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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-16] British Columbia. Supreme Court Oct 16, 1989

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 20811  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 16 October 1989  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 16th day of October, 1989.  In the  6 matter of Delgamuukw versus Her Majesty the Queen at  7 bar, my lord.  May I remind you, sir, you are still  8 under oath.  9 THE WITNESS:  Yes.  10 THE REGISTRAR:  Would you state your name for the record,  11 please?  12 THE WITNESS:  David Ricardo Williams.  13 THE REGISTRAR:  Thank you, sir.  14  15 DAVID RICARDO WILLIAMS, Resumed:  16  17 THE COURT:  Mr. Adams.  18  19 CROSS-EXAMINATION BY MR. ADAMS ON QUALIFICATIONS:   (Continued)  20 Q   Mr. Williams, we were talking on Friday about various  21 items in your C.V.  One of the things I had asked  22 about was a paper you say you gave in 1988 on Indian  23 land claims and I wonder if you have had an  24 opportunity to provide that to your counsel.  25 MR. GOLDIE:  Yes, he did, my lord, and I am sorry to say I asked  26 for a copy to be made in our office and I simply came  27 away without it.  I will have it brought up in the  28 course of the morning.  I apologize to my learned  29 friend.  3 0 MR. ADAMS:  31 Q   My lord, I don't know what's in the paper.  It may be  32 that it will be relevant to my cross-examination on  33 qualifications and if that's so we may have an awkward  34 problem, but I will attempt to steer around it.  35 A   It was 1987, Mr. Adams.  36 Q   I have a referene in your 1989 C.V. to Indian Land  37 Claims Rule of History or Rule of Law, Carleton  38 University, June 1988.  Is that the same paper or a --  39 A   If it says 1988, it was wrong.  It was 1987.  40 Q   There is not another paper on that subject?  41 A   No, no.  42 Q   Perhaps while we are on that subject, you could  43 describe for me what that paper was about?  44 A   It was a discussion of the use of history as a  45 solution to a -- solution of or to legal issues with  46 particular reference to native land claims.  It's  47 the -- oh, approximately a third of the paper was 20812  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 taken up with instances in the last hundred years or  2 so in the courts of this country in which historical  3 principles were examined by the courts in particular  4 pieces of litigation; for example, the well known  5 Eskimo case in the Supreme Court of Canada, the extent  6 to which the courts could examine the historical  7 documents when considering litigation or when  8 considering legal issues.  It was an examination of  9 some particular cases in which judges have resorted to  10 or had looked at, I should say, legal documents  11 sometimes of their own volition apart from documents  12 cited by counsel.  It was then I turned particularly  13 to the use of historical documents in land claims  14 cases, I discussed the Bartleman case for example.  15 THE COURT:  I am sorry?  16 THE WITNESS:  The Bartleman case, my lord.  17 THE COURT:  Yes, thank you.  18 THE WITNESS:  And Calder, having regard to what Mr. Justice Hall  19 had observed in that case on the use of historical  20 documents.  Shall I continue?  21 MR. ADAMS:  22 Q   Please do.  23 A  And then I turned my attention to the role which  24 expert witnesses could play in discussing documents  25 and some observations on certain witnesses which had  26 been made by the trial judge in the Bear Island case.  27 And I concluded that in a great variety of cases it  28 seemed appropriate that historical documents should be  29 used, but particularly in land claim cases it seemed  30 to me and this was the point I made in the paper, that  31 it was almost impossible to separate legal issues from  32 historical principles, the facts of history or at  33 least the assumed facts of history that the two, the  34 history and law, were intertwined in land claims  35 cases.  And the courts, as these cases come before the  36 courts, the courts will have to have continuous resort  37 to historical documents, archival material in reaching  38 decisions.  39 Q   Did you discuss this case?  40 A   I referred in the paper to the fact that I had been  41 engaged by the Attorney-General to offer or to examine  42 archival material.  I discussed this case in general  43 terms.  Saying it was before the court and at that  44 time, this was in June of 1987, I guess the case had  45 just got underway I suppose then, had it?  I have  46 forgotten.  47 Q   Well, your report was complete, was it not? 20813  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 A   Yes.  2 Q   Yes.  Did you draw any conclusions in that paper about  3 the existence or the character of aboriginal rights?  4 A   No.  I drew no conclusions.  I discussed -- I  5 discussed -- I discussed Mr. Justice Steel's decision  6 in the Bear Island case in which he talks about or,  7 well, certainly talked about aboriginal rights, yes.  8 Q   And approved of it?  9 A   Beg your pardon?  10 Q   And approved of it?  11 A   No.  It was what I considered to be a neutral  12 discussion of the subject.  13 Q   Mentioned —  14 A   I did remark that his decision which had not yet gone  15 to the Ontario Court of Appeal was likely to be  16 appealed and what he had to say still had to be tested  17 by the higher courts.  18 Q   You mentioned in your 1989 C.V. your membership in the  19 Osgoode Society?  20 A   Yes.  21 Q   Could you just explain for us please what the Osgoode  22 Society is?  23 A   The Osgoode Society is a legal history body set up  24 about ten years ago by the Law Society of Upper Canada  25 under the prompting of the then Attorney-General, Mr.  26 McMurtry, and it -- the Ontario Attorney-General, it  27 is devoted entirely to fostering studies in legal  28 history and legal biography.  It has -- it gives money  29 to scholars and authors to make studies in the field  30 of legal history.  It encourages writing on the  31 subjects.  My biography of Sir Lyman Duff was  32 co-published by the Osgoode Society in conjunction  33 with the University of British Columbia Press.  And I  34 have just started working for the Osgoode -- working  35 on a project which will ultimately be published by the  36 Osgoode Society on a series of biographies of eminent  37 Canadian lawyers who did not become judges.  Professor  38 Hamar Foster from the University of Victoria at least  39 received a substantial grant from the Osgoode Society  40 to do work on the early administration of law in  41 British Columbia, in colonial British Columbia.  42 Q   I take it apart from your work on Duff and apart from  43 the work in progress on biographies of lawyers, you  44 haven't published anything under the auspices of the  45 Osgoode Society?  46 A   That is true.  The book on Duff was co-published and I  47 hope that -- expect, I should say, that this biography 20814  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 work will eventually appear.  2 Q   Okay.  Do you know who David Flaherty is?  3 A   Yes.  4 Q   Who's he?  5 A   He is a professor, I am not sure at what university he  6 is, he is acknowledged -- he is acknowledged in this  7 field.  He has written -- rather, he's not only  8 written but he's also collected essays on the subject  9 of legal history, various aspects of it.  10 Q   Yes.  He edited a two-volume collection for the  11 Osgoode Society on the history of Canadian law?  12 A   Yes.  13 Q   And you're not a contributor to either of those  14 volumes?  15 A   No.  16 Q   Now, we touched briefly on your item as a member of  17 British Columbia Studies and I wondering if you could  18 confirm for me first of all that all that involves is  19 signing up and subscribing to a publication, all that  20 necessarily involves, I should say?  21 A   Yes, that's so.  I think anybody can become a member  22 of B.C. Studies.  23 Q   What's your view of the status of the publication,  24 B.C. Studies, among historical scholars?  25 A  My view of it?  26 Q   Yes.  27 A   I think it is a reputable journal.  28 Q   And have you published anything in B.C. Studies?  29 A   I don't think I have.  Two or three of my books have  30 been reviewed in it but I don't think I have  31 contributed anything to it.  32 Q   Have you ever submitted anything to it for  33 publication?  34 A   I don't think so.  35 Q   The eminent Canadian lawyers who are to be covered in  36 your biographical publication, who does that cover?  37 A  Which lawyers have I selected to write about?  38 Q   Yes.  39 A   The list is not complete but I can give you some of  40 them.  41 Q   Sure.  42 A   Senator Farris from this province; Isaac Pitblado from  43 Winnipeg; W.N. Tilley, Toronto; Eugene Lafleur, and  44 Aime Geoffrion, both of Montreal; and J.L. Ralston.  45 There are still -- I expect that there will be eight,  46 possibly nine subjects.  I think I have six or seven  47 settled on.  I have actually started working on 20815  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  Senator Farris' career.  MR. ADAMS:  Are you broadly familiar with the secondary  literature that relates to the subjects of the  evidence you have summarized and propose to give here?  GOLDIE:  I am sorry, perhaps my friend can be a little more  precise.  MR  MR  ADAMS  Q  Well, you understand the nature of the evidence that  is proposed you should give here?  A   I read very little secondary material in connection  with my work for the Provincial Attorney-General.  I  have read, oh, various works, I really can't remember.  I am sure I have read various works by Mr. Saunders  and I have read -- there is a very useful article in  the University of Toronto Law Journal, I think it was  by a professor of law at the University of Toronto,  M.H. Ogilvie, on the role of expert witnesses, but I  haven't read very much, I admit, in the secondary  field on it insofar as literature relating to land  claims is concerned.  MR. ADAMS:  What about this literature relating generally to  what you characterize as the Imposition of Law and  Order and the Indian reaction to it in British  Columbia?  MR. GOLDIE:  I don't think he's giving evidence on British  Columbia, my lord.  That's not the characterization of  his report.  His imposition and acceptance of law and  order within the claim area.  MR. ADAMS:  The last I heard, my lord, the land claim area was  within the province of British Columbia and my  question has to be that general.  THE COURT:  Oh, there is a simple problem between you that can  easily be straightened out.  MR.  ADAMS  Q  A  Let me ask it this way, Mr. Williams:  There is,  you're aware, a secondary literature that touches on  that subject, that is The Imposition of Law and Order  and the Indian reaction to it in British Columbia,  including but not limited to the land claim territory?  My work was restricted, Mr. Adams, to reading the  archival materials that probably could be found  relating to the land claim area.  I was doing  original, what I considered to be original research;  that is to say, looking at original documents.  If I might just say, my lord, at volume 279, page  20799, Mr. Goldie introduced Mr. Williams' evidence by  saying he was tendered as a person called to undertake 20816  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 research directed to the imposition and acceptance of  2 law and order in British Columbia with a particular  3 reference to the land claim area in this case.  4 A  Well, I did not examine the imposition of law and  5 order in other regions of the province in order to  6 prepare myself for this appearance.  7 Q   My question, Mr. Williams, is more general.  It is,  8 are you aware of such a literature?  9 A   Yes.  10 Q   And are you familiar with it?  11 A   I have read -- I have read various works that relate  12 to that topic.  There is an unpublished thesis, for  13 example, by a chap named David Farr, who's a professor  14 of history, who wrote a thesis, was a bachelor's  15 thesis, at the University of British Columbia in 1944  16 on administration of law in Vancouver -- on Vancouver  17 Island and British Columbia in the colonial period  18 which I consider to be an authoritative work.  I have  19 read -- Professor Hamar Foster has done various  20 writings on administration of law in the province  21 generally.  22 Q   The only secondary source that you refer to in your  23 summary and that you referred to in your evidence in  24 chief on qualifications was a publication you cite as  25 Bancroft; is that correct?  26 A   Yes.  27 Q   That dates from when?  28 A   That would have -- that was published, I think, in --  29 I can't be sure, probably 1890.  30 Q   1887.  Does that sound —  31 A   Yes, fine.  32 Q   Okay.  Now, are you aware of a publication in 1980 in  33 B.C. Studies by one Allen Smith called The Writing of  34 British Columbia History?  35 A   I don't recall it.  36 Q   Do you know who Allen Smith is today?  37 A   I don't know who Allen Smith is, I regret.  38 Q   You are not aware that he's been the editor of B.C.  39 Studies since 1983 I am instructed?  40 A   Yes.  41 Q   But you are not aware of that article?  42 A   No.  43 Q   Do you recall writing in your 1977 version of your  44 book on Justice Begbie that, "No one could attempt and  45 account of any aspect of British Columbia history  46 without reading Bancroft or Howay and Scholfield or  47 Margaret Ormsby," among others, there is a reference 20817  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  to a biography of James Douglas?  A   Yes.  Q   You recall that?  A   Yes.  Q   But I take it, because you are unfamiliar with the  Smith article, you are also unfamiliar with his  evaluation of Bancroft, Howay and Scholfield and  Ormsby as it relates to the Indian history of British  Columbia?  A  Well, I am unfamiliar with his appraisal of those  works, yes, but I certainly have read Howay and  Scholfield, I have certainly read Ormsby, and I have  certainly read Bancroft, and if the tendancy of  Smith's article was to denigrate the work of Ormsby in  particular and Bancroft, I must say I would have to  disagree with him.  Bancroft has been re-appraised.  I  think at one time he was sought to be a bit of a  charlatan but I think that view of him is now not  generally held.  You can't make much out of Howay and  Scholfield.  I admit it's pretty helter-skelter  history.  Q   You are not aware then that Smith treated Bancroft and  Howay and others as being in the first generation of  the province's historians and commented as follows:  "When, therefore, the first generation of the  province's historians did not ignore the Indian  altogether it dealt with him in the accents -  disgust, superiority, paternalist condecension -  of the civilization whose accomplishments it was  recounting."  MR.  MR.  MR.  MR.  MR.  THE  MR.  THE  MR.  GOLDIE:  Could I see that please?  ADAMS:  It is in the B.C. Studies article.  I will be  handing this up in short order.  GOLDIE:  May I see it now?  ADAMS:  At the moment I am just reading an extract from the  document to ask whether the witness agrees with the  characterization.  GOLDIE:  Before the witness answers, may I see the document  please?  COURT:  Yes, I think so.  Just wait a moment, witness,  please.  ADAMS:  What I will do is hand up the set of binders which  has this and other material in it.  COURT:  All right, thank you.  ADAMS:  And I wonder, my lord, if we might reserve a number 20818  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 for this binder which, contrary to the usual practise,  2 is already full.  3 THE COURT:  Yes, all right.  What's the next exhibit please?  4 MR. ADAMS:  While I am at it, maybe I will run through it  5 because I think it can all be identified and admitted  6 one way or another.  7 MR. GOLDIE:  I prefer my friend not do that unless it is  8 relevant to the question of qualifications, my lord.  9 MR. ADAMS:  Well, the material in the binder is all in some  10 fashion or other relevant to qualifications, my lord,  11 although it may also be relevant to other things.  12 THE COURT:  All right.  Well, I won't stop you from  13 cross-examining in a way that you have decided to  14 proceed.  