  Morrison's evidence that your lordship was called upon  to deal with the interpretation or evaluation of a  historic document, given by an expert called to give  evidence, and that's where, my lord, you had to face  down the issue that was joined between the parties.  And that's where it, in my submission, the rulings  then guided the evidence and the admissability of the  historic evidence, which was of course based on  documents beyond the living memory of anybody in the  courtroom.  :  But at the end of the day, Mr. Rush, they really  didn't, did they?  Because as I later found,  notwithstanding the rulings, there was a lot of  opinions in Mr. Morrison's evidence, and I found as I  was listening to the evidence, without any attempt to  avoid the ruling, that the witness just couldn't keep  himself within the terms of the ruling, and did  express a lot of opinions, which I later found to be  very helpful.  Correct, my lord.  But he would have expressed an  awful lot more if the plaintiffs had had their way.  :  Well, that may be.  That's always possible.  The point is that it was a constant evaluation of the  evidence as drawn and led from Mr. Morrison, and the  objections that were raised, and those objections were  raised in respect of each of -- of many of the aspects  of the evidence that were called upon from Mr.  Morrison and, yes, there were aspects of opinion that  wove into the evidence.  But assessed in terms of the 1969?  Submissions by Mr. Rush  1 evidence that he gave on the stand, and assessed in  2 relation to documents that he had before him, and in  3 my submission, my lord, what the proper course of  4 action that I have urged upon your lordship is to  5 follow a similar course with Dr. Farley's maps.  Those  6 are the historic statements of fact that he is trying  7 to -- will be endeavouring to rely upon.  8 My friend's made a reference to page 16099, which  9 was in the first volume of the evidence, I believe the  10 second volume of the evidence of Mr. Morrison.  Well,  11 the point of, however, I think is this, that your  12 rulings about the impermissibility for a witness to  13 interpret or construct a document, to give meaning to  14 a document, were made after that point.  Your lordship  15 ruled after having considered that argument, but the  16 rulings were made, as I have said, in the sequence  17 that I have set out in my brief.  18 Now, my friend, Mr. Goldie, argues that, well, Dr.  19 Farley provides the context for the maps.  And if  20 that's what this report did, I wouldn't take any  21 objection to it.  But that is not what it does.  The  22 way that the evidence is given, in my submission, is  23 for you to have the map before you and if the map  24 calls for explanation, if a document calls for  25 explanation, then it can be given.  And I say, my  26 lord, you don't have to go through an editing process  27 in respect of the -- Dr. Farley's summary in his  28 appendix to take out the offensive portions of the  2 9 report.  You don't need to do that when you have what  30 are the primary documents Dr. Farley is going to rely  31 on.  32 Now, my friend says that you don't put knowledge  33 into watertight compartments, and I quite agree with  34 him, my lord, and I wouldn't be making this  35 submission, I assure you, if in fact it hadn't been  36 for my learned friend's objections and the constraints  37 placed upon Mr. Morrison and Dr. Lane's evidence, and  38 the rulings that your lordship made in that respect.  39 But the fact of the matter is that Dr. Farley's report  40 was delivered after your lordship's rulings on May  41 15th, and your lordship's rulings were made on April  42 25th and 26th, and his report could well have  43 conformed to the rulings made by your lordship, but  4 4 didn't.  45 Now, in response -- my friend makes a point at the  46 beginning of his submission after the luncheon break,  47 and at the end of it, which is essentially the same 19699  Submissions by Mr. Rush  1 point, what's wrong with the witness giving evidence  2 about general history?  The point of your lordship's  3 ruling was that questions of history of a broad  4 nature, are such that where experts can disagree they  5 are not the proper subject matter for expert opinion.  6 That was the point of that ruling, in my submission.  7 Throughout the responses that my learned friend  8 makes to the particular points of contention in Dr.  9 Farley's reports, he says, why is Dr. Farley not  10 entitled to express an opinion on the journals?  He  11 poses the question.  He says, and I am quoting Mr.  12 Goldie, "It's pointless for a scholar to express an  13 opinion.  It's pointless for a scholar not to express  14 an opinion in these terms", he cites on paragraph 14.  15 My lord, as pointless as it might be, whether or  16 not he should be entitled to, all of that is  17 irrelevant.  The fact of the matter is that in respect  18 of similar types of opinions, given viva voce, and I  19 say there is no distinction to be given in respect of  2 0 evidence to be given viva voce and evidence that comes  21 out in an expert opinion report, that in respect of  22 that evidence your lordship has ruled that an expert  23 cannot construe a document.  It's not his purview to  24 construe a document.  It's the court's judgment on  25 that issue, subject to argument that will be made at  26 the end of the day.  Again and again my friend says,  27 Dr. Farley can give these opinions, he says he can say  28 things are spurious and so on and so forth.  Well, my  29 lord, in my submission, if Dr. Farley could do this,  30 so also can Mr. Morrison.  31 MR. GOLDIE:  He did.  32 MR. RUSH:  He did not.  33 MR. GOLDIE:  He did.  34 MR. RUSH:  Time and again, time and again, the transcript is  35 peppered, and as is with Dr. Lane, objections taken to  36 confine the evidence to the document and to the  37 context of the document.  Time and again, in my  38 submission, my lord, the witnesses, Dr. Lane and Mr.  39 Morrison, were prevented from giving, under your  40 lordship's rulings, prevented from expanding on their  41 opinions on these subjects.  42 THE COURT:  But he wasn't stopped from relating one document to  43 another and providing the context for the document.  44 MR. RUSH:  And I don't — no.  But that's not what Dr. Farley  45 does in this report, my lord.  He is giving opinions,  46 and Mr. Goldie says, it's okay for him to give  47 opinions.  It's okay.  Time and again Mr. Goldie's 19700  Submissions by Mr. Rush  1 argument was, well why shouldn't an expert give these  2 opinions?  The very argument that we made in respect  3 of Mr. Morrison and Dr. Lane, and the very opinions  4 were not, over my learned friend's objections, were  5 ruled inadmissible and I say, my lord, that my friend  6 cannot blow on the one hand and suck on the other,  7 that in respect the case is that your rulings are such  8 that those types of interpretations on documents are  9 not permissible interpretations, in this, in an expert  10 witness on the stand.  And I say once again that it  11 makes no matter whether it's in a report or on the  12 stand, the fact is the evidence is the same, once it's  13 before your lordship it becomes evidence in the case.  14 THE COURT:  But if there is a document in Mr. Morrison's  15 collection that said something that was without other  16 documentary support of any kind, or if there was a  17 statement made in a document that Mr. Morrison was  18 discussing that was believed to be incorrect, because  19 of contrary statements or no statements in other  20 documents, he would have been allowed to say that.  He  21 wouldn't be allowed to say -- they say there was no  22 treaty in effect, but there was and here it is, he  23 would be allowed to say that.  