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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-04] British Columbia. Supreme Court Oct 4, 1989

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 20269  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 4 October 1989  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  Supreme Court of British  5 Columbia, this 4th day of October, 1989.  The matter  6 of Delgamuukw versus Her Majesty the Queen at bar, my  7 lord.  And may I remind you, sir, you are still under  8 oath.  9 THE WITNESS:  Yes.  10 THE REGISTRAR:  Thank you.  And would you state your name for  11 the record, please?  12 THE WITNESS:  Albert Leonard Farley, F-a-r-1-e-y.  13 THE COURT:  Mr. Goldie.  14  15 ALBERT LEONARD FARLEY, Resumed:  16  17 MR. GOLDIE:  My lord, before I examine the witness or re-examine  18 the witness, in my submission the report should now be  19 marked as an exhibit without any reference to  20 identification and I base that upon the extensive  21 cross-examination of the witness by reference to the  22 treatises of historians.  My friend had an objection  23 or a qualification that the witness was a cartographer  24 and not an historian and that objection, as I  25 understand it, is outstanding.  But the work of  26 Williams, Williams is an historian, and that's what  27 his qualification is, and the witness was  28 cross-examined extensively with respect to Williams,  29 including Williams' opinions.  Father Delanglez is a  30 Jesuit historian, church historian.  31 THE COURT:  Well, I think I should hear from your friend, Mr.  32 Goldie.  33 MR. GOLDIE:  Well, my submission, before I even bother with the  34 re-examination, is that the witness -- the exhibit is  35 entitled to be marked as an exhibit.  3 6 THE COURT:  Yes.  37 MR. RUSH:  I think this argument is properly made at the end of  38 the examination of the witness.  Firstly, my position  39 was never that the witness was only a cartographer, my  40 opinion was that he was not a geographer, and I said  41 my position was he was a historical cartographer; that  42 was the specialty of his discipline.  43 THE COURT:  Well, all right.  I don't think there is any magic  44 to doing is now rather than at the end of the  45 examination, so I will deal with the matter then.  46 MR. GOLDIE:  Very well, my lord.  47 THE COURT:  My present view is there is enough admissible 20270  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 material in the report that I would be, subject to  2 what Mr. Rush says, I would be disposed to having it  3 marked on the same basis as the other reports have  4 been marked and I think it is going to be my  5 responsibility at the end of the day to determine what  6 parts of it are admissible and which parts are not, if  7 any, in each way.  But I will hear counsel when we  8 finish.  9  10 RE-EXAMINATION BY MR. GOLDIE:  (Continued)  11 Q   Doctor, with respect to Father Delanglez, you remember  12 my friend asked you if you knew of him and you said  13 that you had heard of him and you had a recollection  14 that perhaps you looked at some of his writings?  15 A   Yes.  16 Q   Prior to or subsequent to the time you wrote your  17 thesis in 1960?  18 A   Yes.  19 Q   To your knowledge is he regarded as a cartographer?  20 A   No, I would say not.  He is an historian to the best  21 of my knowledge.  22 MR. GOLDIE:  Now, with respect to map 8 in your folio which is  23 the De L'isle map --  24 THE COURT:  I am sorry, what number?  25 MR. GOLDIE:  26 Q   Number 8, my lord.  It is Guillaume De L'isle,  27 geographer, and it's De L'isle 1703 map.  My friend  28 referred you to another part of Father Delanglez's  29 writings which is under tab 3 of his cross-examination  30 book and at page 540, Father Delanglez embarks upon --  31 I am sorry, at page 541, embarks upon another section  32 of his work entitled The Mirage:  The Sea Of The West.  33 Perhaps the witness might have that.  Thank you.  34 A   Thank you.  35 Q   And in the first paragraph the author says in the last  36 sentence, and I quote:  37  38 "Since this honour is usually attributed to his son  39 Guillaume, it is necessary to prove the above  40 statement which might be challenged on the  41 ground that the memoirs and maps are all signed  42 by Guillaume Delisle; as we shall see, while the  43 voice is Guillaume's, the ideas are Claude's."  44  45 Doctor, with respect to map 8, is it attributed -- to  46 whom is it attributed in the national map collection  47 of the public archives of Canada? 20271  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 A  William De L'isle -- or Guillaume De L'isle.  2 Q   Has anyone -- any cartographer adopted the theories  3 propounded by Father Delanglez with respect to the  4 providence of the 1703 maps so far as you are aware?  5 A   So far as I am aware, none.  6 Q   It was suggested to you that the principal motivation  7 of the French explorers was a route to the south seas  8 and trade with China and Japan.  Do you remember my  9 friend's discussion with you on that?  10 A   I do.  11 Q   Now, my recollection is that you referred at one point  12 in your answers to the Historical Atlas of Canada.  13 Can you tell his lordship what that is and when it  14 came into being, at least the one that you were  15 referring to?  I understand there are two and I'd like  16 you to identify the one you were referring to?  17 A   The Historical Atlas of Canada edited by a colleague,  18 his name is Harris, H-a-double-r-i-s, published  19 approximately four years ago, the first volume.  20 Q   Now, I think the evidence has been that you were  21 retained in January of 1987; is that correct?  22 A   Yes, '87, that's correct.  23 Q   And you have identified for my friend that you had  24 produced a draft report in September of 1987?  25 A   Yes.  26 Q   And you have explained to his lordship circumstances  27 which resulted in you not doing any further work in  28 the matter until around the fall of 1988?  29 A   That's correct.  30 Q   And the completion, the final proof-reading of your  31 report, was delayed after Mr. Robertson's death in  32 February of 1989?  33 A   Yes.  34 Q   Now, in your preparation -- in the preparation of your  35 report did you have available to you or did you  36 utilize the Historical Atlas of Canada that you have  37 just described?  38 A   Yes, I referred to it.  39 MR. GOLDIE:  And I am going to -- if you have a copy of it  40 there, I am going to refer you to --  41 MR. RUSH:  Well, I am going to object to this, my lord.  It  42 doesn't arise out of my cross-examination.  43 MR. GOLDIE:  Well, it has to do with the question of motivation,  4 4 my lord.  45 MR. RUSH:  It may well have a question to do with motivation.  46 The fact is the Historical Atlas of Canada was  47 available to the witness after its publication four 20272  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 years ago.  He said he referred to it.  It was  2 something presumably available to him from his  3 colleague in the department.  If he wanted to make any  4 reference to it, it was open to him in direct.  5 MR. GOLDIE:  He made reference to it in response to questions in  6 cross-examination and he was -- he did not follow it  7 up, he was not given an opportunity of following it up  8 but it was strongly put to the witness that the real  9 basis of western exploration was motivated by a desire  10 to find the route to the west and he disagreed.  He  11 said he understood that -- he didn't disagree that  12 there was not some aspect of that.  13 THE COURT:  Yes.  14 MR. GOLDIE:  But he did say that he understood the fur trade and  15 missionary work was one of the primary features and my  16 note is that, and I don't have the transcript  17 reference, but my note is that he at one point made  18 reference to the Historical Atlas of Canada.  And all  19 I want to do is to ask him to identify whether the  20 particular part of it is one that he had in mind.  21 THE COURT:  Well, I don't have — well, I am sorry, Mr. Rush.  22 Let me tell you what I am thinking so I can get the  23 benefit of your views.  It seems to me that the  24 question of motivation for the French explorers is a  25 matter that arose for the first time in  26 cross-examination and is therefore as a subject  27 permissible area for re-examination.  It seems to me  28 that in asking of the Historical Atlas would only be a  29 matter of inquiry at this stage if it is referred to  30 in connection with that subject matter.  Now, on that  31 footing, Mr. Rush, I'd be glad if you would let me  32 have the benefit of hearing your views or any other  33 basis you want to advance of course.  34 MR. RUSH:  Firstly, I don't accept at all my friend's  35 characterization of the evidence.  It's not at all in  36 accord with the evidence -- the witness' evidence in  37 cross-examination.  I do agree that the question of  38 the reasons for the French explorers' interest in the  39 exploration of the west was raised in  40 cross-examination and the witness gave his answers.  41 And in my submission, my lord, his answers stand for  42 what they are and he did not accept in total the  43 propisitions put to him and he suggested some  44 alternatives with regard to that.  In my submission,  45 the answers stand for what they are, it's not --  46 THE COURT:  The answers stand but surely giving an answer in  47 cross-examination doesn't preclude re-examination on a 20273  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH  THE COURT  MR.  THE  MR.  it is related solely to the question  You may proceed.  MR.  MR. RUSH  MR.  MR.  MR.  subject matter not raised in chief.  But it's not just that.  It seems to me a question of  whether or not a witness' reference as he did make, I  agree, to the Historical Atlas, whether that -- his  volitional reference to that therefore opens the door  for him to make reference to it as he wishes and I  with respect say not.  If my friend wants to examine  him on the subject, whatever examination he wants to  embark upon based upon the answers given, then so be  it.  But the fact that he makes reference to the atlas  in my submission is no way a basis for an open door to  bring in the atlas which was available to him in  direct.  Not just mentioning it but, if it relates to and has  the kind of information that scientists use in  relation to the permissible subject to re-examination,  it seems to me that it must be an open subject for  re-examination.  I would hope that it doesn't go very  far beyond that.  GOLDIE:  Well, it's —  of motivation.  COURT:  Yes, all right.  GOLDIE:  Q   Dr. Farley, to your knowledge do the -- well, let me  ask you this:  I am instructed that the Historical  Atlas of Canada is -- many hands have contributed to  it?  Yes.  And are you aware or have you any knowledge of whether  two of the contributors dealt with the question of  motivation of the French explorers in the period that  my friend was asking about?  Certainly the matter of motivation is dealt with in  the atlas.  I can't remember how many contributors  dealt with that but certainly it is dealt with in the  atlas .  GOLDIE:  I am going to place before you an extract from the  atlas.  There is a facing page and then there are -- I  am going to refer you to two pages marked French  Exploration and it's identified as map or plate 36 and  perhaps I should --  Would you advise what pages you are putting to the  witness please?  GOLDIE:  The two pages that constitute plate 36.  RUSH:  What pages are those?  GOLDIE:  The last two pages of the -- I am not sure why the  first page after the title page is in here, maybe  A  Q  A 20274  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  4  5  6  7  8  THE  COURT:  9  MR.  GOLDIE  10  THE  COURT:  11  MR.  GOLDIE  12  Q  13  14  A  15  Q  16  ]  17  18  19  A  20  MR.  GOLDIE  21  THE  COURT:  22  MR.  GOLDIE  23  THE  COURT:  24  MR.  GOLDIE  25  Q  26  27  28  29  30  31  A  32  Q  33  34  35  36  ]  37  38  39  40  41  A  42  1  43  Q  44  45  46  A  47  MR.  GOLDIE  there is some explanation of it, but the pages that I  am referring the witness to are -- constitute the  pages which make up plate 36 of the atlas.  Your  lordship, I'll get the atlas in a minute but your  lordship will have to imagine for the minute that  these two pages face one another.  Will you show his  lordship that, please?  The last two pages?  :  The last two pages, yes, constitute plate 36.  Yes, all right.  Thank you.  Now, from that it appears that the contributors to  those two plates are Professors Ruggles and Hydnerack?  Yes.  And on the right-hand side there is a table headed  Motivation.  Do you understand that to be the opinion  of those two people with respect to the question of  what motivated the French explorers?  Yes.  :  And your lordship will see --  I haven't got Motivation yet.  :  Beg your pardon, my lord?  Where will I find Motivation?  The upper right-hand corner of the second page right  under word plate 36, and it's got Diplomatic Missions,  Search for Minerals, Expansion of the Fur Trade,  Territorial Claims, Military Expeditions, Missionary  Activities, Search for Route to Orient and Northern  Sea.  Do you see that?  Yes.  I am not going to ask you to count but, assuming that  I am correct in my counting, the number of asterisks  under Fur Trade is 30, the number of asterisks under  Search for the Western Sea is 26, and the next is  Missionary, 17.  And there is only one entry for  Search Alone and that, if I read this table correctly,  and you correct me if I am wrong, Professor Farley --  or Dr. Farley, is Samuel de Champlain, the first item  in 1603?  I read that to be -- oh, sorry, yes.  Samuel de  Champlain, 1603.  Yes.  And in all other aspects the Motivation so far  as the opinion of these authors is joined with other  activities?  Yes.  :  My lord, might that be marked as an exhibit? 20275  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 MR. RUSH:  Well, my lord, I think the witness should be directed  2 to the opening paragraphs of the French Exploration  3 which is on the left-hand side of the page which  4 contextualizes the table that is set out under the  5 words Plate 36 on the right-hand side.  6 THE COURT:  Yes.  7 MR. GOLDIE:  Well, that -- I am not asking the witness to  8 comment on the opinion of these authors.  9 MR. RUSH:  Well, you would have to be in order to direct the  10 witness' attention to Motivation.  11 MR. GOLDIE:  Well, all I am doing, my lord, is directing the  12 witness' attention to the opinions of two eminent  13 scholars with respect --  14 THE COURT:  I don't know if the witness has said they had been  15 scholars.  Are they?  16 MR. GOLDIE:  17 Q   I am sorry, do you know these two individuals?  18 A   Yes, I do, and I regard them highly as geographers,  19 Canadian geographers.  They are both internationally  20 recognized scholars.  21 THE COURT:  And you accept their views, do you?  22 THE WITNESS:  Yes, I do.  Ruggles has done a great deal of work  23 in historical cartography in Western Canada and  24 Hydnerack is well known for his work in the historical  25 geography particularly for central Canada.  26 THE COURT:  All right.  What are you proposing with regard to  27 page 87, Mr. Goldie?  28 MR. GOLDIE:  I think that -- I am not sure why that is there, my  29 lord.  I was going to take a quick look to see if it  30 introduced plate 36 but my eye doesn't catch it as I  31 go down.  I think that can be taken out.  32 THE COURT:  All right.  The balance of the document may be  33 marked as an exhibit.  34 THE REGISTRAR:  Exhibit 1155, my lord.  35  36 (EXHIBIT 1155 - EXTRACT FROM HISTORICAL ATLAS OF  37 CANADA)  38  39 MR. GOLDIE:  40 Q   My friend discussed with you the eminence of French  41 mapping in Canada?  42 A   Yes.  43 Q   Can you tell his lordship when the pre-eminence of  44 French mapping so far as North America came to an end?  45 A  Well, it's a difficult thing to date absolutely but I  46 think most scholars would agree that around the middle  47 of the 18th century, by that time British cartography 20276  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 was in the ascendancy.  Again, it's a difficult thing  2 to date absolutely because clearly matters of -- well,  3 of excellence in any scientific endeavour tend to peak  4 but are retained for long periods, so the French, the  5 quality of French mapping, if I am answering the  6 question correctly, quality of French mapping reached  7 its zenith by about mid century, and then seemed to  8 decline somewhat, and the ascendancy therefore of  9 British mapping since it was the major competitor in  10 the sense of this scientific position, the ascendancy  11 for the British cartography again peaked shortly after  12 mid century.  13 Q   Thank you.  Mid century, we are talking, is the 18th?  14 A   Yes, 1750's, in there.  15 MR. GOLDIE:  Mr. Rush put to you a couple of proposition from  16 volume 270 transcript 19889, my lord.  And the  17 question that he put to you line 41:  18  19 "Q  And what I say to you is that the relevant  20 accuracy of the map product itself has little  21 to do with its historic relevance, so it  22 doesn't matter how it might appear against what  23 it would appear like today, the fact is that it  24 had a relevance in the time of its  25 production?"  26  27 And you said, you qualified your answer with respect  28 to that and, after a discussion at line 18, he says  29 with respect to the land:  30  31 "Q  That that map has its historic relevance in  32 terms of who Bellin was, the time he produced  33 it, and the information available to him; is  34 that correct?  35 A  Yes, I think that's a fair statement."  36  37 I just want to be sure that I understand the  38 proposition that is being discussed there, and in  39 terms of the usefulness of maps at that time.  What  40 was the more important aspect, the depiction of a  41 belief, or the relative relationship of the feature on  42 the map and its corresponding feature on the ground?  43 MR. RUSH:  I object to that, my lord.  a) The questions put do  44 not permit of a suggested ambiguity as suggested by  45 the question; and secondly, the issue was not first  46 raised in cross-examination.  The issue of the report  47 was the question of its relative accuracy in relation 20277  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  ]  3  4  5  THE  COURT:  6  7  8  9  ]  10  MR.  GOLDIE  11  12  THE  COURT:  13  14  MR.  GOLDIE  15  16  17  18  ]  19  20  THE  COURT:  21  22  23  MR.  GOLDIE  24  Q  25  26  27  A  28  Q  29  i  30  31  32  A  33  Q  34  35  A  36  37  38  Q  39  40  41  A  42  43  44  45  46  47  MR.  GOLDIE  to modern-day mapping, and the whole question of  mapping was an overriding -- and its accuracy was an  overriding issue throughout the witness' direct  examination.  I tend to think, Mr. Goldie, that the answer has to  be so qualified as to be of little evidentiary value.  Doesn't the question require the witness to go back  and speculate about the state of mind of the people  making the map and the people reading it at the time?  :  I had not intended to elicit that.  The question  was from the standpoint of the user.  But it requires the witness to put himself inside  the head of the user over two hundred years ago.  :  That is quite right, my lord, but the question that  was put to the witness is the suggestion that the  relevant accuracy of the map product itself has little  to do with its historical relevance, and to my -- in  my submission that raises an issue of whether -- of  what is being addressed.  Well, I think it is an issue that academics might  have a great time with but I think the probative value  is so slight that I ought to rule against it.  All right.  My lord, Dr. Farley, yesterday do you  recall my friend making reference to Jeffery's  appointment as geographer to the King?  Yes, I do recall some reference to that.  Just so that I am clear on it, were there any British  maps which were issued for other than commercial  purposes at this time, that is to say, in the mid 18th  century?  Excuse me, were there any?  Were there any British maps which were issued for  other than commercial purposes?  None of which I am aware, except for the ordinance  survey which was -- the maps were limited to strategic  ports and harbours and defence and that kind of thing.  Being geographer to the King didn't relieve the  individual from having to make a living in other  words?  Oh, no, no.  It was a patronage appointment and had  some -- some value in that sense in that it probably  gave the holder of that appointment access to  information that might have been privileged, but  certainly there was, so far as I am aware, there was  no real stipend attached to that appointment.  :  Thank you.  Now, Mr. Rush referred you on a number 2027?  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  of occasions to the Williams article under tab 10 of  his book on cross-examination, that's Exhibit 1154, my  lord.  THE COURT:  Yes.  MR. GOLDIE:  Q   There are a number of pages missing from the selection  that my friend made, and I will come to that in a  minute, but so as you are aware, was Dr. Williams a  cartographer?  A   No.  My recollection is that again Williams is an  historian.  Q   Under tab 10, the third page in is -- the fourth page  in is Roman Numeral 16 in the introduction.  Do you  see that?  A   I am sorry?  Q   The fourth page in, perhaps --  A   Fourth page in, yes.  Q   The first sentence reads, and I quote:  "Not until after the restoration did another  English ship enter Hudson Bay, and although in  1668 the captain of the Nonsuch was ordered 'to  have in yor thoughts the discovery of the Passage  into the South sea and to attempt it as occasional  shall offer', the main purpose of the expedition  was to trade for furs."  So he places the interest of the English in the  Northwest Passage as at least as early as 1668.  Is  that in accord with your understanding?  A   That's in accord with my understanding, yes.  MR. GOLDIE:  At page 173 —  THE COURT:  Restoration was 1660?  MR. GOLDIE:  Q   I  A   I  THE COURT:  MR. GOLDIE:  Q   At page 172 -- well, before I go on with that, do you  recall my friend putting to you that the explorers of  the northwest coast, and I think he had particular  reference to Captain Cook, would be aware of Muller's  map?  A   Yes, that's likely.  It was through the French that  the work of the Russians -- well, Bering and others,  came to light in the western world or at least were  publicized, and I should have thought that Cook would  think so.  think so, my lord.  I  I am not sure either.  am -- can't be sure.  Close. 20279  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 have had some knowledge of the Russian discoveries in  2 the north.  