What's the next exhibit number, madam  15 registrar?  16 THE REGISTRAR:  1172.  17 THE COURT:  All right.  That number will be reserved, Mr. Adams.  18  19 (EXHIBIT 1172 - RESERVED)  20  21 MR. ADAMS:  22 Q   Could that be shown to the witness please?  Mr.  23 Williams, I wonder if you could first look at the  24 first tab in that volume?  25 A   Yes.  26 MR. ADAMS:  The first four tabs, actually, and verify for me  27 that that is material supplied by you, correspondence  2 8 and documents relating to the summary which you have  29 produced?  And I can tell you that each tab has a  30 cover page with a volume number as supplied by the  31 counsel for the Attorney-General and the material  32 appears in the order in which it appeared under the  33 volume numbers but it was extracts and not the  34 complete documents.  35 MR. GOLDIE:  While he is doing that, my lord, while the witness  36 is doing that, I am delivering to my friend Mr.  37 Williams' paper on Native Land Claims, Rule of History  38 or Rule of Law.  3 9 MR. ADAMS:  4 0 Q   Thank you.  41 A   I recognize the material in the first four tabs, Mr.  42 Adams, yes.  43 MR. ADAMS:  Could those be marked as the tabs 1 to 4 of Exhibit  44 1172, my lord?  4 5 THE COURT:  Yes.  46  47 (EXHIBIT 1172-1 to -4 - DAVID WILLIAMS CORRESPONDENCE) 20819  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  MR. ADAMS:  Q   Now, if you could turn to tab 5, Mr. Williams.  It is  an extract from a publication entitled The Gitksan  Potlatch by John Adams?  A   Yes.  Q   Are you familiar with that publication?  A   No, I am not.  MR. ADAMS:  That, my lord, extracts at least from it are already  in as Exhibit 901-28 and put to Dr. Daly in  cross-examination by the Federal Crown and may have  been referred to elsewhere as well.  THE COURT:  All right.  I think it is useful to have it marked  again in this sequence.  (EXHIBIT 1172-5  THE GITKSAN POTLATCH BY JOHN ADAMS)  THE WITNESS:  Studying the potlatch or feast system was not part  of my mandate, Mr. Adams, but I did run across  material relating to it from time to time.  MR. ADAMS:  Q   But you are not familiar with that publication?  A   No.  Q   And the next tab, tab 6, is Robert Cail's work on The  Disposal of Crown Lands in British Columbia, 1871 to  1913?  A   Yes.  When I say I am familiar with it, I know of the  work, yes.  I believe it to be authoritative but I  have not myself read it.  Q   You never read it?  A   No.  Q   And if you look on the second page of tab 6 you will  see the chapter headings, chapter 11, 12 and 13?  A   I am sorry, which?  Q   Beginning with chapter 11, Imperial Colonial Indian  Policy?  A   Yes.  Q   Chapter 12, Indian Land Policy after Confederation?  A   Yes.  Q   Chapter 13, The Reserve Allotment Commissions?  A   Yes.  Q   Would you not say that those subjects might have been  at least of interest to somebody in your position in  investigating the subjects that you set out to  investigate?  A   Yes, they were, but they were not directly -- they  were not part of my direct instructions.  I have 20820  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.  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  certainly ran across material from time to time quite  often in fact relating to those sorts of matters on  which I think I probably reported, but I was not asked  to formulate any opinion of them.  MR. ADAMS:  My lord, an extract from this is already in in Dr.  Galois' material as Exhibit 1035-357 and this is a  much more substantial extract and I ask that it be  marked as tab 6.  THE COURT:  Yes, tab 6.  (EXHIBIT 1172-6 - LAND, MAN, AND THE LAW)  ADAMS:  Q   Turning to tab 7, Mr. Williams, that's an extract from  Robin Fisher's book on Contact and Conflict  Indian-European Relations in British Columbia, 1774 to  1890?  A   Yes.  Q   You are familiar with that?  A   Yes, I have -- I have read the book.  Q   You have read that book?  A  Mm-hmm.  Q   And that's a scholarly work on the subjects that are  indicated on the table of contents on the second page  of the tab?  A   I believe it is a scholarly work, yes.  Q   Did you consider it in formulating your opinion for  this case?  A   Not directly.  It's several years since I read it but  I look at it from time to time.  I can't recall  frankly whether I looked at it in connection with my  work in this matter or not.  Q   When do you recall reading it?  A   Shortly after it was published.  Q   So around 1977?  A   I had a particular interest in reading it at the time  because it was up for a book prize along with one of  my own books and he won.  Q   My lord, again an extract from that --  A   That was long before this litigation started.  ADAMS:  Yes, is in Dr. Galois' materials, Exhibit 1035-130.  (EXHIBIT 1172-7 - CONTACT AND CONFLICT)  MR.  MR.  ADAMS:  Q   And turning to tab 8, Mr. Williams, you will recognize  that as an article of your own? 20821  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  Yes.  Entitled The Administration of Criminal and Civil  Justice in the Mining Camps and Frontier Communities  of British Columbia?  Yes.  Could that be tab 8, my lord?  Just a moment.  Where does that start?  At tab 8 in the volume.  Yes, all right.  The actual beginning of the article is about three  pages in, four pages in.  PRAR:  Did you put in tab 7?  :  Yes, that was Fisher.  :  1172-9, no dash 8.  (EXHIBIT 1172-8 - THE ADMINISTRATION OF CRIMINAL AND  CIVIL JUSTICE IN THE MINING CAMPS AND FRONTIER  COMMUNITIES OF BRITISH COLUMBIA)  And turning, Mr. Williams, to tab 9, The Struggle for  Survival, Indian Cultures and the Protestant Ethic in  British Columbia, by Forrest E. LaViolette.  You are  familiar with that work?  No, I am not.  You have never read that?  No.  All right.  And again, if you look at the contents  page, you see under Roman numeral II, the headings  Missionaries, Indian Agents and the Potlatch?  Yes.  Roman numeral III, the Potlatch Law, Wardship and  Enforcement?  Mm-hmm.  Some of the headings there, Enforcement and the  Emergencies of the Potlatch Law as a Public Issue?  Yes.  Enforcement and Native Rights?  Yes.  Peaceful Penetration and Enforced Acculturation?  Yes.  Then Roman Numeral IV, The Land Title Question, and  under that the heading, The Indian Protest:  Before  1875, and The Indian Protest:  1874 - 1917?  Yes.  You do not write in your opinion about the Potlatch  Law, do you not?  1  A  2  Q  3  4  5  A  6  MR.  ADAMS  7  THE  COURT  8  MR.  ADAMS  9  THE  COURT  10  MR.  ADAMS  11  12  THE  REGIS  13  MR.  ADAMS  14  THE  COURT  15  16  17  18  19  20  MR.  ADAMS  21  Q  22  23  24  25  A  26  Q  27  A  28  Q  29  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  A  40  Q  41  A  42  Q  43  44  45  A  46  Q  47 20822  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  A   I don't think I referred to the, in my summary, to  the -- but I have certainly referred to it as I went  along from time to time.  Certainly do refer to The Land Title Question?  Yes.  All right.  So whatever references you made to  Potlatch Laws in The Land Title Question for these  years you did in ignorance of the existence of this  secondary work?  That is true.  MR. ADAMS:  My lord, that is extracted again in Dr. Galois'  materials as Exhibit 1035-72.  THE COURT:  72.  MR. ADAMS:  Yes, my lord.  THE COURT:  Thank you.  Q  A  Q  A  ADAMS:  MR.  MR.  ADAMS  Q  A  (EXHIBIT 1172-9 - THE STRUGGLE FOR SURVIVAL)  Tab 10, Mr. Williams, is an extract from a work by  Brian Titley called A Narrow Vision, Duncan Campbell  Scott and the Administration of Indian Affairs in  Canada.  Are you familiar with that work?  I have not read it but I know of it and have read  reviews of it.  If you look at the contents page there, you will see  that chapter 8 is concerned with land claims in  British Columbia?  Mm-hmm.  And I take it you did your work for this case without  knowing what Mr. Titley might have had to say about  land claims in British Columbia?  Yes, you are right.  Now, my lord, extract here needs some explanation.  The entire chapter which I wish to extract is in  Exhibit 1035-424, and what is added here is the notes  which were not in the original extract.  Mm-hmm.  (EXHIBIT 1172-10 - A NARROW VISION)  MR. ADAMS:  Q   Tab 11, Mr. Williams, you recognize that as something  you wrote in 1966?  A   Yes.  MR. ADAMS:  Could that be tab 11 of the exhibit, my lord?  THE COURT:  Yes.  A  Q  A  ADAMS  THE COURT 20823  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  THE REGISTRAR:  And tabs 9 and 10?  THE COURT:  Yes.  MR.  ADAMS  Q  A  Q  A  MR. ADAMS:  THE COURT:  MR.  (EXHIBIT 1172-11 - ONE HUNDRED YEARS)  Tab 12, Mr. Williams, you recognize as an extract from  the 1977 version of your book on Sir Matthew Baillie  Begbie?  I would not refer to it as the 1977 version.  If you look on the very first page.  It was the, what I considered to be the main -- my  main work on Begbie, Mr. Adams.  Could that be tab 12, my lord?  Yes.  (EXHIBIT 1172-12 - THE MAN FOR A NEW COUNTRY - BEGBIE)  MR. ADAMS:  Q   Tab 13, Mr. Williams, you recognize as your book  Trapline Outlaw on Simon Peter Gunanoot?  A   Yes.  Q   And this I can advise you is the 1988 version?  A   Yes.  MR. ADAMS:  Could that be tab 13, my lord?  THE COURT:  Yes.  (EXHIBIT 1172-13  SIMON PETER GUNANOOT:  OUTLAW)  TRAPLINE  ADAMS  Q  A  Q  A  MR. ADAMS  THE COURT  MR. ADAMS:  And finally to get us back where we started, tab 14  an article by Allen Smith, the Writing of British  Columbia History, and while I understood you to say  you were not familiar with the article, you are  familiar with the publication, B.C. Studies?  Yes.  And you recognize this from the cover page as an  article which appeared in B.C. Studies number 45,  spring 1980?  Yes.  Could that be marked as tab 14, my lord?  Yes.  (EXHIBIT 1172-14 - THE WRITING OF B.C. HISTORY) 20824  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  All right.  Mr. Williams, this is where we started  because I was asking you a question about some things  that Mr. Smith had to say about Bancroft, Howay and  Scholfield and Ormsby, and I had referred you to your  comment in the Begbie book that nobody could do B.C.  history without reference to these three, and I want  to ask you to look at page 90 of tab 14.  If you look  11 lines down on page 90, you will find the extract  that I was reading to you.  It is about a third of the  way down the page.  Page 90.  I am sorry?  Page 90.  Page 90, yes.  Yes.  Eleven lines down?  It is -- well, one starts to recall things, you asked  me what secondary works I had read.  I see at page 90  a reference to Morice's history to Northern Interior  of British Columbia, I certainly read that in  connection with my present position.  But you didn't refer to that in your sources for your  summary, did you?  No, I didn't.  What passage on page 90 do you want me  to look at?  Eleven lines down:  "When, therefore, the first generation of the  province's historians did not ignore the Indian  altogether it dealt with him in the accents -  disguse, superiority, paternalist condescension -  of the civilization whose accomplishments it was  recounting."  And I can tell you, and you're free to satisfy  yourself if you wish, that Bancroft, Howay and  Scholfield are included in what Smith identified as  the first generation of the province's historians?  :  Well, is my friend being asked -- is my friend  asking the witness if he agrees with the  characterization that Mr. Smith has made of other  historians?  No, no, my lord, I am asking him if he is aware of  it.  :  Well, you have just drawn it to his attention.  He  is now.  1  Q  2  3  4  5  6  7  8  9  10  11  A  12  Q  13  A  14  Q  15  A  16  Q  17  A  18  ]  19  20  21  22  Q  23  24  A  25  26  MR.  ADAMS:  27  28  29  30  31  32  33  34  35  36  37  38  39  MR.  GOLDIE  40  41  42  43  MR.  ADAMS:  44  45  MR.  GOLDIE  46  47  MR.  ADAMS: 20825  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  And I take it, Mr. Williams, that you weren't aware of  that characterization before?  Characterization by Smith?  Or anyone?  I am not sure that I understand you.  You know, I have  read those works.  Mr. Smith is entitled to his views  of them.  I don't -- if that's his view of them, I am  not going to argue about it.  I mean, he is entitled  to his views.  I am not sure what the drift of your  question is.  My question went to your awareness of the existence of  contemporary scholarship that criticized secondary  sources that you say are indispensable to rely on.  You also referred to Margaret Ormsby and you will see  at the bottom of the page 90 in a footnote Smith says  this with reference to the Indians:  "Ormsby's general history gave them scant attention  in their 1960 appeal for new work made no  reference to them at all."  And he sites an article by Ormsby.  Mm-hmm.  Were you aware of that deficiency in Ormsby's work?  :  Well, we are now talking about an article which is  not before us written in 1960 characterized in the way  that is in the footnote, and my friend says are you  aware of that deficiency.  That's -- that is an  argumentative question, my lord.  1  Q  2  3  A  4  Q  5  A  6  7  8  9  10  11  Q  12  13  14  15  16  17  18  19  20  21  22  23  A  24  MR.  ADAMS:  25  MR.  GOLDIE  26  27  28  29  30  MR.  ADAMS:  31  Q  32  33  A  34  35  Q  36  37  38  A  39  40  41  42  THE  COURT:  43  MR.  ADAMS:  44  THE  COURT:  45  46  MR.  ADAMS:  47  Q  you aware of that characterization  Smith's characterization of  Mr. Williams, are  of Ormsby?  I was not aware of Mr.  Ormsby, no.  Is the scant attention given to Indians something that  you had observed in reading Ormsby?  You have read  Ormsby, have you?  I have, yes.  I must say I have not turned my mind to  it, Mr. Adams.  I would have to go back and look at  the work to see whether that was an accurate appraisal  of it.  Did Dr. Lane not speak favourably of Dr. Ormsby?  She may well have, my lord.  Yes.  I am trying to remember if she did or not.  I  know she spoke of her as far as I can recall.  Mr. Williams, the only  I think we agreed on Friday 20826  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 that the only writing you have done that -- apart from  2 your summary for this case, that is specifically  3 related to the land claim territory, albeit not to the  4 claim land, is your Trapline Outlaw book; correct?  5 A   Yes, I think that's so -- that's so, Mr. Adams, but  6 one qualification, however, that I think that Begbie,  7 as I have said the other day, I am sure that Begbie's  8 role in The Administration of Law of the province  9 generally certainly had application in the land claim  10 area.  11 Q   Now, if you look at tab 13 and turn to page 174 of the  12 extract at tab 13.  Yes, and it is right near the  13 back, page 174, two pages from the back.  14 A   Yes.  15 Q   You will see there a list which you put under the  16 heading Selected Bibliography?  17 A   Yes.  18 Q   And you list primary sources in the P.A. of B.C. and  19 then you list primary sources elsewhere?  20 A   Yes.  21 Q   You have there the Hudson's Bay Company Post Journals?  22 A   Yes.  23 Q   For, among others, Babine Post?  24 A   Yes.  25 Q   And you have the Department of Indian Affairs Black  26 Series P.A.C. R.G. 10?  27 A   Yes.  28 Q   And then if you turn over the page to secondary  29 sources -- just before I leave that, you don't refer,  30 except to say you didn't consider them, in your  31 summary to the Hudson's Bay Company materials of any  32 kind?  33 A   I -- well, so far as these bibliographical references  34 are concerned at page 174, I consulted those  35 personally when doing the book on Trapline Outlaw.  I  36 did not review those sources in connection with my  37 present work.  38 Q   Yes.  39 A   I did however see some material, Hudson's Bay Company  40 material, from Fort Simpson which I did look at.  41 Q   But didn't refer to in your references?  42 A   But have not specifically referred to in my summary,  43 you are right.  44 Q   Okay.  If you go over the page in the extract at page  45 175 at tab 13, you have a list of secondary sources?  46 A   Yes.  47 Q   And you will agree with me I think that little or none 20827  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  of what I see there could be described as scholarly  secondary works related to the area of the land claim?  