That's not giving the  24 broad sweep of history, the broad sweep of history, as  25 I have it, that somebody would say that because of  26 fact A, B and C there was a policy that all European  27 countries could do this or that, that's what I have in  28 mind with the broad sweep of history, or that without  29 saying so, England embarked upon a massive course of  30 colonization of the colonies, or something, if it's in  31 a document he could explain it.  But he couldn't reach  32 that conclusion from a number of unrelated or  33 unconnected facts.  At least I don't think he could.  34 MR. RUSH:  My lord, in my submission it's not available to my  35 friend to parse your lordship's rulings in the manner  36 that I think is suggested by your lordship's  37 hypothetical.  38 In tab 1 of the material, under page 16157, the  39 question was posed by Ms. Mandell, and this is after  40 your lordship's ruling, "And could you explain the  41 significance of the letter as you see it with respect  42 to the Royal Proclamation as it's evolving?  MR.  43 GOLDIE:  Well, I object to any suggestion that the  44 Royal Proclamation evolving.  That's pure argument, my  45 lord.  46 THE COURT:  I think in rule view of my ruling you should  47 ask the witness, Ms. Mandell, what parts of the letter 19701  Submissions by Mr. Rush  1 he should pay particular attention to."  2 MR. GOLDIE:  "And give an explanation that isn't patent face of  3 it."  4 MR. RUSH:  Excuse me.  "MS. MANDELL:  I will ask the question as  5 it's just been asked by you.  6 THE COURT:  And give an explanation of anything that  7 isn't patent on the face of it.  8 A   The first letter refers in part to what follows,  9 which is a separate letter from the Earl of Egremont  10 to  Thomas Fitch, who's the governor of Virginia, and  11 what the --"  and so on.  And now, my lord, he is not  12 permitted to give an opinion as to whether or not the  13 Royal Proclamation is evolving, whereas Dr. Farley, in  14 his report, has an opinion as to the progress of  15 knowledge with regard to the cartographic record as is  16 displayed, but he is confined to two aspects for which  17 I take no objection and that is what parts of the  18 letter or document he should have particular  19 attention, your lordship's attention drawn to, and an  20 explanation, if any, of that.  21 MR. GOLDIE:  My lord, my objection was to the leading nature of  22 the question.  23 MR. RUSH:  Well, that certainly doesn't appear from the record.  24 My friend can say anything he likes after the fact.  25 MR. GOLDIE:  Well, it reads:  "Well, I object to any suggestion  26 that the Royal Proclamation is evolving."  That's what  27 was being put to the witness.  28 MR. RUSH:  On page -- on tab 2, my lord, I made reference to  29 this earlier --  30 THE COURT:  Mr. Rush, surely you're not going to go through  31 these again, are you?  32 MR. RUSH:  Well, my lord, I feel in terms of your lordship's  33 response that a distinction is somehow -- your  34 lordship perceives a distinction between permissible  35 types of opinions that flow from an explanation of the  36 context, and explanations of the documents, and  37 opinions generally and, in my submission, my lord,  38 that the opinions that are permissible are ones that  39 arise out of a consideration of the historical  40 documents.  The impermissible opinions are those that  41 go to the interpretation of the documents.  And I  42 think that Mr. Goldie concedes in his argument that  43 the nature of the opinions that he will elicit from  44 Dr. Farley and that are contained in this report, are  45 of the latter kind, that they are opinions that go to  46 broader issues of interpretation.  And, yes, my friend  47 wants those opinions to be given, just as we wanted 19702  Submissions by Mr. Rush  1 Dr. Lane to give opinions on those subjects, but your  2 lordship has ruled those are matters of argument, and  3 in my submission, my lord, the question, questions  4 relating to argument, questions relating to  5 interpretation of documents, questions relating to  6 statute interpretation, these are questions for your  7 lordship.  Your lordship has ruled on that and in my  8 submission there is a narrow perimeter within which  9 historical evidence may be elicited on the basis of  10 ancient documents.  And I say that your lordship has  11 ruled what the limits are and this report goes far and  12 beyond what those limits are, and I see very little  13 point in your lordship attempting to edit it as we go  14 through the witness's evidence, when in fact the body  15 of the documentary sources are the maps which are  16 compendiously put together for your lordship's  17 convenience.  18 THE COURT:  Thank you, Mr. Rush.  19 I tend to think the differences between counsel on  20 this question may be largely semantical, but I do not  21 have a particularly high level of confidence in that  22 characterization of this issue.  23 It is, of course, my desire to rule with the  24 closest possible conformity to my previous decisions  25 on admissibility.  It does seem to me, however, that  26 there are some differences between this particular  27 problem and what has gone before.  28 First, I do not lay any weight upon the title  29 chosen by Dr. Farley.  It is the content rather than  30 the title that must concern me.  31 Second, Mr. Morrison, and others, were dealing with  32 documents, not maps.  The former are traditionally the  33 province of the court, maps are not.  And I think that  34 there may be a larger difference than Mr. Rush  35 suggests.  When one is considering what does a  36 document mean, we fall back on the usual rules of  37 construction and we can also look at other documents  38 and that was the function of counsel to bring forward  39 the other documents that explained or gave meaning to  40 the document in question.  Maps, on the other hand,  41 are representations of a state of knowledge, and this  42 is where I think counsel separate on this issue.  43 Mr. Goldie and Ms. Koenigsberg say that it is  44 necessary to have intrinsic evidence to explain that  45 state of knowledge or to explain how the map maker  46 reached the state of information he was in when he  47 prepared his map.  And although it may appear to be 19703  Ruling by the Court  1 illusory, I think that there may be a distinction that  2 I have to have regard to.  Also, the earlier witnesses  3 were dealing with existing documents which could be  4 explained or amplified or contradicted by other  5 existing documents, while I understand that, perhaps  6 imperfectly, that Dr. Farley will be seeking in some  7 cases to demonstrate either the absence of knowledge  8 or the credibility of the map maker, which must  9 necessarily be judged on the basis of extrinsic  10 evidence.  11 More important I think still is the fact that  12 notwithstanding my ruling, as recognized in my written  13 reasons, much opinion was blended with fact in the  14 evidence of some of the plaintiffs' witnesses and I  15 have no doubt that even if I were to accede entirely  16 to Mr. Rush's able submissions, I am sure that there  17 would still be interwoven with the evidence of the  18 maps, and the explanations given of them, some opinion  19 evidence.  20 I have in mind, also from what Mr. Rush has said,  21 that there are some portions of the report which may  22 not be admissible in his view, but others which are  23 admissible.  The question then becomes how one should  24 manage a problem of this kind.  I am attempting to  25 adopt as my text that which I said at page 18 of my  26 reasons dated July 14th, 1989.  I am, of course,  27 concerned now, as I was then, not to discard what may  28 be permissible from what is impermissible.  