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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-13] British Columbia. Supreme Court Oct 13, 1989

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 20729  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 Vancouver, B. C.  2 October 13, 1989.  3  4 THE REGISTRAR:  In the Supreme court of British Columbia, this  5 13th day of October, 1989.  In the matter of  6 Delgamuukw versus her Majesty the Queen at bar, my  7 lord.  8 May I remind you, sir, you are still under oath?  9 Would you state your full name, please?  10 THE WITNESS   Frank Murray Greenwood.  11 MR. GOLDIE:  My lord, my friends have asked me to speak to the  12 question of scheduling, to determine whether it is  13 necessary to sit on Saturday this week and Saturday of  14 the next week.  15 If your lordship is available, and I believe at one  16 time you indicated you would be, next week, I think we  17 can dispense with sitting on the Saturdays.  18 THE COURT:  Next week?  Well, we were going to sit next week,  19 weren't we?  20 MR. GOLDIE:  No, I am sorry, it's not next week, the week of the  21 23rd.  22 THE COURT:  I have made so many changes in my schedule now, let  23 me think.  I believe I am, but --  24 MR. GOLDIE:  If we could, perhaps if I could outline the  25 schedule that we might follow and then your lordship  26 can consider whether it is convenient for you.  27 Dr. Greenwood's cross-examination and  28 re-examination will be completed today and Mr.  29 Williams will be called.  30 THE COURT:  So he will be called on Monday?  31 MR. GOLDIE:  No, we would call him today.  And he would be, I  32 anticipate, on the stand on Monday and some part of  33 Tuesday.  But in any event, we would propose calling  34 Mr. Magwood at 9:30, if your lordship agrees, on  35 Tuesday the 17th.  Both Mr. Willms, in chief, and my  36 friend Mr. Rush, in cross-examination, have indicated  37 that they will not be very long.  38 THE COURT:  We might be half a day with him?  39 MR. GOLDIE:  Yes.  He would be followed by Dr. Robinson.  40 THE COURT:  Do you think Mr. Williams can be completed in chief  41 and cross-examination?  42 MR. GOLDIE:  I am not sure, but there is a little room after Mr.  43 Magwood, because Dr. Robinson -- Mr. Grant has asked  44 me not to call her before Wednesday morning.  45 THE COURT:  That's the 18th?  46 MR. GOLDIE:  That is the 18th.  It is an open question whether  47 she would be completed by Friday.  I think probably 20730  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 not.  But if the week of the 23rd is available, the  2 first two days, the 23rd and 24th would be taken up  3 with reading in documents, and your lordship will have  4 in mind that there will be an examination out of court  5 in Smithers on the 24th.  But on the 25th, 26th and  6 27th, it would be available for the completion of Dr.  7 Robinson's cross-examination, if that is required, and  8 to complete the reading in of documents.  We  9 anticipate a half day argument on documents which have  10 been identified, have been marked for identification  11 but not completed.  And then my friends will advise us  12 if they require the examination of what I will call a  13 fishing affidavit, that is, to prove the nature of the  14 fishing licences which have been marked for  15 identification and, if so, that can be done out of  16 court or in court.  If I am correct in all of that, we  17 would be complete no later than the 27th.  18 Now that takes into account the fact that I have  19 some difficulties with the following week, and on the  20 6th of November I am in the Supreme Court of Canada  21 for a re-hearing, a short re-hearing,  22 THE COURT:  We weren't going to be sitting then anyway.  23 MR. GOLDIE:  We were not until the 8th, when the Federal Crown  24 would begin its case.  25 THE COURT:  The problem is whether I am free on the 23rd, the  26 week of the 23rd?  27 MR. GOLDIE:  That's correct.  If your lordship is not we better  28 sit tomorrow.  2 9 THE COURT:  I will have to make some inquiries.  I have made so  30 many changes, we are trying to accomodate some five  31 judge courts and we are having a dreadful time.  32 MR. GOLDIE:  I know your lordship stated the Monday and Tuesday  33 would be out because you had scheduled a five man  34 court for that period.  At least that's the note I  35 have.  36 THE COURT:  The 23rd?  37 MR. GOLDIE:  No, the 30th.  38 THE COURT:  The 30th.  I think that's right, and my belief is  39 that I am free on the 23rd, but I would like to check  40 that because I have made so many changes I am really  41 not sure any more.  42 MR. GOLDIE:  Well, we hope what I have outlined is something  43 that your lordship can take as settled.  44 THE COURT:  Let me leave it until the morning adjournment.  I  45 will raise it right after, unless you want to adjourn  46 now and find out?  47 MR. GOLDIE:  No, that's not necessary. 20731  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 MR. RUSH:  One or two matters before I re-commence the cross-  2 examination, my lord.  And I wanted to hand up the  3 last page of the first tab of the cross-examination  4 documents, which indicates the author of the article  5 to be marked Dr. Emmanuel, a doctor at the University  6 of Paris, that was handwritten on the face page and  7 just simply --  8 THE COURT:  Where does that belong?  9 MR. RUSH:  It will go at the end of tab 1.  10 THE COURT:  Thank you.  11  12 F. MURRAY GREENWOOD, Resumed:  13  14 THE REGISTRAR:  Dr. Greenwood, have you got tab 15?  15 A   I am not sure, American Political Relations of -- I  16 think we were going to talk to that.  17  18 CROSS-EXAMINATION BY MR. RUSH: (Continued)  19  20 MR. RUSH:  That's correct.  21 Q   Just dealing with that tab, you have the binder there?  22 A   I have part of the article.  I don't have the  23 footnotes.  24 Q   Right.  And, my lord, I indicated yesterday that I  25 would endeavour to get the footnotes and what I have  26 done, I have obtained the face page or cover page or  27 beginning page of the Shy article, so I want to hand  28 that up to you now.  And that is page 155 and it's, it  29 will become the second physical page in, that will be  30 the page indicating the name of the book and then this  31 page should go before page 156.  32 THE REGISTRAR:  The second page in?  33 MR. RUSH:  Yes.  34 THE COURT:  Yes.  All right.  35 MR. RUSH:  This simply indicates the authorship of the  36 particular article.  I omitted that.  37 Q   And, finally, Dr. Greenwood had indicated in his  38 testimony that the footnotes were not appended to the  39 article, and indeed they weren't.  They were attached  40 as a group at the end and his reference was  41 particularly drawn to footnote 69, and I am going to  42 hand these up.  This goes at the end now of tab 15.  43 Q   Now, Dr. Greenwood, yesterday I had referred you to  44 the Bellin 1755 map, which is map number 14 in the  45 Farley map folio, and you were looking at a copy at  46 that time, because I had asked you about the placement  47 of the fort, Camanistigoya, and you had been referred 20732  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  3  4  5  A  6  Q  7  A  8  Q  9  10  11  A  12  13  Q  14  A  15  Q  16  17  18  19  A  20  Q  21  A  22  Q  23  24  THE  COURT  25  MR.  RUSH:  26  Q  27  28  A  29  30  31  32  Q  33  34  A  35  36  THE  COURT  37  38  A  39  THE  COURT  40  A  41  42  THE  COURT  43  MR.  RUSH:  44  Q  45  46  A  47  Q  say.  Just  to a passage in the, I think it was Bougainville on  Posts, and I have the original now and I think it's a  little better to read.  And I am wondering if you will  now look at this original?  Have you got a magnifying glass?  If we had one, maybe we could --  Because it's very, very difficult.  I have poor eyes.  I am going to direct your attention here, and if you  can read what is there, and if you can't maybe I will  read it for you and my friend can agree what I  It seems to say -- I can't read the first part.  too small for me.  Can I —  The first part I can't read.  Look at this original facsimile of the Ballin 1755  map, it, to my eyes, says "Camanistogoya ou Les Trois  Rivieres", and Les Trois Rivieres would be the three  rivers, would it not?  Yes.  And in French it would be "Ou Les Trois Rivieres"?  Yes.  And this is located in the northwestern section of  Lake Superior.  This is the indication here.  :  This one or that one?  It's this one just above my thumb line.  Now, that, I think you have agreed yesterday, Dr.  Greenwood, was one of the Forts of the French?  No, I think you stated there was a fort at the Grand  Portage and I said probably there was.  I can't  testify to the permanence or otherwise of the Grand  Portage in New France.  Can you agree with me that Camanistigoya was a French  Fort?  It says Camanistogoya there or Trois Rivieres,  only testify as to what's on the document.  :  It's very close in miles from Grand Portage,  not?  Yes, I think it would be a little more southerly.  :  The Grand Portage?  The Grand Portage would be a little bit more to the  left.  :  West, yes.  Thank you.  Now in your evidence, Dr. Greenwood, you referred to  Clarence Alvord on the Mississippi Valley?  Yes.  That for your reference, 1159, take volume one, tab 32  I can  is it 20733  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  3  4  5  THE COURT  6  MR. RUSH:  7  Q  8  9  A  10  Q  11  12  13  A  14  Q  15  16  17  18  19  20  Q  21  22  23  24  25  26  A  27  28  29  Q  30  31  32  A  33  Q  34  A  35  Q  36  37  A  38  Q  39  40  A  41  Q  42  A  43  Q  44  45  46  47  A.  I want to show you a map that's contained in that  volume, Dr. Greenwood, and I am handing up an extract  of the volume entitled Mississippi Valley in British  Politics by Clarence Alvord.  :   Which volume would that be, Mr. Rush?  Volume one.  Now, if you can -- if you will agree, you recognize  this work?  Yes.  All right.  And I would draw to your attention that it  is an extract from volume one, it's not the totality  of volume one, obviously?  Right.  And I would like that marked as the next exhibit, my  lord, it's 1168-16.  (EXHIBIT 1168-16: THE MISSISSIPPI VALLEY IN BRITISH  POLITICS - ALVORD)  My particular interest here, Dr. Greenwood, is page  317, and I would like you to look at that, if you  will.  It contains a photocopy reproduction of the  coloured map in the volume.  And I wonder if you are  knowledgeable about this map, that is to say, have you  looked at it in your review?  I have seen it, of course, in the volume, but I  haven't done a study of it.  It didn't seem to be  important enough.  You will notice that it indicates that the -- in the  bottom right hand corner, which is the legend, it says  the Western Colonial Schemes, do you see that?  Yes, I do.  And it details the Amherst's Detroit plan of 1767?  Yes.  The Phineas Lyman Plan of 1766 and the Illinois Scheme  of 1766?  Yes.  You were -- you are aware that those are schemes that  were put forward for the purpose of settlement?  For the purpose of expansion, yes.  Expansion and settlement, isn't that right?  Yes, but they are well after the proclamation.  Well, it seems that one is three years after the  proclamation.  And I will come to that in just a  moment.  Now, Dr. Greenwood, if you would look, please, to  page 351? 20734  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  A  2  Q  3  4  A  5  Q  6  7  A  8  Q  9  10  11  A  12  13  Q  14  A  15  Q  16  17  18  19  20  A  21  22  THE  COURT  23  A  24  MR.  RUSH:  25  THE  COURT  26  A  27  MR.  RUSH:  28  Q  29  30  31  32  A  33  34  Q  35  36  37  A  38  THE  COURT  39  A  40  41  MR.  RUSH:  42  Q  43  A  44  Q  45  A  46  47  Q  Yes.  And I draw your attention to footnote 607, do you see  that, at the bottom of 351?  Yes.  And these are the observations made by General  Amherst?  Yes.  And, he is referring, is he not, to the boundaries of  the proposed colony based at Detroit?  That appears in  the last --  That's what Alvord is saying, yes.  I probably have  read that document, but I don't have it before me.  You know nothing to the contrary; is that correct?  That's correct.  All right.  Now, in that description at the bottom of  351, and based -- it says on the observations by  General Amherst, the Detroit colony would have taken  in a great deal of land beyond the Royal Proclamation  line of 1763, wouldn't it?  Yes.  There were several projects of that nature at  that time.  :  Do you mean beyond the westerly or the easterly?  Beyond the westerly boundary for settlement.  That would be the Appalachian line?  :  Beyond the Appalachian line?  Yes.  These are post-proclamation, my lord.  Now, I would like you to look at the map again, Dr.  Greenwood, and you will see that the Phineas Lyman  plan of 1766 is outlined in blue.  Do you see that,  317?  I see it.  I am not sure that the map tells me to look  to blue.  Well, it's a faint blue but if you look under Phineas  Lyman's plan, I would suggest to you that it is in a  light shade of blue?  Okay.  :  It looks like a blue crayon line.  I am just saying, my lord, that the map doesn't tell  me to look for blue.  What does it say?  Phineas Lyman's plan, 1766?  Yes.  Or is this a reproduction of the colour in the  original map?  This is a reproduction of the colour in the original 20735  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  THE  COURT  3  4  MR.  RUSH:  5  THE  COURT  6  7  A  8  9  MR.  RUSH:  10  Q  11  12  A  13  14  Q  15  16  A  17  Q  18  19  20  21  22  A  23  24  25  Q  26  27  28  A  29  Q  30  31  A  32  33  Q  34  A  35  Q  36  37  38  39  A  40  Q  41  42  43  44  45  A  46  MR.  RUSH:  47  map.  :  The witness's copy is a little different from mine,  Mr. Rush.  It is?  :  Yes.  There is a tinge of blue there and a tinge of  blue there.  But it's pretty faint.  I am not questioning the representation but just  simply that I can't --  You can't make out that it's blue, is what you're  saying?  If this is accurately represented then, yes, it would  be blue.  All right.  I will produce the volume for you if you  like.  I don't question this at all.  That's fine.  Well, then, given that the Phineas Lyman  plan appeared, as it does, in that light shade of  blue, there is a similar light shade of blue or at  least blue lines on this map, is there not?  My  suggestion --  The only blue I see is in the square covering the  western part of the Ohio as it flows into the  Mississippi.  Was that a part of the territory around the Ohio,  which had been previously sought by the Mississippi  Company?  I can't answer that.  I don't know.  You know that the Mississippi Company had petitioned  for land in that region in 1763?  Are we talking about Vandalia now, the colony of  Vandalia?  Yes.  Well, that is in the area of Vandalia.  All right.  Dr. Greenwood, I am going to show you  another extract, this is taken from the critical  period, 1763 to 1765, if you could hand it to his  lordship.  Finished with this, Mr. Rush?  No, I am not.  If you will keep that handy.  I wonder  if you could identify this documents as volume ten,  taken from the collections of the Illinois State  Historical Library, The Critical Period 1763-65 by  Alvord and Carter?  Yes.  May that be tab 17? 20736  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 (EXHIBIT 1168-17:EXCERPT FROM COLLECTIONS OF THE  2 ILLINOIS STATE HISTORICAL LIBRARY - THE CRITICAL  3 PERIOD 1763-1764)  4  5 MR. RUSH:  6 Q   Now, the passage I would like you to look at is at  7 pages 23 and 29, it's the second page in, Dr.  8 Greenwood, and you will see there a reference to the  9 Mississippi Company, September 9th, 1763.  The bottom  10 of page 23, do you see that?  11 A   Yes.  12 Q   And it indicates that a meeting of the Mississippi  13 Company at Belleview, September 9th, 1763?  14 A   Yes.  15 Q   Indicates on page 24 who was present?  16 A   Yes.  17 Q   And then:  18  19 "A memorial to His Majesty being read some  20 amendments made thereto, the same is agreed to  21 and is as followeth",  22  23 And it sets out:  24  25 "To the King's most Excellent Majesty, The  26 humble Memorial of Inhabitants of Great  27 Britain, Virginia, Maryland, et cetera, May It  28 Please Your Majesty, the Memorialists consider  29 it the duty of all good subjects to improve to  30 the utmost of their power the blessings of  31 peace and reflecting how this improvement may  32 best be obtained by the exertions of their  33 abilities and the applications of their  34 fortunes, have proposed with the approbation  35 and under the protection of your Majesty to  36 settle as speedily and effectually as possible,  37 some part of the vast country on the  38 Mississippi and its waters now, unquestionably,  39 Your Majesty's territories, by the late treaty  40 of peace."  41 You are familiar with this as the Mississippi  42 Company petition, are you not?  43 A   Yes, it is.  44 Q   And it runs, my lord, from pages 23 through to 29.  45 And I would ask you to just look at page 29, Dr.  46 Greenwood.  And that indicates, does it not, that the  47 Mississippi Company's pages were sent to the Right 20737  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 Honourable, and I can't make out that word, Earl of  2 Chatham --  3 MR. GOLDIE:  William Earl of Chatham.  4 A   That's the the Elder Pitt.  5 MR. RUSH:  6 Q   I see.  On Saturday, the 2nd of April, 1774.  7 A   Yes.  8 Q   Now, I would like you, if you will, just to turn back  9 to the other tab, tab 16, which was the previous  10 document, and I direct your attention to 315 and 316,  11 these are the two pages preceding the coloured map?  12 A   Yes.  13 Q   And 315 beginning the first full paragraph.  14 A   The lands?  15 Q   Yes.  16  17 "The lands for which the Mississippi Company  18 have petitioned were all also looked upon with  19 longing by General Phineas Lyman of  20 Connecticut, who represented the 'Military  21 Adventurers'."  22  23 That's your understanding, is it not?  24 A   That's what it says.  25 Q   But does that coincide with your research?  26 A   I couldn't tell you who the Military Adventurers were.  27 Q   You know Phineas Lyman?  28 A   He had a project for settling the area west of the  29 forks of the Ohio, yes.  30 Q   It goes on:  31  32 "These were colonial officers who had served in  33 the late war and were now associated with the  34 members of the former company of Samuel Hazard.  35 Lyman appeared in England about 1763, it is  36 said,"  37  38 And it gives a footnote reference,  39  40 "but there are no direct evidences of his  41 activities until Lord Shelburne became southern  42 secretary in 1766.  In several long memorials  43 addressed to that official, Lyman proposed that  44 measures should be adopted to erect in the  45 course of years five or six, colonies along the  46 Mississippi River from the falls of St. Anthony  47 to the colony of West Florida." 2073?  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 Does that statement of fact, Dr. Greenwood, accord  2 with your understanding of his proposal?  3 A   Yes.  I haven't read all of Lyman's many speculative  4 proposals, but I have read one or two but it is  5 consistent of what I know of Lyman.  6 Q   Continuing on in this quote:  7  8 "His general recommendation was that a governor  9 be appointed to have oversight over all this  10 territory but his immediate proposal was  11 limited to the establishment of one colony at  12 the mouth of the Ohio River."  13  14 Which is I think what you said?  15 A   I agree with that.  16 Q   Now, I think you also indicated, did you not, Dr.  17 Greenwood, that the bounds of this proposed colony of  18 Lyman's, over the western part, was approved by the  19 Privy Council as Vandalia in 1772, was it not?  20 A  A colony, Walpole and Company Associates, Benjamin  21 Franklin and other land speculators petitioned for  22 certain land and the Privy Council did agree to  23 establish a colony called Vandalia, which would extend  24 into the area you are talking about.  25 Q   All right.  I just would like you to look at the  26 bottom of page 316, and I quote beginning at paragraph  27 at the bottom.  28  29 "This plan of Lyman's was in accord, except for  30 an overlapping of boundaries, with one formed  31 in Philadelphia that was destined to be the  32 most favoured and to exercise the greatest  33 influence in London."  34  35 This is the one you have just mentioned, is it not?  36 A   Yes.  37 Q  38  39 "In the discussion of a previous topic mention  40 was made of the fact that George Croghan, while  41 in England on business for Sir William Johnson,  42 had become associated in some way with a plan  43 for a colony in the Illinois country."  44  45 A   Yes.  46 Q   And he goes on to explain the promotion of this scheme  47 in the next few pages. 20739  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 A   Yes.  I think the schemes were always changing so I  2 couldn't testify that one scheme in 1764 or '65, was  3 exactly the one that Walpole and Associates put  4 forward to the Privy Council, but they were generally  5 talking about western settlement.  