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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-19] British Columbia. Supreme Court Oct 19, 1989

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 21085  D.R. Williams (for Province)  In chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  OCTOBER 19, 1989  VANCOUVER, B.C.  THE REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, this 19th day of October, 1989.  In the  matter of Delgamuukw versus Her Majesty the Queen at  bar, My Lord.  May I remind you, sir, you are still under oath.  THE WITNESS:  Yes.  THE REGISTRAR:  And would you state your name for the record  please.  THE WITNESS:  David Ricardo Williams.  THE REGISTRAR:  Thank you, sir.  THE COURT:  Mr. Goldie.  MR. GOLDIE:  My Lord, I have transcript pages for tab 8A.  THE COURT:  Thank you.  Is that volume 2?  MR. GOLDIE:  That's volume 1, My Lord.  THE COURT:  8A.  MR. GOLDIE:  8A.  THE COURT:  I'm sorry — no, this is not volume 1, Madam  Registrar.  All your 8's looks like 9's, Mr. Goldie.  MR. GOLDIE:  Yes, I'm afraid they do.  But it is 8A.  THE COURT:  Not to be confused with 6's and 7's.  MR. GOLDIE:  And 52C, which is volume 3.  THE COURT:  Thank you.  MR. GOLDIE:  And 109C in volume 5.  THE REGISTRAR: 109C.  MR. GOLDIE:  C, yes.  THE COURT:  Thank you.  MR. GOLDIE:  Q   Mr. Williams, if you could have the index in front of  you, and if necessary volumes 4 and 5.  I want to  determine which of the documents you regard as  official correspondence and the exceptions to my  question with respect to volume 4 in the index  beginning at page 10.  And these are, as I say, the  exceptions to the question I will put to you with  respect to official correspondence.  At 57, 58, 59,  60A, 60B, 60C, 60F, 61F, 67A, 69, 75B.  Just a moment, Mr. Goldie, please.  A  Q  A  Q  A  Q  Sorry.  75 what was it?  75B as in Baker.  Yes.  76E, 78, 79A, 79C, 84, 86, the enclosure with 91A.  92, 93 and 96D.  I'm sorry -- yes, the second 96D.  There are two under the same tab, and it's the  At 21086  D.R. Williams (for Province)  In chief by Mr. Goldie  1 newspaper article.  2 A   Yes.  3 Q   With those exceptions, are the documents found in  4 volume 4, letters, entries, memoranda made by the  5 government officials in the course of their duties as  6 far as you can determine?  7 A   Yes, Mr. Goldie, except that I would not exclude from  8 that category the enclosure with 91A.  That was an  9 enclosure by Vowell.  It was the subject of his  10 letter.  11 Q   I see.  Yes.  All right.  I was thinking of the nature  12 of the letter itself, but -- all right.  13 MR. ADAMS:  And was 94 mentioned?  14 MR. GOLDIE:  If it wasn't, it should be.  15 MR. ADAMS:  Okay.  16 MR. GOLDIE:  I have it on my list, and if I didn't mention it, I  17 should have mentioned it.  18 MR. FREY:  There are two number 86's, and I wonder if it applies  19 to both.  The second number --  20 MR. GOLDIE:  Yes, you are right.  It's only the first 86, the  21 newspaper article.  Thank you.  22 Q   The second document under that tab I put in the  23 classification of official correspondence.  24 A   Yes.  25 Q   Then with respect to volume 5, beginning with the  26 index page 15, document 99B, 103A.  Over on the next  27 page there are two newspaper articles under that tab,  28 both of them.  29 A   Yes.  30 Q   And 103B, 103C, 104A, 104B, 104C, 104D, 104E, 109B,  31 109C, 109F, 110A, HOB, 111B?  32 A   I'm sorry --  33 Q   111B.  34 A   Yes, right.  35 Q   112A, 114C and 114D.  With those exceptions, are the  36 documents found in volume 5, reports of memoranda,  37 entries made by government officials to or from their  38 superiors in the course of their duties?  39 A   Yes, except that I don't know that -- I at least would  40 exclude 103B.  41 Q   103B is?  42 A   The letter from then Superintendent of Police to  43 the -- to Bowser, who is the Attorney General, I  44 think, at the time.  45 Q   Yes, I think you are correct.  46 A  And nor I think would I at least exclude items 114C  47 and 114D.  They were certainly related to government 21087  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 business.  2 Q   Yes, I agree with you there on government business.  I  3 was putting them in the category of reports to or from  4 superiors and inferiors in the course of business.  5 A   Yes.  6 Q   Mr. Williams, subject to the objections with respect  7 to the summary of your opinion evidence marked for  8 identification at this point Exhibit 1173, are the  9 conclusions which you have set out on pages 1 and 2,  10 your opinions with respect to the evidence you have  11 given?  12 A   Yes.  13 MR. GOLDIE:  My Lord, I tender — I formally tender Exhibit 1173  14 as an exhibit, subject to the objections that have  15 been made.  16 THE COURT:  Yes.  I am trying to see what note I made.  1173.  17 MR. GOLDIE:  Yes, that's the summary.  I think it was tendered  18 at the beginning.  19 THE COURT:  Oh, yes, that was correct.  It was tendered the  20 first day, was it?  21 MR. GOLDIE:  Yes.  22 THE COURT:  Yes, all right.  23 THE REGISTRAR:  Exhibit 1173, My Lord.  24  25 (EXHIBIT NO. 1173 - SUMMARY OF OPINION  26 REPORT OF DR. WILLIAMS)  27  2 8 THE COURT:  Mr. Frey?  29 MR. FREY: No cross-examination.  3 0 THE COURT:  Thank you.  Mr. Adams.  31 MR. ADAMS:  Thank you, My Lord.  32  33 CROSS-EXAMINATION BY MR. ADAMS:  34  35 Q   Mr. Williams, let me first try to save us all a couple  36 of hours, and ask you whether you stand by the  37 evidence that you gave in your cross-examination on  38 qualifications?  39 A   Yes.  4 0 Q   Okay.  And you adopt that evidence?  41 A   If it's necessary for me to adopt it, yes, I gave it.  42 Q   Yes.  Now, I want to ask you first some questions in  43 general about doing legal historical research.  And  44 that's what you were doing for the purposes of  45 rendering your opinion here?  46 A   Yes.  47 Q   Okay.  Now, one of the things that you know in 210?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 approaching legal historical research, is that there  2 will be a wide variety of potential sources?  3 A   Yes.  4 Q   Okay.  And you are aware that in legal historical  5 research in general, and in your subject in  6 particular, there are often conflicts in the sources?  7 A   Yes.  8 Q   Okay.  And those conflicts make it necessary to  9 evaluate the sources you are using, correct?  10 A   Yes.  11 Q   Okay.  Would you explain, please, how you go about  12 evaluating the sources that you have used?  On what  13 dimensions?  According to what criteria do you decide  14 whether you can or cannot rely on a source when you  15 are doing legal historical research?  16 A   I think essentially it depends upon judgment, based  17 upon experience, and based in part also upon  18 knowledge, perhaps derived from experience about the  19 people, the persons responsible for the sources being  2 0 examined.  21 Q   And what do you need to know about the people in order  22 to evaluate them?  23 A  Whether they are trustworthy, whether they are  24 observant, whether they have an axe to grind.  Also  25 what period.  2 6    THE COURT:  What?  27 THE WITNESS:  What period, My Lord, period of time in which they  28 are operating.  2 9    MR. ADAMS:  30 Q   Why is the period significant?  31 A  Well, this is maybe more true of newspapers than of  32 documents, contemporary documents.  Newspaper  33 reporting in the late -- the last half century of the  34 last 50 years of the last century was pretty strident  35 sometimes, and politicized often, and one has to  36 certainly take that into account in reading newspaper  37 accounts in the last century.  38 Q   Anything else that you need to know about the people,  39 your sources, in order to evaluate them?  40 A   I think it's helpful to have the knowledge and the  41 background of the people.  I think it's helpful in  42 particular in reflecting on Mr. Loring's  43 correspondence and what he is attempting to say.  44 Q   And I think you observed already it's sometimes quite  45 obscure what he in particular is attempting to say?  46 A   Yes.  47 Q   Anything else? 21089  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  A  2  3  4  5  6  7  8  9  Q  10  11  12  13  14  15  A  16  17  Q  18  19  20  A  21  Q  22  23  24  A  25  Q  26  27  28  29  A  30  31  Q  32  33  34  A  35  Q  36  37  38  39  MR. GOLDI  40  41  42  43  MR. ADAMS  44  THE COURT  45  MR. ADAMS  46  Q  47  I think the whole process of legal historical  research, as with any other research project, depends  upon the degree of application that one brings to the  task.  One examines the sources, one reads as widely  as one can as what time will allow in a particular  field.  One finds conflicting views, of course, one  finds conflicting documents.  One looks at all of  these, and one weighs them.  One of the things you haven't mentioned, that I  suggest to you is an important dimension of this  problem, is the extent to which the people who are  writing the documents you are relying on are  knowledgeable about the societies they are writing  about.  That's important, isn't it?  I think I said, Mr. Adams, that the object -- how  observant the source was.  You will agree with me that you can be highly  observant, but not be knowledgeable about what you are  observing?  I'm sure that could be the case, yes.  So that the knowledgeability of the source is a  distinct dimension from their capacity of observation,  is it not?  I would agree.  Did you put your mind as you were evaluating your  sources, do you as a general matter in doing legal  historical research, to the knowledge that your  sources have of the societies they are writing about?  Well now, you are asking about knowledge of societies.  I am not sure just what you mean by that.  Well, let me give you an example.  If somebody is  going to write about Indians, what Indians are doing,  what Indians are thinking.  Uh-huh.  Then the degree of knowledge or the lack of knowledge  of your source in who the Indians are, how they are  socially organized, could be a significant constraint  on the reliability of the source, could it not?  :  I'm sorry, you mean if the person is writing about  the society, how they are organized?  My friend's  question assumes the subject matter of the writing of  the person, if I followed him correctly.  Yes, I'll try to make the question clearer, My Lord.  Thank you.  Mr. Williams, if your source is writing about Indians,  it's so, is it not, that the degree of their knowledge 21090  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 of Indian societies, Indian cultures about which they  2 are writing, is a significant dimension in assessing  3 the reliability of the source?  4 A   I was not asked to, if I may use the phrase, to embark  5 upon a sociological examination.  I was asked to  6 investigate documentary evidence.  This is what I did.  7 Now, I agree any -- any information that bears  8 generally upon a question no doubt has some value.  I  9 am not so sure that in the particular type of research  10 that I was doing, what I would call sociological  11 considerations or ethnological considerations, had  12 much application.  13 Q   So didn't make any difference to you whether your  14 sources knew something about the people they were  15 writing about or not?  16 A   Oh, yes.  As I said, one has to evaluate the worth of  17 what one reads.  18 Q   And that's an important dimension of that evaluation,  19 is it not, the knowledgeability of the author about  20 the society they are writing?  21 A  Well, if you mean, Mr. Adams, that I felt it was  22 necessary in attaching worth to some source to make a  23 determination whether that person had a complete  24 ethnological appreciation of the Indian communties  25 within the claim area, then I confess I did not -- I  26 did not do that.  27 Q   Nor did you, I suggest to you, make any examination at  28 all of any of your sources with that in mind?  29 MR. GOLDIE:  My Lord, I still have difficulty when my friend  30 says "with that in mind".  There is an unspoken  31 assumption of what the person who authored the  32 document was writing about.  If the person writing the  33 document says A shot B, that's one thing.  If the  34 person writing the document says I think A is  35 attempting to --  36 THE COURT: Thinks he was justified.  37 MR. GOLDIE:  Yes, exactly.  There is a — I'm having difficulty  38 with what is the assumption that is behind the  39 question about the evaluation.  40 MR. ADAMS:  Well, My Lord, there isn't an assumption of the kind  41 my friend implies.  The question is simply if you are  42 going to write about documents, if you are going to  43 use documents that write about Indians, do you not  44 need to know what the person writing knew about the  45 Indians.  46 THE COURT:  I suppose you would recognize there is a  47 distinction, as Mr. Goldie suggests, if you are 21091  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  Q  A  talking about a specific act, describing a specific  act without attributing ambiance and other features to  it.  MR. ADAMS:  Well, if it's at the level of my friend's example,  that A shot B, yes.  If the statement is A murdered B,  we may be into an interpretive problem.  I don't  accept that it's a simple dichotomy either.   It's  something anyone can observe, or it's something --  Well, I think Mr. Goldie has made his views on this  question known, and that's a matter the witness can  take into account and can factor into his answers, if  he thinks it's appropriate.  And you may proceed.  Do you recall where we were?  I would appreciate it if you would rephrase the  question, Mr. Adams.  I was urging on you that if you are going to rely on  documents where non-Indians are writing about Indians,  it would be at least helpful to know what the writer  knew about Indians.  I agree it would be helpful, yes.  And you agree with me that you didn't give any  particular attention to that dimension of the problem  of relying on documentary sources?  That's not so.  For example, in considering reports by  Fitzstubbs, he had a long connection with Indian --  with a -- with Indians before he came to Hazelton.  Yes.  How long had he been in Hazelton to your  knowledge?  He came there in 1888.  Yes.  But he had been in the Omineca.  And is it your view --  In the 1870's.  And it's -- I -- to take him as an  example, I think he was knowledgeable.  I attach  significance to what he says.  About whom was he knowledgeable?  He had lived in the north country for 16 years before  he came to Hazelton.  Q   And is it your view that people in the north country,  Indian people in the north country are pretty much the  same from place to place?  A   No.  I was speaking about Mr. Fitzstubbs, not about --  well, I'm sorry, I misunderstood you.  I don't think  there is a great deal of difference amongst the  northern people in that respect.  But in any case,  many of the people that he was dealing with in the  A  Q  A  A  Q  A  Q  A  Q  A 21092  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Omineca came from Skeena.  The Omineca mines were not  2 far away from the Skeena.  3 Q   Is that the only example that comes to mind of a  4 person where you turned your mind to what they might  5 know about the subject of their writing?  6 A   No.  If you want me to give my -- my personal  7 evaluation of the individuals as source material, I  8 will do so, but he's a notable example.  9 Q   Well, perhaps when we come to some specific examples,  10 I can give you that opportunity.  You would agree with  11 me that in doing legal historical research, it's  12 advisable to consult sources as widely as possible?  13 A   Yes, in general I would agree, so far as the time  14 allows, of course.  Anything is helpful.  15 Q   And you would accept, I take it, that in doing legal  16 historical research, it's important not to ignore  17 documentary materials that would contradict your  18 working hypothesis?  19 A   I agree one takes them into account.  2 0 Q   And you do that when you are conducting legal  21 historical research?  22 A   Certainly.  23 Q   And you did that in your preparation for this case?  24 A   Yes.  25 Q   And you would agree with me that it's important to  26 approach both your subject and the documentary  27 evidence without preconceived conclusions?  28 A   Quite, with objectivity, if one couldn't manage it.  29 Q   And you would do that in your enterprises in legal  30 historical research?  31 A   I tried to.  32 Q   And you did it in your preparation for this case?  33 A   So far as I was able.  34 Q   What were the limitations on your ability?  35 A  Well, so far as -- as a researcher.  Within my  36 capacity as a researcher was able to do is what I  37 meant.  38 Q   And you would agree with me that in communicating the  39 results of your legal historical researches to others,  40 that it's important to be able to relate factual  41 assertions and opinions to the sources from which they  42 are derived?  43 A   Yes.  44 Q   Because if you don't know where a statement comes  45 from, no one else can verify it?  46 A   That's right.  47 Q   All right.  And is that something that you do in 21093  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 general in your legal historical research and your  2 writings as a result from it?  3 A   I try to do the best I can, but we are not all  4 infallible.  5 Q   And is that something you try to do the best you could  6 in preparing for this case?  7 A  Absolutely.  8 Q   And in rendering your opinion for this case?  9 A   Yes.  10 Q   Okay.  You would agree with me when you are relying  11 exclusively on documents, and your opinions are  12 founded on your reading of the documents, that it's  13 important to get the factual details contained in the  14 documents correct?  15 A   Yes.  16 Q   And is that something that you do in general in your  17 legal historical research?  18 A   One tries to.  19 Q   And do you think you succeed?  20 A   That's for others to say, I guess.  21 Q   What about —  22 A   I am satisfied with the adequacy of the research that  23 I did here, but others may disagree.  24 Q   And you will agree with me, I think, that it's  25 necessary in this enterprise to read the documents you  26 are relying on carefully?  27 A   Yes.  28 Q   Okay.  And is that something that you have done here?  29 A  Again, one tries to.  30 Q   Now, I have referred a number of times to your book on  31 Begbie, and that is to be found, My Lord, at volume 1  32 of the cross-examination materials, which is now  33 Exhibit 1172, tab 13.  And I don't want to take you  34 there at the moment, Mr. Williams, but is that  35 publication an example of careful legal historical  36 research?  37 A   I believe so.  38 Q   And does it satisfy the various tests and requirements  39 that you and I have reviewed in the past few minutes?  40 A   Yes, as of the time it was written.  There are always  41 new materials that -- research never ends on a  42 particular subject.  There are always new materials  43 that come forward.  One hopes that they won't scuttle  44 the original enterprise.  45 Q   And you don't think that enterprise has been scuttled  46 by new material, do you?  47 A   No, but new materials have come forward. 21094  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   All right.  Have they altered the opinions that you  2 expressed in that publication?  3 A   No, not in the main.  4 Q   Have they at all?  5 A   There are refinements of it.  I don't think I need to  6 go into detail.  There would have been some  7 differences had I been writing the book now instead of  8 11 years ago, 12 years ago.  9 Q   Are you aware of any differences between 11 or 12  10 years ago and today that you consider relevant to the  11 subject of the evidence you have given here?  12 A   No, I don't think so.  There is one, perhaps -- two,  13 perhaps, areas of which I may have gone a bit further  14 had I been writing the book now.  One would have been  15 in connection with the case of Metlakatla in which  16 aboriginal title was involved in 1885, I think it was.  17 I think I would have pursued that further had I been  18 doing the work now.  I had one other in mind a moment  19 ago, but it's gone.  That's one instance.  20 Q   Let me ask you about the Metlakatla example.  You're  21 saying that that's something you would like to  22 research further, if you were doing it today?  23 A   If I was doing the book on Begbie today, yes, I would  24 have spent more time on that.  25 Q   I take it you haven't done that --  26 A   I'm sorry, Mr. Adams, the other one -- it momentarily  27 slipped my mind.  The other one I would have spent  28 more time on would have been his decision in the  29 potlatch case at about the same time.  I guess mainly  30 because of this research project I discovered more  31 materials, which I would like to have had at hand when  32 I was writing 12 years ago.  33 Q   I ask you to confirm for me that you haven't yet done  34 the additional research that you think you now would  35 do if you were rewriting Begbie.  36 A   That's true of every historical work indeed.  There  37 are always new materials.  38 Q   Yes.  What I am getting at is are you now aware of  39 those materials and the contents of them and have  40 formed opinions about them, or is this just an area  41 that you have identified that you would have liked to  42 have pursued?  