29 And I have therefore decided, on balance, that I  30 should, at this stage at least, receive the report for  31 identification, and dealing further with the question  32 of admissibility, with or without editing, after I  33 have heard the evidence, which will furnish a much  34 better basis for the ruling than I now have.  35 I point out that I have not seen the report, I have  36 only heard excerpts read to me, and when I have seen  37 the full document and I have heard what the witness  38 says and I have dealt with an objection which I have  39 no doubt will be made from time to time, which I  40 invite, then I think I will be in a better position to  41 deal with this question finally.  42 I wish also to add that at least to be consistent I  43 still prefer to err, if such be the case, on the side  44 of admissibility, although I am not yet at this stage.  45 I think the report may be tendered for  46 identification only at this point.  47 19704  Ruling by the Court  1  2 (EXHIBIT 1148 FOR IDENTIFICATION:  REPORT OF DR.  3 FARLEY)  4  5 THE COURT:  You are tendering it now, Mr. Goldie?  6 MR. GOLDIE:  Yes.  7 Dr. Farley, will you come forward?  8  ALBERT LEONARD FARLEY, Resumed:  IN CHIEF BY MR. GOLDIE:  Dr. Farley, I think we have had prepared for you a  folio of maps consisting of copies of the map  reproductions which are listed at pages, I believe, 64  and 65 of Exhibit 1148 for identification?  Yes.  :   I would ask that a number be reserved for that and  I propose, my lord, tendering each map as it is  discussed by the witness as a separate -- as a number  in that Exhibit.  You mean the maps themselves?  :  Yes, the folio -- perhaps the registrar might --  could indicate to your lordship -- it's what Mr. Rush  was referring to.  Oh, yes.  Well, will it be convenient then to mark  them 1148-1 to whatever the number they are?  :  Perhaps a separate number could be reserved for the  folio itself, my lord, which would be 1149.  That might be better.  Yes.  1149.  :  And reserved for that and then we will --  That's a book of maps, is it?  :  Yes.  Should it be for identification as well until we  know more about it?  :  It can be, although I will be tendering each of the  contents as we go along.  All right.  :  Presumably at the end of it it will be marked as an  Exhibit.  I do not understand that the maps themselves are the  subject of an objection.  :  I am not aware of one.  No, my lord.  All right.  The book itself can be 1149 and as they  are tendered they will be given a distinctive number,  9  10  11  EXAMINATIO:  12  13  MR.  GOLDIE  14  Q  15  16  17  18  A  19  MR.  GOLDIE  20  21  1  22  23  THE  COURT:  24  MR.  GOLDIE  25  26  27  THE  COURT:  28  29  MR.  GOLDIE  30  31  THE  COURT:  32  MR.  GOLDIE  33  THE  COURT:  34  MR.  GOLDIE  35  THE  COURT:  36  37  MR.  GOLDIE  38  39  THE  COURT:  40  MR.  GOLDIE  41  42  THE  COURT:  43  44  MR.  GOLDIE  45  MR.  RUSH:  46  THE  COURT:  47 19705  A. L. Farley (For Province)  In Chief by Mr. Goldie  1 dash one.  2 MR. GOLDIE:  Is that just reserved?  3 THE COURT:  No, I think we can use that number now.  4  5 (EXHIBIT 1149:  FOLIO OF MAPS)  6  7 MR. GOLDIE:  8 Q   Before we get, however, to your maps, Dr. Farley, and  9 by use of whatever visual aid you consider necessary,  10 would you please describe the principal physical  11 features of North America?  12 A   Yes.  13 Q   Now, before you commence, you are going to be  14 referring to a drawing of the North American continent  15 with a title at the top of it, "Drainage", are you  16 responsible for that?  17 A   Yes, it was simply a convenient way of identifying the  18 general content of the map and I thought that it might  19 be helpful to the court if in dealing with this  20 outline of geography, to have a map of North America  21 before us.  And on this particular map are red lines  22 that indicate drainage basins for North America.  23 MR. RUSH:  Excuse me, I have never seen this map before, my  24 lord.  25 MR. GOLDIE:  That's true.  That was a visual aid that Dr. Farley  26 prepared in order to give his evidence here.  27 MR. RUSH:  Well, it might be true but I think under the rules of  28 court that maps ought to have been disclosed.  This  29 has obviously been prepared in contemplation of Dr.  30 Farley's evidence, this map ought to have been  31 disclosed to us, it ought to have been revealed that  32 it was going to be used as a visual aid, and no doubt  33 it will be marked as a exhibit, and I haven't seen it  34 before.  I haven't considered it.  I haven't been able  35 to determine what these lines represent.  I am sure  36 they are fixed in Dr. Farley's mind but not in mine.  37 MR. GOLDIE:  It's the only one of its kind, my lord, as I say it  38 was created as an aid to allow him to give his  39 evidence.  He could give his evidence viva voce, if  40 you wanted, but that is something which he has created  41 for the purpose of illustrating his evidence.  And  42 it's prepared precisely for this purpose.  It doesn't  43 speak to the truth of anything, except what he is  44 going to explain.  45 THE COURT:  Are there a number of these?  46 MR. GOLDIE:  Well, there are —  47 THE COURT:  I mean, there may be more than one copy of this 19706  A. L. Farley (For Province)  In Chief by Mr. Goldie  1 drainage map --  2 MR. GOLDIE:  There are two more.  One illustrates his evidence  3 with respect to the northeast drainage and the other  4 with respect to the Upper Mississippi, that is to say,  5 they are enlargements, so to speak, of the general  6 drainage areas which are shown for the whole of the  7 continent there.  8 THE COURT:  Well, firstly, it seems to me it would have been so  9 much easier to exchange them ahead of time so we  10 wouldn't have this problem but more seriously is this  11 not an opinion on a matter that the Evidence Act deals  12 with?  Or is this such a notorious map that it is  13 something that is properly a fact rather than an  14 opinion?  15 MR. GOLDIE:  Well, I doubt if the drainage areas of North  16 America are matters of opinion.  The court may take  17 judicial notice, I suspect that the Great Lakes are  18 drained by the St. Lawrence.  What this does is simply  19 set the stage, so to speak, for the consideration of a  20 series of maps in the map folio.  21 MR. RUSH:  Well, I take two points from it, my lord.  I don't  22 know whether it sets the stage or not.  I have never  23 seen it before so I don't know what it does.  I assume  24 that there are representations made here that are the  25 representations of a map maker and we have already  26 been forcefully impressed upon us that in fact, maps  27 are the opinions of the maker.  So I rather think that  28 there is probably some opinion involved in that.  I  29 understand that there are some other maps here that  30 show the Upper Mississippi, and I think that it would  31 appear to me that this is an attempt at representing  32 opinions with regard to various other people's  33 opinions about the headwaters of the Mississippi, if I  34 am to properly anticipate the evidence.  But  35 whoever -- if Dr. Farley is responsible for these maps  36 I should have thought that these were then his  37 opinions about these maps, and I would have some  38 objection to raise in respect of that.  If these are  39 not opinions, I don't think it really matters.  I  40 think it should have been disclosed to me, at least  41 this morning, at the very least this morning, so I  42 could have had a look at this and perhaps vetted it by  43 a cartographer that I could consult.  As it is, I  44 raise an objection to the use of this until such time  45 as I have had some kind of opportunity of examining  46 the map, and the others to come.  