3 Q   And I want to draw your attention to page 173 of  4 Williams' work and midway down the second paragraph --  5 A   Yes.  6 Q   -- there occurs the sentence, and I quote:  7  8 "For fifteen years Muller's map of 1758..."  9  10 A   Yes.  11 Q  12 "...which showed the coast of northwest America  13 bulging out towards Kamchatka, had been accepted  14 as the standard map of the Bering Strait region.  15 If Muller was correct, and the outline marked on  16 his map represented a continuous coastline, then  17 the only way to the Arctic sea was through Bering  18 Strait."  19  20 Then it goes on to talk about Cook's route and then  21 the author in the next sentence after that states, and  22 I quote:  23  24 "That Cook was ordered to sail first to the Coast  25 of New Albion, far to the east of Bering Strait,  26 demonstrates that this was not the intention, and  27 indicates that the Admiralty had accepted as  28 authentic an account and map of recent Russian  29 discoveries published in England in 1774 under the  30 aegis of Dr. Maty, Secretary of the Royal  31 Society."  32  33 And the footnote refers to J. von Stahlin, but the  34 pages 174 and 175 are missing.  I'd like to show you  35 those pages please and ask you if you could  36 identify -- these are some additional pages from  37 Williams' work, my lord, and the last two pages are  38 pages 174 and 175.  Now, if you have page 173 before  39 you?  40 A   Yes.  41 Q   The author, after referring to the account and map  42 published in England in 1774 under the aegis of Dr.  43 Maty, goes on to say:  44  45 "This work, originally written in German by von  46 Stahlin, Secretary to the St. Petersburg Academy  47 of  Sciences, and a recently elected Fellow of the 20280  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  A  14  15  16  17  18  ]  19  MR.  GOLDIE  20  21  1  22  MR.  RUSH:  23  24  THE  COURT:  25  ]  26  MR.  GOLDIE  27  THE  COURT:  28  MR.  GOLDIE  29  THE  COURT:  30  MR.  RUSH:  31  32  33  34  35  MR.  GOLDIE  36  THE  COURT:  37  ]  38  39  MR.  GOLDIE  40  41  42  43  44  MR.  RUSH:  45  ]  46  47  MR.  GOLDIE  Royal Society, described how in the years 1764 to  1767 Russian merchants trading east of Kamchatka  under the protection of one Lieutenant Synd had  discovered an extensive archipelago of islands  between Asia and the American mainland.  The  accompanying map, which was similar to one issued  by the Academy in 1773, marked these clusters of  islands, and also showed Alaska, not as a  peninsula, but as a large island."  Just pausing there if you go over the page, do you  recognize that as von Stahlin's map?  Yes.  If I recall, this map is replicated in a volume,  the title of which I cannot recall.  I remember doing  a review of it, I think it was for the Washington  State Historical Society but I cannot remember now,  but I -- to answer your question, yes, I recognize the  map.  :  Right.  And would you agree with me that that map  shows that the coastline of North America is  discontinuous?  I object to that, my lord.  It doesn't even show the  coastline of North America.  It shows a bit of it.  It looks continuous to me,  Mr. Goldie.  :  No, my lord, he shows Alaska as an island.  Oh, I see.  Yes, all right.  :  Whereas Muller had Alaska joined to the mainland.  Yes.  Well, my lord, with respect I am not sure that Alaska  island and Alaska being shown as an island are the  same thing and, despite my friend's conclusion, I am  not sure that that's warranted on what you see in  front of you.  :  Well, perhaps my friend ought to --  It certainly shows a marked departure from Muller's  map and perhaps it can't be taken any further than  that, can it, Mr. Goldie?  :  Well, it's the opinion of the author to whom my  friend referred the witness that Cook's instructions  were drafted on the basis that he was to steer for  what appeared to be an opening that didn't exist of  course.  Well, of course the author goes on to consider the  map and relate it to Muller's map in the article as  well.  :  Yes.  Well, we are going to put that in.  Now, if 20281  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 you'd look at page 196 in the report that my friend  2 put in.  3 THE COURT:  In 14 6.  4 MR. GOLDIE:  5 Q   196, my lord.  At the bottom of the page my friend  6 read to you the first sentence:  7  8 "On 10 May the ships were off Bering's Mount  9 St. Elias, the towering peak of which was first  10 sighted when the expedition was more than a  11 hundred miles distant.  At this spot Muller's map  12 showed the coast trending northward, and Cook and  13 his officers, who had previously found much  14 difficulty in identifying various landmarks with  15 the account and map of Bering's voyage printed by  16 Muller, were perturbed to find that the coast  17 turned, not north, but west."  18  19 And then I direct your attention to the next sentence:  20  21 "In spite of this discrepancy the officers remained  22 convinced that the passage to the north indicated  23 on Stahlin's map must soon appear, and one of  24 King's journal entries reflects the air of tense  25 expectancy on board the ships.  We have Dr. Matys  26 (i.e. Stahlin's) map of the Northern Archipelago  27 constantly in our hands, expecting every opening  28 to the northward will afford us an opportunity to  29 separate the Continent."  30  31 I will just stop there.  Does that assist you then,  32 Dr. Farley, in concluding the -- in reaching a  33 conclusion as to the information that Cook's people  34 had before them when they were sailing --  35 A   Yes.  36 Q   -- up the coast?  37 A   I have no reason to question the author's reference  38 there and obviously he is quoted from a journal,  39 King's journal.  40 MR. GOLDIE:  At page 231 of Williams' book, he makes reference  41 to a man whose name was referred to yesterday, Peter  42 Pond.  I think my friend drew your attention or  43 suggested to you that the information on certain maps  44 came from Peter Pond, and I direct your attention to  45 Mr. Williams' statement about eight lines down from  4 6 the top beginning with the words, "With the memorial  47 Pond enclosed a map".  Does your lordship see that? 20282  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  THE  COURT:  2  MR.  GOLDIE  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  MR.  RUSH:  29  30  31  ]  32  33  34  THE  COURT:  35  MR.  GOLDIE  36  37  38  39  40  THE  COURT:  41  MR.  GOLDIE  42  THE  COURT:  43  MR.  GOLDIE  44  THE  COURT:  45  MR.  GOLDIE  46  47  THE  COURT:  Yes.  "...he had drawn of the northwest.  The most  noticeable features of this map are the positions  of Lake Araubaska (the modern lake Athabaska) and  the polar sea.  Athabaska is shown only slightly  north of its correct latitude, but the longitude  of its western end is 132 degrees west instead of  112 degrees west; that is, in roughly the same  longitude as Nootka, almost seven hundred miles  nearer the Pacific than it actually is.  Hearne's  polar sea is marked on the map in latitude 65  degrees north; seven degrees south of its position  according to Hearne, and three degrees south of  its true position.  Although Pond knew the region  better than any other white man, in the  construction of maps he was handicapped by his  complete lack of training.  There is no indication  that he could make an astronomical observation,  and his reliance on dead reckoning led to absurdly  inaccurate maps. Pond was one of the last of the  old explorers, men tough in body and mind, but who  often returned from the wilderness unable to  represent accurately in map form where they had  been or what they had seen."  Do you have any comment on that?  Well, my lord, I object to that.  This was a matter  raised in direct examination.  In fact it was directly  raised by Mr. Goldie about certain representations on  maps, and the witness was asked to comment with regard  to distances and the effect of the longitudinal  relationship.  That's correct, isn't it, Mr. Goldie?  :  That's quite right, my lord, but I made no  reference to Pond and my friend produced a map in  which he -- on which he examined the witness and  suggested that the information on that map derived  from Pond and I wanted to --  What map was that please?  :  I think that was a late Harris map.  I do have a note on one of these maps where --  :  They were --  West mileage was for --  :  I had the -- I don't have the transcript for  yesterday before me, my lord, but I have the --  Well, it is one of these maps that's in the pocket I 20283  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 think.  I am not sure that we need to dig it out.  It  2 seems to me, Mr. Goldie, that you covered this point  3 in your examination, that the distance between Lake  4 Athabaska to the coast was substantially  5 foreshortened, that is, shorter than one of these  6 maps.  7 MR. GOLDIE:  Oh, I — the other question I was — well, I had  8 asked the witness to comment on that but I had another  9 question and that is, could he apply the description  10 of Pond to anyone else and, if so, would he be  11 prepared to indicate to whom he would apply it.  12 THE COURT:  All right.  I think I would allow that.  Before you  13 do that, though, can you tell me, doctor, what is the  14 mileage per degree of longitude?  15 THE WITNESS:  It varies with the latitude, my lord.  It varies  16 as the coastline of the latitude.  17 THE COURT:  Yes, I suppose that has to be, doesn't it?  18 MR. GOLDIE:  19 Q   Can you tell us what it was at the equator?  20 A   Oh, it would be about 69 -- round numbers, about 69  21 miles, my lord.  22 Q   And presumably it becomes zero at the North Pole?  23 A   Yes, so at the equator it obviously -- the value of  24 the minute of our latitude.  25 THE COURT:  Well, Lake Athabaska, we are talking about latitude  26 of 65?  27 THE WITNESS:  Yes, so it would be about -- well, very roughly,  28 one-third of the value at the equator.  29 THE COURT:  About 33 miles?  30 THE WITNESS:  Yes, I would say probably around 30 statute  31 miles -- 30 nautical miles, sorry.  32 THE COURT:  112 to 132 is 20 degrees, 20 times 30 is 660 miles.  33 THE WITNESS:  Yes, something like that.  34 THE COURT:  All right.  35 MR. GOLDIE:  Doctor, the question that I am about to put to you  36 is -- I had read from page --  37 THE COURT:  I interrupted you, Mr. Goldie.  You were asking the  38 witness whether this description applied to any  39 others.  40 MR. GOLDIE:  Yes, that's correct, so I want to get that  41 description in front of you.  42 THE COURT:  Page 231.  43 MR. GOLDIE:  Yes.  44 THE REGISTRAR:  Tab 10.  45 MR. GOLDIE:  46 Q   Yes.  47 A   Thank you. 20284  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 Q   With the sentence that I was going to refer you to  2 begins with the words:  3  4 "There is no indication that he could make an  5 astronomical observation"?  6  7 A   Yes.  8 Q   Can you, from your recollection, apply that to any  9 other of the explorers that have been referred to  10 here?  11 A   I think it could be applied to most of them.  To make  12 an astronomic observation for position requires a good  13 deal of training and some mathematical background, and  14 it also requires the use of instruments at the time --  15 if we are thinking about mapping at mid century, that  16 is the middle of the 18th century, such equipment was  17 rather cumbersome and difficult to transport therefore  18 so -- well, to expand upon that, even when Mackenzie  19 descended the Mackenzie River to its mouth in the  20 Arctic Ocean, he was -- he had difficulty in  21 establishing longitudinal position and, if I recall  22 correctly, he went back to Britain and took some  23 particular training in position finding so that when  24 he made his voyage to the Pacific he was better  25 equipped in that regard.  But as I point out, it was  26 really rather uncommon for explorers of the time to  27 have a good background in position finding.  28 MR. GOLDIE:  What would you say with respect to la Verendrye and  29 his family?  30 MR. RUSH:  Well, I object to that, my lord.  I mean, my friend  31 has an open question, applies it to all the explorers,  32 the witness gives the answer, I don't think it is open  33 to my friend then to begin a cross-examination on the  34 answer.  35 MR. GOLDIE:  Well, I just wanted to be particular.  36 THE COURT:  Well, I am trying to remember whether Mr. Goldie  37 dealt with la Verendrye at all in chief.  38 MR. GOLDIE:  The witness made reference to his explorations but  39 he was cross-examined at very considerable length.  40 THE COURT:  There was a lot of cross-examination about la  41 Verendrye.  42 MR. RUSH:  Oh, yes, my lord, but the witness also made reference  43 to the evidence that he just gave in direct indicating  44 the history of the development of the technology for  45 determining positions.  46 THE COURT:  Well, I am not sure that anything very substantial  47 is going to turn on it but I think, in view of the 20285  A.L. Farley (for Province)  Re-exam by Mr. Goldie  prominence given la Verendrye this cross-examination,  that it is competent for Mr. Goldie in re-examination  to ask if la Verendrye had this kind of training.  I  think that is permissible.  GOLDIE:  Q   To your knowledge, doctor, la Verendrye have the kind  of training that you just referred to as being  acquired by Alexander Mackenzie before his voyage  overland to the Pacific coast?  A   To the best of my knowledge he did -- he did not, and  I think that is reflected in his journals.  It is  very, very difficult to track where he travelled in  what is now the United States and Canada.  GOLDIE:  My lord, I'd like to ask that the pages to which I  made reference in Mr. -- Professor Williams' book,  pages 174 and 175, be inserted in the extract my  friend has placed under tab 10.  COURT:  Yes, I have that in my copy.  GOLDIE:  If my friend is agreeable, I would also ask, my  lord, that the dust jacket description of Mr. Williams  which is immediately under the title page, The British  Search For The Northwest Passage, and it's the third  page, "Dr. Glyndwr Williams read history at the London  School of Economics", et cetera.  COURT:  That's two pages?  GOLDIE:  It's the third page in.  The first page is the  front dust jacket and the second is the last page of  the dust jacket.  COURT:  Yes.  GOLDIE:  And then —  COURT:  It follows the map?  The exhibit has the title page  and then a map.  GOLDIE:  Yes, that's correct.  The map is -- my friend is  quite correct, the map is the frontispiece, and then  follows the contents, and then follows a list of the  maps which have been studied, and then follows the  preface which I ask to be put in.  RUSH:  Well, my lord, the only difficulty I have with this  is that it's not clear to me that we're talking about  the same publication or the same edition.  If it is  the same publication and same edition, then I can't  make that out by an examination of the two -- I don't  in principle have any disagreement with that but I'd  like to determine that before I agree to it.  COURT:  All right.  Well —  GOLDIE:  I will leave the book with my friend, my lord.  RUSH:  Thank you.  1  2  3  4  5  MR.  6  7  8  9  10  11  12  13  14  MR.  15  16  17  18  THE  19  MR.  20  21  22  23  24  25  THE  26  MR.  27  28  29  THE  30  MR.  31  THE  32  33  MR.  34  35  36  37  38  MR.  39  40  41  42  43  44  45  THE  46  MR.  47  MR. 20286  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 MR. GOLDIE:  And I will come back to that then.  2 THE REGISTRAR:  It's not going in right now?  3 THE COURT:  No.  4 MR. GOLDIE:  5 Q   Then, doctor, I want to refer you to my friend's tab  6 24 in his book if that could be placed before the  7 witness.  You can close your -- thanks.  You were  8 examined on this yesterday afternoon and your  9 attention was drawn to the River Mississippi in the  10 upper left-hand corner.  Have you got that?  11 A   Yes.  12 MR. GOLDIE:  And you pointed out your concern about how solid  13 that line was and because it ended abruptly and was  14 adjacent to the words grand paee in conu.  Do you  15 recall giving that evidence in response to my friend?  16 MR. RUSH:  Those words aren't on this map.  17 THE COURT:  Parts undiscover'd?  18 MR. GOLDIE:  I am sorry.  19 THE REGISTRAR:  Did you say tab 24.  20 MR. GOLDIE:  I did and that's — I think I have got the wrong  21 map.  22 MR. RUSH:  Is it the Kitchin map?  23 MR. GOLDIE:  It is.  24 THE COURT:  Do you want us to turn to something else?  25 MR. GOLDIE:  It should be the Kitchin map, my lord, and I was  26 looking at Palairet.  27 THE COURT:  What tab is the Kitchin map?  28 MR. GOLDIE:  29 Q   The tab is 24, and the solid line representing the  30 Mississippi River terminates under the words parts  31 undiscover'd.  32 A   Yes.  33 THE COURT:  Palairet had the French language that I referred to.  34 MR. GOLDIE:  Now, my friend put it to you that that represented  35 the state of mind of the map-maker.  From your  36 experience as a cartographer, could the termination of  37 that represent a state of mind which was a state of  38 ignorance with respect to the termination of that  39 river?  40 MR. RUSH:  I object to that, my lord.  That isn't — the  41 question that I put to the witness was not one that  42 was value loaded.  43 THE COURT:  Well, the question is leading, isn't it?  44 MR. RUSH:  In the extreme.  4 5 THE COURT:  Yes.  46 MR. RUSH:  And it doesn't arise out of what I asked the witness  47 which was to evaluate the state of mind of Kitchin or 20287  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 to evaluate the state of knowledge of Kitchin as  2 represented and depicted on the map, not to represent  3 his opinion about what Kitchin was doing.  4 MR. GOLDIE:  Well, my friend says the question was not value  5 loaded.  I am not sure what that means.  6 THE COURT:  I think he was saying your question was leading.  7 MR. GOLDIE:  Well, maybe that's — I understand that.  8 THE COURT:  State of mind and state of ignorance must be the  9 same thing, right?  10 MR. GOLDIE:  If state of mind comprehends ignorance, then that's  11 all I am concerned about.  12 THE COURT:  It has to.  13 MR. RUSH:  Well, exactly.  The other half of that is the state  14 of knowledge.  15 MR. GOLDIE:  Well, I think —  16 THE COURT:  Or lack of it.  17 MR. RUSH:  Yes, exactly, my lord.  That of course is the point.  18 It has the two aspects.  My friend seeks to emphasize  19 one and I simply seek to emphasize what the map shows.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  But my question of course was related to the  22 depiction on the map, not what was in the minds solely  23 of the map-maker because the witness' evidence on  24 cross-examination was directed specifically to the  25 solidity of that line and that was what I was  26 interested in.  But if the state of mind, if my friend  27 agrees that the state of mind of the map-maker at that  28 point indicates ignorance, I accept that.  29 THE COURT:  Well, subject to learned argument which I may see in  30 due course, my present view is that state of mind can  31 be positive or negative or neutral.  32 MR. GOLDIE:  Now, my lord, there was a map produced and I think  33 it's under tab 15B.  34 THE COURT:  15?  35 MR. GOLDIE:  36 Q   Yes, Exhibit 1154, LaRouge map.  Yes, that's the one,  37 thank you.  38 This was one that you were -- I think you said,  39 Dr. Farley, you hadn't seen this facsimile  40 reproduction and my friend drew to your attention that  41 in fact it was very recent, June 1989.  Do you recall  42 that being discussed with you?  43 A   Yes.  44 MR. GOLDIE:  It has on it the note, "with revisions of late 1752  45 or later."  Do you see that?  46 THE COURT:  I am sorry, I don't see that.  47 MR. RUSH:  Maybe you could direct the witness' attention. 202?  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 MR. GOLDIE:  2 Q   Right at the very bottom to the left of the --  3 A   Oh, yes, yes.  4 Q   Of the compass?  5 A   Yes, in the bold type.  6 Q   Yes, "with revisions of late 1752 or later".  7 A   Yes.  8 MR. GOLDIE:  Can you assist me, doctor, what does that signify  9 on the document we are looking at?  Does that mean  10 there is information which --  11 THE COURT:  I am sorry, I am not looking at -- that's not my tab  12 15.  13 THE REGISTRAR:  This was the only one put in.  I don't think you  14 have that.  15 MR. GOLDIE:  It was one of a kind.  16 THE COURT:  Yes, all right.  We have a photograph of it now.  17 This is 15B, I think.  18 MR. GOLDIE:  Yes, this is 15B.  19 THE COURT:  All right, thank you.  20 MR. GOLDIE:  I'd like you to assist me, doctor, with respect to  21 that statement and tell me what you understand those  22 words mean?  23 MR. RUSH:  Which words?  24 MR. GOLDIE:  25 Q   The words that are down at the bottom there?  26 A   "With revisions".  27 MR. GOLDIE:  "With revisions of late 1752 or later".  28 THE COURT:  Where does it say that?  29 THE WITNESS:  Excuse me, my lord?  30 THE COURT:  Oh, all right, thank you.  31 THE WITNESS:  Yes.  That would mean to me that the cartographer  32 would have incorporated into the map or could have  33 incorporated into the map, and likely would have from  34 the statement says "with revisions" so he would have,  35 information of a later date.  Now, how late we don't  36 know except where there is some indication, other  37 indication on the map, and I don't -- I can't spot any  38 here.  So all that I can say just looking at it as I  39 can read it here that it may be sometime later than  40 1752.  41 MR. GOLDIE:  42 Q   All right.  Now, would you turn to the northwestern  43 coastline and, as I read that, it ceases to be a heavy  44 emphasis north of Cape Mendocin?  45 A   Yes, Mendocin for the -- it is M-e-n-d-o-c-i-n.  46 Q   And then there is a gap and then there is another  47 feature which has some degree of emphasis, and then 20289  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 beyond that the tracing or the line ceases to have  2 that emphasis.  Am I correct in that?  3 A   Yes.  4 Q   What significance does the reduction and emphasis  5 have?  6 A   I would read that as indicating that the cartographer  7 was much less certain of his information sources and  8 in that sense then the outline beyond the bold  9 coastline is very tentative.  10 Q   Now, proceeding northwest again and just to the right  11 of the word Mer are the words "ici comence le Flux et  12 Reflux".  Do you see that?  13 A   I am not sure I spot it.  14 Q   The words in question are right there to the right of  15 Mer?  16 A   Yes, "ici comence le Flux et Reflux".  17 Q   Doctor —  18 A   Yes.  19 Q   -- not having my friend, Mr. Rush's, facility with the  20 French language, I consulted a French language  21 dictionary which tells me that that refers to the ebb  22 and flow of the tide?  23 A   That would be my interpretation.  