6 Q   Well, I just would like to refer to you page 322 in  7 this tab, in the first full paragraph, beginning:  8  9 "In September the scheme was laid before  10 Shelburne who had already read the plan and its  11 recommendation by Johnson."  12  13 Johnson was one of the promoters?  14 A   Yes, of a plan at that time, yes.  15 Q  16  17 "His opinion was favourable but he said the  18 project was not in accord with the opinion of  19 certain of his colleagues.  Franklin thought  20 the reference was to Lord Hillsborough, the  21 president of the Board of Trade, who feared  22 Ireland might be depopulated.  The other  23 objections were the usual ones, the territory  24 was too far inland for commerce and for  25 government, et cetera.  There was, however, one  26 reason for opposition unmentioned by Franklin.  27 In 1764 the ministry had determined on a  28 gradual expansion of settlements westward and  29 Lord Hillsborough was at that time in favour of  30 such a policy; but the plans of these land  31 companies looked to the opening of territory in  32 the far west, which was separated by hundreds  33 of miles from the settled parts of the colony  34 and was situated in the midst of Indians known  35 to be hostile to the English.  The various  36 objections were discussed at length; and  37 although Lord Shelburne declared them to be of  38 little weight, he refused to commit himself."  39  40 Now, that plan that is there being talked about is  41 the one that you have made reference to as the  42 Franklin-Johnson plan?  43 A   No, not necessarily.  They were talking 1764, at this  44 point it would be extremely magical if it was the  4 5 s ame.  46 Q   Certainly talking about a Johnson plan, is he not?  47 A   Yes, talking about a Johnson plan but it's not the 20740  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 same one that was submitted to the Privy Council, and  2 I don't agree with the statement in 1764 "the ministry  3 had determined on the gradual expansion of the  4 settlements westward."  I don't agree with that at  5 all.  There is no evidence thereof.  6 Q   Well then it goes on, "Lord Hillsborough was in favour  7 of such a policy", I think you agree with that  8 proposition?  9 A   No, I don't, because we know from the documents that  10 later, in 1768 and '72, he was absolutely against  11 western expansion.  It's conceivable that he changed  12 his mind in 1764, it's possible, but there is no  13 evidence here and as a professional historian I would  14 say it's very unlikely.  15 THE COURT:  When did the Privy Council approve the Vandalia  16 plan?  17 A   1772, but it was never implemented because of the  18 onrush of American troubles. But they did agree to it.  19 THE COURT:  1762?  20 A   Yes.  21 MR. RUSH:  22 Q   You agree, do you not, Dr. Greenwood, that the origins  23 of these plans go back to 1764 or 1763?  24 A   Probably 1763, possibly even earlier. The Ohio  25 Company, for example, of Virginia, had lands west of  2 6 the Appalachian Divide.  27 Q   Yes.  I want to direct your attention to, again,  2 8 the -- reading on in the comment that I have concluded  29 with a moment ago, at top of page 323:  30  31 "In a conference in October, the secretary of  32 state went further and said he approved of the  33 scheme but that every proposed expense for  34 America would meet with many objections.  The  35 next month Richard Jackson added his influence  36 and drew up a long paper on the plan of the  37 Board of Trade and that of Lord Barrington,  38 that has already been commented upon."  39  40 Who was Richard Jackson?  41 A   He was an M. P. and land speculator, also an advisor  42 of governments as well.  43 Q   And, Lord Barrington?  44 A   Lord Barrington was the minister for war or secretary  45 for war.  War secretary.  46 Q   Yes.  And, "In this the author wrote strongly in  47 favour of western colonies and particularly of one in 20741  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  A  3  Q  4  A  5  MR. GOLDIE  6  A  7  MR. RUSH:  8  Q  9  10  11  12  13  A  14  15  16  Q  17  A  18  Q  19  A   '  20  Q  21  22  A  23  Q  24  25  26  27  28  A  29  Q  30  ]  31  A  32  Q  33  34  i  35  36  37  A  38  Q  39  40  41  42  43  44  45  46  47  the Illinois country."  That's true.  And that is reference to 563?  That's true.  :  That's Jackson's paper?  Yes, Jackson had that position.  We understand the author to be Jackson, yes.  I want to direct you back now to page 316 of the  same text, Dr. Greenwood, and at the bottom you will  see again a reference is made to George Croghan, and  who was George Croghan?  I can't remember the colony, I think what's from  Pennsylvania, but in any case he was kind of a sub  agent of Johnson's.  Was he a deputy of Johnson's, Sir William Johnson?  Yes, a deputy.  All right.  Now you have tab 17 there, do you?  Which one is that?  It was the other document, the second of the two,  Alvord, The Critical Period?  Yes.  I wanted to refer you to a comment on George Croghan  in the Illinois Historical Collection, and that's  1168-17, my lord, the second of the two I handed to  the witness.  If you have that, Dr. Greenwood, I would  like you to refer to page 221.  Yes.  And, this contains a letter from Croghan to Johnson of  March 10th, 1764?  Yes.  And I don't intend to go into it, but there is a  footnote indicating some biography there of George  Croghan, and you indicated that he was from  Pennsylvania and he came to Pennsylvania from Ireland  in 1741 and entered the Indian trade?  Yes.  I would like to refer you to page 222, to the first  full paragraph there.  And, it says this:  "Tho I have been here now a month, nothing has  been done regarding North America.  The people  here spend their time in nothing but abusing  one another and striving who shall be in power  with a view to serve themselves and their  friends and neglect the public.  It was but  yesterday that your State of Indian Affairs was 20742  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  THE COURT  A  THE COURT  MR. RUSH:  Q  A  Q  A  read at the Board of Trade tho I delivered it  the 13th of last month.  Lord Halifax and Lord  Hillsborough, both have read it and Mr. Penn  told me yesterday that Lord Halifax approves  much of what you have recommended."  Just pause there, was Lord Halifax a member of the  cabinet at that time, 1764?  I can't swear to it.  I think he was still in the  cabinet, but there were so many changes I couldn't  swear to it.  What about Hillsborough?  I think he was, probably, still president of the board  of trade but, you know, I am not going to swear to  that either.  I will carry on:  "Lord Halifax talked to me about..."  :  The dramatis personnae shows that Lord Halifax was  secretary of state for the department from 9th of  September, 1763.  Yes, my lord, but I give terminal dates, I am only  interested in up to October 7, 1763.  :  All right.  Was Halifax at this time a member of the Board of  Trade?  It would seem to indicate so by a reading of  this document.  Where?  He says:  "I delivered the 13th of last month Lord  Halifax.."  Excuse me, just above that:  "It was but yesterday that your state of Indian  affairs was read at the Board of Trade tho I  delivered it the 13th of last month.  Lord  Halifax and Lord Hillsborough both have read it  and Mr. Penn told me yesterday that Lord  Halifax approves much of everything you have  recommended."  So that would suggest to me that Halifax and  Hillsborough were both on the board of trade at that  time?  Certainly not Halifax.  Halifax had become southern  secretary replacing Egremont in August, September,  1763.  So I don't think he would have been the  president of the Board of Trade.  That position was  taken by his brother.  Yes, well, if you look at the footnote, Dr. Greenwood, 20743  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 under two, the fifth line down,  2  3 "His first employment that brought him touch  4 with colonial affairs was in the autumn of 1763  5 were through the influence of Lord Halifax he  6 was made president of the Board of Trade."  7  8 I think you commented on that.  Well, let me  9 continue with the passage, fourth line from the  10              bottom:  11  12 "Lord Halifax talked with me about a boundary  13 with the Indians and I mentioned to him your  14 honour's thoughts on it, which we talked about  15 before I left Johnson Hall and there is talk of  16 settling a colony from the mouth of the Ohio to  17 the Illinois, which I am told Lord Halifax will  18 desire my opinion of in a few days.  Mr.  19 Pownall told me yesterday that I would be soon  20 sent forward to attend the Board of Trade what  21 measures they will take the Lord knows, but  22 nothing is talked about except economy."  23  24 Then he goes on.  And the Pownall that is in being  25 referred to is footnoted as indicating that it was  26 John Pownall?  27 A   Yes.  28 Q   You agree with that, do you?  29 A   Yes.  30 Q   All right.  Thank you.  31 Q   Now that colony that is there described as -- at the  32 bottom of 222 to 223 talking of settling a colony from  33 the mouth of the Ohio to the Illinois, is that the  34 area which was subsequently approved of as the colony  35 of Vandalia?  36 A   It's in the general area, yes.  Certainly west of the  37 proclamation line.  38 Q   All right.  You can set those aside, Dr. Greenwood.  39 They could be inserted in the binder.  40 Q   Now in your testimony, Dr. Greenwood, you indicated  41 there was a pamphlet debate among pamphleteers in  42 England, I think you described it as such?  43 A   Yes.  44 Q   And this was a debate that was undertaken both in  45 England and in the Colonies?  46 A   Yes, there is some evidence of a debate going on in  47 North America. 20744  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 Q   And you have drawn our attention to two pamphlets that  2 apparently argued different positions in the debate?  3 A   I have referred to several pamphlets by number in my  4 footnotes.  5 Q   How many?  6 A   I read all the pamphlets that I could find relevant to  7 the issue in the National Archives of Canada.  8 Q   Tell me how many you reviewed?  9 A  Well, over 20.  There were some unavailable.  10 Q   And how many pamphlets were you aware of in total?  11 A   Oh, probably about double that number.  12 Q   So you -- am I correct in saying that you reviewed 20  13 in the archives of Canada but you knew of 20 more?  14 A  Archives in Canada, also the Ben Franklin pamphlet was  15 published, of course, but perhaps half as many again  16 were unavailable.  17 Q   All right.  Now, one of those pamphlets that you  18 reviewed was the Benjamin Franklin pamphlet?  19 A   Yes, the so-called Canada pamphlet.  20 Q   And that pamphlet was published in the colonies?  21 A   No, published in England, London, in 1760.  22 Q   Was it also published in the colonies?  23 A   Probably later.  24 Q   Sometime in the late 1760s?  25 A   Late 1760s, I am not sure.  26 Q   Do I take it then that Benjamin Franklin, from your  27 review of those pamphlets, was one of those who  28 supported the view of western expansion as a positive  29 value?  30 A   He was the only one.  That's up to the Proclamation  31 date.  There is a pamphlet that I mentioned in one of  32 my footnotes that comes out right after the  33 Proclamation and rehearses Franklin's arguments but up  34 to the Proclamation that's the only one I know of.  35 Q   Who was the author of that pamphlet?  36 A   The other one is anonymous.  The Charlotina pamphlet  37 in one of my footnotes.  38 Q   Sorry, you described it as the Charlotina?  39 A   Yes.  40 Q   That's the name of the pamphlet, is it, or the author?  41 A  Well, I would have to look at my brief.  I could do it  42 if you wish.  43 MR. GOLDIE:  I think he ought to do it, if the answer is to be  44 complete.  4 5    MR. RUSH:  46 Q   You can refer to the footnote then, Doctor.  47 A   Yes. 20745  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  A  2  Q  3  A  4  5  6  7  8  9  10  11  12  13  Q  14  15  A  16  Q  17  18  19  A  20  Q  21  22  A  23  24  Q  25  A  26  27  Q  28  29  30  31  32  33  34  A  35  36  Q  37  38  A  39  Q  40  41  THE COURT  42  MR. RUSH:  43  Q  44  45  46  47  A  It's footnote -- my footnote 12, a pamphlet --  If you will just allow me to find that, please.  It's a pamphlet which, from internal evidence, and I  don't have it laid out there, dated October or  November, 1763, printed in the Illinois Historical  Collections, 1764 to '66, page 134 to 61.  It's called  The Expediency of Securing our American Colonies by  Settling the Country Adjoining the River Mississippi,  published in Edinborough, October or November,'63, and  it recommended an interior colony called Charlotina  and that really rehearses Franklin's arguments, just  takes up Franklin.  But it's post-proclamation.  The name of the pamphlet is Charlotina or is that in  relation to --  No, that's the colony that was proposed.  To be called Charlotina.  Franklin represented a body  of opinion in American, in the American colonies, did  he not?  Well, certainly, yes.  And he represented some opinion, body of opinion, in  Britain as well?  Probably.  But on western expansion he seemed to be  isolated.  Well —  He, himself, admits that the opposition is strongly  held on page 78 of my tab there.  Well, Dr. Greenwood, I am going to ask you to identify  just two documents for me.  I am going to ask you if  you would pass these up to his lordship.  And I would  like this to be inserted and, Dr. Greenwood, you can  identify this as containing extracts from documents  relative to the Colonial History of the State of New  York by Brodhead, 1856?  Yes.  The overall editor was E. B. O'Callaghan, I  think.  And volume seven is those documents or containing  those documents with regards to the State of New York?  Yes.  All right.  Thank you.  Now I want to show you another document.  :  Are you tendering that as tab 18?  Yes, my lord, please.  Now, I am showing you a document which is extracted  and unfortunately does not contain the cover page, can  you identify this document?  It's entitled Bellin's  Description of the Country Before 1755.  Well, I assume it's taken from his book which he 20746  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  3  4  Q  5  6  7  A  8  Q  9  10  11  A  12  13  Q  14  15  A  16  Q  17  18  19  i  20  A  21  Q  22  23  A  24  ]  25  26  Q  27  A  28  Q  29  30  31  32  A  33  Q  34  35  A   '  36  Q  37  38  39  MR.  GOLDIE  40  MR.  RUSH:  41  42  MR.  GOLDIE  43  MR.  RUSH:  44  MR.  GOLDIE  45  MR.  RUSH:  46  MR.  GOLDIE  47  MR.  RUSH:  published about that time, explaining his map, and I  looked at the book in special collections.  Is this  taken from the Ontario Government's compilations?  This is taken from the, I would like to suggest to  you, from the extract of the Ontario Government's  boundary dispute.  All right.  And that runs to how many hundreds of pages?  You  indicated at one time it was something in the order of  400 or 500 pages?  I don't know if I stated that.  I stated that the case  itself ran to something like 400 pages or more.  This is one of those documents included in the Ontario  boundary dispute transcript of proceedings?  Yes, and taken from Bellin's book, I believe.  The you will see it contains an extract on remarks  upon that part of the maps of North America, showing  the country comprising between the 28th and 72nd  degree of latitude by M. Bellin, 1755?  Yes.  That's the map I showed you earlier, it it not, map  folio 14?  It refers to the maps in the plural.  That part of the  maps.  But the extract is taken from his book which  tries to explain his map, yes.  That's the 1755 Bellin map?  Yes.  And that was on page 255 of the extract.  On page 331,  there is recorded here testimony of a William, I think  it's McDonald, Dawson's evidence as to the Hudson's  Bay Company claims in 1857?  Yes.  And that runs through to 335.  And then following that  there is the statement of J. Harvey --  Where is that?  Well, it begins, it's the letter to the Earl of -- to  the Adjutant-General's office of Quebec, 17th of  April, 1818, 336.  :  That is part of Dawson's evidence, is it?  I don't believe so.  I think it is the next document  as part of the compilation.  :  Well —  No, it is part of Dawson's evidence, that's right.  :  He tendered it.  He runs through to 337, yes, and he did tender that.  :  In support of the opinions that he has stated?  That's right.   All right.  I would like that to be 20747  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  marked as the next Exhibit.  (EXHIBIT 1168-18: DOCUMENTS RELATIVE TO THE COLONIAL  HISTORY OF THE STATE OF NEW YORK)  Now, Dr. Greenwood I would like you to refer to a  document in your document book, Exhibit 1163, tab  192A, and that's volume three.  Right at the end of  volume three.  It's the Palairet map.  Sorry?  192?  192A, in Exhibit 1163, volume three.  :  And the tab number?  192A.  :  In volume three?  Yes.  Do you have the Palairet map there?  Yes.  It's 192A.  There we have it.  Now, in reviewing this  map, I would like you to look in the northwest or the  upper left hand quadrant of the Palairet map, 1763?  Yes.  And I would like you to direct your attention to the  Mississippi, do you see that?  Yes.  And to the upper reaches of the Mississippi?  Yes.  And you will see that to the east of the, let's say,  the northerly most point of the -- what is described  as the Mississippi Feature, is a designation, Sioux  Orienteau"; do you see that?  Yes, we are talking about the -- we are talking about  the Mississippi, we are talking about the branch that  has "R. Mississippi" on it.  Yes, you see "R. Mississippi" at the northerly most  point of that feature?  Yes, I see Sioux Orienteau.  That means Eastern Sioux, doesn't it?  Yes.  Running through the feature of the Mississippi are the  words Sioux ou Nadusciens?  Nadusciens, yes.  And, who were the Nadusciens, do you know?  Well, they are the Sioux, later the Dakota, but they  are straddling the headwaters of the Mississippi.  :  Did you say later the Dakota?  1  2  3  4  5  6  MR.  RUSH:  7  Q  8  9  10  11  A  12  A  13  Q  14  THE  COURT  15  MR.  RUSH:  16  THE  COURT  17  MR.  RUSH:  18  Q  19  A  20  Q  21  22  23  A  24  Q  25  26  A  27  Q  28  A  29  Q  30  31  32  33  A  34  35  36  Q  37  38  A  39  Q  40  A  41  Q  42  43  A  44  Q  45  A  46  47  THE  COURT 20748  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  Yes, they were pushed west.  1  A  2    ]  MR. RUSH  3  Q  4  A  5  Q  6  A  7  Q  8  9  10  11  A  12  Q  13  14  15  16  17  18  A  19  Q  20  21  A  22  Q  23  A  24  Q  25  26  27  A  28  Q  29  30  31  A  32  33  Q  34  35  36  37  A  38  39  40  41  42  43  44  45  46  Q  47  Did you say Dakota or Lakota?  Dakota, yes.  Because there is a Lakota Sioux, isn't there?  I don't know.  Now, to the south and west of the feature depicted as  the Mississippi, there is also indicated Sioux  Occidenteau, and that means Western Sioux, does it  not?  Yes.  Now, looking at this map, Dr. Greenwood, above the  feature marked R. Mississippi, just below the 50th  degree north latitude, there is inscribed there, and I  think you made mention of this in your testimony,  first a solid line and then a dashed line and this  says, "boundary between Canada and the land of the" --  Lands, I think.  "...the Lands of the Hudson's Bay Company, determined  by the commissaries after the Treaty of Utrecht"?  Yes, it's in French but that's your translation.  That's my attempt at the translation but --  That's what it says.  That's what it says.  Thank you.  Now, that boundary  line as it is shown on this Palairet map, was never  settled by the Treat of Utrecht, was it?  No, or thereafter by the negotiators.  No.  The line depicted here, so far as you are aware  from the documentary record, depicts the claim made by  the Hudson's Bay Company, is that not correct?  Yes, beginning at the time of Utrecht, approximately,  and going down do 1763, it's a claim of the company.  Now, is it not the case that there are two versions of  this claim depicted on maps, one which is a solid line  running along the 49th Parallel and one that follows a  height of land?  Well, yes, if we are talking about west of Lake  Abitibi, because it's really common coming down from  there, there is no doubt that, it was following the  heights of land.  But as we get west of, I think  that's what you were referring to, were you not, west  of Lake Abitibi, there are two versions, one of them  is along the 49th Parallel, Bowen, for example, and  the other is following the heights of land as  understood then, the Mitchell map, for example.  All right.  Now, as you have indicated the Bowen 1763  map has a similar line indicating the boundary, but 20749  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  A  3  Q  4  THE  COURT  5  6  MR.  RUSH:  7  8  Q  9  10  11  12  13  14  Q  15  A  16  Q  17  A  18  MR.  GOLDI  19  A  20  MR.  RUSH:  21  22  Q  23  24  A  25  26  Q  27  A  28  29  30  THE  COURT  31  A  32  33  34  MR.  RUSH:  35  Q  36  37  38  39  A  40  Q  41  42  A  43  44  Q  45  46  A  47  that runs along the 49th Parallel?  Yes.  All right.  :  Below there, about the 48th Parallel,  another dotted line.  Yes, I am going to draw the witness's  that as well.  