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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-20] British Columbia. Supreme Court Oct 20, 1989

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 21170  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Vancouver B.C.  2 October 20, 1989.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia this  7 20th day of October, 1989.  In the matter of  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lord.  10  11 DAVID RICARDO WILLIAMS, resumed:  12  13 THE REGISTRAR:  May I remind you, sir, you are still under oath?  14 A   Yes.  15 THE REGISTRAR:  Thank you.  And would you state your name for  16 the record, please?  17 A   David Ricardo Williams.  18 THE REGISTRAR:  Thank you, sir.  19 THE COURT:  The Chief Justice asked me to extend his regrets and  20 apologize, gentlemen, for detaining me.  It's all his  21 fault.  Mr. Adams.  22 MR. ADAMS:  Thank you, my lord.  A couple of preliminary  23 matters, my lord.  First of all, yesterday the witness  24 had generously offered, and I had accepted the offer,  25 to produce such of Ms. Kurz' material as were not  26 privileged and I wonder if my friend can indicate when  27 that material will be forthcoming.  28 MR. GOLDIE:  My lord, I am going to object to its production.  29 Ms. Kurz' reports do not constitute a source upon  30 which Mr. Williams relies.  He relied upon his own  31 research.  She's not a primary authority or a  32 secondary authority which he cites in support of his  33 conclusions.  She constitutes no greater -- has no  34 greater standing, if I may put it that way, without  35 any -- in any derogating from her abilities, no  36 greater standing than a newspaper report or a book  37 which suggests a line of inquiry, and I would,  38 accordingly, object to grounds of relevance.  As to  39 its production, and I submit, my lord, that it's such  40 a work or a series of reports do not fall within the  41 area compendiously described as work product.  There  42 are no -- as I say Mr. Williams didn't rely upon that,  43 so that's not a source of his -- of his work.  44 THE COURT:  Well, let me see if I can sort out some concepts  45 here.  This lady is -- was employed by or instructed  46 by the Province to do historical research.  47 MR. GOLDIE:  She was -- she was instructed by my firm to explore 21171  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 sources and report on sources of information which  2 appear to have some relevance to this lawsuit at a  3 time when we were having considerable difficulty in  4 determining what the issues were.  5 THE COURT:  Now, then, if she's — if she's equated to a  6 potential expert witness, her -- the product of her  7 research would be privileged until she went into the  8 box, wouldn't it?  9 MR. GOLDIE:  That's correct.  10 THE COURT:  And then where the circles overlap is where the  11 witness was exposed or exposed himself to her  12 research.  13 MR. GOLDIE:  And it became part of his work product or it was a  14 source upon which he relied.  But the letters between  15 counsel and the witness are now part of what he  16 must -- part of what he must disclose, because of the  17 possible affect those letters might have on his  18 opinion.  That's independent, but all else is -- has  19 to be referable to the sources upon which he relies.  20 Now, if he had said I rely upon Ms. Kurz' research and  21 her opinion with respect to a certain document, that's  22 a source.  But he doesn't rely upon that and when Ms.  23 Kurz says there is -- there is a book about the  24 Collins overland telegraph which was published in  25 1938, that doesn't become a source; unless Mr.  26 Williams goes to that book, then it becomes the  27 source.  As I say, there are basically two grounds  28 upon which I make my objection.  The first is  29 relevance.  The second is that it lies outside the  30 area of what the witness can be tested on as a source  31 of information.  How can -- how can Mr. Williams be  32 cross-examined on anything unless it's part of his  33 work product?  And he has stated that he did not rely  34 upon Ms. Kurz for opinions or conclusions.  If I'm --  35 if I am walking down the street and somebody says to  36 me, Say, you ought to read a newspaper article on  37 something.  38 THE COURT:  You should see what's in the Globe and Mail this  39 morning.  40 MR. GOLDIE:  Yes.  And I without going to that newspaper article  41 make an assertion in a court of law and say, Well,  42 it's in the Globe and Mail because Mr. so and so told  43 me that, then my source doesn't become the Globe and  44 Mail.  My source is Mr. so and so.  And that's not  45 what this witness has said.  4 6 THE COURT:  Can I be reminded, do counsel have it convenient or  47 in their memory better than mine to what Mr. Williams 21172  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 said about Ms. Kurz yesterday?  2 MR. ADAMS:  Yes, my lord.  3 MR. GOLDIE:  Yes.  It's at page 21112.  4 MR. RUSH:  And 11.  5 MR. GOLDIE:  My friend picked up her name.  There is a reference  6 in the correspondence to a person named Leslie Kurz.  7 That's 21111, beginning at line 18, and he says:  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  "She again, I believe, is a researcher engaged  by the Provincial Attorney-General.  Q   And what part, if any, did she play in the  collection of your documents?  A   None."  MR. ADAMS:  And then he corrects himself, my lord.  THE COURT:  Yes.  Yes.  MR. GOLDIE:  " -- she amassed a collection of documents  which I read or certainly looked -- read  indeed, but I don't think have -- I don't think  I have -- excuse me -- included in any of my  documents lists any material which she has  collected."  So it's -- she's -- so far as he's concerned she's not  the primary or secondary source of his opinions.  He  says on page 21112:  "There -- there was -- there was some material  in her -- there was -- I recall there was in  her material some items which I myself already  had.  In one or two instances,  did not use."  The other material I  THE COURT  MR. ADAMS  So we are very far afield from the work product of an  expert witness.  And I would make the same objection  if my friend asked for the work of Mary Jane Jones who  is the next person that crops up in the  correspondence.  I can tell your lordship that a  number of names crop up in the correspondence.  Some  of them dead.  Yes.  All right.  Thank you.  Mr. Adams.  Well, my lord, my friend has read some but not all  of the discussion with the witness. 21173  D. R. Williams (for Province)  Cross-exam by Mr. Adams  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. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  : Well, I have read the rest of page 1111 and on into  the end of my own interjection at line 27 on the next  page.  :  Yes.  What I call your lordship's particular  attention to is the fact that the witness yesterday  believed he had this material here in the courtroom  with him.  Now he turns out to have been mistaken in  that belief.  :  Yes.  :  But in my respectful submission there is some reason  to infer that this material is in the witness' mind in  some fashion connected with the opinion he's rendered  and that's why he thinks he is carrying the material  around with him when he comes to give evidence.  :  Well, he says at line 6 or 5:  "I would have to look at her material to give  you a precise answer, but the fact is I did not  use it.  There was -- there was -- there was  some material in her -- there was -- I recall  that there was in her material some items which  I myself already had."  :  Yes.  And if "use," my lord, is understood in the  sense of rely for an opinion, my friend may be  correct.  But in my submission the category of what's  produceable is wider than what the witness decides to  rely on.  There is something that he has considered he  may have made a mistake in failing to include it or to  comment on it and in my submission I should have an  opportunity to know whether that material has been  considered and ought to have been included.  And I  refer to your lordship's ruling of November 7, 1988 at  page ten where you say:  "It is settled law that anything related to the  litigation in the possession of the witness  must be produced for inspection unless a claim  to continued privilege is properly made.  This  would include letters of instruction, fee  agreements, written communication from the  party or its agents or lawyers relating to the  assignment, memos and drafts and any other  written material which has or might have been  considered by the witness preparing his report  or opinion or evidence." 21174  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  D. R. Williams (for Province)  Cross-exam by Mr. Adams  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  And in my submission this material, so far as I know  about it from the witness, is squarely in that  category.  Well, is it, Mr. Adams?  He said, "I didn't use it."  But he doesn't say, my lord, that he didn't consider  it.  Oh, well.  I think that's shaving the roast of beef  too thin, isn't it?  I am sure that's semantical.  He says so on page 21111 at line 31.  21111.  111?  Yes.  I read or certainly looked  there is no -- "  read indeed  "-- she amassed a collection of documents which  I read or certainly looked -- read indeed, but  I don't think I have included in any of my  document lists any material which she had  collected."  Now, in my submission the fact that the witness  chooses not to include the material in his document  list doesn't insulate him from having considered the  material.  MR. GOLDIE:  Well, it's the documents that he read.  MR. ADAMS:  And I also refer your lordship to 111 at line 21 and  2 when he was asked, "Is that someone you know?"  And  the answer was, "I have met her."  Now, I didn't  explore that further, because we got to the material  and the witness volunteered it.  THE COURT:  Yes.  I do not think I am going to order this  material be produced.  The breadth of the present  practice is exceedingly broad, but there has to be  limits to it and when the witness says that my  attention was directed to some material, looked at it,  I didn't use it, it seems to me that the inquiry ought  to stop there, otherwise it seems to me that the scope  of the inquiry is even broader than it should be.  If  the language that I used in the ruling to which Mr.  Adams referred goes so far as to include this  material, then I think I have not stated the  proposition as precisely as I should have.  I think  that what is required to be produced is anything that  the witness uses and relies upon or anything that may 21175  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  MR.  MR.  THE  MR.  THE  MR.  THE  MR.  MR.  MR.  THE  MR.  16 and  have to correct  affect his credibility, but when he says I looked at  this material, it was brought to my attention, I  looked at it and I didn't use it, I think that's the  end of the inquiry.  ADAMS:  My lord, I have sets of tabs for volume --  COURT:  Thank you.  ADAMS: -- one of my cross-examination that I would like to  hand up. They go from 16 to 31. I don't expect that  we will get anywhere near as far as 31.  GOLDIE:  You will have to give us a new volume if you do  that.  ADAMS:  I would.  COURT:  There is just two, aren't there, Mr. Adams?  ADAMS:  I am sorry, my lord?  COURT:  Just two, 16 and 17?  ADAMS:  No.  It goes right through to 31, my lord.  17 are already in at tab --  COURT:  Yes.  All right.  GOLDIE:  What's your 17?  ADAMS:  17 is the transcript.  GOLDIE:  Oh, yes.  COURT:  All right.  Thank you.  ADAMS:  While I'm on this binder, my lord, I  something I said yesterday with respect to 1172-16,  which was the field letter.  I believe I indicated it  would come from the Church Missionary Society material  in the Vancouver School of Theology library and in  fact I am instructed it came from the main University  of British Columbia library but same source, Church  Missionary Society papers.  THE COURT:  Main library at U.B.C.?  MR. ADAMS:  Yes.  THE COURT:  Thank you.  CROSS-EXAMINATION BY MR. MR. ADAMS (Cont'd):  Q   Mr. Williams, you will recall that late in the day  yesterday we were talking about the sometime Indian  constable, Big Louis?  Yes.  And I wonder if you could refer, please, to page 13 of  your opinion summary.  Which is Exhibit 1173.  Yes.  And there at the bottom of page 13 having referred to  Big Louis you quote from a 1890 letter of Mr.  Fitzstubbs?  Yes.  Praising Big Louis in his devotion to the law?  A  Q  A  Q  A  Q 21176  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  A  2  Q  3  4  5  A  6  Q  7  MR. GOLDI  8  A  9  10  MR. ADAMS  11  Q  12  13  A  14  Q  15  16  17  18  A  19  Q  20  21  22  23  24  25  26  27  28  A  29  Q  30  31  A  32  Q  33  34  35  A  36  Q  37  38  39  A  40  41  42  Q  43  A  44  45  MR. ADAMS  46  47  Yes.  All right.  Now, when you included that quotation you  were aware, weren't you, that Mr. Loring had  specifically responded to that letter?  The 1890 letter?  Yes.  £:  Perhaps we should get that in front of us.  I would like to see the letter, Mr. Adams, that you  refer to of Mr. Loring.  Well, let me ask you to look in the cross-examination  binder Volume 1 at tab 2 at page 28.  Yes.  And there under the heading "Indian Unrest 1889" in  this extract from your working papers 19 lines from  the bottom, so about three-fifths of the way down you  will see you say, "Loring, on the other hand,"?  Oh, yes.  "... produced statements from other persons  present who said that Big Louis had encouraged  defiance of the potlatch law, and Loring stated  that he himself had heard Louis say that at  both October meetings, at which Fitzstubbs was  not present."?  Right.  And then you say that dispute between Fitzstubbs and  Loring was not resolved?  Right.  Now, I take it you were looking at a document when you  said that Loring had produced statements from other  persons present, etc.?  Yes.  And were you aware that that was a specific response  to the Fitzstubbs 1890 letter that you quote on page  13?  I cannot now recall being specifically aware of it,  but I made the statement in that report, I must have  seen it.  All right.  There were statements from other persons who were at  the meeting on this subject.  :   My lord, I am handing up a document which is an  extract from the Attorney General of British  Columbia's document 4783.  If that could be shown to 21177  D. R. Williams (for Province)  Cross-exam by Mr. Adams  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  MR.  THE  MR.  COURT  ADAMS  COURT  ADAMS  Q  A  Q  the witness, please.  This isn't in previously?  We will come to that, my lord.  All right.  Thank you.  It's not.  A  Q  A  Now, Mr. Williams, if you could first look just at the  cover page of that document that has the number 4783  on it?  Yes.  You will see the description there:  "Copy of DIA file entitled 'Babine agency -  Correspondence regarding the impediments to  enforce law and order among the Indians... "  Yes.  Do you recall reviewing that file?  At the moment I cannot say that I recall it, no.  I  haven't seen the document yet.  All right.  Now, I have here the complete 4783, which  includes this letter and I have not, my lord, made  copies of this.  But it includes the -- Mr. Loring's  letter of October 12, 1889 which we talked about  yesterday?  Yes.  And it includes some what I might describe as higher  level bureaucratic correspondence about what to do  about the reports of Louis' activities?  Do you recall  seeing some of that?  I don't.  A clerk of the Privy Council writing to the  Superintendent General of Indians affairs and Mr.  Fitzstubbs -- I am sorry, Mr. Field writing to Mr.  Fitzstubbs, you had referred to that as part of your  evidence in chief?  A   Yes.  Q   Yes.  And Mr. Fitzstubbs letter of March 13, 1890.  MR. GOLDIE:  Excuse me.  Could we have a copy?  The witness  should have that in front of him.  MR. ADAMS:  Well, my lord, this is one of the witness'  documents.  MR. GOLDIE:  No.  I am asking to have the documents placed in  front of the witness so he can follow you.  MR. ADAMS:  Yes.  Well, perhaps you can look at tab 79C of your  documents and that will be in Volume 4 and that's  Exhibit 1179.  THE COURT:  I am sorry, Mr. Adams, what tab number, please?  A  Q  A  Q 2117?  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  MR.  ADAMS  2  THE  COURT  3  A  4  MR.  ADAMS  5  Q  6  7  MR.  GOLDI  8  9  MR.  ADAMS  10  MR.  GOLDI  11  12  MR.  ADAMS  13  14  15  MR.  GOLDI  16  17  18  19  20  MR.  ADAMS  21  THE  COURT  22  23  MR.  ADAMS  24  25  26  27  THE  COURT  28  MR.  ADAMS  29  Q  30  31  32  33  THE  COURT  34  A  35  THE  COURT  36  A  37  38  MR.  ADAMS  39  Q  40  41  42  43  44  45  46  47  A  It's 79C, my lord.  Yes.  Yes.  Now, I just want to show you -- I will show my friend  first.  £:  Well, that's not a complete set of the documents  you are referring to.  :  I understand that, but --  £:  Could you place those in front of the witness,  please.  :  What I am going to ask the witness to do is to tell  me that this is the same letter as he included in his  documents.  £:  Well, that's fine, but my friend has referred the  witness to a series of documents and before he answers  any further questions I think he should have those  documents in front of him.  Especially if he's going  to be asked to identify any of them.  :  Well, my lord --  :  Well, is there any problem of putting them before  him?  :  I only have one copy, my lord.  It's an extensive  document.  The only ones I want to ask him about are  the ones that I have just put in front of him and the  one that he included in his own materials.  :  All right.  And I simply wanted to ask you, Mr. Williams, whether  this document dated March 13, 1890, an extract from  B.C., document 4783, is the same as the document you  included under tab 79C?  :  Well, it's got a different date, hasn't it?  This is not -- I am sorry, 79C?  :  79 --  The document you have shown me of March 13, 1890 is  not the document which I have at tab 7 9C.  I am sorry.  Let me back up for a second.  Yes.  I am  sorry, my lord, I don't have the tab reference and I  am just proceeding on the basis of the document that I  have just put in front of the witness, the extract.  And that is the July 5, 1890 letter from Mr. Loring to  Mr. Vowell.  And where I had begun, Mr. Williams, was  asking you if you recall having seen that document  before?  If I may read it.  Yes, I have -- I think I have seen 21179  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  Q  3  4  A  5  6  Q  7  8  9  10  A  11  12  13  Q  14  15  A  16  Q  17  A  18  19  THE COURT  20  21  MR. ADAMS  22  Q  23  24  A  25  Q  26  27  A  28  Q  29  30  31  A  32  Q  33  34  A  35  Q  36  37  38  A  39  Q  40  41  42  43  44  45  46  47  this document.  I think I have read it.  All right.  Had you seen it at the time that you wrote  your opinion?  I don't think I had seen it in March of 1987.  I think  I saw it subsequently.  You will agree with me, will you, that it appears to  be a reply to Mr. Fitzstubbs' letter of March 13, 1890  that he refers to that in the first four or five lines  on page one?  Yes.  I am not -- I am not sure of the date of  Fitzstubbs letter, but yes, it seems to be in reply of  one written to Fitzstubbs, yes.  And if you look on page 54 of your opinion report,  document 17, opposite page --  Excuse me.  -- 13.  Please, there is not much room to manoeuvre in this  witness box.  What page?  :  The witnesses aren't expected to have room to  manoeuvre in the witness box, Mr. Williams.  Page 54, which is your references to the opinion  summary.  Yes.  And document 17, opposite page 13, in the middle of  the page?  Yes.  And you say there in your note Fitzstubbs spoke of Big  Louis in a letter to the Attorney General dated March  13, 1890 and you give the reference?  Yes.  That's the letter you are quoting on page 13, isn't  it?  I believe so.  Yes.  All right.  And you recognize then, do you, Mr.  Loring's letter as a directory response to the letter  from which you quote?  Yes.  All right.  And this is what you will recall Mr.  Loring having said beginning -- well, at the beginning  of the letter he says he is replying to Captain  Fitzstubbs of March 13, 1890:  "... as for the reasons of having appointed  Indian Louis as Constable, of which of one of  the reasons is, that the white population from  the mouth of the Skeena to Peace river gave him 21180  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 a very good character"?  2  3 A   Yes.  4 Q   And that's the Fitzstubbs, part of the Fitzstubbs'  5 quotation, isn't it?  6 A   Yes.  7 Q   All right.  And Mr. Loring says this, beginning in the  8 second paragraph:  9  10 "In reply I must state, that Louis is known to  11 but a very few white men, as he stayed in the  12 Interior nearly all his time, committing  13 depredations in the Sicanee Territory with  14 other few Kit-khsuns."  15  16 A   Yeah.  17 Q  18  19 "In explanation I must note that a few  20 malcontents of Kit-khsuns invest -- "  21  22 Or "infest," depending on whether you believe the  23 typed version.  24  25 A   I think he probably means infest.  2 6 Q   All right.  27  28 "-- the Sicanee Country to reap a rich harvest  29 in beaver, and to gain their purpose not even  30 stop in destroying the Beaver dams which causes  31 irreparable loss to the Siccanees, and  32 bloodshed will following sooner or later on  33 that account.  A salary of $60.00 a month and  34 nothing to do are the means of his being at  35 Hazelton.  By the Indians he is despised for  36 some reason or other.  He gave out, that he was  37 saving, in order to give the grandest potlach  38 ever known of on the Skeena River."  39  40 Now, let me ask you to go down to the last paragraph  41 on page two:  42  43 "Furthermore that in December 1888 Louis had  44 shown much loyalty and pluck in arresting an  45 Indian  — "  46  47 And there again he's referring to Fitzstubbs' 21181  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 comments, is he not?  2 A   Yes.  3 Q   All right.  4  5 "-- an Indian Pacht charged with murder, having  6 on that occasion confronted and overcome the  7 physical opposition of his own people and their  8 assembled guests.  If this assertion was made  9 to the Indians it would fill them with disgust  10 and ridicule the idea as stated above.  As  11 nearly every Indian on the river knows, that  12 Pacht nearly dead with an abscess in his  13 side -- "  14  15 A   Oh.  Yes.  There is no doubt whatever I have read this  16 letter.  17 Q   Yes.  18  19 "-- since succumbed to the malady -- "  20  21 A   That certainly cements it.  22 Q   All right.  23  24 " -- and was hunted Vendetta Lake by the  25 opposite faction of young men, while he had no  26 one to side with him but his old mother.  Pacht  27 told all the Indians on his way down to  28 Hazelton from Kish ga gash, that he must have  29 medicine and was tired of being hunted about,  30 sought refuge in giving him himself up.  Pacht  31 staying at Kits-pioux, and Louis as usual at  32 ending a potlatch going on, heard of Pacht's  33 presence and persuaded him to come to Hazelton,  34 as there was a reward offered.  The only  35 objection raised by Pacht was, as stated by  36 those present, that he was on his way and  37 rather go alone.  The only opposition if any  38 was by some old women giving their fears that  39 he might be hanged, to which Pacht remarked  40 that he was sick and dying by inches and was  41 not given even rest enough to sleep.  As to  42 Louis' prudence, adherence to law, and order,  43 etc. I may make mention, that some Christian  44 Indians came down from Lower Lakalsap and laid  45 the complaint that Louis with some followers  46 took possession of the next house to the one  47 they held divine services in and started a 21182  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 gambling ring, and with sticks, tins and  2 shouting interrupted their service."  3  4 And over on page four you will see that there are  5 further complaints against Louis that Mr. Loring  6 either makes or reports?  7 A   Yes.  8 Q   And he goes on in the middle of page four:  9  10 "As to Louis having done no more, than to  11 deliver the message entrusted to him by his  12 Chiefs."  13  14 And again, you understand that as a reference to  15 Captain Fitzstubbs' comments?  16 A   I don't know.  17 Q   You don't recall that being included in the document  18 you are quoting from on page 13?  19 MR. GOLDIE:  Well, let's get that in front of us.  20 A   I — you'll have to —  21 MR. GOLDIE:  It — it's in Mr. Williams' collection.  22 MR. ADAMS:   Yes.  I am afraid, my lord, I don't have a tab  23 number for that in Mr. Williams' collection.  24 MR. GOLDIE:  All right.  Let's have it.  25 MR. GOLDIE:  I think —  26 A   It may be tab 34C.  27 MR. GOLDIE:  Yes.  I think that's it, my lord.  28 A   It's tab 34C, my lord.  2 9 THE COURT:  Thank you.  30 A  Volume 3 of my documents.  31 MR. ADAMS:  32 Q   Then it appears that it's in twice, my lord, because  33 the same letter seems to be --  34 A  Well, I can read the passage, Mr. Adams, from  35 Fitzstubbs letter from March 13, 1890, tab 34.  See,  36 he says, Fitzstubbs says "of a charge by Mrs. Loring  37 that Louis, Big Louis had spoken disrespectfully to  38 Mr. Loring.  Fitzstubbs says, and I quote:  39  40 "I immediately investigated the charge and came  41 to the conclusion that the constable had not  42 done more than deliver the message entrusted to  43 him by his chiefs."  44  45 Q   Yes.  And that —  4 6 A   "And I so informed Mrs. Loring."  So that when Loring  47 himself in this passage on page four talks about the 21183  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 chiefs, he's talking about the village chiefs, not Mr.  2 Fitzstubbs as a chief.  3 Q   Oh, I understand that.  What I ask you to confirm now  4 is that on page four when Mr. Loring refers to Louis  5 delivering the message entrusted to him by his chiefs  6 he's refering to that comment of Captain Fitzstubbs?  7 A   That's right.  8 Q   All right.  And, my lord, the same document is in Mr.  9 Williams' materials at tab 72.  10 A   72?  11 Q   That is the Fitzstubbs letter from which the witness  12 just read.  13 A   I am sorry, Mr. Adams, I missed you did you say tab  14 72?  15 Q   Yes.  The one you identified at 34C is also at 72.  16 A   I see.  Right.  17 Q   All right.  Carrying on in Mr. Loring's letter of July  18 5, 1890 he says in the middle of page four:  19  20 "Gh'ail has been at Blackwater Lake for the  21 last 2 years -- "  22  23 And you understand that to be a reference to a Kispiox  24 chief?  25 A   Yes.  2 6 Q   All right.  27  28 "-- and did not even know of my existence or of  2 9 my coming.  With the most diligent enquiry am  30 not able to find one Indian who knows anything  31 about a message."  32  33 And then in the last paragraph on page four he says:  34  35 "I would have refrained from making mention of  36 the complaint in my letter of Oct. 12, '89 if  37 Capt. Fitzstubbs had paid any attention to my  38 request after complaining to him in person to  39 wit:  To question Louis in my presence, and to  40 reprimand the same, if reprimand due him, in my  41 presence.  I found with certainty since that  42 Capt. Fitzstubbs was not in position to do so.  43 Instead of settling matters according to my  44 request, he went to work getting up affidavits,  45 not stating facts, but suiting the occasion and  46 a certain purpose.  It is not surprising they  47 were made out in the dark, without witness 21184  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 when, signature of a witness could easily have  2 been attained.  The whole of the transaction  3 would never come to my notice would have never  4 come to my notice only through spies of the  5 same being furnished me by the Department."  6  7 MR. GOLDIE:  "Copies" I think that is.  8 A   Yes.  Well, no.  It's -- I think it's spies.  9 MR. GOLDIE:  Well, that looks like —  10 A   I don't know.  11 MR. GOLDIE:  Looks like an "o" with the "c" left off.  12 A   Yes.  13 MR. ADAMS:  14 Q   Or maybe a "c" without the "o".  I can accept that.  15 And carrying on:  16  17 "In accordance with Capt. Fitzstubbs conscience  18 his case was a very weak one, and lacking  19 foundation in order to substantiate matters, to  20 bring into use a letter purporting to be  21 written privately, or unsolicited.  22 I am not at all surprised at Rev. Mr.  23 Fields eulogizing a person as a paragon of  24 sublime qualities and virtues -- "  25  26 And you have seen Mr. -- and referred to Mr. Fields'  27 letter in that connection."  28 A   Yes.  29 Q  30  31 "-- whom he was not in a position to know  32 officially, or figuratively speaking, outside  33 of his own house."  34  35 And the person being referred to there is Captain  36 Fitzstubbs, isn't it?  37 A   Yes.  38 Q  39  40 "If the Rev. Mr. Field would work more among  41 the people, he would gain the profit by being  42 better posted in giving his opinion."  43  44 Perhaps "opinions":  45  46 "As to his remarks about the Indians they are  47 ridiculously absurd." 21185  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2 And over onto page six in the middle of the page,  3 paragraph beginning:  4  5 "Hereby I am sending in refutation to what was  6 reported to have been said, the statements of  7 Mothe and of Kitspious Jim Holland is in the  8 mines.  I had Indians to come to my house  9 asking for me to make a statement and offering  10 their signatures, but did not think it  11 necessary."  12  13 And carrying on:  14  15 "I forgot to make mention in the matter of Rev.  16 W.H. Pierce I was not here at the time, but  17 Rev. W.H. Pierce of Kitse-gukla complained to  18 me that Capt. Fitzstubbs made an official  19 grievance out of a purely personal affair.  In  20 this that they had a religious meeting at  21 Hazelton and Capt. Fitzstubbs requested to see  22 a woman (a convert) which reverend W. H. Pierce  23 objected to except in the presence of two male  24 converts.  25 I can attest to the fact, that Capt.  26 Fitzstubbs' ambition is to ride a high horse  27 and to have no one stand in his way, or  28 question the end, that justifies the means.  I  2 9 have heard complaints made which out of  30 courtesy I deferred to a time, when a reserve  31 would exist, and closely define my charge of  32 the Indians.  I trust that truth will out as  33 water finds its level.  By truthful sources I  34 heard that Capt. Fitzstubbs before my coming  35 here told the Indians potlatching and  36 dog-eating was wrong and even against the law,  37 and changed his views on the subject after my  38 arrival, to that it was alright and sent words  39 to that effect broadcast, to keep doing as they  40 have been.  This the Indians cannot fathom.  41 They are confused.  Everything has been going  42 on smoothly since Capt. Fitzstubbs departure.  43 There are out two white men and their families  44 residing here.  Myself and family are absent  45 part of the time.  During the winter generally  46 a few miners are living here.  I should not  47 doubt that Capt. Fitzstubbs be hailed on his 21186  D. R. Williams (for Province)  Cross-exam by Mr. Adams  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  return as to a jovial good fellow.  I know by  good authority that he sat amongst the  dog-eaters with the dog-eaters band of yellow  bark about his -- "  Is that "big head"?  MR. GOLDIE:  "His head."  A   "His head."  MR. ADAMS:  " -- about his head and covered all over with  feathers.  Wherever I went in my travels I was told by  the Indians of their instructions not to mind  me.  While at Babine, the Rev. Father Marice --  It's M-a-r-i-c-e here.  "-- also told me that he was made aware of by  his Indians, that Capt. Fitzstubbs had said not  to mind the Indian Agent, and he would lead  them into trouble, etc."  A   Yes.  Q   Now, you will agree with me that that document is at  least highly relevant to the comments of Fitzstubbs  that you quoted on page 13 of your opinion summary?  A   I won't say it's highly relevant, but it certainly  refers to it, yes.  Q   It does more than refer to it, doesn't it?  A   I won't argue with you, yes.  It's a most interesting  letter.  Q   And it is a direct response to Fitzstubbs?  A   Yes.  With -- with whom at that time or for whom at  that time Loring obviously had a low regard as for  Captain -- the Reverend Mr. Field as well.  Q   Yes.  Now, are you able to tell me why no reference to  that letter occurs in your opinion report, in the  sources for your opinion report or in the documents  that have been tendered through you here?  A   Because I don't think -- in the scale of things I  don't think I would rely on what Mr. Loring says in  this letter.  I don't -- he's giving his version of an  event Fitzstubbs gave his version Mr. Loring two years 21187  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  Q  6  7  A  8  9  10  11  Q  12  13  14  15  16  17  18  19  A  20  21  22  23  24  Q  25  A  26  27  Q  28  29  THE  COURT  30  MR.  ADAMS  31  THE  COURT  32  THE  REGIS  33  34  35  36  37  MR.  ADAMS  38  Q  39  40  A  41  Q  42  43  A  44  Q  45  46  A  47  Q  later in a letter said that he had had four more  occasions to complain about Louis, but now he, Mr.  Loring, realized that he, Mr. Loring, was wrong, in  effect is what he said.  Well, you describe that in your evidence as recanting,  didn't you?  Yes.  Recanting, yes, and one adds up, reflects on  these things and in my judgment this did not affect my  view of the importance of Big Louis as a constable  at -- on salary at Hazelton.  Well, you'll agree with me that someone reading your  opinion summary and the Fitzstubbs letter that you did  include and looking through your entire document  collection and not finding any reference whatsoever to  this letter might be misled as to the state of the  historical evidence surrounding a number of things,  Big Louis, Loring, Fitzstubbs, all of which figure  largely in your opinion?  Uh-huh.  Well, I say no more than I did not -- you are  quite right I, did not refer to it.  I read it, I  weighed it.  I did not disclose every document that I  read or discuss, I should say I did not discuss every  document I read.  Yes.  And you didn't include this one either?  It was not in the list attached to my opinion in 1987,  correct.  March of 1987, yes.  All right.  Now, at Volume 3 of your documents,  Exhibit 1178, tab 34D.  Have you tendered this?  I haven't and I intend to, my lord.  All right.  18?  RAR:  Exhibit 1172, tab 18.  (EXHIBIT 1172-1?  Vowell)  Letter dated July 5, 1980, Loring to  And you recall, Mr. Williams, referring to your  evidence in chief to this letter?  Yes.  And this is the letter you are referring to when you  say that Loring later recanted?  Yes.  Now, from your documents in your report we didn't know  what he was recanting from, correct?  Well, I read what -- I can read what he said.  Well, let me ask you to answer my question first. 211?  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  MR.  GOLDIE  2  THE  COURT:  3  ]  4  MR.  ADAMS:  5  Q  6  7  A  8  Q  9  10  A  11  Q  12  13  14  i  15  16  A   '  17  18  Q  19  20  THE  COURT:  21  MR.  ADAMS:  22  Q  23  THE  COURT:  24  25  26  27  A  28  THE  COURT:  29  30  31  32  MR.  ADAMS:  33  34  THE  COURT:  35  1  36  MR.  ADAMS:  37  Q  38  39  40  A  41  42  Q  43  44  45  A  46  Q  47  That's what his answer is.  I think there is a serious potential for  misunderstanding here, Mr. Adams.  If you are having trouble recalling the letter, please  feel free to read it.  I have no trouble recalling the letter at all.  All right.  And is this the letter you are referring  to when you said that Loring had recanted?  Yes.  All right.  And then I had asked you to confirm that  from your report and your documents nobody could tell  what he would have been recanting from, because you  didn't include the Loring letter we have just dealt  with?  Well, in my report I did not refer to Mr. Loring's,  what I call Mr. Loring's recantation.  No, you didn't refer to the letter, which was tab  18 --  Yes.  -- that you say your tab 34D is a recantation of.  Well, Mr. Adams, the note that I have beside this  letter is "Loring originally opposed Big Louis but now  he is complimentary," but I don't know what the  witness --  That's what the gist of what I said, my lord.  I know Mr. Williams mentioned the word recanting  several times and perhaps in this context.  I can't  read this letter.  The part I have underlined looks  like he's being complimentary to Big Louis.  I will have to find the transcript reference for  your lordship.  Yes.  I would be glad if you could sometime.  It  doesn't have to be now.  Let me ask you this way, Mr. Williams:  You do say  that Loring recanted from the letter we have  considered, the one at tab 18 of Exhibit 1172?  I believe so.  I believe this is the letter in which  he does that, yes.  All right.  And this is the only document you are  aware of that you would describe as a recantation of  1172-18?  That's right.  All right.  And you have already referred to this, but  the middle paragraph of this letter I wonder if you 21189  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 could just read that through, please.  2 MR. GOLDIE:  That's what he was starting to read.  3 A  4  5 "It may seem paradoxical, but to my choice  6 there would be no Indian as well adapted to  7 answer the purpose as Big Louis.  I had  8 occasion once to disapprove of his conduct.  Of  9 late he has shown himself most trustworthy and  10 loyal to which the Honourable P. O'Reilly,  11 Indian Reserve Commissioner, is well cognizant  12 of."  13  14 MR. ADAMS:  15 Q   Now, you will agree with me that there is in that  16 passage no recantation of the earlier criticism of  17 Louis.  What there is, is there not is, is an  18 observation that Mr. Mr. Loring's opinion of late he  19 has shown himself in a certain light?  20 A   I take it as an acknowledgement by Loring that he was  21 wrong in his appraisal of Big Louis and his conduct.  22 Q   You don't see him in that document recanting his  23 criticisms of Captain Fitzstubbs?  24 A   He says nothing about Fitzstubbs, quite right.  25 Q   My lord, the transcript reference that I had  26 volunteered is in Volume 281.  This is to recanting at  27 20989 when, with reference to this document at 34D,  28 the witness said at line 24:  29  30 "Mr. Loring is now recanting.  He was at one  31 time opposed to Big Louis and didn't think much  32 of them."  33  34 So there is no recanting in this document to the  35 criticisms of Captain Fitzstubbs?  36 A   None.  37 Q   And you are not aware of a document in which Loring  38 does recant his criticisms of Captain Fitzstubbs?  39 A   No, I am not.  40 Q   Okay.  And you didn't see fit to include any reference  41 to that in your summary?  42 A   No, I did not.  43 Q   All right.  I wonder if you could go to page 16 of  44 your opinion summary, please.  