Again, I have  24 indicated that I feel some facility with French but I  25 am certainly not by any stretch bilingual.  26 Q   Now, the river draining west from Lake Winnipeg, I am  27 using the English name but --  28 A   Yes.  29 Q   -- appears to stop just to the right of the word e-t  30 or "and" in that tidal quotation; is that correct?  31 A   I am sorry, I am not sure --  32 Q   Well, do you see the River of the West?  33 A   Yes.  34 Q   Which appears to flow out of what we would call Lake  35 Winnipeg?  36 A   Yes.  37 Q   And it appears to stop?  38 A   Yes.  39 Q   Just to the right of one of the words in that tidal  40 quotation?  41 A   Yes.  42 Q   Does that indicate to you that it was intended to  43 depict that it had reached the River of the West?  44 A   It suggests to me that the cartographer really did  45 not -- was not at all sure what was the state of  46 landscape there and it would indicate to me that he  47 simply did not know where that river flowed.  Clearly 20290  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 it is flowing in the direction of the Sea of the West,  2 but the termination there -- now that termination may  3 also have come about as a result of his insertion of  4 the statement that here -- the tides -- the ebb and  5 flow tide commences, and I say that because -- oh, now  6 I thought I had seen a bolder line farther along.  No,  7 to me it would suggest with the statement here  8 commences the tide, the ebb and flow of tide, it would  9 suggest with the directional arrow shown on that  10 stream that it is intended to be flowing into a Sea of  11 the West but the abrupt termination leaves a question  12 in my mind.  13 Q   And the tidal quotation here begins the tide would  14 indicate, would it not, that the Sea of the West was  15 inland and that the coastal voyager is meeting a tidal  16 flow at that particular point?  17 A   That's the way I would interpret the map, yes.  18 Q   Yes, thank you.  Now, am I right that he marks the  19 River of the West as extending from what we would call  20 Lake of the Woods through Lake Winnipeg and thence  21 west?  22 A   Yes, it's so confused it would be hard to -- yes, from  23 the Lake of the Woods, what I take to be is  24 representation of the Lake of the Woods stream flows  25 out toward the Sea of the West.  26 Q   Yes.  27 A   It is a most confusing representation but that's my  28 interpretation of it.  29 THE COURT:  Lake Manitoba, wouldn't it, rather than —  30 THE WITNESS:  My lord?  31 THE COURT:  — rather than Lake Winnipeg?  32 MR. GOLDIE:  The lake that I have been referring to, my lord, as  33 Manitoba -- Winnipeg.  34 THE COURT:  There is another one further north, a larger one.  35 More like to be Lake Winnipeg, would it, but I don't  3 6 know.  37 MR. GOLDIE:  Well, there is — the large lake, my lord, is  38 directly north of what looks to be the Lake of the  39 Woods.  40 THE COURT:  Well, there are two large lakes up there.  41 MR. GOLDIE:  Yes.  42 THE COURT:  Yes.  43 MR. GOLDIE:  But if you go directly west from the Lake of the  44 Woods along the river, you come to what I have been  45 calling Lake Winnipeg.  4 6 THE COURT:  Yes.  47 MR. GOLDIE:  There was another map placed before you yesterday, 20291  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  i  4  5  MR.  RUSH:  6  MR.  GOLDIE  7  THE  COURT:  8  MR.  GOLDIE  9  10  11  THE  COURT:  12  MR.  RUSH:  13  MR.  GOLDIE  14  THE  COURT:  15  MR.  GOLDIE  16  THE  COURT:  17  THE  regist:  18  THE  COURT:  19  MR.  GOLDIE  20  Q  21  A  22  Q  23  24  25  A  26  27  28  Q  29  30  31  A  32  Q  33  34  35  A  36  Q  37  A  38  MR.  GOLDIE  39  40  MR.  RUSH:  41  MR.  GOLDIE  42  THE  COURT:  43  44  MR.  GOLDIE  45  Q  46  A  47  THE  COURT:  Dr. Farley, Exhibit 1027-29A.  I think it's another  original.  That's the one you should examine, my lord.  Would your lordship care to have the photographic  print of this?  The original has been handed up.  :  The witness has the original.  All right.  This is what number?  :  Exhibit -- well, it's -- the note I have made of  what my friend told us was that it is Exhibit  1027-29A.  Yes, all right.  That's also Exhibit 1149-14.  :  Without the tracing, though.  1149-14.  :  14, but without the coloured tracing.  Yes, all right.  Is this the exhibit?  RAR:  No, that's Mr. Goldie's copy.  All right.  The underlying map is de L'Isle's map?  Yes.  Which is, Mr. Rush has pointed out, number 14 in your  folio, but with its coloured boundaries that is not  found on your base map, is it?  No, from a note on the bottom of this, handwritten  note, it was put on by a former student, Ed Dahl, who  was with the National Archives in Ottawa.  Now, the River to the West is identified by Bellin as  the Assiniboine using an Anglicized version of the  name?  Yes.  And to the west of that, one comes to the words which  freely translated might be said one is given to  believe which goes to the Mer of the West?  Yes.  And then he terminates the Assiniboine?  Yes.  :  That map is some three years after the last date on  LaRouge's map of 1752?  Isn't that leading, my lord?  :  Well, it's self evident.  I don't think it is a question, it is a statement to  put the witness in context, I suppose.  You'd agree with me that that's what it is?  Yes.  That language is under the blue line, is it? 20292  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 THE WITNESS:  Yes, my lord.  2 THE COURT:  Yes, all right.  3 MR. GOLDIE:  4 Q   Referring back to LaRouge for a minute, doctor?  5 A   Yes.  6 THE COURT:  Suppose it flows to the River of the West or the Sea  7 of the West, Mer, I guess?  8 THE WITNESS:  To the Sea of the West, M-e-r.  9 MR. GOLDIE:  10 Q   Turning back to LaRouge's map and identifying first  11 the Lake of the Woods, what appears to be the Lake of  12 the Woods, and then travelling west to what I have  13 called Lake Winnipeg?  14 A   Yes.  It certainly has on the map Winnipeg en L, so  15 Lake Winnipeg, yes.  16 Q   He has clearly displaced Lake Winnipeg very far west,  17 has he not?  18 A   Oh, very far.  It's not in the -- not in anything like  19 the right magnitude.  20 MR. GOLDIE:  So much so that he had to put the Sea of the West  21 out in the Pacific?  22 MR. RUSH:  Well my lord, if my friend wants to make an argument  23 about the map, surely he will do that, but he is just  24 suggesting the answer to the witness.  25 MR. GOLDIE:  I only put that —  2 6 THE COURT:  Yes, all right.  27 MR. GOLDIE:  28 Q   Professor Williams, in the extract that my friend has  29 put in at page 148, tab 10 -- well, first I should ask  30 you, doctor, if, how you would rank as cartographers  31 LaRouge and Bellin, the two have been linked together  32 now?  33 A   Yes.  Bellin, far superior.  As I think I have  34 indicated in earlier testimony, he headed a  35 cartographic section of the Ministry of Marine, he is  36 regarded by contemporary scholars as possibly  37 producing the best French maps of Canada up to the  38 middle of the 18th century.  39 THE COURT:  Is it convenient to take the adjournment, Mr.  40 Goldie?  41 MR. GOLDIE:  All right.  Thank you, my lord.  42  43  44  45  46  47 20293  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 THE REGISTRAR:  Order in court.  Court stands adjourned for a  2 short recess.  3  4 (PROCEEDINGS ADJOURNED AT 11:20 a.m.)  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein, transcribed to the  9 best of my skill and ability.  10  11  12  13  14    15 TANNIS DEFOE, Official Reporter  16 United Reporting Service Ltd.  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 20294  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 (PROCEEDINGS RECOMMENCED AFTER RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My Lord, I want to direct the witness's attention  6 to the cross-examination that my friend conducted on  7 the 22nd of September, volume 271, page 20010 through  8 at least 20015.  9 MR. RUSH:  That's at volume —  10 MR. GOLDIE:  I'm sorry, page 20010.  11 MR. RUSH:  I'm sorry.  Excuse me.  12 MR. GOLDIE:  13 Q   In that discussion, Dr. Farley, Mr. Rush was asking  14 you whether it would not be possible to conclude that  15 Popple copied certain features or had information from  16 De L'Isle's map.  Do you recall that?  17 A   Yes.  18 Q   And, for instance, and I refer at page 20015, the  19 question was put to you:  20  21 "Q   And when you asked yourself that question,  22 wouldn't you have concluded that it's likely  23 that he, Mr. Popple, relied on De L'isle,  24 1703?"  25  26 And you said you couldn't say that.  That possibly  27 you could, but possibly that were other sources, and  28 they would have gone directly to it.  I have had  29 copied a section of a Popple map that I want to place  30 before you.  Do you recognize this?  31 A   Yes, this is from the facsimilie of the Popple map.  32 This is part of the northwest quadrant of the Popple  33 map.  34 Q   Is this closer to the actual scale of the Popple map?  35 MR. RUSH:  Which Popple map are we talking about?  36 MR. GOLDIE:  37 Q   I'm sorry, of the map of which there is a -- a map of  38 which a copy has been placed before you.  39 A   This is the scale of the large Popple map, what has  40 been referred to earlier, and I think I made this  41 clear in earlier testimony, is a reduced consolidated  42 map of the whole area contained in the large scale  4 3 map.  44 MR. RUSH:  What Popple map, My Lord?  45 MR. GOLDIE:  I am just going to come to that.  46 MR. RUSH:  I think the witness should be asked that, not offered  47 by my friend. 20295  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 MR. GOLDIE:  Well, when I say I'll come to that, I mean I am  2 about to bring the witness to that.  3 Q   This is -- well, would you tell His Lordship  4 whether -- what relationship this bears to the --  5 THE COURT: Is this a part of what's in the atlas somewhere?  6 THE WITNESS:  Yes, My Lord.  7 THE COURT:  Whereabouts?  8 THE WITNESS:  I don't have the atlas in front of me.  9 MR. GOLDIE:  10 Q   What are you looking for?  Map 9 in your atlas,  11 doctor?  12 A   Yes.  13 Q   All right.  I will place that in front of you.  14 A   Thank you.  15 Q   Are there not some differences between what you have  16 in your atlas and what I have placed in front of you?  17 And I direct your attention to the lake, which is at  18 the -- virtually the centre or the right centre of the  19 map -- at the top of it, Assinipoueles.  20 MR. RUSH:  Well, I object to this, My Lord.  21 THE COURT:  Yes, go ahead.  22 MR. RUSH:  The objections are two-fold.  One is the map hasn't  23 been identified.  Secondly, my friend's leading the  24 witness to differences in the maps.  I was working on  25 the assumption, as Your Lordship may have been, that  26 in fact the Popple map that was in the folio was -- is  27 part of this enhancement that's in front of us.  I  28 think that -- the identification of this map should be  29 made clear from the witness's knowledge, because I  30 haven't seen this before, or at least I don't think I  31 have seen this before, and I would like to know if I  32 have or I haven't.  33 THE COURT:  I think he told us that it is a part of the map of  34 which 1149-9 is.  35 MR. RUSH:  The question that my friend poses, are there not  36 differences, strongly suggests that it isn't.  37 THE COURT:  Yes, that's the most recent question.  Perhaps you  38 could clear that up, Mr. Goldie.  39 MR. GOLDIE:  40 Q   I am going to direct the witness's attention to  41 certain details, which I am going to ask him to  42 comment on.  And I am directing him to the -- on the  43 large scale to the lake which is Assinipoueles.  Do  44 you see that?  45 A   Yes.  46 Q   And if you go south from there, you come to something  47 called Lake Sious, S-i-o-u-s, or Issatie, 20296  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 I-s-s-a-t-i-e.  Do you see that?  2 A   Yes.  3 Q   And to the right on the large scale there are these  4 words, and I quote:  5  6 "There are 24 villages of Issatie's around this  7 lake."  8  9 A   Yes.  10 Q   Now, if you go to --  11 MR. RUSH:  That's not what it says on the Popple map, My Lord.  12 MR. GOLDIE:  That's just the point I am coming to, if you will  13 allow me.  14 Q   If you go to your map 9.  15 A   Yes.  16 Q   And find the same feature, Lake Assinipoueles.  17 A   Yes.  18 Q   Go south.  19 A   Yes.  20 Q   And come to Lake Issatie.  21 A   Yes.  22 Q   And would you read the words that are found there.  23 A   "Villages of Issatie's".  24 Q   Yes.  Now, I take it -- doesn't that suggest to you,  25 doctor --  26 THE COURT:  Let's not — let's put it another way.  27 MR. RUSH:  Well, My Lord, if I may say, suggests to me that the  28 maps aren't the same, and I think the witness -- I  29 come back to the same question I asked at the  30 beginning of the sequence, the witness should be asked  31 to identify the map.  32 THE COURT:  Let's do that.  33 MR. GOLDIE:  34 Q   All right.  Can you identify the enlarged scale that I  35 placed before you a few minutes ago?  36 A   Yes.  This map is derived from a facsimilie of the  37 original Popple map, which is a large scaled map,  38 which comes in several sections.  And I thought I had  39 indicated in my earlier testimony that the map 9 in my  40 folio is a generalized map by Popple, by the same  41 author and of the same date, the generalized map which  42 provides the overall view of -- well, of eastern  43 America, southeastern America, and since the large  44 scale sheets have space on them to put more  45 information, that is what Popple did.  He has  46 indicated in somewhat more detail certain features,  47 and that -- this is by no means an unusual occurrence 20297  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH  THE COURT  that maps -- large scale maps of the Popple sort.  Q   So that it's the same author, the same map, as you put  it a minute ago, but one is the detail and the other  is -- what did you call it, generalized?  A   It's the general sheet -- it's not exactly an index  sheet, but it's the general -- it provides a general  overview to the area contained in the large scale map,  which this map -- my map 9 accompanies.  Q   All right.  Thank you.  Now, the purpose of placing  before you the enlarged portion was to ask you whether  in your opinion Popple copied details from De L'Isle's  map.  I object to that, My Lord.  There is no ambiguity in  the witness's evidence on the subject.  This is  cross-examination of the witness on cross-examination.  I'm not sure what the premise is.  I thought Mr.  Goldie started by saying that it was suggested in  cross-examination that Popple had copied something  from De L'isle.  Is that --  GOLDIE:  Yes, that was the line of cross-examination.  COURT:  All right.  GOLDIE:  And I wanted to, with the assistance of an enlarged  portion of Popple, ask him if in his opinion Popple  copied in the literal sense from De L'Isle's map.  My Lord, the point is that my friend can examine on  this if there is an ambiguity or if there is a loose  end or something that is in need of explanation.  The  examination or cross-examination on the subject does  not raise any of those issues, and the Popple map  itself was referred to, I presume, this enlarged  version was in the mind of the witness when he  referred to the reduced --  THE COURT:  The question arose in cross-examination whether  Popple copied De L'isle.  It seems to me that that is  a subject for re-examination, is it not?  MR. RUSH:  I disagree, My Lord.  The answer was this at 2,015:  "Q   And when you asked yourself that question,  wouldn't you have concluded that it's likely  that he, Mr. Popple, relied on De L'isle 1703?  A   I can't say that.  As I have pointed out just a  moment ago, I -- as I compare the two maps, I  really cannot say that he -- that he, Popple,  relied on De L'isle for his representation.  Yes, there is a similarity, but there is --  it's not an identical representation.  And I  notice -- the point has already been made that  MR.  THE  MR.  MR. RUSH 2029?  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT:  MR. RUSH:  name Moingona is placed on that -- what la  Hontan would have called the River of the  Dead."  Now, My Lord, this is cross-examining on  cross-examination.  It's not a question of clearing up  any ambiguity.  That's where I had trouble, Mr. Rush.  I never  understood that an ambiguity or something close to it  is a prerequisite to re-examination.  Re-examination  can deal with all sorts of subjects or classes of  subjects, if it is opened up by cross-examination.  If  it is introduced -- if the issues or question is  introduced in another case by cross-examination, then  it's open for re-examination, whether it amounts to --  whether there is an ambiguity or not.  It seems to me that Mr. Goldie -- far be it for me  to put questions into counsel's mind, but for  illustration, the question of copying having been  brought up in cross-examination, can the witness -- it  not be said, with the assistance of something I am  showing you, can you enlarge further on this question  of copying.  Surely that is a -- would be a proper  re-examination, even though there is no underlying  ambiguity or uncertainty in the previous answer.  But, My Lord, his answer in direct was this regarding  the Popple map:  "Yes, this is map 9 by Henry Popple.  What we  have before us, My Lord, is the general map  that accompanies a much larger map that is in  sections."  Now we get one of the sections.  Yes.  "If memory serves me correctly, there are eight  separate sections to this map.  They are a  considerably larger scale than what we might  call a condensed version that we have before  us.  The information that Popple employed was  for the interior largely from French sources,  derived from French sources.  Once again a  number of scholars have examined this map and  have written about it." 20299  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2 My Lord, I don't raise that question in  3 cross-examination.  De L'isle was a French source, and  4 the purpose of the cross-examination was to relate the  5 two sources.  The issue was raised by my friend in  6 direct.  7 THE COURT:  Well, the distinction has to be between preparing a  8 map from French sources and copying the French map.  9 Now, I don't know if there is a distinction there or  10 not, but I can see quite clearly where semantically at  11 least there could be a distinction.  One would be to  12 trace a French map, and the other one says look at  13 French information or sources and draw your own map,  14 and it seems to me when you introduce the issue of  15 copying, that that becomes a matter for  16 re-examination.  But I don't think it can go beyond  17 what I have suggested.  18 MR. RUSH:  Yes, My Lord.  But I didn't raise the question of  19 copying.  That's my friend's characterization.  I  20 raised the question of similarity, which is the issue  21 raised in direct.  22 MR. GOLDIE:  The question that was put in cross-examination at  23 20010 is at line 32:  24  25 "Is it not likely that he, Mr. Popple, in 1733  26 was relying on De L'Isle's depiction of the de  27 la Hontan account that he put in his 1703 map?"  28  29 And that went on for a number of pages.  And what  30 I want to put to the witness is with the enlarged  31 version, are you able to add to your answer with  32 respect to the question of relying upon the depiction.  33 Now that's the map.  34 THE COURT:  I think it's close enough to the line that I will  35 allow the re-examination --  36 MR. GOLDIE:  Well, I proposed asking the witness, My Lord, if he  37 is able to enlarge upon with the -- with one of the  38 sections of the large Popple map before him, enlarge  39 upon the question of -- the sources, whether it is  40 likely in his opinion that Popple relied upon the  41 depiction of anything in De L'Isle's map.  And I  42 restrict it to map.  For his chart or map of --  43 Popple's map.  44 THE COURT:  Which is number 9?  45 MR. GOLDIE:  Which is number 9 or the larger part.  46 A  May I be permitted to look at the De L'isle --  47 Q   Yes, please. 20300  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Well, certainly there are some evident differences,  not the least, of course, is -- not the least of which  is the language.  This is all English language on the  Popple map, but more important than that, the  representation of the features themselves.  Quite  different, if I look at Assinipoueles and then also  Assinipoulacs, the representation of that feature is  different, and the configuration of the islands within  it is different.  The Lake Sious or Issatie is not  evident, at least to my cursory examination of the De  L'isle.  There is a similarity in Lake Mississuecaigan  or Buade, a general similarity, but there are many  differences.  So that clearly the Popple map cannot be  said, by any stretch of the imagination, to have been  a copy or have been the line work to have been derived  directly from the De L'isle.  Now, it leaves open the question of how much of  the De L'isle information Popple saw fit to include,  that is in the way of background information, but I  can't assess that.  Q   All right.  Thank you, doctor.  I tender the large  scale portion of the Popple map as an exhibit.  THE COURT:  I think it would be convenient to mark as 1149-9A.  MR. RUSH:  My Lord, I don't object to it, subject to my  reviewing my friend's copy of the larger map.  And if  I chose to enter any other portions of this, I would  like to reserve the right --  THE COURT:  Yes.  MR. RUSH:  And I would like my friend to indicate he can provide  me with that review --  MR. GOLDIE:  We do not have the other portions of that map, but  I imagine that in the fullness of time we can get it  from whatever source it came from.  THE COURT:  1149-9A?  MR. GOLDIE:  Yes.  (EXHIBIT NO. 1149-9A - POPPLE MAP)  MR. GOLDIE:  Now, My Lord, I don't know whether my friend is  prepared to comment on the "British Search for the  Northwest Passage", the parts of Williams' book that I  tendered, but if he is not, then I can leave it.  MR. RUSH:  I didn't prepare it -- I didn't realize it was a  pressing thing for my friend.  I am quite happy to do  it at the luncheon break.  MR.  GOLDIE:  Q   Dr.  Farley, my friend placed in his book an extract 20301  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  THE  COURT:  3  4  5  6  MR.  GOLDIE  7  8  9  THE  COURT:  10  11  12  MR.  GOLDIE  13  THE  COURT:  14  MR.  RUSH:  15  THE  COURT:  16  MR.  GOLDIE  17  THE  COURT:  18  MR.  GOLDIE  19  THE  COURT:  20  21  MR.  GOLDIE  22  23  ]  24  THE  COURT:  25  MR.  GOLDIE  26  THE  COURT:  27  28  MR.  GOLDIE  29  30  31  THE  COURT:  32  33  34  MR.  GOLDIE  35  THE  COURT:  36  MR.  