Now, as you go down from what appears t  on the 48th and still in the upper left  of the map, you will see another dotted  that not say "Northern Boundary of New  following the charter of November 3rd,  from one sea to the other"?  Extended to?  Extending.  Extending --  From one sea to the other.  E:  I think it's 1620.  I can't read that.  I can't either.  It appears to my eye  it may be 1620.  What's the charter that's there being r  Greenwood?  I believe it's the Charter of 1620.  Th  48th, approximately, eh?  Well, it appears to be on the 48th.  The Albany Congress of 1754 stated that  had entitlement right out to the Pacifi  north latitude.  So it might be reflect  :  What year was that?  1754, my lord, right out to the coast  charters, Virginia, this one, but not n  48th north latitude.  there is  attention to  o be the 49th,  hand quadrant  line and does  England  1690, extending  to be 1690 but  eferred to, Dr.  is is on the  the colonies  c, up to 48  ive.  Various  orth of the  Well, I would  one of those  degree, you s  following the  Certainly it'  To the someth  charter of No  It goes up to  be.  Following the  from one sea  Yes.  But thi  Virginia.  like just like to refer you to another  lines, which appears down at the 40th  ee the northern boundary of Virginia,  charter of 23 May, 1609.  s 1609.  ing of the new England following the  vember 3rd, 1620.  So, yes, must be 1620?  New England's claim, wherever that might  charter of the 3rd of November, 1620,  to the other?  s particular claim comes from 1609, 20750  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  Q  2  3  A  4  Q  5  6  7  A  8  9  10  Q  11  A  12  THE  COURT  13  MR.  RUSH:  14  THE  COURT  15  MR.  RUSH:  16  17  THE  COURT  18  MR.  RUSH:  19  A  20  MR.  RUSH:  21  22  23  24  A  25  THE  COURT  26  MR.  RUSH:  27  28  29  30  31  32  33  THE  COURT  34  35  36  A  37  38  39  40  41  42  43  44  45  46  47  THE  COURT  And you will agree with me that that designation is  indicated on the western side of the Mississippi?  Oh, yes.  You will see down at about the 37th degree that there  is also a dotted line which indicates a boundary  between Virginia and Carolina?  Yes, in other words, if you carried their claims right  out to the Pacific Ocean, that would be the boundary  out there between them.  They are extending the claims --  The map maker is saying that.  :  What's that notation that's at the 40th Parallel?  Just below the 40th parallel?  :  Yes.  Northern boundary of Virginia, following the charter  of, I would suggest it is 23rd of May, 1609, to the --  :  I am sorry, the date was the 3rd of November?  No, the 23rd of May, 1609, to the —  Probably means the boundary.  "To the boundary of the New England...", "to the  boundary of New England, following the Charter of 3  November, 1620, from one sea to the other"; is that  right?  Yes.  :  The date again?  1620?  It appears to be November -- 3 November, 1620.  Now, my lord, there was some discussion between my  friends and I about the date that appears at the 48th  Parallel line depicted on this map.  I thought it was  1690 but I think I would agree that it is 1620.  All  right.  Thank you, Dr. Greenwood.  You can set that  aside.  :  Is there any discussion in any of the pages leading  up to the Royal Proclamation that recognized these  colonial charters or did they just ignore them?  I wouldn't say they were ignored.  As I say, the  Congress of Albany claimed out to the Pacific Ocean  but defined the claim from, I think it was between 34  north latitude to 48.  Immediately after the  proclamation, the annual register for 1763 says that  Britain now owns territory right out to the Pacific  Ocean.  They weren't ignored but in my reading of the  negotiations in 1761-'62, between the French and the  English, the claims to the far west aren't mentioned  at all, nor do I find anything about the claims of the  British to the Pacific coast in the proclamation.  :  But the colonial charters seemed to claim territory 20751  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  A  3  MR. RUSH:  4  5  6  7  A  8  Q  9  10  11  12  A  13  Q  14  A  15  Q  16  17  A  18  19  Q  20  21  A  22  Q  23  24  25  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  33  A  34  THE COURT  35  MR. RUSH:  36  Q  37  38  39  A  40  Q  41  42  43  44  A  45  46  47  that is overlapped by the Royal Proclamation?  That's true, my lord.  Dr. Greenwood, I want to show you the coloured  photocopy of the Bowen map.  And I think we can do  this without having to put it up on the easel, but I  am showing you the photograph of the Bowen 1763 map.  Yes.  And, we may be able to do most of this without the  other copy.  Perhaps not.  I simply wanted to ask you  about the colours on this.  East Florida is coloured  in --  Yellow.  Sorry?  Yellow.  Yes.  Yes.  And West Florida is coloured in, to my  eye, a pale green?  I think that's faded but I have other photographs.  It's definitely green.  And there the boundary of west Florida runs to the  Mississippi River?  Yes.  That is the west boundary.  Now, the British colonies  comprising of the lands which are apparently east of  the Appalachians, including Nova Scotia, is coloured  blue, is it not?  Well, I call it green.  All right.  And the Province of Quebec is a --  Pink.  Is a pink?  Yes.  And Newfoundland and a part of Labrador is, to my eye,  a pale brown?  I would call it yellow.  :  It's not shown here.  All right.  We will get it right here.  Showing you the second of the two Bowen maps.  So  Newfoundland, does that appear to you to be coloured  in a faint brown?  I would call it yellow.  All right.  Now if you will just keep those in front  of you.  Now, there is no colouration depicted on the  photographic copy in the area of the lands reserved  for Indians, is there?  Generally, that's true.  But there is an exception on  this map, an indentation west in Virginia, and  Maryland, so that according to the proclamation the  line would run like that, right?  This map shows an 20752  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 indentation.  That's an exception.  That would be part  2 of Indian territory according to the proclamation.  3 That's why this map was done earlier.  4 Q   That's why you say it was done earlier?  5 A   One of the reasons I say it was done earlier.  That's  6 the only exception.  7 Q   All right.  But apart from that exception, which you  8 have explained, the lands reserved for Indians, you  9 call it the reserve, there is no colouration on the  10 map depicting that?  11 A   Correct.  12 Q   And there is also no colouration between Labrador and  13 the Indian reserve?  14 A  Well, part of the new Province of Quebec is coloured  15 pink so one would say that that was between that and,  16 say, that.  You asked me whether there was any  17 colouration between Labrador.  18 Q   Apart from the Province of Quebec, in terms of  19 Labrador, if Labrador extends north of what the point  20 demonstrated on the map, the map doesn't depict north  21 of the Province of Quebec?  22 A  Any colouration, yes.  23 Q   And, is it not the case, Dr. Greenwood, as I  24 understand your evidence, that the documentary record  25 does not show when the map was coloured, in the  26 colours that I have referred you to?  27 A  Well, I would testify that the pink boundary lines  28 were certainly on the map sent to the King.  I have  29 entered a qualification that is conceivable, that some  30 of the colouration, other than the lines, was done  31 after June 8th.  32 Q   Yes.  But you cannot testify as to when those colours  33 were placed on that map?  34 A   I can testify that the delineation of the boundaries  35 by the pink boundary lines were on that map.  36 Q   But apart from the delineation of the pink boundary  37 lines, you can't say when the other colours --  38 A   I would say it's highly probable, but not definitely,  39 that they weren't done on the 9th of June or the 10th.  40 Q   Why do you why it was highly probable that they were  41 done on the 9th of June?  42 A   Because this map, it appears from all the archival  43 certificates, was physically contiguous, it was sent  44 to the King, it was an annexed map.  It seems to me  45 likely they would send a finished product.  The word  46 delineated might mean depicted in the 18th Century, so  47 it's theoretically possible that the colouring, other 20753  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  3  4  Q  5  6  7  8  A  9  10  11  Q  12  13  A  14  15  Q  16  17  18  19  20  A  21  22  23  24  25  26  Q  27  A  28  Q  29  30  31  A  32  Q  33  34  35  36  THE  COURT  37  MR.  RUSH:  38  THE  COURT  39  MR.  RUSH:  40  THE  COURT  41  MR.  RUSH:  42  Q  43  44  A  45  Q  46  47  than the boundary lines, was made later.  In my  judgment it's probable that this is the map as such,  that went to the King.  I understood you to say in your evidence that the  delineated boundary referred to were the pink lines  that were on the map, and that's what you had  testified?  That's what I am certain went to the King.  But I  think it's probable that the colouration also went to  the King.  Well, is that not simply a projection on your part, a  speculation on your part?  Well, after spending 200 hours or so on the map, I  think it's a little more than that.  Well, there is nothing that you can refer us to,  except the language, the delineated boundary that  suggests that the coloured portions -- and I am not  here referring to the pink lines -- was on the map at  the time that it was sent to the King?  Other than the fact that the map, according to the  Public Record Office, was physically contiguous to the  original Board of Trade report, which I have seen,  therefore suggesting, at least as a presumption, that  what we have before us from the P. R. 0. was what went  to the King.  Now, you cannot say who it was that coloured the map?  No.  And it's true, is it not, Dr. Greenwood, that you can  not say who it was that placed the pink lines on the  map?  That's true.  All right.  Thank you.  Now, may Dr. Farley's map folio be placed before  Dr. Greenwood, please, and in particular, map number  20.  Excuse me, it's map number 12.  :  One or two?  This is the print, my lord, of the Bowen map.  :  It's in two parts.  It's part two.  :  Part two.  All right.  And, Dr. Greenwood, I think we have the right portion  here.  Maybe not.  It's a copy of mine.  There are two parts to this, I will show you the other  part as well.  All right.  I would just like you to  examine for me these two maps.  I think it was your 20754  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1  2  3  4  A  5  6  7  Q  8  A  9  10  Q  11  A  12  Q  13  14  A  15    ]  MR. RUSH  16  A  17  18  Q  19  A  20  Q  21  22  A  23  24  Q  25  26  A  27  28  29  30  31  32  Q  33  34  35  A  36  37  38  39  40  Q  41  42  A  43  Q  44  A  45  46  Q  47  A  testimony that these maps are the -- are copies of the  maps that have been filed as the photograph of the  coloured Bowen map?  I see up here the archival certificate is there, I  presume it's a copy taken by my clients from the map  that I produced for them.  Is that the only way that you can tell?  Well, I can't see the colours now, can I?  Other than  that, if you want me to start dating it --  No, I am just wondering if there is --  Have a wonderful time doing that.  It's your understanding that this is a photocopy of  the document that --  Let me look at it, please.  May I see the original photograph, please?  It would seem to me to be a copy of the Bowen coloured  map, obviously not showing the colours.  And you know how that was reproduced?  Well, it was engraved and I can date it.  Wasn't there a Bowen map that is -- if I may put it  this way -- a base map?  Well, 1755, and there were later editions, one later  than this one in 1763 and one in 1772, yes.  Was there a 1755 Bowen map that is this map that is  this map?  It is the map, but the cartouche, the title has  changed.  And there are descriptions of the articles  of the Treaty of Paris, which clearly would not appear  on the earlier one, and they do not have a description  of the boundaries from the proclamation from this one,  showing that it's pre-proclamation.  There is a Bowen map, however, which is post-  proclamation, which indicates the boundaries as  indicated --  Definitely, yes.  A late '63 one, which has the  boundary laid down by the proclamation, has the  engraved lines for Quebec and east and west Florida  printed on it.  This one doesn't, showing it's pre-  proclamation .  It's your understanding that there is a base map from  which presumably, the --  This engraving was made.  Was taken from that?  Very little change.  I haven't inspected everything  but very little change.  But you have inspected that map?  I have inspected that map. 20755  F. M. Greenwood (For Province)  Cross-exam by Mr. Rush  1 Q   And — all right.  2 Dr. Greenwood I want to ask you about another  3 subject now and --  4 THE COURT:  Should we take the morning adjournment?  5 MR. RUSH:  Yes, all right.  6 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  7  8  9  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein to the best of my  14 skill and ability.  15  16  17  18  19  20 Wilf Roy  21 Official Reporter  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 20756  Proceedings  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Well, I find that I am no longer committed to the  4 Court of Appeal on the week of the 23rd if that eases  5 your scheduling problems.  6 MR. GOLDIE:  Yes, it does, my lord.  At least it eases my  7 colleagues' problems with respect to tomorrow.  8 THE COURT:  Yes.  9 MR. RUSH:  Not just my problems.  10 MR. GOLDIE:  No.  I put the apostrophe after the S.  11 THE COURT:  We all have problems.  That means we'll not sit  12 tomorrow, and we'll be sitting all next week and all  13 of the week of the 23rd, or as will be required.  14 MR. GOLDIE:  Thank you.  15 THE COURT:  You think, Mr. Goldie, that will finish your case?  16 MR. GOLDIE:  Yes.  17 THE COURT:  Just to make sure what we are going to do after  18 that -- where is the calendar?  We -- then we're off  19 the week of the 30th, we're back on the week of the  20 6th, is it?  21 MR. GOLDIE:  Yes, but starting on the 8th.  22 THE COURT:  Starting the 8th, yes.  23 MR. GOLDIE:  Then there's a week off after that and then three  24 weeks following that.  25 THE COURT:  Yes.  All right.  Thank you.  Well, may I ask if  26 it's thought useful and advisable to sit those two  27 days of that week?  28 MR. GOLDIE:  Well, that's not for me to say, my lord.  29 MS. RUSSELL:  My lord, if there are housekeeping matters to be  30 dealt with then by all means, but we'll not be  31 commencing until the 8th, if that's agreeable.  32 THE COURT:  I'm talking about the 8th and 9th.  We're gonna  33 start the 8th and 9th, is it?  34 MS. RUSSELL:  Yes.  We would like to open our case on those  35 days, my lord, if that's convenient.  36 THE COURT:  Yes.  All right.  Mr. Rush.  37 MR. RUSH:  38 Q   In your testimony you reviewed a number of early  39 statutes, and I think you started with the Act of  40 Supremacy of 1858?  41 A   I believe it's 1559.  New calendar.  42 Q   And you ended, I think, with the Import Duties Act of  43 1764?  44 A   I think that's correct.  45 Q   And in that period how many of the statutes of the  46 Imperial government did you review in total?  47 A  Well, I probably looked for all the ones dealing with 20757  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  1 colonies, but one can miss them quite easily.  2 Q   Well, how many did you review?  3 A   Probably in the order of maybe a hundred, 150.  4 Q   I take it that you only reviewed those Imperial  5 statutes dealing with colonies and not all of the  6 Imperial statutes in that two century period?  7 A   Correct.  8 Q   Did you review any Colonial statutes?  9 A   I reviewed a number of Colonial statutes dealing with  10 Indian policy, and particularly with prohibiting  11 private purchases of land from the Indians, 17th and  12 18th centuries.  And I think I've cited one, 1758  13 Georgia drafted by Ellis, I think.  14 Q   And how many of those did you review altogether?  15 A   Somewhere in the order of 30 to 40.  16 Q   By no means all of those that were made in that  17 period?  18 A  All the ones that were available from the sources at  19 UBC that I could find.  20 Q   Right.  You also referred to a document that I think  21 you entitled "A Short Extract of Proceedings at a  22 Congress Held at Detroit"?  23 A   Yes.  1764?  24 Q   Yes, I believe so.  25 A   Yes.  M'hm.  26 Q   September the 4th, 1764.  And this was referred to a  27 congress between Colonel Bradstreet and Deputies of  28 the Indian Nations?  2 9 A   Yeah.  I think it was the Chipewyans and Ottawa in  30 particular.  31 Q   Yes.  Now, there were several other similar meetings  32 with Indian allies of the French recorded in the  33 documents, were there not?  34 A   Yes.  35 Q   And that is an example of but one?  36 A   Yes.  37 Q   And can you indicate some of the other Indian tribes  38 who were allied with the French who met in congress  39 similar to that with Colonel Bradstreet?  40 A  Well, there's the -- there was the purchase of a plot  41 of land in Niagara 1764.  I can't remember all the  42 Indians who would have been there, but among the  43 French Indians who you would expect to be there would  44 be Chipewyans, the Ottawa and the Huron.  45 Q   Is that the only one you can remember?  46 A  Well, offhand, yes.  47 Q   All right.  You also gave us a listing of cabinet 2075?  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  1 ministers who were in the cabinet at the time of the  2 Treaty of Paris and who were in the cabinet at the  3 time of the Royal Proclamation.  Do you recall that?  4 A   Yes.  And some of the people listed were not in the  5 cabinet.  The president of the Board of Trade was only  6 quasi cabinet.  7 Q   I think you indicated that.  But what you didn't  8 indicate was how many seats there were in the cabinet  9 at both times?  10 A  Well, that would be King George's prerogative.  11 Q   Well, you tell me how many?  12 A   Nine or ten was the average number at that time.  13 Q   And during the Treaty of Paris there were nine or ten  14 cabinet seats in total, is that your evidence?  15 A   Yes, that's —  16 Q   Yes.  17 A   -- The standard figure for the time, yes.  18 Q   And I appreciate it's the standard figure --  19 A   Yeah.  20 Q   -- But is it your evidence that you know that those  21 were the number of seats or is this what you're saying  22 is the average of what the seats were during that  23 period?  24 A   Okay.  I'm saying that that's a standard number.  I'm  25 saying I've looked at the cabinet minutes from 1763 to  26 1765 produced by Tomlinson.  I recollect that at the  27 cabinet meetings it varied between three at the  2 8 minimum and nine at the maximum, and I would say an  29 average attendance would be a six.  But with the  30 Treaty of Paris, for example, a number of cabinet  31 ministers met and the cabinet, in fact, ratified.  But  32 the Archbishop of Canterbury for reasons unknown to  33 scholars turned up as well.  34 Q   As a cabinet minister?  35 A   I don't think so.  He wasn't entrusted with his  36 Majesty's most, you know, most secretive affairs.  37 Q   Right.  Now, at the time of the Royal Proclamation  38 what was the numerical size of the cabinet?  Is it the  39 same number?  4 0 A   Same answer.  41 Q   Nine to ten?  42 A   Yes.  43 Q   All right.  Now, could the witness be shown volume  44 five which is 1166.  This is Exhibit 257a.  Excuse me,  45 Exhibit 1166-257a.  This is Shelburne's minutes  46 submitted to the cabinet.  47 A  Which tab, Mr. Rush? 20759  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  1 Q   257a.  2 A   Yeah.  3 Q   And you quoted from a passage which is, I believe,  4 about eight pages from the back which is page 123.  5 A  M'hm.  6 Q   Yes.  Eight pages from the back of the tab.  And you  7 read most of the page to us.  Are you with me?  8 A   I think so.  I don't have pagination on my copy.  9 Q   All right.  Neither do I.  10 A   Is that right?  11 Q   Yes.  Yes, you're there.  Now, I take it you took into  12 account the whole of this document, did you?  13 A   Yes, I believe so.  14 Q   You read the whole of the document?  15 A   Yeah.  16 Q   Did you read what follows in the next page 124, and I  17 begin at the top of the page.  18 A   If anything.  