And there towards the  45 bottom of page 16 you refer to Mr. Graham's  4 6 appointment at Omineca and then you quote some things  47 that he reported, and with respect to Lome Creek? 21190  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   All right.  And you quote him saying:  3  4 "Many of them — "  5  6 Referring to Indians from up and down the Skeena at  7 Lome Creek,  8  9 "Are selling lumber, building houses, and they  10 are treating the miners with respect."  11  12 A   Yes.  13 Q   And then a further quotation at the very bottom of the  14 page:  15  16 "The Indians are all peaceable and friendly  17 towards the miners here and along the Skeena  18 River."  19  20 A   Yes.  21 Q   Now, you didn't mean to suggest, did you, that that  22 1885 characterization of the relationship between  23 Indians and miners at Lome Creek was the only one  24 that had been made?  25 A   That the only one of what?  26 Q   You didn't mean to suggest that the miners had always  27 been treated with respect by the Indians or that the  28 Indians were always peaceable and friendly towards the  29 miners?  30 A   No, I did not mean -- I am speaking of the situation  31 as he reported it on June 20 of 1885.  32 Q   Yes.  Because you were aware that in September 1884  33 the Lome Creek miners had petitioned in connection  34 with the relationship between themselves and the  35 Skeena River Indians?  36 A   Yes.  37 Q   All right.  And I don't find a reference anywhere in  38 your summary to that petition, although you did  39 mention it in your evidence.  40 A   Yes.  41 Q   All right.  And the reference, I wonder if you could  42 look at Exhibit 1035, that is Dr. Galois' materials,  43 Volume 3 at tab 105, and particularly at pages 284 and  44 85 and you see some of the page numbers are cut off,  45 but 284 is visible.  46 THE REGISTRAR:  Tab 105?  This starts at tab —  01 of Volume 3.  47 MR. ADAMS:  Of Volume 3? 21191  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 THE REGISTRAR:  Yes.  What is the document headed up?  2 MR. ADAMS:  It will be a petition.  I am sorry, I may have the  3 page reference wrong.  It's page 281 in that document.  4 THE REGISTRAR:  Well, we have got 282.  5 A   Oh, I think I have got this somewhere.  Yes, I see the  6 document.  7 MR. ADAMS:   It will be the third page into the tab.  8 THE REGISTRAR:  All right.  This is it then.  9 MR. ADAMS:  10 Q   Do you recognize the document that appears there as  11 the Lome Creek miners' petition?  12 A   I am sorry, what page was it?  I was looking --  13 Q   281, which would be the third page into the tab.  14 A   Oh, yes.  The bottom of the page there.  Yes.  15 Q   Bottom right.  16 A   Yes.  17 Q   Dated 15th of September 1884?  18 A   Yes.  Yes.  19 Q   Now, you have a handwritten version of this in your  2 0 documents?  21 A   Yes.  22 Q   And it's at tab 56C in Exhibit 1178, Volume 3?  23 A   Yes.  24 Q   And in your evidence in chief you refer to this in the  25 following terms, Mr. Goldie asked you:  26  27 "And then 56c is an indication of the concern  28 of the white community, is it?"  29  30 And you answered:  31  32 "Yes.  People, indeed, yes.  It is actually  33 written for Lome Creek, but certainly in the  34 area."  35  36 A   Yes.  37 Q   And that was the extent of your reference --  38 A   Yes.  39 Q   -- to that document?  And the transcript reference, my  40 lord, is at Volume 282 page 21023 to 24.  41 A   Yes.  42 Q   Now, that evidence is all the attention that petition  43 gets in either your summary or in your evidence?  44 A   That's all I was -- as far as my evidence was  45 concerned that's all I was asked about.  46 Q   Yes.  And the petition itself says beginning at the  47 bottom of 281: 21192  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR. ADAMS  MR.  "The undersigned miners of Lome Creek, Skeena  River, beg most respectfully and earnestly to  call the attention of the Government to the  fact that the attitude of the Indians on the  Skeena River has become threatening and  dangerous to the lives of the men who are  trying to develop and open up the country.  The Indians have repeatedly threatened to  drive the miners from Lome Creek."  A   Yes.  Q   And if you go over the page 282 --  GOLDIE:  Well, I think it's relevant to read the rest of  that, my lord, because it provides the context of the  grounds.  Well, my lord, Mr. Goldie was -- my friend was  perfectly entitled to read any part of it he wished  when he had the witness refer to the document.  GOLDIE:  Well, I want to make it quite clear, my lord, that  the witness cannot be blamed for my shortcomings.  I  was referring to a number of documents and I did not  deem it necessary to have the witness read every  document.  That's my choice, not the witness'.  Well, my lord, I will have to ask for your direction  to that, because if I am to read to or have the  witness read every document that I want to refer him  to, we are going to be here for a very long time.  Well, you certainly do not have to do that.  The  evidence I find exceedingly difficult to follow both  in chief and cross-examination and I have followed as  best I can.  But referring to comparisons with  documents in different volumes and this process is one  that so far as I am concerned is counsel's way of  preparing themselves to make a submission.  I can  follow the general trend, but I do not think it is  necessary for the witness or counsel to leave  everything unspoken.  As Mr. Adams says, we will be  here forever if that was the case, and I think, Mr.  Adams, you have to do what you think you have to do in  order to prepare a record for the argument you will  later be submitting and the only problem is that the  witness is treated fairly in the sense that he has in  front of him what he needs to have in front of him in  order properly to respond to your inquiries.  And how  counsel proceed at this point is their choice.  MR. ADAMS  THE COURT  MR. ADAMS: 21193  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   Now, I had asked you, Mr. Williams, to go over the  2 page to 282 and simply to note that there are three  3 names there as signatories and 36 others?  4 A   Yes.  5 Q   Now, equally you were aware, were you not, in  6 formulating your opinion that in October of 1884 the  7 Gitwanga chiefs had written something about their  8 relationship with the miners at Lome Creek?  9 A   Yes.  10 Q   And can you confirm for me that the only place in your  11 opinion summary that you allude to the existence of  12 that petition is on page two of Exhibit 1173 and there  13 you say under large Roman numeral V, the first  14 definite hint by natives that they possess proprietary  15 rights in the land was in 1884?  16 A   Yes.  17 Q   And you were referring, were you not, to the Kitwanga  18 chiefs?  19 A   To that petition, yes.  20 Q   Yes.  And you can confirm for me that that's the only  21 mention that petition receives in your opinion  22 summary?  23 A   I believe so.  24 Q   All right.  25 A   But I certainly read it.  26 Q   And you will agree with me, if you recall, that  27 whereas in your opinion summary you characterize that  28 as a definite hint by natives that they possess  29 proprietary rights in the land, in your working papers  30 you characterize that same petition as an assertion of  31 title?  32 A   Yes.  33 Q   Yes.  And you will agree with me that calling it a  34 definite hint as opposed to an assertion of title  35 suggests a great softening of the effect?  36 A  Well, I accept as an assertion of title.  37 Q   All right.  And still in tab 105 of Dr. Galois' Volume  38 3, the Kitwanga chief's petition is reproduced there.  39 A  At page 284?  40 Q   Page 284 and 5.  41 A   Yes.  42 Q   And it's dated October 10, 1884?  43 A   Yes.  44 Q   And it says:  45  46 "We, the Chiefs and principal men of the  47 Kitwingach village, in meeting assembled, beg 21194  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 respectfully to address you on a subject which  2 we feel is one of deep importance to our own  3 welfare and that of our children."  4  5 A   Yes.  6 Q   And then going down three lines:  7  8 "From time immemorial the limits of the  9 district in which our hunting grounds are have  10 been well defined.  This district extends from  11 a rocky point called 'Andemane' some two and a  12 half or three miles above our village on the  13 Skeena River to a creek called 'Shequin-khaat,'  14 which empties into the Skeena about two miles  15 below Lome Creek.  We claim the ground on both  16 sides of the river, as well as the river within  17 these limits, and as all our hunting,  18 fruit-gathering and fishing operations are  19 carried on in this district, we can truly say  20 we are occupying it.  21 The district is not held unitedly by all  22 the members of the tribe, by is portioned out  23 among the several families, and no family as a  24 right to trespass on another's grounds: so that  25 if any one family is hindered from hunting on  26 their own ground, there is nowhere else for  27 them to go - they lose all the benefits they  28 derived from their hunting, as they cannot  29 follow the animals across the bounds into their  30 neighbours grounds.  We would liken this  31 district to an animal, and our village, which  32 is situated in it to the heart.  Lome Creek,  33 which is almost at the end of it, may be  34 likened to one of the animal's feet.  We feel  35 that the white men, by occupying this creek  36 are, as it were, cutting off a foot.  We know  37 that an animal may live without one foot, or  38 even without both feet, but we also know that  39 every such loss renders him helpless, and we  40 have no wish to remain inactive until we are  41 almost or quite helpless.  We have carefully  42 abstained from molesting the white men during  43 the past summer.  We felt that though we were  44 being wronged and robbed, as we had not given  45 you the time nor opportunity to help us, it  46 would not be right for us to take the matter  47 into our own hands.  Now we bring the matter 21195  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 before you, and respectfully call upon you to  2 prevent the inroads of any white men upon the  3 lands within the fore-named district."  4  5 And then a couple of lines later:  6  7 "We hold these lands by the best of all titles.  8 We have received them as the gift of the God of  9 Heaven to our forefathers, and we believe that  10 we cannot be derived of them by anything short  11 of direct injustice."  12  13 And then skipping down to six lines from the bottom:  14  15 "Please tell us distinctly whether or not you  16 are prepared to preserve the district we claim  17 from the inroads of the whites, and will keep  18 all white men off it.  19 We have arranged to hold another meeting  20 before the opening of spring, before which time  21 we hope to have your answer; if not, we will  22 then be obliged to take such measures on our  23 own account as we may consider to be necessary  24 for maintaining our lawful inheritance intact."  25  26 A   Yes.  27 Q   Now, are you able to explain to me and to his lordship  28 why you didn't see fit in your opinion summary or  29 indeed in your evidence to discuss that petition?  30 A   I was not asked to inquire into the history of the  31 assertion of the Indian title.  As I have said a  32 number of times, if I ran accross material which  33 related to it, I passed it on, but I was not asked to  34 pronounce upon it.  35 Q   Well —  36 A   This was -- this was obviously -- in 1884 there were  37 some difficulties between the Indians at Kitwanga and  38 the miners at Lome Creek, but evidently the year  39 following it had all died down and by 1887, I think it  40 was, which was the date of Graham's last letter on the  41 subject of relations between the Indians and the white  42 men in mining, everything was fine.  The Indians were  43 mining, the whites were mining and the whites were  44 complaining about Graham -- Graham's adjudication in a  45 particular dispute between the Indians in which he had  46 come down on the side of the Indians.  So in the  47 context of what I was doing this was obviously of 21196  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 interest, but I didn't think it bore on the task which  2 I had.  3 Q   Well, except, Mr. Williams, for two things, that you  4 have agreed with me now on a number of occasions that  5 assertions of Indian or aboriginal title are relevant  6 to the imposition and acceptance or non-acceptance of  7 law and order and that was your subject?  8 A   Yes.  Well, I certainly read this and considered it.  9 Q   And then in your opinion summary at page one, the  10 bottom of the first paragraph you say:  11  12 "My main conclusions, on which I shall  13 elaborate, are as follows:"  14  15 And when you go over to large Roman numeral V, one of  16 those main conclusions is the one that:  17  18 "The first definite hint by natives that they  19 possessed proprietary rights in the land was in  20 1884, and not until 1908 was there a full-blown  21 assertion of them by aboriginal title."  22  23 A   Yes, I believe that to be so.  24 Q   And it certainly indicates, does it not, that one of  25 your main conclusions was related to when and in what  26 fashion claims of aboriginal title and proprietary  27 rights were asserted by people in the lands claim  28 area?  29 A  Well, certainly I referred to it in the summary of my  30 opinion, but it's -- to me it's a statement of fact.  31 It's not -- I am not really giving an opinion there.  32 I think it is so, is it not, what I have said in  33 paragraph five on page two?  34 Q   We will explore that when we come to it, but --  35 A   See, there is nothing in the petition, for example,  36 about the Royal Proclamation and that was very much  37 part of the 1908 assertions of title.  38 Q   Well, it's clearly an assertion of the possession of  39 proprietary rights in the land.  4 0 A   No doubt.  41 MR. GOLDIE:  Well, I wonder, my lord, this discussion is going  42 to get into questions of law I am sure for which  43 ultimately are going to be for your lordship.  44 MR. ADAMS:  Well, my lord, I'm in the difficulty that I  45 suggested I might be in that I am cross-examining on  46 portions of the report that I have objected to, but  47 that's what the witness does say. 21197  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  THE  COURT  2  MR.  ADAMS  3  THE  COURT  4  5  6  7  8  9  10  MR.  ADAMS  11  Q  12  13  14  15  A  16  17  18  19  20  21  Q  22  23  A  24  25  26  27  28  Q  29  30  31  A  32  33  34  35  Q  36  A  37  Q  38  39  A  40  41  THE  COURT  42  MR.  ADAMS  43  44  THE  COURT  45  MR.  ADAMS  46  Q  47  Yes.  As a matter --  Well, you have put before him a document that you  suggest reflects on that fifth conclusion and he has  said what he said about it and you can put such other  documents in the same category, if any, as you may be  advised, but I am not sure if it can go a great deal  beyond that, but this is cross-examination and you can  pursue it if you think that you should.  Well, I only want to pursue one question and that's  this, Mr. Williams:  The petition from Kitwanga in  October of 1884 that we've just read through is a  great deal more than a hint, isn't it?  Well, when I wrote that what I meant was that it was  not as detailed or as full an assertion of title as  occurred 25 years later.  As I said, there is no  reference in here to the Royal Proclamation, but there  is certainly a definite suggestion of inheritance of  title from the God of Heaven, yes.  It's not just a suggestion, is it, either; it's a  full-blown assertion?  I don't think it's a full-blown assertion, because I  don't think there is any reference to the Royal  Proclamation in here as there was in later years and  to me what -- that was what I at least had in mind  when I used the word full-blown assertion.  So if I don't see a reference to the Royal  Proclamation, I am not seeing an assertion of  aboriginal title?  Oh, no, not at all.  You are seeing an assertion of  aboriginal title, but I don't think you are seeing a  full-blown assertion of aboriginal title as I use that  phrase in writing my report.  All right.  And it's not full-blown?  That's what I intend to mean by it.  It's not full-blown until I see a reference to the  Royal Proclamation?  That is how -- what I had in mind when I penned those  words.  :  Are you going on to something else, Mr. Adams?  :  I am still on the same document and I still have a  short question.  :  Yes, by all means.  And that is this.  On page 17 of your opinion summary  at the bottom of the page you quote Graham as saying 2119?  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 here with respect to the Kispiox people that they  2 depend on the government to protect them.  Do you see  3 that?  4 A   Yes.  5 Q   All right.  I want to ask you this.  6 A   Yes.  7 Q   Dependence on the government for protection is  8 something that is also reflected in that Kitwanga  9 petition of 1884, is it not?  10 A   They ask, yes, to -- indeed they say whether you are  11 prepared to preserve the district from the inroads of  12 the whites.  Is that the sort thing you mean?  13 Q   Yes.  That's the kind of protection at least the  14 Kitwanga chiefs in 1884 were looking for from the  15 government is, it not?  16 A  Apparently, yes.  17 MR. ADAMS:   All right.  That might be a good place to break, my  18 lord.  19 THE COURT:  All right.  Thank you.  20  21 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING BREAK)  22  23 I hereby certify the foregoing to be  24 a true and accurate transcript of the  25 proceedings herein to the best of my  26 skill and ability.  27  28 Laara Yardley, Official Reporter,  29 United Reporting Service Ltd.  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 21199  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 (Proceedings resumed following short recess)  2  3 CROSS-EXAMINATION BY MR. ADAMS: (Continued)  4  5 THE COURT:  Mr. Adams?  6 MR. ADAMS:  Thank you, my lord.  I was at page 16 of the opinion  7 summary, Exhibit 1173.  8 Q   Mr. Williams, in the quotation at the bottom of the  9 page from Graham, you have him saying, "We have a  10 number of Indians here from various tribes."  11 And that's at —  12 A   Yes.  13 Q   Lome Creek?  14 A   Yes.  15 Q   And I take it you can't tell me which tribes those  16 Indians were from?  17 A   No.  18 Q   Over on to page 17 you say at the top of the page,  19 that "in February, 1886 he visited Kitwanga, where the  20 chief told him he had received a letter from the  21 missionary, Robert Tomlinson, warning him that the  22 village lands might be lost, that is, taken up by the  23 white people."  24 What I want you to confirm for me, if you can,  25 please, is that neither Tomlinson's letter, which you  26 quote later on page 17, nor Graham's letter that you  27 quote on the bottom of 16, refers to village lands?  28 A  Well, I better have a look at the letter.  29 Q   Well, you quote the Tomlinson letter, do you not?  30 MR. GOLDIE:  But he wants to see the letter from -- you're  31 asking him a question about other than the extract of  32 the letter.  33 MR. ADAMS:  34 Q   If you go to the Galois documents, Exhibit 1035,  35 volume 4, tab 195.  And I think you will find --  36 MR. GOLDIE:  I would like to get the reference to Mr. Williams's  37 documents, my lord, if he could be given a minute.  38 A   Yes, I have seen this letter, Mr. Adams.  It was dealt  39 with by me, I think in my evidence at tab 15-B.  4 0 MR. ADAMS:  41 Q   And is that —  42 A   If I may -- sorry.  