43 A   It is a -- those are two areas that were I to write a  44 book now, I would spend more time on them, yes.  45 Q   Yes.  I take it you haven't formulated the opinions  46 that would go into those new areas?  That's what I am  47 getting at. 21095  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   That is correct.  Begbie rendered a decision in each  2 of those instances.  3 Q   All right.  Your book on Simon Gunanoot, an extract of  4 which is to be found, My Lord, at Exhibit 1172, tab  5 13.  Is that an example of careful legal historical  6 research?  7 A   Yes.  Much of it or a considerable portion of it was  8 based on interviews as distinct from examination of  9 documents.  Begbie was a much more -- how shall I say  10 this -- sources were almost chiefly documentary with  11 Begbie, but a considerable extent of my book on  12 Gunanoot was based on interviews.  13 Q   Notwithstanding --  14 A   But even there new materials have come up, and I'm not  15 sure whether you have the reprint which was published  16 just last year.  17 Q   Yes.  18 A   You will see that I have made some amendments to the  19 work as first published.  20 Q   Yes, the version that I put in front of you is the  21 1988 version.  22 A   Yes.  23 Q   And that, notwithstanding that it's based in part on  24 interviews, is a product of careful research?  25 A   I believe so.  26 Q   And you stand by the opinions that are expressed in  27 that publication today?  28 A   Yes, that I expressed at that time, yes.  2 9 Q   Now, when did you actually do the amendments to the  30 Gunanoot book?  31 A   Last year.  32 Q   In 1988?  33 A   Yes.  34 Q   After you had completed your report for this case?  35 A   Yes.  36 Q   All right.  So I can expect that anything you learned  37 as a result of your research for this case, would be  38 reflected, if it was relevant, in the amendments?  39 A   You can.  40 Q   Okay.  41 A   In part, not entirely.  No, I think probably all the  42 amendments were due to my research of this case,  43 material which I found incidentally to what I was  44 doing, or incidental to the work.  45 Q   All right.  46 A   By that I mean while researching this matter, I ran  47 across materials which were helpful with the book, but 21096  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 not, perhaps, so much relevance to what I was doing  2 here.  That's what I meant by saying incidental.  3 Q   Yes.  And just to be clear, my question was:  If you  4 had discovered something as a result of your research  5 for this case that was connected in your mind with  6 something you had written about or wished to write  7 about in the Gunanoot book, that research was  8 reflected in the Gunanoot book?  9 A   Yes.  10 Q   All right.  Now, what have been described as your  11 working papers, correspondence and drafts and so on  12 that are excerpted in Exhibit 1172, tabs 1 to 4.  You  13 recall identifying those last Friday?  14 A   I — frankly, I don't, Mr. Adams.  Which are those?  I  15 didn't know the exhibit number.  16 Q   They are in the black volume that says on the spine  17 "Cross-Examination of David Williams", volume 1.  18 A   I don't have that in front of me.  19 Q   Tabs 1 to 4 of that volume.  Those are ones that you  20 identify as correspondence to and from you and in  21 connection with you?  22 A   Oh, I see.  Yes.  23 Q   And my question is simply:  You are aware that in your  24 drafts and your notes there you quote extensively from  25 documents that you are looking at?  26 A   I am sure I did, yes.  27 Q   And my understanding is that your technique for doing  28 this is to read the document into a tape and to  29 transcribe the tape?  30 A   Have it transcribed for me, yes.  31 Q   All right.  And therefore I take it that to the best  32 of your ability and knowledge the quotations from  33 documents contained in those papers are accurate?  34 A   Yes.  35 Q   Okay.  All right.  I want to turn now to your summary  36 of opinion, which is Exhibit 1173.  37 Q   Do you have that in front of you?  38 A   Is that 113 or 112?  39 Q   I believe it's 1173.  40 Q   Now, in light of the various considerations that I  41 have raised with you this morning, is that a careful  42 piece of legal historical research?  43 A   This is an opinion or a report, if you like, which is  44 the product of the research.  45 Q   Okay.  And the research of which it's the product, was  46 careful legal historical research?  47 A   I believe so. 21097  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   And I take it that you are unaware of any significant  2 omissions in that document as to either -- and I  3 shouldn't confine you to that document -- in the  4 sources that have been introduced in evidence through  5 you and in that document, of significant documents or  6 events that bear on the subject you set out to  7 discuss?  8 A  Mr. Adams, I have not disclosed either in the report  9 or in the five volumes of documents every document  10 which I examined.  11 Q   I am aware of that.  12 A   I have examined a great many documents, and not all of  13 them appear.  14 Q   My question was:  Where you are aware of documents or  15 events that are significant in your judgment for your  16 opinions as expressed in this report, one should find  17 reference to them either in the report or in the  18 documents?  19 A   Yes.  What I believe to be the significant ones, yes.  20 Q   Now, significance depends on just what your enterprise  21 was in preparing this opinion, doesn't it?  It has to  22 be significance in relation to your --  23 A   I was asked to do a general survey of documents  24 relating to a particular theme or subject, which is  25 stated at the outset of the report, and after I had  26 been working for roughly a year in doing that survey  27 and giving reports from time to time on what I had  28 found, I was then asked in the fall of 1986 if I was  29 able to offer an opinion on what I had -- on the basis  30 of what I had so far looked at, and --  31 Q   And you were able to do that?  32 A   -- I did so.  And that led to the -- an opinion which  33 I delivered in March of 1987.  But previous to that I  34 had given a very large, what I considered to be an  35 extensive review of sources under various headings or  36 groupings of headings.  37 Q   Yes.  38 A   I think you have seen that.  39 Q   Yes.  And you didn't wait until you were invited in  40 late 1986 to render a formal opinion, to express  41 opinions on the subjects that found their way into  42 your summary, did you?  43 A   I was asked -- it was in September of 1986 if I could  44 formulate an opinion.  45 Q   Yes.  My question was that you had expressed opinions  46 along the same lines well before you were asked to  47 render a formal opinion? 2109?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   I certainly expressed opinions on some aspects of the  2 matter, yes, but I had not been asked to give an  3 opinion overall.  4 Q   All right.  If you look at the cover page of Exhibit  5 1173, your summary of opinion.  6 A   Uh-huh.  7 Q   And that calls itself "Imposition and Acceptance of  8 Law and Order Within the Claim Area".  9 A   Yes.  10 Q   Could you explain to me, please, what you understood  11 "law and order" to be.  12 A   I took that to mean generally the administration of  13 justice according to the judicial system of the -- the  14 judicial system of the country -- of the province.  15 Q   But you didn't begin with confederation, did you?  16 A   No, I didn't.  I began -- there was a judicial system  17 within the colony.  18 Q   Does that change your definition of law and order  19 to --  20 A  Well, I'm sorry, you are quite right, colonial and  21 provincial.  22 Q   And that's your definition of law and order?  23 A  Well, this is what I took to be my task, yes.  24 Q   Okay.  And you agree with me that that by definition  25 excluded you from any consideration of Indian law?  26 A   I was not asked to consider Indian customs or  27 customary law or whatever the phrase might be, you are  28 right.  29 Q   In forming your opinion, did you ever consider  30 anything that you weren't asked to?  31 A   In formulating my opinion?  32 Q   Yes.  Is there anything reflected in Exhibit 1173 that  33 was you saying I think this is important, I am going  34 to disregard the suggestion and instruction, whatever  35 it was, and not to consider it?  36 A  Well, I am not sure that I understand quite what you  37 mean, Mr. Adams.  I was asked to render an opinion in  38 a field which I -- which it was thought I was  39 competent to render an opinion on, and that I have  40 done in this report.  But as part of my ongoing  41 research, which went on for quite a long time, I  42 frequently ran across material which seemed to me to  43 be of interest, and I would pass this on.  But I was  44 not asked to make pronouncements upon various topics,  45 and certainly Indian law was not -- was one that I was  46 not asked to pronounce on.  47 Q   Yes.  Some of the material that you found, you thought 21099  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 was relevant to the subject that you eventually  2 rendered an opinion on, that is imposition of law and  3 order around Indian acceptance or otherwise --  4 A   Yes, like statutes for example.  5 Q   And sometimes that material found its way into your  6 opinion, and sometimes it didn't, correct?  7 A   Yes.  8 Q   And where you were not asked to consider it, whether  9 or not you thought it was relevant to your subject,  10 you didn't?  11 A  Well, again I am not sure that I understand you.  I  12 was never instructed to disregard anything that I ran  13 across.  I -- in the sense that -- I think I may have  14 said in a way I was on a fishing expedition.  If I  15 found something that it seemed to me to be of  16 potential interest, I would pass it on.  It didn't  17 necessarily -- it did not, in fact, necessarily form  18 part of my ultimate opinion.  19 Q   Yes.  And if you were asked to consider it, you did,  20 correct?  21 A   Certainly.  22 Q   And if you were not asked to consider it, you didn't?  23 A   That's right.  I have already given you an instance of  24 of that.  The whole question of Indian reserves, for  25 example, was something that -- the work of the Indian  26 reserve commission was something that I was -- I was  27 not asked to do it.  It was not my field, or  28 potlatching.  But if I ran across material on those  29 subjects, I would pass it on, for what it was worth.  30 Q   And it wasn't your judgment of what it was worth, it  31 was counsel for the provincial attorney's judgment  32 about what it was worth; is that not so?  33 A   In the areas outside the fields of which I have been  34 asked to conduct research, yes.  35 Q   Well, even inside it.  36 A   No.  I was never constrained by counsel in the  37 formulation of my opinion.  38 Q   Was there a law against potlatching?  39 A   There was in the Indian Act in the 1880's.  40 Q   Was the effort to enforce it or otherwise part of the  41 imposition of law and order as you understood it?  42 A   It was certainly -- it was an area which I did not  43 specifically enquire into, but I certainly reported on  44 the attitude of the provincial government towards the  45 potlatch law, yes.  I passed that on.  46 Q   Yes.  47 A   That may have been referred to already in this case. 21100  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 I don't know.  2 Q   You would agree with me that that in your judgment, as  3 a scholar in coming on that material, was that it was  4 relevant to the question of the imposition of law and  5 order?  6 A   I think -- I don't know.  I think it was more  7 attitudinal than anything else.  The provincial  8 government was much less enthusiastic about repressing  9 the potlatch than it was the federal government and  10 the Indian agents.  But the attorney general of the  11 day, it certainly said that.  But I did not take the  12 potlatch law into account in formulating my opinion.  13 That's true.  14 Q   Yes.  That wasn't because you were unaware of material  15 related to it, correct?  You wrote extensively about  16 it in your notes?  17 A   I certainly reported on anything that I found, yes.  18 Q   Now, you have got as far as the potlatch law being a  19 law.  You are aware of that.  And it's within the time  20 period you were considering, correct?  21 A   Uh-huh.  22 Q   And it was a law directed exclusively at Indians, was  23 it not?  24 A   Yes.  25 Q   And your report was going to be about the imposition  26 of law on Indians, correct?  27 A   Yes, the imposition of law -- of law and order within  28 the claim area, and the reaction and response of the  29 Indians to it.  30 Q   Yes.  Then how is it that you decided to make only  31 passing reference in your report to the potlatch law?  32 A  Well, I really can't say how it is, but it's what I  33 did or what I did not do.  34 Q   All right.  There is another word in your title I want  35 to ask you about, and that is "imposition".  What did  36 you understand in formulating your opinion was  37 imposition of law and order as you have defined it?  38 A  Well, one doesn't want to get bogged down in  39 semantics, I don't think.  One could use a variety of  40 words.  That, I think, was the proposition that was  41 given to me.  I don't quarrel with it.  42 Q   What was the proposition that was given to you?  43 A   I was asked to consider the historical evidence  44 relating to the imposition of law and order within the  45 claim area and its acceptance.  46 Q   Yes.  My question is:  How did you know imposition  47 when you saw it in the documents? 21101  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A  Well, I don't know what you mean by that.  I mean,  2 imposition means the creation, formulation by common  3 law or police action or legislation or -- I don't  4 know.  I'm afraid it seems to me -- I'm not trying to  5 argue, Mr. Adams.  It seems to me to be a self-evident  6 term.  Perhaps there is some meaning in there which  7 escapes me.  8 Q   Please understand, I am trying to get at what you  9 meant when you used it.  10 A   I -- what I meant was the existence within the claim  11 area of structures and of law and order, the  12 administration of law by police officers and by  13 judicial officials, and the response of the Indian  14 community to these -- to the law of the land, the law  15 of the province or colony.  16 Q   So let me try to understand this.  Once the structure  17 existed, the provincial police structures, was it your  18 view that law and order had been imposed?  19 A   Part of it.  20 Q   What else?  21 A   The work of judicial officials, administration of  22 mining laws, the functioning of the court system, the  23 apprehension of criminals or accused criminals and the  24 handling of their cases, disposal and the disposition  25 of their cases, the functions of -- functions of rural  26 police officers, all of these things.  Legislation.  27 Q   Okay.  The next word I want to take up with you is  28 "acceptance".  What did you mean by acceptance?  What  29 were you looking for?  30 A   I was asked to consider the reaction -- what was the  31 word, phrase used?  The response, reaction and  32 amenability of the native people within the claim  33 area.  That has translated itself into the shorthand  34 of the word "acceptance".  35 Q   Well, every response wouldn't be acceptance, would it?  36 A   Of course not.  37 Q   And every reaction wouldn't be acceptance?  38 A   No.  But in weighing the totality of the sources, it  39 was my view that there was an acceptance.  40 Q   Yes, I understand that.  When you were looking at  41 documents, how did you know that you were seeing  42 acceptance as opposed to non-acceptance or nothing at  43 all?  4 4 A   I didn't.  45 Q   You didn't?  46 A   But if I thought it was relevant to problem, I noted  47 it, and then reflected on them later. 21102  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   All right.  When you were reflecting on them later,  2 what told you that what you had read represented  3 acceptance by the Indians?  4 A   In the case of an individual document --  5 Q   Yes.  6 A   -- you are speaking of?  7 Q   Yes.  8 A   Not the totality.  9 Q   Well, let's start with an individual document.  10 A  Well, there are a great many of them which I have  11 referred to in the course of my evidence.  12 Q   Yes, I am aware that you have referred to the  13 documents.  My question is:  How could you tell, when  14 you looked at one, that you were seeing what you  15 judged was acceptance?  16 A   I see.  Well, if you mean in the earlier stages of my  17 investigation or --  18 Q   I mean at all.  19 A   — or later.  20 Q   What criteria did you apply to determine whether you  21 were seeing acceptance, non-acceptance or neutrality?  22 A   I was asked to consider the response or the reaction  23 of the native people.  If I saw a document which in  24 some way related to that, I noted it.  25 Q   Yes.  And then how did you distinguish one kind of  26 reaction from another?  27 A   Oh, well, sometimes -- I guess in some instances there  28 would have been opposition amongst the native people  29 to a particular aspect of law, the provincial or  30 colonial law, and in other instances there would be an  31 apparent favourable response to it.  I took these  32 things -- I looked at everything that I could find  33 that bore on that question.  34 Q   You did find instances of opposition, didn't you?  35 A   Yes.  36 Q   What forms did that opposition take in your review of  37 the documentary record?  38 A  Well, there is -- again there is a good deal of  39 evidence that I have given.  In some cases the  40 response was favourable, and in others it was  41 unfavourable, but of the totality, I think there was a  42 favourable response and acceptance of the native  43 people to colonial and provincial administration of  44 justice.  45 Q   My question was:  What forms of opposition did you  46 find in the documentary record?  47 A   Oh, written sometimes.  Certainly there was the threat 21103  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 of -- the threat of physical violence.  I don't need  2 to repeat the incidents.  3 Q   There was some instances of actual violence?  4 A   No, I don't think there was ever any actual  5 violence -- actual violence, in the sense of physical  6 harm as a result of any opposition to -- among the  7 native people to the intrusion of -- or the arrival or  8 intrusion, if you like, of the white people and the  9 white people's law.  10 Q   You found examples of assaults?  11 A   Yes, as ordinary crime.  There were instances, as I  12 mentioned the other day, in which there was  13 intimidation of white persons in 1908 in the series of  14 events, 1908 onward.  Prior to that, if one leaves  15 those out, there were only a handfull of instances in  16 which there were any cases of intimidation of white  17 people by Indians.  18 Q   You recall referring yesterday at page 22 of your  19 summary to what you had earlier given as your opinion  20 of four instances of Indian threatening white men with  21 guns over land squabbles, your term, and you now  22 revised that to 18 such incidents?  23 A   Right.  24 Q   So you are including those as opposition, are you?  25 A   I am including the Kitwanga and Kispiox and Kitwancool  26 affairs of 1909 and 1910 in that figure of 18, yes.  27 Q   Anything else that struck you as a category of  28 opposition in your review of the documentary records?  29 You mentioned writing, and by that you mean such  30 things as petitions and letters?  31 A   Yes.  32 Q   All right.  You mentioned threats.  You have mentioned  33 intimidation?  34 A   Yes.  35 Q   Anything else?  36 A  Well, I don't know how -- there was certainly  37 political, to use the word in the broad term,  38 political protest.  I suppose the first major instance  39 of that would have been the delegation going to Ottawa  40 in 1906 over the Babine fishery affair.  41 Q   What about instances of just not obeying the law?  Is  42 that opposition?  43 A   Of course.  But I did not run across any -- I did not  44 run across any evidence of widespread disobedience or  45 civil disobedience or anything of that sort, or any --  46 very little of it, in fact.  47 Q   Now, there is one other term that recurrs in your 21104  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 report that I would like to ask you about.  Well, let  2 me ask you something else first on the theme of  3 acceptance.  You will agree with me, I take it, that  4 to be able to speak about acceptance by the Indian  5 about anything, you have to infer from the documents  6 what they are thinking, correct?  7 A   No, I don't agree with that.  I was -- I think that  8 was a much broader consideration than I was asked to  9 embark upon.  I was observing -- I was asked to  10 examine historical documents, and to -- from the point  11 of view of action and reaction, observable reaction.  12 I was not asked to enquire into the minds of the  13 Indians in their response to the -- to the law of the  14 land.  15 Q   You wouldn't know, would you, whether their reaction  16 was acceptance or non-acceptance, unless you knew what  17 was behind it?  18 A   One observes what they did and what they said.  19 Q   Yes.  