A   I agree with you.  I have rather a low opinion of  those secondary sources but nonetheless I looked at  them.  Q   Now, let me come, Mr. Williams, to the nature of the  items that you propose to give here.  You understood,  did you not, that your opinion was to demonstrate the  absence, among other things, of Indian sovereignty in  the land claim territory?  A   Yes.  Q   Yes.  A   I knew that was one of the issues in the litigation.  Q   But more than that, you knew that that's the issue,  among others, that your opinion was directed to?  A   One of the issues, yes.  MR. ADAMS:  And I wonder if I could just refer you to tab 2 of  the large black binder.  My lord, these pages are  numbered sequentially within the tabs in the upper  right-hand corner.  Yes.  And I am at page 55.  Yes.  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Q  Mr. Williams, if you could look at the second  paragraph of the letter dated September 11, 1986 from  Mr. Goldie to yourself, where he says:  "The general theme of the work we asked you to  undertake was the introduction and imposition of  law and order and the response, reaction and  amenability of the Native peoples in the land  claim area.  This is related to the continuation  of aboriginal title after British Columbia's union  with Canada.  In other words, what we asked you to  do was on the assumption that the plaintiffs  succeeded in demonstrating that aboriginal title  had not been extinguished by 1871.  After 1871 we  alleged that aboriginal title may be abrogated,  modified, and indeed extinguished by Provincial  laws of general application and executive acts  which are inconsistent with the continuation of  aboriginal title.  Our interest in law and order  arises in part, of course, because of the  allegation of sovereignty which distinguish this  case from other claims of aboriginal title.  What  we would ask you to undertake is a review of your 20828  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 work with expressions of opinion and supported by  2 reference to the appropriate documentary sources."  3  4 You understood, did you not, Mr. Williams, that  5 your job in rendering an opinion was to support that  6 position?  7 A   I was asked to examine the material and render an  8 opinion with reference to those issues.  9 Q   And to support that argument?  10 A   I was not asked to produce material to support any  11 particular position.  I knew what the issues were.  I  12 was asked to examine the material relating to them  13 and, if I could, to offer an opinion on them.  14 Q   Well, you took direction, did you not, from counsel  15 for the Attorney-General for the Province as to the  16 organization of your report, of your summary?  17 A   Yes.  18 Q   And if you refer to page 63 of that same tab, there is  19 a letter from you to Mr. Goldie's attention dated July  20 2, 1986, and you say in the third paragraph from the  21 bottom:  22  23 "As with my previous report, I have divided it into  24 segments to conform to your index."  25  26 A   Yes.  27 Q   What index was that, please?  28 A   This was their method of controlling their documents,  29 the massive documents in their office.  They had, I  30 suppose, a computer-based method of recording this  31 stuff and so they could retrieve it and they had  32 various headings which were given to me and I was  33 asked to, so far as I could, to tender my material  34 with reference to those headings.  35 Q   Yes.  You were to organize your material under the  36 subject headings supplied to you, were you not?  37 A   Not entirely so but, because I deviate, I found  38 material I couldn't slot into their headings sometimes  39 and I set it off anyway but, yes, generally I was  40 asked -- I was given their data base, is that the word  41 for it, headings, I guess, and I was asked if I could  42 to make my reports conform to that for their  43 convenience.  44 Q   When that index changed, you changed along with it,  45 didn't you?  46 A   I don't recall.  I think the index became sort of a  47 dead letter after a while. 20829  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 Q   Would you look at page --  2 A   I had my own headings.  3 Q   -- page 66 of that tab, that's a letter dated May 21,  4 1986 from you to Mr. Goldie's attention, and you say  5 there in the second paragraph:  6  7 "Unlike my earlier reports I have prepared this one  8 in segments, in an endeavour to conform to the  9 revised index I received recently."  10  11 A   Yes.  12 Q   So when the index changed, your organization did  13 change, did it not?  14 A   Oh, I don't really think so.  I mean, I didn't have to  15 scramble and unscramble the material.  I had forgotten  16 that, but this is May 1986.  17 Q   Yes.  18 A   Seems to me that in the last two and a half years or  19 so I haven't really paid much attention to indexes in  20 my correspondence and reports.  21 Q   Your report was rendered March 1987; correct?  22 A   Yes.  23 Q   And you began work on it in late 1985?  24 A   October, yes.  25 Q   All right.  So this is written, is it not, at a point  26 where you were well into your preparation of your  27 report?  2 8 A   No.  29 Q   You are well into your research?  30 A   Certainly well into my research.  31 Q   Yes, because you're writing things in an endeavour to  32 conform to the index?  33 A   Yes.  34 Q   All right.  Now, another aspect of the direction you  35 received in the writing of your summary was that  36 limitations were placed on your sources, were they  37 not; that is, you didn't decide there is no point  38 looking at Hudson's Bay materials, you were told don't  39 look at Hudson's Bay materials?  40 A   In that particular instance, I believe you are right  41 because other researchers were examining the Hudson's  42 Bay Company material but, apart from that, and maybe  43 there may have been one or two other instances, the  44 lands department -- pre-emption records, for example,  45 I was told not to worry about pre-emption records but,  46 apart from what are several perhaps specific instances  47 of that nature, no restriction whatever was placed on 20830  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 my research.  I was really on a fishing expedition.  2 Q   Were the fruits of the research done on The Bay  3 records made available to you in the research of your  4 opinion?  5 A   I am sorry, I didn't quite catch that.  6 Q   Were the fruits of the other research on Hudson's Bay  7 records made available to you to assist in the  8 preparation of your opinion?  9 A   In one or two instances, but I mentioned one of the  10 Fort Simpson journals, for example.  11 Q   You have already agreed with me that there is no  12 reference to that, to the use of that source in your  13 summary?  14 A   True.  It was outside the claim area but it had some  15 relevance.  John Wort, for example, was recorded as  16 having gone up the Skeena River in 1852.  That was a  17 sort of thing I was interested in.  18 Q   Now, you were aware that the Bay materials were  19 potentially highly relevant to the subjects on which  20 you were going to express an opinion?  21 A   I don't know how highly relevant they were.  22 Q   Well, let me ask you to look at tab 1 of the black  23 volume, Exhibit 1172, and to turn to page 9?  24 A   Sorry, what page, Mr. Adams?  25 Q   Page 9.  26 A   Yes.  27 Q   You have that, that's a letter from you to Mr.  28 Goldie's attention dated November 1, '85?  29 A   Yes.  30 Q   This is at a stage where you are just beginning your  31 work, is it not?  32 A   Yes.  33 Q   And you say in the final paragraph on that page:  34  35 "At the PAC in Ottawa, I enquired principally  36 about the availability of N.W.M.P. records, Indian  37 Affairs records and Hudson's Bay Company reports."  38  39 A   Yes.  40 Q   Or records, I am sorry?  41 A   Yes.  42 Q   And you regarded that as a potentially important  43 source, did you not?  44 A   Yes, at that time.  45 Q   But you were given a direction not include it and you  46 didn't?  47 A   I was not given any direction about the North West 20831  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 Mounted Police records as I recall.  Certainly I  2 examined a good deal of Indian Affairs stuff, but I  3 was -- I think I was told that other people were  4 looking at the Hudson's Bay material and wasn't --  5 wouldn't be necessary for me to do that and I didn't.  6 Q   Now, similarly, you came upon material related to the  7 Indian Reserve Commission of 1876 to '78.  Do you  8 recall that?  9 A   Yes.  I don't specifically recall it but I probably  10 did, yes.  11 Q   All right.  If you would turn to page 57 of tab 2  12 please?  13 A   Yes.  14 Q   The second paragraph of that letter dated August 6,  15 1986 from you to Mr. Goldie's attention, you say:  16  17 "One series I have not looked at, but which you may  18 wish examined by Leslie Kurz or by myself or  19 someone else, is GR494, 'Correspondence and  20 Reports submitted to the Minister regarding the  21 work of the Indian Reserve Commission 1876 -  22 '78'."  23  24 A   Yes.  25 Q   And does that refresh your memory as to encountering  26 that material?  27 A   Yes.  28 Q   And does it refresh your memory as to the decision as  29 to whether or not to use it having been not yours but  30 Mr. Goldie's?  31 A   I was not asked specifically to direct my attention to  32 that material.  I am not sure if I was debarred from  33 looking at it but such material as I ran across  34 incidental to other researches I was doing I would  35 pass on, but I was not asked to make a pronouncement  36 on the work of the Indian Reserve Commission.  37 Q   You are aware that the Indian Reserve Commission  38 operated with reference to the land claim territory?  39 A   Yes.  4 0 Q   And would its work and documents connected with its  41 work not have been relevant to the subjects on which  42 you were to express an opinion?  43 A   I can't say, not having read all the material.  44 Q   Page 58, the second page of the same letter, you say:  45  46 "I hope to complete my examination of the  47 Provincial Secretary material in the next ten days 20832  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 or two weeks.  I propose then to look at the  2 Premier's papers for the same period, that is,  3 1871 to 1918.  If there are other areas you would  4 prefer me to examine, please let me know."  5  6 A  Mm-hmm.  7 Q   I suggest to you that's an example of your taking  8 direction as to what materials you were to give your  9 attention to?  10 A   Oh, yes, certainly.  I would be asked from time to  11 time in the light of work that I had already done to  12 examine this, that, or the other thing.  Would you,  13 you know, I have a phone call or a letter, would you  14 please look at this.  Of course I would.  15 Q   And then if you could turn to page 68 of tab 2?  16 A   68.  17 Q   68, that would be the last page of the tab.  18 A   Yes.  19 Q   And there you say at the top of the page:  20  21 "You will already be aware from Leslie Kurz whom I  22 saw recently in Victoria that, from 1909 to 1913,  23 a reference to the Supreme Court of Canada was  24 mooted on Indian lands in B.C.  Some questions  25 were formulated tentatively.  The reference did  2 6 not proceed, though I am not sure why.  Anyway,  27 there is a vast correspondence and number of  28 documents in the Attorney-General's papers, about  29 400 pages in one series and about 700 in another.  30 I have only glanced at the material, but mention  31 it in case you want further inspection of it."  32  33 Did you ever undertake that inspection?  34 A   No, I squinted at all that stuff.  Incidentally, I  35 mentioned Eugene Lafleur earlier, it was a matter of  36 an aside, he was acting for the British Columbia  37 Government in this business.  I squinted at it and I  38 think I gave summary of some of the documents there  39 but I was not asked to make any pronouncements on that  40 proposal.  41 Q   Do you not think that materials bearing on the title  42 question in 1913 would have been, or from 1909 to 1913  43 would have been relevant to the subject of your  44 inquiries?  45 A  Well, I made, in my periodic reports, I made various  46 references to material which I had run across which I  47 myself characterized under the heading of Indian 20833  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 Title, and I passed this on to the Province because I  2 thought they would be interested in it, it might be  3 relevant to the question of Indian title, but I myself  4 was not asked to make a pronouncement on Indian title  5 in British Columbia but I did certainly send on  6 documentary material which I uncovered or ran across  7 which I thought might be relevant.  8 Q   And if you weren't told to examine it, you didn't?  9 A   That's right.  10 Q   All right.  Similarly, on that page 68, you say in the  11 second to last paragraph:  12  13 "There is a complete series at PABC (GR997) dealing  14 with Indian lands, and I describe it as catalogued  15 in case you wanted it examined."  16  17 And then you go on:  18  19 "Correspondence, memos, notes, reports and  20 agreements accumulated in the course of presenting  21 British Columbia's case to the Commission to  22 receive and inquire into the arguments of the  23 government of the Province of British Columbia in  24 support of its claim for the re-conveyance to the  25 province by the Parliament of Canada of the land  26 conveyed by the province to the dominion pursuant  27 to paragraph 11 of the terms of union."  28  29 And then on.  Did that strike you as relevant to the  30 subjects of your inquiry?  31 A   I thought it might have been relevant otherwise I  32 wouldn't have mentioned it, but I was not asked to  33 pursue it.  34 Q   And you didn't?  35 A  And I didn't.  36 Q   It is true, is it not, that whether by your decision  37 or a decision of counsel for the Province of B.C. that  38 there are a number of important sources relevant to  39 the subject of your opinion that you did not use?  40 A   No, I disagree.  41 MR. ADAMS:  Well, there are the Hudson's Bay materials.  42 MR. GOLDIE:  I don't think the witness is agreed that that was  43 relevant to the title -- the opinion that he is  44 giving.  4 5    MR. ADAMS:  46 Q   Let me ask you that first.  Was the Hudson's Bay  47 material a potentially important source? 20834  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 A   In 1986, when I referred to it having looked at it in  2 the National Archives, I thought it might be  3 potentially, but I soon learned that the Hudson's Bay  4 Company had very little connection if any with the  5 claim area.  They got a post of Hazelton but I say --  6 and there was a post of Babine Lake, but it didn't  7 strike me as being -- as events as the research  8 continued as something that was of paramount  9 importance to my inquiries.  10 Q   Do you recall writing in March 1987:  11  12 "I think it is as well to note some potentially  13 important sources that I did not examine since I  14 was not asked to do so."  15  16 A   Yes.  17 Q   And amongst those, you listed Hudson's Bay Company  18 records?  19 A   Yes.  The word is -- the operative word is potential.  20 Q   So that's why those were left out is they didn't turn  21 out to be important in your opinion?  22 A  Well, I was not instructed to pursue them, Mr. Adams.  2 3 Q   And you didn't?  24 A   No.  2 5 Q   And you --  26 A   Except for the incidental references to the Fort  27 Simpson material and I think a small trifling amount  28 of correspondence from Mr. Ware at the Babine Lake.  29 Q   You are aware of the existence of the annual reports  30 of the Department of Indian Affairs?  31 A   By the agent?  32 Q   The compilations of those by the Department?  33 A   The which?  34 Q   The compilation of the agent's reports and others by  35 the Department, the printed published documents?  36 A   The compilations did you say?  37 Q   Yes.  38 A   I didn't hear the word.  Now, I am not familiar with  39 the compilations by the Department in summarizing  40 agent's reports for transmission to Ottawa, but I  41 certainly read a great many annual reports and  42 periodic reports by the agents at Hazelton.  