43 Q   One letter or both letters?  They are both together in  44 Dr. Galois's tab 195.  45 My lord, I might say the reason I am largely  46 confined to Dr. Galois's evidence documents, is that I  47 I only received the witness's after he had begun his 21200  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 evidence and I had already marked Dr. Galois's  2 documents to prepare the cross.  3 MR. GOLDIE:  Well, I have had that experience too, my lord.  4 THE COURT:  So have I.  I have had this with every witness.  5 MR. GOLDIE:  But the witness is being asked about a quotation  6 from his own document and I think he should be looking  7 at it.  8 THE COURT:  You mean from his —  9 MR. GOLDIE:  From his own material.  10 A   Yes, I have it, my lord.  11 MR. ADAMS:  12 Q   And you have had a chance to review both the Tomlinson  13 and the Graham letter?  14 A   Pardon?  15 Q   You have had a chance to review both the Tomlinson and  16 Graham letter?  17 A  A chance when, today?  18 Q   Yes.  19 A   No, I haven't reviewed it today.  20 Q   Well, my only question is to confirm for me that  21 village lands is your phrase and doesn't occur in  22 either of those documents?  23 A   I see.   Well, those words perhaps do not appear.  I  24 can't say because I haven't looked at the material but  25 I take it that that's what they were talking about.  26 Q   I can tell you that in Mr. Graham's letter, the  27 phrases he uses are "lands" and "their lands" and Mr.  28 Tomlinson's description you quote on page 17 of your  29 opinion summary, "your hunting and berry grounds"?  30 A  Well, you see, Tomlinson refers -- two of Mr.  31 Tomlinson's -- I quote now from the second page of  32 Graham's letter, "Two of Mr. Tomlinson's teachers were  33 up the river last summer with letters to all the  34 villages and interpreted to them that the government  35 wanted to take their lands and give to whites at  36 Kitseguecla..." and so on.  37 Q   You weren't suggesting that the lands, that "their  38 lands", the "their" is a reference to the Indians, is  39 it not?  40 A   Yes.  41 Q   And you weren't suggesting that the lands that the  42 Indians considered theirs were confined to those  43 around their villages?  44 A   I merely am quoting what Mr. Graham said and what Mr.  45 Tomlinson said.  46 Q   It's not your understanding that the lands the Indians  47 claimed were confined to the lands around their 21201  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1  2  A  3  4  5  6  Q  7  8  MR.  GOLDIE  9  10  11  12  13  1  14  MR.  ADAMS:  15  16  17  MR.  GOLDIE  18  THE  COURT:  19  MR.  ADAMS:  20  A  21  22  23  A  24  Q  25  26  27  A   '  28  29  1  30  31  32  Q  33  34  35  A  36  Q  37  38  39  A  40  41  42  43  44  Q  45  THE  COURT:  46  MR.  ADAMS:  47  A  villages, is it?  I see what you're getting at.  Well, I took it to be  village lands, lands around the villages, not -- but  the document, I suppose, speaks for itself.  What does  the document say?  Well, my question now goes to your awareness in  general.  :  Well, the witness has stated several times, my  lord, his position with respect to that.  And I don't  think that unless my friend wants to open a new  subject, what Mr. Williams's understanding about the  geographical extent of what is referred to in the  document, is of assistance.  Well, my lord, the question arises from the phrase  that the witness adopted and I am cross-examining him  on what the foundation for the phrase was.  :  I thought he --  I thought he had said that, but --  Yes, and I then asked another question, which is:  Independent of this document, you are aware that the  lands claimed by Indians in the claim territory are  not confined to the lands around their villages?  Yes, I am aware of that.  That is speaking as of 1886, the lands claimed by the  Indians were not confined to the lands around their  villages?  Well I can't -- I don't know.  The Kitwanga Petition  of 1884 talks about lands generally.  I find it very  difficult to say, to place geographical limits on what  was being talked about.  I can do no more than produce  the documents and comment on them.  Well, you knew, for instance, did you not, that as of  the early 1900s the Gitksan in particular had hunting  grounds at great distances from their villages?  I am not sure that I was aware of that.  Well, I wonder if you could refer to the cross-  examination binder, Exhibit 1172, at tab 13 to page  14, within that tab.  Yes, all right.  I now know what you're -- I now  understand the question and know what you're getting  at, yes.  I am not sure that I was aware of as of  1901, but certainly -- I better have a look at the tab  anyway.  Just look at the last four lines of page 14.  Page what?  14, my lord.  Tab, Mr. Adams, again, please? 21202  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 MR. ADAMS:  Tab 13, page 14.  It's the extract from your  2 Gunanoot book.  3 A   Yes, yes.  4 Q   And you write there, "The possession of hunting or  5 trapping grounds is very much a factor in the status  6 of individual families or crests."  And you are  7 speaking here of the Gitksan?  8 A   Yes.  9 Q   And "The Yal Crest held ancestral hunting grounds at  10 Bear Lake near the headwaters of the Skeena River  11 60 or 70 miles northeast of Hazelton and to the north  12 of Takla Lake"?  13 A   Yes.  14 Q   Going to page 18 of your opinion summary --  15 A   Yes.  16 Q   Again, you're speaking of Graham at Lome Creek?  17 A   Yes.  18 Q   And you quote him there speaking of the mining at  19 Lome Creek at the top of page 18, with respect to the  20 Indians saying, "many of their disputes and quarrels  21 they refer to the government to settle"?  22 A   Yes.  23 Q   And then you go on, "Later that same year because of  24 some  'dissatisfaction' namely the Indians at Hazelton  25 and Kitsequecla, asked them to go see them which he  26 did"?  27 A   Yes.  28 Q   And this is the proposition I want to put to you, you  29 don't know how many or what kinds of disputes which  30 Indians referred to the government to settle?  31 A   No, I can't categorize them.  32 Q   And you don't know what the dissatisfaction expressed  33 by the Indians at Hazelton and Kitseguecla was?  34 A   I have said in my report -- I said that I doubted if  35 it was a mining dispute.  36 Q   But you don't know what kind of dispute it was?  37 A   I do not.  38 Q   All right.  And you then draw the conclusion, at the  39 end of the first full paragraph on page 18, you say,  40 "The point is that he represented law and order and  41 was regarded in those places..." and there you are  42 referring to Hazelton and Kitseguecla?  43 A   Yes.  44 Q   "As well as Kitwanga and Lome Creek as the person to  45 administer it"?  46 A   Yes.  47 Q   What I want to suggest to you is that if you don't 21203  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 know how many disputes there are or what they are  2 about, and if you don't know what the dissatisfaction  3 is, you don't know whether you are seeing law and  4 order being administered by your definition?  5 A  Well, that may be your view of it, Mr. Adams, but  6 certainly was not my view of the documentary  7 references to his activities.  8 Q   And what is your view of it?  9 A   I have expressed it in my report.  10 Q   Yes.  And we have talked about the two things that you  11 apparently rely on to draw that conclusion, correct?  12 A   I am speaking of his settlement of disputes at Lome  13 Creek and I am speaking of some dissatisfaction, yes,  14 and whatever that was.  That's what -- I certainly  15 rely on that.  And other matters as well, which I  16 haven't stipulated, of course, that dispute in 1887,  17 as I referred to on one or two occasions, mining  18 dispute between Indians and whites.  19 MR. GOLDIE:  My lord, I am informed that this is an area that  20 Mr. Willms was advised -- I shouldn't say advised --  21 Mr. Willms decided not to pursue in the cross-  22 examination of Dr. Galois, because the concern  23 expressed, I think by your lordship, that by doing so  24 while there was an objection outstanding, he might, by  25 operation of law, have elected to take a course  26 inconsistent with his objections.  27 The reference is at Volume 241, page 17748.  And  28 Mr. Willms had started by proposing to put before the  29 witness, Dr. Galois, at that point, his summary, and  30 he had an outstanding objection, which is then --  31 well, it's outstanding at the time, with respect to  32 the report.  And your lordship observed at page 17748,  33 line 25:  "It seems to me that what your position, Mr.  34 Willms, certainly is, is that if you cross-examine and  35 you do so sufficiently to make some parts of this  36 exhibit admissable..."  now that's the summary that he  37 was talking about, "...and I would think at least the  38 parts that you cross-examine on would become  39 admissable, your objection to the report must, to that  40 extent at least, be compromised."  41 Now, I -- then there was a further discussion and  42 the end result of it was that at page 17751 Mr. Willms  43 withdrew the summary, and it's my understanding that  44 he abandoned certain lines of cross-examination  45 because it would compromise the position, as a matter  46 of law.  And I believe I am correct in saying that the  47 area that my friend is now on is very much that 21204  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1  2  3  4  ]  5  6  7  MR.  ADAMS:  8  9  MR.  GOLDIE  10  11  12  THE  COURT:  13  i  14  15  ]  16  MR.  GOLDIE  17  THE  COURT:  18  19  20  21  22  MR.  GOLDIE  23  24  THE  COURT:  25  26  MR.  GOLDIE  27  28  29  30  31  32  33  34  ]  35  THE  COURT:  36  ]  37  38  39  MR.  GOLDIE  40  THE  COURT:  41  MR.  GOLDIE  42  43  1  44  THE  COURT:  45  46  MR.  ADAMS:  47  Q  particular area.  Now, I am not too sure if I can provide your  lordship with much guidance, except to bring this to  my friend's attention, that he may be compromising the  objections that he has made to the admissibility of  the opinions in the summary report.  My lord, this isn't the passage that I had objected  to.  :  I appreciate that.  This is a passage that I am  instructed was one that Mr. Willms felt he could not  cross-examine on, Dr. Galois.  Well, I am not going to stop Mr. Adams because Mr.  Willms desisted.  I am reminded now of what you have  just brought to my attention, Mr. Goldie, I think I  mentioned the Protopappas case.  :  Your lordship did.  Which I am not sure is particularly relevant but was  in the general area.  But this cross-examination  started upon an understanding to which I believe both  you gentlemen subscribed -- to which both you  gentlemen subscribed.  :  I think I did, my lord, I said it would proceed on  the same basis as the other cross-examinations.  I took you to be saying that you were agreeing with  what your friend had said, Mr. Goldie.  :  That's correct.  That's correct.  My concern is  that having looked up the material, I find that your  lordship's observation was that the difficulty was  that as a matter of law, rather than as a matter of  objection, certain results would follow.  And I  thought it appropriate to bring this to your  lordship's attention because if that is correct then  there is nothing I can say that would preserve the  matter.  Well, I can only say this, that I am going to allow  Mr. Adams to proceed and unless I am given the most  powerful authority, I will not be imposing that  operation of law.  I think that --  :  I am, when I --  Some other court might but I am not.  :  I am thinking of the other consequence, that is  that if Mr. Willms may request the recall of Dr.  Galois .  I will be glad to hear him in that connection.  Go ahead, Mr. Adams.  Thank you, my lord.  What I was attempting to suggest to you, Mr. Williams, 21205  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 is that disputes, the nature of which you don't know,  2 involving Indians whom you can't identify, and  3 dissatisfaction which you can locate but you can't  4 identify, is a thin basis upon which to conclude that,  5 as you do, that Mr. Graham in four places represented  6 law and order and was regarded in those places as the  7 person to administer it?  8 A   I cannot agree it is a thin basis.  9 Q   That's an adequate basis as far as you are concerned?  10 A  As far as I am concerned, it is, yes.  11 Q   All right.  I wonder if you could go to page 20 of  12 your opinion summary, please.  13 A   Yes.  14 Q   This is the section you headed law and order, crime?  15 A   Yes.  16 Q   And you deal throughout this section with convictions  17 for crime?  18 A   Yes.  19 Q   Yes.  And what I want to ask you first is what do  20 crime statistics tell you which is relevant to the  21 subject of your opinion?  22 A   I thought that crime had some relevance to considering  23 law and order.  24 Q   Yes.  And what specifically does the nature of the  25 statistics that you assembled tell you?  26 A   It tells me the number of people who have been  27 convicted, it tells me what the disposition of their  28 cases was, it tells me something about the people who  29 come before the courts, it tells me something about  30 the judicial system, the operation of it, within the  31 claim area.  If you like, it draw a picture  32 incomplete, perhaps, but one -- a few brush strokes.  33 Q   And is this what this represents, your opinion  34 summary, a few brush strokes?  35 A   No, it does not represent a complete summary of the  36 imposition of law and order within the claim area but  37 it is certainly one aspect of it.  38 Q   Now, I take if that you don't have any training in  39 statistical analysis for social science purposes?  4 0 A   No.  41 Q   Or for any other purposes?  42 A   No, although I did study statistics briefly at  43 university, although I make nothing of that.  No, I  44 have no specialized training in statistics.  45 Q   You would agree with me that, first of all,  46 convictions are an imperfect indicator of what's going  47 on in a society? 21206  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 A   I am not qualified to say -- comment on that.  2 Q   You are aware, are you not, that there are more  3 offences than there are convictions?  4 A   Oh, yes.  But in the sense that not all conduct which  5 might be viewed as criminal leads to actual charges,  6 is this what you have in mind?  7 Q   Yes.  8 A   Yes, that's quite correct, of course.  9 Q   Lots of people do things for which they are not  10 convicted but they have still done them?  11 A   Certainly.  12 Q   And I take it you don't have any way of relating the  13 convictions that you -- the statistics which you have  14 assembled here, bear to the existence of offences that  15 might have attracted convictions if they had been  16 known about or if the law was being enforced?  17 A   True.  18 Q   Okay.  And I want to suggest to you that for these  19 figures to be useful you would have to know that,  2 0 wouldn't you?  21 A   I don't know.  I am not able to say.  I simply have  22 here in this -- what I have attempted to do is record  23 facts as I found them.  24 MR. GOLDIE:  My lord, I am not sure if the witness is answering  25 the question that was asked.  He was -- my friend said  26 "you would have to know that", and I am not sure what  27 he means by "that".  Does that refer back to behaviour  28 which is morally bad but doesn't result in a  29 conviction or what?  30 MR. ADAMS:  Well, it seemed, my lord, that the witness  31 understood the question, but it was directed at the --  32 the "that" was directed to the relationship, if any,  33 between offences and convictions, and you understood  34 that?  35 A   That's how I took it.  I didn't relate the actual  36 convictions to conduct of a moral turpitude which did  37 not lead to convictions.  No, I drew no relationship  38 between them.  39 Q   And if that relationship, that is, between behaviour  40 and convictions, was significant for your purposes,  41 you would need to know a number of things, wouldn't  42 you, you would need to know accurately what the  43 population was, for instance?  44 A   I am not a criminologist nor a sociologist, my attempt  45 here was to find what had happened, what actually had  46 happened in the courts with cases that came before  47 them.  I am not trying to draw any lessons on 21207  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 behavioural matters or sociological matters.  2 Q   So you don't purport to tell us here how prevalent  3 what might be identified as criminal behaviour, that  4 is behaviour against the law, was in the land claim  5 territory in the period that you are discussing?  6 A   I have said in my summary, at the end of it, I have  7 summarized my views at the bottom of page 24:  "The  8 impression one gets therefore from the 20 year period  9 is of a hard drinking community which gives rise to  10 the inevitable offences of drunkeness, intoxication,  11 illegal sales of liquor, assaults and occasionally  12 theft.  There seems to me to be a remarkable absence  13 of crime involving physical harm unrelated to the  14 consumption of liquor, even in the few cases of  15 threatening of white settlers by Indians no actual  16 harm resulted.  The claim area, or at least the  17 northwest portion of the claim area in the period that  18 I have been considering, was certainly a frontier  19 community, but there is no sense of rampant  20 lawlessness or antagonism between the white and Indian  21 residents of it."  22 Q   And my proposition simply is that you couldn't tell  23 that from the crime statistics, conviction statistics  24 alone, could you?  25 A   That is the impression that I, as I have stated it,  26 that is the impression that I formed on the basis of  27 the information that I found.  28 Q   The figures that you assembled and then corrected in  29 your evidence, you didn't compare those to the figures  30 for any other time in this place or any other place at  31 this time?  32 A   I did not.  33 Q   All right.  Now on the third line of page 20 of your  34 opinion summary, you say that you have compiled  35 statistics of convictions and then you say for the  36 period 1889 to 1910?  37 A   Yes.  38 Q   And then indeed in the passage on page 24 you just  39 referred to, you speak of the 20 year period?  40 A   Yes.  41 Q   Now, you don't supply, and I take it you don't have,  42 any figures before or after that period?  43 A   There are a few figures before 1889, yes.  I have not  44 referred to them in my summary, I admit, but there are  45 a few.  I think I referred on the second, on page 21,  46 I said, "prior to 1889 there were occasional  47 references to thievery at the Omineca Mines in the 2120?  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 1870s, but only two actual convictions for theft, both  2 Indians, are noted in 1873 and 1874.  There was a  3 homicide in Omineca in 1872, an Indian accused of  4 murdering two Indian women."  5 In addition to that, I have since discovered that,  6 and it was probably the earliest conviction, was one  7 by Peter O'Reilly in 1871, that may have been -- may  8 or may not have been in the claim area.  It's the  9 subject of a tab in my documents, there is an extract  10 from the diaries of O'Reilly relating to it.  It took  11 place the second day out of his travels from Babine  12 towards Skeena Forks.  13 Q   The period 1889 to 1910 that you do refer to, you  14 didn't have figures outside that period on which you  15 relied to draw a picture of the area prior to 1889 or  16 after 1910, you just didn't have enough figures, is  17 that so?  18 A  After 1910?  