And preferably I  47 would prefer a copy of my own so I could have someone 19707  A. L. Farley (For Province)  In Chief by Mr. Goldie  1 who has more expertise on the subject to review it  2 with me.  3 MR. GOLDIE:  Well, I take my friend's point.  I can say, if it's  4 of any help to him, that there are no opinions  5 expressed on this.  I am now referring, when I say  6 this, to the Upper Mississippi, and the northeast  7 drainage, they simply depict in a graphic form what  8 are on the maps in the folio.  That's all they do.  9 Now, as to the drainage one, that's -- that's a matter  10 of common knowledge known for years what the drainage  11 basins are and there are maps published by Canada  12 which show drainage basins.  But I take my friend's  13 position, and if my friend wishes to examine them,  14 these are the only copies there are, before they are  15 marked as exhibits, my suggestion is that my friend be  16 allowed to take them way.  17 THE COURT:  I think we will go that far with the two that we  18 haven't seen yet.  This one, I am -- I can tell from  19 looking at it I could practically have drawn the  20 northern half of it myself.  I think the fact is they  21 are sufficiently notorious that -- I would have  22 trouble placing exactly where the fall line was on  23 each side, except those areas that I have personal  24 knowledge of, but I have a pretty good idea, everyone  25 knows that the -- I shouldn't say everyone knows --  26 but the Yukon drains an enormous area, I think the  27 Columbia and the Fraser and the Mackenzie, I have  2 8 known for sometime even what the -- what those  29 drainage areas are and I think they are sufficiently  30 notorious that nobody is going to be taken by surprise  31 or prejudiced by that map.  I won't go further than  32 that, but I would like Mr. Rush to have a chance to  33 look at those during the afternoon break and I will  34 hear from him further later.  35 MR. GOLDIE:  I think possibly we can defer the other two until  36 some point after my friend has had an opportunity look  37 at them.  38 Q   But, Dr. Farley, would you continue using, as I say,  39 whatever visual aid you think is appropriate to  40 briefly describe to his lordship the principal  41 physical features of North America?  42 A   Yes.  Again, this map is obviously a generalized map  43 of North America, but generalized in accordance with  44 principles of generalization that cartographers are  45 expected to know about, and I supervised that, and  46 similarly a representation of the drainage itself,  47 represented by the blue lines on the map and the 1970?  A. L. Farley (For Province)  In Chief by Mr. Goldie  1 lakes, the larger lakes shown in the tone of blue.  2 Again, to attempt to give an outline for the court, it  3 seemed to me to be sensible to have one map rather  4 than a series of them and so what I would wish to do  5 is to use this map which shows drainage basins also to  6 point out the main physical features, the main land  7 form features and physographic units of the continent.  8 So, dealing with the land form physographic units  9 first, what we have, again this is a review I am sure  10 for all of us, what we have in the west is a series of  11 mountains and included plateaus, intermountain  12 plateaus, that is referred to in the literature as the  13 Cordillera, the American Cordillera, and can be  14 physographically traced down through middle America  15 and South America and indeed beyond.  So this is one  16 of the main components in what might be described as  17 the physical build of North America.  18 The Cordilleran Mountains, and included plateaus,  19 represent a zone much wider in the United States than  20 is the case in Canada.  That's the first units in the  21 physographic divisions.  22 The second units, and a little harder to discern on  23 the map, because again this represents drainage  24 basins, but the second unit is what is generally  25 referred to as the Great Interior Plains, which  26 stretch all the way from the Mackenzie Delta to the  27 Gulf Coastal plain, the great interior planes.  28 Thirdly, we would consider the Laurentian Uplands or  29 Canadian Shield, in terms of physography again,  30 bracketing much of Hudson's Bay, and included within  31 the Laurentian Upland or rather an extension at lower  32 elevation to the north and to the northeast, is the  33 Hudson Bay lowland here, then the Great Lakes/St.  34 Lawrence drainage or, sorry, the Great Lakes/St.  35 Lawrence lowland; and, finally, well, penultimately,  36 the Appalachian Highland; and, finally, the gulf  37 coast/east coast lowland.  So those are the main  38 physographic units.  39 THE COURT:  There is a red line across the, somewhere across the  40 Appalachian drainage area?  41 A   Yes, this red line, my lord, represents the drainage  42 divide for Appalachia so that the zone shown on this  43 map extending to the east, to the southeast, is indeed  44 the zone drained by -- drains issuing from the  45 Appalachian Mountains.  4 6    THE COURT:  Where do you divide the upland from the lowland?  47 A  Well, that's not shown on this map, again, my lord, 19709  A. L. Farley (For Province)  In Chief by Mr. Goldie  1 because it seemed to perhaps --  2 THE COURT:  Because it all drains to the Atlantic?  3 A   It drains to the Atlantic so these red lines, once  4 again, represents drainage divides.  5 THE COURT:  Thank you.  We will take the afternoon adjournment  6 then.  7 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  8  9  10  11  12 I hereby certify the foregoing to be  13 a true and accurate transcript of the  14 proceedings herein to the best of my  15 skill and ability.  16  17  18  19  20  21 Wilf Roy  22 Official Reporter  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 19710  A.L. Farley (for Province)  In chief by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 3:15 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5  6 EXAMINATION IN CHIEF BY MR. GOLDIE:   (Continued)  7 Q   Dr. Farley, if you have finished with the description  8 of the land forms, would you go on to the drainage  9 areas?  If you haven't finished with your description  10 of the land forms, would you complete that, please?  11 A   Yes.  I feel that I have given a general description  12 of the land form configuration and the main unit,  13 physiographic units, and I should like to now refer to  14 the drainage basins of North America again as  15 represented by the red lines on this space map.  And  16 as we can see from the configuration of the lines  17 which by the way are derived from Canadian Government  18 and U.S. Government maps by the official mapping  19 agencies of each country, one can see that the  20 drainage area into Hudson Bay is rather large.  I do  21 have figures that, if the court wished, I could  22 provide concerning the actual areas, but I think  23 perhaps, my lord, that would be a little too detailed  24 at this stage.  The McKenzie Drainage or Arctic  25 Drainage mainly via the McKenzie, the Pacific Drainage  26 founded by the line here, a vast area.  27 THE COURT:  Are the total courses of the Fraser and the Columbia  28 in that western drainage area?  29 THE WITNESS:  Yes.  The Columbia is represented here and flowing  30 this way and the Snake River this way to the Columbia  31 and the Fraser would be this S-shaped feature here.  32 THE COURT:  Yes, right.  33 THE WITNESS:  The Mississippi/Missouri system covers a very  34 large drainage basin.  Coupled with the  35 Mississippi/Missouri are some other streams draining  36 from, well, the Rio Grande and some from the middle of  37 South America and -- but that's beyond the interest of  38 the moment concerning this map.  