What was  43 done with them once they arrived at headquarters I  44 can't say.  45 Q   You are familiar with the existence of the Barbeau  46 Beynon materials, are you?  47 A   Yes. 20835  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  And you didn't use those?  Yes, I examined that material.  You did?  Yes.  You don't make any reference to it in your summary, do  you?  No.  I certainly read it or read a good deal of it.  You don't cite any of it in your summary?  No, but one of the extracts from it, if we get to that  stage, is among the proposed documents.  And we have already agreed I think that you didn't  make any reference to materials related to the Indian  Reserve Commission?  Not a full scale examination of them, but incidental  references, for example, O'Reilly's work.  Yes.  And there is no reference to that in your  summary, is there?  No, because I was not asked to pronounce on the work  of the Reserve Commission.  :  My lord, I am going to refer or at least read to the  witness an extract from an article that is in the  Provincial defendant's expert binder and I frankly  don't know whether it is yet in evidence but if it  isn't, I will arrange to get copies made.  This is an  article or actually it is an extract from a book by  Bruce Trigger entitled Natives and Newcomers.  :  Where are you reading from?  :  It is in the Provincial defendant's, what we call  provincial authorities on expert evidence, it is a  black binder that has been referred to repeatedly by  all sides.  :  Yes, all right.  3:  Could I see that?  We don't have ours here.  My lord, I am happy to -- I have shown this to my  friend, Mr. Goldie.  I am happy to show it to the  witness while I read it to him.  First of all, Mr.  Williams, are you aware of who Dr. Bruce Trigger is?  No, I am not.  I am instructed that he is an anthropologist at  McGill.  And the extract I want to show you is from  chapter 4 of the book Natives and Newcomers, and  specifically page 168?  Mm-hmm.  That's a comment on the problems for a scholar in  using documents and says:  1  Q  2  A  3  Q  4  A  5  Q  6  7  A  8  Q  9  A  10  11  Q  12  13  14  A  15  16  Q  17  18  A  19  20  MR.  ADAMS  21  22  23  24  25  26  27  THE  COURT  28  MR.  ADAMS  29  30  31  32  THE  COURT  33  MR.  GOLDI  34  MR.  ADAMS  35  Q  36  37  38  39  A  40  Q  41  42  43  44  A  45  Q  46  47 20836  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 "Another highly specific set of problems is  2 involved in interpreting the records that  3 Europeans have left of their early dealings with  4 native peoples.  These visitors had a variable but  5 almost inevitably a deficient understanding of the  6 behaviour they were observing.  Hence while many  7 of them recorded what they saw accurately, the  8 motives that they ascribed to native peoples and  9 their interpretations of what these people were  10 doing are often erroneous and ethnocentric.  11 Because of this, it is very difficult to ascertain  12 with any certainty why particular native people  13 acted as they did or what specific policies they  14 were pursuing.  Even factual descriptions of  15 native behaviour are sometimes too brief and too  16 contaminated by European literary conventions to  17 be either trustworthy or useful as  18 anthropological documents.  19 Historical records can be interpreted only when  20 the cultural values of both the observer and the  21 observed are understood by the historian.  In the  22 study of modern Western history, the experience of  23 everyday life may suffice to supply such  24 knowledge.  Yet this explicit approach..."  25  26 I am sorry:  27  28 "...implicit approach does not provide an adequate  29 basis for understanding the behaviour of people in  30 earlier times or in cultures radically different  31 from our own."  32  33 Do you accept that as a general comment on the  34 difficulties of using European documentary sources in  35 dealing with native Indians?  36 A   I am not sure that I accept it at all.  But he has  37 stated again he is a scholar, he has stated his views.  38 Whether I agree with it or disagree with it it seems  39 to me is not of much help.  40 MR. ADAMS:  Could I take that you defer to that scholar on that  41 issue?  42 MR. GOLDIE:  I don't think that's what he — well —  4 3    MR. ADAMS:  44 Q   That's the question.  45 A  Well, as you yourself observed the other day, one may  46 read a scholarly work without approving it.  So what  47 can I say about it?  He is entitled to his views. 20837  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 Q   And do you defer to them or do you not?  2 A  Well, I don't agree.  3 MR. GOLDIE:  I am sorry, my lord, I am going to object to that.  4 He is not aware of Dr. Trigger's works.  If you ask a  5 witness do you defer to it, it is implied in there a  6 knowledge of the works and of the author.  7 MR. ADAMS:  8 Q   My lord, I think I can remedy that.  Do you defer to  9 that opinion, whoever expresses it?  Do you agree with  10 it?  11 A   I accept what you tell me about Dr. Trigger, that he  12 is an anthropologist.  I am not sure that I agree with  13 all that he says in there.  14 Q   Do you agree with any of what he says?  Do you  15 recognize specifically that there is a difficulty in  16 using European documents to interpret what native  17 people are doing and why they are doing it?  18 A   No, I don't.  I don't accept that.  19 Q   You don't see any difficulty there at all?  20 A  Well, I shouldn't say that there are no difficulties.  21 There are certainly -- there are problems.  One has to  22 have a certain amount of intelligence and objective  23 appraisal at the behaviour of people of different  24 cultures.  There are many people who were acute  25 observers of the Indian culture and behaviour in the  26 period which I was examining.  Are you going to  27 exclude; for example, Barbeau Beynon material on the  28 grounds that they have no appreciation of native  2 9 values?  All right.  Are you -- you get somebody --  30 some white trader that goes through there that has  31 utter contempt for Indians.  One balances these  32 things.  And to discard all observations of Europeans  33 as being specious and of no value strikes me of being  34 far too general a statement.  35 Q   Do you understand Dr. Trigger to be saying that all  36 that has to be discarded?  37 A   No, I am not sure he is saying that.  All I am saying  38 is you have to find what material there is and weigh  39 it.  40 Q   Is that what you did in --  41 A  Well, I -- certainly to me the tendancy of that  42 statement by Dr. Trigger is that documentary evidence  43 of European observers of Indian culture are of little  44 value.  I don't accept that.  45 Q   The main conclusions that you reached in formulating  46 your opinion for this case, let me offer you a  47 one-sentence precis and see if you can agree with 2083J  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  A  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  this:  There was no Gitksan or Wet'suwet'en  jurisdiction in the land claim area after white  contact, rather, there was a ready acceptance of white  rule and law without serious or sustained resistance.  Is that a fair brief summary of your main conclusion?  Well, I would prefer to state it in my own term which  I have done in my summary, Mr. Adams, but I think  that's a fairly accurate summary of it, yes.  Okay.  And that's a conclusion with respect to the  province as a whole that you had reached long before  you came to do this work; isn't it?  No.  I had never thought about that in terms, I think,  until I was asked to embark on this research.  I don't think land claims was in that precis.  The two  sides of it were that there was no Indian jurisdiction  after contact and that, instead, there was a ready  acceptance on the part of the Indian people of white  rule and law without serious or sustained resistance?  Yes.  That's a view you already held with respect to the  entire province, is it not?  Held when?  Before you began work on your opinion for this case?  No.  I don't think I ever addressed my thoughts to  land claims generally before I embarked on the  research in this case.  :  All right.  Let me ask you to look at the black  binder, tab 12.  My lord, before I forget to do it, I  wonder if I can reserve a spot for the Trigger extract  which I will get copies of made up and if it could go  in as tab 15, and I will also undertake to supply a  tab for it.  Yes.  A  Q  A  Q  A  MR. ADAMS:  THE COURT:  MR.  ADAMS  Q  A  Q  (EXHIBIT 1172-15 - NATIVES AND NEWCOMERS - TRIGGER)  And this is the 1977 Begbie book.  And I wonder if you  would look please at page 101.  Yes.  And I am looking at the second paragraph from the  bottom on that page and there you write:  "There was some inter-tribal violence during  colonial days, and in 1859, large numbers of Haida  Indians from the Queen Charlotte Islands camped at  Victoria causing alarm, but by and large the 20839  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  1 Indian community formed no impediment to the  2 imposition of colonial - white man's - rule in  3 British Columbia."  4  5 A   Yes.  6 Q   That was your opinion in 1977?  7 A   Yes.  8 Q   And that was with respect to the entire province?  9 A   Yes.  Still is my opinion.  10 Q   Indeed.  And I wonder if you'd flip back please to tab  11 8 in that same volume, Exhibit 1172?  12 A  What page, please?  13 Q   Page 226.  And just before I read an extract, you will  14 recall that this is your 1986 paper but it arose from  15 a 1984 conference where you gave a paper?  16 A   Yes, that's right.  17 Q   And that was this paper?  18 A   That's right.  19 Q   And so then in 1984, you write in the first paragraph  20 under the heading Criminal Justice:  21  22 "The fact is that imposition of British criminal  23 justice in colonial British Columbia was  24 accomplished with little difficulty or opposition  25 from the community.  Even the Indians who did not  26 understand the system accepted it compliantly,  27 probably because from long experience with  28 Hudson's Bay Company officials they respected  29 'King George Men' (the British), and suspected  30 'Boston Men' (the Americans).  It is true that the  31 enforcement of British criminal law upon an  32 aboriginal people led to incomprehension and often  33 sadness and tragedy, but it is also true that  34 colonial judicial officials strove to ameliorate  35 the natives' feeling of alienation, unlike their  36 American counterparts in the same era."  37  38 A   Yes.  39 Q   And that was a view you held in 1984?  40 A   Yes.  41 Q   And the second half of my precis of your opinion spoke  42 to ready acceptance by Indians of white rule and law;  43 correct?  44 A   Yes.  45 Q   And the extract I have just read from indicates that  46 your view at least in 1984 was that the Indians didn't  47 understand the system that you now say they accepted; 20840  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  cross-exam by Mr. Adams  on Qualifications  is that correct?  A  My article was written of the colonial period.  Q   Yes.  Q   The colonial period was post contact, was it not?  A   Yes.  MR. ADAMS:  And your opinion begins at contact?  MR. GOLDIE:  No, it doesn't.  THE WITNESS:  No, I don't think so.  MR. GOLDIE:  I think my friend did not characterize Mr.  Williams' summary correctly.  THE COURT:  What do you call the colonial period?  THE WITNESS:  Pre confederation, my lord, 1871, July 1871.  MR. ADAMS:  Q   And your opinion begins 1859, does it not, with  Downie?  A  With this litigation?  Q   Yes.  A   Yes.  Q   Is that not the same period?  A   Yes, I am sorry, but, Mr. Adams, my article that you  referred to was written entirely of the colonial  period.  The opinion which I have given in this case  goes well beyond confederation.  Q   Let me try again.  When do you say the colonial period  begins and ends?  A  Well, the colonial period of British Columbia, the  mainland colony of British Columbia, begins in 1858  and ends in 1871.  Q   All right.  And one of your conclusions was that the  ready acceptance of white rule and law in the land  claims territory began with what you identified as  contact in that territory which was 1859 and carried  on to 1871 and beyond?  A   Yes, and beyond, yes.  MR. ADAMS:  Thank you.  THE COURT:  We will take the morning adjournment, Mr. Adams,  please. 20841  Proceedings  1 THE REGISTRAR:  Order in court.  This court stands adjourned for  2 a short recess.  3  4 (PROCEEDINGS ADJOURNED AT 11:18 a.m.)  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein, transcribed to the  9 best of my skill and ability.  10  11  12  13  14    15 TANNIS DEFOE, Official Reporter  16 United Reporting Service Ltd.  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 20842  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  Cross-exam by Mr. Adams  on Qualifications  (PROCEEDINGS RECONVENED AT 11:30 A.M.)  THE REGISTRAR:  THE COURT: Mr  MR. ADAMS  MR.  MR.  Order in court.  Adams.  Mr. Williams, I didn't want to leave you with the  impression that Dr. Trigger, whose article I had you  read an extract from, was rejecting out of hand the  use of documentary sources.  In the paragraph  following the one that you read and then I read, he  says this:  Ethnohistorians can cope with this  difficulty...  Being the difficulty in using the documentary sources  across cultures.  ...to some degree by utilizing a detailed  ethnographic knowledge of the descendants of  the groups described in the historical records  or of tribes that shared closely related ways  of life.  Such information provides a balanced  view of whole cultures that is useful for  evaluating old sources, which invariably  describe only fragments of them.  GOLDIE:  I'm sorry, do we know how -- what the author means  by "old" or are we talking about 40 years ago, 400  years or what?  ADAMS  Q  A  Q  A  Q  A  Q  The reference, my lord, was to -- in the passage that  was read, was to "records that Europeans have left of  their early dealings with native peoples." That's as  precise as it gets in that passage.  But I wanted to simply ask you this, Mr.  Williams, you don't have a detailed ethnographic  knowledge of the descendants of the people about whom  you are writing in the land claim territory, as of the  1850's and on, do you?  No.  Or any at all?  No.  I am not an ethnographic historian or whatever.  You wouldn't be in a position to take advantage of the  information that Dr. Trigger says would alleviate the  difficulty he identifies?  I am not sure I understand that question.  Well, I understand him to say that if you had -- if an 20843  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  Cross-exam by Mr. Adams  on Qualifications  ethnohistorian has a detailed ethnographic knowledge  of the people involved, then to some extent he or she  is in a position to evaluate the documentary sources?  A   Yes.  But if he is saying that only an ethnographic  historian can evaluate documentary sources, historical  sources, I disagree with him.  Q   If that's what he is saying.  All right.  Let me turn  to another subject.  I want to suggest to you that you came to this  work with a view of Indian people in British Columbia,  that the most desirable historical outcome for them  would be assimilation into the white community.  Is  that fair to say?  A   No, it's not fair to say.  Q   All right.  I wonder if you would look at tab 11 of  Exhibit 1172.  Which tab, please?  Tab 11.  Page?  A  Q  THE COURT  MR. ADAMS  Q  It's page 79, my lord.  And if you look eight lines  from the bottom on page 79, you have that, "Many  Indians"?  A   Yes.  Q   All right.  You write:  Many Indians still exhibit the same vices  described by Mr. Lomas one hundred years ago.  And if it assists any, at the top of page 76, which is  also in the extract -- actually, the last line of 75,  you say:  Mr. Lomas thought that, if he could persuade  the Indians to turn to farming, they would have  to work hard, idleness would vanish, and with  it drunkenness, which idleness seemed to breed.  