And from that one infers what they thought, does  20 not one?  21 A   One -- on a number of instances that I have spoken of,  22 the Indians themselves have said -- made statements,  23 which to me seem to be acceptance of the rule of the  24 white man in the area.  I have relied on those  25 statements, without seeking to go below the surface of  26 them.  27 Q   Yes, indeed.  And quite apart from what people might  28 be thinking, if you are going to talk about acceptance  29 by Indians of anything, you need to know something  30 about why they are speaking and behaving in certain  31 ways that are reflected in the documents, correct?  32 A   I don't accept that.  To start with, I didn't do it, I  33 didn't enquire and make that sort of enquiry, but I --  34 but I don't think it was necessary in my judgment.  I  35 was prepared to take for granted what the Indians  36 themselves said on various occasions when confronted  37 with the enforcement of law.  38 Q   And from that to get acceptance you must have been  39 drawing inferences, correct?  40 A   I think it's more than inference.  If one of the  41 Indian chiefs told Fitzstubbs and Roycraft that  42 hereafter he was going to do his best to keep the law,  43 I think that's more than inference.  You may think  44 that he was putting them on as an argument, but it's  45 not of inference, it's what he said.  46 Q   So let me see if I can summarize this.  You didn't  47 think it was necessary to know what the Indians were 21105  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 actually thinking, correct?  2 A   I did not -- I was not asked to make that sort of  3 enquiry, and in any case I don't think it is  4 necessary.  5 Q   All right.  And you didn't?  6 A  And I didn't.  7 Q   And you didn't think it was necessary to make an  8 enquiry into why the Indians at various times were  9 speaking in certain ways or writing in certain ways?  10 A   No.  I relied upon their statements as recorded in the  11 documents, and I took that as given.  12 Q   When you saw a statement from Indians reflected in the  13 documents, you took it as a given that that was an  14 accurate statement of their state of mind?  Is that  15 what I understand you to say?  16 A   I took it as an accurate statement of what they said.  17 Q   Yes.  18 A  And one -- one has to assume that the less a person is  19 deceiving or is for ulterior motives making a  20 statement that is not true, I am prepared to accept  21 the statement.  I don't -- I see nothing in here which  22 would lead me to think that the Indians on these  23 various occasions were making duplicit statements.  24 Q   You didn't come across any documents that records  25 statements of Indians that you thought were not true;  26 is that what you're saying?  27 A   That is so.  28 Q   Okay.  And then the final piece of that was that, I  29 take it, you didn't think it was necessary to enquire  30 into why the Indians behaved in certain ways as  31 reflected in the documents?  32 A   If by behaviour in certain ways you are talking about  33 what I may refer to as sociological aspects of their  34 behaviour, no, I did not.  But if one enquires into  35 certain specific types of behaviour or why they did  36 it, I did enquire.  For example, why was there the  37 interference with the pack trade in the Cassiar trail  38 in 1874.  39 Q   And you excluded the sociological mention, I take  40 it -- you also exclude, because you don't refer to it  41 in the cultural dimension?  42 A   That is so.  43 Q   Now, I said I wanted to ask you about one more term,  44 and that recurrs through your report, and you can  45 correct me if I'm wrong.  But in my observation,  46 almost always when you refer to Indian activity in the  47 categories that you have identified this morning as 21106  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 opposition, you call it turmoil.  And what I would  2 like to ask you is what you mean by turmoil, and how  3 you distinguish it from resistance.  4 MR. GOLDIE:  Well, perhaps my friend ought to direct the witness  5 to the instances he is talking about, if the context  6 is going to be important.  7 MR. ADAMS:  My Lord, they are throughout the report.  I am happy  8 to go and find the instances of the occurrence of the  9 word.  10 MR. GOLDIE:  That's fine.  11 MR. GOLDIE:  Page 35.  12 MR. ADAMS:  They start much earlier than that.  13 Q   Let me just ask you while I am looking.  Do you have a  14 general understanding of what you mean when you use  15 the word "turmoil" with reference to Indians in the  16 land claim area in the period you were concerned with?  17 A   Yes, I do.  18 Q   What was that?  19 A  Well, that's -- one can have synonyms for it.  20 Agitation, disturbances, upset, disagreements.  21 Turmoil is a general -- to me, at least as I use it,  22 is simply a general term to describe an unnatural  23 state of agitation in the community, or a state  24 induced by some event.  There is no sinister --  25 nothing -- that's the way I use it.  There is nothing  26 sinister about it.  27 Q   And then the second half of my question was how do you  28 distinguish it from resistance or opposition?  29 A   It sometimes resulted from resistance and opposition.  30 Q   Okay.  I think in the course of your cross-examination  31 on qualifications you already agreed with me that in  32 forming this opinion you made little or no reference  33 to secondary literature.  34 A   I didn't do much reading -- was that the phrase I  35 used?  Did I say little or no?  36 Q   That's my word.  37 A   Okay.  Reflecting on this, one of the books that I did  38 read -- I may have mentioned it -- was Morice's work  39 on the northwest coast Indians.  I read that.  40 Q   Yes.  41 A  And -- but you are right, generally speaking I worked  42 entirely from archival sources.  43 Q   All right.  And just three areas I want to confirm  44 that that's so for it.  Materials on legal history?  45 A   How do you mean materials on legal history?  46 Q   You weren't looking for secondary materials on  47 materials on legal history? 21107  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  A  2  Q  3  A  4  Q  5  A  6  7  8  Q  9  A  10  Q  11  A  12  Q  13  A  14  Q  15  A  16  17  18  19  20  Q  21  22  A  23  Q  24  25  A  26  27  THE COURT  28  MR. ADAMS  29  THE COURT  30  THE REGIS  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  No.  Nor on anthropology?  No.  Nor on geography?  Yes, geography certainly.  Not secondary.  I looked at  maps and consulted maps and -- from time to time,  certainly.  Okay.  But no secondary literature?  I didn't read any literature on it, no.  You didn't conduct any interviews?  Not -- with whom?  With anyone.  Within the claim area you mean?  Yes.  No.  I don't think so, but I spoke to lots of people  over the course of three or four years.  But if you  mean in the sense did I go out to find information  which I used in my report, which was based on  interviews with persons, the answer is no.  Yes.  That's what I am getting at.  Nothing in your  summary is based on interviews that you conducted?  No.  Nor is it based on records of interviews that other  people conducted?  The Barbeau Beynon material is a record of interviews,  which I looked at.  Is it convenient to take the adjournment, Mr. Adams?  Yes, My Lord.  All right.  Thank you.  RAR:  Order in court.  Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED FOR RECESS)  I HEREBY CERTIFY THE FOREGOING TO  BE A TRUE AND ACCURATE TRANSCRIPT  OF THE PROCEEDINGS HEREIN TO THE  BEST OF  MY SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 2110?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK)  THE REGISTRAR:  THE COURT  MR. ADAMS  Q  MR.  MR.  MR.  Mr.  Order in court.  Adams.  My lord.  Mr. Williams, just to pick up a couple of  points that came up before the break, you referred to  reading a book of Father Morice's, and I just wanted  to ask you which book that was?  A   That was "The History of the Northwest" — I forgot  the -- "History of the Northwest Indians" was it?  "The Indians of Northwest British Columbia."  Q   And then you'd referred briefly to the Barbeau-Beynon  material.  Can you recall that?  A   Yes.  Q   All right.  Your sources as listed with your opinion  somewhere in Exhibit 1173 don't refer to Barbeau-  Beynon, do they?  A   That's right.  I hadn't read the material at the time.  Q   All right.  How did that material come to your  attention?  A   It was -- it showed up on a document list of Dr.  Galois .  Q   Was that the first you knew of the existence of that  material?  A   It was not the first I knew of its existence, but it  was the first time I read it.  Q   All right.  You had never looked at Barbeau-Beynon  before?  A   I had not looked at Barbeau-Beynon, no, until  subsequent to the preparation of my March report.  Q   So when would you first have become aware of its  existence?  A   Oh, I can't say when I first became aware of its  existence, Mr. Adams, but I didn't read it until  subsequent to March of '87.  Q   I wonder if you could look at the black binder, the  cross-examination binder, Volume 1 at tab 13, please.  That's Exhibit 1172, my lord.  And if you turn to page  174, which is the second last page.  A   Yes.  Q   And if you look under Primary Sources, item J.  A   Yes.  ADAMS:  This Additional Manuscript 2101 (Barbeau) item  B.f.90.17.  GOLDIE:  Where are you reading from?  ADAMS: 21109  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q It's item J.  2 A Oh, yes.  3 Q In the Primary Sources.  4 A Yes, yes.  5 Q That was something you referred to in doing the  6 Gunanoot book?  7 A In the revision of it, yes, the reprint.  8 Q Only in the revision?  9 A Yes.  10 Q Was that -- did that come to your attention as part of  11 your work on this case?  12 A Yes.  13 Q All right.  And how much of the Barbeau-Beynon  14 material did you review?  15 A I reviewed the portions of it that were disclosed in  16 Dr. Galois' document statement.  17 Q All right.  And that included the interview with Anna  18 Campbell that you referred to --  19 A Yes.  20 Q -- in your evidence yesterday?  21 A Yes.  22 Q And are you familiar with who Barbeau was?  23 A Generally, yes.  24 Q Who was he?  25 A He was an anthropologist, Canadian anthropologist who  26 made a study of the Indians of the Pacific Northwest.  27 Q And what about Mr. Beynon?  28 A Beynon was a -- I suppose one would describe him as a  29 field man, I guess.  He was the man who I understand  30 conducted most of the -- in fact, conducted most of  31 the interviews, at least the ones that I read.  He was  32 associated with Barbeau.  33 Q Was he an anthropologist?  34 A I don't think Beynon was an anthropologist, but I am  35 subject to correction on that.  I think he was a  36 layman, but a talented one obviously.  37 Q Do you know where he was from?  38 A I -- I think he was himself of Indian ancestry.  3 9 Q From?  4 0 A I don't know.  41 Q You don't know?  42 A No.  43 Q Okay.  Now, you referred a number of times in your  44 evidence in chief and today to doing further research  45 after your March 1987 opinion was rendered?  46 A Yes.  47 Q And I want to ask you first of all what was the nature 21110  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 of that further research?  2 A  Virtually the same as the work which I had done up to  3 that date, except that I -- I read, I think, virtually  4 all of the documents that were disclosed on Dr.  5 Galois' original list.  I was asked to look at those,  6 and I was glad to do so.  But I did -- quite apart  7 from that, I did further research of my own.  8 Q   So I take it that anything that was reflected on Dr.  9 Galois' list that you considered significant to your  10 theme will either be in your document collection or  11 will have been referred to in your evidence?  12 A   Not necessarily referred to in my evidence or indeed  13 in my -- or in the documents, but certainly weighed by  14 me.  15 Q   But not in any fashion that anyone else could read  16 about?  17 A   Oh, yes.  Some of the material disclosed by him I have  18 myself used.  19 Q   Yes.  My question was you had said not necessarily  20 reflected in your evidence and not necessarily  21 reflected in the documents that you have collected?  22 A   Yes.  By that I mean that I -- some of -- many, in  23 fact, of the documents he disclosed which I read I  24 felt to be of no relevance to what I was doing or if  25 relevant were of insufficient weight for me to take  26 them into account.  I'm not castigating his work, mark  27 you, I'm just saying that in my view some of the  28 documents which he disclosed which I read I felt not  29 to be relevant or if relevant were not helpful.  30 Q   All right.  Have you read Dr. Galois' opinion report  31 in these proceedings?  32 A   Is this the one that has been filed as an exhibit?  33 Q   Yes.  34 A   Yes, I have.  35 Q   All right.  And have you read the transcript of his  36 evidence at this trial?  37 A   No.  38 Q   Have you read any part of it?  39 A   None.  Nor did I hear any of it.  40 Q   Okay.  You refer in some of your correspondence to  41 something you call Fielding material?  42 A   Yes.  43 Q   I wonder if you could tell me what that is, please?  44 A   That -- Mr. Fielding was a former employee of the  45 provincial government who I understand was engaged to  46 do research in connection with this case, and he  47 worked, as I understand it, primarily on 21111  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 correspondence and documents with -- in the office of  2 the lands department and possibly -- and I think also  3 in the mines department, but as I under -- as far as I  4 was concerned, his -- principally I think in the lands  5 department.  He collected a considerable body of  6 documents, and these were made available to me.  7 Q   And are they incorporated into your documents here and  8 in your opinion so far as they -- as you found them  9 relevant?  10 A   Some.  I can't say numerically how many, but certainly  11 I -- some.  12 Q   The documents that Mr. Fielding had collected, are you  13 aware of the source of those documents?  14 A   I believe they were either from the chief commissioner  15 of lands and works in the colonial days or the public  16 works department -- or lands department rather in the  17 provincial period.  18 Q   There is reference in the correspondence to a person  19 named Leslie Kurz?  20 A   Yes.  21 Q   Is that someone that you know?  22 A   I have met her.  23 Q   Who is she?  24 A   She again, I believe, is a researcher engaged by the  25 provincial Attorney-General.  26 Q   And what part, if any, did she play in the collection  27 of your documents?  2 8 A   None.  29 Q   What was —  30 A   Just hold on just a minute.  I -- when I say none,  31 I -- she amassed a collection of documents which I  32 read or certainly looked -- read indeed, but I don't  33 think I have -- I don't think I have -- excuse me --  34 included in any of my document lists any material  35 which she had collected.  36 Q   What was the nature of the materials she collected?  37 A  My -- my recollection is not clear on this.  I think  38 she was working with the -- with the Indian -- Indian  39 department material, department of -- well, Department  40 of Interior, then Department of Indian Affairs, I  41 think.  42 Q   And are you aware from what source?  43 A  Mr. Adams, I'd only be guessing at this stage.  I have  44 her volumes here with me.  If you want me to look at  45 them, I can.  46 Q   If I understand your evidence, it was that you didn't  47 include any of that material, in any event, in your 21112  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  document collection nor refer to it in your opinion  report?  A   I don't think I did.  Q   And why was that?  A   Because I -- I cannot say at this moment why.  I would  have to look at her material to give you a precise  answer, but the fact is I did not use it.  There --  there was -- there was some material in her -- there  was -- I recall that there was in her material some  items which I myself already had.  Q   Yes.  A   In one or two instances.  The other material I did not  use.  Q   Was that because it was irrelevant to your subject?  A   I don't -- I'm not saying that it was irrelevant.  I'm  sorry, I misunderstood you.  I did not feel it was  relevant to my inquiries.  It may very well have been  relevant to other issues.  MR. ADAMS:  My lord, if that material is available in court, I  would ask for its production and an opportunity to  inspect it.  MR. GOLDIE:  Well, that will be subject to my examination of it,  my lord.  There may be privileged material in it.  THE COURT:  Well, subject to privilege.  Mr. Williams has  offered it to Mr. Adams, and subject to that I would  certainly not stand in the way of that kind of offer  of acceptance.  MR.  ADAMS  Q  A  Q  A  Q  A  Mr. Williams, there's another name that comes up in  your working papers, and that is Mary Jane Jones?  Yes.  Who's she?  Mary Jane Jones is a member of the Ontario bar and a  skilled researcher in legal history who has, as I  understand it, been working in the national archives  principally in Ottawa for quite a long time in  connection with this case on instructions from the  provincial Attorney-General.  And what part did she play in finding or making  available documents to you?  Well, she and I have exchanged correspondence.  We  have exchanged documents with each other.  She's --  she might herself disclaim any description as a legal  historian, but I think that's what she is, and her  interests and mine overlap certainly.  And she has  worked extensively on the RG10 material in Ottawa but  in other areas as well.  Departmental records, I 21113  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 believe.  2 Q   And did you --  3 A   But I -- Mr. Adams, I have not been in -- you know --  4 frequent contact with Mary Jane Jones, and though  5 I've -- I've met her on various occasions and  6 certainly have corresponded with her, I myself do not  7 have exact knowledge of the extent of her researches.  8 Q   The time period covered by your opinion summary I  9 understand to be 1859 to approximately 1920; is that  10 correct?  11 A   No, I constricted it -- well, yes, I -- essentially  12 pre-war, pre-first war, but I did look at some  13 material as late as 1919, and, in fact, there was a  14 letter introduced yesterday from Loring in 1919.  15 Q   Yes.  And you certainly -- from my inspection of your  16 working papers, you fairly routinely used 1919, 1920  17 as cut-off dates for reviewing various collections of  18 material.  Do you recall that?  19 A   Yes.  2 0 Q   All right.  And you do observe in your summary at the  21 bottom of page 3 that the greater part of your  22 research was into the pre-1900 period?  23 A   Yes.  24 Q   Are you able to put a very rough time on that as to  25 what proportion of your research was 1859 to 1900 and  26 what period was in the 1900s after 1900?  27 A  Mr. Adams, I -- if you really want to know, I would  28 prefer to be given an opportunity to look at my  29 material or my -- at least my report so I could give  30 you some reasonable estimate of percentage.  But what  31 I have said in the report is true, that the larger  32 volume of work which I did related to pre-1900.  33 Q   Yes.  Would it have been a much greater part, without  34 trying to pin you to a percentage?  35 A   Quantitatively I would say yes, probably much greater,  36 but I don't want to be stuck with that, Mr. Adams, if  37 you'll forgive me.  It's -- certainly the larger,  38 definitely the larger part was pre-1900.  I -- I -- I  39 looked very carefully at events until 1910, 1912, the  40 outbreak of the war in fact.  I read a good deal of  41 material up to that point.  My interest, I confess,  42 petered out somewhat or I felt it was not necessary to  43 go much beyond 1914.  And I don't want you to think  44 that I disregarded material after 1900, but certainly  45 it was -- in volume it was less than that before it.  46 Q   All right.  And I take it you satisfied yourself that  47 none of the post-1900 material you looked at called 21114  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  A  3  4  Q  5  A  6  7  8  9  10  Q  11  12  13  14  A  15  Q  16  17  18  19  A  20  Q  21  22  A  23  24  25  26  Q  27  A  28  Q  29  A  30  Q  31  32  33  A  34  Q  35  36  37  38  39  A  40  Q  41  42  43  A  44  Q  45  46  A   '  47    ]  MR. GOLDIE  your conclusions in your summary into question?  No, I relied upon it in forming my opinion.  The post-  1900 material?  Yes.  Oh, definitely I relied upon it.  I mean, the events  of 1908 and 1909, 1910, 1906 of course.  Lots of  things were happening after 1900, lots of things  happening, all of which I looked at and reflected  upon.  All right.  And you recognized in writing your  summary, did you not, that assertions of Indian title  or aboriginal rights were relevant to the acceptance  or non-acceptance of law and order as you defined it?  Yes.  So one of the things you were looking for in your  review of the documentary record so far as you  reviewed it was assertions of Indian title or  aboriginal rights?  Yes.  