19 Q   And before 1889.  20 A   Yes, that is so.  I found it difficult to, after 1910  21 I found it difficult to have any sort of reliable  22 information from which one could draw statistical  23 information.  Prior to 1889, well, after, as of 1889,  24 as of 1888, there was a requirement on JPs to report  25 but, you're right, I concentrated my inquiries between  26 1889 and 1910.  27 Q   Now, for the period 1889 to 1899, I believe you said  28 that you had found 42 offences, that was your  29 corrected figure?  30 A   Yes.  31 Q   All right.  And from 1900 to 1910, you had found, I  32 think, the figure is 242?  33 A   If I can go to my --  34 Q   I am just subtracting 284, which is your revised total  35 on page 22, and taking 42, which is your revised total  36 on the text on page 22.  37 A   I thought the -- I am sorry, Mr. Adams, I am just  38 looking at my notes.  I had thought that I had given  39 as the total over the whole period as 284.  40 Q   Indeed you did, that was a substituted figure for the  41 total in the table on page 22?  42 A   Yes.  43 Q   And then in the second paragraph down on the same  44 page, you had said "until that year..." referring to  45 1900, "...there were only 20 offences." And in your  46 evidence you revised that figure to 42?  47 A   Yes. 21209  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 Q   When I take 42 from 284 I think I get 242.  2 A   I am sorry.  Yes.  3 Q   So, you have a ten year period in which you have found  4 42 offences, you have a following ten year period in  5 which you have 242 offences?  6 A   Yes.  7 Q   Did you consider that that difference indicated that  8 there was a great increase in criminal activity  9 between the first ten year period and the second one?  10 A   I think it resulted from the great increase in the  11 population, perhaps I should say the increase in the  12 population, and the economic activity, the opening of  13 the Yukon Telegraph Line in 1901, the preliminary  14 surveys on the railroad, which were well underway by  15 1910, the number of people going through the country  16 after the turn of the century was certainly greater  17 than in the earlier years.  18 Q   You will agree with me that there was a marked change  19 from the incidence of criminal convictions in the  20 first ten year period after 1889 and the second ten  21 year period after 1900?  22 A  Marked change in what way?  23 Q   Statistically, numerically.  24 A   Quantitatively, there was certainly an increase, yes.  25 Q   That didn't prevent you from concluding that the  26 pattern was identical over the whole 20 year period,  27 did it?  28 A   I think the statistics from the first ten years of the  29 century bear out what I said in my conclusion that it  30 was a hard drinking community, which gave rise to  31 various forms of criminal activity.  32 Q   Yes, my question was, you had a relatively small  33 number of offences in that ten year period and a  34 relatively large number of offences in the following  35 ten year period?  36 A   Yes.  37 Q   But you concluded that the pattern was the same  38 throughout the 20 year period?  39 A  My observation applies to the whole period, yes.  40 Q   And you say, at the bottom of page 22, that you had  41 not attempted to relate these statistics to the area  42 of population, that's so, is it not?  43 A  What I said was, "I have not attempted to relate these  44 figures to the meagre detailed information we have  45 about the area population in order to find out, for  46 example, the incidence of crime in the area as  47 compared to some norm". 21210  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 Q   That was an accurate statement, wasn't it?  2 A   Yes.  3 Q   I would simply ask you to confirm that you hadn't  4 related the figures to the population?  5 A   I had not.  6 Q   On page 22 of your opinion summary the table we have  7 just been discussing appears?  8 A   Yes.  9 Q   You had written about four instances of Indians  10 threatening white men with guns over land squabbles?  11 A   Yes.  12 Q   And you revised that now to 18?  13 A   Yes.  14 Q   And even at the time you were writing, when you had  15 four in mind, you will agree with me that not in your  16 summary and not in its references is there any  17 indication of the date, place or circumstances of any  18 of those, as they then were, four instances?  19 A  Well, I said that -- when I wrote that, I -- although  20 they were included in the overall statistical table, I  21 had not had in mind that the convictions at Kitwanga/  22 Kispiox in 1909 and at Kitwanga again in 1910, I had  23 not taken those into account when stating the -- when  24 putting the figure at four, but I certainly had them  2 5 in mind.  26 Q   My question was:  That to suggest to you that you  27 couldn't tell from anything you had written or  28 anything you referred to in your notes, the date,  29 place or circumstance of those incidents?  30 A   I am not sure whether I have referred to the  31 convictions in my summary where I deal with those  32 particular episodes or not.  Yes, I see, for example,  33 at page 48, I refer to convictions at Moricetown.  34 Q   Was that one of the four that you had in mind?  35 A   No, but they are included in here.  36 Q   I am sorry, I didn't understand that answer.  Was that  37 one of the four or was it not?  38 A   I am sorry, Mr. Adams, I am just looking at this.  One  39 of the four which --?  40 Q   Was the incident you just referred to from page 48 at  41 Moricetown one of the four you referred to on page 22?  42 A   Not in that context, no.  I confess, no.  43 Q   Are any of those four discussed?  44 A   I am sorry, I better be -- better not be too quick.  I  45 would have to check my notes, Mr. Adams.  46 Q   So the answer is as you sit here today you don't know  47 whether they are referred to, the circumstances are 21211  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1  2  A  3  Q  4  5  6  A  7  8  Q  9  10  11  A  12  13  14  Q  15  A  16  Q  17  A  18  19  Q  20  A  21  22  23  Q  24  25  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  34  Q  35  A  36  37  Q  38  39  40  MR. GOLDI  41  42  43  44  MR. ADAMS  45  Q  46  47  referred to anywhere else?  I would have to check my material.  And you have not discussed, of course, in evidence,  the details of the further 15 incidents that you found  on your review of the statistics?  Well, they arose out of matters I have discussed later  in my summary.  Yes.  My question was that you haven't provided in  your evidence any further details of the additional 15  instances you found?  Well, I am not quite sure.  I find that hard to  follow.  I referred to these episodes from which those  convictions arose.  And where do you refer to them?  Well, the affairs at Kitwanga in 1909 and 1910.  That is where the additional 15 instances came from?  The additional 12.  If I revised the figure from four  to six.  I am sorry, I have your revision from four to 18?  Four to six and then 18.  There were two other  convictions of threatening, which were unrelated to  the events of 1909 and 1910.  So if I have -- I am looking for the 14 new ones -- I  am sorry, I misstated it as 15, I am looking for the  14 new ones, I am looking for 12 in 1909 and 10?  Yes.  And two others when?  Yes.  Two others when?  Yes.  When were the two others?  I think I will have to check my notes, Mr. Adams.  Do  you want me to do that?  I can't tell you from memory.  What are the notes you have before you?  I have my working papers on this subject, I have my  own notes to assist me in coping with my material.  Are those notes in addition to the ones that appear in  your working papers that you have identified in  Exhibit 1172?  £:  I don't think what we sent you on October 13th is  in 1172, and I should say that 1172 is a selection of  what was sent, and I don't know what the basis of the  selection is.  :  It was identified as extracts.  But what I am asking Mr. Williams, and perhaps it's  Mr. Goldie who will have to tell me, do you have in  front of you here notes which were not included in the 21212  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1  2  3  A  4  1  5  6  Q  7  8  MR. GOLDIE  9  10  11  12  MR. ADAMS:  13  Q  14  15  16  17  18  THE COURT:  19  MR. ADAMS:  20  Q   1  21  22  23  24  A  25  Q  26  A  27  Q  28  A  29  30  31  32  ]  33  i  34  35  Q  36  37  i  38  39  A   '  40  41  42  43  44  45  46  Q  47  A  working papers delivered to counsel for the  plaintiffs?  I don't know.  I have my own notes, whether they were  delivered to you or not is not my function.  I don't  know.  Well then, I would ask, my lord, if my friend could  inquire and advise me as to that.  :  Well, as far as I am aware, my friend has  everything.  He's made a selection and if it isn't in  here, I will ask him to go back and look at what he  has got.  Well, perhaps I could resolve it this way, if the  witness finds it necessary to refer to the notes on  the stand, perhaps I could see what he is referring to  and satisfy myself whether or not it's something that  I have seen.  Yes, I think you are entitled to do that.  Mr. Williams, on page 23 of your opinion summary, at  the very bottom of the page, you say, of JPs, I  believe, that they were eventually given criminal  jurisdiction?  Yes.  You were referring to JPs?  Yes.  When did that happen?  Again, Mr. Adams, I have forgotten the exact date.  The provincial authorities kept a register of JPs who  were given criminal jurisdiction, and I think --  again, I am guessing now, without looking at my  material, I think it was probably 1904 or 1905.  But I  don't want to be stuck with that date because I am  just recalling from memory.  But the fact that the jurisdiction of the JPs had  changed during the 20 year period suggested to you,  did it not, that your statistics might not be  representative of the period?  Well, it's hard to say because in 1905 there was a  stipendiary magistrate appointed who did have broader  jurisdiction than the JP.  And not all the JPs were  given extended criminal jurisdiction, just one or two  of them.  So I didn't think it was a factor, really.  I didn't think it was a significant factor in the --  in dealing with the cases.  On page 24 of your opinion summary --  Yes. 21213  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 Q      you refer in the fourth line and following to  2 "disturbances on reserves neighbouring to Hazelton  3 which I shall discuss later in this opinion."  4 Do you see that?  5 A   Yes.  6 Q   Which disturbances were those, please?  7 A   I will try my best to give you an exhaustive list of  8 them from memory.  But I had in mind the difficulty  9 there, there were two difficulties which led to  10 charges of intimidation at Moricetown, one in 1904 and  11 one in 1908.  But I had primarily in mind here the  12 events at Kitwanga and Kispiox in 1909 and 1910.  13 There was an additional disturbance, rather a charge,  14 which led to a charge of intimidation at Kispiox,  15 unrelated to the sort of what I might call the main  16 event, if you like, of a single Indian who had  17 threatened a white settler, and I think that was in  18 19 — I think that was in 1908 also.  19 Q   Now, when you speak of the reserves neighbouring to  20 Hazelton, I take it you are not aware one way or the  21 other whether those took place on or concerned  22 reserves?  23 A   The material sometimes shows that a particular offence  24 took place on a reserve, in fact frequently shows that  25 the offence took place on a reserve.  26 Q   But you're not able to say which of those that you  27 have identified did and didn't?  28 A   Not in every case, perhaps, but I do have -- a number  29 of the material does show these offences taking place  30 on reserves and saying which -- and I think saying  31 which reserve.  32 Q   When you refer to the reserves neighbouring Hazelton,  33 I take it that's your expanded definition of Hazelton  34 in that it includes Moricetown and Kitwanga?  35 A   Yes.  I believe that Hazelton was the -- there is no  36 question that Hazelton was the -- there is no question  37 that Hazelton, in effect, was the judicial centre for  38 the area.  39 Q   You are aware, are you, that it's a considerable  40 distance from Hazelton to Moricetown?  41 A   Yes.  42 Q   And from Hazelton to Kitwanga?  43 A   I wouldn't say considerable, but at that time, 1900 or  44 so, it was pretty troublesome travelling from one  45 place to the other.  But I treated them --  I think  46 they were brought in largely to Hazelton for judicial  47 treatment or disposal. 21214  D. R. Williams (For Province)  Cross-exam by Mr. Adams  1 THE COURT:  Mr. Adams, sorry to say that if I don't adjourn now  2 this trial will intrude further into my social life,  3 and we don't have such a distinguished visitor very  4 often.  So I am afraid I must adjourn now to 2  5 o'clock, please.  6  7  8  9 (Proceedings adjourned to 2 o'clock P. M.)  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 21215  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  D.R. Williams (for Province)  Cross-exam by Mr. Adams  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  Mr. Adams.  No.  Mr. Rush.  My lord, a very minor matter, but nevertheless one of  of the things that need to be dealt with.  During the  course of Mr. Magwood's evidence there were two  exhibits, 1018-9 and 1018-11 that were for  identification.  Yes.  And you may recall that Mr. Willms suggested I look  at two other exhibits.  Yes.  I have done that and on the basis of my examination  of those I'm prepared to agree that the exhibits  should be marked for identification proper so they can  be 1018-9 and 1018-11.  (EXHIBIT 101?  Teit on Tahltan and Kaska Indians)  A  (EXHIBIT 1018-11:  Kitwancool Submissions to Faulkner)  THE COURT:  All right.  Thank you.  Just see if I can find —.  All right.  Thank you.  Mr. Adams.  MR. ADAMS:  Thank you, my lord.  CROSS-EXAMINATION BY MR. ADAMS (Cont'd):  Q   Mr. Williams, you were at page 25 of your opinion  summary, Exhibit 1173, and we had been talking about  statistics with criminal convictions and the  statistics that you assembled in table as now amended  on page 22 does refer to what -- exclusively to what  you understand as criminal convictions?  Yes.  In the broad sense convictions not necessarily  under the Criminal Code, but what a lawyer, I think,  would take to be criminal convictions.  Okay.  Now, I want to ask you some further questions  about the potlatch law and that breaches of that law  you would understand by the same definition to be  crimes, would you not?  Yes.  All right.  And let me ask you, first, when you were  reading in the documents and you found references to  potlatches, what did you understand you were reading  about?  Well, first, Mr. Adams, I found no record of any  conviction for an offence under the so-called potlatch  law in the period I was examining.  A  Q  A 21216  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   That is between 1889 and 1910?  2 A   Yes.  3 Q   All right.  And do you take it from that that that law  4 was not being enforced?  5 A   I -- that is is my -- my view.  I say I found no  6 evidence of any conviction under it.  I take it that  7 that is the case.  8 Q   That it wasn't being enforced?  9 A   Yes.  10 Q   Okay.  11 A   I don't think the provincial authorities were much in  12 favour of bringing prosecutions under it.  13 Q   Yes.  And certainly it was in force to your knowledge  14 throughout the period for which you were collecting --  15 A   I believe so.  16 Q   -- statistics of convictions?  Yes, all right.  Then  17 that will bring me back to my original question, which  18 was what you understood when you read the term  19 potlatch in the documents you reviewed, what you  20 understood you were reading about?  21 A   I was reading about the, I suppose the feast, is it,  22 to the --  23 Q   You understood that that was an equivalent term, did  24 you?  25 A   Yes.  26 Q   Yes.  And what is that in your understanding?  27 A  Well, I am not expert on what does or does not  28 constitute a potlatch, but if it is the holding of  29 that periodic feasts by the band for various  30 occasions, then that, I suppose, is the potlatch.  31 Q   Yes.  And did you understand what the function of that  32 activity was in the Indian societies?  33 A   Through -- through reading I have some very rough  34 familiarity with it, but I pretended not to have an  35 exact knowledge of the subject.  36 Q   All right.  There was assistance in that  37 understanding, if not in the documents you reviewed,  38 in formulating your initial opinion; certainly when  39 you reviewed Dr. Galois' documents you ran across  40 documents that referred to the function of that  41 institution, if I can call it that?  42 A   Not only in his material, but material that I myself  4 3 saw.  44 Q   All right.  And one example of that I want to refer  45 you to first is to be found in Exhibit 1035, Volume 3,  46 tab 145.  And if you look at the last page of that  47 long tab you will see that it's dated at Vancouver the 21217  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 27th of February, 1922, and it purports to be signed  2 by Indians of British Columbia by their solicitors  3 Dickie and DeBeck.  That's on the very last page.  4 A   Yes.  5 Q   All right.  And if you go to the front page of the tab  6 you will see that it appears to be directed to the  7 Superintendent General of Indian Affairs in Ottawa?  8 A   Yes.  9 Q   And to describe itself as the Memorial of the Indians  10 of British Columbia?  11 A   Yes.  12 Q   All right.  And then under the heading number one, the  13 institution known as the potlatch?  14 A   Yes.  15 Q   And when I go five lines down in that -- I am sorry,  16 four lines down there is a sentence beginning:  "Owing  17 to the fact"?  18 A   Yes.  19 Q  20  21 "Owing to the fact that they were without  22 writing, the only alternative was the  23 administration of all their affairs with  24 certain ceremonies, solemnities and certain  25 publicity: this was done through what is  26 commonly termed the 'Potlatch.'  The Potlatch  27 in its broadest sense is the gathering of those  28 who are directly, or indirectly concerned,  29 either of one tribe, or more than one tribe,  30 for the formal publication of some event  31 whereby the status of an individual, or group  32 of individuals with respect to another  33 individual, or group of individuals, or to the  34 tribe or nation was altered or fixed.  The  35 extent of the events thus proclaimed was  36 extremely wide, including political or  37 administrative, judicial, economical and  38 social."  39  40 A   Yes.  41 Q   And then going over the page, on the first line on  42 page two it says, starting partway through the  43 sentence:  44  45 "...  it included agreements between tribes,  46 peace treatise and declaration of war;  47 essentially it included ratification of all 2121?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 contracts, transfer of property, transfer of  2 the property rights in names, crests, dances or  3 songs, either by heredity or by contract;  4 judicially it included the administration of  5 both criminal and civil law, granting of  6 divorces, etc., in short, any event which would  7 require definite statement before those  8 interested and some degree of publicity, in  9 order to make it a matter of record."  