And I took it, reading this carefully, that that's  what you referred to as "the same vices described by  Mr. Lomas."  Is that so?  A   Yes, that's so.  Q   All right.  A  Mr. Lomas was a missionary.  Q   Yes.  So this is you writing, "Many Indians still  exhibit the same vices," that is drunkenness and  idleness? 20844  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  Cross-exam by Mr. Adams  on Qualifications  A   Yes.  Q  MR. GOLDIE  MR. ADAMS:  Q   Oh yes  ...described by Mr. Lomas one hundred years  ago, and religion, of whatever denomination has  done little to integrate them with the  surrounding community.  There will be no  fundamental change until they are assimilated  into the general community, and until they  cease to be treated as a special class of  citizen.  They themselves will have to come to  an awareness of this; meanwhile we can but  encourage the process...  Is that an opinion you continue to hold?  I think you stopped in mid-sentence, did you not?  It carries on on page 80:  ...and in particular, we at St. Peter's should  reflect on those early services when the church  was filled with a mingled congregation of white  and Indian people.  A   Yes.  Q   You continue to hold the views expressed there, today?  A   I was writing of the congregation and I have that  view -- had that view then, yes.  Q   And do you hold that view today?  A   So far as this congregation was concerned, yes.  Q   And do you hold the view in general that integration  of Indians into the surrounding community is a  desirable historical result?  A   I am less certain of that view than I was when I wrote  those words 21 years ago -- 23 years ago.  Q   And with what degree of certainty do you hold them  today?  A  Well, if I am -- I am being asked my personal views on  this matter, my personal views are that assimilation  in the complete sense of that term is not likely to  occur.  And I -- I feel that since it is not likely to  occur, that there should be sort of a parallel, if you  like, development.  I don't think the -- I don't think  the Indian community today will be culturally  assimilated into the white community, but we have to  live side by side and I don't think I can say anything  more than that.  Q   You certainly don't today believe in special legal 20845  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  Cross-exam by Mr. Adams  on Qualifications  status for native Indians, do you?  GOLDIE:  Special legal status?  A   Yes.  I don't know what you mean by that, exactly.  MR  MR  ADAMS:  Q  A  Let me make it clear so that you know what you're  answering.  I -- well I say this:  I don't -- because I mentioned  this in my paper, the land claims, personally, I think  the Indian Act should go.  And I think that Indians  should not -- again, this is my personal views you are  now asking me on.  Yes?  My personal view is that the Indian Act should be  abolished, and that insofar as that confirms upon  Indians a special status citizen, I think that's a  desirable result.  You mean that the Indian Act should go is a  desirable result?  THE WITNESS:  Yes.  THE COURT:  Yes?  THE WITNESS:  That's my personal —  THE COURT:  Beg your pardon.  You are not saying confirming  special status is a desirable result?  THE WITNESS:  No.  What I'm saying, is the legalistic status  confirmed by the Indian Act, I think, is inappropriate  today.  Q  A  THE COURT:  MR.  ADAMS:  Q  Yes.  And that's what led to my question, just to  clarify, that you are saying that in your personal  opinion, Indians should have no special legal status?  A   Derived from the Indian Act.  Q   Or derived from aboriginal rights?  A   Nor -- I am not -- you are not asking me that.  We are  talking about different things now, about aboriginal  rights.  Are you asking me what I think about the --  the claim for aboriginal rights generally, whether  it's valid or proper?  Q   I am asking you as a refinement of the question about  special legal status.  I take it you told us that you  don't think there should be special legal status for  Indians?  MR. GOLDIE:  As derived from the Indian Act, that was his  evidence.  THE WITNESS:  As derived from the Indian Act.  MR. ADAMS:  Q   Or otherwise, is my question?  A  Well, then you have to start talking about what you 20846  D.R. Williams (for Province)  Cross-exam by Mr. Adams  on Qualifications  1 mean by special status.  Indians do have special  2 status, obviously.  They -- through their culture,  3 they are different from other groups.  I don't quarrel  4 with that.  5 Q   Yes.  We are talking about legal status here?  6 A   But if -- I don't know -- if you -- which is unlikely  7 to happen.  I doubt if the Indian Act would be  8 abolished, but maybe some other legislative instrument  9 would take its place.  I don't know.  I just happen to  10 think that the Indian Act should go.  And if the legal  11 rights conferred by that Act, go, then that's --  12 that's what I think should happen.  13 Q   Yes.  And my further question was do you -- you don't  14 believe in any special legal status at all for  15 Indians?  16 MR. GOLDIE:  Well, my lord, this is roaming very far afield and  17 I am not sure what it's directed to.  18 THE COURT:  I don't either, because I've already ruled in this  19 case that bias -- or even assuming we are talking  20 about bias, is not a disqualification for expert  21 testimony.  I made that ruling in the case of --  22 MR. GOLDIE:  Mr. Brody, my lord.  23 THE COURT:  Mr. Brody, yes.  24 MR. ADAMS:  I understood, my lord, what you did was deferred  25 ruling on that question rather than ruling on it.  2 6 THE COURT:  I have since ruled Mr. Brody's evidence is  27 admissible.  28 MR. ADAMS:  Let me ask you this, Mr. Williams.  29 MR. GOLDIE:  I don't agree, my lord, that — if that's what this  30 question was directed to, I don't agree that the  31 witness' views on the Indian Act or special status has  32 anything to do with bias.  33 THE COURT:  Well, I am not suggesting it is.  I am just putting  34 it at its -- what may be its highest for the purpose  35 of this particular exercise.  3 6 MR. ADAMS:  37 Q   Well, let me ask you this, Mr. Williams:  You came to  38 do this piece of work for this case with a view that  39 at least some of the arguments in favour of aboriginal  40 title were ludicrous, did you not?  41 A   No.  42 Q   No?  I wonder if you could look at tab 2, page 4 of  43 Exhibit 1172?  44 A  What tab?  45 Q   Tab 2.  4 6 THE COURT:  Page?  4 7 MR. ADAMS: 20847  D.R. Williams (for Province)  Cross-exam by Mr. Adams  on Qualifications  Four.  The third paragraph on that page?  Yes, fine.  You say:  The argument that one method of extinguishing  aboriginal title (if it existed) was by  military conquest—and slaughter--of the  aboriginal people in combat has always struck  me as ludicrous.  Here, in the "Kitwancool Jim"  episode, we undoubtedly have threatened  slaughter--averted only by the good judgment of  Roycraft et al, and by the capitulation of the  Indians to a superior force without bloodshed.  Surely the legal consequences of that should  logically be no less significant than if those  eighty militiamen had moved up the Skeena and  shot every Indian on sight.  It is illogical  that benignity on the part of the authorities  should today be used as an argument by the  Indians that their aboriginal claims were never  taken away.  Yes.  That's a characterization of that argument as  ludicrous?  Yes.  I -- I stand by that.  But that's -- this is not  what you asked me.  You asked me whether I had  characterized aboriginal claims for aboriginal title,  generally, as being ludicrous.  That's not at all what  I said.  No, that's not what I asked you either.  I asked you  about some of the arguments.  And you took the cause of the Provincial  Government in this litigation as your cause, did you  not, in coming to your opinion?  Well, I formulated an opinion and it happens to accord  with the position taken by the Provincial Attorney  General.  My question was --  But I was not asked to come into this litigation to  take up a cause.  If you are interested, I will tell  you how it was I was consulted in this.  We may come to that.  What I'm asking you for the  moment, is I'm suggesting to you that you took the  position of the Provincial Attorney General in this  litigation as your cause in coming to your opinion?  :  Well, he has answered that question.  1  Q  2  A  3  Q  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  A  24  Q  25  26  A  27  28  29  30  31  Q  32  33  34  i  35  36  A   '  37  38  1  39  Q  1  40  A  41  42  43  Q  44  i  45  46  47    ]  MR. GOLDIE 20848  D.R. Williams (for Province)  Cross-exam by Mr. Adams  on Qualifications  1 A   I didn't take it up as my cause.  I was not acting as  2 a lawyer in this matter.  I was acting as a researcher  3 and a consultant.  4 MR. ADAMS:  5 Q   All right.  Would you look at 52 of tab 2, please.  6 And the second paragraph of your September 29, 1986  7 letter to Mr. Goldie's attention?  8 A   Yes.  9 Q  10 Having surveyed the material gathered  11 during the last ten months, while organizing  12 it, I am struck by its relevance to your cause,  13 or should I say "our" cause.  14  15 A   In quotes.  16 Q  17 I think it demonstrates that there was peaceful  18 conquest and that it negates any assertion of  19 sovereignty by the plaintiffs.  20  21 A   Um-hmm.  22 Q   And I put it to you again that you took the cause of  23 the Provincial Attorney General as your cause in  24 coming to your opinion?  25 A  Well, that was a remark of some jocularity.  I put  26 "our" in quote marks, you notice.  27 Q   And then finally, for your efforts, you can confirm  28 for me that you were engaged at a payment of $450 a  29 day to render your opinion in this litigation?  30 A   That's so.  It worked out -- it eventually became an  31 hourly -- straight hourly figure, Mr. Adams, $75 an  32 hour.  33 Q   When did that happen?  34 A  Well, that's how it translated into practice.  Out of  35 which I paid my typist and my other -- some of the  36 other overhead expenses.  I did receive some expenses  37 as well.  38 MR. ADAMS:  Thank you.  Those are my questions on  39 qualifications.  4 0 THE COURT:  Thank you.  Re-examination?  41 MR. GOLDIE:  None, my lord.  42 THE COURT:  All right.  Mr. Adams.  43 MR. ADAMS:  My lord, it's my submission that the witness is not  44 qualified to come here and render the opinion that is  45 reflected in the summary that I have which you haven't  46 seen yet.  I did put to him what I described, and I  47 believe he accepted, as a precis of his main 20849  Submission by Mr. Adams  Ruling by the Court  1 conclusion.  And it's my submission that given the  2 focus of his qualifications on legal biography, the  3 lives of lawyers and judges, as the witness described  4 it, and given his -- what I submit is an almost  5 complete lack of familiarity with the scholarly  6 secondary literature that is relevant to the subject  7 that he seeks to discuss; and given that to a  8 considerable extent the organization of his  9 evidence -- of his summary and the sources that he  10 utilized in coming to an opinion were at least  11 influenced, and in my submission, dictated by counsel  12 for the province; and given his unfamiliarity with  13 even the difficulty raised by Professor Trigger and  14 his unwillingness to agree that ethnographic knowledge  15 would be of assistance in resolving that difficulty,  16 and in any case, his lack of such knowledge; given  17 that, in my submission, he has been shown to have  18 prejudged for the Province as a whole, the very issue  19 that he is seeking to render an opinion on here.  And  20 given, lying on top of that, as it were, in my  21 submission, exhibits through his writings and his  22 evidence a bias on the subjects of his opinion, in my  23 submission, he is not qualified to come here and give  24 you an expert opinion on the subjects for which he has  25 tendered.  2 6    THE COURT:  All right.  Thank you, Mr. Adams.  27 I am not with you on this, Mr. Adams.  I think  2 8 that all the arguments that you have made have more or  29 less been made with respect to other witnesses and I  30 have made them matters of weight.  31 I think that the heads of disqualification to  32 which you refer, if I may call them that, are matters  33 for cross-examination and do not go to the  34 admissibility of the evidence of the witness.  35 I said once before that one does not need a Ph.D.  36 in order to be qualified to give this kind of  37 evidence.  And that is so particularly in view of the  38 fact that I anticipate, although, of course, at this  39 point I do not know, the witness will largely be  40 referring to what I think may conveniently be called  41 historical facts.  The significance and weight of  42 which will ultimately be my responsibility.  And if he  43 has left some historical facts out of his collection,  44 then I dare say they have already been introduced in  45 other evidence or will be so introduced.  46 And that being so, it is my view that subject to  47 exceptions as may arise during the course of the 20850  D.R. Williams (for Province)  In chief by Mr. Goldie  1 evidence, the witness is sufficiently skilled and  2 experienced in researching historical and legal  3 matters that he is expected to give.  4 You may proceed, Mr. Goldie.  5 MR. GOLDIE:  Thank you, my lord.  6  7 EXAMINATION IN CHIEF BY MR. GOLDIE:  8 Q   Mr. Williams -- you can give that to the Registrar, if  9 I may.  10 THE COURT:  Excuse me a moment, Mr. Goldie.  11 MR. GOLDIE:  12 Q   Mr. Williams, you provided counsel with a summary of  13 your opinion evidence dated March 30th, 1987, entitled  14 "Imposition and Acceptance of Law and Order Within the  15 Claim Area"?  16 A   Yes.  17 Q   And a copy of that was provided to my friends at the  18 time, my lord.  And I would ask you to identify that  19 copy as -- that document as a copy of the report or  20 summary of the report that you provided at -- on or  21 about March 30th, 1987?  22 THE COURT:  That's not in this collection I was given this  23 morning?  24 MR. GOLDIE:  No, my lord.  25 A   Yes.  26 MR. GOLDIE:  My lord, I am going to ask that a number be  27 reserved for Mr. Williams' summary.  2 8 THE COURT:  Yes.  29 MR. GOLDIE:  Dated March 30th, 1987.  30 THE COURT:  1173.  31 THE REGISTRAR:  Yes, my lord  32 EXHIBIT 1173:  RESERVED  33 MR. ADAMS:  My lord, I don't object to reserving of a number.  I  34 do have some objections to specific passages of the  35 report which I am prepared to identify and argue now.  36 It may be that they are ones that could conveniently  37 be struck out if my argument is successful.  38 MR. GOLDIE:  Well, I would prefer to deal with the matter in my  39 own order, my lord.  If my friend has an objection, I  40 think it ought to be dealt with in the context of the  41 actual document.  42 THE COURT:  You may proceed.  The most we are doing now is  43 reserving the number.  44 MR. GOLDIE:  45 Q   You have indicated in the evidence you have given in  46 response to Mr. Adams' questions under qualifications,  47 that your terms of reference were to consider the 20851  D.R. Williams (for Province)  In chief by Mr. Goldie  1 historical evidence relating to the imposition of law  2 and order within the claim area.  Is that stated in  3 your -- in the summary of your opinion?  4 A   Yes.  It's at page 1.  5 Q   All right.  And on the same page you indicate that you  6 restricted yourself to the post-contact era, that is  7 to say, "the era of permanent penetration by whites,  8 subsequent to 1859"?  9 A   Yes.  10 Q   And if you turn to page 3, please, you state, "In  11 reaching these conclusions," and I want to leave your  12 conclusions for the present.  You state that you "have  13 relied almost exclusively on primary sources" and then  14 you set them out, lettered (a) to (1) inclusive?  15 A   Yes.  16 Q   And that the greater part of your research was into  17 the pre-1900 period.  And for what reason do you give  18 for that?  19 A  Well, I think that -- as I state, that "the pattern of  20 Indian and white relations in the claim area was  21 settled by then, and if not entirely so, certainly by  22 1914."  23 Q   All right.  Your summary is dated March the 30th,  24 1987.  