Okay.  And you understand those to be equivalent  terms, do you not?  I -- Indian title I think is a less exact term than  aboriginal right, although even aboriginal rights is  certainly a matter of discussion, the definition of  it.  But they're often used interchangeably, yes.  And you use them interchangeably?  Yes.  Including in your published writing?  Yes.  And assertions of Indian title or aboriginal rights  were in the period you were considering part of the  pattern of Indian-white relations, were they not?  Yes.  Okay.  And in that connection I take it you looked in  the portion of the documentary record that you  examined for specific assertions by Indian residents  of the land claim territory that they either owned or  had jurisdiction over that territory?  Yes.  Okay.  In that same review what was the earliest  specific assertion you found that asserted white  jurisdiction and denied Indian jurisdiction?  That asserted white jurisdiction?  Yes.  That represented, as I understand it, the first  imposition of law and order?  Well, I suppose colonial ordinances.  Well, my lord, I'm concerned about that question 21115  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  because it has two things in it, asserted jurisdiction  and denied Indian jurisdiction.  I don't think the  witness has said anything about Indian jurisdiction.  MR. ADAMS:  Fair enough, my lord.  I'll ask it as two questions.  Let me ask you again then, and that was what's the  earliest specific assertion you found in the documents  asserting white jurisdiction in the land claim  territory?  THE COURT:  I have trouble with that question, Mr. Adams.  THE WITNESS:  I do too, my lord.  THE COURT:  I'm not sure whether you are intending it to be  answered by reference to specific matters to the  exclusion of theories of sovereignty and that sort of  thing that may exist in English common law.  MR. ADAMS:  All right.  I think I can solve that problem, my  lord.  THE COURT:  Thank you.  MR. ADAMS:  My question, Mr. Williams, is directed at occasions  on which you find government officials asserting to  Indians in the land claim territory that they have  jurisdiction over that territory.  They?  They the white government officials.  Well —  You mean the authority they represent, of course?  MR.  MR.  MR.  THE  MR.  GOLDIE  ADAMS:  GOLDIE  COURT:  ADAMS:  Q  A  A  Q  A  Yes.  Well, I suppose the 1872 affair arising out of the  Kitseguecla fire would have to be among the earliest.  I'd have to reflect on -- you were speaking of  specific occasions when some white functionary said to  a group of Indians:  "We are the law"?  This sort of  thing, is this what you're talking about?  Yes.  And the reason -- I asked first to have you  confirm that you had been looking for specific  assertions by Indian residents that they owned or had  jurisdiction over the territory.  Yes, I had that in mind.  And this is the mirror of that question from the  other -- coming from the other direction.  Yes.  Well, 1872 certainly was an instance when the  lieutenant-governor and the Attorney-General  proclaimed the law.  Prior to that time there were  actions by government officials which, in my view, if  taken -- looked at objectively indicate an assertion  of white jurisdiction, but I don't know whether  that -- whether I'm straying into a legal matter on 21116  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  Q  3  4  5  6  7  8  A  9  10  Q  11  A  12  Q  13  A  14  15  16  17  MR.  ADAMS  18  19  THE  COURT  20  MR.  ADAMS  21  Q  22  A  23  24  25  26  Q  27  A  28  MR.  ADAMS  29  THE  COURT  30  THE  WITNE  31  MR.  ADAMS  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  40  41  42  A  43  Q  44  45  46  47  A  that issue but -- on that point rather.  Okay.  And the second half of my question was from  your examination of the record what's the -- and maybe  it's the same time -- what's the first instance you  recall a specific denial on the part of representatives of the colonial or provincial government or the  federal government of Indian jurisdiction?  The first denial by the -- by the colonial government  or the provincial government?  Or the dominion government.  Or the dominion government of Indian jurisdiction?  Yes.  Well, I would have to think about that.  I'm not just  sure which in point of time would be the first.  If  you mean a specific assertion by government action or  legislation, I'd have to think about that, Mr. Adams.  :  I'm talking about assertions directed at people in  the land claim territory.  :  You mean expressed assertions, Mr. Adams?  Yes.  Well, again, I suppose it would be the Kitseguecla  affair of 1872.  Now, there -- if I were to look at my  notes, there may be an earlier instance, but that  certainly is a significant occasion.  And that's the earliest one that comes to mind?  At this moment, yes.  :  Okay.  :  That was at the time of the burning, was it?  3S:  Yes, my lord.  I'd like to ask you now to look at page 5 of your  opinion summary, Exhibit 1173.  Yes.  And you will recall that you've given evidence about  Downie --  Yes.  -- travelling in 1859?  And you list there on page 5 a number of what you  say are villages and then what I take are your guesses  about where he was at the time?  Yes.  All right.  I want to ask you to confirm, if you can,  that what Downie was doing was travelling up river  from the coast following the Skeena as far, so your  guesses show, as Kisgegas?  Yes. 21117  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  THE  THE  THE  THE  THE  MR.  THE  MR.  Q   All right.  And are you familiar with the basic  geography of the land claim territory in the present  day?  A   I think so.  Q   All right.  You'll be aware then that Kitwancool is  not on the Skeena River?  A   True.  Q   And are you aware of anything in Downie that suggests  that he departed from the Skeena River?  A  Well, he went over land from east -- from -- from  Hazelton, but I think he -- his record seems to  indicate that he confined himself to the Skeena.  Q   So you'd agree with me that your guess about  Kitwancool is probably wrong?  A   It might be suspect, yes.  ADAMS:  All right.  COURT:  You've got it in quotation marks.  Have you taken it  from somewhere?  WITNESS:  I put a question mark, my lord.  COURT:  Pardon me?  WITNESS:  I put a question mark.  COURT:  But your text shows Kittcoonla, and are the question  marks or -- I'm sorry -- are the quotation marks to  show uncertainty about the spelling of the name or is  this a quotation from something that you've taken?  WITNESS:  My lord, I don't have quote marks on my copy.  GOLDIE:  It's further down the page, Mr. Williams.  WITNESS:  Oh, I'm sorry.  Okay.  Right.  Quite so.  That's  quoting Downie's reference.  ADAMS  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  So the place where you observed that he was welcome  and given provisions you have agreed with me may well  not have been Kitwancool at all?  Yes, it's possible, certainly.  And you don't know where it was?  I don't know of any village called Kittcoonla, no.  Okay.  You gave some evidence about a place later in  his travels, a village by the name of Nass Glee?  Yes.  Do you recall that?  Yes, I do.  And do you know where that is?  Well, I —  Or was?  I -- I've inquired into it, I've speculated, I've  tried to figure out where it is, and I -- I must say  I'm uncertain.  I think it's at the headwaters of the 2111?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Babine River somewhere.  It may not even be in the  2 claim area.  I'm not sure.  I don't know what village  3 that is, frankly.  4 Q   And you don't know specifically whether it's inside or  5 outside the claim territory?  6 A   I don't.  7 Q   Okay.  There's a -- back on page 4 you say of Downie  8 at the bottom of the page, the last sentence:  9  10 "He and two non-Indian companions journeyed  11 through the mid-section of the claim area..."  12  13 A   Yes.  14 Q  15 "...and some of the villages he visited or  16 described can be identified."  17  18 A   Yes.  19 Q   Now, we've dealt with Kittcoonla?  20 A   Yes.  21 Q   To your knowledge, are the rest of the villages listed  22 there inside the land claim territory?  23 A  Well, if my identification of them is correct, they  24 are.  I -- but I must say I'm not so sure -- I'm not  25 sure whether Kitsumkalum is in the claim area.  26 Q   You're not sure?  27 A   But there isn't much doubt about -- there's no doubt  28 about Kitseguecla, or Gitenmaks, or Hagwilget, or  29 Kispiox, and, if I'm right, Kisgegas.  All those are  30 in the claim area.  31 Q   All right.  Could you go, please, to page 7 of your  32 opinion summary, and there under number (b) -- and  33 you're speaking now of the Collins Overland Telegraph?  34 A   Yes.  35 Q   Five lines down under item (b) you say:  36  37 "There were one or two unpleasantnesses  38 involving Indians and whites..."  39  40 A   Yes.  41 Q  42 "...(assaults) and occasional worries,"  43  44 etcetera?  45 A   Yes.  46 Q   You're aware, are you, that some of those  47 unpleasantnesses included a threat at Kispiox in 1866 21119  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  A  4  5  6  Q  7  8  A  9  10  11  12  MR.  ADAMS  13  14  15  THE  COURT  16  MR.  ADAMS  17  THE  COURT  18  MR.  ADAMS  19  Q  20  A  21  Q  22  23  A  24  Q  25  26  27  A  28  Q  29  A  30  Q  31  32  A  33  Q  34  35  36  37  38  39  40  41  42  43  44  45  46  47  that the Indians would shoot the first white man that  crossed the river?  This was because of the fear that the advent of the  wire was going to cut off the flow of salmon, yes, and  Conway went up there to deal with that.  And how did you know that that was the reason for the  threat?  Conway talks about the -- the -- or it was one of the  officials.  I think it was Conway who talked about  having to go up to Kispiox because the chief there  wasn't going to let the wire go through.  Well, I wonder if I could ask you to look at your  own document binder, volume 1.  That is Exhibit 1174,  and at tab 5 --  I'm sorry, Mr. Adams, what tab number?  It's tab 5, my lord.  Thank you.  Page 27 in the tab.  Yes.  And this is Mr. Morison, is it not, who was part of  the construction party?  Yes.  Okay.  And you're aware that until this occasion on  which he was on the Skeena that he had never been  there before?  Yes.  All right.  So he says.  And on page 27 of his memoir about a third of the way  down the page --  Yes.  -- he says:  "Now amongst these people was a very learned  Doctor or Medicine man, and he thinking very  rightly that the advent of the white men  amongst his people would destroy his power over  them told them that if the telegraph wire  crossed the Skeena no more salmon would ascend  that river and that all birds and animals  crossing under or over the wire would instantly  die; the people of Kispiox becoming alarmed  sent word to Mr. Conway that they would shoot  the first whiteman that crossed the river  connected in any way with the Telegraph, here  was a serious hindrance, Mr. Conway ordered all 21120  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 work to be stopped and ordered every man armed,  2 luckily we had an adequate supply in case of  3 necessity; the whitemen were ambushed along the  4 Skeena bank opposite Kispiox.  Then Conway came  5 down to Mission Point for a council of war.  He  6 decided to send Paymaster Burridge and another  7 man up to Kispiox in a small canoe to parley  8 with the Indians; I cut up a lot of pig-tail  9 tobacco into short lengths and put it in a rice  10 mat; we then proceeded to Kispiox.  Burridge  11 managed to explain to the Indians that our work  12 would be a source of revenue to them (always  13 touch a man in his pocket) and that if the  14 Chiefs would come forward he had a present of  15 tobacco (like gold dust to them) for them,  16 instantly every man nearly was a chief, the  17 tobacco was emptied, a general hand-shaking  18 ensued.  We returned home, put the arms away  19 and the men returned to work without the  2 0 Indians ever knowing that a man was under  21 arms."  22  23 And that was the unpleasantness to which you referred?  24 A   You better read the next sentence.  25  26 "The Kispiox Indians turned on their wise man  27 and chased him out of the Village..."  28  29 MR. ADAMS:  Yes.  Well, just working our way through that  30 passage, how would you suppose that Morison, who you  31 agree has never been there before, would know what the  32 medicine man was thinking?  33 MR. GOLDIE:  Well, that's a matter of argument, my lord.  34 THE COURT:  Oh, I don't know.  Well, I think it might be a  35 matter of argument.  Surely there's no unfairness in  36 giving Mr. Williams an opportunity to explain it, if  37 there is an explanation.  38 MR. GOLDIE:  Well, there's no unfairness, but is it appropriate  39 for somebody to speculate on the state of mind when  40 both the writer and the person he's writing about are  41 dead?  42 THE COURT:  Well, Mr. Williams has presumably read this  43 document.  He may have a ready answer or it may be a  44 matter of argument.  I think the question is one that  45 may be asked.  If Mr. Adams wants to possibly  46 foreclose this opportunity to argue it, to leave it on  47 the basis of argument for a later date. 21121  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 MR. ADAMS:  My lord, in my submission this is independent of  2 argument because this is a specific example of the  3 kind of question I was asking the witness earlier this  4 morning.  5 THE COURT:  Can you answer the question, Mr. Williams?  6 THE WITNESS:  Yes.  The question again, Mr. Adams, was?  7 MR. ADAMS:  8 Q   It was how -- let me ask you this first.  This is one  9 of the sources you rely on for an account of this  10 incident?  11 A   Yes.  12 Q   And you indeed have pointed me to a further statement  13 about the Kispiox Indians turning on their wise man  14 and chasing him out of the village?  15 A   Yes.  16 Q   All right.  Now, given that you say this is one of the  17 accounts you rely on, my question is how do you know  18 in using this source that Mr. Morison knew what the  19 medicine man was thinking telling the people in  20 Kispiox -- let's just stop there.  21 A   I can't -- I can't say.  I don't know.  22 Q   You have no idea?  23 A   I don't know what -- what -- how he knew that, no.  24 Q   And you don't know whether he did know it, do you?  25 A  All I know is he records his recollection of what  26 happened.  The other account of the affair, which I  27 think was either by Elwyn or Conway, was much less  28 colourful than this one.  But I'm not -- this may be  29 quite accurate.  You know, this is one of these things  30 where one finds a description of an episode which is  31 relevant and one has to look at it.  The whole affair  32 blew over.  33 Q   Yes.  And it blew over, according to Morison, I'll  34 suggest to you, because there was a parley, his word,  35 there were gifts, and then there was peace; is that  36 so?  37 A   That's what he says.  3 8 MR. ADAMS:  Okay.  39 THE COURT:  What am I to understand by the expression:  40  41 "...the whitemen were ambushed along the Skeena  42 bank opposite Kispiox"?  43  44 THE WITNESS:  I think he's talking, my lord, about this — the  45 earlier statement in his -- in that same passage where  46 he says:  47 21122  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  MR.  MR.  MR.  MR.  "...the people of Kispiox becoming alarmed sent  word to Mr. Conway that they would shoot the  first whiteman that crossed the river (who was)  connected in any way with the Telegraph, here  was a serious hindrance..."  COURT:  You don't think ambush in that context means a shoot  out or anything like that?  WITNESS  COURT:  GOLDIE:  ADAMS:  GOLDIE:  ADAMS:  Q  :  No.  I mean, nobody was injured.  I see.  All right.  Well, I took it -- well --  Now that is argument.  Well, it's argument with context.  MR.  THE  MR.  THE  THE  THE  THE  MR.  Mr. Williams, another of the unpleasantnesses that's  recorded by Morison appears at page 25 of the same  extract, and I'm in the first full paragraph, seven  lines into the paragraph, where you'll see there's a  discussion of the construction of a bridge across the  Bulkley at Hagwilget.  I'm sorry, what page was it, Mr. Adams?  Page 25.  25.  Yes.  First full paragraph, seven lines down in the  paragraph.  And you'll see towards the right-hand side  of the page:  " build a bridge across the  Bulkley..."  Would you give me the start of the sentence, please?  That's not always easy.  " Steve Decker..."  You'll see Steve Decker's name just before the  passage I'm referring to.  Seven lines down in the first paragraph.  WITNESS:  I don't see it on my copy, my lord.  COURT:  Page 25.  WITNESS:  No, I don't.  Maybe — is it possible 25 is  missing from mine?  A  Q  A  Q  A  ADAMS  COURT  ADAMS  COURT:  ADAMS  Q  A  There it is .  Oh, okay.  I'm sorry, my page numbers were indistinct  here.  Okay.  And it says with reference to building a bridge across  the Bulkley:  " another difficulty arose, the Indians  strongly objected to this procedure as one of  their wise men had informed them that if the 21123  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 'Whites' built a bridge across the river no  2 more salmon would run up it, and as the Company  3 did not want to collide with natives in any way  4 a great palaver was held, and the Indians  5 consented to allow Steve Decker to repair their  6 own bridge and make it practicable for the  7 passage of animals."  8  9 A   Yes.  10 Q   And my first question out of that passage is just  11 parallel to the one you answered with respect to the  12 passage on page 27, and that is that as far as you  13 know there's nothing here that tells you how Mr.  14 Morison knew of the explanation for the Indians'  15 objection?  16 A   You're right.  17 Q   Okay.  And secondly, out of this passage you will  18 agree with me that the -- there's a repetition of a  19 meeting, what he calls a great palaver, and a  20 settlement, that is, which results in consent?  21 A   Yes.  I think this -- I think the -- except -- yes,  22 the two events are very much the same.  The one on  23 page 25 I think took place first rather than -- rather  24 than the affair at Kispiox.  25 Q   Yes.  I'm not trying to suggest that we're going in  26 chronological sequence.  27 A   Yes.  28 Q   I believe the narrative does.  2 9 A   Yeah.  30 MR. ADAMS:  Now, because you, by your evidence, are without a  31 detailed knowledge of the laws and customs of the  32 Gitksan and the Wet'suwet'en, I take it that you don't  33 know anything about the function of a parley and gifts  34 and a settlement in those two cultures?  35 MR. GOLDIE:  There's no reference to gifts in the incident that  36 has just been referred to, my lord.  37 THE COURT:  Well, unless the rawhide rope was a gift.  38 MR. ADAMS:  No, my lord, I'm referring to the incidents  39 together.  4 0 THE COURT:  Yes, all right.  41 THE WITNESS:  Well, in — in reading this and considering it I  42 did not take into account any system of traditional  43 presentation of gifts or -- customary amongst the  44 Gitksan people, no, I did not.  45 Q   Okay.  46 A   Or said to be customary.  47 Q   Still on page 7 of your summary, 11 lines down on page 21124  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  A  6  MR.  ADAMS  7  8  9  THE  COURT  10  MR.  ADAMS  11  12  13  THE  COURT  14  MR.  ADAMS  15  THE  COURT  16  THE  WITNE  17  18  19  20  21  MR.  ADAMS  22  Q  23  A  24  25  26  27  28  Q  29  A  30  31  Q  32  33  34  35  A  36  Q  37  38  39  40  A  41  Q  42  43  44  45  46  47  A  7 you say on the right-hand side:  "...many were  employed."  And you're referring there to the native  population in connection with Collins Overland  Telegraph?  Yes.  All right.  And you're not suggesting, are you, that  you know whether all or any of the people so employed  were Gitksan or Wet'suwet'en?  I'm sorry, Mr. Adams, where is that, please?  I've forgotten my count.  I'm still in item (b).  I'm six further lines down from the reference to  unpleasantnesses.  Oh, on page 27.  No, I'm sorry, I'm in the report on page 7, my lord.  Oh, thank you.  3S:  Well, there are a number of references in the  material to employment of native persons as the line  progressed through the claim area, and none of them  were identified specifically as being Gitksan or  Wet'suwet'en.  No.  In fact, they were --  But there is one reference to an Indian at Hagwilget  who was in charge of their store's depot there.  I  think it not likely that anyone other than a Tsimshian  or a Carrier would have come to Hagwilget to guard the  stores.  Do you?  But I -- I have assumed that those Indians being  employed were within the claim area.  All right.  And when you referred to employment on the  COT, you were including, were you, both the  construction party and the people moving supplies to  the party?  Yes.  All right.  Well, with that in mind let me ask you to  look still in this same extract from Morison first at  page 26.  My lord, I'm eight lines from the bottom of  page 26 in tab 5.  Yes.  And there he says:  "We had a gang of Indians working on the  construction line mixed up of, "  I think he means to say Haidas.  Yes. 21125  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  A  MR. ADAMS  MR. GOLDIE  THE COURT  MR.  "...Tsimpeans, Bella Bella's, Bella Coola's,  etc., all Northern Tribes."  Yes.  All right.  So far as you're able to rely on Morison,  that tells you something, does it not, about the makeup of the construction party in the land claim  territory?  Well, I'm not -- I'm not sure that he's here talking  entirely of the -- of the line within the claim area.  I think he's talking here generally about the  construction of the line.  He said:  "We had a gang of Indians working on the  construction line..."  He at that stage is talking in general terms about the  construction.  And the line ran from New Westminster  northward, and at the section between Quesnel and Fort  Fraser there may well have been Bella Bellas and Bella  Coolas.  I don't know.  That's what he says.  And you'll agree with me that in the sequence of the  narrative we are between the crossing of Hagwilget  Canyon and Kispiox?  Are we?  :  Those are the two passages we just looked at on  pages 25 and 27.  Well, with respect, I think he's talking about the  people in the company generally on page 25, the  paragraph starting:  "A word about our good foreman  Steve Decker," and then he goes on to talk about, I'll  call them the players.  It is a rather nostalgic reminiscence, is it not,  Mr. Adams ?  Let me put it to you this way, Mr. Williams.  You  can't tell which part of the line he's talking about  when he says:  "We had a gang of Indians working on the  construction line mixed up of Hiadas,  Tsimpeans, Bella Bella's, Bella Coola's, etc.,  all Northern Tribes"?  A   I cannot say, Mr. Adams, that every Indian employed  within the claim area was resident within the claim  ADAMS:  Q 21126  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 area.  2 Q   Or that any of them were?  3 A  Well, none of them are identified as coming from  4 within the claim area, but I think it highly  5 improbable that the -- all the Indians employed on the  6 line would have come either from the coast or the Fort  7 Fraser or Fort George area.  8 Q   But there's nothing in that document that tells you  9 that, is there?  10 A   No.  11 Q   All right.  Could you refer back to page 19, please,  12 and the paragraph there, the first full paragraph  13 beginning:  14  15 "Next day I was surprised at the return of all  16 the..."  17  18 A   Yes.  19 Q  20 "...Fort Simpson Indians with their canoes en  21 route home..."?  22  23 A   Yes.  24 Q   Now -- and then two thirds of the way through that  25 paragraph he mentions William Duncan and the mission  26 station at Metlakatla.  Do you see that?  27 A   I see the reference halfway through to the mission at  28 Metlakatla, yes.  29  30 "Capt. Butler never bothered his head about  31 them..."  32  33 Q   Yes.  And he goes on:  34  35 " Duncan was a wonderful Missionary, and  36 also a thorough man of business with his eye on  37 the main chance..."  38  39 A   Yes.  40 Q  41 "...he had a store at his Mission and saw at  42 once the immense advantage which would accrue  43 to his village from getting this work for his  44 people. . . "  45  46 A   Yes.  47 Q 21127  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "...he knew the Indians as well as a Hudson's  2 Bay Company Officer and talked the Tsimpean  3 language like a native."  4  5 A   Yes.  6 Q  7 "At Capt. Butler's request he got the people  8 together with their Headman Paul Legaic, a  9 contract was soon entered into with them to  10 freight up the river for the season when Capt.  11 Butler was to meet them in the Fall with a  12 chest full of money and pay them in cash for  13 their work,"  14  15 and so on.  16  17 A   Yes.  18 Q   Now, so far as that tells you anything, would you  19 agree with me that it suggests that the people doing  20 the freighting were not from the claim territory but  21 were Coast Tsimshian?  22 A   It looks as if the Tsimshians freighted the material  23 up the Skeena, yes.  24 MR. GOLDIE:  There's a reference to Kitselas natives a couple of  25 lines following.  2 6    MR. ADAMS:  27 Q   Yes.  That was the next thing I was going to point you  28 to.  29  30 "Capt. Butler soon returned up river with his  31 flotilla and I must say these people, together  32 with a few Kitselas natives, worked faithfully  33 throughout the season in conjunction with our  34 thirty five White men,"  35  36 etcetera.  37 A Yes.  38 Q You know where Kitselas is, do you?  39 A Yes.  40 Q Is it inside or outside the claim territory?  41 A It's inside the claim area.  42 Q It is.  All right.  If you could go over to page 8 of  43 your summary, Exhibit 1173.  44 A   Yes.  45 Q   And at the top of the page under item (c) you say:  46  47 "There are no references to disputes over land 2112?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 ownership or interference with traditional  2 rights, as occurred forty years later with the  3 G.T.P.R.,"  4  5 correct?  6 A   Yes.  7 Q   All right.  And 40 years after 1866 would take us to  8 1916?  9 A   1906.  10 Q   1906.  All right.  Thank you.  And I would just ask  11 you to confirm for me that -- well, let me ask you  12 this first.  Would disputes over land ownership or  13 interference with traditional rights be significant in  14 your consideration of the imposition and acceptance of  15 law and order as defined?  16 A   Now, what is that again, please?  17 Q   Okay.  I'm inviting you to agree with me that disputes  18 over land ownership or interference with traditional  19 rights would be relevant to a discussion of the  20 imposition and acceptance or non-acceptance of law and  21 order.  22 A   It would be something that one would want to take into  23 account, I agree.  24 Q   All right.  And then what I wanted to ask you to do is  25 just confirm for me, if you would, that you make no  26 further reference in your report to such disputes in  27 connection with the G.T.P.R.  28 A   That is so in the report.  29 Q   Yes.  And why is that?  30 A   The -- the disputes took place -- well, if by  31 disputes, for example, we mean such things as the  32 acquisition of locating the right of way through  33 Indian cemeteries and burial grounds and through  34 villages and so on, this occurred certainly subsequent  35 to 1906, and I don't recall the exact date in which  36 the first of these negotiations took place, but I  37 think it must have been about -- subsequent to 1908 I  38 would guess at this point without consulting my notes.  39 But, in any case, I have not referred to those  40 disputes or negotiations, whatever they were, in my  41 report.  42 Q   All right.  And that wasn't because you were unaware  43 of them, was it?  I mean, you refer to them?  44 A   Yes.  I was aware that there were negotiations  45 certainly between the -- mainly between the Department  46 of Indian Affairs, I think -- I don't think provincial  47 authorities were involved in this, but nonetheless, 21129  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  MR  A  ADAMS:  they occurred.  All right.  So you were aware of them.  It wasn't that  you thought they were insignificant to your subject?  I -- I had concluded that by the time of the arrival  of the Grand Trunk Pacific and the negotiations with  the Indians over acquisition of land that, as I said  in my report, that the pattern or the relationship  between the whites and the Indians had already been  settled by then.  And with the acceptance of the Indians; is that  correct?  Yes.  Yes.  I wonder if you'd look, please, at Exhibit  1172, which is the big --  I wonder, Mr. Adams, if we should break for lunch.  Yes, my lord.  THE REGISTRAR:  Order in court.  Court stands adjourned until  two o ' clock .  (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Leanna Smith  Official Reporter  United Reporting Service  THE COURT  MR. ADAMS 21130  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  ADAMS  COURT  ADAMS  COURT  ADAMS  Q  (PROCEEDINGS RECOMMENCED AFTER RECESS)  REGISTRAR:  Order in court.  COURT:  Mr. Adams.  ADAMS:  Yes, My Lord.  My Lord, I am handing up two copies  of tab 15, which is Exhibit 1172-15, Trigger extract.  All right.  Where should it be?  It should be at the back of the very last tab of  1172, which was volume 1.  Yes, all right.  And I think I had said when I last referred to it  that it's also Exhibit 888.  Yes.  Mr. Williams, we were at page 8 of your summary of  opinion, Exhibit 1173, and I had just asked you to  refer to tab 13 of that same binder, 1172.  And we  were talking about what you referred to in your report  as disputes over land ownership or interference with  traditional rights with the J.T.P.R., and I believe  you had confirmed for me that that -- those events are  not referred to elsewhere in your summary.  That's  correct?  That's so.  And I believe you had agreed with me that they were  nevertheless relevant to your subject, that is the  imposition of law and order and acceptance or  non-acceptance of it?  Well, I don't think I agreed with you that they  were -- put it this way.  I did not think they were  relevant to the formulation of the opinion which I  have given.  They were certainly a form of protest,  but really didn't relate to the development of the  administration of justice within the claim area, which  I conceive to be my function to investigate.  But they did relate to aboriginal rights, did they  not?  Yes.  And we have already agreed that aboriginal rights were  an aspect both of the relationship between the Indian  and white communties, and an aspect of the acceptance  or non-acceptance of the imposition of law and order?  Yes.  All right.  But I was not instructed to enquire into the  relationships between the Indian community and the  proprietors of the railway.  A  Q  A  A  Q  A  Q  A 21131  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  Q  2  A  3  Q  4  5  6  A  7  Q  8  9  A  10  Q  11  A  12  Q  13  14  A  15  Q  16  THE COURT  17  18  19  Q  20  21  22  23  24  25  26  27  28  A  29  Q  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  A  46  Q  47  And without such instructions, you didn't do that?  I did not do that, no.  Okay.  Now, I want to ask you to look at tab 13 of  Exhibit 1172.  That's the extract from the 1988  version of the Gunanoot book.  Yes.  And particularly at page 75, which I think you will  find is in the middle of the extract.  Yes.  And I'm five lines from the bottom.  Yes.  Let me first take you up a few lines.  You see the  paragraph beginning "this incident"?  Yes.  And you have been talking about --  :  I'm sorry, did you say -- I'm sorry, I thought you  meant Trigger.  You meant tab 13, page 75.  Thank you.  Yes, thank you.  I have it.  You had been discussing earlier in the extract an  incident involving some of the activities of the  police, and then with reference to that you said:  "This incident may have been only a  manifestation of more serious trouble  underlying the relationship between the white  and native residents."  Yes.  And then six lines down from there you go on to say:  "Much as the Indian and Inuit population of  northern Canada today fears the intrusion of  highways and pipelines as a threat to their  traditional way of life, so did the native  population of the Hazelton region after 1907  fear the proposed construction of the Grand  Trunk Pacific Railway.  They saw the proposal  not only as an intrusion into their way of life  but more specifically as a project likely to  lead to loss of their traditional lands and  interference with aboriginal fishing and  hunting rights."  And that's one of the opinions you stand by today?  Certainly.  They did have that fear.  Yes.  But it wasn't one that you thought significant  enough to take up later in your summary, or anywhere 21132  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 else?  2 A   True.  3 Q   Okay.  Now, there was a good deal of discussion, and  4 you gave a good deal of evidence about Mr. Elwyn?  5 A   Yes.  6 Q   And you say on page 8 of your report in the last part  7 of section D that Elwyn was the -- first of all he was  8 a travelling magistrate with the construction crews,  9 and then you say at the end of that part:  10  11 "When late in 1866, other company officials left  12 the area, Elwyn was placed in charge."  13  14  15 A   Yes.  16 Q   Now, first of all what did you mean by the area?  17 A  Well, I was speaking of the construction area, the  18 construction area within the claim area between --  19 well, the construction area was within the claim area,  2 0 came in somewhere around Burns Lake and continued onto  21 Kispiox.  22 Q   Yes.  You were referring to the construction area, not  23 to the land claim area?  24 A   I was referring to the area -- the construction area  25 within the claim area.  26 Q   But you are aware, and I think you testified, that Mr.  27 Elwyn went to Stikine over that winter of 1866?  28 A   That's right, later.  29 Q   All right.  And while you say late in 1866 he was  30 placed in charge, right?  31 A   Yes.  32 Q   All right.  But I think you will agree with me what he  33 was placed in charge of was the exploration party at  34 Stikine in October of 1866?  35 A  Well, that was what was being done at the time, but as  36 I recall Conway's letter, he said he was being placed  37 in charge of the party, what the party was engaged in,  38 the exploration of the route from Kispiox to the  39 Stikine.  40 Q   So if area was the land claim area, Elwyn is one of  41 those who left, wasn't he, in the winter of 1866, in  42 the fall of 1866?  43 A   I believe so.  He worked his way north to Stikine.  44 Q   Yes.  And I think you confirmed in your evidence  45 yesterday that in any event, and as you say in your  46 report, you don't know if he was exercising a judicial  47 function? 21133  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   I have seen no evidence that he did.  2 Q   Okay.  Now, with respect generally to the Collins  3 Overland telegraph construction.  You are aware, are  4 you, that the construction parties were under strict  5 instructions not to interfere with the Indians in any  6 way?  7 A   Yes.  8 Q   Okay.  And is it your reading of the portion of the  9 documentary record you have examined that those  10 instructions were complied with?  11 A   There were, I think, as I recall it, there were one or  12 two references to occasions when they were not  13 strictly followed, but by in large they certainly were  14 followed.  Morison in his recollections talks of the  15 strict regulations dealing with the Indians, trading  16 with them.  17 Q   Yes, he does.  All right.  Then you go on to talk  18 about settlement and population?  19 A   Yes.  20 Q   And I first want to ask you this.  How was the size  21 and the composition of the land claim area relevant to  22 your subject?  23 A  Well, I thought it had some -- it had bearing on it,  24 because what was being done was not being done in a  25 population vacuum.  I thought the number of white  26 residents, the number of Indian residents was  27 something to think about when considering the  28 application of judicial authority in the area, which  29 applied not only to the Indian people, of course, but  30 to the whites as well.  31 Q   What did you learn about the population or the  32 composition of the population that assisted you in  33 considering your --  34 A  Well, I learned, for one thing, that the population in  35 the claim area was certainly concentrated around the  36 Hazelton area.  Very little -- there seemed to be  37 very, very little population, both white or Indian, in  38 the eastern extremity of the claim area, so far as one  39 could tell from the documents.  It seemed to me that  40 it would be useful to have some idea, however rough,  41 and it is very rough the population estimates -- well  42 1881 is not so rough, because we have a Census for  43 that, but it seemed to me to have some use to know how  44 many people were there, white and Indian.  45 Q   And that's what I am trying to get at, is what was the  46 use of knowing that?  47 A  Well, one wants to know if there are people who are 21134  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 being affected by the process of administering the  2 judicial system in the area.  For whom is it being  3 administered.  4 Q   Now, you have no special expertise in making  5 population estimates?  6 A   I do not.  7 Q   Okay.  And I take it you would defer to professional  8 geographers when it comes to making estimates of that  9 kind?  10 MR. GOLDIE:  I don't know why he should, My Lord.  I have never  11 heard special geographers have special expertise in  12 counting heads.  13 THE COURT:  Well, we'll see whether he does or not.  14 THE WITNESS:  The population figures that I have referred to, I  15 have drawn from contemporary documents.  And I have  16 given those figures as best I was able to define them.  17 I cannot give -- I am not trained, nor do I have the  18 knowledge to give population estimates of the more  19 remote areas of the claim area, but we do have some  20 definite knowledge about the portions of the claim  21 area around Hazelton.  22 MR. ADAMS:  23 Q   You are aware there is an area within geography called  24 demography?  2 5 A  And I am not a demographer.  26 Q   Yes, but demographers are geographers, are they not,  27 to your knowledge?  28 A   I suppose they are a -- one aspect of it.  I wouldn't  29 say a sub-aspect of it.  I believe demographers are  30 basically geographers by training.  31 Q   And my question was to suggest that you would defer to  32 professional geographers in the matter of estimating  33 populations.  34 A  Where exact figures were not available, but I have  35 produced some exact figures, however -- how much value  36 they are, I don't know, but they are not estimates,  37 they are enumerations and estimates by people who --  38 part of whose job was to make estimates of that kind.  39 Like Loring, for example, or Graham.  40 Q   Now, you say towards the bottom of page 8, the last  41 paragraph:  42  43 "Permanent white settlement in the claim area  44 started at Hazelton in 1871, with the laying  45 out of a townsite and Indian reserve by Edgar  4 6 Dewdney; a few settlers, among them Thomas  47 Hankin, pre-empted land." 21135  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2 Do you see that?  3 A   Yes.  4 Q   My question is this.  Do you know what happened to the  5 townsite and to the Indian reserve that you say was  6 established in 1871?  7 A   Do I know what happened?  8 Q   Yes.  Do you know what became of them?  9 A  Well, Hazelton is still there.  10 Q   Yes.  11 A  And so is the Indian reserve.  12 Q   Is it the same town?  13 A   You mean are boundaries the same?  14 Q   Yes.  15 A   I cannot say of my own knowledge whether the  16 boundaries of Hazelton today are those set out by  17 Dewdney and his sketch in 1871.  18 Q   What about the location of the Indian reserve?  19 A   I think probably the -- I am sure that the size of the  20 Indian reserve laid out by Dewdney in 1871 has been  21 altered since that time.  22 Q   All right.  23 A   But essentially it's in the same place, I believe.  24 Q   Did you review materials that told you what happened  25 to the Indian reserve in the townsite as soon after  26 1871 as 1887?  27 A  As to the alteration of boundaries?  28 Q   Yes.  2 9 A   You will have to give me a bit more information.  At  30 the moment I can't recall.  31 Q   You don't recall reviewing any documents that told you  32 about the fate of either the townsite or the Indian  33 reserve?  34 A   I was not asked to, as I said earlier, to study the  35 reserve question, if I may use that phrase, and I am  36 unfamiliar with the details of any alterations of  37 reserve boundaries.  I know -- I can recall running  38 across material with the alteration to the boundaries  39 of re -- or reserve, rather, at Moricetown.  There was  40 some alteration to the boundaries at Kitsegukla that I  41 recall looking at.  The village was relocated.  But I  42 do not recall reading anything, at this point at  43 least, about alteration of boundaries of the Indian  44 reserve at Hazelton in 1887.  45 Q   All right.  I am going to show you a document.  My  46 Lord, this is something that I delivered to my friends  47 a few days ago.  It has added to it an index to 21136  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 indicate its source, but the page which they will have  2 seen before is the last one.  And I am instructed that  3 this is an extract from the materials on the church  4 missionary society, kept in the library of the  5 Vancouver School of Theology.  6 Q   If you could just take a moment to read that through.  7 A   I looked at this -- yes, I saw this.  8 Q   But you hadn't seen it before?  9 A   No.  It was handed to me just a day or two ago, Mr.  10 Adams.  11 Q   Okay.  Now, this identifies itself on the page where  12 the printing appears as an extract from the annual  13 letter of the Rev. J. Field, Hazelton, and somewhere  14 on here it says 1887.  15 MR. GOLDIE: It's the fellow who was asking for money for his  16 church.  17 THE WITNESS:  Yes.  I have read this, Mr. Adams.  18 MR. ADAMS:  Okay.  My Lord, it's item number 497 on page 17 of  19 the second page.  2 0    THE COURT:  419.  21 MR. ADAMS:  497, I'm sorry, on page 17.  22 Q   Now, I just want to ask you to look at this about the  23 middle of the left-hand column.  