10  11 A   I see that.  12 Q   That doesn't conflict with anything that you know  13 about the --  14 MR. GOLDIE:  Excuse me, my lord.  I point out to my friend that  15 he is seeking to elicit opinions with respect to  16 matters that the witness has not expressed an opinion  17 on and in respect of which he has said he is not  18 qualified to express an opinion.  19 MR. ADAMS:  My lord, what I am exploring is the witness'  20 understanding of something that he read and his  21 perhaps enhanced understanding of something that he  22 has said he reviewed.  That's as far as I am going.  I  23 am not asking him for an anthropological opinion.  I  24 am getting at his understanding of the historical  25 documents which he has been qualified to review and  26 render opinions on.  27 THE COURT:  Well, I have heard it said so often in this trial  28 that the understanding of the documents is my problem.  29 Keeping that in mind, why is the witness'  30 understanding of the document a matter that you feel  31 you should pursue, Mr. Adams?  32 MR. ADAMS:  In my submission, my lord, it goes to whether he  33 knows what he's reading about.  Since the term occurs  34 throughout the documents that he has reviewed and  35 purports to render an opinion on, if he doesn't know  36 what they are talking about, that may be the basis for  37 a later argument about the weight to which his opinion  38 is entitled.  39 MR. GOLDIE:  Now, my lord, the witness was asked what he  40 understood by potlatch and he gave an answer.  But  41 this is asking him to interpret the document or pass  42 an opinion, with respect.  43 MR. ADAMS:  Well, with respect, my lord, it's not.  It's asking  44 him if he has read it and if he understands it.  45 THE COURT:  Well, all right.  I think I'll allow the question.  46 I'll have to see if I can find a useful distinction  47 between the proposition that has been so often 21219  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  ]  5  6  7  MR. ADAMS:  8  Q   1  9  10  11  12  A  13  1  14  Q  15  16  A   '  17  18  Q  19  A  20  21  22  Q  23  A  24  Q  25  26  27  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  35  36  i  37  38  39  40  41  A  42  43  Q  44  1  45  46  47  MR. GOLDIE  repeated in this trial that I just mentioned a moment  ago and that I am doing now, and that may emerge and  if it doesn't, well, then, I'll discount it, but that  may not be possible, of the determination until after  I have heard the witness' answer to the question, so  you may proceed.  My question based on the extract that I just read to  you, Mr. Williams, was simply that that wasn't in  conflict with anything that you knew about what the  potlatch was?  No.  I may say this is the first time I've seen this  document.  I have not hitherto seen it until today.  This is not one of Dr. Galois' documents that you did  review?  Well, if I did I'd forgotten about it.  I don't recall  seeing this, no.  All right.  And let me ask you --  And I -- nothing in my meagre knowledge of the details  and importance of the potlatch leads me to think it's  any different.  I --  Okay.  There it is .  And you will have noticed in the passage that I read  to you on the second page a link between the potlatch  and the transfer of among other things property rights  in names and crests?  So it says.  Yes.  I am not able to say that that is so.  Yes.  Of my knowledge.  Let me ask you to look at another document and that is  in Exhibit 1035 Dr. Galois' Volume 2 at tab 77.  Now,  this is in the tab, my lord, in two different  documents.  It seems that we found a readable copy of  the top half and the Federal defendant found a  readable copy of the bottom half.  And when this was  referred to in Dr. Galois' cross-examination, we were  having to jump between the two versions.  This --  Just a moment, Mr. Adams, please.  In seems to be  backward in here.  What is this that I'm looking at?  I think you'll find two versions of the same document.  One is a legal size lighter coloured one at the back,  this one.  And I think between the two of them that's  possible to read the entire text.  :  What's the date of this? 21220  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  MR.  ADAMS:  2  Q  3  4  5  6  A  7  Q  8  9  10  11  A  12  Q  13  14  MR.  GOLDIE  15  A  16  MR.  ADAMS:  17  Q  18  19  20  21  22  23  24  25  A  26  Q  27  28  29  30  31  32  33  MR.  GOLDIE  34  MR.  ADAMS:  35  Q  36  37  38  A  39  Q  40  41  42  43  44  45  A  46  Q  47  It appears to be dated March 13, 1890.  And you'll be  able to see, Mr. Williams, from at least the first  copy, that it appears to be from Mr. Fitzstubbs to the  Attorney General of British Columbia?  Yes.  All right.  And the passage I wanted to ask you to  look at begins on the first page -- well, yes.  The  second line you will see that the subject is "the law  against the Indian custom known as potlatch"?  Yes.  All right.  And towards the bottom of the first page  there is a paragraph beginning "granting readily."  :  Yes.  Yes.  "Granting readily that the good of the Indians  is desired by all, there would appear to be  fair ground for a difference of opinion as to  what should be done on the Upper Skeena, at  present practically on the subject of the  'Potlach.'"  Yes.  "It can without difficulty be understood that  the philanthropic and missionary point of view  may not in all cases commend itself to the  magistrate though the supremacy of the law -- ''  Just a second.  These pages are out of order.  And I think you'll find it easier reading this at the  top of the second page of the darker copy.  Do you  have that?  "Supremacy of the law"?  Yes, "the supremacy of the law."  " -- ought I should think to be the first  consideration on the part of all who have to  deal with Indians."  Yes.  All right. 21221  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "On the other hand, it is I believe said that  2 to get the people as far as may be, out of  3 tribal state, is the first step towards  4 reformation and advancement, and that the  5 potlach system being imbedded, in that tribal  6 condition, is a great obstacle for this hope  7 for progress.  It is further said that various  8 evils attend the celebration of the potlach.  9 The Indians on the other hand appear  10 invariably to regard the institution of the  11 'Potlach' with affection, as they charish it as  12 a social, and from their point of view  13 beneficent institution which has grown up  14 amonst them during perhaps centuries past."  15  16 And then going over to the third page, you will see he  17 lists a number of numbered items, and when he gets  18 down to five, about a third of the way down page  19 three —  20 A   Yes.  21 Q   He has:  22  23 "The public giving away of these articles  24 conforms to the publicity of all their tribal  25 affairs."  26  27 A   I see that.  2 8 Q   And then six:  29  30 "That the Potlach is an assurance or benefit  31 society having its rules by which its members  32 are governed and its property distributed to  33 those entitled,"  34  35 And so on?  36 A   Yes.  37 Q   Okay.  Now, was that a document that you reviewed  38 after the formulation and writings of your opinion  39 summary?  40 A   I believe so.  41 Q   Okay.  And again, there is nothing there that  42 contradicts anything you know about the potlatch or  43 feast in the among the Gitksan.  44 MR. GOLDIE:  Well, I record my objection, my lord, for the same  45 reason that I did before.  4 6    THE COURT:  Thank you.  47 A  With my limited knowledge of the subject, I agree. 21222  D.R. Williams (for Province)  Cross-exam by Mr. Adams  Nothing disagrees.  1  2  MR.  ADAMS:  3  Q  4  5  6  A  7  Q  8  9  10  A  11  Q  12  13  A  14  Q  15  A  16  Q  17  1  18  A  19  Q  20  21  A  22  Q  23  24  25  26  27  28  A  29  Q  30  MR.  GOLDIE  31  32  MR.  ADAMS:  33  Q  34  MR.  GOLDIE  35  36  MR.  ADAMS:  37  Q  38  39  40  A  41  42  Q  43  A  44  Q  45  i  46  A  47  MR.  GOLDIE  All right.  And you have said that so far as you are  aware there were no convictions for violations of the  potlatch law in the period 1889 to 1910?  In the claim area that I found.  In the claim area, yes.  And you are aware, though,  having reviewed Dr. Galois' documents that were such  convictions at least in the 1920s?  Yes.  Okay.  And you are aware, are you not, that the feast  or the potlatch is linked to at least Gitksan crests?  It -- in a general way, yes.  Yes.  And you have written about that, haven't you?  Yes.  And I would refer you to your publication Trapline  Outlaw, which is at tab 13 --  Yes.  I talk about it there.  -- of Exhibit 1172 into page 14 where we were viewing  before.  Uh-huh, yes.  And there in the passage I've already read to you:  "The possession of hunting or trapping grounds  was very much a factor in the status of  individual families or crests."  Yes.  Yes.  :  Where is the reference to the potlatch, please?  Is  there a reference to the potlatch in this?  You had agreed with me, had you not, Mr. --  :  Well, excuse me.  I am sorry, I am asking my  friend --  I am attempting to answer my friends' question.  You had agreed with me, had you not, that you  understood at large a link between the potlatch or  feast and crests among British Columbia Indians?  I had understood in a general way that that was the  case, yes.  Yes.  And --  So I have read.  Yes.  And did you understand that with respect to the  Gitksan?  Yes.  :  Well — 21223  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE COURT  MR. ADAMS  A  My limited knowledge.  Again, I am a layman of these  matters, Mr. Adams.  Q   Yes.  GOLDIE:  I just wanted my friend -- my friends' question to  the witness was in relation to you had written about  it and I was asking him for assistance in where it is  written, if it is in this book, just save me the  trouble of going through it.  Are you able to assist, Mr. Adams?  I may have been in error, my lord, in saying that  the witness had written, making that explicit  connection.  I'm asking him, have asked him and I  understand that he has said that he does draw that  connection on the basis of his limited knowledge.  Now, I want to refer you to something else in Exhibit  1172 and that's at tab five, Mr. Williams.  That was  the extract from Adams on "The Gitksan Potlatch"?  Yes.  And if you look at page 73 of the extract, I'm in the  second full paragraph, "If we examine".  Yes.  A  Q  A  Q  A  Q  "If we examine the categories of people who  contribute to a Gitksan potlatch, it obvious  that they all share a common interest in the  productive resources which are being inherited  by the host.  Anyone who contributes money to a  feast has a claim (of sorts) to use the hunting  and fishing grounds of the host and will not be  killed for trespassing if found there."  And then skipping down to the next paragraph:  "The 'children' have a direct interest in the  resources and are given permission to use them,  in fact, as a return for their contributions;  and at the same time the 'children' are  approving the host as a suitable person to  control the resources."  And then going over to page 102, which is the next  page in the extract, the last paragraph.  Do you have  that?  Yes.  "The potlatch gives recognition to status and 21224  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 in doing so it sanctions the taking over of  2 House names by heirs whether they cme from  3 within the deceased's lineage or from without.  4 One's status and identity are recognized and  5 confirmed by the potlatch which allows all  6 participants to know which territory one is  7 associated with by virtue of the name one uses  8 when making contributions.  No one in the  9 society lacks such assignment to a set of  10 resources."  11  12 A   I see that.  13 Q   Okay.  Now, does that not tell you, when you are  14 reading historical documents with reference, at least  15 in this case, to the Gitksan, that when you are  16 reading about a potlatch you are reading about an  17 institution which is concerned with control and  18 ownership of, among other things, crests and  19 territories?  20 MR. GOLDIE:  I object to that question, my lord.  Of course,  21 anybody reading this can draw their own conclusions.  22 There hasn't been -- there hasn't been one question  23 which identifies this document as far as the witness  24 is concerned.  He -- if he's supposed to agree with  25 it, they are all series of conclusions that are stated  26 here and my friend asked doesn't that tell you --  27 well, of course, anybody that reads it, that's what it  28 tells.  29 MR. ADAMS:  My lord, I am still getting at the witness'  30 understanding of what he reads in historical  31 documents.  If his answer is that he doesn't  32 understand what he is reading, I am content with the  33 answer, but I submit that I am entitled to ask for it.  34 MR. GOLDIE:  This is not a historical document.  35 MR. ADAMS:  36 Q   Let me put it to you this way, Mr. Williams:  The  37 historical documents that you reviewed to render your  38 opinion here didn't tell you what the feast or the  39 potlatch was, did they?  40 A   There were -- the historical documents which I read so  41 far as convictions were concerned occasionally  42 referred or at another matter, occasionally referred  43 to potlatch, certainly the potlatch system, but  44 although I read them I did not have full understanding  45 of the subject and I did not pursue it and I was not  46 asked to pursue it.  47 Q   Yes. 21225  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  A  2  3  Q  4  A  5  6  Q  7  8  9  A  10  Q  11  A   '  12  13  Q  14  15  A  16  MR.  GOLDIE  17  A  18  19  20  MR.  ADAMS:  21  Q  22  23  24  A  25  26  Q  27  28  29  30  31  32  33  34  35  36  MR.  GOLDIE  37  THE  COURT:  38  39  40  ]  41  42  MR.  ADAMS:  43  Q  44  45  46  47  And I have not -- for example, today I not have seen  until today this article by John W. Adams.  Yes.  I can't say what -- I'm not in any position to comment  on what he says.  I simply don't know.  Yes.  And what I put to you is that when you read  reference in the historical documents to potlatches or  feasts, you didn't know what you were reading about?  I was reading about potlatches and feasts.  Yes.  Without full understanding, because I don't have the  expertise to have a full understanding of the system.  Yes.  And indeed, with very little understanding at  all?  I think —  :  Well —  -- were the ordinary understanding that a person of  reasonable intelligence might bring to it.  That's all  I claim to have done.  Was it part of that understanding that there was a  connection between the existence of the feast and the  ownership of territory?  I have read that this is so, but I am not able to say  whether that is in fact the case or not.  All right.  Let me ask you, then, a hypothetical  question.  Accepting for the moment that there is such  a link, I want to suggest to you that when you read  that the law against potlatches is not being enforced  and when you read in any case, whether or not it's  being enforced, it's not being obeyed, you are reading  about something that is highly relevant to the  question of whether the imposition of law and order  was or was not accepted by people in the land claims  territory.  :  I object to that, my lord.  Well, I am not sure that the subject matter is  objectionable, but I'm a little troubled about whether  I grasped the whole significance of it, because of  many components to the question.  Perhaps you could  put it again and I will see if I can follow it.  Okay.  You will recall, Mr. Williams, I was asking you  a hypothetical question and the hypothetical component  of it was to ask you to accept for the moment, for the  purpose of answering the question, that carrying on  feasts is linked to ownership of territory? 21226  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 MR. GOLDIE:  Well, my lord, it's the hypothetical aspect that I  2 object to.  Mr. Williams has said it time and time  3 again that he is not a student of the potlatch.  And  4 he is being asked to accept as a hypothetical  5 proposition knowledge of the feast system not today,  6 but at the time of his examination of records, 1889 to  7 1910.  That's what he's asked to accept as a  8 hypothetical proposition and he's not in any position  9 to accept that.  If Mr. Adams wants to ask the  10 question, a direct question, is the potlatch relevant  11 to law and order, that's a question that I think Mr.  12 Williams has to answer.  13 THE COURT:  Well, I'm troubled, Mr. Adams, by the — by the  14 ingredients that go into the connection between a  15 potlatch and title.  There is a myriad of  16 possibilities raised by that brief description.  And I  17 think that the witness could have accepted your  18 proposition and given an answer based upon an  19 understanding of your proposition that may be quite  20 different from what you might have in mind from what I  21 might have gathered in my mind.  And to that extent I  22 think the objection should be sustained.  But you can  23 try it again, if you want to put the question  24 differently.  But I'm just not sure all three of us  25 are going to have --  I suppose I should include Mr.  26 Frey and Mr. Goldie in there, so I am not sure the  27 five of us are going to have the same understanding of  28 what the assumption is.  29 MR. ADAMS:  All right, my lord, I will try again.  30 Q   Mr. Williams, if there is a link between feasting,  31 potlatching, and ownership of territory, and maybe I  32 can be more precise about the link I'm asking you to  33 assume, that one of the things that happens in feasts  34 is that ownership of territory is asserted and  35 witnessed?  Are you following me so far?  36 A   I do.  I follow your question so far, yes.  37 Q   All right.  And continuing to feast or potlatch where  38 a feature of the feast is asserting and witnessing  39 claims to ownership of territory, you are okay so far?  40 A   Yes.  41 Q   All right.  Then I'm asking you to accept the  42 proposition that when Indian people keep on doing that  43 in the face of a legal prohibition, that's the  44 potlatch law, that that is a highly relevant  45 consideration in assessing whether they have accepted  46 the imposition of law and order as you define it?  47 MR. GOLDIE:  My lord, my objection remains.  It isn't necessary 21227  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 to bring in the question of title.  The proposition  2 that has been established so far as a matter of fact  3 is that there is a so-called potlatch law.  The other  4 proposition which the witness has testified to is that  5 it wasn't enforced.  Now, what the potlatch law dealt  6 with has not been established as a matter of fact.  So  7 my friend wants to bring into a question which has  8 partly been established by fact, an assumption which  9 so far has not been established.  And all he's got to  10 do is to say here's a law, it isn't enforced according  11 to your own evidence, isn't that relevant to law and  12 order, and proceed from there.  It's -- well, I have  13 said my say.  14 THE COURT:  Well, I think, Mr. Goldie is right in suggesting  15 that the question of the imposition of law or  16 otherwise is touched by the practice of potlatching  17 contrary to law, and I think that I have ample  18 evidence, although I must say I was going to ask  19 counsel, I am not sure if I have ever seen the  20 prohibition, that is the terms of the prohibition.  