19 Q  20 "If anything can tend to keep up the Dependency  21 and prevent a Separation of the Colonies from  22 the Mother Country, it must be a Facility for  23 the rising Generation to extend themselves  24 still further into the unsettled Continent  25 whereby they must long stand in need of the  26 friendly support of Great Britain, as long as  27 the Erection of new Governments to the Westward  28 and Southward affords an easy Settlements to  29 the needy and adventurous of the other  30 Provinces, the Migration from the Northern  31 Colonies will continue, and while it continues  32 the Price of Labour will remain high and  33 consequently leave Us nothing to dread in point  34 of American Manufacturers or Independency; on  35 the contrary the Increase of Population will  36 insure a Market for British Manufactures when  37 every European market shall have failed us.  38 But were it either intended or possible to  39 accomplish the setting Bounds to the Extension  40 of the Colonies, the Undoubted Consequence must  41 be an Increase of Inhabitants in the settled  42 Provinces, the Lands must come to be thoroughly  43 cultivated, and Manufactures at length must  44 take place, until in the end the Colonies  45 finding themselves able to subsist by their  46 interior Resources may be induced to shake off  47 all Dependency and swerve from their 20760  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  1  2  3  4  5  6  7  A  8  Q  9  10  11  12  A  13  Q  14  A  15  Q  16  A  17  Q  18  19  20  21  A  22  Q  23  24  A  25  26  27  28  Q  29  A  30  MR.  RUSH:  31  32  33  34  35  36  37  38  39  THE  COURT  40  MR.  RUSH:  41  THE  COURT  42  43  MR.  RUSH:  44  Q  45  46  47  A  allegiance.  And certainly the present Extent  of the American Provinces (larger than all  Europe) is considerable enough if thoroughly  peopled to form many very powerful nations."  You took that into account, did you?  Yes.  Now, I believe, Dr. Greenwood, in this volume --  perhaps not.  I think it's volume six.  Do you have  volume six there?  This is the last tab, my lord,  volume six.  I'm not sure that I do.  This is 1167.  It's a small --  It's not the last, it's tab 339.  Yes, I have it.  All right.  Now, I simply want you to confirm for me,  Dr. Greenwood, that this document which is found at  this tab I think you indicated was part of the 1889  arbitration?  I think it's 1884.  The final statute was 1889.  Yes.  And this is -- how would you describe this  document?  This would be the printed record of the argument  before the Privy Council on the Ontario Manitoba  federal boundary dispute in 1884.  Argument and  interjections by the judges of the judicial committee.  And you indicated that this ran to some 400 odd pages?  Something like that, yes.  All right.  My lord, I have not had an opportunity of  reviewing, as I look forward to with a great deal of  eagerness, all of those 400 pages, but I would -- I  would simply like to reserve the right when I have  done that if I feel that there's anything that I can  add or would want to add to that tab that I do so.  It  wasn't part of the material that I had made available  to me and so I'll have to go to the original record  then.  :  Well, we've followed that practice in other cases.  Thank you.  :  So I see no reason why you shouldn't add to the  collection.  All right.  Thank you.  Now, Dr. Greenwood, you told us you were directly  retained by counsel for the Province in April of 1985  to work on behalf of --  Yes. 20761  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  1 Q   Of the Province.  And I think you agreed with me when  2 I asked you this during the time of your examination  3 on your qualifications that you were asked to prepare  4 an opinion on the applicability of the Royal  5 Proclamation to British Columbia?  6 A   Yes.  7 Q   And I think that you also indicated at the same time  8 you were on a consultancy retainer to the federal  9 government, federal defendant in this case?  10 A   Eventually the two crowns shared my fees, and I can't  11 remember exactly the date of that arrangement.  There  12 was a hiatus when I was not representing the Federal  13 Crown.  14 Q   Can you tell me what the date was approximately at  15 which the Crowns in this case shared your fees?  16 A   I think it would be towards the end of 1985.  17 Q   All right.  18 A   Towards the end of the year.  19 Q   And at that time you were doing consultancy work for  20 both the provincial defendant and the federal  21 defendant in the case?  22 A   Thereafter, certainly.  23 Q   To the time at which you -- to the present?  24 A   Yes.  25 Q   And you billed for this work?  26 A   Yes.  27 Q   All right.  In the course of your consultancy work,  28 and in the preparation of your opinion, certain  29 comments were made by counsel for the provincial  30 defendant in respect of your report, is that not the  31 case?  32 A  Well, there were ongoing discussions about my report,  33 yes.  34 Q   And on one of those --  35 A   Correspondence is one.  36 Q   Yes.  On one of those occasions you provided comments  37 in response to those notes made of your report?  38 A   Yes.  39 Q   And that occurred on March the 10th of 1986, is that  40 not so?  41 A   I'd have to see the documents.  42 Q   Yes.  All right.  Well, I'm going to show you two  43 pages of a document I believe is such a document.  44 A   Yes, I recollect.  45 Q   Now, I'm showing you two pages of a document entitled  46 "Greenwood's Comments on Mr. Robertson's notes of 21  47 January, 1986 on Greenwood's Opinion of 15 December, 20762  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  1 '85".  2 A   This is probably done by my clients.  I mean the  3 heading would indicate that.  So far as I can see it  4 accurately reflects what I said.  5 Q   All right.  I simply want to draw your attention to  6 two -- three parts of this.  Firstly something you've  7 testified to at the beginning, Dr. Greenwood, and that  8 is you point out in part one, paragraph one:  9  10 "I have no objection, although Brigham's" --  11  12 And that's Brigham's version of the Royal  13 Proclamation?  14 A   Yes, it is.  15 Q  16 "Would be recognized by professional historians  17 as the better text."  18  19 That is your opinion, is it not?  20 A   Yes, it is.  21 MR. RUSH:  Now, my lord, may this be the next tab, please, 1168  22 tab 20?  23 MR. GOLDIE:  Well, my lord, I think if this is to go in if it's  24 to be intelligible at all Mr. Greenwood's opinion of  25 the 15th of December, 1985 should go in.  26 MR. RUSH:  I don't think it needs to be placed before your  27 lordship at all.  28 MR. GOLDIE:  I object to it being an exhibit in that case.  29 THE COURT:  Well, following my usual practice I would think that  30 at least that paragraph would have to be -- would have  31 to go in.  I don't think one item of this kind in  32 cross-examination would make the whole report  33 admissible, but certainly the paragraph would  34 otherwise it's unintelligible.  35 MR. GOLDIE:  The reason I said the opinion was.  Of course, if  36 this goes in then there are observations on virtually  37 every paragraph.  38 MR. RUSH:  Well, my lord, I disagree with my friend's assumption  39 or assertion that by referencing a document containing  40 notes that that opens the gate for the totality of an  41 opinion to float in.  It doesn't follow.  What I refer  42 the witness to is a particular passage.  And if my  43 friend wants to file part one of paragraph one I don't  44 have any trouble with that, if he wants to put that  45 in.  But I think it doesn't even go that far.  I'm  46 entitled to put notes made by this witness to the  47 witness, and he can accept it or deny it or whatever 20763  F.M. Greenwood (for Province)  Cross-exam 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  he wants with it, but I think it goes no farther than  that.  THE COURT:  You can certainly put it to the witness and there's  no difficulty with that.  The difficulty only arises  when you seek to put in the document.  MR. RUSH:  Well, I — I don't think it goes any farther than  permitting my friend if he chooses to put in the  particular part of the paragraph.  But, I mean, my  argument is that by referencing this document and cite  and placing the witness' reference point to the  Brigham's version that there's absolutely no  justification for placing the reference document  before the witness.  MR. GOLDIE:  Well, my lord, I quite agree with everything my  friend has said.  If he confines his question and  answer to the question he put and the answer he got,  but he's tendering a two page document.  Now, in my  submission, he doesn't have to tender any document.  He's got the witness' agreement with him that  Brigham's is the -- is the proposed.  But to tender  the document and leave it at that is, in my opinion,  quite improper unless he's going to go a step further.  MR. GOLDIE:  Well —  MR. RUSH:  Well, my lord, I'm happy to try to reformulate my  question.  I'm not wedded to this document.  I'm happy  to try and reformulate a question which will --  Q   Dr. Greenwood, I want to refer you to an entry in the  second of the two pages that I've indicated here, and  this is a statement at the bottom of the page where it  says :  "Whether I am the proper person to undertake it  it is doubtful."  THE COURT:  MR. RUSH:  THE COURT:  MR. RUSH:  Q  I'm sorry.  It's at the bottom of the second page.  Yes.  A  "Do we have an ethno-historian or historical  anthropologist on board or on call?  Such a  person could identify and locate tribes better  than I."  Now, firstly, Dr. Greenwood, you are not an  ethno-historian?  No, I'm not. 20764  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  1  Q  2  3  4  5  A  6  Q  7  A  8  MR. RUSH:  9  10  Q  11  12  13  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  21  22  A  23  Q  24  25  26  A  27  Q  28  29  30  A  31  Q  32  33  34  THE COURT  35  MR. RUSH:  36  Q  37  38  39  A  40  Q  41  A  42  Q  43  44  A  45  Q  46  A  47  Q  And do you agree that there would be better qualified  historians with a specialty in ethno-history who could  identify and locate the tribes, Indian tribes of any  character better than you?  Yes.  Or historical anthropologists, as well.  Yes.  Yes, I agree with that.  All right.  My lord, I don't need the document and  I'm happy not to make reference to it.  Thank you.  Now, you told us during the cross-examination of  your -- on your qualifications, Dr. Greenwood, that  you attended in court during the direct examination of  Mr. Morrison?  That's correct.  And you said that was in late April of '89?  I believe it was in April, '89, yes.  And you heard his testimony I think you said?  Yes.  And you indicated that you did not amend your report  to deal with documents or facts that arose in Mr.  Morrison's evidence?  Correct.  Now, I want to ask you if you -- you submitted a  revised report, I think you agreed, in May of '89; is  that right?  Yes.  And I think you also submitted a statement of account  dealing with the period of your presence in Vancouver  during the testimony sworn or given by Mr. Morrison?  Yes.  And this is a statement of account of March -- or it  appears to be April 15th, but perhaps you can assist  us here.  I'll hand this up to your lordship, my lord.  :  Thank you.  Now, can you identify from, Dr. Greenwood, that this  is a statement of account rendered to Macaulay McColl  in care of Russell & DuMoulin?  Yes.  And this is one that you've rendered; correct?  Yes.  And it indicates at the bottom comments "re:  Delgamuukw and the Queen 50 percent share"?  Bottom of which page?  The first page.  Yes.  And this refers to the 50/50 split arrangement? 20765  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)  Cross-exam by Mr. Rush  A   Yes, that was arrived at the end of '85.  Q   '85.  You previously talked about the split of your  fees; is that right?  A   Yes.  Q   Now, on the second page it says:  "April 23 - 27 discussing amending my major  opinion".  A   Yes.  Q   Now, that was the period of time during which you  attended at the -- at the court to hear Mr. Morrison's  evidence, was it not?  A   Yes.  Q   And you'll see on May the 1st there's an entry  "research at UBC on Hudson's Bay Company's Charter".  Is it not the case, Dr. Greenwood, that after hearing  Mr. Morrison's evidence you undertook further  amendments shortly after Mr. Morrison's evidence and  undertook further research to deal with matters raised  in his evidence?  A   I think I'd have to agree with the 1st of May in which  I did look at the charter amendments, and it's my  fault if I haven't made that clear.  Doing research  because of his evidence, yes, that's correct.  But  otherwise amending my opinion, no, other than small  details .  MR. RUSH:  Now, I want to also show you a letter which you wrote  to Mr. -- Mr. Goldie, and this is dated May 31st,  1989.  And this is during the time of your -- I  presume to be the time at which the opinion was  amended.  My lord, may that document be the next tab,  please.  MR. GOLDIE:  May I see it, please?  MR. RUSH:  I'm sorry.  Not this document, the other one.  The  next one I'm referring to is this one.  THE COURT:  Yes.  Tab 20.  MR.  RUSH:  Q  (EXHIBIT 1168-20:  Statement of Accounts)  I'm showing you now a letter apparently containing  your signature dated May 31, 1989 addressed to Mr.  Goldie "Re: Delgamuukw et al.  The Queen in Right of  B.C. et al."  Now, I'm directing your attention, Dr.  Greenwood, to page two of the letter and to entry  number three. 20766  F.M. Greenwood (for Province)  Cross-exam by Mr. Rush  1  A  2  Q  3  4  A  5  Q  6  7  A  8  Q  9  10  11  12  13  14  A  15  Q  16  17  18  A  19  20  21  22  Q  23  A  24  25  Q  26  27  28  29  30  A  31  32  33  MR. RUSH:  34  35  THE COURT  36  MR. RUSH:  37  Q  38  39  40  A  41  Q  42  43  A  44  45  Q  46  47  M'hm.  And this is under heading "The principal  changes/additions relate to the following".  M'hm.  And item number three indicates "p. 109 bottom - the  Sioux"?  Yes.  "N.B. Morrison has filed this document and  pointed out to the judge that the Sioux as  described therein resided west of the  Mississippi River."  Yes.  Now, isn't it the case, Dr. Greenwood, that with  reference to the Sioux that you did make changes or  additions to your report to answer documents?  Yes.  But they were agreed to previously with Mr.  Robertson.  I can't remember exactly the date, but I  think it was in 1986 I'd located tribes for him, and  he was a member of my client's firm.  I see.  And so the decision was made at that point.  The  research was done then.  I see.  But here you're pointing out a change which  occurred to the report as a result of evidence that  you heard given, and documents tendered by Mr.  Morrison; isn't that right?  You say "Morrison has  filed this document and pointed out to the judge" --  I'm probably telling my clients that it's important  that I put it into the opinion, but I think that had  already been decided.  All right.  Thank you.  You can set that aside, my  lord.  I don't intend to file it.  :  All right.  Now, Dr. Greenwood, I understand that your billing  rate for services provided to the defendants here was  at the beginning in the amount of $250 per day?  That's correct.  And that subsequent to that your rate was increased to  350 per diem?  That's correct.  That would be May, the end of May,  1988.  All right.  And I think you've indicated that it was  at the end of 1985 that you were retained as a  consultant in respect of both defendants in the case. 20767  F.M. Greenwood (for Province)  Cross-exam 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  All right.  I want to show you an account.  You can  pass these to the witness.  And I wonder if you can  identify for me, Dr. Greenwood, there are two invoices  here.  The first two pages represent an invoice  billing date July 23, '87, and the second is an  invoice dated 19-06-11, June the 11th of '89.  A   Yes.  Q   Yes.  You can confirm for me that these were invoices  that you tendered to the defendants in the case?  A   It's addressed to Macaulay McColl, but yes.  Q   And the second is addressed to Russell & DuMoulin?  A   Yes.  MR. RUSH:  All right.  My lord I'd like that to be the next  exhibit.  THE COURT:  21.  MR. RUSH:  Thank you.  (EXHIBIT 1168-21:  Three invoices of Dr. Greenwood)  MR.  MR.  GOLDIE  RUSH:  Q  THE COURT  MR. RUSH:  A  MR. RUSH:  THE COURT  MR. RUSH:  A  Q  A  Q  I think there are actually three invoices, my lord.  Can you confirm that, Dr. Greenwood?  The first two  pages appear to be July 23, '87, and then there's a  date -- there's an invoice 89-04 and then 89-06-11,  and I took these three to be together, but I could be  wrong about that.  Can you confirm or state otherwise  that these invoices are the same or are -- do we see  three invoices here?  :  I see four numbers.  I do too, my lord.  Seem to be three.  All right.  Thank you.  So there's the 89-04.  :  And 11.  Yes.  And 89-06-11.  Yes.  Well, my question to you is you can confirm that these  are the invoices which you tendered?  Yes.  Yes.  All right.  Now, I take it that the invoices  I've shown you here at tab 21 and at tab 2 0 do not  represent all of the invoices which you tendered for  consultancy services provided to the defendants in  respect of this case?  A   These you mean?  Q   Yes.  A   Yes, you're right.  Q   All right.  I'd like you to tell me how much it was 2076?  F.M. Greenwood (for Province)  Proceedings  1 throughout the period of your consultancy that you  2 have been paid by the defendants in this case for your  3 work on their behalf?  4 MR. GOLDIE:  My lord, I object to that.  My friend wrote me with  5 respect to this, and I have pointed out to him that I  6 am advised by Mrs. Greenwood that the records that  7 would enable the witness to answer this question are  8 in Ottawa, and that it would take some three to four  9 days to separate or segregate the fees which are  10 attributable to advice given with respect to  11 cross-examination of the plaintiffs' witnesses, advice  12 given with respect to the summaries filed by the  13 plaintiffs' experts, advice given with respect to  14 other cases, which Meares Island is the most notable.  15 And I do not, my lord, consider that an overall total  16 is of any relevance or of assistance in this case.  17 And the segregation of it is going to take, as I say,  18 three to four days.  And there's some question as to  19 whether or not the records, which I am instructed are  20 computerized, are complete.  Dr. and Mrs. Greenwood  21 moved from Vancouver to Montreal to Ottawa in the  22 period, and Mrs. Greenwood isn't at all confident that  23 everything is there that would enable an answer to be  24 given to my friend in a way which is relevant to the  25 case.  That is to say, in a manner which would be  26 segregated so that the totals are applicable only to  27 this case.  And I object to the question on the basis  28 that it is irrelevant in its present form.  29 MR. RUSH:  Your lordship has made a ruling that the amount of  30 fees or payment made to an expert in terms of the  31 opinion provided to the client is relevant.  And it so  32 happens that in the case of the federal -- in this  33 case the provincial defendant's expert that the fees  34 are computed on a per diem basis.  It doesn't mean  35 that there is not an obligation to provide a total  36 figure where the invoices have not been disclosed as  37 part of the disclosures under your November 10th or  38 14th ruling.  Now, my lord, this is not a question  39 that I raised for the first time with my learned  40 friend.  I raised it first when I made a demand for  41 all of the documents that would conform to your  42 November 10th, '88 ruling.  I raised it again on  43 October the 4th asking -- indicating that I would be  44 making an inquiry of the witness on this particular  45 issue and that he should inform himself.  I asked  46 again at the conclusion of his direct examination.  I  47 wrote to Mr. Goldie on the 10th of October indicating 20769  F.M. Greenwood (for Province)  Proceedings  1 once again that I would be posing questions on this  2 issue.  I think that this is a question for which  3 evidence was compelled and evidence led of witnesses  4 by the -- for the plaintiffs, their contracts and  5 correspondence, the setting out details of payment  6 arrangements were disclosed.  In my submission, that  7 it is entirely consistent with your lordship's ruling  8 that the witness be required to indicate the amount of  9 money that he has been paid vis-a-vis his opinion and  10 his consultancy work on behalf of the provincial  11 defendant, and in this case as well on behalf of the  12 federal defendant.  For your lordship's ruling to have  13 any meaning at all, because at that time you indicated  14 that there may well be some relevance to the amounts  15 of money paid to experts in terms of the impact or  16 character or shade of the opinion that has been  17 tendered or in terms of the evidence that's been  18 tendered.  Now, in my submission, it is not sufficient  19 simply to provide documents that indicate a per diem  20 rate was provided.  This is of no assistance  21 whatsoever.  Either the witness can tell me, which I  22 would be satisfied with, how many days of work  23 provided at those per diem rates or what he was paid  24 for the period of time that he was under consultancy  25 service.  And, in my submission, my lord, it's a  26 proper question to conform with your lordship's ruling  27 and it ought to be answered.  And it's not as though  28 there hasn't been adequate notice of our intention to  29 pursue this.  And it can't be said that this is new to  30 the parties or it hasn't been probed previously as  31 between counsel and an expert.  