And the Great Lakes  39 drainage, we can see that that actually represents a  40 rather small area on the map that is in comparison to  41 the other drainage basins and yet a substantial flow  42 of water emanates from the Great Lakes system.  43 Finally, the Appalachain Drainage and the main streams  44 flowing to the Atlantic from Appalachain and they are  45 represented here.  There is essentially in the south a  46 rather greater frequency of streams because of the  47 climatic differences from this part of the map or, 19711  A.L. Farley (for Province)  In chief by Mr. Goldie  1  2  3  4  5  MR.  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  MR.  22  THE  23  THE  24  THE  25  THE  26  MR.  27  28  29  THE  30  THE  31  32  33  MR.  34  35  36  MR.  37  THE  38  MR.  39  40  41  42  43  44  45  46  47  let's say, this part of the continent and this part of  the continent here.  So those are the main drainage  basins and I think, my lord, that's really all I wish  to say at this stage.  GOLDIE:  Q   All right.  I want to turn now to your summary and  your report, and I'll deal with your summary at a  later time, but do you have a copy of your report in  front of you?  A   Yes.  Q   And it's -- would you turn to it, please, and are  there any corrections that you wish to make in it?  A   Yes, on page 14, the top line.  Q   That's the line beginning with the words, "for  Jefferys and Faden"?  A   Yes, 1755, then there is a bracketed statement  referring to the maps.  What I would request is that  the phrase "see Maps 10a, b, c, and d" be deleted, and  the following parenthetical phrase inserted, "see Map  10, parts 1 and 2".  Thank you.  Not b, c, and d?  That's correct, my lord.  Take b, c, and d out?  That's correct.  'a" goes out, tool  GOLDIE:  COURT:  WITNESS  COURT:  WITNESS  GOLDIE:  Q   Well,  A   Yes.  COURT:  Yes, "a" goes out, too.  WITNESS:  That existing parenthetical phrase be deleted and  we substitute the parenthetical phrase "see Map 10,  parts 1 and 2".  GOLDIE:  Q   Yes, thank you.  A  And then on page 24.  GOLDIE:  Yes.  COURT:  I am sorry, page?  GOLDIE:  Q   24, my lord.  The top line at the end of that line is a coordinate  position that reads 47, 40 north, 98 west, I would  request that be deleted and the following substituted:  47, 45 north, 101, 15 west, that's 101 degrees 15  minutes west, and also in that table line 55 of the  table.  That's the Jefferys North America from the French map?  Yes.  A  Q  A 19712  A.L. Farley (for Province)  In chief by Mr. Goldie  1 Q   Yes.  2 A   I would request that the coordinates 46, 15 north, 92,  3 15 west be deleted and the values 46, 20 north and 93,  4 20 west be substituted.  5 Q   Yes.  6 A   Finally, this is in the summary, is it appropriate to  7 make --  8 Q   Yes, you can correct the summary.  9 A   The summary, page 4 item 13, the last line at that  10 item 13 reads, "I refer to this on pages 55 and 66 of  11 Appendix A".  I request that the number 66 be deleted  12 and the number 56 be substituted.  13 Q   Thank you.  All right.  If you have no further or  14 other corrections, would you turn then to the main  15 report, Appendix A to your summary, and you introduce  16 a topic which you have referred to as "Geographical  17 Concepts of North America Prior to 1763".  And at  18 pages 2 to 4 there is a subsection entitled "General  19 Conceptions of the Continent to 1600".  By reference  20 to the relevant maps in the map folio which is Exhibit  21 1149, would you summarize the opinions you express in  22 those pages, please?  23 A   Yes.  To set this in perspective, one could say that  24 before the publication of Cook's voyage or, sorry, the  25 publication of the narrative associated with his third  26 and last voyage, publication dated 1784, before that,  27 even the coast line of what is now British Columbia  2 8 was remote from the known world, and to set that in  29 some kind of perspective, it would recognize that  30 explorations of America of North America or indeed  31 exploration of the world beyond the old world in the  32 Renaissance came from Western Europe in two  33 directions:  westward toward America, and southward  34 and easterly around Cape Horn to India and to the East  35 Indies.  36 THE COURT:  Cape Horn or Cape of Good Hope?  37 THE WITNESS:  I am sorry, Cape of Good Hope.  Sorry, my lord.  38 So that suggests one of the reasons why exploration by  39 Europeans of the northwest coast of America was late  40 in the history of development, economic and political  41 development of the new world.  42 MR. RUSH:  I say that's an impermissible opinion, my lord.  43 MR. GOLDIE:  Well, I am not sure what is being objected to.  44 MR. RUSH:  The last few lines of the witness' evidence that he  45 says it suggests one reason for et cetera.  46 THE COURT:  Well, it certainly falls close to the concern I have  47 about the broad sweep of history but it also or 19713  A.L. Farley (for Province)  In chief by Mr. Goldie  1 perhaps I should say on the other hand it is related  2 to and springs from the, what I understand the witness  3 to be saying, is the lack of any information, and I  4 think the latter is permissible, the former probably  5 is not.  6 MR. RUSH:  Well, my lord, I think it falls right in line with  7 the words that you cited in your judgment on July 14:  8  9 "I still have the view that for the purposes of  10 litigation historians cannot usefully pronounce on  11 matters of broad inference which may be open to  12 serious disagreement or subsequent revision."  13  14 THE COURT:  I agree with that and I agree with your reference to  15 it at this point but what I tend to think is that it  16 is permissible for the witness to say that there was  17 at that time no known geography of the area that you  18 mentioned.  The reason for it may be a matter of  19 inference and a matter of argument.  There is no --  20 MR. GOLDIE:  I think there is another concern that I have, my  21 lord, and that is that I didn't understand the date of  22 exploration to be in issue in this case, whereas of  23 course policy to use one of the words that became  24 significant was an issue, but if my friend takes issue  25 with the date of exploration I will ask the witness,  26 or the reasons for the dates of exploration, I am  27 happy to ask the witness simply to record the dates  28 without any comment on the reasons.  29 MR. RUSH:  My lord, that's a red herring and my friend knows it.  30 I didn't raise any questions as to dates and I don't  31 intend to raise any question as to dates.  My point  32 was directed at the witness' statement, "it suggests  33 one of the reasons that".  And no doubt I could call a  34 witness and suggest a number of other reasons that,  35 and perhaps you will hear from me in argument on the  36 subject.  That's my point.  37 THE COURT:  Yes.  38 MR. GOLDIE:  Well, I am sorry, the date or the reasons I didn't  39 realize were in issue and, if they are, I missed that  40 point.  41 THE COURT:  I am not sure in the ultimate analysis the reasons  42 are going to be important in this case.  43 MR. GOLDIE:  No.  4 4 THE COURT:  Go ahead.  45 MR. GOLDIE:  46 Q   Would you continue please, doctor?  47 A   I think that I have covered probably the main thing 19714  A.L. Farley (for Province)  In chief by Mr. Goldie  1 there.  The thrust of my comment really is that  2 exploration and discovery of the Pacific northwest and  3 in this context particularly the northwest coast was  4 very late in the history of European affairs and I  5 think that that point will emerge as we look at some  6 of these map products.  7 Q   All right.  Now, you're going to go on to deal with  8 the maps that are relevant to this particular  9 discussion?  10 A   Yes.  