I  21 may have, but I don't remember, and it seems to me  22 that just those bare facts bears on the question, the  23 more difficult part of it is whether that conclusion  24 is enhanced, if I can use that term, in any way by  25 adding this further dimension of stating or declaring  26 a witness in title.  Seems to me if the potlatch is  27 prohibited by law, it doesn't matter or add greatly to  28 the solution to the ultimate question what they did at  29 the potlatch as long as it's accepted that it was a  30 prohibited potlatch.  But that's where I think your  31 subtlty is getting us into difficulty, Mr. Adams.  And  32 if you think that it's -- that additional dimension  33 adds to the force of your line of cross-examination  34 that you then I think should be allowed to proceed  35 with that.  36 MR. GOLDIE:  I would like to add, my lord, because your lordship  37 has touched upon a point that I think is important and  38 that is the terms of the act itself.  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  And —  41 THE COURT:  We are assuming that the potlatch was prohibited,  42 but I don't remember seeing the language on the  43 prohibition.  I have heard a lot about it.  I may have  44 and I have forgotten.  45 MR. GOLDIE:  Under the tab 45 in Mr. Galois' —  4 6 THE COURT:  Well, I don't have that.  47 MR. GOLDIE:  Documents, Volume 3, the solicitors for the Indian 2122?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 peoples of British Columbia refer to the law against  2 the potlatch, and they say:  3  4 The first statutory prohibition against the  5 Potlatch was an enacted in 1884. ... at the  6 instigation of the Missionaries, who believe  7 they saw in the Potlatch a heathenish  8 institution antagonistic to the doctrines they  9 were preaching, rather than in its true  10 significance, as we have described above."  11  12 Now, they have gone through that particular thing and  13 whether they are right or wrong as to the reason for  14 it is another question.  And then they go on to say:  15  16 "The reasons given for the law against the  17 potlatch were twofold; first that Indians  18 improverished themselves by giving away all  19 their possessions; and secondly that certain of  20 the dances had degenerated into orgies."  21  22 And then they set out the section:  23  24 "every Indian, or person who engages in or  25 assists in celebrating the Indian festival  26 known as the 'Potlatch' or the Indian dance  27 known as -- "  28  2 9 And I can't make out the word,  30  31 " -- is guilty of a misdemeanour and  32 liable  etc. "  33  34 And then there is another section which prohibits  35 encouraging the festival or the dance.  And they go on  36 to say:  37  38 "The two different offences were therefore the  39 Potlatch, supposed to cover the evil of a man's  40 improverishing himself and the -- "  41  42 No, I can't make it out.  43  44 "-- dance, to cover the evil of the dances.  45 This law did not give satisfaction, owing to  46 the fact that the terms 'Potlatch' and  47 'Tamanawas' — " 21229  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. ADAMS  THE COURT  MR. ADAMS  Q  T-a-m-a-n-a-w-a-s, that's the dance.  " -- were not defined terms, Tamanawas being an  Indian word known only by certain tribes and  unknown to others, although the dance itself  was known by other names.  Consequently in 1897  the law was changed and the offence was  described as follows:"  And then they set out this section from the revision.  I suppose it's a revision to Section 149 of the  Indian Act:  "Every Indian or other person who engages in,  or assists in celebrating or encourages either  directly or indirectly another to celebrate any  Indian festival, dance or other ceremony, of  which the giving away or paying or giving back  of money, goods or articles of any sort forms a  part, or is a feature, whether such gift of  money, goods or articles takes place before,  at, or after the celebration of the same, or  who engages or assists in any celebration or  dance of which the wounding or mutilation of  the dead or living body of any human being or  animal forms a part or is a feature is guilty  of an indictable offence."  And then he says:  "The only other amendment to the law was in  1918 when the offence was made a summary one,  rather than an indictable offence."  So that when one is talking about the enforcement or  non-enforcement, one is talking about those specific  misdemeanours or indictable offences, as the case may  be, and I don't see in it any reference to title.  :  My lord, I will endeavour to ask a simplified  version of my question.  :  Thank you.  You gathered, Mr. Williams, did you not, from your  examination of historical documents, that the feast or  potlatch was an important central institution as far  as the Indians were concerned? 21230  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  A  2  3  4  5  Q  6  7  8  9  A  10  Q  11  12  A  13  14  Q  15  A  16  17  Q  18  19  20  21  A  22  23  THE  COURT  24  MR.  ADAMS  25  A  26  THE  COURT  27  MR.  ADAMS  28  29  30  31  THE  COURT  32  MR.  ADAMS  33  THE  COURT  34  MR.  ADAMS  35  Q  36  37  A  38  Q  39  40  41  A  42  Q  43  44  A  45  46  47  I can't accept your language that it was important and  central.  I gathered that it was certainly a  continuing activity.  How important or how central it  is I am not able to judge.  Well, you'll recall that Constable Louis came into  some difficulty when his expressed desire to continue  with the potlatch ran into his also expressed desire  to observe and be a servant of the law?  Yes.  Does that not suggest to you that that was an  important institution?  He evidently considered it of importance to himself,  yes .  All right.  But I can't pronounce on the importance of the  centrality of the institution.  Yes.  And you will agree with me, I believe you agreed  with me, that on the one hand for the period that you  collected crime statistics, that law wasn't enforced,  correct?  I do agree.  That seems to be evident.  There are no  record convictions under it.  I am sorry, did you say the law was enforced?  Was not.  Was not.  Was not.  That is -- as I understand the witness to have said  that he discovered in the period 1889 to 1910 no  convictions for beaches of in the lands claim  territory.  I am sorry.  You said in force, not enforced?  Enforced.  All right.  Yes.  Now, I understand.  And there is no doubt so far as you know that it was  enforced from 1884 on?  I believe so.  And you are aware from your examination of the  documents that feasts and potlatches continued to be  held?  Yes, certainly.  And that they continued to be held even when the law  was being enforced in the early 1920s?  I don't know that, because I didn't read -- my reading  did not go into the 1920s, but there are a number of  references in the material before the first war to  the -- to potlatches being held quite openly. 21231  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  Q  2  3  A  4  Q  5  6  MR.  GOLDI  7  8  9  10  11  12  13  14  THE  COURT  15  16  17  18  19  20  21  22  23  24  25  26  27  28  MR.  ADAMS  29  THE  COURT  30  MR.  ADAMS  31  32  33  THE  COURT  34  MR.  ADAMS  35  36  37  THE  COURT  38  MR.  ADAMS  39  Q  40  41  42  A  43  Q  44  45  46  A  47  Yes.  And that meant, did it not, that the law was  being ignored?  Apparently.  Yes.  All right.  Let me ask you to turn to page 26 of  your opinion summary.  :  My lord, I think the -- it is obvious from what I  read to your lordship, that if a charge is to be  brought it has to be brought within the sections I  read, so there is -- the word "ignored" comprehends  both a willful desire to avoid the law and on the part  of the charging people -- part of the enforcement  authorities, a belief that a conviction couldn't be  obtained, having regard to the language that I read.  Well, I have been troubled by the possibility when  we are talking about declarations and witness'  entitlement, that one could have a feast and in engage  in that exercise without breaching the prohibition  against potlatching.  But I -- and that's just  dividing up the concepts.  But as a matter of criminal  law, what Mr. Goldie says, I think, is indisputable to  obtain a conviction, one would have to prove that the  impunged conduct had actually taken place deliberately  and knowingly and willingly, and then as I say, you  could have a feast in the declaration of title, the  witnessing of it without offending against that  prohibition.  That's why I think you are in some  semantical or definition difficulties here.  Yes.  But you are going on to something else.  I am, my lord.  Your lordship will be aware that  there is, of course, extensive evidence from the  plaintiffs as to the contribution aspect of the feast.  :  Oh, yes.  :  And that at the appropriate time there will be an  argument that that was a feature that the law speaks  to.  :  Yes.  I had moved, Mr. Williams to page 26 of your opinion  summary, Exhibit 1173, and that's in the section that  you label Indian Tensions, Unrest and Confrontations?  Yes.  And you say in the first sentence, you refer in the  first sentence to a 40 year period from 1872 to 1912,  and my question is why did you stop at 1912?  Because I thought in my judgment the significant  events leading to my opinion had occurred before the 21232  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 great war.  2 Q   Yes.  Was there a significant event occurring in 1912  3 that caused you to use that as a cut-off point?  4 A   It probably should have been 1913.  I probably had in  5 mind that Kitwancool affair of that year.  It was 1912  6 or 1913.  7 Q   And I think you already told us that your reading  8 covered the period up to about 1918 or 1920?  9 A   Only scattered -- well, not -- few readings after  10 1914.  11 Q   Yes.  And later in that same paragraph, seven lines  12 down, you refer to:  13  14 "Effective acceptance by the Indian chiefs in  15 the Upper Skeena of the political, legal and  16 economic rule of the white community."  17  18 A   Yes.  19 Q   All right.  Now, you didn't mean, I take it, by  20 referring to effective acceptance to render a legal  21 opinion?  22 A   I rendering a legal opinion?  23 Q   You didn't mean to --  24 A   No.  I was not asked to render a legal opinion.  25 Q   Yes.  And that's not what you were thinking you were  26 doing here?  27 A   No.  I was not giving legal opinions.  28 Q   You were talking about the state of mind of the people  29 doing the accepting, weren't you?  30 A   I was talking about the results of these events in my  31 judgment.  32 Q   Yes.  Acceptance when it's not a legal concept is a  33 state of mind, is it not?  34 A   I was looking at actions and in my judgment judging  35 reactions and in my view the reaction of the Indian  36 community was an acceptance.  37 Q   Yes, what I asked you was when acceptance isn't a  38 legal concept it refers to a state of mind, does it  39 not?  40 A   It might, but it might not necessarily either.  41 Behavior is as much part -- is as much the potential  42 of acceptance as a state of mind.  43 Q   Well, you only know whether behavior is acceptance if  44 you can infer a state of mind from it, is that not so?  45 A   I am not sure that I understand your question, Mr.  46 Adams.  I was attempting to observe specific acts with  47 specific responses and to formulate some opinion about 21233  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  Q  3  4  5  6  A  7  8  9  10  11  12  13  14  15  Q  16  17  A  18  19  Q  20  21  22  A  23  Q  24  THE COURT  25  26  27  MR. ADAMS  28  THE COURT  29  A  30  31  MR. ADAMS  32  Q  33  34  35  A  36  37  38  39  Q  40  A  41  Q  42  43  A  44  45  46  47  them.  I was not delving into states of mind.  All right.  So you didn't mean that was accepted, that  there was an effective acceptance as a matter of law  and you didn't mean it as a state of mind.  What did  you mean?  I -- I meant what I have said here:  "... two and possibly three of these events,  apart from the cumulative effect of all of  these, resulted in effective acceptance by the  Indian chiefs in the Upper Skeena of the  political, legal and economic rule of the white  community."  Was it possible that there was acceptance without  anybody knowing that they had accepted it?  I was judging acceptance by specific response to  specific events.  Yes.  My question was:  Is it possible in your terms  to have acceptance without the person doing the  accepting knowing that they are doing it?  You mean some form of automatism?  No.  :  Well, isn't it really as simple as this:  Are you  talking about objective acceptance or subjective  acceptance?  :  Well, I don't know, my lord.  :  Is it anything more than that?  I was looking at observable behavior and specific  response.  Yes.  And you don't know observing behavior, what it  means, unless you know the state of mind of the person  behaving, do you?  That's a dilemma that faces anybody at any time.  One,  I think, is entitled to say if a person behaves and  speaks in a certain fashion, one can draw a conclusion  from it.  About what they are thinking?  And how they are acting.  But the conclusion you draw from how they are behaving  is what they are thinking, isn't it?  If I behave -- I think we are getting into the realm  of philosophy here, Mr. Adams.  Again, I repeat, my  task was to observe specific events and the way  people, certain people responded to those events and I  add if possible, as I was able to do to draw a 21234  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 conclusion from them.  That's what I have attempted to  2 do.  3 Q   Are you telling me that I won't find anything in your  4 summary or in your evidence that will tell me where as  5 a matter of internal fact Indian people were or were  6 not accepting the imposition of law and order as you  7 defined it.  8 MR. GOLDIE:  I am not sure what my friend means by internal  9 fact.  10 MR. ADAMS:  11 Q   Of personal subjective acceptance.  What we usually  12 understand by acceptance.  13 A   If a person or context of this case, one of the Indian  14 chiefs says something to Superintendent Roycraft in  15 1888, I take that -- I take it for what -- I take it  16 it means what he says.  Now, if that leads one, then,  17 to say that then he would not have uttered those words  18 unless the state of his mind led him to the utterance,  19 then I suppose that may be a corollary.  But I wasn't  20 trying to speculate on the state of mind of these  21 people.  22 Q   Because you didn't know what the state of mind of the  23 people was, did you?  24 MR. GOLDIE:  Well —  25 A   I -- how could I?  26 Q   Exactly.  How could you?  27 MR. GOLDIE:  Well, how could anyone, my lord.  2 8 THE COURT:  Oh, I have to.  29 MR. GOLDIE:  Well, your lordship, I imagine, is going to draw  30 some conclusions from observable facts.  31 THE COURT:  Yes.  32 MR. GOLDIE:  Because there is no evidence as far as I am aware  33 of what is inside the mind of everybody who is now  34 long since dead.  35 MR. ADAMS:  36 Q   Mr. Williams, beginning at the bottom of of page 26  37 you refer to the Kitseguecla fire in 1872?  38 A   Yes.  39 Q   And you say, beginning on the second line of the  40 paragraph under the heading, "A fire lit by the  41 latter," and here you refer to coast Indians?  42 A   Yes.  43 Q   "When camping at Kitseguecla got out of control."  44 A   Yes.  45 Q   And then you refer over the page to it's attribution  46 "to the white men, on the apparent reasoning that if  47 they had not come up the Skeena to start with, there 21235  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 would have been no fire"?  2 A   Yes.  3 Q   All right.  Now, you're aware, aren't you, that that's  4 only one of the versions of the causes of that fire  5 that was in the documents that you reviewed?  6 A   There were two.  7 Q   Which two were those?  8 A   There was Brown's version and Fitzgerald's version and  9 in each of them they were initially told by the  10 Kitseguecla people that the fire had been set by the  11 Tsimshian coast Indians.  One of them saying, as I  12 recall, that it was an act of revenge on the part of  13 the Tsimshians.  14 Q   And you didn't accept that explanation?  15 A   I considered it.  16 Q   You didn't —  17 A   But —  18 Q   -- accept it?  19 A   I was inclined to accept it, but I don't think it  20 makes very much difference.  If it was an act of  21 revenge it might be of some significance.  I don't  22 know.  But there is no question the fire got out of  23 control and it caused serious damage to the village.  24 Q   Well, the thing that struck me, Mr. Williams, is that  25 you were ready to attribute it to the coast Indians  26 and ready to attribute apparent reasoning to the  27 people at Kitseguecla when large number of the sources  28 available to you suggested that it was in fact the  29 white miners who lit the fire and caused the  30 difficulty?  31 A   There are differing versions of it.  32 Q   Yes.  And how did you come to choose that one is my  33 question?  34 A   I don't think I really chose one.  I said I think the  35 Indians attributed it to the white men, which they  36 did.  Initially they attributed it to the Tsimshians.  37 Q   Well, what you said was "a fire lit by the latter,"  38 referring to the coast Indians?  39 A   Yes.  And which was certainly a version of the affair,  40 substantiated version of it.  41 Q   Well, let me ask —  42 A   The first response, if one goes back to the very first  43 thing which people say as perhaps having more weight  44 than something thought of later on, the Indians said  45 it was Tsimshians that were at fault.  46 Q   Let me ask you to look at just one document and that  47 is in Volume 3 of Exhibit 1035 at tab 137. 21236  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  THE  COURT:  2  MR.  ADAMS:  3  THE  COURT:  4  MR.  ADAMS:  5  A  6  THE  REGIS!  7  MR.  ADAMS:  8  Q  9  A  10  Q  11  12  13  14  15  16  A  17  Q  18  19  A  20  Q  21  22  23  24  25  A  26  Q  27  A  28  Q  29  A  30  Q  31  32  A  33  34  Q  35  A  36  Q  37  A  38  Q  39  A  40  Q  41  42  43  A  44  Q  45  46  47  That's Galois, is  That's Dr. Galois  Tab 137?  It's Volume 3.  is one down here.  No.  What tab, Mr  it?  documents, my lord.  Is this it?  Adams ?  Do you have that, Mr. Williams?  Yes.  There  RAR:  Volume 3, tab 137.  Yes.  And you will recognize this as the report, by the  cover page, report on the proceedings of an inquiry to  investigate the conduct of certain Indian Chiefs who  refuse to allow white men to proceed up the Skeena  River, also into the cause of the burning of the  Village of Kitseguecla?  Yes.  All right.  And if you turn to the page -- four pages  from the back of the tab.  Yes.  And I invite you to satisfy yourself that the person  whose words are being recorded here is the Lieutenant  Governor Trutch and that's to be found four further  pages back into the tab where there is a heading "His  honour proceeded to address the chiefs as follows."  No, I'm sorry, I don't see it.  Seven, eight pages back.  Eight pages back?  Yes.  The eighth page back from the back.  Yes.  And you will see right from the middle of the  page, the paragraph beginning "at Victoria"?  "His honour proceeded to address the chiefs as  follows."  Yes.  Yes.  And that refers to Trutch, does it not?  Yes.  Okay.  And then --  I would take it so, yes.  If you just follow through the pages you'll see that  it is still him talking until you get to the page I'd  referred you to?  Yes.  