GOLDIE  37  38  39  MR.  RUSH:  40  41  42  43  44  MR.  GOLDIE  45  46  47  from your thesis.  It's under tab 2, My Lord.  Before you go onto that.  These two, 1154-15 and  1154-14, is there any reason why they shouldn't  conveniently be placed at the exhibit that bears the  closest numbering relationship to them?  :  I have an idea that my friend tendered at least one  of those, and a separate number was given to it, but  perhaps we might --  Well, I am going to put them in with the exhibit  they referred to and hope for the best.  One will be  1154-15.  :  Is that the LaRouge map?  That's —  LaRouge was 15.  Yes, that's LaRouge.  :  And the other one --  The other one --  :  Is Bellin with the coloured boundaries.  So I'll put in 1149-14.  I have a feeling 1149-15 is  wrong.  Wait a minute.  : The Bellin map with the coloured boundaries was  tendered by my friend as being the original of Mr.  Morrison's -- one of Mr. --  1027-25A?  :  Yes.  But that's not much help when I am looking at the  exhibits in connection with the evidence.  :  There is also Bellin in Dr. Farley's folio, and I  think my friend put Bellin also in his book of  cross-examination --  I am going to put this one with the coloured  boundaries in with 1149-14.  That would be the best  place to put it.  :  All right.  Sorry, Mr. Goldie.  :  My Lord, I was going to ask the witness to identify  from his thesis, which is a lengthy one, the preface  and the list of plates --  I object to this, My Lord.  What's the purpose --  what's the relevance of this?  Surely it's directed to  something in cross-examination.  If it is, my friend  should reference it to something in  cross-examination --  :  Well, my friend put to the witness those parts of  his thesis found at tab 2 of his cross-examination  book, and he read to him from page 29 and page 31,  page 106.  I am not proposing to put in the whole 20302  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  thesis, but I think it would be appropriate if I  placed before the witness and asked him to identify  the preface.  MR. RUSH:  Well, My Lord, I disagree.  The point of the  cross-examination was directed at specific maps that  were found in the folio.  And the cross-examination,  if my friend wants to relate it to the  cross-examination that pertained to Sanson's map in  the one instance, or in the case of Vaugondy's map,  both of which were found in the folio, then I say it's  relevant.  But not everything in the thesis is  relevant.  And the particular passage that my friend  seeks to put in is self-serving in the extreme.  And I  might well say that it has absolutely nothing to do  with the opinions proffered by the witness on these  maps.  And I say that unless the re-direct in this  context can be related to the reasons for advancing  the thesis, in terms of the cross-examination, then I  say it's not -- it's not a permissible subject for  re-direct.  Not every aspect -- I don't open up every  aspect of Dr. Farley's thesis because I make reference  to two passages from it that pertains to folio maps  referred to in his direct examination.  THE COURT:  Well, I am in between two principles again.  One  being that when a witness is asked in cross did you  say this, he can be asked what else did you say.  And  you said on the same subject.  On the same subject, My Lord, yes.  And the other principle is whether this follows  within my ruling.  And the whole thing would be  admissible in argument -- in argument if counsel  wishes to --  Well, My Lord, I would disagree with that  proposition.  We haven't had the situation where it's the  witness's own thesis before.  Correct.  I mean, if my friend wanted to rely upon  the learned thesis as a bootstrapping method to serve  the witness's opinion in the witness stand, then  that's an issue that would be debated in terms of the  direct examination.  But in my submission in this  context it's clearly not, as part of re-direct, a  proper form of re-direct to answer specifically placed  questions on the thesis in cross.  THE COURT:  Well, then, I have to ask Mr. Goldie whether the  parts you want to put in relate to the parts that Mr.  Rush used.  Mr. Goldie.  MR.  THE  MR.  THE  MR.  RUSH:  COURT  RUSH:  COURT  RUSH: 20303  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  MR. GOLDIE:  The parts that Mr. Rush used were picked for his  purpose, and I can't be sure that I understand what  the purpose is.  But the pages in which he  cross-examined the witness on are pages 29, 30, 31 and  106.  Now 29 was general.  There is no reference to  any map at all.  COURT:  They were related largely to the motivation, were  they not --  GOLDIE:  Motivation and what people were looking for.  And  then he made reference to Sanson on page 30.  Page 31  is again strictly related to the general issue which  he raised.  COURT:  Of exploration?  GOLDIE:  Of exploration.  And which was not -- My Lord,  those questions could be put to the witness without  reference to what he wrote in 1960.  My purpose in  putting the preface to the witness is to indicate the  purpose for which he wrote that thesis.  COURT:  As bearing upon -- as having a --  GOLDIE:  As bearing upon the statements that he made on  which he was cross-examined.  COURT:  As I have often said, I wish we could abolish  re-examination.  GOLDIE:  Well, I may agree with Your Lordship.  But having  had the witness questioned on his thesis, I am left  with the concern that the purpose for which he wrote  it was not -- would be misrepresented.  MR. RUSH:  Is that not, My Lord, a function of my friend, if he  thinks that is a proper question for cross-examination  or re-direct, then he should relate it to the question  of cross-examination that raised the issue, and then  ask the witness why did you write the thesis, if  that's what he wants to do.  But I think he has to  pass that threshold.  And this -- the passage my  friend seeks to put in goes far beyond the purpose for  which he states it.  It is in fact a preface to the  thesis, and outlines what the witness's thinking was  in 1960 when he inscribed his thesis.  THE COURT:  I think the safe course to follow here is to limit  the re-examination to the subject matters raised in  cross-examination.  And I think that re-examination  will only be permissible if it relates to the same  subject matter as the parts upon which the witness was  cross-examined.  Otherwise I don't know how long the  thesis is, but it would let in an enormous amount.  And I think that if there is a question that goes to  the context in which the passages which are -- should  THE  MR.  THE  MR. 20304  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1 be considered, then I think that can be done without  2 putting in the preface in the first instance.  If  3 matters developed, then it may become admissible.  I  4 don't think it is in the first instance.  5 MR. GOLDIE:  Well, odd as it may seem, I adopted this course  6 because it would save time.  7 THE COURT:  You failed miserably, Mr. Goldie.  8 MR. GOLDIE:  Yes.  9 Q   Dr. Farley, your thesis was entitled "Historical  10 Cartography of British Columbia", with a separate  11 appendix of maps.  And the appendix of the maps is  12 found in the -- is found in the part that my friend  13 put in.  I think it's the sixth page in.  14 A   Yes.  15 Q   I just want to be sure that that -- that is an  16 incomplete list of the authorities that you referred  17 to?  I mean the maps that you examined for the  18 purposes of arriving at your thesis.  What I am  19 getting at, doctor, is the part that my friend put in  20 stops at 22.  21 A   Yes.  22 Q   And —  23 A   There were far more maps that were included with the  24 folio of maps that went with the dissertation.  25 Q   And indeed the maps that you looked at for the  26 purposes of your dissertation went down to 90 -- no, I  27 beg your pardon, 98?  28 A   Yes.  That's the list of reproductions that  29 accompanied the dissertation in the folio of maps.  30 MR. GOLDIE:  Now, My Lord —  31 THE COURT:  I don't have any trouble with that, Mr. Goldie, if  32 you put in only a partial list of maps, I think the  33 whole list can go in if you wish.  34 MR. GOLDIE:  Thank you, My Lord.  And might I ask that that be  35 inserted at the end of the extracts that my friend has  36 put in.  37 THE COURT:  Yes.  38 THE REGISTRAR:  Where is this going?  39 MR. GOLDIE:  Going in at the end of the extracts of tab 2.  40 THE COURT:  In front of page 28.  41 THE REGISTRAR:  Thank you.  And I would just like to clarify  42 this enlargement of the Popple map is 1149-9A.  43 MR. GOLDIE:  Yes.  44 Q   And, doctor, can I ask you if you'd -- is there a  45 statement -- yes.  If you would look at -- under tab 2  46 of the cross-examination book.  On Roman III.  It's  47 the second page in, doctor. 20305  A.L. Farley (for Province)  Re-exam by Mr. Goldie  1  A  2  Q  3  4  5  6  7  8  9  A  10  Q  11  12  13  14  A  15  16  17  1  18  MR.  GOLDIE  19  20  THE  COURT:  21  MR.  RUSH:  22  23  24  25  26  27  28  29  30  THE  COURT:  31  MR.  RUSH:  32  33  34  THE  COURT:  35  MR.  RUSH:  36  37  38  39  THE  COURT:  40  MR.  FREY: :  41  THE  COURT:  42  MR.  GOLDIE  43  THE  COURT:  44  45  46  47  Yes.  Thank you.  The statement is made there:  "The purpose of this study is to trace the  evolution of the map of British Columbia."  In so doing, you examined all of the sources that  are now listed in the plates that accompanied the --  Yes.  Yes.  All right.  Have your opinions that you have  expressed here changed from the opinions which you  expressed in your thesis, so far as they are relevant  to what you have stated here?  No.  They are -- the opinions that I expressed here  and are contained in my report and accompanying maps  fits completely with what I have indicated for British  Columbia in this dissertation.  :   All right.  Thank you.  I now tender Dr. Farley's  report as an exhibit proper.  Yes.  Mr. Rush.  My Lord, I stand by the objections that I took, and  that I recognize Your Lordship's inclination with  regard to this.  I can say that there is one passage  which I took to be the case that my friend conceded  that it was inappropriate for the report in  particular, and inappropriate as offending the rulings  Your Lordship has made, and that was the passage to be  found at page 25.  And it's the last sentence of the  second full paragraph.  And I stated in my --  Yes.  -- in all of my submissions, that that in particular  had no business in the opinion or in the evidence, and  I stand by that.  Yes.  And subject to what I have argued earlier, I think  that that sentence should be struck.  And Your  Lordship has my submissions that I have made earlier  on the subject.  All right.  Mr. Frey or Ms. Russell?  No submission, My Lord.  Mr. Goldie?  :  I don't object to that being taken out.  I think that passage should be struck out.  But  otherwise I will deal with the matter as I have  already described earlier today.  So it will now be  Exhibit 1148. 20306  F.M. Greenwood (for Province)  In chief by Mr. Goldie  (EXHIBIT NO. 1148 - REPORT OF DR. FARLEY)  MR. GOLDIE:  May the witness be excused, My Lord?  THE COURT:  Yes, certainly.  Thank you, doctor.  THE WITNESS:  Thank you, My Lord.  (WITNESS EXCUSED)  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  My Lord, there was just one other question that  relates to the evidence here.  I believe that this has  already been spoken to, but it's not clear in my mind  if it is understood that another one of the  photocopies of -- or at least a better copy, more  legible copy of the map introduced by Mr. Morrison was  tendered.  And Madam Registrar and I both thought that  both copies of maps were tendered at the same time.  I  happen to have it on my desk, so it wasn't clear to  me.  I just want to hand it up now.  THE COURT:  All right.  Well, then, that will be placed along  with the exhibit that we have marked in Mr. Morrison's  collection of documents.  THE COURT:  Mr. Goldie.  MR. GOLDIE:  My Lord, the next witness is Dr. Murray Greenwood.  Call him please.  FRANK MURRAY GREENWOOD, a witness  called on behalf of the province,  having been duly sworn, testifies as  follows:  THE REGISTRAR:  Would you state your full name and spell your  last name please, sir.  THE WITNESS:  Frank Murray Greenwood, G-R-E-E-N-W-O-O-D.  THE REGISTRAR:  Thank you, sir.  Please be seated.  EXAMINATION IN CHIEF BY MR. GOLDIE:  Dr. Greenwood, I show you a copy of a document  entitled "The Royal Proclamation of 1763 in British  Columbia.  Did the framers intend its Indian lands  provisions to apply on what is now the far Canadian  West."  Are you the author of that document?  I am.  What is that again?  A  THE COURT:  MR. GOLDIE: "Did the framers intend its Indian lands provisions  to apply on what is now the far Canadian west." I ask  that a number be reserved for that, My Lord. 20307  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  MR.  RUSH:  2  3  MR.  GOLDIE  4  5  6  7  MR.  RUSH:  8  9  10  11  THE  COURT:  12  MR.  GOLDIE  13  14  THE  COURT:  15  THE  regist:  16  THE  COURT:  17  18  19  20  21  MR.  GOLDIE  22  Q  23  24  A  25  Q  26  A  27  Q  28  29  i  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  40  A  41  Q  42  A  43  Q  44  1  45  46  A  47  Q  I would be objecting to the tendering of this report  and the reservation of the number for it.  : Well, if my friend objects to the reservation of a  number for it, perhaps we should hear what he -- that  sounds to me like a pretty innocuous thing to do, but  I would be glad to hear my friend's objection to that.  I am sure that my friend would want to qualify the  witness before we go to the report.  I am not going to  quibble about reserving a number, but I am going to  obj ect.  All right.  :  Well, simply for the purposes of the record, My  Lord, I would ask that a number be reserved for it.  What is the next number?  RAR:  1156.  All right.  We will reserve 1156.  (EXHIBIT 1156 - RESERVED - ROYAL  PROCLAMATION OF 1763 - DR. GREENWOOD)  Dr. Greenwood, I understand that you live and were  born -- live presently in Ottawa?  Yes.  You were born in Montreal?  Yes.  And you received your undergraduate education at  Bishop's College, with a -- graduating there with a  degree in Bachelor of Arts, with honours in English  literature?  That would be Bishop's University.  Bishop's University.  I beg your pardon.  You achieved  that in 1956?  Yes.  And you attended Oxford, and you graduated from there  with a B.A. with honours in modern history?  Yes.  1958.  And in 1961 you were granted a Bachelor of Civil Law  from the Faculty of Law at McGill University?  That's correct.  And you were admitted to the Bar of Quebec in 1962?  That is correct.  And you practised with the firm of Howard, Cate,  Ogilvy, now Ogilvy, Renault, in Montreal from 1962 to  1964?  Yes.  You obtained an M.A. from Oxford in 1964, and a PhD 2030?  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 from the University of British Columbia in 1970; is  2 that correct?  3 A Yes.  4 Q And your PhD thesis was on, and I quote "The  5 Development of a Garrison Mentality among the English  6 in Lower Canada, 1793 to 1811"?  7 A That's correct.  8 Q And that thesis has been cited by authorities as  9 definitive in its field?  10 A Yes.  11 THE COURT:  What were the dates again?  12 MR. GOLDIE:  1793 to 1811, My Lord.  13 MR. RUSH: That's not what the CV. says.  14 MR. GOLDIE:  I'm sorry, did my friend wish to make a comment?  15 MR. RUSH: No.  Nothing further, My Lord.  16 MR. GOLDIE:  17 Q You were awarded the Jasper Nicholls Scholarship at  18 Bishop's University?  19 A Yes.  20 Q And from the same institution the Molson Brewery  21 Scholarship?  1956?  22 A Yes.  23 Q And from the same institution, the English Literature  24 prize in 1956?  25 A Yes.  26 Q You held a Rhode Scholarship at Oxford from 1956 to  27 1958?  28 A Yes.  29 Q And you were awarded a prize in Public Law at McGill  30 in 1961?  31 A Yes.  32 Q And a student -- Graduate Student Fellowship at the  33 University of British Columbia from 1964 to 1966?  34 A Yes.  35 Q Your professional career at the University of British  36 Columbia was in the Faculty of Arts and the Department  37 of History?  38 A Yes.  39 Q From 1965 to 1988?  40 A Yes.  41 Q You were a part-time lecturer, instructor II,  42 assistant professor, associate professor from -- the  43 latter from 1980 to 1988?  44 A Yes.  45 Q And you are Emeritus in respect of that institution --  46 A Associate Professor Emeritus, yes.  47 Q You were a sessional lecturer in the Faculty of Law at 20309  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 the McGill University for the academic year 1988/'89?  2 A   Briefly.  The course was later cancelled.  But I  3 taught for a couple of weeks.  4 Q   All right.  You've held a number of internal  5 appointments at the -- on the History Department at  6 the University of British Columbia.  Would you enlarge  7 upon that please.  8 A  Well, as member of the numerous committees in the  9 History Department, dealing with all levels of the  10 Curriculum, Graduate Committee, Honours Committee,  11 which I chaired for awhile, Majors Committee and Lower  12 Division Committee.  In addition I served as Academic  13 Secretary to the head for a year, and I chaired the  14 Student Faculty Liaison Committee.  15 Q   All right.  Thank you.  The principal undergraduate  16 courses which you taught at the University of British  17 Columbia included History 420, "The Evolution of the  18 Canadian Constitution from 1763 to the present"?  19 A   Yes.  20 Q   And History 401 - and its predecessor, "French Canada  21 from the end of the Eighteenth Century to the  22 present"?  23 A   Yes.  24 Q   History 135 - "History of Canada"?  25 A   Yes.  26 Q   And History 145 - "History of French Canada", which I  27 understand is no longer taught?  28 A   Yes.  29 Q   And you conducted tutorials for honour students on  30 various aspects of Canadian history?  31 A   Yes.  32 Q   And you taught an interdisciplinary course no longer  33 taught on French Canada political science, literature,  34 history and economics?  35 A   Yes.  36 Q   And the -- and you taught graduate courses, including  37 seminars on French Canada, and you directed research  38 in the rebellion of 1837 to 1838?  39 A   Yes.  40 Q   And related -- and courses or seminars directing  41 research on the acquisition of sovereignty under the  42 Law of Nations in the century, and the Judicial  43 Committee under Lords Watson, Haldane and Atkin?  44 A   Both of those are directly research.  45 Q   You are no longer a member of the Bar of the Province  46 of Quebec?  47 A   That's correct. 20310  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q You are a member for the Society for History and Law  2 in Canada?  3 A Yes.  4 Q A member of the Osgoode Society?  5 A Yes.  6 Q A member of the Canadian Law and Society Association?  7 A Yes.  8 Q And you have given evidence in The Queen versus Adolph  9 as an expert witness?  10 A Yes, I have.  11 Q You have presented papers to learned conferences.  One  12 was in 1975, "The Rebellions in Lower Canada"?  13 A Yes.  14 Q And another to the B.C. Studies Conference in Victoria  15 in 1979, and a further one to American Law Teachers'  16 Association conference in 1980?  17 A Yes.  18 Q Canadian Law Teachers Association Conference in 1983?  19 A Yes.  20 Q And the Canadian Law and History Conference in 1987?  21 A Yes.  22 Q And to the Canadian Law and Society Association of the  23 Learned Societies Conference in June of 1988?  24 A Yes.  25 Q And to the Montreal, Ottawa Legal History Workshop at  26 the University of Montreal in 1989?  27 A Yes.  28 Q And to the Canadian Law and Society Association,  29 Learned Societies Conference in Laval in June of 1989?  30 A Yes.  31 Q And you have been responsible for editing and  32 translating papers, and you have written articles for  33 learned journals?  34 A I have not edited, translated papers.  I have edited  35 and translated a book, "Land of a Thousand Sorrows".  36 Q And you have written articles for learned journals,  37 including one on David Mills; is that correct?  38 A Yes.  39 Q In all, and without going through them in detail, you  40 have written some 20 learned articles?  41 A I have published 20.  42 Q Published 20.  And you have undertaken book reviews?  43 A Yes, I have.  44 Q And you have learned work in progress?  45 A Yes.  46 Q You have undertaken original research for the purposes  47 of your report here? 20311  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  A  2  Q  3  A  4  5  6  7  8  9  10  1  11  12  Q  13  A  14  15  1  16  Q  17  A  18  19  20  21  22  23  24  25  26  27  1  28  29  30  31  32  MR.  GOLDIE  33  34  ]  35  THE  COURT:  36  MR.  RUSH:  37  MR.  GOLDIE  38  THE  COURT:  39  MR.  RUSH:  40  41  MR.  GOLDIE  42  43  44  45  THE  COURT:  46  47  Yes, I have.  Would you describe that please?  Yes.  Well, first of all when I first came under  contract with you, I had already done research in the  area.  I had been teaching the subject of the  Proclamation in my constitutional history course since  1965, and I was already familiar with the main printed  sources at that stage.  I had also, as you mentioned,  testified in Adolph in 1984.  And for that testimony I  did original research in printed and manuscript  sources.  The subject matter of your evidence was?  The subject matter of my evidence was whether the  Royal Proclamation was intending to apply to British  Columbia.  Proceed please.  In 1985 and subsequent years I familiarized myself  with as many printed primary sources as I could, that  I could lay my hands on which I thought were relevant.  I did this in a number of libraries, such as  University of British Columbia, the archives library  in Ottawa, the national library in Ottawa, and the  British library in London.  Further I made detailed searches for examinations  of -- and reflection upon manuscript sources bearing  on the Royal Proclamation, also maps, original 18th  Century maps.  I did that work in the National  Archives of Canada, the British library and the public  record office in London, both branches of it.  One is  at Chancery Lane, and the other is at Kew Gardens.  I  think that gives a general idea.  :   Yes.  My Lord, I submit that Dr. Greenwood is  qualified to express opinions in respect of the  matters -- the subject matter of his report.  All right.  I will hear --  I think my friend should say in what subject.  :  I thought that would be self-evident.  Yes.  Perhaps if it's so self-evident, perhaps you could  advise His Lordship.  :  In respect of the historic facts which enable him  to express an opinion on the intention as a matter of  fact of the framers with respect to the Indian lands  provisions and the Royal Proclamation of 1763.  