Did you continue your research after that?  25 A   Yes.  26 Q   Did that research alter your conclusions?  27 A   It did not alter my conclusions, but it -- I refined  2 8 them you might say.  2 9 Q   All right.  30 A   One of the -- one of the additional matters that I did  31 look at in that sub -- subsequent to March of 1987 was  32 the Barbeau-Beynon material, for example, which is not  33 referred to specifically in the March summary.  34 Q   No.  Well, in your March summary, you state that -- on  35 page 4, that you noted some potentially important  36 sources that you did not examine, and that the details  37 of all the documents you have examined can be produced  38 and that is what you propose doing today?  39 A   Yes.  4 0 Q   You've indicated to my friend, Mr. Adams, that the  41 procedures that you followed in order to give evidence  42 here consisted primarily of examination of original  43 archival research undertaken personally?  44 A   That's right.  45 Q   And I understand you've had prepared, a document  46 collection which reflects the research undertaken  47 since you were retained in this matter? 20852  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  A  Q  Yes.  THE  MR.  THE  MR.  THE  MR.  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  My lord, I would like to hand up -- this is entitled,  my lord, "Documents Re:  'Imposition and Acceptance of  Law and Order Within the Claim Area'", volume 1, tabs  1 to 15b.  Your lordship will find -- do you have your  own?  A   Yes, I do.  May I refer to my own copies which are  here?  Q   Yes.  COURT:  Just one volume, Mr. Goldie?  GOLDIE:  This is volume 1, my lord.  COURT:  There is more than one?  GOLDIE:  There is more than one, yes.  COURT:  How many volumes are there?  GOLDIE:  There are five, my lord.  WITNESS:  May I step out a moment, my lord, just to get  them?  COURT:  Yes, certainly.  GOLDIE:  My lord, while the witness is off the stand, I  would like to point out that the index which is --  precedes tab 1, is the same index for -- a copy of the  same index will be found in each volume, and the tab  numbers are arranged in the order of the topic to  which he refers in his summary.  Now his summary,  unlike Dr. Greenwood's, does not contain voluminous  footnotes, but the documents will be those which  relate to the order of the topics adopted by the  witness.  COURT:  This is the index for all five volumes?  GOLDIE:  That is correct, my lord.  Might a number be  allotted to that, my lord?  COURT:  This will be 1174.  GOLDIE:  And then each -- I suggest that each tab be given  the number that appears on the tab, which would be 1,  2a, 2b, 2c, 2d.  COURT:  Yes.  And then the other volumes will be numbered --  GOLDIE:  11 —  COURT:  Well, I'm not sure.  Will you be introducing other  documents?  GOLDIE:  The other volumes will -- do not have the same  documents.  COURT:  No, no.  I'm sorry.  But during the course of your  examination in chief, will there be other documents  introduced in addition to those that are in the book?  GOLDIE:  No.  Well, not in addition to those which are in  the total number of volumes.  COURT:  We will mark each volume as we get to it, so it 20853  D.R. Williams (for Province)  In chief by Mr. Goldie  1 doesn't matter.  We will leave that opportunity  2 available to us, I guess.  3 MR. GOLDIE:  4 Q   Now, Mr. Williams, you have before you then your  5 summary which -- for which number 11 -- Exhibit 1173  6 has been reserved, and I ask you to turn to page 4.  7 And am I correct in the statement I made to his  8 lordship, that the order of the documents in your  9 document collection follows the discussion -- the  10 order of the discussion in your summary?  11 A   Yes.  12 Q   Now, the first item on page 4 is headed "Settlement".  13 Without reading what you have stated there, would you  14 just summarize what you have set out in your summary  15 and then would you take us to the document collection  16 and illustrate by reference to the documents, the  17 points that you wish to emphasize?  18 A   Under the general heading of "Settlement" which was --  19 which really was my heading, was -- of course, there  20 is no term of art about it -- but what I did was to  21 consider the historical evidence within the claim area  22 of the settlement by the white people, the opening up  23 of the country, as well as the settlement, if you  24 like, of the -- the occupation perhaps, the residence,  25 if you like, within the claim area of the native  26 population.  I wasn't restricting myself only to an  27 examination of activities by white people under this  28 heading, but it was of the whole population, white and  29 native from 1859 onwards.  30 Q   Yes.  Right.  Thank you.  So that the -- as you  31 stated, the heading "Settlement" is a little -- not  32 sufficiently inclusive of all that you consider under  33 this heading?  34 A   No.  That's a very -- it was just -- it was the way I  35 filed my material when I was collecting it.  36 Q   Yes?  37 A  And it popped up here you might say.  38 Q   Now, you state that:  39  40 The first non-Hudson's Bay Company contact in  41 the claim area of which a complete account  42 exists is that of Major William Downie.  43  44 Do you have documents which you wish to refer his  45 lordship to in respect of Major Downie?  46 A   Yes.  Under tab 1.  Under tab 1 there is his  47 handwritten report, which is reprinted for -- has been 20854  D.R. Williams (for Province)  In chief by Mr. Goldie  1 reprinted and can be more readily read for that  2 reason, which is found farther on.  3 Q   Under the same tab, the --  4 A   Under the same tab, yes.  It's a report written by  5 Downie from Fort St. James on the 10th of October of  6 1859.  The -- there are slight differences in the text  7 of the written report that is written by Downie  8 himself, and the reprinting of it in the Papers  9 Relating to British Columbia.  But the essence of the  10 two documents is the same.  For example, he  11 misspells -- there is a reference to John Work and he  12 has it as "Wain" -- or the printed version has it as  13 "Wain", but they are minor differences.  So that  14 the -- I repeat, the printed version is virtually the  15 same as the written version.  16 He had been engaged by Sir James Douglas to make  17 an exploration through what is now -- partly through  18 what is now the claim area, from the mouth of the  19 Skeena to the -- to Stuart's Lake.  2 0 Q   All right.  21 A  And he wrote from Fort St. James.  And he did make a  22 journey.  23 Q   Yes.  Would you just indicate to his lordship what  24 pages of either of the documents you would regard as  25 significant?  26 A  Well, it would be easier to look at the printed  27 version, my lord, which is right at the end of the  2 8 tab.  2 9    THE COURT:  Yes, I have it.  Thank you.  30 A   That's headed "Enclosure in No. 29.  Fort St. James,  31 Stuart's Lake, New Caledonia."  It's page 71 of the  32 extract from those papers, my lord.  And one comes to  33 the second page of it, page 72.  He sets -- then sets  34 out his observations of the country.  He believes Fort  35 Simpson to go up the Skeena River.  And eventually  36 arriving at the Skeena River, he makes observations  37 about the draught vessels that would be able to get up  38 the Skeena.  He comes to -- he describes the -- the  39 topography of the country, he describes finding traces  40 of gold on the Skeena.  He then comes to a place which  41 I presume is Kitsumkalum now.  He says, "The  42 Indian" -- and I am about two-thirds of the way down  43 the page, my lord.  He has an Indian -- at least one  44 Indian companion.  45  46 The Indian who was with me told me that a large  47 stream called the Kitchumsala comes in from the 20855  D.R. Williams (for Province)  In chief by Mr. Goldie  1 north; the land on it is good and well adapted  2 for farming; here the Indians grow plenty of  3 potatoes.  To the south a small stream called  4 the Chimkoatsh, on the south of which is the  5 Plumbago mountain; I have some in my hand, it  6 is as clear as polished silver, and runs in  7 veins of quartz.  8  9 He then says this:  10  11 Near to this are the words "Pioneer,  12 H.B.C." on a tree and nearly overgrown with  13 bark; the Indians told me [it] was cut by Mr.  14 John Wain, a long time ago.  15  16 I take that to be a reference to John Work who was  17 at Port Simpson in 1852 and who -- of whom it was  18 recorded that he went up the Skeena that year.  19 Downie says:  20  21 From here to the village of Kitcoonsa the  22 land improves, the mountains recede from the  23 river, and fine flats run away 4 or 5 miles  24 back to their bases, where the smoke is seen  25 rising from the huts of the Indians engaged in  26 drying berries for the winter, which abound  27 here.  These Indians were very kind to us, and  28 wish me to build a house there, and live with  29 them.  30  31 These sort of references that he is making, my  32 lord, were all sort of within the terms of his  33 reference.  He was -- Douglas wanted him to make a  34 survey of the country in order to assess its potential  35 for economic or agricultural development or mineral  36 development.  37 THE COURT:  Early Economic Council?  38 THE WITNESS:  Beg your pardon?  39 THE COURT:  An early Economic Council?  40 THE WITNESS:  Indeed.  He then visits — evidently has been to  41 Kitsegukla, I would judge.  He refers to it as at  42 Kitsagatala, where he observes some coal.  He  43 continues ascending the river.  He says he has not  44 seen any coal "like this in all my travels in British  45 Columbia and Vancouver's Island."  46 He then says at the bottom of the page:  47 20856  D.R. Williams (for Province)  In chief by Mr. Goldie  1 We experienced some dangers from Indians  2 here, but by a small present of tobacco, and by  3 a determined and unconcerned aspect, I  4 succeeded in avoiding the danger of a collision  5 with them.  We could go no further than  6 Kittamarks, the Forks of the Skeena river in  7 the canoe...  8  9 That's about Hazelton.  10  11 ...and we had been 20 days from Fort Simpson,  12 though the journey could have been done in a  13 third of that time."  14  15 He records that:  16  17 On the 21st September, [he] left Kittamarks  18 with two white men and two Indians and started  19 over a fine trail and through a beautiful  20 country for Fort Fraser, we crossed over an  21 Indian suspension bridge and entered some  22 first-rate land.  23  24 He observes that while travelling:  25  26 My Indians started after a goat of the mountain  27 but was quickly driven back by three bears.  28  29 He then comes to a village which he names Naas Glee:  30  31 We now arrived at the village of Naas  32 Glee...  33  34 I am now about a third of the way down page 73, my  35 lord.  36  37 We now arrived at the village of Nass Glee  38 where the Skeena River rises, we were again on  39 the river we left five days ago, having  4 0 travelled 55 miles when we might have come by  41 the river.  We had great difficulty with the  42 Indians here, and it was fortunate I knew the  43 name of the chief, as otherwise they would have  44 taken all our property; as it was they  45 surrounded us and were most importunate, one  46 wanted my coat, another my gun, a third took my  47 cap from my head; and I really thought they 20857  D.R. Williams (for Province)  In chief by Mr. Goldie  1 would murder us.  These Indians are the worst I  2 have seen in all my travels.  Naas Glee is a  3 great fishing station, and all the worst  4 characters congregate here to lead an indolent  5 life, as they live on the proceeds of their  6 salmon fishery.  Thousand of salmon were drying  7 at this village.  8 We hardly knew what to do for they told us  9 it was 10 days to Fort Fraser, and if we  10 returned they would have robbed us of  11 everything; so I determined to go on if the  12 chief Norra would accompany me, and on giving  13 him some presents he consented to do so.  I was  14 never so glad to get away from an Indian  15 village, but I am ready to go again and  16 prospect this country if Your Excellency wishes  17 it.  18  19 He then goes beyond Naas Glee and eventually  2 0 comes to Fort St. James where he met a chap named  21 Hamilton with the Hudson Bay Company, and he observes  22 that Mr. Hamilton -- I am about just a little bit past  23 half-way down that page 73, my lord.  24  25 Mr. Hamilton expressed his surprise that we had  26 managed to get away from Naas Glee, as we were  27 the first white men who had come through this  28 route, and even he found much difficulty with  29 the Indians there.  30  31 The rest of his report is taken up with the  32 country at Stuart Lake and Babine Lake.  But at the  33 bottom of the page, he says this:  34  35 The only thing that supported us was the grand  36 idea of the enterprise we were engaged in --  37 that of being the first party to explore the  38 route from the Pacific to Fraser's River, which  39 will one day connect the Atlantic with the  40 Pacific Ocean.  41  42 MR. GOLDIE:  43 Q   Under -- I am sorry, go ahead.  44 A   Downie then followed that report up, my lord, with a  45 further letter on his trip, which is found at tab 2.  46 Q   2a?  47 A   Tab 2a, I am sorry, yes. 2085J  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Now, this has not been printed, my lord, and it  2 is handwritten.  The print is fairly legible.  The  3 letter starts -- the date of it is December the -- is  4 December 1859 -- December 18th, 1859, written from  5 Stuart's Lake.  He opens his report by saying:  6  7 I beg to make the following remarks in  8 connection with my former report from Fort --  9  10 Yeah, former report anyway.  11 I don't need to read all of it, my lord, but I do  12 draw the court's attention to the -- his concluding  13 remark, and I am reading -- it's at page 18 I think,  14 my lord.  It's hard to say.  It is page 18.  15 THE COURT:  What stamped number is down at the bottom?  16 THE WITNESS:  Page 19 of the stamped number, my lord, yes.  17 He says there:  18  19 In conclusion allow me to say a word or two  20 concerning the Northern route from Port  21 Essington, on the coast, to Fort George on the  22 Fraser.  23 If this route can be made practicable for  24 the transportation of goods, as I think it can  25 be, without much expense, it will be a very  26 great benefit to the miners on the upper Fraser  27 and will tend to develop the resources of  28 British Columbia sooner by five years than if  29 there were no route opened north.  30  31 He then at page 20 -- stamped 20 page, third line at  32 the top:  33  34 Goods can be taken by steamers from Victoria to  35 Port Essington, at the rate of thirty dollars  36 per ton, how far light draught steam boats can  37 go up Skeena, I am not prepared to say in the  38 meantime until I go again and sound the river.  39 From Port Essington to the head of Skeena, a  40 distance of one hundred and seventy five miles,  41 goods can be taken in Indian canoes at the rate  42 of sixty dollars per ton, until such times as  43 flat boats can be built and the route opened  44 from the head of Skeena to Lake Babine.  45 Portage thirty miles at most, say sixty dollars  46 per ton.  47 20859  D.R. Williams (for Province)  In chief by Mr. Goldie  1 And then at page 23, he says:  2  3 I wish to find out the depth of water on  4 Skeena, the exact length of the Portage that  5 connects Skeena River with Lake Babine.  This  6 is the only point that I am not certain of, as  7 the Indian guides took me round a mountain to  8 their own village that I might give presents to  9 their friends.  10  11 Then at page 24 -- stamped page 24, he concludes by  12 saying this:  13  14 The Indians are numerous on the Skeena  15 River, there cannot be less than five or six  16 thousand in the fishing season and I would not  17 recommend them as being trustworthy.  I do not  18 apprehend any danger from them as they all want  19 white men to come through their country.  20 Having made these remarks for the purpose of  21 [presenting] my -- of preventing any undo rush  22 or excitement of the new route until such time  23 as life and property will be safe in going.  24  25    MR. GOLDIE:  2 6 Q   All right.  