I should like to draw the court's attention to  11 the first map in the folio of maps accompanying the  12 appendix and this is dated 1566 by a Venetian  13 cartographer, Bolognino Zaltieri, and I included this  14 map for several reasons, one of which is that it is  15 remarkably crisp in the way the information is  16 portrayed; in other words, in the sense of  17 cartographic technique it's rather outstanding, but  18 perhaps more important is its incorporation of a  19 mixture of Ptolmaic and Polian geography with  20 information stemming from the new discoveries in  21 America.  You may note that the island of Japan is  22 about midway across the Mare De Mangi off the  23 westcoast of America, and that is a reflection of  24 Ptolmaic ideas about the size of the earth.  It was  25 believed under the Ptolmaic notions that the earth was  26 about 18,000 miles in circumference as opposed to the  27 true value of the order of 25,000 miles.  28 Q   Is Japan the little island with G-i-a-p-a-n on it?  29 A   Yes.  30 Q   Yes, thank you.  31 A   So this is one point.  Another point is that the map  32 shows a Strait of Anian.  Shown on the map, it reads  33 Streto De Anian.  34 Q   That's up where —  35 A  What we would call Bering Strait if we could get some  36 general latter-day counterpart.  There is no evidence  37 that any European had ever sighted such a body of  38 water.  So this is the first map indeed to show the  39 Strait of Anian and that feature appears on many maps  40 of later date.  Another point about this map --  41 MR. RUSH:  Excuse me for a moment, please.  My lord, I would ask  42 that my friend, where the witness makes reference to  43 information as he does from new discoveries of America  44 or in respect to no evidence he has sighted such a  45 body of water, if the witness could be directed to the  46 references that he has referred to in coming to such a  47 statement. 19715  A.L. Farley (for Province)  In chief by Mr. Goldie  1  MR.  GOLDIE  2  Q  3  A  4  5  6  7  8  THE  COURT:  9  10  MR.  GOLDIE  11  12  13  14  15  THE  COURT:  16  17  18  MR.  GOLDIE  19  THE  COURT:  20  21  ]  22  23  MR.  GOLDIE  24  25  26  THE  COURT:  27  28  29  1  30  MR.  GOLDIE  31  Q  32  33  34  A  35  ]  36  37  38  39  40  Q  41  A  42  43  44  45  46  47  Can you assist Mr. Rush in that regard?  I can simply rely on the information that I have  accumulated over years of study of maps and of  geography, and nowhere in that accumulation is there  even a suggestion of any European having seen such a  body of water.  Excuse me, is this the exhibit or is this a copy  that I can make some notes on?  :  That is the exhibit.  Now, I can say this, my lord,  that we have here -- these maps have all been reduced  to a common size.  We have here what are for the most  part the archival documents that were produced and  which have been reproduced in the folio.  I think the better practice is for me to make my  notes on a separate piece of paper which I can keep  with the map.  :  I will see if I can get another copy.  I think this system is acceptable, that's what I did  with Mr. Rush's maps.  I didn't mark the map at all, I  made a separate note.  It is so much easier to make  them in my bench book.  : The real question, my lord, is that we can leave  that for your lordship's use and tender separately,  instead of as part of the folio, separately --  I have a feeling that -- you can do that if you  wish, but I have a feeling these are much too nice to  be marked up anyway.  I will make my notes as I have  described.  All right.  Doctor, you have stated that in your  experience you have found no evidence of any European  sighting that --  Not a shred of evidence, and I have looked at a lot of  maps and documents over the years and I can't say that  I have seen every possible piece of evidence, I think  that would take more than one lifetime, but I am  personally convinced that there is no such record that  survives to us in any case.  All right.  Did you want to continue?  Two other points if I may.  One is the tremendous west  extent given to North America and that stems from two  problems to do with mapping:  One is the difficulty in  establishing the longitude historically, that being a  bete noire of mappers and navigators, explorers.  That's one problem, the difficulty of estimating the  longitude.  And the other is again the attempt to fit 19716  A.L. Farley (for Province)  In chief by Mr. Goldie  1 Ptolmaic ideas into the notion or at least into the  2 new discoveries -- the information stemming from the  3 new discoveries in America.  So that what we end up  4 with is a vastly distended continent that is distended  5 in a west direction.  And the final point, if the  6 court please, there is a representation of a large  7 river system in the west draining to the Gulf of  8 Mexico, that stems primarily from the Spanish  9 exploration of voyages of Ulloa of Carbrillo and  10 others, and also it stems from information generated  11 by the Coronado expeditions into the American -- what  12 is now the American southwest.  13 THE COURT:  Did you say draining into the drainage of California  14 or the Gulf of Mexico?  15 THE WITNESS:  Golf of California, excuse me, my lord, I seem to  16 be a little tongue-tied today.  17 THE COURT:  And the explorations of whom, please?  18 THE WITNESS:  There was Ulloa a Cabrillo.  19 THE COURT:  How would one spell those?  20 THE WITNESS:  Yes, I think if my lord please, on page 3 there is  21 a footnote, page 3 of appendix A, there is a footnote  22 at the bottom which makes reference to Coronado's  23 exploration, and on the bottom of the page, that is  24 page 4 footnote 3, gives more information.  25 MR. GOLDIE:  26 Q   Well, Coronado is then spelled C-o-r-o-n-a-d-o?  27 A   Yes.  28 Q   And where do we find the spelling of the other man?  29 A   On -- at the bottom of page 4.  30 Q   Cabrillo, C-a-b-r-i-1-o?  31 A   Double-1-o.  32 MR. GOLDIE:  Yes, thank you.  33 MR. RUSH:  My lord, my concern here is in terms of being  34 directed to the source material for this as footnotes  35 really are commentary on the text and do not direct me  36 to the sources which are apparently listed in the --  37 what is described as selected references consulted,  38 and I would ask my friend to direct the witness to  39 identifying the source or the documentary basis for  40 the references that are in the text or in the  41 footnoting.  42 MR. GOLDIE:  43 Q   Can you assist my --  44 A   Yes, I can, in a general way.  I can't of course quote  45 the call numbers for these references but I can say  46 that the U.S. National Atlas spells out in some detail  47 the routes that these explorers took.  There is a 19717  A.L. Farley (for Province)  In chief by Mr. Goldie  1 Reynolds American History, copy of a volume of which  2 is in the map division of the main library at UBC.  3 There's been a great deal of attention over the years  4 paid to early exploration of the American southwest  5 and the coast of California and the Baja California,  6 and I think Wagner, Henry R. Wagner, would be a good  7 reference there.  I think that Wagner's two-volume  8 work on The Cartography of the Northwest Coast is  9 listed; in fact, there are two references by Wagner  10 but it is the two-volume work.  11 Q   That's the second to last reference on page 63 of your  12 bibliography?  13 A   Yes.  14 Q   All right, thank you.  If you have any further comment  15 on that --  16 A   The final thing, it was in the same context as the  17 reference to the Colorado River or its early  18 representation, that was the reflection of the Spanish  19 exploration there and then on the east coast of  20 America -- of the northeast portion shown on this map  21 one sees a body of water with the stippling on it and  22 it's simply labeled Lago, and then draining from that  23 is an R.S. Lorenzo which would presumably mean Rio San  24 Lorenzo which would be the Saint Lawrence.  