I'll hear you at 2:00 o'clock, Mr. Rush.  (PROCEEDINGS ADJOURNED FOR LUNCHEON RECESS) 20312  Proceedings  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  I HEREBY CERTIFY THE FOREGOING TO  BE A TRUE AND ACCURATE TRANSCRIPT  OF THE PROCEEDINGS HEREIN TO THE  BEST OF MY SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 20313  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 (PROCEEDINGS RESUMED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  I understand that counsel are agreed that it might  5 be necessary to sit on Saturday.  6 MR. GOLDIE:  I think so, my lord.  7 MR. RUSH:  No problem with that.  8 THE COURT:  All right, 9:30 then Saturday morning.  9 MR. GOLDIE:  Thank you, my lord.  10 THE COURT:  All right.  Mr. Grant.  11 MR. GRANT:  Yes, my lord.  Before Mr. Rush proceeds, I just want  12 to clarify a matter.  Exhibit 1145 capital A, the  13 cross-examination of Allan Fletcher has the list of  14 exhibits in the transcript and Exhibit number 8 is  15 misdescribed there as a January 17, 1935 letter from  16 Mr. Muirhead re:  trapline, and a May 3, 1935 letter  17 from Mr. Vandick to the game warden.  Those are not  18 the actual exhibits.  The actual exhibit is a July 28,  19 1931 application for registration of a trapline of  20 Peter Bazil and Company.  And when one looks at the  21 context on page 89 and 90 of the transcript it is  22 apparent that there was a misunderstanding when the  23 reporter referred to that.  Madam registrar pointed  24 this out to me this morning and the transcript of  25 yesterday October 3, 1989 refers to Exhibit 1145  26 capital A-8 as the application for registration of  27 trapline of Peter Bazil and Company and it should just  28 be referred to as the July 28, 1931 application for  29 registration of a trapline of Peter Bazil and Company.  30 There is a confusion between the two transcripts.  I  31 just want to set out for the record which one is  32 correct.  33 THE COURT:  All right.  Thank you.  34 MR. GOLDIE:  I agree with that, my lord.  35 THE COURT:  Thank you.  36 MR. GOLDIE:  My lord, my friend Mr. Rush tells me that he has  37 looked at Dr. Williams' book and is satisfied that  38 these excerpts are taken from the edition and the book  39 that he was using and that it may be added to tab 10  40 of 1154.  41 THE COURT:  At the end, or where do you suggest?  42 MR. GOLDIE:  Well —  43 MR. RUSH:  I'd suggest it at the end, my lord.  44 MR. GOLDIE:  Yes.  45 MR. RUSH:  There is some pages that over duplicate.  4 6 THE COURT:  Yes, all right.  47 MR. GOLDIE:  I don't have any objection to that. 20314  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 THE COURT:  All right.  Thank you.  2 THE REGISTRAR:  At the end, my lord?  3 THE COURT:  Yes.  You have a set for my book, Miss Thomson?  All  4 right, thank you.  Mr. Rush.  5  6 CROSS-EXAMINATION ON QUALIFICATIONS BY MR. RUSH:  7 Q   Yes.  I am handing up a document in two parts, my  8 lord, it is the witness' C.V., together with the  9 transfer letter, transfer letter is located at the  10 back and I don't really intend to make reference to  11 it, only indicating it was the date which it was  12 provided to me.  13 Now, I wonder if you can show that to the witness  14 please.  Now, Dr. Greenwood, if I may just -- this is  15 yours and I will just set these aside if you don't  16 mind.  I am showing you a document entitled Greenwood,  17 Frank Murray Edmund and Curriculum Vitae.  Can you  18 confirm for me that this is your curriculum vitae?  19 A   Yes, it is.  20 Q   Running to ten pages?  21 A   Yes, it does.  22 MR. RUSH:  Thank you.  May that be the next exhibit, my lord?  23 THE REGISTRAR:  1157, my lord.  24  25 (EXHIBIT 1157 - CURRICULUM VITAE OF F.M. GREENWOOD)  26  27 MR. RUSH:  Thank you.  I'd like you to keep that in front of  28 you, Dr. Greenwood.  29 MR. GOLDIE:  I take it my friend's not including my letter in  30 that?  31 MR. RUSH:  I'd like the letter included to indicate the date of  32 the transfer.  33 MR. GOLDIE:  Well, I think that's of this particular CV.  34 Earlier one had been sent to my friend much before  35 that.  3 6 MR. RUSH:  37 Q   Yes, I don't quarrel with that.  38 Now, Dr. Greenwood, I am going to be referring to  39 your CV. and I want you to make reference to this and  40 I will be drawing your attention to certain portions  41 of it.  From your CV. it is clear that you obtained a  42 Bachelor of Civil Law at McGill University in Montreal  43 in 1961?  44 A   Yes.  45 Q   And you were admitted to the bar in the province of  46 Quebec in '62?  47 A   Yes. 20315  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 Q   And were you required to article before your admission  2 to the bar?  3 A   Yes, I was.  4 Q   And did you article in the year after obtaining your  5 law degree?  6 A   '61 to '62.  7 Q   And where did you article please?  8 A   Howard, Cate, Ogilvy.  9 Q   The firm that you eventually took up a practice of law  10 with?  11 A   Yes.  That's now known as Ogilvy, Renault.  12 Q   And when you were articling there, were you engaged in  13 the writing of legal opinions and legal briefs?  14 A   Yes.  15 Q   And you practiced law with the lawfirm of Howard,  16 Cate, Ogilvy, now Ogilvy, Renault for two years?  17 A   That's correct.  18 Q   '62 to '64?  19 A   Yes.  2 0 Q   And I think that that appears under your heading Roman  21 III:  Professional Employment Record at sub-paragraph  22 a) on page 2, correct?  23 A  Where is this page 2?  24 Q   Page 2?  25 A   Yes.  2 6 Q   Roman III?  27 A   Yes, right.  28 Q   Thank you.  Now, I understand that while you were with  29 Howard, Cate, and Ogilvy you were an opinion writer?  30 A  Well, I was also in court litigating but I did a  31 considerable number of opinions, yes.  32 Q   Did you write constitutional law opinions for that  33 firm?  34 A   Yes, I did.  35 Q   And were these opinions opinions for the partners on  36 outstanding litigation which they were conducting?  37 A   On occasion, but often it would be simply a  38 preliminary kind of study; for example, Canadian  39 Bankers Association asked me for an opinion on the  40 vires of the Bank of B.C. that I don't think was in  41 court at the time.  42 Q   I see.  That would be the type of opinion that you  43 were called upon to write?  44 A   Yes.  45 Q   Now —  46 A   In the constitutional law area.  I did some, you know,  47 civil law as well. 20316  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 Q   You did some opinion writing in the civil law area as  2 well?  3 A   Civil law, yeah.  4 Q   Now, I take it that, perhaps not in all cases, but  5 these opinions were utilized by the partners in  6 argument in positions advanced in the litigation?  7 A   In advising their clients and I guess in the  8 occasional case in litigation.  9 Q   All right.  And you were also involved in some real  10 estate litigation I understand?  11 A   That's correct.  12 Q   Now, you maintained your membership in the bar of  13 Quebec for a period of time after ceasing to practice  14 law with --  15 A   No.  I stopped paying my fees immediately, seemed to  16 be kind of a useless idea to keep paying, so I became  17 inactive I believe in '64.  18 Q   All right.  And inactive means that you are no longer  19 paying fees but should you decide that you wished to  20 practice again in the province of Quebec you simply  21 pick up the payment of your fees; is that so?  22 A   I think you have to pay them all back.  23 Q   I see.  Well, that could be problematic after these  24 years?  25 A   Yes.  26 Q   Now, you -- according to your C.V., Dr. Greenwood, I  27 am here referring you to page 3 now, your professional  28 activities.  You were and are a member of the Canadian  29 Law and Society Association?  30 A   Yes.  31 Q   And you say that you were a member of the Legal  32 Studies Dinner Seminars at the UBC Faculty of Law, '83  33 to '88?  34 A   Yes.  That's over now for me.  35 Q   And you have been a legal consultant to the Legal  36 Services Society of B.C. on law courses for high  37 school curriculum?  38 A   That's true.  39 Q   And you have been a legal consultant to the Department  40 of Justice?  41 A   That's true.  42 Q   And it indicates on page 4 of your C.V., the second  43 entry on page 4, and I am quoting, "Consultant to the  44 Crown in Right of Canada (Department of Justice) 1984  45 to the present"?  4 6 A  Mm-hmm.  47 Q   "...with regard to the current Indian land title 20317  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 litigation" and then parenthesis "(questions of  2 constitutional law, legal and constitutional history  3 of Canada, with particular emphasis on the Royal  4 Proclamation of 7 October 1763)"?  5 A   Yes.  6 Q   When were you first hired by the Department of  7 Justice --  8 A   Be —  9 Q   -- to be a consultant?  10 A   1984.  11 Q   Do you remember when in '84?  12 A   Yes, I think it would be August, September.  Phone  13 call in August, agreement in September.  14 Q   In September?  15 A   Yes.  16 Q   And was that by Mr. Tom Marsh of the Department of  17 Justice?  18 A   Certainly the initial phone call was, yes.  19 Q   I see.  And I take it that you were hired to provide a  20 legal opinion on questions of constitutional law,  21 legal and constitutional history of Canada with  22 particular emphasis on Royal Proclamation?  23 A  Well, my job was really twofold:  to render an opinion  24 on the applicability of the proclamation to British  25 Columbia, using historical sources, and also an  26 opinion on the legal status of the Proclamation of  27 1763, so really two halves to the opinion.  28 Q   Let me ask you if the two halves of the opinion might  29 be more precisely defined as these:  Firstly, whether  30 the Indian land provisions were intended to have the  31 force of a British Act of Parliament?  32 A   That would be in the legal aspect of the opinion, yes.  33 Q   Secondly, did those provisions apply to the  34 preconfederation colony of B.C.?  35 A   Yes, using historical materials and that.  36 Q   And legal materials?  37 A   Some.  38 Q   You continued to be a consultant to the Department of  39 Justice after that case; is that correct?  40 A   Yes.  41 Q   And it indicates in your CV. that you are consultant  42 to the Crown in Right of Canada to the present?  43 A   That's right.  I mean, there was a bit of a hiatus  44 before this case got going.  45 Q   Now, Dr. Greenwood, you provide legal consultant  46 services to counsel for Canada in this case, is that  47 so? 20318  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 A   Yes.  2 Q   And is that to Mr. Macaulay and Ms. Koenigsberg?  3 A   Yes.  4 Q   And, Dr. Greenwood, on what legal issues have you  5 provided consultation services to the counsel for the  6 Crown in Right of Canada in respect of this case?  7 A   I think the main question was was the proclamation the  8 equivalent of a British statute; was British Columbia  9 a settled colony; did the Quebec Act repeal the  10 proclamation, its Indian provisions, I mean, and the  11 effect I believe of the Colonial Laws Validity Act,  12 1865.  I may have missed something there but those  13 seem to be the important areas.  14 Q   Yes.  Now, the opinion that you did for the Department  15 of Justice in a case in which you provided expert  16 testimony, the case of The Queen and Adolph in 1984,  17 was entitled the Royal Proclamation of 1763 and ran to  18 about 80 pages in length?  19 A   Correct.  20 Q   And that was a legal brief, was it not?  21 A   No.  It was partly historical, partly legal.  As I  22 said, there were essentially two halves to it.  23 Q   I see.  Well, Dr. Greenwood, would you turn please to  24 page 9 in your CV. and under the heading Legal Briefs  25 number 1, it says quote, "'The Royal Proclamation of  26 1763' 80 pages filed in the case of The Queen and  27 Adolph et al. Kamloops B.C. 1984 and in parenthesis  28 (re fishing rights)" closed parenthesis end quote.  29 That indicates that that opinion was a legal brief,  30 does it not?  31 A   No, it doesn't.  32 Q   What does it indicate?  33 A   It indicates it is a brief that's filed in a legal  34 matter, ie, a case in court, but the substance of it  35 may or may not be legal.  36 Q   You called it a legal brief?  37 A   Yes, it is a brief in relation to legal matters.  38 Q   I see.  It is a brief in relation to legal matters?  39 A   Yes.  40 Q   It is not —  41 A   Presented in the legal form.  42 Q   And it is not an opinion, is it, Dr. Greenwood?  43 A   It is an opinion which involves both history and law.  44 Q   I see.  45 Now, Dr. Greenwood, you say in your CV. that from  46 1985 to the present you have been a consultant to the  47 Crown in Right of the Province of British Columbia and 20319  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  then do you see that on page 4?  Yes.  And apparently it is with regard to the subjects  described above, and I take that to be the subjects  set out in the second entry there in terms of your  consultancy relationship with the Crown in Right of  Canada?  Yes.  :  I am sorry, where is that again?  Page 4 .  :  Yes.  Second and third entries.  :  Yes, I see that.  But second and third entries?  Page 4, third, second.  :  Yes.  The question is with regard to the subjects  described above in item 3.  The question is, does that  refer back to item 2, and he said yes, it does.  :  Well, all right.  Your consultancy contract with the Province, Dr.  Greenwood, required that you provide opinions on  questions of constitutional law; is that not correct?  That's correct.  And it required that you provide opinions regarding  questions on legal and constitutional history of  Canada?  Yes.  Is it not the case, Dr. Greenwood, you were also asked  for a legal opinion as to whether there were  aboriginal rights at common law and, if so, how they  arose?  I may have discussed that from time to time but I  don't recall giving an opinion on that.  That would be  outside my area of expertise I think.  You did provide however, Dr. Greenwood, to counsel for  the Province a legal brief setting out your opinions,  did you not?  Well, as an earlier brief of 1985 which I think you  have a copy of in which once again I did it half and  half, half on legal issues, which I done in Adolph and  which I've expanded on here, and half on the geography  and historical documents that lie behind the  proclamation.  Yes.  Well, if you will turn to page 9 again under  Legal Briefs, I think there is the document that you  are making reference to --  1  2  A  3  Q  4  1  5  6  7  1  8  A  9  MR.  GOLDIE  10  MR.  RUSH:  11  MR.  GOLDIE  12  MR.  RUSH:  13  MR.  GOLDIE  14  MR.  RUSH:  15  MR.  GOLDIE  16  THE  COURT:  17  1  18  19  MR.  GOLDIE  20  MR.  RUSH:  21  Q  22  1  23  24  A  25  Q  26  27  i  28  A  29  Q  30  31  32  33  A  34  1  35  36  Q  37  38  i  39  A   '  40  41  42  43  44  45  Q  46  47 20320  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 A   1985, yes.  2 Q   -- if I'm not mistaken, and there the item number 2 is  3 entitled "'The Royal Proclamation of 1763 and Indian  4 title claims in British Columbia' December 1985, 253  5 pages" end quote?  6 A   Yes.  7 Q   Now, that you described again as a legal brief, Dr.  8 Greenwood.  Is that --  9 A  Well, you know, the heading for this I think is Briefs  10 Presented in a Legal Form, that's what it's probably  11 supposed to indicate.  It's not supposed to define  12 necessarily the substance of each brief and that one I  13 think was half law approximately and half, you know,  14 more ordinary history.  15 Q   In any event, under the same heading, Dr. Greenwood,  16 you will note that item number 3 indicates that you  17 provided a document entitled "The Royal Proclamation  18 of 1763 and 'British Columbia':  Did the Framers  19 intend its Indian Lands Provisions to apply in what is  20 now the Far Canadian West?' July 1986, 226 pages,  21 revised May 1989, 235 pages".  Now, similarly, Dr.  22 Greenwood, you described this under the heading of a  23 legal brief and I'd like to suggest that is indeed  24 what it is?  25 A   No, I don't think it is.  If you have read it, you  26 will see that I think we took great pains to avoid the  27 legal interpretation.  We may not have succeeded or I  28 may not have succeeded in every single occasion but I  29 certainly attempted to write that not as a lawyer but  30 as an historian.  31 Q   But you nonetheless described it here as a legal  32 brief?  33 A  Again, it is, you know, opinions or briefs that are  34 used in legal forms.  35 Q   Now, you told us in answer to some questions posed by  36 Mr. Goldie that you were appointed as a sessional  37 lecturer at the Faculty of Law in McGill in the 1988,  38 '89 academic year; is that right?  39 A   Yes.  40 Q   And you said you taught for two weeks and the course  41 was cancelled?  42 A   That's right.  43 Q   What was the subject matter of your course?  44 A   That was the Legal History of Canada, both -- well,  45 criminal, civil, and mainly constitutional.  But it  46 was a legal history course rather than a  47 constitutional history course. 20321  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  And, Dr. Greenwood, you indicate at page 2 of your  CV. that you were negotiating for a position at  Carleton in the Department of Law?  Yes.  And are those negotiations still --  They are still proceeding, yes.  Are they proceeding over questions of courses that you  would teach?  No, I think the course has been decided.  It would be  constitutional history of Canada, although the word  law might appear in the title.  No, the negotiations  are proceeding over compensation.  All right.  Now, I'd like you to refer if you will  please to page 7 of your C.V., first 6, and  particularly with regard to the entry under  sub-paragraph (b) Articles?  Yes.  Is it not the case, Dr. Greenwood, that, with respect  to your academics writings, you have written primarily  in the field of criminal and constitutional law?  Yes.  Constitutional law is widely defined to include  say civil liberties historically, is that it?  Yes, I accept that, and I'd simply like to draw to  your attention what I suppose seems obvious from this  is if you look on page 7, item number 13, you wrote  about the Chartrand Murder Trial?  Yes.  And on number 19 on page 8 you wrote on the General  Court Martial of 1838-39?  Yes.  Canadian Perspectives on Law and Society?  Yes.  And if you look on page 6, number 1, you have wrote on  The Liability of Crown Officers for Advising Refusal  of the Fiat?  Right.  And that was for the McGill Law Journal?  Yes.  And then the one item that has been drawn to your  attention by my friend, David Mills and Co-Ordinate  Federalism, University of Western Ontario Law Review?  Yes.  And you wrote for the UBC Law Review, in item number 7  on page 7, the Legal Sesession of Quebec?  Yes.  And then item number 11 on page 7, Apprehended  Insurrection and the Administration of Justice in  1  Q  2  3  4  A  5  Q  6  A  7  Q  8  9  A  10  11  12  13  Q  14  15  16  17  A  18  Q  19  20  21  A  22  23  Q  24  25  26  27  A  28  Q  29  30  A  31  Q  32  A  33  Q  34  35  36  A  37  Q  38  A  39  Q  40  41  42  A  43  Q  44  45  A  46    ]  MR. RUSH  47 20322  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 Canada.  2 MR. GOLDIE:  The Point of View of the Historian?  3 THE WITNESS:  That's the Point of View of an Historian.  4 MR. RUSH:  5 Q Yes.  6 A Yes.  7 Q For the McGill Law Journal?  8 A No.  9 Q For RHAF, which is what?  10 A Revue D'Histoire de l'Amerique francaise?  11 Q And reprinted in the McGill Law Journal?  12 A Chartrand Murder Trial?  No, not reprinted, commented  13 upon.  14 Q I see.  And then you have an entry at item number 20  15 on page 8, The Drafting and Passage of the War  16 Measures Act in 1914 and 1927:  Object Lessons in the  17 Need for Vigilance?  18 A Yes.  19 Q Do I take it that that was printed in the Canadian  20 Perspective on Law and Society?  21 A Yes, yes, it was.  22 Q Now, in terms of your academic writing, was there not  23 a further focus, Dr. Greenwood, on political  24 biography?  25 A A further focus, you mean another --  26 Q Yes.  27 A -- area of interest, yes.  28 Q Yes?  29 A Yes.  30 Q And I think this is evident in the biographies that  31 appear in your articles listing?  32 A Mm-hmm.  33 Q And if you just --  34 A Yes.  35 Q -- carry through with me, there is a number 8, Sir  36 Thomas Mills on page 7?  37 A Yes.  38 Q Frederic-Guillaume Oliva?  39 A Yes.  4 0 Q Number 9.  41 A Yes.  42 Q And John Black, number 12?  Yes?  43 A Yes.  44 Q John Henry, number 14?  45 A Yes.  46 Q And then Andre Jobin, number 15?  47 A Yes. 20323  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 Q   John Richardson, 16?  2 A   Yes.  3 Q   And Stephen Sewell, 17?  4 A   Yes.  5 Q   Jonathon Sewell, 18?  6 A   Yes.  7 Q   And these, as I have been able to discern, were  8 printed in -- or published in the Dictionary for  9 Canadian Biography?  10 A   The Dictionary of Canadian Biography, yes.  11 Q   Thank you.  Is it not the case, Dr. Greenwood, that  12 prior to 1984 you had never written or published on  13 the Royal Proclamation of 1763?  14 A   That's correct.  15 Q   Is it not also the case that you had not written or  16 published on questions related to Indian land issues?  17 A   That's correct.  18 Q   And you had not written or published on questions  19 pertaining to native history?  20 A   That's correct.  21 Q   And would it be fair to say in terms of your  22 publication and your academic interest, Dr. Greenwood,  23 that your area of specialty was the English community  24 in Quebec?  25 A   I think that would be narrowing it too much because I  26 have written a great deal on, you know, the Canadianne  27 in the early part of after the British Conquest so I  28 think that would be rather too narrow.  29 Q   Okay.  30 A   But as I say --  31 Q   Subject to that qualification --  32 A   -- both communities in the early period down to the  33 Rebellions, I would say, would be an area of  34 specialization.  35 Q   To 1837 to '38?  36 A   Yes, from the Conquest.  37 MR. GOLDIE:  I am sorry, from the Conquest?  38 THE WITNESS:  From the Conquest, yes.  39 MR. GOLDIE:  Thank you.  4 0    MR. RUSH:  41 Q   Now, I think you have agreed with me that the first  42 time that you undertook research on behalf of the  43 Department of Justice on the Royal Proclamation of  44 1763 in Regina and Adolph in the -- in September of  45 1984; is that correct?  46 A   That's correct.  47 Q   And you testified in October of 1984; is that correct? 20324  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  Yes, that's correct.  And what opinions you offered were offered with that  amount of lead time in preparation for the testimony?  That's correct.  All right.  