32 MR. GOLDIE:  Well, my lord, so far as I'm aware the only time  33 when the issue arose other than the per diem cost, and  34 I believe I'm correct in stating that the per diem  35 cost is a matter which has been linked to the  36 credibility of the witness.  As I say, the only time  37 that I'm aware of in which an overall cost was sought  38 to be obtained was in the case of Mr. Skoda.  And your  39 lordship declined to order Mr. Skoda to pay.  Now, I  40 have two transcript references.  41 THE COURT:  Not to pay surely.  42 MR. GOLDIE:  Not to pay.  Declined to order him to reveal the  43 payment.  In volume 146 on November the 7th a  44 discussion arose with respect to the removal of -- of  45 material in a letter for housekeeping purposes, and  46 your lordship had a discussion with Ms. Mandell who  47 said that I think they should be entitled to know 20770  F.M. Greenwood (for Province)  Proceedings  1 financial affairs if this is an issue for credibility.  2 That was -- and the discussion preceding, well if  3 there was an enormous bonus paid or something of that  4 order.  5 MR. RUSH:  That was his lordship's comment.  6 MR. GOLDIE:  Well, that was the context of the discussion.  And  7 then with respect to Mr. Skoda, volume 247, and in Mr.  8 Willms' cross-examination he said, and I'm referring  9 at page 18149 the question was put what are the total  10 billings to the plaintiffs for that work, that work  11 being the cartographic work the Canadian Cartographies  12 has done, and my friend objected to that.  And he  13 said, and this is my friend Mr. Rush at line 11.  14  15 "I can see a rationale for probing an expert's  16 billings providing the court with an expert  17 opinion in a subject that is other than  18 technical, and in this case the underlying  19 information is fundamentally of a technical  20 nature, and, therefore, my friend is asking a  21 question of what it had cost to produce this  22 type of mapping."  23  24 I do want to make one other comment, and that is  25 that my friend has objected to the filing of an  26 opinion.  And if I wish to take a technical point I  27 could say there is no basis for asking any questions  28 of this witness with respect to his opinion, because  29 on my friend's objection it has been rejected and  30 there is no opinion before your lordship which can --  31 in respect of which the billings can form any basis  32 for discussing the credibility.  33 And then returning now to the discussion with  34 respect to Mr. Skoda.  Your lordship asked my  35 colleague just where this would take him in relation  36 to the -- the work that Mr. Skoda had done.  And your  37 lordship said:  38  39 "You see, a good part of what the company was  40 paid is going to be technical cost that has  41 nothing to do with the area you're seeking to  42 explore."  43  44 And then your lordship made a ruling at page  45 18150.  46  47 "Mr. Willms, I think that until you challenge 20771  F.M. Greenwood (for Province)  Proceedings  1 something that's on the -- on the maps or  2 question the accuracy of them in some way, and  3 in some serious way, I don't think what he  4 billed for it is going to be of any assistance.  5 If there's an issue about the reliability or  6 the bona fides of any of the material that's  7 been displayed"  8 And I emphasize that word displayed.  9  10 "Then it might become relevant, but until that  11 happens, at the very least, I would not be  12 disposed to order the disclosure of this  13 information."  14  15 My lord, the letter that I wrote to my friend on  16 October the 10th I said this:  17  18 "I have spoken to Dr. and Mrs. Greenwood about  19 the total amounts paid them.  Their records are  20 in Ottawa and are not immediately available.  21 More importantly it would take some three to  22 four days work for Mrs. Greenwood to sort out  23 the charges in category of work so that the  24 amounts paid that relate to his report"  25  26 And I interject here, his report which is not  27 before the court.  28  29 "For this case can be segregated.  She is not  30 at all sure that records are such that this can  31 be done.  What was paid on account of Meares  32 Island for assistance in the corporation of the  33 examination of the plaintiff's witnesses, and  34 in respect of topics unrelated to this case are  35 irrelevant, and I have declined to request Dr.  36 Greenwood to undertake the work of segregateing  37 the totals."  38  39 So I -- the basis that I have for my objections  40 are twofold.  Firstly, there is the fact that there is  41 no report before your lordship.  Secondly, that on the  42 basis of the prior rulings relating to the disclosure  43 of fees in this case, a disclosure of a total, it is  44 limited to a determination of those parts which are  45 relevant and which are challenged in the case, and  46 there has been no challenge, because there is no  47 report, to any part of the report. 20772  F.M. Greenwood (for Province)  Proceedings  1 THE COURT:  Thank you.  Ms. Russell, any submission?  2 MS. RUSSELL:  My lord, we certainly support the Province's  3 position.  4 THE COURT:  Thank you.  Mr. Rush.  5 MR. RUSH:  Well, I think that there is a completely unwarranted  6 line drawn between a report in evidence.  The question  7 is whether evidence tendered by the witness is  8 evidence that has been challenged.  And on many counts  9 he was probed and evidence or documents he tendered  10 were probed as to their origin, his knowledge of them.  11 Throughout his evidence relies upon assertions made by  12 Dr. Greenwood about work that he did, that we must  13 accept that he did, and statements made by him about  14 evaluations that he did.  This is not one of those  15 cases, as it has not been with any of the historians,  16 where the evidence has been free of some opinions.  So  17 I say that my friend's rigid distinction is  18 unwarranted.  The question is is in terms of the  19 evidence have there been probes and have questions of  20 credibility been raised.  And there have been.  21 The second point is, my lord, that my friends have  22 already disclosed invoices.  Those invoices have been  23 tendered.  In my submission, the disclosure on the  24 invoices have been wholly inadequate.  I mean, it's  25 clear that there are invoices -- invoices that  26 originated with Dr. Greenwood, invoices that were  27 received by Russell & DuMoulin.  There must have been.  28 The witness says there were others.  Some of those --  29 at least four of those have been disclosed.  I  30 wouldn't need to make this submission if, in fact,  31 those invoices have been disclosed in their totality,  32 but apparently it's a significant task despite the  33 fact that Dr. Greenwood was advised in advance of the  34 fact that these questions would be coming to determine  35 where those invoices are.  But I say, my lord, either  36 I'm entitled to the invoices or I'm entitled to this  37 witness' evidence directly as to how much he was paid  38 in respect of the production of his report, or I'm  39 entitled to know how many days he devoted to that task  40 and at what per diem rates.  It seems the only way, in  41 my submission, that there can be any meaning or sense  42 given to your lordship's ruling is if, in fact, these  43 disclosures are made otherwise it's totally  44 meaningless.  You would never be able to assess  45 whether or not the credibility of a witness should be  46 waived one way or the other based on this information  47 were it not for the fact that you had some knowledge 20773  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. RUSH:  THE COURT:  MR. RUSH:  THE COURT:  MR. RUSH:  F.M. Greenwood (for Province)  Proceedings  Ruling by the Court  of the totals of amounts of monies that had been paid.  Well, all the witness has done, Mr. Rush, is bring  to my attention a collection of documents and --  And comment on the documents --  Well —  -- Contextually.  And he has commented on many of the  documents.  That's been the thrust of his evidence.  Well, but not in a way it seems to me there's been  any serious attack on credibility.  I mean, the  area -- the field is so vast that there -- one would  never cover it.  And all the witnesses hadn't covered  it all.  In a number of statements he said I looked at  a number of things.  I didn't take a close look at  them all.  I don't know how many there are in total.  I can take a guess.  But it doesn't seem to me it's a  credibility problem.  Well, my lord, in any -- you are going to be asked to  assess the evidence of two witnesses who did precisely  the same thing, and there's going to be questions --  one of those witnesses was not cross-examined.  Mr.  Morrison.  You're going to have to make certain  evaluations of the evidence brought before you both in  terms of the selection and in terms of the emphasis,  and it seems to me entirely within the ambit of your  lordship's ruling that in the weighing of that  credibility has got to be a factor that's weighed into  it.  And, in my submission, my lord, if this is a  factor that you have to weigh, that is whether or not  the man was paid a million dollars or ten dollars, if  that is a fact and you -- I think your lordship has  already ruled that it is a factor to weigh into it,  then I say that we're entitled to that information.  Well, at the moment I am not conscious of any  credibility, serious credibility choices between Dr.  Greenwood and Mr. Morrison.  I doubt if there will be.  They both put before me a collection of documents and  they have explained what they understand these  documents relate to.  Mr. Morrison put before me some  opinions that I'm easily able to assess against the  documents that he was speaking about.  Dr. Greenwood  prepared a lengthy opinion which is not before me.  I  have some opinions from him both in chief and in  cross-examination relating to the collection that he  has supervised, but again I'm able to weigh that  opinion against the document itself.  And in many,  many cases it comes down, as both counsel have argued  from time to time in different perspectives, that I  THE COURT: 20774  F.M. Greenwood (for Province)  Ruling by the Court  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH  THE  MR.  THE  MR.  THE  THE  have to decide what the document means and what  inferences should be drawn from it.  That being so it  doesn't seem to me it is a case that calls for fine  weighing of credibility where the amount paid to  either of them will have anything whatsoever to do  with the conclusions I reach about what the documents  mean or what their circumstances were.  I'm not  disposed to order the matter going any further than it  is now.  Are you finished, Mr. Rush?  That being so, my lord, that concludes my  cross-examination.  COURT:  All right.  Mr. Goldie, do you have re-examination?  GOLDIE:  I have a little, my lord.  COURT:  Do you want to do it now?  Do you have time to do it  between now and when we should reasonably adjourn for  lunch?  GOLDIE:  It is longer than two and a half minutes.  COURT:  Shall we do it at two o'clock.  REGISTRAR:  Order in court.  Court stands adjourned until  two o ' clock .  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Peri McHale, Official Reporter  UNITED REPORTING SERVICE LTD. 20775  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2  3 F. MURRAY GREENWOOD, Resumed:  4  5    RE-EXAMINATION BY MR. GOLDIE: (Continued)  6  7 MR. GOLDIE:  8 Q   Dr. Greenwood, I am putting before you volume one, tab  9 62 of your documents, Exhibit 1159, and I am referring  10 you to the second to last page under that tab, and you  11 had drawn his lordship's attention, in your evidence  12 in chief, to the first paragraph on that page, but --  13 my friend asked you to read the second paragraph,  14 beginning with the words and I quote:  15  16 "And the same is taken for granted in the  17 Governments lately ceded by the Crown of  18 Spain."  19  20 Now, just pausing there, what do you understand is  21 referred to by the words "lately ceded by the Crown of  22 Spain"?  23 A   I think that would be Florida.  24 Q   All right.  Continuing:  25  26 "There is not extended up to the forts on the  27 Ohio and perhaps to the Lake Superior, the  28 Spaniards or French will be able at all times  29 to cross the river."  30  31 Just pausing there, what do you understand is meant  32 by the words "the river"?  33 A   I believe it's the Mississippi River.  34 Q   And continuing:  35  36 "And come to excite the Creeks, Chichasaws,  37 Catabaws, etc., to enmity with the Crown of  38 Great Britain and come on the back of our  39 settlement as they used to do."  40  41 Taking that paragraph as a whole, what do you  42 understand is being addressed by the writer?  43 A   I think it's all part of a piece of what Egremont  44 wanted to prevent, that is the possibility of any  45 boundary disputes coming from the French or the  46 Spanish, because British territory would not be given  47 a civil jurisdiction or would not otherwise be 20776  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 possessed effectively by Britain.  2 Q   All right.  Thank you.  3 You were referred to volume four of your --  4 A   I don't seem to have volume four.  5 Q   I will put it in front of you.  Tab 193, please.  6 A   Yes.  7 Q   Of Exhibit 1164, and that is the Entick, E-N-T-I-C-K,  map  9  9 A   John Entick map, yes.  10 Q   You were asked with respect to this map to agree that  11 the words New France or Canada do not stretch across  12 the St. Lawrence Valley?  13 A   That's correct.  14 Q   What did you understand my friend meant by the words  15 St. Lawrence Valley?  16 A  Well, perhaps a term of art, I assumed he meant the  17 settlement part of the St. Lawrence Valley but he  18 might have meant the heights of land.  19 Q   That is to say, on both sides of the river?  20 A   I think he was referring only to the western side of  21 the river.  22 Q   The north and the western side?  23 A   Yes.  24 Q   That's what you took him to mean?  25 A  Well, in asking the question, I assumed he meant where  26 settlement was, which was within, you know, a few  27 miles of the river.  28 Q   And did you understand that to mean -- I am sorry --  29 and your understanding in that respect excluded, then,  30 the southern or eastern side of the St. Lawrence?  31 A   Yes.  32 MR. RUSH:  Isn't that a leading question, my lord?  33 MR. GOLDIE:  Well —  34 MR. RUSH:  He can ask him what his understanding was, he gave  35 the answer, and surely that's what he can ask and get  36 in reply.  37 MR. GOLDIE:  Well, I was just paraphrasing what the witness had  38 said.  I didn't intend to lead him.  I was simply  39 going to ask him:  40 Q   Why did you exclude the eastern or southern side?  41 A   Because the words New France, the ends of the words,  42 do not travel beyond the St. Lawrence River, in the  43 easterly direction.  44 Q   Prior to the Treaty of Paris, were the lands south and  45 east of the St. Lawrence River and draining and  46 watered by rivers draining into the St. Lawrence,  47 settled as belonging to England or France? 20777  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 A  Well, there was a debate about what is now the  2 Province of New Brunswick, essentially, between France  3 and England.  But the territory on the Atlantic coast,  4 south of Nova Scotia and down to but not including the  5 Floridas, was possessed by Britain.  6 Q   I want to refer you to plate 40 of the Historical  7 Atlas of Canada, I think you referred to that document  8 when you -- in some of the answers to the questions  9 that were put to you by my friend.  You are familiar  10 with it, are you?  11 A   Yes, I am, but I don't have it before me.  12 Q   And can you tell his lordship when it was published?  13 A   This is circa, 1987.  14 Q   I am now going to put before you plate 40 and direct  15 your attention to a map on the lower left-hand corner,  16 and it shows New France and Louisiana coloured blue,  17 and would you tell his lordship how the land south and  18 east of the St. Lawrence River are depicted?  19 A   They are depicted as recognized British territory and  20 also as disputed territory.  21 Q   I am now referring to the part that is depicted with  22 horizontal lines?  23 A   Disputed territory.  24 Q   Pardon?  25 A   Disputed territory.  26 Q   Yes.  Thank you.  I haven't got a copy of this, I  27 wonder if you would -- the plate that your lordship  28 has I don't think is plate 40.  29 THE COURT:  No, I have 36.  Which is the disputed territory?  30 MR. GOLDIE:  The one that is with hatched lines, my lord.  31 THE COURT:  Oh, yes.  32 MR. GOLDIE:  Could I have Dr. Farley's, map folio, please.  33 Exhibit 1149?  34 Q   I want to refer you to map 10, part two, which should  35 be the part of the Mitchell map I think probably I  36 have the wrong part.  37 THE COURT:  I think it's part three.  38 MR. GOLDIE:  Part three is the one I am looking for.  Exhibit  39 1149, 10, part three.  40 Q   Now, that depicts, does it not, Dr. Greenwood, the  41 River St. Lawrence?  42 A   Yes.  43 Q   Would you tell his lordship where the words Nova  44 Scotia appear?  45 A  Well, slightly to the south and east of the gulf, my  46 lord.  The words Nova Scotia are printed in large  47 black printing. 2077?  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 Q   And then the word "Acadia" is found below that and  2 parallel to the words Nova Scotia?  3 A   Yes, and the word "or" appears there as well.  4 Q   And now would you describe to him where the words New  5 England or found?  6 A   They are running south to north on the map, my lord,  7 to just approximately, I think it's Three Rivers, from  8 the south of the map.  9 Q   All right.  Thank you.  10 And I want to refer to Mr. Popple's map.  11 MR. RUSH:  I object to this, my lord, this is essentially a  12 redirect.  I referred the witness to two maps, my  13 friend in a composite question and with a composite  14 answer, listened to evidence that is being directed on  15 this very issue.  I don't really see how this arises  16 out of my cross at all.  The Entick, yes; the Popple,  17 the Mitchell, no.  18 THE COURT:  Well, if it related to something that you asked the  19 witness about on the map, would it --  2 0 MR. RUSH:  But I didn't.  21 THE COURT:  You don't think you did?  22 MR. RUSH:  I didn't ask anything about the Popple or Mitchell  2 3 map.  24 MR. GOLDIE:  What my friend did, was to ask the witness, and he  25 did it not with just one map, he did it a with a  26 couple of maps --  2 7 MR. RUSH:  Two.  28 MR. GOLDIE:  I think couple is the same as two -- and where the  29 word, to agree with him, that the words New France did  30 not extend, did not stretch across the St. Lawrence  31 Valley, and I wanted to firstly elicit the  32 understanding of the witness with respect to the St.  33 Lawrence Valley, and I have done that.  Secondly, I  34 wanted to put before him certain maps which would  35 indicate what was on the south side of the St.  36 Lawrence Valley.  I take it my friend attaches some  37 significance to the fact that the French words didn't  38 go across the St. Lawrence River.  39 THE COURT: I think that's appropriate re-examination.  40 MR. RUSH:  Well, my lord, the significance at all of the words  41 New France on Canada, and their placement as letters  42 on a map, was raised by my friend in direct.  43 THE COURT:  You mean by putting the map in it?  44 MR. RUSH:  No, no, he spoke to it directly.  Now, what I did on  45 cross was to present two maps saying, well, what you  46 might have said in direct is one thing, but here are  47 two maps to suggest something different.  Now my 20779  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 friend is saying, well, you didn't refer him to  2 Mitchell and Popple on these other maps, which was  3 part of his rolled-up question in direct, and for  4 which there was a rolled-up answer and because you  5 directed him specifically to two maps I am entitled to  6 redirect.  I say that's completely improper.  That's  7 as my friend going back and putting himself in the  8 shoes where he led the evidence.  9 THE COURT:  Except at that time he didn't know about your  10 questions.  11 MR. RUSH:  But he knew about the maps.  He was directed to, the  12 question was directed to the maps, where do these  13 words appear on the map?  14 MR. GOLDIE:  I think the entire context of the evidence in chief  15 was to determine the western boundary of Canada.  My  16 friend's question took the witness and your lordship  17 to the St. Lawrence Valley.  According to my  18 recollection, the witness never mentioned the St.  19 Lawrence Valley, and I want to establish, and I don't  20 yet know what the significance is of my friend's  21 question, but I want to establish what these maps show  22 with respect to the St. Lawrence Valley, and it arises  23 entirely out of my friend's question.  The whole  24 purpose of his directing your lordship's attention to  25 these maps was to say, here is New France or Canada,  26 and it was in every instance directed to the western  27 end of those words, so-called.  28 THE COURT:  It's one, it's a matter that's very close to the  29 line.  