And you will see starting five lines down there is:  "Even no proof that the fire which consumed  your village was caused by white men, although 21237  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 I suppose it was, they not having thoroughly  2 extinguished their fire."  3  4 A   Uh-huh.  5 Q   And that, I take it, was the finding of the Lieutenant  6 Governor as part of that inquiry?  7 A   Yes.  8 Q   Okay.  9 A  Apparently.  All right.  10 Q   Going over to page 27 --  11 THE COURT:  Shall we take the afternoon adjournment, please, Mr.  12 Adams?  I take it that we are going to be sitting  13 tomorrow?  14 MR. ADAMS:  I expect we will, my lord.  15 THE COURT:  Yes.  Could counsel let me know before the end of  16 the day whether they think we will be all day or until  17 noon.  It's of no great consequence.  Just a matter of  18 some minor planning.  Thank you.  19  2 0 (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON BREAK)  21  22 I hereby certify the foregoing to be  23 a true and accurate transcrpit of the  24 proceedings herein to the best of my  25 skill and ability.  26  27  28  29 Laara Yardley, Official Reporter,  30 United Reporting Service Ltd.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 2123?  D.R. Williams (For Province)  Cross-exam by Mr. Adams  1 (Proceedings resumed at 3:15 p.m.)  2  3    CROSS-EXAMINATION BY MR. ADAMS: (Continued)  4  5 MR. ADAMS:  6 Q   Mr. Williams, we were on page 27 of your opinion  7 summary, Exhibit 1173 and, actually, I am looking at  8 pages 27 through 29, which is the entirety of your or  9 the conclusion of your discussion of Kitseguecla in  10 1872, and the pattern of this event, is it not, as you  11 record it in your summary, that you have chiefs who  12 are invited to what you call a parley or a  13 conference -- you use both terms -- where the trouble  14 resulting from the burning of the village is settled?  15 A   Yes.  16 Q   And I take it you don't know anything about how  17 Gitksan chiefs, in 1872, were accustomed to settling  18 trouble?  19 A   No.  20 Q   And neither do you know about the role of public  21 discussion and compensation in Gitksan law?  22 A   No.  23 Q   So if either of a system -- or let me do it in two  24 parts, if there was a protocol under which Gitksan  25 chiefs were accustomed to settling trouble, because  26 you were unfamiliar with it you wouldn't have seen it  27 in the documents you read?  2 8 A   No.  29 Q   And if public discussion and compensation had a role  30 in Gitksan law, you wouldn't have seen it in the  31 documents because you didn't know about it?  32 MR. GOLDIE:  Well, my lord, that's a very odd question to put.  33 The witness looks at documents, if he doesn't know  34 about it he doesn't see it, that means it isn't there.  35 It's not a question of what's in his mind to begin  36 with.  37 MR. ADAMS:  Well, with respect, my lord, the fact that the  38 witness doesn't see it does not, in my submission,  39 mean it isn't there, it means that he is not equipped  40 to see it and that, as I understood it, was his  41 answer.  42 MR. GOLDIE:  That's a very different proposition.  My friend's  43 "equipped to see it" didn't figure in it.  It's a  44 question of fact, is the -- are the attributes or  45 characteristics that my friend is describing to the  46 witness present in the document or aren't they?  47 THE COURT:  Well, I think that we are on the verge of 21239  D.R. Williams (For Province)  Cross-exam by Mr. Adams  1 metaphysics, what somebody sees or reads into what is  2 or isn't there is a difficult concept at the best of  3 times.  I think the matter is a proper one for cross-  4 examination of an expert who has produced a collection  5 of documents and has given an explanation of some of  6 them, which from time to time has undoubtedly emerged,  7 as with all witnesses, into opinion.  And for that  8 reason I think that it is not unusual that there will  9 be difficulties in either framing the questions or in  10 understanding the questions.  And I am not sure that  11 your last one, Mr. Adams, was one that may have  12 received the universal understanding that I mentioned  13 a few minutes ago.  But I will -- and I will, for that  14 reason, be happy if you would rephrase the question.  15 MR. ADAMS:  All right.  16 Q   Let me divide it again into two parts, Mr. Williams.  17 You have acknowledged that you have no particular  18 knowledge of the role of public discussion in Gitksan  19 law?  20 A   That is so.  21 Q   And you did not come, because of that lack of  22 knowledge, you didn't come to your examination of  23 these documents with any sensitivity to the  24 significance of references in them to public  25 discussion?  26 MR. GOLDIE:  Well, my lord, the witness has said he is not  27 familiar with Gitksan law.  That doesn't mean that he  28 has acknowledged that there is Gitksan law, which --  29 in which public discussion plays a part.  My friend's  30 question assumes that.  31 THE COURT:  Well, I think I just demonstrated the truth of the  32 dictum I pronounced a moment ago.  I still think it's  33 a proper question for cross-examination.  I am not  34 sure now whether your last question was one which  35 should have been understood universally or not, Mr.  36 Adams, because I have been distracted.  You may  37 proceed.  3 8 MR. ADAMS:  39 Q   All right.  Let's go around again, please, Mr.  4 0 Williams.  You have acknowledged that you have no  41 knowledge of the significance of public discussion in  42 Gitksan law, and if the term law troubles my friend,  43 my lord, in Gitksan society?  44 MR. GOLDIE:  Assuming there is such, that's what you're asking  45 the witness to assume, because he says he doesn't have  46 any knowledge of it.  4 7 THE COURT:  Yes. 21240  D.R. Williams (For Province)  Cross-exam by Mr. Adams  1  MR. ADAMS  2  Q  3  THE COURT  4  5  6  7  MR. ADAMS  8  Q  9  10  11  12  13  A  14  15  Q  16  17  18  19  20  21  A  22  Q  23  24  25  26  A  27  Q  28  29  A  30  Q  31  A  32  Q  33  34  A  35  Q  36  A  37  Q  38  39  40  41  42  43  44  45  A  46  Q  47  :  Well —  Do you understand the question?  :  I don't think it matters, Mr. Adams, because at the  moment, partly because of the interruptions and partly  for the reasons I stated, I don't know what the  question is now.  All right.  I believe this is something you have  already answered, and that is you have agreed with me  that you have no knowledge of the significance of  public discussion in Gitksan law, always assuming that  there is such a thing?  Right.  I am not -- I have no knowledge of Gitksan  law, if there is such a thing.  So when you see references, as you record them in your  summary with reference to Kitseguecla in 1872, to  public discussion, that is, the one that takes place  with Trutch and others, you don't know what  significance, if any, that discussion has in Gitksan  law?  True.  All right.  When you see, as you do, with reference to  Kitseguecla in 1872, discussion in the documents of  compensation, and you understand that compensation was  paid to the Kitseguecla people --  It was.  -- by the government, you don't know what significance  that compensation had in Gitksan law?  No.  Thank you.  If any.  I don't know.  All right.  Let me ask you to go to page 30 of your  opinion summary, please.  Do you have that?  Yes.  It's headed 1874?  Yes.  Now, I would ask you first to confirm for me that for  the passage beginning under that heading, "in August  of this year", and referring to Kispiox Indians firing  on a pack train, that there are no references in the  notes to your report that would tell anyone what  documents you were relying on to make those  statements?  And you will find the appropriate page at  56 of your opinion summary.  Yes, you're right.  All right.  Now, I took it from your evidence that the  document you were relying on, or came to rely on, is 21241  D.R. Williams (For Province)  Cross-exam by Mr. Adams  1 the document that is in your volume three -- that is  2 Exhibit 1178, my lord — at tab 52-B?  3 A   There is more than one, I think, Mr. Adams, but that  4 may be one of them.  What volume is that, volume  5 three?  6 Q   Volume three, tab 52-B.  7 A   Yes, that's one of them.  8 Q   All right.  And that's Mr. Tomlinson's letter?  9 A   Yes.  10 Q   Now, I wonder if you could just -- and I noted at this  11 point, Mr. Williams, you're referring to your notes.  12 A   Yes.  13 Q   Is that so?  14 A   Yes.  15 Q   And I wonder what it is that you are referring to in  16 preparing to answer my question?  17 A   I am just looking up the tab that you referred me to.  18 As far as I am concerned, you are we welcome to look  19 at it.  20 MR. ADAMS:  My lord, this appears to be page 24 of a document  21 that I have never seen before, that has tab numbers  22 for A. G. B. C. documents, a list of questions and a  23 series of numbers at the right-hand side that say M.  24 Li, L-I, number, and I can advise your lordship that  25 it is not among the documents that were delivered to  26 me, and I would ask to have it produced to me.  27 MR. GOLDIE:  I quite agree it is not produced to him, if it's  28 not part of his working papers.  2 9 THE COURT:  I don't understand, you want to have it produced,  30 Mr. Adams?  You have just seen it.  31 MR. ADAMS:  My lord, it appears to be part of a much larger  32 document.  33 THE COURT:  You mean you want the other pages?  34 MR. ADAMS:  Yes, this is a document I had no idea existed.  My  35 friend advised this morning that as far as he  36 understood, the notes to which the witness was  37 referring to on the stand were among papers that have  38 already been delivered to me.  39 MR. GOLDIE:  No, I beg your pardon.  I said the notes with  40 respect to convictions were amongst those that had  41 been delivered to you.  That's got nothing to do with  42 the notes with respect to convictions.  As I  43 understand it, that's the witness's aide memoire.  44 MR. ADAMS:  Well, that is precisely because I didn't understand  45 my friend to be confining himself to the one narrow  46 topic that was under discussion at that moment, that I  47 make a blanket request for production of the notes 21242  D.R. Williams (For Province)  Cross-exam by Mr. Adams  1 that the witness has available to him on the stand,  2 which I have never seen.  3 MR. GOLDIE:  My lord, they have got nothing to do with the  4 preparation of his report, as I understand it.  5 THE COURT:  I don't know whether it is or isn't.  I don't know  6 what it is.  7 A   It's my aide memoire, my lord, it's my notes to help  8 me expeditiously deal with matters as they arise.  9 MR. ADAMS:  My lord, they might have aided me to expeditiously  10 deal with matters as they arose too and they might  11 have caused matters to arise.  12 THE COURT:  When was this material prepared, Mr. Williams?  13 A   It was prepared as part of the preparation leading up  14 to my appearance to give evidence, my lord.  15 THE COURT:  Since the preparation and delivery of your report?  16 A   Yes.  17 THE COURT:  Well, it's my preliminary view that what is required  18 to be produced are the drafts, and I guess working  19 papers is as good a word as any, that are used in the  20 preparation of the report.  It would be my preliminary  21 view, although I have never had to deal with the  22 question before, that after delivering the report, if  23 the witness then sits down and says I am going to make  24 an index of what's in my report so that I can quickly  25 direct myself, for example, from the references in the  2 6 summary of my report to the tab numbers, then I would  27 not think that that is something that need be  28 required.  But that's just a very preliminary view.  2 9 MR. ADAMS:  Well, my lord —  30 THE COURT:  If it's sort of an index that the witness is going  31 to use to find things, it's not counsel's brief  32 because counsel didn't prepare it, but it's the  33 witness's brief.  34 MR. ADAMS:  My lord, I have two points to make:  One is that on  35 the brief inspection I have had of one page of what  36 appears to be a much larger document, it is more than  37 an index to tabs.  It's questions posed by the witness  38 to himself that he anticipates being posed, I can't  39 tell.  The other submission I have to make is that --  40 THE COURT:  Well, stopping there, on what basis, Mr. Adams,  41 would you seek to require the witness to produce that?  42 MR. ADAMS:  Because he is referring to it on the stand in order  43 to answer my questions.  And that was my second point,  44 is that whatever its status may be before he gets  45 here, when he brings it with him, and answers  46 questions out of it, in my submission, I am entitled  47 to see what it is.  Because he is not, of course, 21243  D.R. Williams (For Province)  Cross-exam by Mr. Adams  1 confining himself to his opinion summary, he has gone  2 far beyond that in the documents that have been  3 tendered, and beyond that in the opinions that he has  4 rendered.  5 THE COURT:  Well, would the progress of the case be enhanced if  6 you didn't have that, every time he was asked a  7 question he had to conduct an un-assisted search of  8 his tabs to find the tab that refers to something  9 that's in his summary?  10 MR. ADAMS:  My lord, I am not objecting to him having it, I am  11 saying that I am entitled to it as well so that I know  12 what it is the witness is referring to.  13 MR. GOLDIE:  My friend has it in the evidence in chief, it's the  14 outline that I was following in my questioning.  15 MR. ADAMS:  Then I say, my lord, that it's even more obviously  16 relevant to a cross-examination of the witness on that  17 evidence.  18 MR. GOLDIE:  Well, tell him to put it away then.  My friend can  19 take it, he is entitled to see it, if the witness has  20 referred to it in the stand, but it's not a question  21 of disclosure.  It's a question of using something  22 which he has prepared, which has been prepared, I  23 should say, to assist him in answering his questions  24 and dealing with his evidence.  And if my friend wants  25 to say put that to one side -- I thought we had got  26 over that in this case, that if a witness needed  27 something to refresh his recollection and to follow  28 the questions that were being asked of him, he could  29 refer to it.  Now, if we are going to follow the old  30 rule of exhaust your recollection, then refer to any  31 notes which assist you, then we will do that.  32 MR. ADAMS:  My lord, that isn't what I have asked for.  I have  33 said I have no objection at all to the witness  34 referring to it.  My argument has been directed at my  35 entitlement to know what it is that is being referred  36 to.  37 MR. GOLDIE:  He has told you.  38 THE COURT:  All right.  I am satisfied that counsel is entitled  39 to look at whatever the witness looks at for the  40 purposes of answering a question.  I am not satisfied,  41 in my present state of uncertain knowledge, that it  42 goes any further than that, that is, that it's -- that  43 Mr. Goldie described as a matter of disclosure,  44 outside of the use he makes of it in the witness box.  4 5 And I think that, Mr. Adams, as you did a moment ago,  46 is entitled to anything that the witness refers to in  47 order to assist him to answer that question.  I don't 21244  D.R. Williams (For Province)  Cross-exam by Mr. Adams  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  think it goes beyond that.  MR. ADAMS:  Well, my lord, in light of that, so that I don't  take up the court's and everyone else's time in  reading it, I wonder if I could ask to have the page  the witness has just now referred to, available to me,  a copy of it at least, so that I can review it before  tomorrow.  Similarly, any other page to which he finds  it necessary to refer in answering my questions.  THE COURT:  Well, I don't know.  My inclination is to say that  maybe the witness ought to put the book away, although  I am not sure that I have the authority to make that  sort of decision.  You don't know, Mr. Adams, if the  witness is even going to look at it again.  MR. ADAMS:  I don't, and I have no idea what's in the rest of  it.  Purely hypothetically, if the witness is sitting  there with a book and it says, "If he asks you this,  tell him this", I surely would be entitled to know the  contents of that.  COURT:  Yes.  Well, that would be disclosed under the ruling  I have just made.  It would, but piecemeal as the witness draws on it,  with, in my submission, great disruption to the  cross-examination and the progress of the trial, if he  makes at all frequent reference to it.  GOLDIE:  There is a simple way of dealing with it, and in  his question say, please may have your answer without  referring to any material.  Well, I would be reluctant to make that universal  ruling, because as you, Mr. Goldie, said a moment ago,  that's the old fashioned rule that I thought we got  away from.  GOLDIE:  I agree.  But it seems to me that the -- what we  ought to do is get along with the questions and each  time the witness wants to refer to it, my friend is  entitled to see it.  But I cannot see either the legal  requirement or the utility of referring to something  which the witness prepares or has prepared for him, to  assist him in giving his evidence.  I am talking now  about a witness who is dealing with five or six  volumes of documents.  THE COURT:  The immediate problem is that Mr. Adams wants,  overnight, a copy of the page that he just referred  to.  Is there any objection to that?  MR. GOLDIE:  No, I think the witness having referred to it, Mr.  Adams is entitled to see it.  THE COURT:  All right.  I do not think that I would go further  and direct Mr. Williams to produce either the original  THE  MR. ADAMS  MR.  THE COURT  MR. 21245  D.R. Williams (For Province)  Cross-exam by Mr. Adams  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  or copies of the rest of it, because it may be that it  will not be referred to.  So, when we adjourn Mr.  Adams will be furnished with a copy of the page that  he has just looked at so that he can have it overnight  to assist him to prepare for his further  cross-examination on other points that may be covered  by the page and as the matter progresses, Mr. Adams,  you are entitled to look at anything the witness looks  at.  MR.  ADAMS  Q  THE  A  Q  COURT  MR.  MR.  THE  MR.  THE  Mr. Williams, I wonder if I could ask you to put a  sticky on the page that you referred to.  Yes.  Thank you.  I think that we have reached this point that I am  going to ask that we adjourn now.  I have these other  problems to look after today which requires a certain  amount of arrangements and organization, and I think  rather than start another question for three minutes,  I think I am going to have to adjourn now.  Should we resume at 9:30 tomorrow morning.  GOLDIE:  That you, my lord.  ADAMS:  My lord, you had asked to be advised about our  anticipation as far as tomorrow.  It's my firm  expectation that we will be the full day.  It's  possible that we will spill over.  I expected you to say that.  We may spill over.  Well, we can't spill over.  I am in the Court of  Appeal -- wait a minute.  I am not in the Court of  Appeal next week.  We are still here Monday.  I am a  week ahead of myself.  Well, if we spill over, we do  spill over.  I will make every effort to complete tomorrow, but  there is a good deal of significant material still to  cover.  All right.  9:30 then.  (PROCEEDINGS ADJOURNED TO 9:30 A.M., SATURDAY, OCTOBER  21, 1989)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter  COURT  ADAMS  COURT  MR. ADAMS  THE COURT

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