Now, I understand that your retainer with  the Province here in respect of this case was  undertaken in April of 1985?  That's correct.  3:  I am sorry, April of '85?  April 9 of 1985, by my reading of the correspondence  provided to me.  Now, at that time, Dr. Greenwood, is  it not the case that you were given a number of  assignments by counsel, among them was that you were  to prepare an opinion on the applicability of the  Royal Proclamation of British Columbia?  Yes, that was the overarching question.  And following that retainer, you undertook certain  research on the Proclamation?  That's correct.  And for this you travelled to various centres in  Canada where there would be housed archival and  original manuscript documents pertinent to your  research evidence?  Principally the National Archives in Ottawa.  You went to Winnipeg, however?  I did go to Winnipeg.  You went to the Hudson's Bay Archives?  Yes.  And then you travelled, I think you said you were in  Ottawa -- Quebec City and Toronto as well?  Yes.  Now, in June of 1985, I think you have already  indicated this, you did a report on the research which  you had done to that point; is that right?  You did a  report to counsel?  Yes.  And this set out all of -- or what you considered to  be the research activities which you had undertaken  and what research activities you proposed to  undertake.  Is that so?  Yes.  All right.  I'd like to show you some pages of that  report.  Hand that up.  :  Thank you.  Now, Dr. Greenwood, you will notice I have handed you  1  A  2  Q  3  4  A  5  Q  6  7  8  A  9  MR.  GOLDI  10  MR.  RUSH:  11  Q  12  13  14  15  16  17  A  18  Q  19  20  A  21  Q  22  23  24  25  A  26  Q  27  A  28  Q  29  A  30  Q  31  32  A  33  Q  34  35  36  37  A  38  Q  39  40  41  42  A  43  MR.  RUSH:  44  45  THE  COURT  46  MR.  RUSH:  47  Q 20325  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 the three pages, first three pages dealing with your  2 report, and I am principally interested in what you  3 indicate to be the activities that you undertook, and  4 the document is entitled Report on Research submitted  5 by F. Murray Greenwood to D.M.M. Goldie, Q.C, 29 June  6 1985.  And you indicated in your first paragraph the  7 fact that you did a research trip to the east and you  8 indicate the various sources that you had consulted  9 and you say at the bottom of the first paragraph,  10 "During the actual trip of course I concentrated on  11 manuscript sources."  You see that?  12 A   Yes.  13 Q   That's the case, is it?  14 A   Yes.  15 Q   And then you indicate your efforts at the Public  16 Archives of Canada?  17 A   Yes.  18 Q   And I think you indicate that you were in Quebec City?  19 A   Yes.  20 Q   And then you say at the bottom of the second page, and  21 I quote:  22  23 "The research before, during and after my trip has  24 given me a much sounder background than the  25 political and military context of the Royal  26 Proclamation of 1763."  27  28 A   Yes.  29 Q  30 "Indian policy in the 18th century, the nature of  31 Indian society, frontier problems, political  32 geography, cartography and much more.  I have also  33 made enumerable finds of a minor nature but ones  34 directly related to my arguments."  35  36 And then you indicate some other points of research,  37 and then you go on and at the end you say:  38  39 "What I consider important discoveries in relation  40 to my arguments I outline below?"  41  42 And then you say:  43  44 "Appendix 2 contains suggestions for  45 further research."  46  47 A   Yes. 20326  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  Now, I take it that the research that you undertook to  that point provided you with what you described as the  much sounder background in these areas that you speak  of?  Well, any research properly directed would do that.  Yes, one would hope so.  But, Dr. Greenwood, is it not  the case that your research was directed at evidence,  manuscript form, to prove arguements which you had  arrived at?  Well, I had already arrived at the general argument  about the applicability of the Proclamation to British  Columbia after I did my research for Adolph, so I come  to a judgment after immersing myself in the sources at  that point.  In this case I am looking for further  material to refine that argument and had I found  material contradicting it, I would have said so.  Here you say on page 3 that:  "What I consider important discoveries in relation  to my argument I outline below."  And I take it that these -- your research was directed  at further supporting the conclusions that you had  arrived at; is that so?  No, not necessarily.  I mean, investigating those  questions hoping to find support for a position I had  already taken but if in the course of my research I  found material that contradicted it, I would have  brought it out and I would have qualified my  conclusions.  I see.  You then proposed a further schedule of  research into areas you hadn't examined and you  appended that --  Yes.  -- as Appendix 2; is that so?  Yes.  I don't have that here.  Yes, not yet, you don't.  I will provide Appendix 2  to you.  3:  I wonder if you could -- well, go ahead.  Now, just in regard to Appendix 2, Dr. Greenwood, I am  directing your attention to the major research  remaining and it would appear here that you set out  what further research efforts would be in your  estimation necessary to complete your research  efforts; is that so?  Yes.  1  Q  2  3  4  5  A  6  Q  7  8  9  10  A  11  12  13  14  15  16  17  Q  18  19  20  21  22  23  24  25  A  26  27  28  29  30  31  Q  32  33  34  A  35  Q  36  A  37  MR. RUSH  38  39  MR. GOLD  40  MR. RUSH  41  Q  42  43  44  45  46  47  A 20327  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  1 Q   And you indicate there is some time needed for Ottawa,  2 page 42 Toronto, and then London, England, ten days,  3 and British Museum, UBC library, and so on?  4 A   Yes.  5 Q   And at the end you conclude with:  6  7 Further research on the international law of  8 territorial acquisitions in the 18th century.  An  9 Indian Treaties and surrenders on British and  10 French North American territorial colonies as of  11 1763 and on cartography.  12  13 A  Mm-hmm.  14 Q   So that's what you considered to be further work that  15 needed to be done and, as I understand it, Dr.  16 Greenwood, you in fact did that work; is that correct?  17 A   Except for the International Law of Territorial  18 Acquisition, the 18th century, I was told not to  19 bother with that so I didn't.  2 0 Q   Apart from that you did --  21 A   Yes.  22 Q   -- the other items of research and made the travels  23 that you had indicated here?  24 A  Well, not in -- I didn't go to the Royal Archives but  25 substantially I followed this.  26 Q   Okay, thank you.  And I understand that your wife  27 assisted you in some of the research; is that so?  28 A   Yes, in Ottawa, Toronto and London.  29 Q   All right.  And following this level of research you  30 then submitted a report to counsel for the Province on  31 December 15, 1985?  32 A   Right.  33 Q   Is that so?  34 A   Yes.  35 Q   And that via the CV. runs to approximately two  36 hundred and -- and I am here directing your attention  37 to page 9, 253 pages?  38 A   Correct.  39 Q   And then you have submitted, if I may put it this way,  40 a final report in July of 1986 which appears once  41 again on page 9 as item 3 under Legal Briefs?  42 A   Correct.  43 Q   And is it also the case, Dr. Greenwood, that you  44 attended in court during the direct examination of Mr.  45 Morrison?  4 6 A   I did.  47 Q   And that occurred in the late part of April of 1989? 20328  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  on Qualifications  Yes.  You have heard his testimony?  Yes.  And is it not the case that subsequent to hearing his  testimony that you then prepared -- you then revised  and prepared a revised version of your report dated  May 198 9?  Well, the date obviously is after Morrison but the --  Morrison's testimony, but the revisions were, you  know, in my head and in note form before that.  I see.  Is it not the case that, as a result of  hearing the testimony, perhaps not all of your  revisions were made as a result of hearing it but  revisions were made as a result of hearing Mr.  Morrison's testimony?  No, that's not true.  That's not so?  No.  So you say it is coincidental that it happens that the  report was submitted after May of 1989?  Yes.  I understand that --  Although except that something might have come up, you  know, that's a possibility for getting it at that  point but that's the only reason for it.  I see.  And, Dr. Greenwood, is it not the case that  you added to the documents that were to be tendered to  the plaintiffs in support of your report a large  number of documents after the testimony of Mr.  Morrison was heard by you in April of 1989?  Chronologically that's true but I don't think there is  any intellectual connection.  You weren't influenced at all by what he said in his  evidence?  No.  I see.  My lord, I'd like these two extracts to be  marked as exhibits, please, the next two exhibits.  :  All right.  They will be 1158 and 59.  3:  Which is which?  The first pages 1 to 3 would be 1158, and pages 41 to  44 would be 1159.  :  The second one doesn't have a date.  It is part of the same document, my lord.  :  Part of the same document.  And in actual fact, I am content to having it marked  as one.  :  All right.  Strike out 1159 then.  1  A  2  Q  3  A  4  Q  5  6  7  8  A  9  10  11  Q  12  13  14  15  16  A  17  Q  18  A  19  Q  20  21  A  22  Q  23  A  24  25  26  Q  27  28  29  30  31  A  32  33  Q  34  35  A  36  MR.  RUSH:  37  38  THE  COURT  39  MR.  GOLDI  40  MR.  RUSH:  41  42  THE  COURT  43  MR.  RUSH:  44  THE  COURT  45  MR.  RUSH:  46  47  THE  COURT 20329  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  F.M. Greenwood (for Province)  Re-exam by Mr. Goldie  on Qualifications  MR. RUSH:  Thank you, 41 to 44  THE COURT:  B.  THE REGISTRAR:  1158A and B.  (EXHIBIT 1158-A  (EXHIBIT 1158-B  REPORT TO MR. GOLDIE FROM MR.  GREENWOOD DATED 2 9 JUNE 1985)  DOCUMENT TITLED MAJOR RESEARCH REMAINING  P. 41-44)  MR. RUSH: That completes my questioning.  THE COURT: Mr. Frey?  MR. FREY: No, my lord.  THE COURT: All right.  Any re-examination,  Mr. Goldie?  RE-EXAMINATION BY MR. GOLDIE ON QUALIFICATIONS:  Q   Dr. Greenwood, I hope you can assist me.  Is it your  recollection that you were initially retained by the  Province in respect to the Meares Island case or  consulted by the Province in respect to the Meares  Island case?  A   Yes, I was, but my recollection is it was the two  cases together.  MR. GOLDIE:  All right, thank you.  THE COURT:  All right.  Mr. Rush?  MS. RUSSELL:  My lord, I have one small matter to raise and it  is really a matter that I raised this morning with Mr.  Goldie.  In the possession of the Federal Defendant,  it occurred to me this morning there might be some  correspondence and matters relating to Dr. Greenwood.  I spoke to Mr. Goldie about it and, during the course  of this morning, we have listed it and I have it  available for the plaintiffs now to look at.  It is  innocuous, I believe, but I believe that they should  have it and it's listed, and it is basically copies of  invoices, and I have a copy for Mr. Goldie as well.  I  just didn't wish Mr. Rush to close his  cross-examination before having an opportunity to  review those matters.  Thank you.  Thank you, my lord.  It is not necessary for me to  engage in any further cross-examination as a result of  those disclosures.  Thank you.  My lord, my submissions are these:  Dr. Greenwood is  not qualified to give opinion evidence in the area of  specialty for which he is being tendered as an expert;  THE COURT  MR. RUSH:  THE COURT  MR. RUSH: 20330  Submission by Mr. Rush  1 namely, to give opinions, and I think I have it  2 correctly, on historic facts on the intention as a  3 matter of fact of the Framers of the Royal  4 Proclamation.  And my submission, my argument is  5 simply this:  Dr. Greenwood prepared, despite whatever  6 he calls it, a legal brief for the Province in respect  7 of the Royal Proclamation which was submitted as an  8 opinion for this case.  The document is a legal brief  9 and it is masking as historical opinion.  Dr.  10 Greenwood has a law degree, has written legal opinions  11 as the focus of his law practice; his experience as a  12 history teacher at UBC led him to an interest in  13 constitutional and criminal law issues; he agrees his  14 writings focused on those areas; his publications and  15 writings showed a marked preference for law-related  16 subjects; and interpretation of early trials, cases  17 and laws; his introduction to the subject of the  18 applicability of the Royal Proclamation was through  19 the Department of Justice in the Queen and Adolph  20 where again by his own evaluation despite again his  21 attempts to parse what the document represented was a  22 legal brief.  23 Since that time he was retained and has been  24 retained by the Province and after directed research  25 in the archives he produced an interim and then a  26 final and then a final, final revised again what he  27 describes as a legal brief.  28 There is, in my submission, no basis for Dr.  29 Greenwood to be qualified as a lawyer to give legal  30 opinions on the issue in the litigation.  That is  31 within the sole purview of the court.  Yet, I submit,  32 his report is in fact as he describes it, and has his  33 history as a legal practitioner or academic of legal  34 issues, indicates that it is a brief -- a brief to  35 counsel.  His expertise, although not argued but it is  36 I think implicit, are being advanced as those of an  37 historian, and that position I say is a cover for the  38 underlying character of the witness' specialty and  39 that specialty is of being a legal academician.  40 He has indicated that he's done no research or  41 publishing -- excuse me, has done no writing or  42 publishing on the subject of the Royal Proclamation or  43 in respect of the Indian land provisions prior to  44 1984, and was introduced to that by his retainer with  45 the Department of Justice.  His knowledge comes as a  46 result of his, primarily I'd like to suggest, his  47 after-hire research.  He had no particular 20331  Submission by Mr. Rush  Submission by Ms. Russell  Ruling by the Court  1 qualifications to permit him to give opinions before  2 his retainer as a consultant with the Department of  3 Justice.  4 Now, subsequent to Adolph, he did all of his  5 original manuscript work in the archives researching  6 the available sources, I'd like to suggest, for the  7 purposes of proving arguments and conclusions which he  8 had arrived at.  Here he researched original documents  9 and by reference to the material you will see cases  10 and authorities.  11 I'd like to suggest, my lord, that his method was  12 not the method of an historian, it was in fact the  13 method of a lawyer trying to argue and prove a point.  14 I'd like to say, my lord, that it's my submission that  15 opinions which are based on the expertise of a witness  16 going to questions of law are not a proper subject  17 matter of expertise, and I say that that expertise is  18 solely within the province of the court.  19 Now, in my submission, the witness here is not  20 sufficiently skilled in the area for which he is being  21 tendered as an expert in order to give the type of  22 legal or -- excuse me, the historical which I call  23 legal opinions being sought by the Province.  In my  24 submission, he should not be qualified to give  25 evidence in this field.  26 THE COURT:  Thank you.  Mr. Frey or Miss Russell?  27 MS. RUSSELL:  My lord, we would sumbit very simply, and I will  28 wait for Mr. Goldie to make his submission, but the  29 facts and the documents with which this witness deals  30 are extremely relevant to the case and are very  31 similar to such matters that are covered by Morrison  32 and Lane and it is entirely appropriate that Dr.  33 Greenwood give his evidence in response.  34 THE COURT:  I don't think — well, I don't think I need to hear  35 you, Mr. Goldie.  I think that I have to be careful  36 not to be overly concerned about labels or titles, and  37 I have very much in mind the rulings I have made on  38 the responsibility of the court to make the legal  39 decisions which arise in this case and to avoid  40 allowing historians, however learned, to pronounce on  41 what I have called the wide swoop of history, but the  42 witness has a Ph.D in history, he's worked as a  43 professor in the history department, he has  44 substantial experience in the general discipline of  45 history, and I think that he is competent to give the  46 results of his research in the same way at least as  47 Mr. Morrison and others, and I think that it will be 20332  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  Ruling by the Court  F.M. Greenwood (for Province)  in chief by Mr. Goldie  inevitable that there will be some permissible and  impermissible opinion mixed with his evidence which  was experienced throughout the course, at most, of the  experts who have been called on both sides of this  case up to the present time.  For that reason, I am disposed to hear the  evidence, to entertain objections on particular  matters as they arise, but to withhold a decision on  the report, even though it may be used in the course  of the examinations, until after I have heard all of  the evidence of the witness.  A  Q  A  Q  A  Q  EXAMINATION IN CHIEF BY MR. GOLDIE  Q Dr. Greenwood, you have a c  of you. In accordance with  filed a summary of that rep  Yes.  And that was prepared from  to counsel for the Province  July of 1986?  Yes.  In July of '86, yes?  Yes.  And, in turn, you brought -  form that it is in now?  A   Yes.  GOLDIE:  And I'd ask that a numbe  lord.  THE COURT:  For the report?  For the report, yes.  We did that, 1156.  I am sorry.  My lord, I am going to tak  report.  Oh, I expect so.  The whole of it.  Yes.  If you wish to hear me on  think that your lordship sh  report.  I don't think it's  present form that the repor  No, I don't think so, Mr.  labour long and hard and at  will be asked to make a rul  don't have a proper underst  I would like to try and pe  understanding and I think I  MR.  MR. GOLDIE:  THE COURT:  opy of your report in front  the court's directions you  ort in October 1986?  the report which you made  in the form it took in  you revised that in the  r be reserved for that, my  MR  MR  GOLDIE:  RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT:  MR. RUSH:  e an objection to this  it now, I will -- I don't  ould be referring to the  at all proper in the  t takes.  Rush.  I think we can  the end of the argument I  ing on something that I  anding of.  rsuade to give you a proper  can do that if you will 20333  Submission by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  allow me that now.  THE COURT:  All right.  Yes, all right, you may go ahead.  MR. GOLDIE:  Perhaps the witness might stand down, my lord.  THE COURT:  Yes, if he wishes.  (WITNESS STOOD DOWN)  MR. RUSH:  Perhaps one of those for his lordship.  THE COURT:  Doesn't matter which one?  MR. RUSH:  Doesn't matter.  My lord, I am taking an objection to the report as  a whole and the fact -- the basis for my objection is  basically this:  The opinions expressed in this report  are inadmissible for one of two reasons:  either they  encroach on the court's power to draw its own opinions  on the facts of legal argument, the opinions would not  be admissible if tendered viva voce, and they are not  admissible when tendered in the form of a written  report such as this one of Dr. Greenwood's.  Your lordship's rulings on the admissibility of  historical evidence are set out and the principles  which govern those are basically these, and I have  referred these to you, my lord, on a previous argument  and I will take you to them very briefly.  Firstly  what a document says is for the court and not the  witness.  The expert cannot construe a written  document, that's tab 1, that's your lordship's ruling  of July 14 and it's at pages 17 and 18 of this  document.  Last paragraph and the top of page 18,  basically your lordship ruled that, "They", meaning  experts:  "...may not in my view either construe a written  document which is the province of the court or  generalize upon the broad sweep of history which  is so often subject to learned disagreement and  revision."  So, in my submission, there are two principles that  guide your lordship.  The third is that an expert  witness cannot interpret the meaning and effect of the  statute.  And the Royal Proclamation you have found,  my lord, can be equated to a statute, hence opinions  on its interpretation cannot be given.  And I'd ask  you to look at the ruling that you made, it's at tab  2, it's on April 26 and it's at page 16243, and at  page -- at this page at line 22 you said: 20334  Submission by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  THE  MR.  MR.  THE  MR.  THE  COURT:  RUSH:  COURT:  RUSH:  COURT:  RUSH:  COURT:  GOLDIE  RUSH:  COURT:  RUSH:  COURT:  MR. RUSH:  "I have an equally settled conviction that when one  is coming to determine judicially the meaning and  effect of a Proclamation..."  I am sorry, I haven't found that.  Yes, you have the court speaking at line 16.  Line 16.  The court then --  Yes.  "I have an equally settled conviction that when one  is. . . "  I am sorry, I don't have that.  The page number is reversed, my lord.  You have 16243, my lord?  Yes.  I don't -- it doesn't say "equally settled  conviction", so my page makes me wonder.  Line 23, "equally settled conviction".  Line 23, yes, I have that one.  All right, thank  you.  "I have an equally settled conviction that when one  is coming to determine judicially the meaning and  effect of a proclamation, for I equate that to a  statute or an enactment, it is not competent for a  witness to tell me what it means.  It is competent  and is expected of counsel to discharge that  function."  And here, my lord, I come to the next principle:  "I do not think I shall allow this or any witness  to give me a theory of construction.  I think that  he may put in evidence, if requested by counsel,  whatever historical facts he has or can direct my  attention to in the way of documents for the  purpose that I have mentioned, that is, for  counsel's arguments, but I do not think that I can  allow him to give me theories of construction..."  And here's your fifth point, my lord:  "...theories of history that go beyond the proof of  historical facts."  Now, you also ruled that witnesses cannot give  historical conclusions and that's evident from the 20335  Submission by Mr. Rush  1 next paragraph.  