I think that I will allow the re-examination,  30 limited to directing my attention to places on various  31 maps, even if mentioned previously, where there are  32 notations which bear on this question of the south  33 side of the St. Lawrence Valley.  34 MR. GOLDIE:  35 Q   I just have one further question to put to you, Dr.  36 Greenwood, and I am referring you to -- I wanted to  37 refer to Mr. Popple's map, my lord, I think it's tab  38 9, and it is 1149-9, and again I want you to tell his  39 lordship where the word "Nova Scotia" appears and with  40 particular reference to the location of the word "an"  41 of Nova Scotia?  42 A   Nova Scotia is, the word "an" is in the wider part of  43 the river, I am not quite sure -- well, it's east of  44 Tadisack, that's all I can say, on this map.  But it's  45 essentially in the mouth of the River St. Lawrence,  46 and it's going left to right and going south and east,  47 I would say. 20780  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 Q   Thank you.   All right.  I am going to show you the  2 reference -- well, you were referred to Father Castel,  3 and you were asked about his occupation, and my friend  4 referred you to one of the documents that is now in  5 his cross-examination folder, you said that you had,  6 your recollection was that he was a geographer?  7 A   Yes, I think the term was used cosmographer but I took  8 that as geographer.  9 Q   I am going to show you in reference to your footnote,  10 154B, and ask you if you can identify that, and if you  11 can, whether you can state what is described in that  12 as -- what is described therein as Father Castel's --  13 A   Described here as a cosmographer.  14 Q   Cosmographer is what, for those of us who are not in  15 your field?  16 A   I am not sure, I suppose it's someone who deals with  17 the geography of the planet.  This is the source,  18 though, yes.  May I clarify something for the court's  19 benefit?  And that is that the question was raised  20 that he was a Frenchman, and it's quite possible to  21 describe him as such, I am sure, but that Frenchmen  22 who lived in Canada for any length of time, often were  23 called Canadien.  That might not be a fair description  24 of them, but there was no citizenship requirement.  25 Q   Your footnote reference was to the Manitoba Historical  26 Atlas, which is a selection of facsimile maps, plans  27 and sketches from 1612 to 1969, and edited by John  28 Warkentin, he is described as a professor of  29 geography, York University, Toronto?  30 A   Yes.  31 Q   And Richard Ruggles, professor of geography, Queens  32 University, Kingston?  33 A   Yes.  34 Q   Is he the Professor Ruggles who is one of the  35 contributors to the Historical Atlas of Canada?  36 A   Yes, he is.  37 MR. GOLDIE:  My lord, I don't propose putting that in as an  38 exhibit because I am at liberty to refer to his  39 footnote references.  40 Q   I would ask you, however, here to -- if you would be  41 good enough to read in the second complete paragraph  42 the reference to Father Castel.  Perhaps you might  43 just read the paragraph down to the words "drains  44 south from Lake Winnipeg."  45 A   This paragraph here?  46 Q   Yes.  47 A 20781  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 "Castel accepted the results of the La Verendrye  2 expedition but he went amiss in a number of its  3 particulars in attempting to produce an overall  4 continental plan.  He believed that Lake  5 Superior was the crucial water body of the  6 continent, the source of almost all of the  7 major rivers of North America, and that its  8 surface elevation and the heights around it  9 were likely at the same level as or even higher  10 than the Alps or Pyrenees in Europe.  He then  11 developed a semicircular course for the  12 river-lake network of Manitoba.  West of the  13 height of land beyond Lake Superior the waters  14 were directed east to west through the border  15 lakes and then turned northwest towards Lake  16 Winnipeg.  From this large lake he averred that  17 three rivers issued north, the Riviere  18 Rouge-Riviere des Assinipoels, the Riviere  19 Bourbon and Riviere Dauphin.  These rivers all  20 flowed north at first, then veered northeast to  21 flow into Hudson Bay, whose shore he projected  22 far to the west. The Mississippi, he concluded,  23 also drained south from Lake Winnipeg."  24  25 Q   Thank you.  2 6 A   End quote.  27 Q   I want now to refer you to the article under tab 1 of  28 my friend's cross-examination book, 1168, Marthe  29 Emmanuel, Le Passaage Du Nord et La "Mer De L'ouest",  30 and it appears that Dr. Emmanuel is -- well, would you  31 translate the description of the author at page 273?  32 A   Doctor of the University of Paris --  33 THE COURT:  Just a moment.  I haven't found it yet.  34 MR. GOLDIE:  Page 373 under tab 1, my lord.  35 THE COURT:  Yes.  36 A   Either conservator or archivist, my lord, of the  37 documentary, the geographic documentary centre, 91 St.  38 Jacques Street, looks like Paris 5.  39 MR. GOLDIE:  40 Q   Of the University of Paris?  41 A   Yes.  42 Q   Thank you.  Now, at page 361, my friend referred you  43 to that page, and about two thirds of the way down the  44 first -- the first complete paragraph or about eight  45 lines from the bottom, and the words, and I take it  46 quotation marks "la gloire de la Compagnie", what do  47 you understand to be the meaning of those words? 20782  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1  A  2  Q  3  4  A  5  6  Q  7  A  8  Q  9  A  10  Q  11  A  12  Q  13  14  15  A  16  Q  17  A   '  18  Q  19  THE COURT:  20  A  21  22  1  23  24  25  26  MR. GOLDIE  27  Q  28  A  29  1  30  Q  31  32  33  34  A  35  Q  36  37  38  39  A   ]  40  Q  41  A   '  42  43  44  45  46  47  Can I read the passage?  Please do.   Do you know the -- you are unable to take  it from the context that --  That is kind of a quick translation.  It's not the  easiest French I have ever come across.  Do you know how the Jesuits referred to themselves?  Society of Jesus.  The Society of Jesus?  Yes.  Any other names that you are aware of?  I am sure there were lots but I don't know.  All right.  The publication that you were asked if you  recognized, is that a publication devoted to religious  history?  This is to swear to the Knight process?  Yes, yes.  What year is it, do we know?  I am sorry, I don't.  It's after 1950.  Yes.  I think the journal, it's a major historical  journal, published in Montreal, and it's French  Canadian and at the very beginning they allowed  articles in English but as I found out to my horror,  after a while they did not publish in English until  after sometime perhaps in the '60s.  It's a journal of some antiquity?  It's a very reputable journal.   Started by Abbey  Giroux.  Under tab 2 of my friend's book of documents are the  articles of capitulation of Montreal, and you were  asked some questions about that.  You, I believe, used  an English translation?  Yes.  Do I understand from the reference, which is under tab  101, that that translation that you used was 1797 or  earlier?  And I am referring you to footnote 1 of  the -- your tab 101.  My tab 101?  Yes.  Well, the translation I used was published in Shortt  and Dowdy and they say here, that, and I will read it:  "As in cases of the articles of capitulation of  Quebec, the English version of the articles of  capitulation of Montreal here given, follows  that in capitulations and extracts of treaties 20783  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 relating to Canada, 1797."  2  3 That's an obvious archival source, I could not  4 identify it --  5 Q   Beyond that.  You say it's an obvious archival source,  6 do I take it from what you have read that it is a  7 source that was published or created in 1797 or  8 earlier?  9 A  Well, I think it's an archivist's compilation as of  10 1797, I can not swear whether it's P. R. 0. or  11 anywhere else.  12 Q   Keeping that in front of you, both the English and the  13 French, would you please turn to article 39, and I  14 would like you to tell me whether the English words in  15 article 39, and I quote, "and other places and posts  16 of the countries above" is, in your view, an accurate  17 translation of what you find in the French there?  18 A   It's accurate but not very elegant.  I think it should  19 be "other places and posts of the upper country",  20 "pays d'Enhaut" is upper country, that could mean  21 anything really west of Montreal, including Fort  22 Frontanac, which is now Kingston.  23 Q   And in article 37, the English words, and I quote  24 "they shall also have the furs which are in the posts  2 5              above."  2 6 A   Hm-hmm.  27 Q   Is that an accurate translation of the corresponding  28 words in the French?  29 A   "Also have or enjoy", pelleteries, furs, "which are in  30 the posts in the upper country"  would be my  31 translation.  32 Q   All right.  Thank you.  Now please go back to article  33 39, and will you identify the words in French which  34 correspond with these words, and I quote:  "None of  35 the Canadians, Acadians or French, who are now in  36 Canada, and on the frontiers of the colony...." have  37 you identified --  38 A   That's the beginning of article 39?  39 Q   Yes.  40 A   Yes.  41 Q   Firstly, frontiers of the colony, is that an accurate  42 translation for the corresponding words, "sur les  43 frontieres de La Colonie"?  44 A   Yes.  45 Q   And what does the phrase frontiers of the colony refer  46 to?  47 MR. RUSH:  Well, doesn't that call for an interpretation, my 20784  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  lord?  MR.  MR.  THE  MR.  THE  MR.  THE  MR.  Well, if there is some scholarly  Not a translation.  Yes.  Well if that's —  What does it refer to?  GOLDIE:  RUSH:  COURT:  GOLDIE:  COURT:  GOLDIE:  Q   What does the phrase, what does that refer to?  I am  asking if the witness is aware as a matter of fact, I  am not aware that it's an interpretation.  COURT:  You mean what frontiers of the colony are you aware  of?  GOLDIE:  Yes.  Well, that doesn't quite get at it, my lord,  because the witness might answer that in terms of his  current knowledge or current views.  I am not  interested in knowing whether that -- first, I will  put it this way:  Q   Are the frontiers of the colony elsewhere defined in  the articles of capitulation?  A  Q  No.  A  Q  A  Is there any reference that you can direct his  lordship to which would indicate what the frontiers of  the colony -- firstly, the colony is that of Canada;  is that correct?  Yes.  Is there any with reference to which you can direct  his lordship that would assist him in determining what  the words refer to?  Well, I have to make a judgment here, my lord, and in  my judgment the best source would be the Vaudreuil-  Haldimand map, which was the first map of British  Canada ever drawn, and it's trying to define the  difference between Louisiana and Canada, and it draws  a boundary between the two, and the interests in terms  of the western portions ends at Red Lake.  And that's  about as close as you can come, I think, to a  definition of Canada.  All right.  Thank you.  Now, under --  At the time.  Yes, that was my -- the purpose of my question.  Well, my objection stands, my lord.  I think it's  pure and simply a matter of the witness's judgment.  What he has done is he has told me he doesn't know  of a better source in determining the frontiers of  Canada than the Bowen map, that's what he says.  GOLDIE:  That was the point that I was trying to reach in my  question, my lord.  Q  A  Q  MR. RUSH:  THE COURT  MR. 20785  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 Now, my lord, you were -- the witness's attention  2 was drawn to footnote 36 under tab 3 of my friend's  3 references, which is Collections of the State  4 Historical Society of Wisconsin edited by Mr.  5 Thwaites.  And the footnote itself is at page 186 and  6 going over to 187.  7 A   Yeah.  8 Q   Firstly, the date of the publication of this on the  9 first page is indicated as 1908?  10 A   Yes.  11 Q   Is that correct, in your understanding?  12 A   Yes.  13 Q   Has there been any -- and that footnote relates to the  14 site or supposed site of Fort La Joncquiere; is that  15 correct?  16 A   Yes.  17 Q   Has there been any further examination of the question  18 of Fort La Joncquiere's existence and site since 1908?  19 A   Yes, a great deal, that's in one of my footnotes, I  20 think.  21 Q   I will come to that.  I also want to refer you to tab  22 10 of my friend's collection of documents, which  23 consists of excerpts from the publication, Hudson's  24 Bay Company, 1670 to 1870, volume one, by Rich, and  25 you have told his lordship who Rich was, and I think  26 it's at page 524, in the left hand page, and would you  27 refer there to what is said about Fort La Joncquiere?  28 A   Yes, this is Professor Rich speaking, not myself:  29  30 "Fort La Joncquiere was in any case destroyed by  31 Indians in 1752 and Saint Pierre's successor in  32 command of the posts to the west, Louis Chapt,  33 Chevalier de la Corne, built a more lasting  34 settlement, possibly on the site of La  35 Joncquiere, just below the Forks of River in  36 1753."  37  38 Do you want me to go on?  39 Q   That's all right.  Now, by the way, that publication  40 is 1958?  41 A   This is — let me check it.  It's 1960 here.  It's  42 Toronto, McClelland and Stewart Limited, 1960.  43 Q   I am going to refer you to the Historical Atlas of  44 Canada again, and I will be asking you to look at  45 plate 38 -- I am sorry, it's plate 40, and I believe  46 that's the one that your lordship has as an exhibit.  47 I am sorry, that was -- 20786  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 MR. RUSH:  May I see that before you show it to the witness,  2 please?  3 MR. GOLDIE:  Sorry.  4 Q   Now, doctor, if you will just hold that for a minute,  5 I will take this.  I refer you to plate 40 and on the  6 left hand part of that page, there is a cartographic  7 depiction under the heading French Strategic Problems,  8 1740-1751, do you see that?  9 A   Yes.  10 Q   And over on the right-hand side to the right of the  11 heading, The Fur Trade Circa 1755, there is another  12 depiction.  And I am going to refer you to that for a  13 minute.  And you will see a number of dots identified  14 by numbers, starting at the extreme west with 103,  15 104, 102, 100B, is it?  16 A   Yes.  17 Q   And then 101 and down there.  Now, by asking you to  18 turn to plate 37, I will direct you to the key.  Would  19 you identify for us the forts or the -- I shouldn't  20 say the forts, identify for us from the key, the  21 places marked    22 A   Going backwards from 103, which is the furthest  2 3 west --  24 Q   Starting at the furthestmost west?  25 A  West, that's depicted there, I believe.  Nothing  26 beyond the forts, right.  103 in the key, which is,  27 what is it 37, yes, plate 37, it says, that's Fort Des  28 Prairies, in brackets it says, Ste. Louis, and after a  29 semicolon, la Corne, brackets, colon, 1753,  30 indefinitely, into the future.  102 is Fort Paskoya:  31 circa 1750, to the future (?) 1748, Fort Dauphin is  32 101, 1741 to the present, 100 is Fort Bourbon.  33 Do you want me to keep going?  34 Q   I think you skipped 103.  35 A   No, I didn't.  Fort Des Prairies.  36 Q   What's 104?  37 A   For La Joncquiere, Saint Pierre, 1751-52, 104.  38 Q   And where is 104?  39 A   I will have a look at that.  104 is a more easterly,  40 even though it's called Fort La Joncquiere, it's given  41 that nominative title, Fort La Joncquiere, it's east  42 of la Corne.  43 Q   Thank you.  You have already told us that that is  44 published in 1987?  45 A   Circa 1987.  46 Q   Who were the people stated to be the contributors on  47 plate 40, please? 20787  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1  A  2  Q  3  A  4  THE  COURT  5  6  A  7  8  MR.  GOLDI  9  Q  10  11  12  A  13  14  THE  COURT  15  16  17  A  18  19  20  21  22  23  24  25  MR.  GOLDI  26  Q  27  A  28  Q  29  30  31  A  32  Q  33  34  35  A  36  Q  37  38  39  40  A  41  42  Q  43  44  45  46  47  MR.  RUSH:  40?  It's just above in the upper left-hand side?  Conrad Hydenwright and Francoise Noelle.  :  What present day settlement is that, the Forks to  Saskatchewan?  It's about, what is it, Nipiwin, Saskatchewan.  It's  about 104 longitude in Saskatchewan.  It's close,  r:  And Francoise Noelle is a member of the department of  history at Memorial University of Newfoundland, is  that correct?  That's what it says, yes.  I don't know her  personally.  :  I think it's in this location, where I think I saw  somewhere that would suggest that La Joncquiere was in  the present site of the present day Calgary?  That's correct, my lord, that's the allegation of Mr.  St. Pierre, which historians in general don't agree  with.  The historians who are writing on the explorers  in the Dictionary of Canadian Biography, do agree that  there was a Fort La Joncquiere, but it was actually  east of the most westerly fort, de la Corne.  So the  Historical Atlas of Canada is consistent with the  Canadian Biography in that regard.  r:  And inconsistent with the --  Mr. St. Pierre —  The editor of the -- Mr. Thwaites, the editor of the  1908 paper, who suggested that it was on the site of  present day Calgary?  That's correct.  Now, I want to refer you to footnote 177 of your  opinion, does that contain the discussion of the  location of Fort La Joncquiere, in your opinion?  Yes, it does.  Now, is that the same footnote, or with whatever  variations there may be, that you included in the  first draft of your opinion which was submitted on the  9th of July, 1986?  Well, I don't remember changing that.  I would have to  check it.  I am going to show you, this is what my friend was  sent down with the working papers of the witness.  I  want to show you the draft of 1986 and show you the --  what I understand to be the corresponding footnote and  ask you if --  I don't see how that arises out what -- of this 207?  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 examination, my lord.  2 MR. GOLDIE:  Well, it does, my lord.  3 THE COURT:  Sounds like it's answering your allegation of recent  4 fabrication.  I am sure that's not the case.  5 MR. GOLDIE:  It has some slight relationship to that.  6 MR. RUSH:  Well, no allegation of that sort was made, my lord.  7 THE COURT:  No.  Well, are you asking the witness if that's  8 always been his opinion?  9 A   I am trying to --  10 MR. GOLDIE:  Yes.  11 THE COURT:  12 A   I am trying to check the two footnotes.  I wish to  13 make sure.  One does change, for a variety of reasons.  14 The two footnotes look identical to me.  15 MR. RUSH:  My lord, you should be aware that footnote 177  16 mentions plate 40, which I will take it to be part of  17 my friend's case in chief.  18 MR. GOLDIE:  19 Q   You were referred to Vaudreuil's instructions, and I  20 am referring here to -- in I may see his book again.  21 The reference that my friend directed your attention  22 to was page 150 under his tab 3, which again is the,  23 Wisconsin Historical Collections, and you are asked --  24 your attention was directed to the first paragraph,  25 but under the heading Versailles, March 22nd, 1755, it  2 6 reads, and I quote:  27  28 "New France, the government whereof his Majesty  29 has been pleased to confer upon Sieur de  30 Vaudreuil de Cavagnal, comprises Canada, l'isle  31 Royale, and Louisiana with their dependencies."  32  33 And you have told us that l'isle Royale is Prince  34 Edward Island?  35 A   I hope I didn't.  36 Q   Tell us what it is again?  37 A   It was Cape Breton.  38 Q   Thank you.  You're quite correct.  39 Am I to take it from that portion of the  40 instructions that each of those three was considered  41 to be a separate and distinct component of new France?  42 A  Well, on its face, that's what it appears but, in  43 general, it's usually considered that Canada or New  44 France included Canada and Acadia, although there was  45 a lieutenant-governor at Port Royale, and that  46 Louisiana was normally a separate colony but not  47 obviously in the circumstances. 20789  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 Q   To your knowledge, were there any Indian tribes in the  2 upper country allied to the French in the wars with  3 the English?  4 A   Yes, I said the Ottawa and the Chippawa.  5 Q   They were considered to be in the upper country?  6 A   Yes, I would think so.  7 Q   Any tribes that you have identified whose habitat was  8 west of Lake Superior?  9 A   Identified when and for what purpose?  10 Q   In the seven years' war as allied with the French?  11 A  With the French, west of the Mississippi?  12 MR. RUSH:  Wasn't this covered, my lord, in direct?  I think  13 that the question of the French allies was a question  14 raised specifically and specifically answered and I  15 raised it again and I got the same answer in cross.  16 MR. GOLDIE:  Well, I am taking it from this document, which my  17 friend put to the witness and which is now an exhibit,  18 which refers to the "allied savages", my lord, and I  19 just wanted to understand whether the witness had  20 identified any such as west of the --  21 THE COURT:  Where do I see this inelegant phrase?  