Now, you have some documents under tabs  27 2b, c and d and e -- well, just taking the first would  28 you?  29 A  Well, tab?  30 Q   Summarize them, please, and refer his lordship to  31 those parts you think are of some significance?  32 A   Tab 2b is a report from the Colonist newspaper in  33 Victoria of October the 23rd, 1859.  It's a letter  34 written by a chap named Betterworth, who had been with  35 Downie at the -- on the Skeena River.  36 And starting at the bottom of the extract, my  37 lord, in the lower left-hand corner of the photo  38 print, it's the letter dated October 23rd, 1859,  39 Betterworth says this:  "Seven of us with Major Downie  40 left --"  41 THE COURT:  Sorry, is this on the second page of this tab?  42 MR. GOLDIE:  It's under tab 2b, my lord.  43 THE COURT:  Yes, I have that.  44 MR. GOLDIE:  45 Q   It's the first page, lower left-hand corner?  46 A   Lower left-hand corner, headed "Fort Simpson, October  47 23, 1829." 20860  D.R. Williams (for Province)  In chief by Mr. Goldie  1 THE COURT:  Yes.  2 THE WITNESS:  It's actually a letter to — reprinted — a letter  3 to a chap named Crowther but reprinted in the paper.  4 THE COURT:  Yes, I have it.  5 THE WITNESS:  6 Seven of us with Major Downie left Fort  7 Simpson, on August 30th, 1859, to proceed up  8 Skeena River.  We arrived at the Forks of  9 Skeena River on September 19th, 1859.  Major  10 Downie, William Manning, and Francis Chateau  11 proceeded across the mountains to Stuart's  12 Lake.  13  14 Then at the top of the next page, my lord, he -- he  15 says:  16  17 We received the news of the Major and his party  18 by two Indian guides, who started with them.  19  20 Betterworth records that, "Five of us," that's him and  21 four others, "stayed at the Forks of Skeena River  22 twenty days."  23 He then went down to the -- went back to Fort  24 Simpson, and then towards the end of the story, he  25 says this, "So we have taken up our abode in an Indian  26 house."  Now, he is at Fort Simpson when he writes  27 this:  28  29 So we have taken up our abode in an Indian  30 house, among the Indians.  We shall have to  31 trust to the good will of the Indians for  32 provisions as we are out of them and we expect  33 to stay at Fort Simpson for four months before  34 we can come to Victoria in canoes.  We have not  35 succeeded in finding gold.  We have been  36 treated very well by the Indians for so far.  37  38 MR. GOLDIE:  39 Q   And that was in 1859 itself.  And the next document?  40 A   Tab 2c is a report it says.  41 THE COURT:  Mr. Williams, before you go on, I notice that he  42 said -- Major Downie said, I forget what it was, the  43 distance from Fort Simpson to Port Essington was.  Did  44 he say 60 miles?  45 THE WITNESS:  No.  It was about a hundred and eighty miles I  46 think it was, my lord.  47 MR. GOLDIE:  From — 20861  D.R. Williams (for Province)  In chief by Mr. Goldie  1 THE WITNESS:  From Fort Simpson to Skeena, for example.  2 THE COURT:  No, no.  I mean to Port Essington.  Didn't he say  3 Port Essington?  He said how far it was.  It was in  4 the typewritten part.  5 Yes.  He said, "I left Fort Simpson for the Skeena  6 River the 31st of August.  From Fort Simpson to Port  7 Essington is about 40 miles."  8 THE WITNESS:  Oh yes, yes.  9 THE COURT:  I have been proceeding under the misapprehension  10 that Fort Simpson was at the present site of Prince  11 Rupert.  That's obviously not right.  12 THE WITNESS:  Well, it's close.  13 THE COURT:  Is it?  I thought Port Essington was closer than 40  14 miles to the present site of Prince Rupert?  15 THE WITNESS:  Fort Simpson, I think, was to the northeast of  16 present Prince Rupert.  17 THE COURT:  To the northeast?  18 THE WITNESS:  I think.  Yes.  19 THE COURT:  All right.  Thank you.  20 THE WITNESS:  Port Essington was slightly up the river — up the  21 Skeena, I think.  22 THE COURT:  I didn't think it was that far.  23 THE WITNESS:  Well, 40 miles may have been a circuitous route.  24 THE COURT:  Yes, could be.  Where do you think it was, Mr. Rush?  25 MR. RUSH:  I wouldn't put it 40 miles, my lord.  I would say 18.  2 6 THE COURT:  Yes.  I wouldn't have even thought that far, but  27 that's where they sell chocolate and vanilla ice  28 cream.  Thank you.  29 MR. GOLDIE:  30 Q   All right.  31 A   The next tab, my lord, is tab 2c, another account of  32 the Colonist, 1863.  November the 17th, 1863.  It's an  33 account of a miner by the name of Sebastopol, who had  34 gone up the Nass and then had come over to the Skeena.  35 He says that he was -- he was a miner, he was  36 prospecting.  About 12 or 15 lines down he says:  37  38 The Indians were numerous but very friendly,  39 looking upon Sebastopol as an old Tillicum.  40 [phonetics].  41  42 And then he describes the -- describes the Skeena  43 and describes their prospecting.  He thought they were  44 pretty good prospects.  45 And then he remarks about two-thirds of the way  4 6              down:  47 20862  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  The Indians here told the party that five days  or about 100 miles further on, there was a Fort  of white men, which Sebastopol supposed to be  Fort Ogden or James on Stuart Lake.  THE COURT:  I haven't found that.  Is it in the first column?  THE WITNESS:  It's on the left-hand side of the extract, my  lord.  THE COURT:  Yes?  THE WITNESS:  About two-thirds of the way down.  Where the line  runs across the centre of the newspaper copy:  The Indians here [said] the party -- told the  party that five days or about 100 hundred miles  further on, there was a Fort of white men.  THE  THE  THE  THE  THE  THE  THE  THE  THE  MR.  THE  MR.  THE  Just a minute.  Well I haven't found it yet.  Tab 2c, my lord.  Yes, I am in the right tab.  About two-thirds of the way down.  On that column?  Yeah.  The left-hand column.  Above the line?  Just starting right at the line.  Oh, I see.  I see.  I was looking above the line.  Yes, all right.  GOLDIE:  Then you next have under tab 2d --  COURT:  I wonder if we could start that after lunch, Mr.  Goldie?  GOLDIE:  Thank you, my lord.  REGISTRAR:  Order in court,  two o'clock.  COURT:  WITNESS  COURT:  WITNESS  COURT:  WITNESS  COURT:  WITNESS  COURT:  Court stands adjourned until  (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  Toni Kerekes, O.R.  United Reporting Service Ltd. 20863  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  (PROCEEDINGS RESUMED AT 2:00 p.m.)  THE  THE  THE  THE  THE  REGISTRAR  COURT  ADAMS  COURT  ADAMS  COURT  ADAMS  COURT  ADAMS  Order in court.  Mr. Adams.  Just before my friend resumes, I have located a  cross-reference for Exhibit 1172-15 which was the  Trigger extract.  Thank you.  That's Exhibit 888.  I am sorry, 15?  1172-15.  I am not sure that I was given that.  That's the one for this morning's purpo  have yet to get copied.  Yes, all right.  But it was put by the plaintiffs to Dr.  examination in chief and was made at that  same extract, Exhibit 888.  888 by itself, doesn't have a tab numbe  I don't believe so.  All right.  I think at that time we were numbering  documents.  THE COURT:  All right.  I notice that Mr. Still in  The Sun on Sunday night stated how many e  had and I wondered, it didn't sound right  frankly disagree with anything The Sun pr  didn't sound right to me.  REGISTRAR:  He got that from me, my lord.  COURT:  He got that from you.  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  ADAMS  COURT  ADAMS  COURT  ADAMS  ses that I  Daly in his  time the  individual  an article in  xhibits we  to me.  I  ints but it  REGISTRAR:  COURT:  I  REGISTRAR:  HE COURT:  Is  THE REGISTRAR:  what  Yes.  think he only had us down to about 1,  I told him 3,900.  that what he had?  I don't -- I didn't read the articl  I told him.  THE COURT:  Not a matter of the greatest importance  Mr. Goldie, thank you.  600.  e but that's  All right,  EXAMINATION IN CHIEF BY MR. GOLDIE:   (Continued)  Q   Thank you, my lord.  My lord, in the -- in Exhibit  1174 we had reached tab 2d, and this is in your  sequence of exploration settlements and white contact  with the land claims area in the period after 1859, is  it, Mr. Williams?  A   Yes.  Q   Tab 2d consists of a number of documents and from the 20864  D.R. Williams (for Province)  in chief by Mr. Goldie  1 last one which is under the pink divider, the last  2 pink divider, there is an extract from a B.C.  3 cessional paper.  Is that your understanding?  4 A   Yes.  5 Q   And the preceding extracts I am instructed consist of  6 Mr. Humphrey's diary of notes and various other  7 documents which he's responsible for.  He was I take  8 it from the extract that is found from the report of  9 the public works, he was responsible for determining  10 whether a trail from Quesnel Mouth in the Cariboo  11 District to Dees Creek was a feasible proposition?  12 A   Yes.  13 Q   And that took him through the claims area; is that  14 correct?  15 A   Yes.  16 Q   My lord, I should say that the first document under  17 tab 2d, which is Mr. Humphrey's diary as it is  18 maintained in the public archives, has a number of  19 written references on it.  These are not yours, are  20 they, Mr. Williams?  21 A   No, they are not, Mr. Goldie.  22 Q   Through some peculiar circumstance that I haven't  23 followed through, I believe they are Mr. Sterritt's  24 handwriting.  Now, I think what has happened, but I am  25 speculating at this point, is that we got this from  26 Mr. Sterritt very early on in the case and then we got  27 Mr. Williams' material and somehow this particular --  28 these particular documents got switched but it's --  29 it's immaterial I take it, Mr. Williams, because these  30 side comments are not yours?  31 A   No.  32 MR. GOLDIE:  Whatever their origin.  33 MR. ADAMS:  My lord, the other notation on the document on the  34 first page is BG150 which was my notation for Dr.  35 Galois' documents, leads me to believe this is Exhibit  36 1135-150.  37 MR. GOLDIE:  I think, however, the comments are still Mr.  38 Sterritt's and I recall those from a document that  39 we -- he provided us very early on in the case.  And I  40 think that my speculation is probably correct that, in  41 some way, shape or form, the documents have got mixed  42 up.  In any event, my friend identifies this  43 particular one as the one with his notation on it so  44 that adds another extraneous annotation.  In any  45 event, I won't ask you to read from this, Mr.  46 Williams.  The first pink divider, would you go to  47 that, please, and this is a handwritten document dated 20865  D.R. Williams (for Province)  in chief by Mr. Goldie  1 Forks of Skeena, April, I can't quite make out the  2 date.  Can you assist me?  Is it 21?  3 THE COURT:  April 21st, is it?  4 THE WITNESS:  I am sorry, I guess I haven't got the first pink  5 divider here.  April 21, 1874, yes.  6 MR. GOLDIE:  7 Q   This is a handwritten communication from Mr. Humphrey;  8 is that correct?  9 A   Yes.  10 MR. GOLDIE:  All right.  And then the next?  11 THE COURT:  Who's Mr. Humphrey again please?  12 THE WITNESS:  Well, he was a man who was doing really an  13 exploration of the area roughly from the Nass through  14 the claim area and as far down as Quesnel Mouth.  He  15 started on the coast near Fort Simpson and then worked  16 his way in, and came down through the Nass and the  17 Skeena.  He was doing an exploration really under the  18 auspices of the Chief Commissioner of Lands and Works.  19 MR. GOLDIE:  20 Q   And the letter that we have just been looking at is  21 addressed to the Honourable Robert Beaven, Victoria?  22 A   Yes.  23 Q   And attached following it is a hand sketch map with  24 some distances?  25 A   Yes.  26 Q   And then under the next divider there is another  27 letter addressed to Mr. Beaven as Chief Commissioner  28 of Lands and Works, and this is dated June 7, 1874,  29 and this too is Mr. -- or is it, is this Mr.  30 Humphrey's work?  31 A   Yes.  32 Q   And under the next divider under this tab, there is  33 another handwritten document?  34 A   Yes.  35 Q   And that is Mr. Humphrey's or signed by Mr. Humphrey?  36 A   Yes.  37 Q   And it too is addressed to, this time, to the  38 Assistant Commissioner of Lands, and can you make out  39 the date on that please?  40 A   It's August 28, 1874.  41 Q   Thank you.  And following that, there is the same  42 sketch map that we saw previously?  43 A   Yes.  44 Q   And then that brings us to the reports which have been  45 contained in the report to the Public Works Department  46 of 1874 as printed as a B.C. cessional paper?  47 A   Yes. 20866  D.R. Williams (for Province)  in chief by Mr. Goldie  1 Q   All right.  So that's 1874.  Would you look under tab  2 2e and tell us what we find there?  3 A   This is a record of another journey by a man named  4 Gardiner who, in part, also went through the claim  5 area on a trail-blazing, you might say, trip.  6 Q   Right.  And again there are some notations on the  7 margins.  Those are not yours, I take it?  8 A   No.  9 Q   And under 2f, what do we find?  10 A   This is another journey through the claim area of  11 north of Hazelton by a man named Walsh.  He went up  12 through the claim area and ultimately came out on the  13 Stikine.  His journey was in 1881.  14 Q   Thank you.  That date then is November 21, 1881?  15 A   Yes.  16 Q   Thank you.  And this is addressed to The Honourable  17 The Minister of the Mines, and it begins with the  18 words:  19  20 "In accordance with our agreement to prospect the  21 head waters of Skeena River."  22  23 A   Yes.  24 Q   Do you understand then that he was undertaking  25 something in agreement with the -- the Minister of  26 Mines?  27 A   Yes.  28 Q   And that brings us to page 6 of your summary, and you  29 introduce there the Collins Overland Telegraph and you  30 say, "Seven years later".  You are referring there to  31 Downie, are you?  32 A   Yes.  33 Q   So that would be 1866?  34 A   Yes.  35 Q   And you say that the telegraph line went through the  36 claims area from Burns Lake west and north, completed  37 to a point north of Kispiox, and a route had been  38 surveyed through the northern section of the claim  39 area as far as Stikine?  40 A   Yes.  41 Q   You say this would appear to be the first non-Hudson's  42 Bay Company contact in that part of the claim area,  43 that is, north of Hazelton?  44 A   Yes.  45 Q   You refer to the amount of material in the public  46 archives and with respect to Collins Overland and then  47 you set out a number of observations.  I won't read 20867  D.R. Williams (for Province)  in chief by Mr. Goldie  1 those but those are based on documents which you have  2 included in this compilation?  3 A   Yes.  4 Q   My lord, under tab 3a, this is the ordinance of  5 February 21, 1865, and that was the ordinance under  6 which the telegraph line was undertaken?  7 A   Yes, authorized if you like.  8 Q   Yes.  And then under tabs 3b and 3c are further  9 ordinances which did what?  10 A  Well 3b and 3c are sort of nuts-and-bolts things one  11 might say.  The ownership changed -- the original  12 authorization was to Collins and his associates.  13 Later it was the Western Union Telegraph Extension  14 Company and the International Telegraph Ordinance and  15 so on.  The legislation at tabs 3b and 3c simply bring  16 up to date as it were the various corporate changes  17 but the essential authority for the construction of  18 the line was set out in the ordinance of tab 3b -- 3a  19 rather  20 Q   Right, thank you.  And, my lord, apart from the  21 authorization for construction under section 1,  22 reference will be made to section 2, power to erect  23 stations and defensive posts, and section 3 under  24 which the company or its company to be was authorized  25 to use so much of the unappropriated Crown lands in  26 the colony not reserved to Indians as may be necessary  27 for stations.  Now, under tab --  28 A  Any may I just draw your attention to section 4, there  29 is also a conveyance of the right of use of the land  30 for the purposes and not a right to the soil which  31 remains vested in the Crown.  32 Q   Right.  