2  3 "I don't know where that leaves you, Miss Mandell.  4 I think there is a clear distinction being drawn  5 between historical facts..."  6  7 for which this witness, Dr. Greenwood, is being  8 tendered:  9  10 "...and historical conclusions and more  11 particularly constructions of proclamation, and  12 will have to leave it to you to resolve that  13 problem."  14  15 And then finally, the final principle number 6 that  16 I'd like you to take into account is that a witness  17 can speak to historical events through documents only,  18 and I'd like to take your lordship to your ruling at  19 the next tab at tab 3, April 25, and to page 16223,  20 where on that page, if your lordship refers to your  21 ruling at line 15 and in particular at line 20, and  22 you said the following:  23  24 "When you are dealing with a matter of history  25 where the evidence flows from documents and which  26 the witness does not have personal knowledge of  27 but is merely using his intellectual advantages to  28 make the selection and explain the significance of  29 them, then it seems to me that the sensible course  30 to follow is to give counsel opportunity to ensure  31 that the right documents are identified either by  32 being marked as exhibits or by being collected  33 together in some way and identified in that way  34 and for the significance and connection between  35 them to be explained by counsel in argument."  36  37 Now, that, my lord, suggests to me that the operative  38 principle is that an historian can speak to historical  39 events through the documents to which reference is  40 made and their significance is a function of argument.  41 Now, what I say is  42 THE COURT:  But we went far beyond that in the evidence of both  43 the plaintiffs and of the Province in the sense that  44 while that was what I said on that particular  45 occasion, I allowed all of the -- I have allowed all  46 the -- of the witnesses to explain, and I said  47 somewhere else, to explain the circumstances in which 20336  Submission by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the document was prepared.  MR. RUSH:  Your lordship said two things on that count:  The  first was that a witness can speak to context; and the  second was that where there are ambiguities in the  document the witness could address and give an  explanation, but all reference to the documents.  THE COURT:  Yes.  MR. RUSH:  Now, my argument is, my lord, that Dr. Greenwood's  opinion offends every one of these principles again  and again.  The opinions are so extensively stated in  the report and so intermingled with the statements  from documents, derived from documents, that it is  impossible to separate the offensive portions in order  to determine the admissible evidence.  It's not a  simple matter of parsing as it was I would submit  somewhat an easier task for Dr. Farley, but the  opinions here are so intertwined that you cannot  separate the opinion from fact.  And now I say that on  virtually every page of this report there contains a  statement about the meaning or effect of an historical  document, the meaning to be given to the proclamation,  a statute or a treaty or an argument about what  conclusion should be drawn from the documents.  Now, my lord, this was the very kind of evidence  that you ruled could not be given by Mr. Morrison and  Dr. Lane when they were seeking to express the meaning  or interpretation to be given to documents.  THE COURT:  Well, that's what I said but I found as the evidence  went along they did it anyway.  MR. RUSH:  No, my lord, they didn't, and I am, if you will allow  me, I am going to try to persuade you that they  didn't.  Well, you can -- I am sure there are some cases  where they did not but there is lots of places where  they did.  I am going to refer you to Mr. Goldie's objections  and what your lordship ruled in Mr. Morrison's  evidence.  Now, when the witnesses sought to draw  conclusions from documents objection were taken and  rulings were made against the tendering of their  evidence.  THE COURT:  Well, I would think that would be the case here,  too.  MR. RUSH:  Well, my lord, I would think it would be the case as  well but your lordship cannot have the report in front  of you and be led through the report given the  extensive and intermingled character of those types of  THE COURT  MR. RUSH: 20337  Submission by Mr. Rush  1 opinions while the witness is referring to documents.  2 And my argument is, my friend can lead the evidence  3 related to these principles but not through the aegis  4 of a report which, in my submission, moves these  5 opinions into the -- into the realm of placing them as  6 a matter of fact before your lordship.  7 THE COURT:  The problem with that, of course, is that you and  8 Mr. Goldie can have a nice argument about what I can  9 look at and what I can't, and I am the only one that  10 needs to see it and I haven't read it.  11 MR. RUSH:  I am going to solve that problem for you, I hope.  I  12 am going to solve that problem by referring --  13 THE COURT:  Well, maybe you can do that when we return, Mr.  14 Rush.  15 MR. RUSH:  I will try my best.  16 THE REGISTRAR:  Order in court.  This court stands adjourned for  17 a short recess.  18  19 (PROCEEDINGS ADJOURNED AT 3:02 p.m.)  20  21 I hereby certify the foregoing to be  22 a true and accurate transcript of the  23 proceedings herein, transcribed to the  24 best of my skill and ability.  25  26  27  28  29  30 TANNIS DEFOE, Official Reporter  31 United Reporting Service Ltd.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 2033?  Submissions by Mr. Rush  1 (PROCEEDINGS RECOMMENCED AFTER RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Yes, Mr. Rush.  5 MR. RUSH:  Now, My Lord, what I intend to do is draw your  6 attention to certain passages and extracts from the  7 Greenwood report, which illustrate how completely it  8 runs contrary to Your Lordship's rulings, and this was  9 a practice that was adopted by the defendants in  10 respect of their objections taken of Mr. Morrell's  11 report.  And if you -- if Your Lordship has my brief,  12 what I have done --  13 THE COURT:  All right.  14 MR. RUSH:  -- is I have prepared a page by page consideration of  15 the portions of the report which in my submission run  16 against Your Lordship's rulings, and furthermore, My  17 Lord, I grouped them under five topic headings.  And  18 the first of these is:  19  20 "Opinions on the Interpretation of the Royal  21 Proclamation, Statutes & Treaties".  22  23 Your Lordship has already expressed your view  24 about title, and I won't deal with table of contents,  25 but I want to start with item no. 3, which -- and here  26 these are extracts taken from the report, My Lord.  In  27 addition, this is Dr. Greenwood speaking, and where he  28 is not, I will indicate that it is me speaking.  29 In addition it makes two major points referring to  30 Part 4:  31  32 "First that the protections afforded Indian  33 lands within the settled parts of the colonies  34 could not have been intended to apply to the  35 west coast then or in the future."  36  37 Same Roman II, Part 4:  38  39 "Presents evidence and argument that the framers  40 did not intend the Indian lands provisions  41 applicable in the huge reserve established by  42 the Proclamation to extend -- then or later --  43 to British Columbia."  44  45 Page three.  46  47 "Insofar:" 20339  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  Stopping there.  Part 4 presents evidence and  argument?  MR. RUSH:  Yes.  THE COURT:  If I were to exclude Part 4, would I be excluding  evidence as well as argument?  MR. RUSH:  You would be -- you would be excluding in this  reference all of the argument, My Lord.  THE COURT:  How would I then have the evidence?  MR. RUSH:  The evidence comes in, and with a form that it must  come in on, and that is through documents.  The report  on its face is worthless, without any reference to its  manuscript documents.  There is no opinion -- there is  no statement in the report that stands alone.  It must  be founded on the underlying facts that we have been  provided with.  And those are, as the witness has  said, and as you have ruled in the case of Morrison  and Lane and Rae and so on, is that those are the  underlying documents.  So Your Lordship must be  presented with those documents.  And that is the  evidence.  There is nothing more than that.  THE COURT:  That report doesn't quote the documents?  MR. RUSH:  Yes, in some cases it does.  But my -- and  extensively it does in certain portions of it.  THE COURT:  Perhaps I can ask Mr. Goldie if he has some books or  documents to go with the report.  MR. GOLDIE:  Yes, My Lord.  MR. RUSH:  My Lord, let me carry on.  Page 70 in respect to:  "Heading 'General Analysis of the Geographic  Reach of the Indian provisions in the Royal  Proclamation of 1763:'"  Then on the next page after describing the Indian  provisions of the Proclamation the report goes on:  "A full analysis of the boundaries to the  Reserve is not needed here.  Suffice to say  that it consisted mainly of the territories  ....  What areas were comprised in settled  parts of colonies is also a complex question  and must be deferred.  They certainly included  the territory of ..."  And here, My Lord, if you forgive me a bit of  editing, I don't want to treat you to all of the 20340  Submissions by Mr. Rush  1 opinions which are here, but you can see that the  2 witness is clearly offering his opinion on the  3 Proclamation and it's meaning.  4  5 71.  6  7 "What then were the main protective policies,  8 with regard to the unsurrendered lands, first  9 in the reserve and then in the settled parts of  10 the colonies?  There were to be no warrants of  11 survey ..."  12  13 And he goes on.  14  15 Page 74:  16  17 "With regard to the 'geographic scope of the  18 substantive provisions applying to the Indian  19 lands' (sub-title) the report states: 'the  20 (Indian) reserve was somewhat ambiguously  21 defined in both negative and positive terms.  22 According to paragraph V it comprised all areas  23 under British dominion which were not included  24 ..."  25  26 Page 75.  27  28 "No western boundary was expressly indicated in  29 paragraph V or elsewhere in the Proclamation.  30 Obviously the Mississippi River -- as the  31 international frontier between Britain and  32 France (in reality, Spain) -- was implied,  33 necessarily so."  34  35 My Lord, that is not the language of a historian.  36 That's the language of a debater.  And then he goes on  37 to say:  38  39 "This leaves two gaps or corridors to account  40 for."  41  42 Ten:  43  44 "It stretched eastward from the area between  45 lakes Abitibi and Nipising to the Labrador  46 coast, which is not itself in the reserve.  It  47 is likely this eastern corridor above Quebec 20341  Submissions by Mr. Rush  1 was intended to be included."  2  3 11.  And I should state, My Lord, Dr. Greenwood  4 relied on the Re Labrador boundaries for this.  He  5 does an analysis of the case.  11:  6  7 "These paragraphs (T, U and X) enunciated  8 specific policies with regard both to lands  9 within the reserve and lands outside it.  The  10 location of the latter is not free of serious  11 ambiguity and (except for the anomalous T) it  12 is solely with this question that we are  13 concerned in this and the following  14 sub-section.  It will be shown that each and  15 every protection afforded to Indian lands ..."  16  17 Page 77:  18  19 "I shall attempt to demonstrate, however, that  20 the base for any such presumption is  21 weakened -- at least for the historian -- by  22 the fact that none of the protective provisions  23 applicable to organized colonies was intended  24 to cover ..."  25  26 77 again, paragraph T:  27  28 "Paragraph T is easily construed.  It merely  29 prohibited surveys - land grants by the  30 governors of the three newly established  31 continental colonies 'beyond the bounds ...'"  32  33 77, 78:  34  35 "the reference to 'any of our other colonies'  36 (in paragraph U) might suggest that all  37 governors save those of Quebec, east and west  38 Florida, were being addressed."  39  40 Page 79:  41  42 "the phrase 'any lands whatever' could be  43 interpreted to mean that the protection was  44 being afforded to all unsurrendered land  45 throughout His Majesty's Dominion's on the  46 continent.  But such a construction would be  47 open to objection.  For the reasons given 20342  Submissions by Mr. Rush  1 above, Newfoundland and Rupertsland would not  2 have been intended for inclusion.  More than  3 this, a narrow interpretation confining the  4 second surveys land grants prohibition in  5 paragraph U to the trans-appalachian governors  6 possible.  Literally construed it was the very  7 same governors being addressed as in the  8 immediately preceding prohibition ..."  9  10 Page 80:  11  12 "I conclude there are three respectable  13 interpretations of the geographic scope of  14 paragraphs U and X prohibiting land grants."  15  16 "He goes on to proffer the interpretation and  17 then Dr. Greenwood says: 'I do not of course  18 presume to suggest how the courts might view  19 the question based solely on the wording.  20 Placing the paragraphs in their historical  21 context, however, it seems clear that ..."  22  23 Page 85:  24  25 "Thus I conclude, as a legal historian, that  26 paragraphs U and X of the Proclamation were  27 probably only intended to apply to the  28 trans-appalachian colonies and ..."  29  30 Page 86:  31  32 "Paragraph Y prohibits private purchases of  33 unsurrendered lands located outside the reserve  34 and prescribes a method by which the Indians  35 may sell those lands to the Crown.  To which  36 colonies and territories were these provisions  37 intended to apply?  Drafting is very ambiguous  38 but one thing seems likely:  The paragraph did  39 not envisage all ..."  40  41 And it goes on.  42  43 Page 86:  44  45 "I believe three different conclusions, with  46 respect to the geographic scope of paragraph Y,  47 can flow from a precise examination of the 20343  Submissions by Mr. Rush  1 wording used in it."  2  3 And after considering the first possibility on  4 page 87 the report goes on to quote:  5  6 "The second possibility correlates exactly with  7 the broader constructions of ...  a  8 construction which is consistent with the  9 ancillary evidence."  10  11 If I may just pause there, My Lord.  Nothing can  12 entrench on Your Lordship's province than language and  13 interpretation such as reflected there.  And I say  14 throughout, but I think that's a particularly sharp  15 example of it.  16  17 121:  18  19 "Referring to the third possibility, Dr.  20 Greenwood states: 'Its status at the time of  21 the Royal Proclamation was aptly described by  22 Viscount Cave, rendering the judicial  23 committee's decision on the Labrador boundary  24 dispute."  25  26 "He cites an extensive passage from the case Re  27 Labrador boundary."  28  29 My Lord, I expect Mr. Goldie to be presenting  30 those arguments, not a witness who is qualified as a  31 historian.  32  33 Then page 90:  34  35 "After referring to the rule of construction,  36 expressio unius, Dr. Greenwood says: 'These and  37 other considerations have induced a number of  38 scholars to conclude that the paragraph did  39 apply to Rupert's Land and others to suggest  40 that it may have so applied.  With respect I  41 disagree with these conclusions and  42 suggestions."  43  44 He carries on:  45  46 "Three general considerations support my  47 contention." 20344  Submissions by Mr. Rush  1  2 Page 92:  3  4 "More specifically, the wording of paragraph Y  5 does not encompass ..."  6  7 He gives his opinion.  8  9 92:  10  11 "No change in the wilderness character of  12 Rupert's Land was contemplated by the framers  13 of the Proclamation."  14  15 93:  16  17 "The trade provision, however, could not have  18 been intended to apply ..."  19  20 97:  21  22 "I conclude, therefore, that the Indian  23 provisions protecting unsurrendered lands  24 within the settled parts of the colonies, as  25 distinct from unsurrendered lands in the  26 reserve, were intended to apply to ...  27  28 And then he gives his opinion:  29  30 "They were probably not intended to apply to  31 ..."  32  33 And he gives what he disagrees with.  34  35 Page 97 dealing with the next sub-title:  36  37 "Implications of the colonies' Indian Lands  38 Provisions for British Columbia, Dr. Greenwood  39 starts this chapter with: 'Two important  40 questions follow the analysis contained in part  41 3.B of this opinion:"  42  43 And then he sets the framework by posing these  44 questions:  45  46 "Did the framers of the Royal Proclamation  47 intend the protective policies for Indian lands 20345  Submissions by Mr. Rush  1 in the settled parts of colonies to extend to  2 future colonies?  3 Did the said framers intend 'British Columbia'  4 to come within the reserve?"  5  6 So he poses the questions.  And then on page 98:  7  8 "Given this lack of universality, it is  9 difficult for the historian to ascribe to the  10 framers any intention to prescribe policies for  11 colonies ..."  12  13 Page 98:  14  15 "This conclusion is strengthened by three  16 further considerations.  First, the Indian  17 policies announced in the Proclamation were  18 understood by the framers to be ..."  19  20 99:  21  22 "Third ...  It is astonishing they did not  23 include in the Indian provisions express words  24 of futurity and in particular the standard  25 hereafter clause ..."  26  27 Again Dr. Greenwood's interpretation.  28  29 Page 101:  30  31 "In summary, it appears that the framers of the  32 Royal Proclamation in providing protective  33 policies for Indian lands in the settled parts  34 of colonies had no intention of extending them  35 to ... "  36  37 102:  38  39 "In dealing with the geographic scope of the  40 provisions relating to the fur trade, Dr.  41 Greenwood states: 'That this was indeed the  42 intention as indicated by the first article of  43 the 1764 plan for managing Indian affairs."  44  45 Well, My Lord, that's for you to decide, not Dr.  4 6 Greenwood.  47 20346  Submissions by Mr. Rush  1 Page 103:  2  3 "Thus no persuasive argument can be made that  4 the Indian land provisions were to 'follow'  5 trade as it moved progressively west ..."  6  7 Page 105:  8  9 "There was absolutely no concern expressed in  10 any of the prepatory documentation to the  11 Proclamation ..."  12  13 Well, I suggest, My Lord, that's for you to decide  14 upon reading the documentation.  15  16 "Any such concern, of course, would have been  17 soelecistic, in view of the law of nations with  18 which the framers of the Proclamation were well  19 acquainted."  20  21 Page 106:  22  23 "In considering the language 'the several  24 nations or tribes of Indians with whom we are  25 connected, and who live under our protection,'  26 Dr. Greenwood offers the view:  'It is also  27 clear from the drafting process that a treaty  28 was no sine qua non."  29  30 Page 106:  31  32 "I conclude that either the concept of  33 connection was synonymous in the minds of the  34 framers ..."  35  36 Page 107:  37  38 "The Proclamation speaks in the present tense  39 and hence did not contemplate unknown tribes in  40 'British Columbia'."  41  42 My Lord, clearly is the argument of the Crown, not  43 the evidence of the witness.  44  45 Page 108:  46  47 "Support for this interpretation is indicated by 20347  Submissions by Mr. Rush  1 Lord Watson's comment, for the judicial  2 committee in the St. Catherine's Milling case  3 (1889) that the Indian provision had been ..."  4  5 And he goes on to cite Lord Watson.  6  7 109, which is a footnote at 143:  8  9 "Dr. Greenwood relies on a document entitled  10 'Present State of Northern Indians, in the  11 department of Sir William Johnson Bart' for his  12 interpretation on the language of the  13 Proclamation and which of the Sioux nations  14 were included in Appendix A to the 1764 Plan."  15  16 "For his interpretation of the tribes referred  17 to were living under the King's protection, Dr.  18 Greenwood digresses into the law and cites  19 Calvin's case."  20  21 Pages 111 to 112:  22  23 "It is Dr. Greenwood's opinion that British  24 Columbia was Terra Incognita in 1763."  25  26 I dare say, My Lord, that's for you to decide.  27  28 "In dealing with the opening preamble of the  29 Proclamation the report states: 'I shall then  30 analyze the probable thinking of the framers on  31 the western limit."  32  33 Page 147:  34  35 "From the foregoing review it is probable the  36 framers of the Proclamation believed the  37 western terminus of Canada to lie ..."  38  39 Then he states on the top of page 8:  40  41 "Unfortunately, the travaux preparatoires are  42 almost silent on the point except for a few  43 fleeting references."  44  45 "Referring to the board of trades report of June  46 8, 1763:  This could conceivably be construed  47 that Canada had extended to the west coast, but 2034?  Submissions by Mr. Rush  1 such an interpretation would be extreme."  2  3 148:  4  5 "It would seem fair to conclude from what has  6 been described that the framers thought of  7 Canada as stretching ..."  8  9 Page 149:  10  11 "This perception in turn probably conditioned  12 their thinking on the north west terminus of  13 the Indian reserve."  14  15 Page 149 again:  16  17 "The travaux preparatoires make evident that the  18 framers of the Proclamation share the view of  19 the 1761 negotiators and the common  20 representation on contemporary maps ..."  21  22 152:  23  24 "The foregoing provides striking proof that the  25 framers thought the reserve extended to ...  26 the sole possible doubt which can arise on this  27 point derives from the fact that the  28 Proclamation itself does not mention ..."  29  30 These are clearly argument, My Lord.  31  32 152:  33  34 "The Proclamation does not specify boundaries to  35 the Indian reserve in the northwest.  Two were  36 necessarily implied."  37  38 His interpretation.  39  40 152:  41  42 "Some might argue that this left a gap through  43 which the thinking of the framers of the  44 Proclamation might conceivably have marched, as  45 it were, in anticipation of imperial expansion,  46 right to the west coast ... To treat this  47 complex issue I shall first review briefly the 20349  Submissions by Mr. Rush  1 contrary opinions and then attempt to show that  2 the framers were far from western  3 expansionists."  4  5 He gives his argument, he gives his  6 interpretation, and the meaning of the documents.  7  156:  9  10 "There has been little in the way of sustained  11 published comment by historians on the  12 relationship between the Royal Proclamation and  13 the ultimate aims of its framers in terms of  14 encouraging or discouraging European settlement  15 on the western frontiers of the North American  16 Empire."  