22 MR. GOLDIE:  It's on page 153.  And it's part of the paragraph  23 which my friend read.  It's about halfway down.  24 THE COURT:  Well, in re-examination I would allow you to ask him  25 if he knows what he referred to as fitting that  26 description.  27 MR. GOLDIE:  28 Q   You recall that paragraph being directed to your  29 attention?  30 A   This one here?  31 Q   Yes.  32 A   Yes.  33 Q   Can you point us to anything that identifies who the  34 "allied savages" are that are referred to in that  35 paragraph?  36 A   I would have to consider that at length, Mr. Goldie,  37 to interpret it.  The "allied savages" of the French,  38 as far as  I understand it, were not located west of  39 the Mississippi River.  40 Q   All right.  Thank you.  At tab 12 you were referred to  41 a publication Letters from George III to Lord Bute and  42 it was suggested to you that the letter that you had  43 referred to, which was from George III to Bute, was  44 one that was prepared for publication; do you recall  45 that?  46 A   I recall it being suggested to me and testifying that  47 I did not think that that was accurate. 20790  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 Q   Right.  Now would you look at page Roman LXVI of tab  2 12?  3 A   This one?  4 Q   Yes.  And that, you were referred to that, were you  5 not?  6 A   Yes.  7 Q   And does that not refer to a letter from Bute to  8 George III as one that was evidently prepared for  9 publication?  10 A   From Bute, not to Bute.  11 Q   And your reference was?  12 A  A letter to Bute from George.  13 Q   All right.  Thank you.  Under tab 13, this is the  14 publication of Anthony Stokes, who I believe you have  15 referred to, the Chief Justice of Georgia?  16 A   Former Chief Justice of Georgia.  I had forgotten that  17 yesterday.  18 Q   And you were asked to refer to page 12 and a couple of  19 paragraphs were read to you.  The preceding paragraph,  20 which begins with the words:  21  22 "The British American plantations are  23 principally conquered or ceded countries."  24  25 A   Yes.  26 Q   Without reading it, the authority for the Chief  27 Justice's observations is, one of the authorities, is  28 to the Blackstone Commentaries that you have  29 identified?  30 A  Volume one of Blackstone's commentaries, page 108 at  31 the time Stokes was writing.  32 Q   And at page 19, you were directed to, and it was read  33 to you, paragraph two referring to proprietory  34 governments?  35 A   Yes.  36 Q   And that is to the same reference, the Chief Justice  37 had reference to the same commentaries?  38 A   Blackstone's commentaries, volume 1, page 108, yes.  39 Q   And it was Stokes who considered Rupertsland to be a  40 proprietory --  41 A   He said it might be either a proprietory colony or a  42 charter colony.  43 Q   And you disagree with that?  44 A   Yes, I do.  I think it was a Charter colony but he  45 went on to say that probably one should consider them  46 proprietory because there are proprietors that make a  47 lot of money out of the Hudson's Bay Company, but I 20791  F. M. Greenwood (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.  A  Q  A  Q  A  Q  RUSH:  A  MR. RUSH:  don't think that his authority would stand up to  Blackstone on that point.  Under tab 15 there is a extract from a book or an  article by Mr. Shy?  Yes.  Now, my friend provided us with the first page today  and it appears clear from there, that the Pownall that  is being referred to in that is the Thomas Pownall,  who is the former governor of Massachusetts?  Yes, Thomas Pownall in the title.  Did you have an opportunity of reviewing that article?  Yes, I did, this morning.  Do you have any observations with respect to it?  I object to that.  I would like to comment on two questions asked of me  by —  Excuse me.  Now, the question is, here is an article,  do you have any comments on it?  Now I led, I directed  the witness's attention to certain passages in the  article.  Now presumably my friend is interested in  redirecting on those passages.  I think the very least  we can expect of the question is that there is some  direction so that the witness doesn't feel free to  wander hither and yon through the article.  The  particular area of the question about which the  witness had asked that the footnote be provided was  footnote number nine.  Now in my submission, my lord,  firstly, the question should be directed at something  that's related to the cross-examination; and secondly  it should be directed --  Well, let's see if we have to decide that.  Are you  hoping to direct the attention of the witness without  leading to the article?  A   I can handle that, my lord.  GOLDIE:  The note I made, my lord, was that the witness said  he wanted to look at the whole article.  And as far as  I recall, that was the only article in respect of  which he sought that, and my recollection is that he  wasn't given an opportunity of making any observation  with respect to it.  Well, yes, he wanted to look at the whole article in  relation to specific questions I asked him.  And the  specific direct -- redirect, should be directed to  that.  GOLDIE:  Let's see if —  THE COURT:  I don't want to get into a -- to having to decide a  far-reaching question of the bounds of re-examination  THE COURT:  MR.  MR. RUSH:  MR. 20792  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 if I don't have to.  Are you going to make a comment  2 about the article?  3 A   I may make some in the course of directing my mind and  4 explaining to your lordship my answers to two specific  5 questions put to me yesterday by Mr. Rush.  One of  6 them is on page 170, the other is on pages 156 to 60.  7 I am going to address specific questions asked me but  8 I may have a judgment on the author.  9 THE COURT:  Page 170?  10 A   Starting at page 170.  11 THE COURT:  You were asked about a long paragraph on page 170.  12 A  And pages 156 to 60 as well.  13 THE COURT:  Let's deal with 17 0, what do you want to tell me  14 about page 170?  15 A   I believe Mr. Rush asked me whether I agree with the  16 paragraph and, particularly, the last sentence, on  17 the, I guess it's the first full paragraph, in short,  18 this section might have been written by Henry Ellis  19 himself.  That's Shy's opinion.  I would like to  20 testify that in terms of conciliating the Indians,  21 yes, indeed, Ellis might have written that section,  22 but the author himself states that Pownall did not  23 mention western expansion or should it be prohibited,  24 and I would testify that had Henry Ellis written it he  25 would have said no to western expansion because he  26 singled that out in the hints.  That would be my  27 testimony on that.  28 MR. GOLDIE:  29 Q   All right.  You say there is another section that you  30 were referred to that you want to --  31 A   159 to 60, I believe.  32 Q   Yes, there is --  33 THE COURT:  Yes you were asked about pages 159 and 160 and you  34 disagreed?  35 A   I was not able to agree, my lord.  I would have to  36 spend a great deal of time at the archives.  I do know  37 that the author, that is Shy, in footnote nine, which  38 I think is pages 244 to 45 of that article, and I  39 haven't seen them here, but I have seen them before,  40 attributes the plan of forts and garrisons to Henry  41 Ellis.  Now, Shy was indeed a military historian and  42 one has to give him a certain degree of credit, over  43 and above that, the document that I read into the  44 record on the forts and garrisons, lists five purposes  45 for military policy, 1763.  Not one of those had to do  46 with western expansion and, of course, Ellis was  47 against western expansion and therefore it's 20793  F. M. Greenwood (For Province)  Re-exam by Mr. Goldie  1 consistent with him having done it.  However, there  2 were other attributions, the editors of the document  3 themselves, I think Alvord and Carter, suggested that  4 it was Amherst and it was part of his responsibility,  5 of course, to recommend on those things and Jack  6 Stagg, and I referred to him in footnote four, I think  7 it's page 301, suggests that the author was George  8 Grenville, the first minister, or he was First Lord of  9 the Admiralty at the time, would soon be first  10 minister, so there is no consensus on attribution of  11 that document.  12 Q   All right.  Thank you.  13 THE COURT:  Shall we take the afternoon adjournment, Mr. Goldie?  14 MR. GOLDIE:  All right.  That you, my lord.  15  16 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  17  18 I hereby certify the foregoing to be  19 a true and accurate transcript of the  20 proceedings herein to the best of my  21 skill and ability.  22  23  24  25  26 Wilf Roy  27 Official Reporter  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 20794  F.M. Greenwood (for Province)  Re-exam by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  5 Q   Dr. Greenwood, you were referred to the Palairet map  6 which is found under your tab 192A in Exhibit 1163,  7 and there was a general discussion, if I may put it  8 that way, of boundaries which you identified as  9 referring to New England, Virginia and Carolina?  10 A   Yeah.  11 Q   And they run out to the left-hand margin of the map.  12 Do you recall that discussion?  13 A   Yes.  14 Q   And, in fact, they run out across the country that is  15 marked Louisiana?  16 A   Yes.  17 Q   And -- well, Doctor, was there any -- was there  18 anything agreed to or done under or by virtue of the  19 Treaty of Utrecht with respect to British claims west  20 of the Mississippi?  21 A   I believe not.  22 Q   Was there anything done or under or by virtue of any  23 treaty between the British and the French prior to the  24 Seven Years War which confirmed or acknowledged French  25 sovereignty with respect to Louisiana?  2 6          A   I don't know, Mr. Goldie.  27 MR. GOLDIE:  All right.  Thank you.  My lord, I'm going to  28 tender the book of footnotes 1168, I believe it is.  29 THE REGISTRAR:  1156.  30 MR. GOLDIE:  1166, yes.  31 THE REGISTRAR:  56.  32 MR. GOLDIE:  1156.  I'm tendering that, my lord, as an exhibit.  33 I don't know if my friend has had an opportunity of  34 undertaking the review that he was going to.  35 MR. RUSH:  I haven't, my lord, but if my friend wants to revisit  36 it on Monday I'll hopefully have it done.  37 THE COURT:  All right.  Thank you.  38 MR. GOLDIE:  All right.  That completes my re-examination, my  39 lord.  4 0 THE COURT:  All right.  Thank you.  Thank you.  41 A  Am I excused?  42 MR. GOLDIE:  Yes.  Thank you, Doctor.  43 THE COURT:  Thank you, Doctor.  44  45 (WITNESS ASIDE)  46  47 MR. GOLDIE:  My lord, I would like to, given my extended 20795  Proceedings  1 references to it, to put in evidence as exhibits  2 copies of the Historical Atlas of Canada, the plates  3 that I have referred to the witness.  4 MR. RUSH:  I think they should be put in evidence, however,  5 subject to my reviewing the plates and determining  6 whether or not there should be anything added to those  7 plates.  8 THE COURT:  All right.  Do you want to reserve a number, Mr.  9 Goldie?  10 MR. GOLDIE:  If that could be done, my lord.  It would be plate  11 40 and 37, I believe.  12 THE COURT:  All right.  Next two numbers.  13 THE REGISTRAR:  1169 and 1170.  14 MR. GOLDIE:  Thank you.  15 MR. RUSH:  Which is which?  16 THE COURT:  Plate 37 will be 69 and 40 will be 70.  17 MR. RUSH:  My lord, just on this point of cleaning up matters  18 related to the documents on the examination of Dr.  19 Greenwood, there were three documents that I had made  20 requests of my friends about.  One was in relation to  21 the extra official state papers document about which a  22 reference was made, and the witness was directed his  23 attention to it and quoted from it, but my friend I  24 had understood was going to obtain a copy of that  25 document, and I think he should have it.  Also tab 26  26 and 62 both contained missing --  27 THE COURT:  Your tab 26?  28 MR. RUSH:  No, my lord.  My friend's tabs 26 and 62 in volume 1  29 both contain some pages, and I want to repeat my  30 request for the pages which I had asked for  31 previously.  One of the requests I had made with  32 regard to tab 290 my friend's assisted me on that, and  33 we've got a replacement page, but I don't want it to  34 be lost in the completion of Dr. Greenwood's evidence  35 that these pages should not be obtained.  I'd like to  36 receive them.  37 MR. GOLDIE:  Yes.  My understanding is that we have had to  38 requisition them from England.  They're on their way.  39 THE COURT:  They can be added to the documents when they arrive.  40 MR. RUSH:  Thank you.  41 MR. GOLDIE:  Thank you, my lord.  42 My lord, I call Mr. Williams.  43 THE REGISTRAR:  Will you take the Bible in your right hand,  44 please, sir.  45  46  47 20796  D.R. Williams (for Province)  In chief by Mr. Goldie  On Qualifications  1 DAVID RICARDO WILLIAMS, a witness  2 called on behalf of the Province,  3 having first been duly sworn,  4 testified as follows:  5  6 THE REGISTRAR:  Would you state your full name, and spell your  7 last name, please, sir.  8 A   David Ricardo, R-I-C-A-R-D-O, Williams.  9 THE REGISTRAR:  Thank you, sir.  Please be seated.  10  11 EXAMINATION IN CHIEF BY MR. GOLDIE ON QUALIFICATIONS:  12 Q   Mr. Williams, you were born in Kamloops, and received  13 your primary and secondary education in Vancouver?  14 A   Yes.  15 Q   Graduating from the University of British Columbia  16 with a Bachelor of Arts degree and subsequently with a  17 Bachelor of Laws degree in 1949?  18 A   Yes.  19 Q   And you became and are still a member of the Law  20 Society of British Columbia?  21 A   Yes.  Although for the last four years I've been  22 non-practising.  I've been on the inactive list, but I  23 still am a member.  24 Q   Thank you.  In 1969 you were appointed one of her  25 Majesty's counsel?  26 A   Yes.  27 Q   And from 1971 to '75 you were a Bencher of the Law  28 Society of British Columbia?  29 A   Yes.  30 Q   You have served as a member of the Senate at the  31 University of British Columbia, and a member of the  32 Board of Governors; is that correct?  33 A   Yes.  34 Q   And amongst your professional and historical  35 associations you're a Fellow of the Foundation for  36 Legal Research?  37 A   Yes.  38 Q   A member of the Writers' Union of Canada?  39 A   Yes.  40 Q   A member of the Advisory Committee, British Columbia  41 Legal History Project of the University of Victoria?  42 A   Yes.  43 Q   A member of the Archives Committee of the Law Society  44 of British Columbia?  45 A   Yes.  46 Q   A member of the Oregon Historical Society?  47 A   Yes. 20797  D.R. Williams (for Province)  In chief by Mr. Goldie  On Qualifications  1 Q   The Osgoode Society?  2 A   Yes.  3 Q   The Association for Canadian Studies?  4 A   Yes.  5 Q   And a member of the British Columbia Studies?  6 A   Yes.  7 Q   And since 1980 you have been Adjunct Professor and  8 Writer-in-Residence at the University of Victoria?  9 A   In the Faculty of Law at the University of Victoria.  10 Q   All right.  And you're the chairman of a committee for  11 the McCarthy & McCarthy award for essays on legal  12 history?  13 A   Yes.  14 Q   Amongst your papers you have delivered papers entitled  15 "Sir Matthew Baillie Begbie" to the Pacific North West  16 History Conference of the Oregon Historical Society?  17 A   Yes.  18 Q   And you contributed a paper on "Legal Biography in  19 Canada" to the B.C. Studies Conference at the  20 University of Victoria?  21 A   Yes.  22 Q   A paper on The Administration of Criminal and Civil  23 Justice in the Mining Camps and Frontier Communities  24 of British Columbia to the Western Canada Legal  25 History Conference in Calgary?  26 A   Yes.  27 Q   And that was in 1984?  28 A   Yes.  29 Q   You have delivered a paper on Indian Land Claims,  30 History or Rule of Law to the Law and History  31 Conference at Carleton University in June of 1987?  32 A   Yes.  33 Q   And a paper entitled "The Eight Year Old Murderer" to  34 the Canadian Association of Law and Society at Laval  35 University in June of 1989?  36 A   Yes.  37 Q   And you have been a workshop leader at the  38 International Biography Conference in Vancouver in  39 March of 1981?  40 A   Yes.  41 Q   And amongst your publications "The Man for a New  42 Country:  Sir Matthew Baillie Begbie" first published  43 in 1977?  44 A   Yes.  45 Q   And then a book entitled "Matthew Baillie Begbie"  46 published in Toronto, 1980?  47 A   Yes.  Sort of a mini Begbie, you might say. 20798  D.R. Williams (for Province)  In chief by Mr. Goldie  On Qualifications  1 Q   Yeah.  A reprint in 1988 of your book entitled  2 "Trap-Line Outlaw:  Simon Peter Gun-a-noot" first  3 published in 1982 and republished in 1988?  4 A   Yes.  5 Q   You were a contributor to the "Biographical Dictionary  6 of the Common Law", the A.W.B. Simpson, Butterworths  7 edition in London, 1984?  8 A   Yes.  9 Q   And you were the author of "Duff - A Life in the Law"  10 published in 1984?  11 A   Yes.  12 Q   And a contributor to a "Law & Justice in a New Land"  13 published in 1986?  14 A   Yes.  15 Q   And in 1986 you published "Mayor Gerry:  The  16 Remarkable Gerald Grattan McGeer"?  17 A   Yes.  18 Q   You are a contributor to the Canadian Encyclopedia?  19 A   Yes.  20 Q   And to the Dictionary of Canadian Biography?  21 A   Yes.  22 Q   A contributor to law libraries in Canada?  23 A   Yes.  24 Q   And a contributor to a book entitled "Your Worship" of  25 which Allan Levine is the editor?  26 A   Yes.  27 Q   And you have published articles in several  28 periodicals, amongst them the Pacific North West  29 Quarterly --  30 A   Yes.  31 Q   -- Of Seattle?  The Gazette of the Law Society of  32 Upper Canada and Toronto, the Advocate in Vancouver,  33 and again the Gazette the Law Society of Upper Canada?  34 A   Yes.  35 Q   You published articles in those periodicals.  And you  36 have written articles for the Globe & Mail, and  37 Supreme Court Law Review, and again the Advocate?  38 A   Yes.  39 Q   And you are presently at work on a piece as an author  40 entitled "Call in Pinkertons"?  41 A   Yes.  42 Q   You have been awarded the University of British  43 Columbia medal for Canadian Biography in 1978 for your  44 biography of Sir Matthew Baillie Begbie?  45 A   Yes.  46 Q   You were awarded the Canadian Biography award in 1979  47 for the -- by the Association for Canadian Studies? 20799  D.R. Williams (for Province)  In chief by Mr. Goldie  On Qualifications  1 A   Yes.  2 Q   And the Hubert Evans non-fiction prize, B.C. Book  3 Prizes, 1985 for your book on "Duff - A Life in the  4 Law"?  5 A   Yes.  6 Q   And you've received an award of the Vancouver  7 Centennial Commission for your life on Mayor McGeer;  8 is that correct?  9 A   Yes.  10 Q   You have provided -- provided counsel for the Province  11 of British Columbia with a summary of an opinion, and  12 with other documents relating to that opinion.  Would  13 you describe to his lordship, please, your methods of  14 research and the sources used?  15 A  Virtually all of the work that I did leading up to the  16 preparation of that opinion was conducted by me  17 personally, and virtually all of it in the provincial  18 archives, my lord, working from archival papers of  19 various kinds; diaries, correspondence, memoranda,  20 newspapers, official records of one kind or another,  21 but only seldom did I resort to secondary sources.  22 Occasionally I resorted to them.  One notable instance  23 being "Bancroft:  A history of British Columbia".  But  24 it was all undertaken by me personally and mostly in  25 the provincial archives in Victoria.  26 Q   The sources that you have referred to include the  27 Premier's Papers, the Attorney General's Papers,  28 Provincial Secretary's Papers, Department of Mines  29 Papers, Colonial Correspondence, B.C. Police Papers,  30 contemporary newspaper accounts, diaries, memoirs,  31 private collections of correspondence, legislative --  32 well, just pausing there.  And these you have located  33 in the Public Archives of British Columbia?  34 A   Yes.  35 Q   You've also had occasion to consult the Legislative  36 Journals of Vancouver Island and British Columbia as  37 reprinted by Mr. Hendrickson?  38 A   To some extent, yes.  39 Q   And Colonial Proclamations, Dominion Consensus and  40 portions of RG10, a black book series on microfilm in  41 the Public Archives of British Columbia and from the  42 Department of Indian Affairs?  43 A   Yes.  44 MR. GOLDIE:  Thank you.  My lord, I tender Mr. Williams as a  45 person called to undertake research directed to the  46 imposition and acceptance of law and order in British  47 Columbia with a particular reference to the land claim 20800  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  area in this case, to evaluate the results of such  research and to express conclusions with respect  thereto.  THE COURT:  MR. RUSH:  THE COURT:  MR. RUSH:  THE COURT:  MR. ADAMS:  Mr. Rush.  My lord, Mr.  Thank you.  -- Counsel.  Mr. Adams.  My lord, I  Adams will be  have a document to hand up which my  friend has provided sometime ago.  