Well, first of all  24 the first sentence he says:  25  26 "There are two buildings here belonging to the  2 7 C.M.S."  28  29 That is the Church Missionary Society?  30 A   Yes.  31 Q   And I take it that that's at Hazelton?  32 A   Yes.  33 Q   And then going down about halfway down the column:  34  35 "About 2 acres of land nominally belonged to  36 these buildings:  I say nominally, because  37 there is no title, and when the reserves for  38 the Indians are laid out we may have to give up  39 possession.  I understand the Bishop has been  40 making inquiries about a title, but at the  41 present time the Government is not, I fear,  42 disposed to consider such applications.  The  43 Metlakahtla affair must be settled before  44 things here will even think of shaping  45 themselves.  No grants have been made for land  46 here.  All rights are what are called  47 'squatters rights', but as Hazelton is a town 21137  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 the Government is not bound to respect such.  2 Any one may come and build on what is now  3 considered C.M.S. property, and we should have  4 no legal right to object.  We have already been  5 thus threatened; indeed, the foundations of a  6 house were laid.  I, in the interest of the  7 Society, protested, but my protest was  8 disregarded, and the work would have been  9 continued had it not been for the arrival of  10 the Rev. H.O.G. Sheldon, who succeeded in  11 persuading the builder to abandon it.  But it  12 caused much unpleasantness, and I fear, bad  13 feeling on the part of the Indians.  The old  14 story of the Society being in league with the  15 Government was published abroad, and this case  16 pointed out as an instance of it.  A  17 deputation, headed by the chief, waited on me  18 requested to be informed by what authority I  19 had interfered with the building of the house  20 referred to above.  I assured them that the  21 right of the site was purchased.  To this they  22 replied that all the land was theirs, and had  23 been their fathers from the first."  24  2 5 And so on.  26 A   Yes.  27 Q   Now, does that tell you something you didn't know at  2 8 the time you did your opinion summary about what  29 became of the reserve and the townsite of Hazelton  30 after 1871?  31 A   I was not instructed to enquire into the history of  32 the surveying and location of the reserves within the  33 claim area.  34 Q   All right.  Then I take it you didn't mean to suggest  35 in the paragraph at the bottom of page 8 in your  36 opinion summary that from 1871 and the establishment  37 of the townsite and reserve, that that was some  38 permanent situation from then on?  39 A  Well, the -- I suppose in the -- again, you know, I  40 have not enquired of the history of the settlement of  41 the reserves, so far as boundaries are concerned, and  42 I suppose it may have not been until 1891 and 1892 and  43 O'Reilly's visits and the boundaries of reserve at  44 Hazelton were precisely defined.  But they were there,  45 and they were -- I'm sure they were the settlers,  46 treated it as the Indian reserve.  That's where they  47 lived. 2113?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q   And is there some documents you are relying on to make  that statement?  A  Well, Mr. O'Reilly was in Hazelton in 1891 and 1892 on  behalf of the Indian Reserve Commission.  Q   Yes.  A   But again, Mr. Adams, I say I am not familiar with the  history of the definition of boundaries of individual  reserves within the claim area.  I can only speak to  what I found in various documents I looked at.  Q   All right.  Let me ask you to look at another -- oh,  My Lord, could I have that marked as the next exhibit,  please.  THE COURT:  How do you want to mark it?  MR. ADAMS:  If at this time convenient, it might readily go into  the volume 1 binder.  In spite of its title, I don't  think it's volume 2.  I have only a few additional  documents to put to the witness.  Put it as tab 16.  If that could be tab 16, and I will provide the  appropriate tabs.  Thank you.  THE COURT  MR. ADAMS  THE COURT  THE REGISTRAR:  Exhibit 1172-16.  (EXHIBIT NO. 1172-16 - EXTRACT FROM THE  ANNUAL LETTER OF THE REV. J. FIELD)  Q   The next document I want to ask you to look at is  Exhibit 1035-55, and that is in document 2 of Dr.  Galois documents.  A   I'm sorry, Mr. Adams, is it for my own purpose -- this  is tab what?  THE REGISTRAR:  It's going to be 16.  They are going to provide  us with a -- just go on top of this.  MR. ADAMS:   Sorry, My Lord, there is some difficulty with that  reference.  I'm not sure what it is.  Let me ask you  instead to look at volume 4 of Exhibit 1035 at tab  220.  THE REGISTRAR:  Tab 220.  MR. ADAMS:  220.  Q   And you will see that that's Mr. O'Reilly's writing on  behalf of the Indian Reserve Commission.  A   Yes.  Q   And if you look on the second page of that letter --  maybe the bottom of the first page.  And he's writing,  as I see, to the chief commissioner of Lands and  Works?  A   Yes. 21139  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   On August 4, 1891?  2 A   Yes.  3 Q   And he says:  4  5 "I have the honour to inform you that I am about  6 to visit the upper Skeena River for the purpose  7 of defining the Indian reserves in that  8 district.  Among the places to be visited is  9 Hazelton, a townsite on the Skeena River  10 surveyed in 1871.  I am informed that only five  11 or six of the lots are now occupied by white  12 men, but that the Indians attracted by  13 employment consequent on the traffic to the  14 Omineca mines in 1871 to 1873, settled on part  15 of the townsite, built houses and have since  16 remained in occupation.  17 I have been unable to discover that any  18 reserves were defined at Hazelton, though on  19 the plan of the townsite an Indian reserve is  20 shown at the northern end, its extent is not  21 given.  22 I am anxious to be informed by you if any  23 objection exists to that portion of the  24 townsite occupied by the Indians being included  25 within the reserve should it be found necessary  26 to do so, provided that it does not encroach on  27 the land claimed by the whites.  I very much  28 fear that the Indians will consider it a  29 hardship should they be deprived of the land  30 they have cleared, fenced and have occupied for  31 over twenty years."  32  33  34 A   Yes.  35 Q   Now, what I am suggesting to you is that the  36 establishment -- the laying out of a townsite in the  37 the Indian reserve, as you record by Dewdney, does not  38 tell you what was on the ground in 1887 or in 1891.  39 A   I accept that.  I can't say otherwise.  40 Q   All right.  Going to page 9 of your opinion report.  41 You are speaking first of all of the white population,  42 and you say that it fluctuated -- I think you are  43 speaking of the 30 year period after 1871, between a  44 low of 5 and a high of 25.  45 A   Yes.  46 Q   Correct.  So that's the period 1871 to 1901?  47 A   Yes. 21140  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   And is that a white population for the claim area as a  2 whole?  3 A   I believe so.  I take it to be so.  The areas were  4 all, you know, people from Lome Creek up to Hazleton,  5 and people from Hazelton up to Lome Creek and --  6 Q   But that's your reasonable estimate?  7 A   Yes.  8 Q   Okay.  9 A   Since I wrote that, although maybe I had the knowledge  10 even before I wrote it there, I do draw to your  11 attention that there was a -- I gave in evidence the  12 white population of Hazelton as drawn from the 1891  13 Census figures, which were -- which showed white  14 population of 18, as I recall.  I didn't see any  15 separate enumeration for places like Loren Creek.  16 THE COURT:  I think it was included with Hazelton.  17 THE WITNESS:  I think the area of population, My Lord, yes.  18 Q   Then you go on to say in the first full paragraph on  19 page 9 of your summary:  20  21 "There are, however, reliable figures for the  22 Indian population in the Hazelton area in 1881  23 and 1891. "  24  25  26 A   Yes.  27 Q   Had you dealt before you did your research for this  28 case with Census data?  29 A  With Census data?  30 Q   Yes.  31 A   I think I must have done, but I don't make anything of  32 it.  I must have looked at other Census records over  33 the period of years.  34 Q   Okay.  And apparently since this was written, you've  35 become aware that there are figures village by village  36 for many of the villages in the claim area produced by  37 the Indian agent covering approximately the period  38 1891 to 1916; is that correct?  39 A   Yes.  I am not -- yes, that's so.  4 0 Q   And you weren't aware of that source even up to the  41 time you completed your opinion summary?  42 A   That is so.  43 Q   And does that tell me that you hadn't read any of that  44 material before you completed your opinion summary?  45 A   Those population estimates by Loring I did not have, I  46 believe, when I wrote my summary.  47 Q   You are not aware that they submitted those annually? 21141  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   And you had never seen them before?  3 A   I had not seen them at the time of writing this  4 report.  5 Q   Okay.  Now, in your report on page 10, with reference  6 to the Indian population, you had first given a 1881  7 estimate of 1,700.  8 A   Yes.  9 Q   And then you write:  10  11 "By 1891, it had dwindled sharply, probably as a  12 result of the severe measles epidemic in 1887."  13  14 A   Yes.  15 xxx   Q   Now, at the time you thought it had dwindled to 92 8,  16 is the figure you had given at the bottom of page 9?  17 A   Yes.  18 Q   And you are now aware that that figure, at least so  19 far as the D.I.A. figures compiled by Loring are  20 concerned, is an error?  21 A   Yes, I think it's -- well, Loring's figure in 1895  22 was, I think, roughly 1,300, four years later.  23 Q   But you are able now, are you not, and I believe you  24 did in your evidence, correct the 928 figure with the  25 help of the annual report for 1901 from Loring?  26 A   Yes.  27 Q   And that gave you a figure of 1,156, as I understand  28 it?  29 A  Whatever it was, yes.  30 Q   All right.  So —  31 THE COURT: What year was that please?  32 MR. ADAMS:  That was 1891, I believe, My Lord.  33 THE WITNESS:  I think it was 1895, My Lord, that I referred to  34 at least.  35 THE COURT:  Wasn't there a Census in 1891?  36 THE WITNESS:  Yes, but the — I think it's the 1895 figure that  37 showed the increase over 1891.  1895 Loring figure.  3 8 MR. ADAMS:  39 Q   So whatever else we learned from this, when you say in  40 the first paragraph of page 9 in your report that  41 there are reliable figures, and that they are to be  42 found at least in the 1891 Census, that wasn't  43 correct, was it?  44 A   I don't think there is anything incorrect about the  45 Census figures.  I don't think Loring made an estimate  46 in 1891, did he?  I don't recall.  He did in 1895.  47 Q   Well, I think you agreed with me that there were 21142  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  A  5  6  7  8  Q  9  10  11  A  12  Q  13  14  15  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  25  26  27  28  A  29  Q  30  31  32  33  34  A  35  36  37  Q  38  39  A  40  Q  41  A  42  Q  43  44  45  A  46  THE COURT  47  MR. ADAMS  figures sent in by Loring from about 1891 to 1916, and  that you had become aware of that since writing your  report.  I certainly became aware of them since writing the  report, but I don't know that he took his figures back  to 1891.  I think the earliest that I saw, at least,  was 1895.  All right.  So as far as you are concerned, the 1891  Census was accurate, and the 928 figure for 1891 is  accurate?  I assume it is.  Okay.  Now, I wonder if you could look at Exhibit 1035  in tab 572, and that's volume A of Dr. Galois  materials, My Lord.  And if you go to the very last  page of tab 572.  I haven't found 572 yet.  Yes, all right.  And you see that table on the last page there?  Yes.  And Babine and Upper Skeena River agency?  Yes.  Followed by a list of villages?  Yes.  All right.  Now, when I take the figures that are  listed there, and I am instructed that these are a  compilation of the figures that appear in Loring's  annual report for 1901, you will recall that's the  year in which the Census figure you give is 928?  No.  I thought it was 1891 was the 928 figure.  I'm sorry, you are quite right.  All right.  So now we  are in 1901.  And when I total the village figures for  Kitwanga, Kitsegukla, Gitanmaax, Kispiox, Kisgegas,  Kuldoe, Moricetown and Hagwilget, and please someone  correct me if I'm wrong, I get 1,308.  I had just seen the thing, so I can't add it up.  I  accept your figures.  I have no reason to quarrel with  them.  And you will see at the very bottom of the page, the  third line from the bottom is listed Connolly Lake?  I'm sorry, what page is that?  Same page, just going down the list of villages.  After Kuldoe?  After Hagwilget was the last one I read, and then Fort  Babine and on down, and two villages from the bottom  you will see Connolly Lake.  I'm sorry, Mr. Adams, I don't see it.  :  Last page.  :  Same tab witness. 21143  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 THE COURT:  Last page of the tab.  2 THE WITNESS:  Thank you, My Lord.  Thank you.  Right.  3 MR. ADAMS:  4 Q   And the figure of 1,308 that I had suggested to you is  5 the -- what I make the total, excluding Kitwancool of  6 the first villages up to and including Hagwilget, and  7 then I was directing your attention to Connolly Lake  8 near the bottom.  9 A   Yes.  10 Q   And you are aware that Connolly Lake is also known as  11 Bear Lake?  12 A   Bear Lake, yes.  13 Q   And you are aware that there were, as of 1901, Gitksan  14 people at Bear Lake?  15 A   Yes.  16 Q   Already?  17 A   I believe so.  18 Q   And so some undetermined portion of at least of the  19 118 listed there were Gitksan, so far as you know?  20 A   I would think so.  21 Q   All right.  Now, here is my problem.  If the 1891  22 Census is accurate for a figure of 928, and Loring's  23 1901 figures are accurate of 1,308, leaving Bear Lake  24 out of it for a moment, something very peculiar has  25 happened in ten years, has it not?  26 A   Population has grown.  27 MR. GOLDIE:  Well, excuse me a minute.  The 928 figure referred  28 to at page 9, does not, so far as I read it, include  29 Connolly Lake or Moricetown.  30 MR. ADAMS:  I said, My Lord, I was leaving Connolly Lake out of  31 this calculation.  32 THE COURT: Uh-huh.  33 MR. GOLDIE:  Well, I don't think it includes Moricetown.  34 THE COURT:  Well, the question is whether something unusual has  35 happened, if population has grown from 928 to  36 something in the range of 1,308 plus whatever Gitksan  37 were at Connolly Lake in the year we are talking about  38 of 1901.  Isn't that the question, Mr. Adams?  39 MR. ADAMS:  That's correct, My Lord.  And I also note that  40 Kitselas is included in the 928 figure.  41 Q   Just while I am on that point, Mr. Williams, you have  42 said, I think earlier today, that you believe Kitselas  43 to be inside the land claim territory?  44 A   I thought so.  Am I wrong?  45 Q   I believe you are.  46 A  All right.  I accept that.  47 Q   All right.  So whatever the total was for Kitselas, 21144  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 should come out of the 928?  2 A   Yes.  3 Q   And come back to my question --  4 MR. GOLDIE:  I haven't got it clear whether the one figure  5 includes Moricetown and the other figure doesn't.  6 MR. ADAMS:  7 Q   When you reviewed the 1891 Census, do you recall it  8 including a figure for Moricetown?  9 A   The 1891?  10 Q   Yes.  11 A   No.  Because I have listed here in the report the  12 villages that were enumerated in 1891.  13 Q   Yes.  14 A   But Loring's figures include Moricetown.  At least I  15 am sure they do.  Certainly in some of his reports he  16 includes Moricetown.  I don't know what he does in his  17 1901.  He evidently doesn't here.  Here he has got  18 Moricetown listed in that table.  19 Q   Yes.  Well, all I am suggesting to you, Mr. Williams,  20 is that there is some doubt about the reliability of  21 the 1891 Census, derived from the fact that natural  22 populations just doesn't go from 900 to 1,300 in 10  23 years.  24 A   I am quite unable to comment on that.  25 Q   It's certainly nothing that occurred to you in  26 producing the figures?  27 A   I simply reproduce them as I found them.  28 Q   Yes.  And you write in your report on page 10 that one  29 cannot get any clear insight into the total claim area  30 population from 1901 and 1911 Census figures.  And  31 that's correct, isn't it?  32 A   I believe so, yes.  I couldn't get any clear insight  33 into it, no.  34 Q   You now know you didn't have to go to the Census  35 figures to get population figures.  You could go to  36 the D.I.A. reports.  37 A   Yes.  I had forgotten the date of the latest D.I.A.  38 report that I had that I referred to the other day,  39 but I don't think they went up -- I don't think -- the  40 D.I.A. reports that I looked at, as I recall, did not  41 go up to 1911.  42 Q   Well, I had asked you to agree with me that they were  43 provided for the period 1891 to 1916 approximately,  44 and I had understood you had agreed with that.  45 MR. GOLDIE:  Perhaps he ought to look at his documents, My Lord,  46 before he speculates any further.  4 7    MR. ADAMS: 21145  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  Q  2  A  3  4  5  6  7  8  Q  9  A  10  Q  11  12  13  14  A  15  Q  16  THE COURT  17  18  MR. ADAMS  19  20  MR. ADAMS  21  Q  22  23  A  24  25  Q  26  27  28  A  29  Q  30  A  31  32  33  34  35  36  Q  37  38  39  40  41  42  A  43  44  45  46  47  Would you like to look at your documents?  Well, if you would refer me to it, yes.  I think the  latest -- I think my evidence in chief, I think the  latest date of a document from Loring on the  population figure was on the 15th of July of 1901,  when my note shows that there were 1,382 people in the  Gitksan-Wet'suwet'en section of his agency.  That would be?  That was tab 17G.  That would leave us with the problem for which I take  it you have no answer, which is how would you get from  approximately 900 to now you say approximately 1,400  in ten years?  I have already said I can't comment on that.  Okay.  :  I suppose you have a special reason, when there was  severe measles in 1887 --  :  I'll leave the witness to agree with that or not  agree with that.  The measles epidemic is your explanation of how you  got down do 928, isn't it?  It's not my explanation.  It's the explanation of the  people who were there at the time.  Well, adopted by you.  You say by 1891 it dwindled  sharply, probably as a result of the severe measles  epidemic?  Yes.  All right.  But there was a general population growth.  I can  observe that much from the documents.  The population  was growing, particularly after 1900, with the  completion of the Yukon telegraph line.  That was  growth I had taken both in the white and native  populations.  All right.  Well, I want to suggest to you out of all  of this, that one of the things that was wrong with  the 1891 Census that you called the reliable source,  was that people from the claims area were not  enumerated in their home villages, but were enumerated  at the coast.  Are you aware of that possibility?  Yes, that is quite right.  I am not sure that --  necessarily that it's a frailty, but it does have the  possibility of it, because in many instances the  people at the coast, who I suppose were working down  there at the time of enumeration, they were described  by their village, like Kispiox Dick or Gitamaax Sam or 21146  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 whatever.  2 Q   Yes.  And you are not aware that those names were then  3 referred back to the villages of names referred to,  4 are you?  5 A   I am not.  6 Q   Okay.  And you were aware of that possibility before  7 you wrote your report, weren't you, that there was a  8 defect -- there was that defect in the 1891 Census?  9 A   I didn't take it as a defect.  I took it that they --  10 that the people concerned were working at the coast,  11 and that they were identified -- enumerated according  12 to their village, their residential village.  13 Q   All right.  I have some documents in that connection,  14 which I will have to get over the break, but for the  15 moment I will go on in the discussion here on page 10.  16 And on page 10 in the third paragraph you say:  17  18 "By 1900 the Indian and white population was  19 concentrated at Hazelton."  20  21 Correct?  22 A   Yes.  23 Q   Now, when I go to page 26 of your summary, the bottom  24 of the first paragraph you say:  25  26 "I have already pointed out that by far the  27 greater part of the total Indian population of  28 which we have records was concentrated in this  29 mid-section of claim area."  30  31  32 A   Yes.  33 Q   What is it that you refer to as the mid-section of the  34 claim area?  35 A   I meant by the -- I mean, as I state there, I mean  36 generally the portion of the Skeena within the claim  37 area from a southwest edge north eastward as far as  38 Kisgegas and Bear Lake.  39 Q   All right.  