This is an  25 early depiction of the Saint Lawrence River and that  26 would stem from the Cartier discoveries in eastern  27 North America and what is now Canada.  28 MR. GOLDIE:  All right.  My lord, I am, unless some objection is  29 taken, I am going to submit that each of these as we  30 pass by them become 1149-1 and so on down the line and  31 just to set that stage, I tender this map as 1149-1.  32 THE COURT:  All right.  This map will be so marked.  33  34 (EXHIBIT 1149-1 - COPY OF MAP ENTITLED IL DISEGNO DEL  35 DISCOPERTO DELLA NOUA FRANZA, ILQUALES A  36 HAUUTO..., BOLOGNINO ZALTIERI (Source:  37 ASSOCIATION OF CANADIAN MAP LIBRARIES, ACML)  38  39 THE COURT:  Just a matter of interest, I saw it somewhere else,  40 what do you understand Flugo, is it F-1-u-g-o, or is  41 it F-u-g-o to represent?  42 THE WITNESS:  Fuego?  43 THE COURT:  On the north coast of what I presume is British  44 Columbia, I saw it somewhere.  45 THE WITNESS:  Oh, yes.  46 THE COURT:  What would you understand that to represent?  47 THE WITNESS:  I really — I have looked at that before, my lord, 1971?  A.L. Farley (for Province)  In chief by Mr. Goldie  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  MR. RUSH  THE  MR.  THE  MR. RUSH  MR.  and I cannot give a clear statement about that.  I  simply do not know.  My lord, if I may, in this  context, one may be tempted to think that there was  exploration of what is now the B.C. coast or the  American northwest coast from Asia.  Once again, I  have been able to find no record of any maps that  resulted from any such exploration if indeed such  exploration were undertaken.  In other words, there is  no evidence to suggest that oriental authorities had  any more information about northwest America than did  Europeans.  Is it significant that they have what appears to be  the Sierra Nevada range extending to the south end of  Bering Strait?  WITNESS:  No.  This is the cartographer's depiction, again  rather interesting in a sense of technique, but no,  not based upon fact because there was no information  available at that time to have made such a  representation.  Now, that's what I do object to, my lord, because  there is a representation on the map.  Sierra Nevada.  Precisely.  What the witness is saying, as I understand it, is  there is no known record that would lead that notation  to be put there, but we do know it is there.  He is  not saying it is not there.  Well, yes, he can't say it is not there but neither  can he say in my submission what the significance of  the placement of it is there.  I mean, in my  submission, what he can say is what the documentary  record is that he has referred to which supports or  doesn't support, I don't object to that.  Well, he didn't say it except in an answer to a  question I put to him, but we won't blame him for  that.  GOLDIE:  Q   Well, can you assist my friend any further?  Well, it's quite likely that the name Sierra Nevada  stems from the results of the Coronado expedition  because we see near that label that name Sierra  Nevada, we see in bold type, large upper-case type,  Quivira Pro, Qvivira Province.  Well, Coronado we know  got up to the Indian villages of Tiges, that he called  Tiges and Quivira, and we find indeed a reflection of  this very kind of nomenclature of maps of much later  time but the only suggestion I can make is that the  COURT  RUSH:  COURT  THE COURT  A 19719  A.L. Farley (for Province)  In chief by Mr. Goldie  1 label Sierra Nevada stems again from the Coronado  2 expedition, but I cannot -- as I pointed out I cannot  3 identify the Pd Fuego.  4 Q   Well, you say you are coming to it but the Quivira Pro  5 is, you identify that as an Indian village which  6 Coronado got to?  7 A   Yes, the Pro refers to province or district or area.  8 Q   Yes.  9 A  And of course in attempting to translate the somewhat  10 fragmentary results of that expedition, that ill-fated  11 expedition, these kinds of things got twisted around  12 in a sense of special location.  13 THE COURT:  This village or locality of Quivira is what is now  14 Mexico, is it?  15 THE WITNESS:  Yes, yes.  Well, New Mexico, my lord.  16 THE COURT:  New Mexico?  17 THE WITNESS:  Yes.  18 MR. GOLDIE:  19 Q   And is that depicted on a later map?  20 A   Yes, Quivira and Cibola, all these fabulous --  21 allegedly fabulous Indian cities with turquoise and  22 gold and silver, that kind of thing.  23 Q   Well, is there any explanation for any of the other  24 physical features on this map that you are aware of  25 that -- well, I see Cibola.  That again is another --  26 A   Yes.  27 Q   Yes.  2 8 A  And —  29 Q   And Canada Pro I take it is -- what does that relate  30 to?  31 A  Well, it relates to the discoveries by Cartier as a  32 result of Cartier's voyages, and the Terra de  33 Baccalos, well, that's a name that the Portugese  34 applied to Newfoundland or to Labrador, Newfoundland,  35 as I understand it.  Translated it means land of  36 codfish.  37 Q   Mm-hmm.  38 A   If I may point it out on -- although I have already  39 referred to the Lago and the Rio San Lorenzo, if one  40 looks in a, what would amount in a northeasterly  41 direction from that, one can see the names Sladacone  42 and then north of that, Ochelai and Ochelaga.  Well,  43 these names I think without a doubt can be related to  44 Cartier's exploration of the Saint Lawrence area, but  45 clearly the cartographer, for whatever reason, could  46 not sort out the difference between the stream he  47 represents, Ochelaga, Sladacone to be on -- to be 19720  A.L. Farley (for Province)  In chief by Mr. Goldie  1 on -- located on, between that and what he labels as  2 the Rio San Lorenzo or R.S. Lorenzo.  3 Q   Ochelaga being the name commonly referred to as the  4 present day Montreal?  5 A   Yes, Ochelaga.  And Sladacone, Quebec.  6 Q   And below Lago is something called Larcadia.  Any  7 comment on the source of that name?  8 A   I can only suggest that indeed it was an  9 interpretation of the accounts of the Cartier voyages.  10 Q   All right, all right.  If you have nothing further on  11 that, could we go to the next one?  12 A   Yes.  This is a map in the Mercator tradition.  It is  13 in fact a map prepared or a copy of a map prepared by  14 Rumold Mercator, the son of the famous Gerhard  15 Mercator, who developed the projection named for him,  16 projection system.  The relevance of this map in the  17 context of my presentation is twofold.  18 THE COURT:  Does it have a date?  19 THE WITNESS:  Yes, this is the —  20 THE COURT:  1587?  21 THE WITNESS:  This is the Rumold Mercator, 1587, yes.  For  22 completeness, the famous Gerhard Mercator Carta Marina  23 as it's often called is dated 1569, so this is a later  24 map and by Gerhard Mercator's son, Rumold.  25 Nonetheless, my lord, still in the -- what is -- what  26 cartographers, historical cartographers, refer to as  27 the Mercator tradition.  Once again, I think it is of  28 interest to us in two respects:  One is that if we  29 compare the different areas of the world as  30 represented on this map, one can readily appreciate  31 that by comparison the old world including Southeast  32 Asia was relatively well established, one could point  33 out to a number of weaknesses, but in general the  34 representation is more complete than is true for North  35 America.  Indeed, even South America and the Amazon  36 River and the Plata, De Plata, are reasonably  37 recognizable for South America, but whereas North  38 America is -- at least its north western -- northern  39 and western portion is pretty largely blank, so that's  40 one point, the matter of relative information  41 available for different parts of the world.  