17  18 And then same page:  19  20 "Nevertheless three distinguishable positions  21 can be extrapolated from the scholarship, and  22 they provide an useful framework for coherent  23 treatment of the issue."  24  25 And then 158 he states:  26  27 "In any of these cases the thinking of the  28 framers was not directed to ... and hence the  29 argument that the Proclamation was to be  30 successfully applied as new lands in the west  31 came under control is gravely weakened."  32  33 Regarding historian at page 160:  34  35 "Regarding a historian who holds a contrary  36 view, Alvord, Dr. Greenwood states:  'it is  37 possible to -- if normal gramatical  38 construction is disregarded -- that for the  39 present serve the purpose of indicating the  40 changes would soon be made in the Indian  41 provisions as a result of the management plan  42 the board had been ordered to prepare.  The  43 words may have been included as well so as not  44 to foreclose ..."  45  46 His interpretation of the language in the document.  47 20350  Submissions by Mr. Rush  1 168:  2  3 "An important point to be made is that the  4 Proclamation itself contains evidence, negative  5 and positive that the framers had adopted ..."  6  7 Again 168:  8  9 "The framers would hardly have been so impolitic  10 as to enunciate clearly a policy of permanent  11 confinement ..."  12  13 Well, surely, My Lord, that's for you to decide.  14  15 170:  16  17 "Even if the dubious proposition were accepted  18 that the halt to westward expansion in the  19 south was a mere stopgap measure in response to  20 an emergency, 'this was clearly not so for  21 Canada.'"  22  23 Item 56:  24  25 "Since this was the very area of the Putative  26 gap? it seems impossible to believe the  27 framers had any possible thoughts of settlement  2 8 ..."  29  30 189:  31  32 "Before dealing with the perception of the  33 framers on this point it is convenient to  34 establish the reality.  This is easily done  35 with regard to the source of the Mississippi."  36  37 Number 58:  38  39 "In the late 19th century the location of the  40 said southern limit (of Rupert's Land) was the  41 subject of acrimonious dispute between the  42 Dominion of Canada and its infant client, the  43 Province of Manitoba on the one hand and the  44 Province of Ontario on the other.  The dispute  45 was finally settled following a ruling of the  46 judicial committee in 1884 ..."  47 20351  Submissions by Mr. Rush  1 And Dr. Greenwood relies on the interpretation of  2 that.  3 And finally his general conclusion at the end of  4 the report:  5  6 "In my opinion as a historian, the framers of  7 the Royal Proclamation of 1763 did not intend  8 ..."  9  10 The ultimate decision, which is for Your Lordship  11 to decide, in terms of the construction, meaning an  12 interpretation of the Proclamation.  13 Well, then, My Lord, at page -- I've isolated  14 those opinions that turn on the interpretation and  15 meaning of historical documents.  And what we have  16 here is the same kind of opinion giving with reference  17 to a vast array of documents that is, in my  18 submission, for Your Lordship to make judgments about  19 and not for the witness.  At page 15:  20  21 "By 1763 it was a standard royal instruction to  22 colonial governors that they do not ascent to  23 bills to promote manufacturing at the expense  24 of the mother country ."  25  26 He goes on and reports:  27  28 "the report goes onto site Article 63 of the  29 instructions to General Murray and to offer an  30 opinion about those instructions.  This is both  31 an argument and Dr. Greenwood's interpretation  32 of the instructions."  33  34 At page 18, footnote 9 he says -- 10:  35  36 "A review of the pamphlet ('remarks' ...)  37 literature spawned by the Canada V. Guadelupe  38 dispute suggests that ..."  39  40 Page 18:  41  42 "The notable exception mentioned in the previous  43 paragraph was Benjamin Franklin in his 'Canada  44 pamphlet' published in 1760."  45  46 Page 32:  47 20352  Submissions by Mr. Rush  1 "Lord Egremont's letter of May 5, 1763."  2 "Responding to the threatening situation on the  3 Susquehanna, Secretary of State for the  4 southern department, Egremont wrote Amherst on  5 27 January 1763 to urge that ..."  6 "He concluded his letter by remarking that the  7 King ..."  8  9 And he goes on to give his view of that.  10 MR. GOLDIE:  He quotes the letter.  11 MR. RUSH:  Page 33:  12  13 "After citing Pownall to Egremont, 15 Feb. 1763  14 and George III to Bute, March 1763, Dr.  15 Greenwood states: 'later events suggest that a  16 modified version of Mansfield's advice was  17 heeded ..."  18  19 MR. GOLDIE:  That's Mansfield.  20 MR. RUSH:  Page 34:  21  22 "On May 5, 1763 the Secretary of State wrote the  23 board of trade to request it's report advising  24 how the imperial government should organize His  25 Majesty's new acquisitions in North America,  26 the Carribean and Africa."  27  28 "The Lords Commissioners were to recommend such  29 regulations as would produce ..."  30  31 And he goes on to offer -- to quote passages from  32 the text of the letter and offer his opinion about the  33 intent of the document.  It was on this subject only  34 that the text of Egremont's letter contained  35 guidelines.  He goes on and gives his view of it.  36 Page 34 — 36:  37  38 "There was also an undated, anonymous memorandum  39 ...  This document has been variously  40 attributed to ... whoever was the author ...  41 It recommended a distribution of troops for  42 five explicit purposes ..."  43  44 He cites the passage from the document and offers  45 his opinion about it.  46 Then he goes on page 37 to the document entitled  47 "Hints".  After introducing the document he says: 20353  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "We can take for granted that Hints closely  approximated ..."  Pages 38 to 40:  "There is a discussion of several letters and  secondary sources regarding the authorship of  Hints."  And then on page 40 he states:  "Ellis recommended in Hints that because of its  vast extent Canada be divided at Trois Rivieres  into two colonies ..."  "Dr. Greenwood recites passages and synopsizes  the document and in so doing offers his  interpretation of the document."  And then he goes on page 41, My Lord:  "The purpose given in Hints was to have ..."  And then he states:  "This strategy was based on the commonplace  assumption that people should be kept close to  He goes on and offers his opinion on that.  THE COURT:  Mr. Rush, is it necessary for you to read all of  these?  MR. RUSH:  It is not necessary for me to read all of them, My  Lord, but what I wish to do is to simply point out  that —  THE COURT:  Certainly the sample of the other categories --  MR. RUSH:  I would like to do that, My Lord, but in each one of  the items under this heading 2, what I have directed  your attention to are the particular extracts which  indicate Dr. Greenwood's efforts at offering his  interpretation of the -- the sense or his  interpretation of the documents that's been referred  to.  If I can take you to the next one, My Lord.  MR. GOLDIE:  I take it my friend doesn't mean what he says in --  on page 13, item 15, that Dr. Farley --  THE COURT:  I — item 15? 20354  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GOLDIE:  Item 15 on page 13, My Lord.  I assume that's just  a mistake.  THE COURT:  I'm sure it is.  MR. RUSH:  That's a mistake, My Lord.  Now, My Lord, that continues on through --  THE COURT:  Page 25.  MR. RUSH:  To 25.  And, My Lord, again what I have tried to do  is to underline throughout the language, which in my  view is language of interpretation, language of  offering a meaning to words, which is interpretation  to a document.  It's argumentive in form, the  language, like the contention that or careful  examination should convince anyone.  He cites on page  23 De Reinhard's case.  And after that, for example,  item 80:  "It is submitted the second interpretation is  much the stronger one  ..."  81, for example:  "For all these reasons Carlton's new commission  would seem to constitute the most persuasive  evidence available as to what the Quebec Act  meant by ..."  And so on.  Now, then, we go to the third heading:  "Opinions Which Are Argument On The Law."  Now, My Lord, here again I don't mean to suggest  that the previous sections are not arguments on the  law, because I think that they are arguments, and  certainly in aid of the legal position of the  province.  These, however, I think, are more blatant  examples of the -- or the citing of law in order to  support propositions which he advances.  You will see  in item one he again cites:  "This question has not been finally answered by  the courts.  It was brought up briefly in  argument before the judicial committee during  the hearing of the St. Catherine's Milling case  (1888) but not pursued or referred to in their  lordship's judgments.  More recently judges of 20355  Submissions by Mr. Rush  1 the British Columbia Court of Appeal in White  2 and Bob (1964) and of the Supreme Court of  3 Canada in Calder (1973), have offered differing  4 answers."  5  6 Page 20:  7  8 "The common metaphor contemporaries used to  9 describe the and laud the British system of  10 government in the 18th century ...'  For this  11 the author relies on Sir William Blackstone,  12 Contemporaries on the Laws of England."  13  14 "In his interpretation of Egremont's letter of  15 July 14, 1763, Dr. Greenwood says: 'the  16 Secretary of State had some reason to be  17 concerned, for the Law of Nations required  18 effective occupation as the only secure title  19 to territory."  20  21 His view of Egremont, his view of the Law of  22 Nations, and he cites Chitty on the Law of Nations.  23 And then he's delving into some of the more finite  24 rules of the construction at page 90.  25  26 "And an argument for inclusion, based on the  27 expressio unius rule can be constructed, since  28 the territory granted the company was  29 explicitly withdrawn from the reserve in  30 paragraph V, but no mention was made of it in  31 paragraph Y."  32  33 Part 4 he cites as -- and he makes his argument:  34  35 "I submit they did not.  My reasons follow."  36  37 Again, My Lord, number 7 he feels that certain  38 views are succinctly expressed in Calvin's case.  He  39 draws the court's attention in 153 to Mr. Justice  40 Norris's position in Regina and White and Bob, and he  41 disagrees with it.  He says on page 155:  42  43 "In the case of White and Bob, Norris, J.A.  44 founded his opinion on the assumption that the  45 framers were eager to expand the empire to the  46 westcoast."  47 20356  Submissions by Mr. Rush  1  2 MR. GOLDIE:  Is my friend challenging the accuracy of the  3 quotation or what?  4 MR. RUSH:  I am challenging what then follows:  5  6 "I submit, with all due respect that this was a  7 misreading of the imperial policy towards North  8 America at the time of the Royal Proclamation."  9  10 There was no basis at all on Your Lordship's  11 ruling that a historian can come into the witness box  12 and make that kind of argument.  That's for Mr. Goldie  13 at the end of the day, presumably.  14  15 Page 229:  16  17 "Although no reasoned judgment was rendered, the  18 Judicial Committee upheld the arbitration award  19 on all major points, including the Lake of the  20 Woods as Ontario's westward terminus."  21  22 My Lord, 230:  23  24 "Quite clearly from the result, the judicial  25 committee rejected the 'due north'.  26  27 He cites Dalton McCarthy, Q.C, leading counsel.  28 He cites at 230, My Lord:  29  30 "The Lord Chancellor then went onto point out to  31 McCarthy ..."  32  33 And then he cites at some length the exchange  34 between the Lord Chancellor and Mr. McCarthy.  35 MR. GOLDIE:  I take it Dr. Farley creeps in here again in error?  36 MR. RUSH:  Yes, that's correct.  Thank you.  37 Opinions which are really argument.  38 My fourth category.  And here throughout, My Lord,  39 it's the same kind of language, but can be grouped in  40 broader terms.  41  42 Page 13:  43  44 "The main principle of the prevailing  45 mercantilist economic theory was that colonial  46 trade and production should have a subordinate  47 role ..." 20357  Submissions by Mr. Rush  1  2 Page 14:  3  4 "A newer version of mercantilism, which for  5 convenience may be called continental  6 mercantilism and which showed more appreciation  7 than did the traditionalists ..."  8  9 And he goes on.  And he talks about the  10 mercantilist scheme of things.  Surely these are all  11 argument, My Lord.  12  13 Page 20:  14  15 "It will be contended in parts 2 and 4 below  16 that the advisors of the imperial government  17 during the process of preparing the Royal  18 Proclamation of 1763 ignored ..."  19  20 And then he goes on and gives his view of that.  21  22 Page 20:  23  24 "Conventional wisdom, I believe, was reflected  25 in those provisions of the Royal Proclamation  2 6 ..."  27  28 Page 93:  29  30 "it has been contended that paragraph Y applies  31 ..."  32  33 Then he goes on and says:  34  35 "this reasoning is unsound.  Despite the fact  36 that ..."  37  38 These are all argument, My Lord.  Using the latter  39 criteria, he cites Blackstone's commentaries.  40 94 he cites Campbell and Hall.  He cites  41 Blackstone's description, and he says:  42  43 "From Blackstone's description and this review  44 it seems reasonably clear that Rupert's Land  45 was ..."  46  47 He cites Campbell and Hall again.  And then page 2035?  Submissions by Mr. Rush  1 185:  2  3 "Even if the foregoing proof in argument failed  4 to persuade."  5  6 And then he has his argument again.  7 Now, then, there is the category, "The Broad Scope of  8 History".  9  10 Item one:  11  12 "By the spring of 1761 the British government  13 had determined upon insisting at the peace  14 settlement that Canada be retained."  15  16 He gives his opinion on that.  17  18 Page 5:  19  20 "Before, during and immediately after the war,  21 British - Indian relations were bedeviled by  22 European encroachments on lands occupied by  23 native tribes as their hunting grounds."  24  25 Page 9:  26  27 "the main lines of the imperial governments  28 approach to Indian lands had been worked out  2 9 ..."  30  31 Page 12:  32  33 "It is convenient had here to summarize the  34 prevailing concepts of Empire held by Britain  35 during the early 1760's ..."  36  37 My Lord, these are matters that are not related to  38 documents, but are his general view of an assimilation  39 of secondary sources.  These were dramatic events.  He  40 says on page 22:  41  42 "For the most part the Hanoverian's exercised  43 power discreetly behind the scenes ..."  44  45 He gives his view on that.  46  47 Page 171: 20359  Submissions by Mr. Rush  1  2 "A superficial reading of British imperial  3 history in the years after Proclamation might  4 suggest that the exspansionist interpretation  5 had merit."  6  7 Well, My Lord, that's a very -- the very type of  8 opinion on this category, the general sweep of history  9 that you so enjoin, and that is where questions are  10 open to revision and debate among historians that they  11 are not properly the subject matter of evidence in  12 court.  13 And he then goes on.  In putting forward his point  14 of view he states:  15  16 "There was certainly no intention in London to  17 settle the Ohio ..."  18  19 He gives his view of that.  He talks about:  20  21 "In terms of the Canadian history, the manifest  22 destiny."  23  24 And I say, My Lord, that these entries all  25 indicate in this section opinions that are offered  26 that violate Your Lordship's rulings with regard to  27 the introduction of evidence on the general sweep of  28 history.  And indeed what I think all of these 32  29 pages, and I say somewhat exhaustively, demonstrate,  30 that throughout the whole of his report what Dr.  31 Greenwood is doing is weaving all of these opinions on  32 the Proclamation, on the Statutes, on the questions of  33 law, on documents, weaving these through his opinions,  34 such that when so intermingled with the facts or the  35 documents that he cites, that you simply can't pull  36 them together.  37 And it's for that reason that I object to the fact  38 that the report itself should be filed, and we just  39 follow along and we will object to it.  My Lord,  40 that's not the approach to take here.  41 Now, in my submission, My Lord, despite what your  42 comments have been with regard to Mr. Morrison's  43 evidence, in my view the report does not disclose that  44 Mr. Morrison was allowed to speculate on documents, to  45 give his interpretation on documents, to give you a  46 sense of the meaning of the words of Proclamation.  47 What Mr. Morrison was allowed to do was to present the 20360  Submissions by Mr. Rush  1 document, if he chose to read from it, to give Your  2 Lordship the context and where the document itself  3 require, to express the significance in terms of  4 language or consents presented in that particular  5 document.  6 Now, what I have done at tab 7 is that I have set  7 out, My Lord, the extracts of Mr. Morrison's testimony  8 that dealt with the documents that were presented and  9 the objections taken by Mr. Goldie, and I should say  10 in some occasions interventions by Your Lordship.  And  11 the first I would like to direct your attention to is  12 on page -- it's at tab 7 in volume 222, April 25th,  13 '89, page 16137, where Mr. Goldie at line 34 states  14 this:  15  16 "The construction of a document does not fall  17 within that category.  The construction of a  18 document, especially one in respect of which  19 there is no patent or latent ambiguity, is for  20 the Court alone, and the mischief that is  21 referred to is one that relates to the  22 legislative history of an act of parliment.  23 And I object to this witness being asked what  24 is the mischief that it is entitled -- that it  25 is about to correct.  The mischief so far as it  26 is relevant to this case, and I'm not sure that  27 it is relevant, is apparent from the recital of  28 the document itself."  29  30 Now, I should say, My Lord, that this is the -- if  31 I can say the beginning point.  Objections taken to  32 Mr. Morrison's evidence, which ultimately results in  33 Your Lordship's ruling, which is found at tab 2 of  34 this binder.  But let me refer you to --  35 MR. GOLDIE:  Well, I think my friend should go on to the next  36 page, page 16138.  37 MR. RUSH:  Yes, certainly.  38 MR. GOLDIE:  At line 7 to 12.  39 MR. RUSH:  I will start before that:  40  41 "MS. MANDELL:  My Lord, if my friend's excited  42 about the word mischief I can ask the witness  43 with respect to the background of the document.  44 THE COURT:  Well, I think you can ask a  45 researcher, subject to what your learnened  46 friends say, what the historical setting in  47 which this document was -- was promulgated.  At 20361  Submissions by Mr. Rush  1 least, I would think you could, and --  2 MR. GOLDIE:  If Your Lordship wishes the  3 assistance of Mr. Morrison in setting this in a  4 general history of the time.  5 THE COURT:  Yes.  6 MR. GOLDIE:  Then I don't have an objection to  7 that."  8  9 Well, we'll carry on about whether this is so, My  10 Lord.  Page 16147.  Ms. Mandell's question at line 7.  11 It is set out at line 13:  12  13 "And I ask you, in your opinion, was there a  14 pressing problem raised by the Indian nation  15 which was of concern to the Crown during this  16 period? "  17  18 And perhaps, My Lord, at my -- that might qualify  19 as a setting of general history.  20 Mr. Goldie's objection:  21  22 "Well, I object to that, My Lord.  It's  23 perfectly clear from the documents what the  24 nature of the problem was, it's perfectly clear  25 what we're leading up to, and presumably we are  26 going to be getting to Pontiac's conspiracy and  27 outbreak of Indian war which took place on the  28 boundaries of these colonies and which  29 immediately preceded the Royal Proclamation.  30 But I take exception, My Lord, and I say that  31 this witness is not qualified to summarize  32 documents which in themselves tell the story.  33 It is a matter of argument to link these  34 together and to submit to Your Lordship the  35 nature of the problem and its relevance to the  36 Royal Proclamation.  The factual circumstances,  37 the matrix of facts are all here."  38  39 THE COURT:  I think what he is saying there is that those  40 matters were actually stated in the document in  41 question.  42 MR. RUSH:  Correct, My Lord.  He is saying that the witness is  43 restricted to the matters of facts as stated in the  44 documents, and anything else is a matter or argument.  45 That is the position adopted by Mr. Goldie here.  4 6    THE COURT:  Mr. Rush, I am sure that that's not the way the  47 evidence proceeded.  I think that what happened when 20362  Submissions by Mr. Rush  1 the document itself set out the background or the  2 matrix of fact, that didn't allow the witness to do it  3 again, but there are many, many cases where Mr.  4 Morrison gave me the facts for an opinion of a  5 document where he -- it didn't itself --  6 MR. RUSH: Only in terms of the context, My Lord.  There is no  7 question that it was the context that you are  8 allowed -- that you allowed him to speak to.  And  9 similarly with Dr. Lane, you will remember that we  10 tortured through framing up the questions in terms of  11 what is the contextual framework for these documents,  12 My Lord.  And that was the basis of it.  Apart from  13 that there was, in my submission, no further offering  14 of opinions.  15 I would like to refer you next to page 16149.  Mr.  16 Goldie at the bottom, line 41.  17 THE COURT:  Well, Mr. Rush, I notice it's after 4 o'clock.  How  18 much longer do you think you are going to be?  19 MR. RUSH:  I am going to be another -- I am going to be at least  20 half an hour or more.  21 THE COURT:  Well, then, I think we should adjourn 'til tomorrow  22 morning.  If we could conveniently finish tonight,  23 perhaps useful to stay, but I don't think we are going  24 to be able to do that.  So I think we should adjourn  25 until 10 o'clock tomorrow morning.  26 THE REGISTRAR:  Order in court.  27  2 8 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  29  30 I HEREBY CERTIFY THE FOREGOING TO  31 BE A TRUE AND ACCURATE TRANSCRIPT  32 OF THE PROCEEDINGS HEREIN TO THE  33 BEST OF MY SKILL AND ABILITY.  34  35    3 6 LORI OXLEY  37 OFFICIAL REPORTER  38 UNITED REPORTING SERVICE LTD.  39  40  41  42  43  44  45  46  47

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