So when you write on page 10 that the  40 concentration was at Hazelton, do I take it that what  41 you meant to say was the mid-section of the claim area  42 defined, as you do, from the southwest edge to  43 Kisgegas and Bear Lake?  44 A   No.  I mean that -- I see no inconsistency between the  45 two statements proportionately.  I think the larger  46 proportion of the total population were around  47 Hazelton in 1900 and onwards, at least for some years. 21147  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  THE COURT  MR. ADAMS  Q  A  Q  Q   So it seems that there are various meanings for the  word concentration?  A   I don't ascribe differing meanings to it.  Q   Just taking it as it is on page 10 as concentrated at  Hazelton.  If you could go back to tab 572 in Exhibit  1035, volume 8.  The village tables at the back of the  tab.  THE WITNESS:  I'm sorry?  MR. ADAMS:  Tab 572, My Lord, the population tables.  THE WITNESS:  What page in the report?  MR. ADAMS:  We are at page 10 of the report.  Yes.  Yes.  Is that the same chart that --  Yes, My Lord.  Now, what I see from that, Mr. Williams, is that the  population listed for Gitanmaax with Hazelton in  brackets is 239.  Do you see that?  Yes.  Okay.  And I have suggested, and you have agreed to  me, subject to my arithmetic, that the total is 1,308?  Yes.  And what I suggest to you is that 239 out of 1,308  isn't in most people's conception of the word a  concentration.  No.  But I am talking about the population around and  about Hazelton, Mr. Adams.  I am not talking about the  townsite at Hazelton.  It's the area -- as I already  said in thinking about the white population, I  prepared in my own mind to go as far down as Lome  Creek, make that reckoning.  I -- in my estimation  Kispiox is a different band, but nonetheless it's the  Hazelton area.  Q   All right.  If I include Kispiox, I get 454 out of  1,308.  Is there any other village that you regard as  being Hazelton for purposes of page 10?  A  Well, I include in my mind because, you know, the  records are so linked.  They are fairly close to each  other, Kitwanga, Kitsegukla, Hagwilget.  They are all  within a few miles of each other.  And Hazelton was  certainly the centre of the area.  Q   And do you include, as you did on page 26, Kisgegas?  A   Certainly.  Q   All right.  So that's where I started, was asking you  if I could take the definition of the mid-section of  the claim area on page 26, and substituted, in effect,  for Hazelton alone on page 10, and I understand you to  A  Q  A 2114?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 say that I can do that without any inconsistency.  2 MR. GOLDIE:  I don't think he said any such thing.  3 MR. ADAMS:  I am asking him a question about what he said, My  4 Lord.  5 A   I have not done a demographic survey.  I have  6 attempted to arrive at a reasonable figure for the  7 population around and about Hazelton.  In calculating  8 that at page 10, I took in all the villages within the  9 Gitksan-Wet'suwet'en villages, and I took that to be  10 villages around about Hazelton.  I have made the same  11 approach at page 26.  12 Q   All right.  That was my question.  13 A   You know, the figures differ.  You exclude this and  14 you exclude that, but this is what I tried to do.  15 Q   When you say concentrated at Hazelton, you are talking  16 about the Gitksan and Wet'suwet'en villages?  17 A   That's what I had in mind, yes.  18 Q   All right.  Thank you.  That's all I wanted to know.  19 Turning to page 11 of your opinion summary.  In the  20 second paragraph you say the 1881 Census figures are  21 revealing, and you are talking about occupations.  You  22 say:  23  24 "A substantial number of males gave an  25 occupation.  Those who say they were packers  26 and miners were concentrated at Hazelton or  27 Kispiox."  28  29 Now, let me ask you this first.  There is nothing  30 in those figures, is there, that tells you what  31 proportion of the year any particular person was doing  32 any one of the occupations you referred to?  33 A   That is true.  34 Q   Okay.  And you are aware that packing and mining at  35 this time and this place were both seasonal  36 activities?  37 A   Certainly.  38 Q   Okay.  And I take it you are not suggesting that most  39 of those who gave an occupation were in what you call  4 0 white men related jobs?  That's what your summary  41 appears to suggest, and I just want to find out  42 whether that's what you intended to suggest.  43 A  Well, I took it that mining was essentially a white  44 man related economic activity, but there were Indians  45 who were mining on their own account.  And the  46 enumeration doesn't draw any distinction between an  47 Indian who may hold a free miner's certificate, or 21149  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 operates on his own account, as distinct from one who  2 is employed by a mining company.  3 Q   Maybe I didn't make my question quite clear enough.  4 What I was asking was whether you are suggesting that  5 the majority of those who listed an occupation were in  6 what you call white men related occupations.  7 MR. GOLDIE:  That's not what his summary says.  8 MR. ADAMS:  And that's why I am asking a question about it.  9 A  Well, I have said those who said they were packers and  10 miners were concentrated at Hazelton and Kispiox.  11 Those occupations were white men related, and the  12 white men, relatively few in number, were in Hazelton,  13 the jumping off place for Omineca.  14 Q   What I am suggesting to you is that the majority even  15 of the people who gave an occupation, did not give as  16 occupations what you call white men related ones.  17 A   I see what you mean.  You are quite right.  18 Q   All right.  The majority, were they not, listed  19 themselves as fishermen, hunters?  20 A   Or of no occupation.  21 Q   Or of no occupation?  22 A   Yes, you are quite right.  23 Q   All right.  24 THE COURT:  Take the afternoon adjournment?  2 5 MR. ADAMS  2 6 THE COURT  That would be a good time, My Lord.  Okay.  27 THE REGISTRAR:  Order in court.  Court stands adjourned for a  28 short recess.  29  30 (PROCEEDINGS ADJOURNED FOR RECESSED)  31  32 I HEREBY CERTIFY THE FOREGOING TO  33 BE A TRUE AND ACCURATE TRANSCRIPT  34 OF THE PROCEEDINGS HEREIN TO THE  35 BEST OF MY SKILL AND ABILITY.  36  37  3 8 LORI OXLEY  39 OFFICIAL REPORTER  4 0 UNITED REPORTING SERVICE LTD.  41  42  43  44  45  46  47 21150  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  (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Adams.  MR. ADAMS:  Q   Thank you, my lord.  Mr. Williams, I'm now at page 12  of your opinion report in the section headed "Area  Policing."  And you say there in the first sentence:  "In the period we are considering, policing in  the province was done by constables of the  British Columbia Police."  And my question is what period does that cover,  please?  A  Well, it's not entirely -- I must confess it's a bit  ambiguous.  Some of the municipalities within the  province, cities and municipalities of the province in  the period covered, I think, from say 1889 to 1910,  which was the period I assigned to the compilation of  the criminal statistics, if I may call them that.  Certain cities, of course, had their own police, but  the bulk of the land mass of British Columbia was  policed by constables of the British Columbia Police  in that period.  And in particular, the policing in  the entire claim area was done by British Columbia  provincial police right up perhaps until fairly  recently.  Q   And do I read your report correctly to say that there  was no constable in the claim area until 1885 at Lome  Creek?  A  At Lome Creek?  Q   You refer to that about two thirds of the way down  page 12.  A   There was no -- there was no constable stationed  there, but the policing was done from Port -- from  Port Essington.  Constable Brown, for example, at Port  Essington came up to do police duties in Hazelton  prior to 1885 when the first constable was at Lome  Creek.  Q   Was Brown the first, to your knowledge?  A As I recall, I think he was the first in -- at -- who  policed Hazelton on a regular basis. He came up from  time to time.  Q   Okay.  And when did he first begin to do that?  A   I cannot tell you without looking at my notes, and I'm  not even sure I could tell you then, but certainly he 21151  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 was doing it in 1872.  And Fitzgerald, as I recall,  2 corresponded with him.  He was in 1872, 1873.  3 Q   Okay.  On page -- well, beginning on page 12 you refer  4 to -- you say in the last full paragraph on page 12:  5  6 "A striking feature of policing in the last  7 decades of the 19th century and in the early  8 years of this was the engagement of Indians as  9 constables."  10  11 A   Yes.  12 Q   And then over the page you say:  13  14 "More significant...was the extent to which  15 Indians were hired ad hoc as specials by  16 provincial authorities."  17  18 A   Yes.  19 Q   Now, what significance did you attach in forming your  20 opinions to the fact that you found instances in the  21 documents of Indians accepting employment as police  22 constables?  Why was that significant?  23 A   They were participating in the process of the  24 administration of law according to the white  25 definition of it.  26 Q   And it would follow from that, would it not, that it  27 would be significant for your subject if Indians  28 rejected employment as police constables?  29 A   Yes, and there are certainly instances of it in the  30 material.  31 Q   Yes.  None of them referred to in your report, you  32 will agree with me?  33 A   I'm not sure that that is so but -- I don't appear to  34 have referred to those parts of the material in which  35 Indians rejected the task, but certainly it happened.  36 Q   All right.  37 A   It's in the documents.  38 Q   Now, on what criterion did you decide to include  39 instances where they accepted employment in your  40 summary but exclude instances where they rejected it?  41 A  Well, I wasn't dealing -- at least in my report I do  42 not -- I did not attempt to deal with it on an  43 inclusive or an exclusionary basis.  I simply referred  44 to the employment of Indians as a striking feature  45 that they were employed as ad hoc constables.  I am  46 unable to numerate the number of people who were  47 employed, but there are a lot of references to them, 21152  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  and I looked for any instance that I could find in the  documents in which the subject of special constables  was talked about and noted them all, I believe.  Q   Yes.  And my question was how you decided, as you  apparently did, to include only references to  employment and no references to refusal of employment.  A   How?  I can't answer that.  You're quite right, I have  not referred to the refusals in the report.  Q   All right.  But you do say you were aware of them?  A   Certainly.  MR. GOLDIE:  He referred to it in his evidence.  MR. ADAMS:  And I would refer you, for example, in Exhibit 1172,  which is the volume 1 of your cross-examination  binder -- no, I'm sorry, that's not going to help you.  Let me ask you to look instead at Exhibit 1035, which  are Dr. Galois' documents, volume 4, tab 191.  Now, my  lord, it's my understanding that the document that  appears at tab 191 is also in the witness' exhibit  binders in chief.  I haven't been able to identify in  a hurry the tab number.  It's provincial document  4784, and what that is is a complete handwritten  version of this document.  The version that appears at  tab 191 of Dr. Galois' documents has omissions shown  by dots.  I'm instructed it was prepared by Dr.  Barbeau.  What I have to hand up is what I am  instructed is a complete typescript of the full  handwritten document.  COURT:  All right.  This is volume 4 of Galois, tab 191?  ADAMS:  Yes, my lord, although the existing typescript in  the tab is not a complete rendering of the document.  Yes.  THE  MR.  THE  MR.  COURT  ADAMS  Q  A  Galois' material is at  MR. ADAMS  THE  THE  MR.  THE  MR.  THE  THE  This, I am instructed, is.  My lord, the document in Dr.  tab 34A of mine.  Thank you.  That's what I wasn't able to determine  quickly.  And yours is the full document?  WITNESS:  I believe so, my lord, but I'm not prepared to  accept this typescript until I've compared the two.  I was hoping that you would.  Well, does he have to do that, Mr. Adams?  Why don't  we just -- oh, his document is not a typescript.  I'm  sorry.  GOLDIE:  Well, there is a typescript following 34A, my lord.  COURT:  Oh.  It's a different typescript.  WITNESS:  I think it must -- I think they must be the same,  COURT:  ADAMS  COURT 21153  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 my lord.  Just the introductory of the language of the  2 two seems the same.  3 MR. ADAMS:  If you find anything as we talk about this document  4 that you don't recognize, please call it to our  5 attention and we'll try to --  6 MR. GOLDIE:  Why not use the one that he is familiar with in  7 3 4 A?  8 MR. ADAMS:  Because this is the only one I've got partially  9 marked.  10 MR. GOLDIE:  Oh, okay.  11 MR. ADAMS:  12 Q   All right.  What this purports to be is a long letter  13 from Mr. Fitzstubbs in his capacity as stipendiary  14 magistrate to the Attorney-General of B.C. dated the  15 5th of January 1889, correct?  16 A   Yes.  17 Q   All right.  And this recounts, does it not, Mr.  18 Fitzstubbs' efforts to persuade Indians in a number of  19 the Skeena River villages to accept employment as  20 police?  21 A   Yes.  22 Q   And he is referring, is he not, to events in 1888?  23 A   Yes.  24 Q   All right.  And he's referring, is he not, to events  25 after the events that you describe later in your  26 report in 1888 involving speeches by Fitzstubbs and  27 Roycraft and replies by a number of chiefs?  28 A   Yes.  29 Q   That is those occurred in August of 1888, this is  30 November?  31 A   Yes.  32 Q   All right.  And I want to ask you to look beginning  33 about two thirds of the way down the first page of the  34 letter.  35 A   Yes.  36 Q   And he's at Kitwanga, as appears from the first line  37 of the third paragraph?  38 A   Yes.  39 Q   And he says:  40  41 "On the morrow when the people had assembled, I  42 was addressing on the necessity and advantage  43 of abandoning criminal practices and conforming  44 to law, and if their relations in the  45 Kitwancools, of whom they seem apprehensive  46 since the late events, when I was asked by the  47 second chief if the Yook were illegal." 21154  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  And I pause there to ask if you were aware what a Yook  is?  A   This is a feast, I take it.  MR. ADAMS:  All right.  THE COURT:  I'm sorry, what is the Yook?  take it to be the feast, my lord,  yes .  THE WITNESS:  I  THE COURT:  Oh,  MR. ADAMS:  Q  A  Q  "Believing that an act of prohibiting the  ceremony had passed the Commons (unfortunately  I am without the Indian Act) and that I had  been truthfully informed on the previous  evening.  I answered that is Mr. Chief Lalt,"  L-a-l-t," then said, 'That he had already  issued invitations to the different people to  attend his Yook, and that he could not now  withdraw them, he had no desire to violate the  law but even if he were afterwards punished he  must proceed with it.  Others followed him and  for three hours and a half the Yook question  was discussed, and from the earnest and  sometimes vehement manner in which its  retention was advocated it was obvious to me  that I had been misled, not one rising to utter  one word against it or to confirm the  statements of the evening before.  The chiefs  said they had hoped to receive the Crown  (badge, but that now, if offered they could not  consistently accept, without staining it, as  they were about to participate in an event  which the law condemned.  Thus I did not, could  not offer the Crown, but told the Chiefs that  under any circumstances, the Government held  them responsible for the good order of their  people.'"  And then skipping to the beginning of the next  paragraph on page 2, he's apparently at Kitsegukla?  Yes.  Okay.  And he writes:  "At Kitsayookla the Chiefs only were in  conference with me, for a whole evening, and  declined to accept the Crown.  Last of all they  said, they felt sure some deception was  intended, that they had rights, particularly in 21155  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 the land and fisheries, and they feared being  2 entrapped into their surrender.  Once they were  3 candid,"  4  5 and there's a question mark after the word candid,  6  7 "there was little difficulty in dealing with  8 them.  It was arranged that the law against  9 Yook should sleep for the winter or until the  10 Government warned them of its intended  11 enforcement, and they then gladly accepted the  12 Crown and the implied duties, and guaranteed  13 the good conduct of the people during the  14 coming Yook, reserving the right to resign the  15 badge when the surveyors came, so that they  16 might be unfettered when attending to the,"  17  18 and then in square brackets,  19  20 "[illegible word] of the tribe."  21  22 A   It might be actions.  23 Q   Okay.  And then on page 3 of the letter --  24 A   I would like to draw to your attention the following  25 sentence, Mr. Adams:  26  27 "After the Chiefs explained to the people the  28 result of our interview I was invited to speak  29 to them and instal their chiefs."  30  31 Q   Okay.  On page 3, the paragraph beginning:  "On the  32 24th (of) Novr I went to Kispyooks..."  33 A   Yes.  34 Q   Okay.  And about ten lines down, the sentence  35 beginning:  36  37 "Where after a long interview with the Chiefs  38 similar to that at Kitsayookla..."  39  40 A   Yes.  41 Q  42 "...they agreed to keep order amongst,"  43  44 and then in square brackets,  45  46 "[illegible word] people..."  47 21156  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Their people.  2 Q   Their people.  3  4 "...and be sworn in and wear the badge.  Next  5 day when the people had collected after  6 speaking to them I was about to swear in the  7 chiefs, when a young Indian stood up and in  8 very dramatic language..."  9  10 A  Very derisive I have it.  11 Q   Derisive?  12 A   Yes.  13 Q   Thank you.  14  15 "...said he had no wish that his chief should  16 give countenance & aid to the Government, they  17 were a people of themselves, had their own laws  18 and would acknowledge none other[;] six more  19 followed in the same strain, and on calling on  20 the constables elect to stand up and be sworn  21 in, they tremblingly declined, backed down in  22 fact before intimidation."  23  24 And I think this is a passage you read in your  25 evidence.  26 A   Yes.  27 Q  28 "I exhorted them to show the Government and  29 their own people that they were not only men  30 and brave, but Chiefs, but to no purpose than  31 taunting them with pusillanimity told the  32 people they were unworthy the compliment  33 offered them, that the Government would find  34 policemen on all occasions requiring them,"  35  36 and so on.  37 A   Yes.  38 Q   And then if you go to page 5, in the second full  39 paragraph beginning:  40  41 "The Head chief alone of the Haquilgets..."  42  43 A   Right, I have it.  44 Q  45 "...has evinced a desire to observe the law and  46 so, as he says improve his people but such was  47 the opposition of his fellow chiefs, that his 21157  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 life was threatened if he accepted the badge.  2 However he is a special though not publicly  3 sworn in the tribe having determined not to  4 witness the ceremony, and I could not give them  5 an opportunity of slighting a summons and  6 showing combined repugnance to authority - a  7 mischievous example."  8  9 And he goes on to say:  10  11 "Of the Kiskahgas and Coldoh Indians I know but  12 little, as the first is at least four and the  13 last seven days travel from here.  I am told,  14 however, that the Kiskahgas people, tho' they  15 have little love for Pacht," P-a-c-h-t, "have  16 less for the law, and are endeavouring by  17 threats to deter the,"  18  19 and then there's the word "prison" crossed out,  20  21 "witnesses from appearing against him, and it is  22 more than likely I shall have to go for them  23 myself."  24  25 A   Yes.  In fact, he did not.  Louis went.  26 Q   And then the bottom of page 6, the last paragraph, he  27 writes:  28  29 "To sum up there has been no serious crime up to  30 this time, and I do not anticipate any, now  31 that the first meetings are nearly all over,  32 but the promises and appearances of last autumn  33 were to a great extent false."  34  35 Do you understand him there to be referring to the  36 autumn of 1888?  37 A   Yes.  38 Q   Okay.  39  40 "There is, I find, a strong race antipathy,  41 above all they abhor the law, and their dislike  42 for the Government and the officials whom they  43 are taught to suspect is made evident daily.  44 It is next to impossible to get the smallest  45 assistance or truth from them in anything  46 pertaining to law, those affording it incurring  47 an amount of popular odium as few Indians have 2115?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the courage to face.  