And the  42 other point is that, once again, in the Mercator  43 tradition, we have this vast extent, east-west extent  44 of the continent of North America shown and that by  45 this date, by the date of the Rumold Mercator map,  46 it's pretty largely attributable to the difficulty in  47 longitudinal determination and of course the lack of 19721  A.L. Farley (for Province)  In chief by Mr. Goldie  1 firsthand information by Europeans about where the  2 westcoast of North America actually lay.  So what is  3 shown on that map, and you will notice Anian, Anian  4 regnum, Anian region, and the El Streto -- I can't  5 read it, do Anian, I think it says, in any case, that  6 stems once again from what we saw on the first map in  7 this series and the idea originating with the famous  8 Venetian cartographer, the head of the so-called  9 school of cartography, Giocomo Costali.  So that as  10 far as the representation of the northwest part of  11 America is concerned, it is purely conjecturural.  12 There were no firsthand counts of which I am in any  13 way aware that would suggest otherwise.  14 Q   Professor Farley, over on the left coast of North  15 America is -- it looks like Quiuira, U is the  16 equivalent of a V followed by the word r-e-g?  17 A   Yes.  That's Coronado once again.  18 THE COURT:  I don't see that.  Where is that?  19 MR. GOLDIE:  Its reference is at the bulge in the western coast  20 of North America.  21 THE COURT:  Yes.  22 MR. GOLDIE:  23 Q   Just above the -- looks like the 40th parallel.  Is  24 that the reference?  25 A   Yes.  26 Q   And then if you drop down to the right or to the east,  27 doctor, do I see there Sierra Nevada below?  28 A   Yes.  29 Q   Yes.  So this time the position of the mountains and  30 the village has been reversed?  31 A   Yes, and one sees also Tiguex or Tiguex.  That was  32 another Indian village that the remnants of the  33 Coronado expedition reported.  34 MR. GOLDIE:  All right, thank you.  35 THE COURT:  Where is that?  36 THE WITNESS:  Tiguex, excuse me, my lord, it's -- if one can  37 recognize the Peninsula of California.  3 8 THE COURT:  Yes.  39 THE WITNESS:  And going northward along that peninsula, just  40 opposite a stream, a prominent stream that flows out  41 to the west, there is -- I think it is Tiguex or  42 Tiguex, and if I remember correctly, my lord, the  43 translation of the count of that expedition, the  44 translation that I read, refers to this place as  45 Tiges, T-i-g-e-s, rather than Tiguex?  46 MR. GOLDIE:  All right, thank you.  47 THE COURT:  How would you say it is spelled on the map? 19722  A.L. Farley (for Province)  In chief by Mr. Goldie  1 THE WITNESS:  I believe it is spelled, my lord, T-i-g-u-e-x.  2 MR. GOLDIE:  May that be marked as 1149-2, my lord.  3 THE COURT:  Yes.  There is a California lady that had the same  4 name.  5 MR. GOLDIE:  Oh, yes.  Also discovered by Coronado.  6  7 (EXHIBIT 1149-2 - COPY OF MAP ENTITLED OBIS TERRAE  8 COMPENDIOSA DESCRIPTIO, RUMOLD MERCATOR.  9 Source:  ACML)  10  11 MR. GOLDIE:  12 Q   Now, you have the section in your report entitled  13 Geographic Knowledge Related to the Search for a  14 Northwest Passage.  Would you like to summarize what  15 you have stated there by reference to the relevant  16 maps?  17 A   Yes.  By introduction to this section I'd like to  18 suggest that, despite a growing awareness of the  19 extent of the land barrier between the Atlantic and  20 Pacific Oceans or the Atlantic and the South Sea,  21 Europeans and especially the British continued to seek  22 a water passage that would provide them with direct  23 access to the South Sea which for trade purposes would  24 have been important.  And among the names that come to  25 mind in that context, Humphrey Gilbert, Richard  26 Hakluyt, Henry Briggs certainly are notable  27 proponents.  And map 3 in the folio of maps  2 8 accompanying Appendix A is a map by Briggs, it is  29 dated 1625, and I believe it to be notable in at least  30 three respects:  Firstly, it shows the cartographic  31 results of early English exploration into Hudson Bay,  32 the expeditions into Hudson Bay, so that's one of the  33 things reflected in the map.  Secondly, it  34 interprets -- in the statements on the map below  35 Hudson Bay, it interprets the tidal observations taken  36 in the bay indicating the existence of a passage, a  37 passage from the Atlantic to the Pacific.  So that's  38 the second point concerning the map.  And the third  39 point that I believe to be marginally -- at least  40 marginally relevant is that California now appears as  41 an island, so that that representation can only be  42 considered as retrograde.  The main point is the point  43 2, concerning interpretation of tidal information as  44 existing -- as illustrating the existence of an  45 inter-oceanic water way.  46 Q   I take it that that information with respect to tides  47 then supported the notion that there was northwest 19723  A.L. Farley (for Province)  In chief by Mr. Goldie  1 passage?  2 A   Yes.  3 MR. GOLDIE:  Yes, thank you.  All right.  4 THE COURT:  Why would that be?  5 THE WITNESS:  My lord, I think that —  6 THE COURT:  What I mean is why does it suggest that?  We have  7 got Hudson's Bay here so they knew there was a direct  8 water connection between the Atlantic and Hudson's  9 Bay.  Why did it have to mean there was also a  10 connection to the Pacific?  11 THE WITNESS:  This is what the explorers were seeking and the  12 merchants who backed them financially in Britain, they  13 were seeking the discovery of a route that would lead  14 through the continent of America to the South Sea.  15 MR. GOLDIE:  16 Q   I think his lordship's question was, though, why does  17 the recording of tidal information infer that that  18 route may be present?  Aren't there tides in Hudson's  19 Bay stemming from its connection with the Atlantic?  20 A   Yes, yes.  My apology, my lord, I missed the thrust of  21 the question.  Yes, certainly there is tidal activity  22 in Hudson Bay, but Briggs interpreted that information  23 at least in part to suggest that there was a flow  24 in -- an additional flow of water from the Pacific to  25 Hudson Bay.  Indeed he says here:  26  27 "In the Bottome of Hudsons bay where he wintred  28 y height of the tyde was but two foote, and in the  29 bottome of Fretum Davis. . .  30  31 that's Davis Strait:  32  33 "...was found by M. Baffin to be but one foote,  34 whereas by the nearenes of the South Sea in Porte  35 Nelson, it was constantly 15 foote or more."  36  37 So the implication there is that Briggs thought that  38 there was a waterway that would carry sufficient  39 volume of water into Hudson Bay to affect the tides to  40 that degree.  As it turns out to have been quite a  41 fallacious interpretation.  42 THE COURT:  Port Nelson is where?  43 THE WITNESS:  On the — I am not sure if it's shown on this map.  44 THE COURT:  The Hudson's Bay.  45 THE WITNESS:  But it's -- on this map one sees two prongs if you  46 will, southerly extensions.  47 THE COURT:  To James Bay? 19724  A.L. Farley (for Province)  In chief by Mr. Goldie  1 THE WITNESS:  Of Hudson Bay, and it would be on the western  2 most -- the westerly of those two.  3 THE COURT:  All right.  Should we adjourn?  4 MR. GOLDIE:  Thank you, my lord.  5 THE COURT:  Ten o'clock tomorrow morning.  6 THE REGISTRAR:  Order in court.  Court stands adjourned until  7 ten o'clock tomorrow morning.  8  9 (PROCEEDINGS ADJOURNED AT 4:05 p.m. TO SEPT. 19, 1989)  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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