CROSS-  EXAMINATION BY MR. ADAMS ON QUALIFICATIONS:  Q   Mr. Williams, you recognize that as your curriculum  vitae?  A   This is 1986.  I thought I provided a more recent one  than that.  I'm sorry, I don't know your name.  Q   It's Mr. Adams.  A  Mr. Adams.  Q   That is the latest one I've seen.  I've heard a few  additions to it.  And perhaps we can go through it and  we can discuss the additions in light of your  evidence.  All right.  Looking at first page of this, Mr.  Williams, you'd agree with me that there is nothing  that appears there that is relevant to the evidence  which you are prepared to give here and that is  covered by your summary other than the fact that you  have a Bachelor of Arts degree and a Bachelor of Laws  degree from the University of British Columbia; is  that correct?  A  And my qualifications in the Law Society.  Q   Okay.  What was your Bachelor of Arts degree in?  A   I can't make too much of it, Mr. Adams.  It was -- it  resulted from having done three years in the Faculty  of Arts and two years in the Faculty of Law, which at  that time led to a bachelor degree.  Q   And in the arts component of that what were you  studying?  A   English and history.  Q   And I take it you have no further academic training,  formal academic training beyond that Bachelor of Arts  degree in history?  True.  You don't have a Masters degree in history or any  other subject?  Nope.  You don't have a Doctorate in history or any other 20801  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  1 subject?  2 A   No.  3 Q   You have neither taken nor taught formal courses in  4 Indian history?  5 A   No.  6 Q   You have no formal training in economics?  7 A   I did some studies in economics at university.  In  8 fact, I was -- now that I think about it I was  9 instructor -- I was not an instructor.  I marked  10 papers.  In my last two years in the law school I  11 marked papers for a professor of economics.  12 Q   In what course?  13 A   In economics.  First year economics.  14 Q   And do you have formal training in geography?  15 A   No.  16 Q   In anthropology?  17 A   No.  18 Q   In ethno-history?  19 A   No.  20 Q   In sociology?  21 A   No.  22 Q   You do regard yourself though as an historian?  23 A   I regard myself as a legal historian.  24 Q   Okay.  You were in court this morning, were you, when  25 Dr. Greenwood was completing his evidence?  26 A   Yes.  27 Q   You, I hope, at the back would hear a reference to a  2 8 document in which Dr. Greenwood said something about  29 what professional historians would make of a certain  30 document.  Do you recall hearing that?  31 A   I did not hear that.  32 Q   All right.  I'm not asking you to tell me what Dr.  33 Greenwood meant by that, but do you recognize a  34 distinction between professional and non-professional  35 historians?  36 A  Well, I suppose one can -- I am not a professional  37 historian in the sense that I have academic education  38 in history.  I consider myself as a professional  39 historian, however, because I now make -- spend all my  40 time at it and make my living at it, or endeavor to.  41 Q   And when did you begin to do that?  42 A  After I stopped practising law.  43 Q   And if I'm to believe the correspondence I read you  44 stopped practising law in beginning or the end of  45 1986, or which?  46 A   No.  1985.  47 Q   At the end of 1985? 20802  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  1 A   Yes.  2 Q   Okay.  And that's the point at which you say you  3 became a professional historian?  4 A   Professional legal historian.  By professional I mean  5 this is how I spend all my time.  6 Q   Yes.  And you'll agree with me that anyone who could  7 read could spend all their time reading archival  8 documents?  9 A   Certainly.  10 MR. GOLDIE:  Even lawyers.  11 MR. ADAMS:  Some of them spend more than all their time reading  12 documents.  13 Q   For what period were you involved in the full-time  14 practice of law?  15 A   35 years roughly.  16 Q   Was that upon your graduation?  17 A   Yes.  18 Q   And so for the 35 years after 1949 until the end of  19 1985 that was your occupation?  20 A   Yes.  Except that in the last -- oh, roughly the last  21 seven or eight years of my practice I became less  22 interested in practising law and more interested in  23 writing and researching.  And I finally gave up law  24 altogether and spent the rest of my time since  25 entirely devoted to writing and researching.  26 MR. ADAMS:  Okay.  Could you look at page two of the 1986  27 document, please.  Perhaps I should have that marked,  28 my lord, while I have it in mind.  2 9 THE COURT:  All right.  30 THE REGISTRAR:  1171.  31  32 (EXHIBIT 1171:  Curriculum Vitae of Mr. D.R. Williams)  33  34 MR. ADAMS:  35 Q   And there's a heading "Community Organizations" and I  36 think that you'll agree with me that there's nothing  37 listed there that's relevant to the subjects of your  38 evidence here?  39 A   I agree.  40 Q   Okay.  And then under Professional and Historical  41 Societies what, please, is the Foundation for Legal  42 Research?  43 A   The Foundation for Legal Research?  44 Q   Yes.  45 A   This was a body that was set up some ten years or so  46 ago under the auspices of now Mr. Justice Carruthers,  47 and several other people, with a view to doing 20803  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  1 research in a very legal -- formal way into legal  2 problems and -- legal issues perhaps I should say.  3 Q   And when did you become a fellow of that foundation?  4 A   I can't give you the date, Mr. Adams.  It must be at  5 least ten years ago.  6 Q   And what research have you done for that foundation  7 that would be relevant to your proposed evidence here?  8 A   None.  9 Q   Okay.  Could I say the same for the Writers' Union of  10 Canada?  11 A  Well, it's -- the Writers' Union of Canada is an  12 organization of professional writers.  That is to say  13 people who have had books published in trade editions.  14 And I'm an active member of that organization.  I'm  15 not sure how relevant it is to this inquiry, but I'm  16 certainly an active member of it.  I'm a member of one  17 of the committees of it which is very active.  18 Chairman of it, rather.  19 Q   The Legal History Project at the University of  20 Victoria, what's that?  21 A  Well, this is the programme designed to encourage  22 interested students in legal history, students and  23 others.  It was set up about ten years ago, I think,  24 under the auspices of the present Dean of the Faculty,  25 Dean Neilsen, and it's to encourage students to  26 involve themselves in legal history and become  27 interested in studying it and writing about it.  28 Q   And as part of that project are you yourself involved  29 in legal research or legal historical research?  30 A   Not for that project in writing, but I have certainly  31 been involved in the oral history segment of it.  I  32 have conducted one interview for it, and I'm about to  33 be interviewed myself.  34 Q   What's the interview that you conducted?  35 A   I interviewed the late and former Chief Justice Farris  36 about his father.  37 Q   And are you aware for what you're to be interviewed  38 yourself?  39 A  My own career.  40 Q   And I take it that your membership on the Advisory  41 Committee of that Legal History Project doesn't  42 involve you in teaching, does it?  43 A   It does not.  44 Q   The Oregon Historical Society, what is that, please?  45 A   The Oregon Historical Society is the de facto archives  46 of the State of Oregon, and is probably the most  47 important archival institution on the Pacific coast. 20804  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  1 Q   How does one become a member of it?  2 A   One j oins.  3 Q   Could I do that?  4 A   Yes.  5 Q   No qualifications associated with that membership?  6 A   No.  7 Q   Okay.  8 A   Except an interest in history.  9 Q   The Association for Canadian Studies, is that similar?  10 A   That is a Canadian body which again encourages writing  11 and studies, as the title suggests, of Canadian  12 subjects.  It publishes journals.  It publishes  13 papers.  It's a very active organization.  14 Q   Have you contributed to it its journals?  15 A   I have not contributed to its journals, but I received  16 an award from it in 1979 or 1980.  Mr. Goldie read out  17 the date.  I've forgotten what it was.  In connection  18 with my then proposed biography of Sir Lyman Duff.  19 Q   It hasn't published any of your papers?  20 A   It has not.  21 Q   What is involved in being involved with British  22 Columbia Studies?  23 A   It is a body similar to the Association of Canadian  24 Studies except it's restricted to British Columbia  25 subjects.  It publishes a quarterly magazine.  26 Q   With which you're familiar?  27 A   Yes.  2 8 Q   And that's B.C. Studies?  29 A   Yes.  30 Q   And anyone could join the Association for Canadian  31 Studies and be a member, and anyone could join the  32 British Columbia Studies and be a member?  33 A   I think so.  34 Q   Okay.  35 A   I'm not so sure about the Association of Canadian  36 Studies.  I think -- I think they tend to -- well, I  37 shouldn't say restrict, but to encourage members out  38 of the academic community.  39 Q   Now, is it fair to say that the focus of your research  40 and writing involved with legal history has been on  41 judges?  42 A  And lawyers.  43 Q   And lawyers.  That is Justice Begbie, Mr. Justice  44 Duff?  45 A   Judges used to be lawyers.  46 Q   All right.  So if I say lawyers and judges has that  47 been the predominant focus of your research 20805  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  1 activities?  2 A   No, not entirely.  I think some of the papers which  3 you see there are on legal history and legal biography  4 generally.  5 Q   All right.  Well, let's look at the papers.  The first  6 one on "Sir Matthew Baillie Begbie", he was a lawyer  7 and then a judge?  8 A   Yes.  9 Q   Correct.  "Legal Biography in Canada"?  10 A   That I draw to your attention, Mr. Adams, that was  11 delivered at a conference of the Oregon Historical  12 Society.  I was invited to give a paper there.  13 Q   The "Legal Biography in Canada" was that a conference  14 paper?  15 A   No.  That was a paper -- yes, it was, given at the  16 B.C. Studies Conference in October, 1979.  17 Q   What was that about?  18 A  Well, that was about the meager work that had been  19 done in legal biography, and to a lesser extent  20 perhaps legal history by writers and academics in  21 Canada.  In 1979 the situation with legal biography  22 was virtually non-existent, and if I may say it  23 without -- it's false modesty, this paper was one of  24 the first papers to encourage people to get into legal  25 biography and legal history.  26 Q   And legal biography, I take it, is writing about  27 lawyers and judges and their lives?  28 A   Yes.  29 Q   Now, the paper that's next listed is The  30 Administration of Criminal and Civil Justice.  31 That corresponds --  32 MR. GOLDIE:  In the Mining Camps and Frontier Communities.  33 MR. ADAMS:  I'm not meaning to suggest, my lord, that it doesn't  34 say more.  I'm trying to expedite things.  35 Q   That corresponds, I take it, to the publication listed  36 on the next page, page three under books, the second  37 from the bottom, Contributor to "Law and Justice in a  38 New Land"?  39 A   That's right.  It was reprinted in that book.  40 Q   Okay.  So that's one piece of work, is it not?  41 A   True.  42 Q   Okay.  The conference that's listed at the bottom of  43 page two, Workshop Leader at International Biography  44 Conference in 1981.  45 A   Yes.  46 Q   What was the subject of the workshop that you led?  47 A   On biography generally.  How to write biography and 20806  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  1 what makes writing a biography from other forms of  2 non-fiction.  3 Q   And it is a different activity from other forms of  4 non-fiction, is it?  5 A   I think so, yes.  6 Q   It's a different activity from writing general  7 history, is it not?  8 A   Certainly.  9 Q   Now, for whatever reason Mr. Goldie was reluctant to  10 attribute to your first book, and that is listed at  11 the top of page three.  12 A   Yes.  13 Q   And would it be fair to say that that was written at a  14 time when you were still at best an amateur historian?  15 A   That's quite right.  It was that book that got me  16 interested in the whole field of history and  17 biography.  That was published as a local history  18 published first in 1966, still in print, republished  19 in 1977.  I had -- there was ten years between that --  20 the publication of that book and the publication of my  21 biography of Sir Matthew Begbie, but it was that book  22 that got me going, that church history.  23 Q   The next book listed on page three is the Begbie book,  24 and I take it from Mr. Goldie's question and your  25 answer that the two Begbie books side-by-side there  26 are -- at least cover the same ground?  27 A   Yes.  Although, the second is not an abridgment of the  28 first.  It was for a different market.  It was on the  29 same subject, but for a different market.  30 Q   Did it involve you in additional research?  31 A   No.  32 Q   And it was about, obviously, Sir Matthew Baillie  33 Begbie as lawyer and judge?  34 A   Yes.  35 Q   All right.  Then there's the book listed "Trap-Line  36 Outlaw Simon Peter Gun-a-noot" 1982, reprinted 1988.  37 And, in fact, you've made some additions in 1988, did  38 you not?  39 A   Yes.  40 Q   And I suggest to you that that's the only thing you've  41 written that deals -- apart from your summary of  42 opinion for this case that deals with the land claims  43 territory specifically?  44 A   Yes.  Although, in Begbie there is material that is  45 applicable to the whole province both from the point  46 of view of administration of law, including the claim  47 area. 20807  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  And would it be fair to describe the Trap-Line Outlaw  book as a popular history?  If by popular you mean non-academic, yes.  It wasn't --  But not in the sense of being based on inadequate  research.  It was based on adequate research, was it?  It was based on adequate research, yes.  Okay.  It certainly wasn't directed at academics, was  it?  No.  And specifically it would not have been directed at  academics interested in the history of the land claim  territory?  I don't know.  I see Mr. Galois has cited it as one of  his sources in one of his opinions he gave.  Is it your view that citing something as a source  indicates approval of it?  I don't know.  To what extent academics use it I don't  know.  I was just told the other day that the  University of Calgary had ordered 80 copies of it.  Somebody at the university.  Well, I bought one too, but I don't want you to take  that as an endorsement necessarily.  You asked me if that is directed to academics.  Academics do read it, obviously.  I hope you paid for it.  So do I.  The next entry under books is the Biographical  Dictionary?  Yes.  Was that about a specific person?  Yes.  That was two entries in there, one article, one  on Sir Lyman Duff and one on Sir Matthew Begbie.  Okay.  And your book on Duff clearly was a book about  a lawyer and then a judge?  Yes.  Okay.  And as I recall, and correct me if I'm wrong,  your contribution to the Knafla book was not  specifically concerned with events or persons in the  land claims territory, was it?  No.  You will find, incidently, at the introduction to  that book a reference to me as one of the six or seven  other named persons as being persons being  instrumental in developing an interest in legal  history in this country.  1  Q  2  3  A  4  Q  5  A  6  7  Q  8  A  9  Q  10  11  A  12  Q  13  14  15  A  16  17  Q  18  19  A  20  21  22  23  Q  24  25  A  26  27  MR. GOLDIE  28  A  29  MR. ADAMS:  30  Q  31  32  A  33  Q  34  A  35  36  Q  37  38  A  39  Q  40  41  42  43  A  44  45  46  47 20808  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  1 Q   Well, I see you described as:  2  3 "A scholar in residence of the Faculty of Law,  4 University of Victoria.  Practised law for many  5 years in Duncan.  An historical and legal  6 biographer, and you publish on judicial  7 conflicts, studies of Judge Begbie, and most  8 recently Sir Lyman Duff and Simon Gun-a-noot,  9 Trap-Line Outlaw."  10  11 And the book on Gerry McGeer, I take it, has  12 nothing particular to do with the subject of your  13 proposed evidence here?  14 A   None.  15 Q   Okay.  Under periodicals clearly the first article has  16 to do with a lawyer or judge?  17 A   Yes.  18 Q   Okay.  The contribution to "Legal Biography in  19 Canada", who was that in regards to?  20 A   That was on the subject of legal biography.  Again,  21 decrying the lack of interest in the subject by  22 writers and scholars.  23 Q   So that's also concerned with lives of lawyers and  24 judges?  25 A   Legal biography generally, yes.  26 Q   Okay.  "Historic Dissents in the Court of Appeal" has  27 nothing to do with the subject of your proposed  28 evidence here?  2 9 A   No.  30 Q   Nor does "Judges at War"?  31 A   No.  32 Q   Nor I expect on page four the "Hong-Kong Coverup of  33 Bungling and Deceit" in the Toronto Globe & Mail?  34 A   No.  35 Q   And the article about Duff is about a lawyer and a  36 judge?  37 A   The Supreme Court Law Review?  38 Q   Yes.  39 A   Yes, you're right.  40 Q   And "Judicial War" refers to what?  41 A   It's the same subject as the historical dissents that  42 appeared in the Advocate.  Did it come out twice?  I  43 guess perhaps it did.  I must have made a second  44 contribution on the subject.  45 Q   Same subject, different articles?  46 A   Yes.  47 Q   Okay.  What is listed in 1986 as unpublished work 20809  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  "Guilty as Sin" is that what is now "Call in  Pinkertons"?  No.  Those are different projects?  No.  It languishs unpublished still.  What's "Call in Pinkertons" about?  That's my new work I'm now engaged on.  And —  It's about the work that Pinkerton's Detective Agency  did in British Columbia in the years 1895 to 1913.  And it was engaged by the Province of British  Columbia, and specifically by the British Columbia  Police Force with various cases and investigations  they did in the province.  This is something you started, I take it, after 1986?  I started about six months ago.  You referred in your direct evidence on qualifications  to a publication the title of which began "Indian Land  Claims" and was June, 1987?  Yes.  My lord, that's something I have not had notice  existed, and I would ask my friends to produce it to  me.  :  My lord, I'm sure this went to my friend sometime  ago, but I'm going to look into that.  I don't know  that we have any of the references.  Is it in the CV?  It's in the new one, my lord.  It's not in the old  one that I had.  I dare say my friend may be correct,  but in the file I had this was all there was.  Yes.  All right.  Well, I notice it's four o'clock  anyway.  Is it a convenient time to adjourn or --  :  Well, if my friend has any further requests I  should be aware of them.  It's not something I'm demanding at this point be  produced, but I would like to put my friends on notice  that in the material which was disclosed to me on  Wednesday the witness makes reference to his research  notes compiled when doing Trap-Line Outlaw, and I'm  not at this point asking for production of those, but  I would like to put my friends on notice depending on  the course of the cross-examination I may wish to and  ask them to make whatever arrangements are appropriate  to make that available if necessary.  All right.  Are we under any pressure to start early  or anything on Monday?  :  No, I think not.  We're running marginally behind  1  2  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  1  11  12  1  13  14  15  Q  16  A  17  Q  18  19  i  20  A  21  MR.  ADAMS:  22  23  ]  24  MR.  GOLDIE  25  26  27  THE  COURT:  28  MR.  ADAMS:  29  30  31  THE  COURT:  32  33  MR.  GOLDIE  34  35  MR.  ADAMS:  36  37  38  i  39  40  41  42  43  44  45  THE  COURT:  46  47  MR.  GOLDIE 20810  D.R. Williams (for Province)  Cross-exam by Mr. Adams  On Qualifications  1 time.  But I want to feel free to discuss with Mr.  2 Williams the requests that my friend has made despite  3 the fact that my friend hasn't finished his  4 cross-examination on qualifications.  5 THE COURT:  All right.  It seems to me that's something that  6 must be done, is it not?  7 MR. ADAMS:  I have no difficulty with that, my lord.  8 THE COURT:  All right.  Ten o'clock Monday morning.  Thank you.  9 THE REGISTRAR:  Order in court.  Court stands adjourned until  10 ten o'clock on Monday.  11  12       (PROCEEDINGS ADJOURNED TO OCTOBER 16, 1989 AT 10:00 a.m.)  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceedings herein to the best of my  17 skill and ability.  18  19  20  21 Peri McHale, Official Reporter  22 UNITED REPORTING SERVICE LTD.  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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