However, due recognition  of the law depends entirely on our  determination and power to enforce it."  A   Yes.  Q   Would you not say, Mr. Williams, that that would have  been a significant document to have addressed in the  context of Indian policing?  A   Certainly.  Q   And it is not --  A  And I did address it.  Q   You didn't address it in your summary, did you?  A   No.  I notice at page 18 -- or page 17 as I have it on  the extract -- I'm not sure that the pagination is the  same as this one here, I'm looking at the extract in  my tab, tab 34A -- that at Kitseguecla the chiefs did  take the badge there following the Yook.  Okay.  My lord, might that typescript be marked as  tab 17 of my cross-examination binder?  Yes, all right.  That would be 1172.  THE REGISTRAR:  Yes.  THE COURT:  Yes.  1172-17.  MR. ADAMS:  THE COURT:  MR. ADAMS:  (EXHIBIT 1172-17 - LETTER FROM FITZSTUBBS TO AG DATED  JANUARY 5, 1889, EXHIBIT 1178-34A)  MR.  ADAMS  Q  A  Q  A  Q  A  Q  MR. GOLDIE  And just before I leave that reference to that  document, Mr. Williams, you will agree with me that it  is not referred to in the notes to your opinion  summary either, is it?  In the footnotes?  Yes.  If you say so, Mr. Adams.  I haven't examined them  with reference to that.  You don't disagree with that statement?  I don't quarrel with you, no.  Okay.  So that in March of 1987 you rendered an  opinion, which is your opinion report which you have  adopted today, and you took up the subject, as part of  your task, of area policing, and you attached  significance to the fact that Indians had accepted  employment as police, and yet nowhere in your opinion  and nowhere in its references did you refer to that  document or those events?  The document, my lord, is a summary of opinion 21159  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 evidence.  It was not tendered as a report.  2 A  What you say is correct, but I'd read that document  3 before the report.  4 Q   I see.  5 A   It was not one of the documents I read subsequently.  6 I read it before.  7 Q   All right.  So you were aware of that before you wrote  8 the report?  9 A   Oh, yes.  10 Q   And did you make the decision not to refer to it in  11 the summary?  12 A   Certainly.  It's my summary.  13 Q   All right.  And why was that not sufficiently  14 significant to attract your attention in the summary?  15 A   I have not mentioned in my summary every document that  16 I have examined.  17 Q   Yes.  And what was it about that document that told  18 you that it was of insufficient significance to refer  19 to or list as a source for your summary?  20 A   It is not of insignificant significance.  It's an  21 important document.  It's one I looked at.  It's one I  22 considered.  When you take the document as a whole, he  23 was undoubtedly having some trouble talking some of  24 the chiefs and their people into accepting the badge.  25 Some took it, some didn't.  Some were employed.  And  26 he records out of all of that the appointment of Big  27 Louis as the constable for Hazelton, or as he became  28 the constable.  29 Q   All right.  And it's true, is it not, in the middle of  30 page 13 of your summary you refer to Big Louis?  31 A   I'm sorry.  32 Q   Middle of page 13.  33 A   Yes.  34 Q   And that's where you refer to him as a Gitksan from  35 Kispiox sworn in by in Napoleon Fitzstubbs?  36 A   Yes.  37 Q   Okay.  Now, I take it from both the mention of him  38 here and the quotation from -- about him from  39 Fitzstubbs that you attach significance to the fact  40 that he -- that he accepted police employment?  41 A   Yes.  42 Q   Okay.  And he is reported by Fitzstubbs in the passage  43 you quote on the bottom of page 13 as having boldly  44 declared his adherence to the law, his determination  45 to be governed by it?  46 A   Yes.  47 Q   All right.  And you attached significance to that Fitzstubbs'  A  Yes.  Q  All right.  A  In fact, he  21160  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 statement, did you not?  2 A   Yes.  3 Q   And what was the significance of Louis making that  4 statement in your mind?  5 A   The significance of Fitzstubbs making that statement  6 about what Louis had said.  7 Q   Yes.  Well, let me do that in stages then.  You accept  account of what Louis said?  9  10  11 A   In fact, he -- in one of Fitzstubbs' letters he  12 attaches the statement from Louis.  But, yes, I do  13 attach significance to it.  Big Louis, who was one of  14 the chiefs of the -- at Kispiox, became the -- the  15 constable at -- Indian special constable on salary at  16 Hazelton and was the constable for the -- for Hazelton  17 for all purposes, for all whites and Indians.  18 Q   Yes.  And it follows from the significance in your  19 mind of that statement, does it not, that if Louis  20 said other things at other times about the law and his  21 position in relation to it that those would also be  22 significant for you?  23 A   Yes.  24 Q   And you're aware that he did at other times say other  25 things about the law and his position in relation to  26 it?  27 A  Well, there were reports by some of the other  28 villagers that he had said -- made statements that  29 seemed to be contrary to his accepting the position as  30 constable, yes.  31 Q   And you were aware of those at the time you wrote your  32 report?  33 A   Yes.  34 Q   And you didn't —  35 A   If they are the ones that -- the ones you are speaking  36 of and I am speaking of are the same, yes.  37 Q   And you didn't see fit to include reference to them in  38 your summary?  39 A   No.  40 Q   Why was that?  41 A  Why was that?  42 Q   Yes.  43 A   I preferred to accept what Fitzstubbs had to say about  44 Louis combined with Louis' own statement, and I took  45 those as being of greater reliance than statements  46 made by other people.  47 Q   Including statements by Mr. Loring? 21161  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  THE COURT  MR. ADAMS  THE COURT  THE WITNESS  MR. ADAMS:  Q  A   Yes, who subsequently recanted.  Q   All right.  I wonder if you could look, please,  Exhibit 1035, which are the Galois documents, vo  4.  I think that's the volume you last had out.  that's tab 206, which is just about the middle o  volume.  Well, just a moment, Mr. Adams  204 you say?  206, my lord, in volume 4.  All right.  Is this Loring's letter of October 12th, 1  at  lume  And  f the  I don't have it yet.  9?  cting  rday  Correct.  And he's addressing Mr. Moffatt, the a  superintendent of Indian Affairs in Victoria?  A   Yes, that's so.  I think I dealt with this yeste  or the day before.  MR. GOLDIE:  It's tab 74, I believe.  MR. ADAMS:  Q   All right.  Do you have that letter in front of  A   Yes, I do.  Q   All right.  And he says there:  you:  A  Q  A  Q  Right.  'I must apprise the Department of the results  after having had a council with the  Kit-au-max," K-i-t-a-u-m-a-x, "tribe on the  evening of the 5th instant."  'The feeling amongst them I found to be in the  highest degree in favour of the law and  regulations laid down in my instructions."  Right.  "They conceded to everything, even to giving up  the Potlach.  But the speaking of an Indian by  the name of Louis, employed by Capt. Fitzstubbs  S.M. as Constable turned the scale in  opposition to the abolishing of their old  customs.  He spoke before me and all assembled  as follows ..."  And you understand what follows to be Loring's  quotation of Louis?  A   That's right.  Q   And this is the quotation: 21162  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "My uncle is the Head Chief of Kits-pioux, the  2 same told me, to oppose any new law, that  3 should some to this country.  That they had  4 their own laws and that they wanted no other.  5 I know the law is against stealing etc.  I am  6 an officer of the law myself.  We do not want  7 anyone to come to Kits-pioux with any new laws  8 from the Govt.  How would the Govt, like to  9 have their laws locked up, as they do ours."  10  11 A   Yes.  12 Q   And then carrying on, and I believe this is Loring  13 speaking now again:  14  15 "Then I told him, it was for those under oath to  16 uphold the law, to help to enforce and not to  17 obstruct it.  Furthermore, that his remarks  18 were uncalled for, as I was addressing the  19 Kit-au-max tribe and intended to visit his  20 village in a few days or so.  21 Wednesday the 9th instant I started for  22 Kits-pioux.  On arriving we were told that the  23 Ind. Constable Louis had sent them advise, to  24 oppose whatever I should have to say.  25 I assembled the tribe in council, was  26 eagerly listened to, as the presence of my wife  27 inspired them with confidence, despite the  28 alarm given.  They consented to send their  29 children to school, stop eating dogs and  30 everything else mentioned, but to give up the  31 Potlach they could not, as they were advised by  32 Capt. Fitzstubb's Constable that the law had no  33 power to punish it as an offence and that they  34 could go on, as they had been doing.  This same  35 Constable is kept on under pay, even after  36 Capt. Fitzstubb's departure from here to the  37 coast."  38  39 And you understand that as a reference to Louis, do  40 you?  41 A   Yes.  42 MR. ADAMS:  All right.  43 MR. GOLDIE:  That's at tab 74 in Mr. Williams' book, my lord, a  44 slightly better copy.  4 5    MR. ADAMS:  46 Q   And I think you said, Mr. Williams, that you had  47 referred to this in your evidence in chief? 21163  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   And that's so.  And the reference, my lord, is at  3 volume 282, page 21046, and the question referred to  4 tab 74, and the answer was:  5  6 "A    But this was a -- this is a report by Loring  7 and one that I have perhaps loosely  8 characterized as a town meeting.  9 Q    Yes.  10 A    This one was at Kispiox.  11 Q    In October of 1889?  12 A    Yes, it was a separate different meeting  13 from the one that Fitzstubbs reported on.  A  14 later one.  15 Q    Yes.  Now, I think that that does bring us  16 to 1893. . . "  17  18 A   Yes.  19 Q   And that was the extent of your comment on that  20 document, was it not?  21 A   That was so, yes.  22 Q   Okay.  23 A   That was all I was asked.  I -- I'm prepared to  2 4 comment on it if you want me to.  25 Q   Well, what I'd like to ask you again in the context of  2 6 this document is why you would have regard to and  27 quote Fitzstubbs on Louis and Fitzstubbs' version of  28 what Louis had to say and make no reference in your  29 summary or in your evidence to what Loring had had to  30 say on the same subject?  31 A  Well, as I said, Loring later changed his mind about  32 Louis.  But what's happening here is that there was a  33 considerable discussion about Louis as a constable at  34 the same time upholding the continuance of the feast  35 and whether as a constable he should give up his  36 badge.  If the feast was illegal, how as a constable  37 could he conscientiously do his police duties by  38 condoning, if it was, an illegal act in the holding of  39 the feast.  That was what all this discussion was  40 about.  It's pretty good law, as a matter of fact,  41 because I think Begbie had given his decision on the  42 potlatch case by here -- by this time.  Whether  43 Fitzstubbs was aware of it or Louis was aware of it I  44 don't know, but in October of '89, as I recall, Begbie  45 had handed down his decision on -- but anyway, that's  46 speculation on my part, I must admit.  But the  47 discussion here is about the potlatch and whether 21164  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Louis as a police officer could continue to be a  2 police officer since he wanted it continued, since he  3 wanted the feast continued.  Loring, of course, was  4 opposed to the feast.  5 Q   The discussion also, according to the documents I just  6 read from, was about the law, was it not?  7 A   That was the law, but that was the potlatch law they  8 were talking about, I take it.  That's how I take it,  9 Mr. Adams.  10 Q   Oh, you think this is only about the potlatch law?  11 A   Yes.  12 Q   Well, he says on the first page:  13  14 "I know the law is against stealing etc..."  15  16 That's not part of the potlatch law, is it?  17 A  Well, but that -- but, you see, at the second page,  18 the underlined portion of the letter:  19  20 "...but to give up the Potlach they could not,  21 as they were advised..."  22  23 This was a discussion about the continuance of the  24 feast.  The second paragraph of his letter he says:  25  26 "They conceded to everything, even to giving up  27 the Potlach.  But the speaking of an Indian by  28 the name of Louis..."  29  30 And here's where Loring's criticism of Louis was  31 founded, was that Louis defended the potlatch.  That's  32 how I take the letter.  33 Q   I'm just looking at the references to law in the  34 letter.  In the second paragraph of the letter the  35 same -- that is Louis told me -- I'm sorry.  36  37 "...the same,"  38  39 referring to the Louis' uncle in Kispiox,  40  41 "told me to oppose any new law, that should come  42 to this country."  43  44 A   The potlatch law had just come.  45 Q   And the reference to the law against stealing, that's  46 not the potlatch law --  47 A   No. 21165  D.R. Williams (for Province)  Cross-exam by Mr. Adams  -- I think we've agreed?  No.  1  Q  2  A  3  Q  4  5  6  7  A  8  9  10  11  Q  12  13  14  15  16  17  A  18  Q  19  20  21  22  23  24  A  25  Q  26  27  A  28  29  Q  30  31  32  33  34  35  36  37  38  A  39  MR. GOLDI  40  41  THE WITNE  42  43  44  45  46  MR. ADAMS  47  Q  "I am an officer of the law myself."  That's not a reference to the potlatch law?  No.  No, but he gives that as an instance of the sort  of thing -- you know -- how can he support the  potlatch and oppose the law of stealing.  This is the  dilemma that he was placed in.  And he carries on:  "We do not want anyone to come to Kits-pioux  with any new laws," plural, "from the Govt."  Do you see that?  Um hum.  And then on the second page in the second paragraph:  "...the Ind. Constable Louis had sent them  advise, to oppose whatever I should have to  say. "  Yes.  All right.  And Loring was certainly talking about  more than the potlatch law, wasn't he?  I think he was talking about -- the whole context of  this letter is the enforcement of the potlatch law.  Does it not appear from the second full paragraph on  the second page when -- in the second sentence when he  says :  "They consented to send their children to  school,"  that you understand is something that Loring was  attempting to persuade them to do in Kispiox?  I suppose so.  'Ģ1:  I don't think there's any law to that effect, my  lord.  3S:  They consented to send their children to school,  stop eating dogs and everything else mentioned, but to  give up the potlatch they could not.  And he  underlines it, or somebody has underlined it.  That  may not be Loring's underlining.  I don't know.  Now, what I had begun this by asking you was would it 21166  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 not have been equally significant -- you referred to  2 Louis' statements -- his employment and his statements  3 about the law.  Would it not have been a balanced  4 approach to refer also to his reported statements even  5 accepting that we're only talking about the potlatch  6 law?  7 A  Well, as I said, I was not directed to inquire in  8 detail into the working of the potlatch law, but I did  9 not refer to this in my report.  That's so.  10 Q   And on —  11 A   But I did — it —  12 Q   On what criterion of things to include and things to  13 exclude did you include the one reported statement and  14 exclude the other?  15 A  My judgment, Mr. Adams.  I can't -- I have not  16 reported on every single document I have seen.  17 Q   Yes.  And why in this particular case include one and  18 exclude the other?  What went into your judgment?  19 A   I in my report had referred to the employment of  20 Indian special constables.  It's a summary of an  21 opinion.  It was not a dissertation on the subject.  22 And had I -- I suppose had I embarked on a lengthy  23 dissertation, I probably would have mentioned it, but  24 I didn't think it necessary for the purposes of the  25 formulation of my opinion.  26 Q   Let me ask you this.  Are you aware of any point in  27 your summary where when it came to a choice between a  28 document which you saw as supporting the thesis that  29 law and order, as you defined it, was imposed and that  30 it was accepted by the Indians as opposed to a  31 document that tended to refute that thesis, did you  32 ever include the document that refuted the thesis in  33 preference to the document that supported it?  34 A   I have weighed all the documents that I have read, and  35 I have formulated my opinion upon them.  36 Q   Yes.  What I was asking for was any example of a time  37 when you chose between two documents or sets of  38 documents, one of which supported the thesis that  39 represents your opinion today and one of which tended  40 to refute it, where you chose the document that tended  41 to refute it?  42 A   I have not, I think, included in here any specific  43 reference to documents which tend to refute the  44 opinion I have offered.  But this is far from saying  45 that I didn't think about them.  46 Q   Page 14 of your opinion summary, still with reference  47 to Indian constables, you say: 21167  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "After 1909, there are no more references to  2 their employment,"  3  4 correct?  5 A   I found no more references to their employment within  6 the claim area, no.  7 Q   All right.  Did you find a document that told you why  8 there were no more references to their employment in  9 the claim area?  10 A   I did not.  11 Q   You're not aware that in 1909 Mr. Loring is supposed  12 to have discharged them all?  13 A   No, I was not aware of that, as a matter of fact.  14 Q   All right.  You say that you've reviewed Dr. Galois'  15 documents?  16 A   Yes.  17 Q   All right.  Could you look at Exhibit 1035, volume 5,  18 tab 308?  19 A  What's the reference again, please?  20 MR. ADAMS:  It will be volume 5.  21 THE REGISTRAR:  You haven't got that.  22 MR. ADAMS:  23 Q   It's tab 308, which is about three fifths of the way  24 through the volume.  25 A   308.  This is Loring's letter to Hussey of 12th of  26 September of 1909.  27 Q   That's Maitland-Dougall's letter to Hussey of that  28 date.  29 A   Oh, yes.  30 Q   And you'll see there in the fourth paragraph on the  31 first page --  32 A   Oh, yes.  33 Q  34 -- "Mr. Loring has told me himself that he has  35 entirely lost his control and grip over them,"  36  37 and here I believe he's speaking of the Indians at  38 least at Kitwanga, Kitwancool, and Kispiox.  39 A   Yes.  40 Q   In the second paragraph.  41 A   Yes.  42 Q  43 "...and has discharged all Indian police as he  44 could not trust them."  45  46 A   Yes.  47 Q 2116?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "The Indians will have nothing to do with him  2 and I find already that they are coming to me  3 with matters that he ought to settle."  4  5 A   Yes.  6 Q  7 "In these cases I tell them to go to their  8 Agent."  9  10 A   Yes.  11 Q   Does that assist you in knowing why you don't find  12 references to Indian police in the claim area after  13 1909?  14 A   No, it doesn't.  I think he's talking about the Indian  15 police working on the reserve, not Indian police hired  16 by special -- not special constables hired by the  17 provincial authorities.  Although at this time Loring  18 was a J.P., and I think probably a provincial J.P.,  19 but I don't think Loring would have had any  20 jurisdiction to discharge out of hand all special  21 constables.  He's talking about the -- I think -- I  22 take it -- I've seen the letter, now that you referred  23 it to me.  I take it he's talking about the dominion  24 police constables hired to work on the reserves  25 exclusively.  2 6 Q   Have you found any other document that contains any  27 other explanation of why there are no references to  28 Indian constables after 1909?  29 A  Well, I infer from the fact that the chief constable  30 was apppointed in 1909 and the entire police force was  31 beefed up somewhat.  There was a chief constable  32 appointed that year, Maitland-Dougall, and I -- I  33 think I've mentioned this in my report somewhere, that  34 I surmise that from the appointment of the chief  35 constable with additional regular police officers the  36 necessity for employing Indian special constables  37 disappeared or lapsed.  38 Q   And that is your surmise, isn't it?  39 A   That is what I infer from the material, yes.  4 0    MR. ADAMS:  Okay.  41 THE COURT:  We'll adjourn.  Thank you.  Ten o'clock.  42 THE REGISTRAR:  Order in court.  Court stands adjourned until  43 ten o'clock tomorrow.  44  4 5 (PROCEEDINGS ADJOURNED AT 4:02 P.M.)  46  47 21169  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 I hereby certify the foregoing to be  2 a true and accurate transcript of the  3 proceedings herein to the best of my  4 skill and ability.  5  6  7  8 Leanna Smith  9 Official Reporter  10 United Reporting Service Ltd.  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


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