You referred to the fact that the right of way  33 went through the -- basically through the claims area.  34 I am going to show you the map under tab 4 which is a  35 sketch map showing the proposed route of the Western  36 Union Telegraph between Port Fraser and the Stikine  37 River, British Columbia, from the explorations by the  38 party under the command of Major F.L. Pope, Assistant  39 Engineer, 1866.  Is it possible to identify on this  40 the route that you understand was constructed as far  41 as a point near Kispiox?  42 A   Yes, I think it is.  I might observe in passing, my  43 lord, that in one of those reports by Humphrey in the  44 tabs where, whatever ones we just talked about,  45 Humphrey refers to the map drawn by Major Pope and I  46 take it that this is the same one that he was -- that  47 he, Humphrey, was talking about.  The line as drawn 2086J  D.R. Williams (for Province)  in chief by Mr. Goldie  1 originally contemplated by Pope for the construction  2 of the telegraph was changed by the man who's actually  3 on the ground, a man named Conway, and I believe one  4 starts at Fort Fraser, which is towards the lower  5 right hand of the map, my lord.  6 THE COURT:  Yes, I have it.  7 THE WITNESS:  The line as it was constructed I believe to be  8 that which was at first more southerly, or you will  9 see there are two dotted lines there.  10 THE COURT:  That's as-built.  11 MR. GOLDIE:  12 Q   Yes.  13 A   I think so, yes.  And then as one comes to the  14 Wastomquah, I am not quite sure of the pronounciation,  15 it is the more westerly of the two lines that you see  16 as the line goes north.  17 Q   The Wastomquah River is now the Bulkley, is it?  18 A   Yes.  19 Q   And then if you follow that closely dotted line, you  20 come up to something called Fort Stager?  21 A   Yes.  22 Q   And that was what?  23 A   Fort Stager was right at Kispiox.  It was the depot, a  24 depot, the line certainly went to Fort Stager and this  25 more westerly of the two dotted lines comes to Fort  26 Stager or right opposite -- or at it virtually.  And  27 Fort Stager was a post or depot operated by the  2 8 Overland Telegraph Company.  29 Q   Completed construction, you state, carried on some  30 point to some point beyond Fort Stager?  31 A   Yes, it went -- Conway, the engineer, estimated its  32 northerly point of construction as being, I think it  33 was 55 degrees 42 minutes of latitude.  34 MR. GOLDIE:  Right, thank you.  In your observations at pages 7  35 and 8 of your summary you make reference to Thomas  36 Elwyn, this is item D on page 8, my lord.  37 THE COURT:  Item D on page 8 of the summary.  38 MR. GOLDIE:  39 Q   Of the summary, yes.  Mr. Williams has stated, and I  4 0 quote:  41  42 "Construction crews had a travelling magistrate  43 with them, Thomas Elwyn, whose pay was shared  44 equally by the company and the colonial  45 government.  He was the first judicial official in  46 the area."  47 20869  D.R. Williams (for Province)  in chief by Mr. Goldie  1 Before coming to him in any detail, there are a number  2 of other documents that you have examined and that we  3 have here which relate to the Collins Overland  4 Telegraph.  First, could you tell us what we find  5 under tab 5?  6 A   Tab 5 is a typescript of the recollections of a man  7 named Charles Morison who worked for the telegraph  8 company while it was being constructed.  He came up  9 from the coast, Pacific coast, and went up to the  10 forks, Skeena Forks, and apparently got no further  11 east than Hazelton, as I refer to it I guess, as a  12 rather long account by him in part as it covers his  13 career but there is a considerable amount of material  14 in his recollections about his work with the telegraph  15 company.  16 Q   At page 23, the page -- I am referring to the page  17 numbers which are in parenthesis at the top of the  18 pages, my lord, and at the last paragraph, Mr. Morison  19 makes some reference to the arrival of food and then  20 the last two lines, and I quote:  21  22 "One morning the old Chief and some of his men came  23 rushing along the trail shouting 'Man Of War'."  24  25 Now, the next page, my lord, is unnumbered and it  26 appears to have some relationship to earlier reference  27 to Morison's meeting with large group of the  28 Hagwilget.  And from that, the identity of the old  29 Chief that is being referred to here is to the  30 Hagwilget people.  But then going over to the numbered  31 page 24 from 23, Mr. Morison says, and I quote:  32  33 "I was very much puzzled by what they meant, when  34 behold a small pack train of four or five Cayuse  35 ponies appeared under charge of a whiteman with an  36 order of provisions from the working party, the  37 Indians had never seen a horse before but had  38 heard of the terrible Man-of-war from coast trader  39 Indians," and so on.  40  41 Have you run across any evidence in the documents that  42 you have looked at that either the Gitksan or the  43 Wet'suwet'en peoples in the claims area had any  44 familiarity or knowledge of horses prior to this  45 reference in Mr. Morison's diary which appears to be  46 1866?  47 A   I saw no evidence of it. 20870  D.R. Williams (for Province)  in chief by Mr. Goldie  1 Q   And then under tab 6a, would you tell his lordship  2 what we find there?  3 A   This is the General Rules of Organization and  4 Government.  This was the procedures that would be  5 followed and the regulations that would apply to  6 people working for the telegraph company promulgated  7 by the -- by -- drafted by Bulkley, I believe, and  8 promulgated by the telegraph company.  9 Q   And under 6b?  10 A   This was a report by Bulkley of work on the Overland  11 Telegraph.  12 Q   Of July 25, 1865?  13 A   Right.  14 Q   And then under tab 7a we have a series of letters and  15 you have already told us who Conway was.  Who was the  16 Captain Coffin to which the letter of August 18, 1865  17 is addressed?  18 A   He was one of the company officials in accordance with  19 the military character of the organization as set out  20 by Bulkley.  They had all titles, they were Captain  21 and Majors and Colonels.  And Captain Coffin was a  22 company official.  23 Q   All right, thank you.  And then in the -- under tab 7b  24 you have a report of Major Pope to Mr. Conway of  25 November 6, 1865, Bulkley House?  26 A   Yes.  27 Q   He and his party spent the winter there?  28 A   Yes, I believe so.  29 Q   And under tab 7c, another report from Pope but this  30 time to Colonel Bulkley, the Engineer in Chief?  31 A   Yes.  32 Q   On that page, the fourth paragraph, one-line paragraph  33 beginning with the words:  34  35 "Relying upon the country or the natives for food  36 is..."  37  38 Is that impracticable?  39 A   Impracticable, yes, it is impracticable.  40 Q   And the next document is dated March -- is that 17th?  41 A  March 17.  42 Q   Yes, 1866?  43 A   Yes.  44 Q   And the third item down, it reads as follows:  45  46 "Mr. Birch will pay half of the Magistrate's Salary  47 to accompany us north.  I think we better agree to 20871  D.R. Williams (for Province)  in chief by Mr. Goldie  1  2  3  4  5  A  6  Q  7  ]  8  A  9  Q  10  11  A  12  Q  13  A  14  Q  15  16  A  17  1  18  19  20  21  Q  22  23  A  24  Q  25  26  27  A  28  Q  29  30  A  31  32  THE  COURT:  33  MR.  GOLDIE  34  35  36  THE  COURT:  37  MR.  GOLDIE  38  MR.  ADAMS:  39  THE  COURT:  40  MR.  GOLDIE  41  42  43  THE  COURT:  44  MR.  GOLDIE  45  46  47  this as we will get many favours from him  especially if any Hudson's Bay difficulties arise.  Conway."  Yes.  Does that refer to the travelling magistrates that you  made reference to in your report?  That does.  Mr. Birch was the colonial secretary.  Thank you.  And 7d is Mr. Conway's agreement to that  arrangement?  Yes, naming Mr. Elwyn in this case.  And another report to Bulkley under tab 7e?  Yes.  And another one under 7f.  And then under tab 7g,  would you just identify that document for us?  Two letters in that tab I think, yes, they are both  dated the same date, they are both very difficult to  read.  They are letters February 19, 1867.  They are  reports by Conway to Bulkley on the progress of the  work.  All right, thank you.  And then tab 8a, this is your  typescript, is it, of a document from the P.A. B.C.?  Yes.  The document itself is under the typescript and, as  you point out -- pointed out with respect to an  earlier one, rather hard to read?  Very difficult, yes.  But you have copied out one part of it; is that  correct?  I personally examined and read the letter carefully  and dictated what I saw.  Where is that?  Where do I find that?  :  The first document under that tab, my lord, is --  which is 8a, is Mr. Williams' typescript of a portion  of the document that follows.  It's --  On 8a.  :  Yes, is your lordship with me?  I don't have the typescript with that tab either.  I don't have 8a.  :  Well, I will look into that.  Does your lordship  have a handwritten document with 987 stamped in the  left-hand margin under 8a?  Yes.  :  Well, I had intended to put in there a typescript  which Mr. Williams had prepared beginning with the  second to last paragraph which begins with the words,  "The HBC are very particular". 20872  D.R. Williams (for Province)  in chief by Mr. Goldie  1 THE COURT:  No, we don't have that.  2 MR. GOLDIE:  3 Q   All right.  I will provide that, my lord.  And then  4 finally there is a portion, perhaps you can tell us,  5 Mr. Williams, under tab 8b, I have a single page under  6 that.  Is that all that's in the archives?  7 A   Yes.  It doesn't butter many parsnips, that one, I am  8 afraid.  9 Q   You understand that one to be from Mr. Conway?  10 A   It's Mr. Conway's writing, yes.  It is about the  11 Hudson's Bay Company.  12 Q   All right, thank you.  And under tab 8c is another  13 reference to the magistrate's salary?  14 A   Yes.  15 Q   And under 8d is Mr. Conway's report to Colonel Bulkley  16 of September 1, 1866?  17 A   Yes, it might be the 11th.  18 Q   Yes, thank you.  And under tab 8e, this is a document  19 dated September 26, 1866.  This appears to be from Mr.  2 0 Conway to a George H. Mumford.  Can you tell us who he  21 was?  22 A  Mumford was a -- one of the senior man I guess with  23 the -- I think he was a senior official with the  24 Telegraph Company -- one of the directors of it, in  25 any case.  2 6 Q   Thank you.  And then under tab 8f, there is a document  27 which you identify as Mr. Conway to a Mr. Decker?  28 A   Yes.  29 Q   And can you tell us anything about Decker?  30 A   Decker was the man after whom Decker Lake was named,  31 another Telegraph Company employee.  32 Q   All right.  And can you read us the first paragraph?  33 A  34 "Indians leave with Mr. Bush today.  Start them at  35 best advantage keeping them under Mr. McNeill."  36  37 Q   Right.  Can you recall who Mr. McNeill is or was?  38 A  Well, I don't specifically but he was undoubtedly a  39 member of the work party.  40 Q   And then under tab 8g, there is another letter to Mr.  41 Mumford from Mr. Conway of October 27, 1866?  42 A   Yes.  43 Q   He appears to set out there some numbers of his group?  44 A   Yes.  45 Q   Can you make those out, please?  46 A  Well, he says:  47 20873  D.R. Williams (for Province)  in chief by Mr. Goldie  1 "Closed seasons work fifth of October, Station  2 Number sixteen, latitude fifty-five, forty-four,  3 north, approximately longitude one hundred...  4  5 I think it is.  6 Q   Twenty-five.  7 A  8 "Twenty-five, fifteen.  Completed four hundred  9 fifty miles of trail.  Average cutting twenty-five  10 twenty feet wide.  Constructed three hundred  11 ninety miles of line.  Built sixteen Stations.  12 There is on hand at Fort Stager large quantities  13 of supplies.  My party averaged sixty white men,  14 thirty-two Chinamen, and twenty Indians.  15 One-third of this force were constantly  16 transporting supplies."  17  18 MR. GOLDIE:  Thank you.  19 THE COURT:  What was that number again?  My party averaging or  20 averaged?  21 MR. GOLDIE:  22 Q   My party, did you say, averaged?  23 A  Averaged, yes, my lord, 60 whitemen, 32 Chinamen and  24 20 Indians.  25 THE COURT:  Thirty-two, and 20.  26 THE WITNESS:  Thirty-two Chinamen and 20 Indians.  2 7 THE COURT:  Thank you.  28 MR. GOLDIE:  29 Q   And then the last sentence is:  30  31 "One-third of this force were constantly  32 transporting supplies."  33  34 A   Transporting supplies.  35 Q   Yes, all right.  Tab 8h is Mr. Conway to Bulkley of  36 October 9, and can you make out the second to last  37 paragraph and, if so, would you read it please?  38 A  Mr. Elwyn is in -- yes, this is:  39  40 "Mr. Elwyn is in command of the exploring party on  41 the Stikine."  42  43 Q   All right.  And then?  44 A   He was sent north from Fort Stager.  45 Q   All right, thank you.  Now, under tab 9 you have  46 collected material relating to Mr. Elwyn and his  47 status.  Firstly, there is a letter dated the 5th of 20874  D.R. Williams (for Province)  in chief by Mr. Goldie  1 July, 1866, and this is addressed to The Honourable  2 The Acting Colonial Secretary.  That was Mr. Birch at  3 the time?  4 A   I am not sure whether that would have been Birch at  5 that precise moment.  Birch was the colonial secretary  6 but he may have been away, I don't know.  7 Q   All right.  And he states, if I can read his  8 handwriting, in the first page that:  9  10 "The construction party at the Western Union  11 Telegraph Company are now eight miles beyond  12 Stella, an Indian village at the head of this  13 lake."  14  15 That would be Fraser's Lake?  16 A   Fraser Lake.  17 Q   Yes.  And then he makes reference at the bottom of the  18 page to the abandonment of the first route selected by  19 Major Pope?  20 A   Yes.  21 Q   And then in the next page he is talking about the  22 route from Stella to Rocher de Bouille on the Skeena  23 River?  24 A   Yes.  25 Q   All right.  And at the top of the next page, would you  26 read the first sentence please?  Really it comes down  27 to almost the first paragraph but the first sentence?  28 A  29 "The Telegraph Company are making an excellent  30 trail."  31  32 That page?  33 Q   Yes.  34 A  35 "The Telegraph Company are making an excellent  36 trail for pack animals along this line.  The  37 timber is cleared to a width from twelve to  38 sixteen feet and all small streams have been  39 bridged.  In the event of any gold discoveries  40 being made of this section of the country the  41 trail will be of very great advantage to the  42 colony."  43  44 Q   All right, thank you.  And then over a couple of pages  45 to that which is numbered 6/9 in the lower right-hand  46 corner?  47 A   Yes. 20875  D.R. Williams (for Province)  in chief by Mr. Goldie  1  Q  2  3  A  4  5  6  7  8  9  10  11  12  Q  13  14  15  A  16  17  18  19  20  21  THE  COURT:  22  MR.  GOLDIE  23  THE  COURT:  24  MR.  GOLDIE  25  26  THE  COURT:  27  MR.  GOLDIE  28  Q  29  30  31  A  32  Q  33  34  A  35  Q  36  A  37  Q  38  39  A  40  Q  41  42  A  43  44  45  46  47  Would you read the paragraph beginning with the words,  "The Indians"?  "The Indians met with so far are peaceable and well  disposed towards the whites.  There has not been  the slightest collision between the employees of  the Telegraph Company and the natives nor do I  anticipate any difficulty with them beyond slight  matters of dispute which can readily be settled on  the spot."  Thank you. And then over the page, the last sentence  in the first paragraph beginning with the words, "The  Natives"?  "The natives living in the section of country  through which we have passed and also those at  Stewart's Lake all belong to the Carrier  tribe."  I don't see that, Mr. Goldie.  :  It's page 7/9.  Oh, all right.  :  And it's the last seven lines of the first  paragraph.  I have it.  And then the last is a receipt for the -- receipt of  one Union Jack Flag on Government account dated 5th of  July, 1866; is that correct?  Yes.  Then under tab 9b, this is Mr. Elwyn again to the  colonial secretary of the 4th of September, 1866?  Yes.  And this is written from Aggwilget?  Hagwilget, yes, junction of Skeena and Wastomquah.  That would be where the Bulkley now flows into the  Skeena?  I take it, yes.  The first sentence of the first -- of the second  paragraph, could you read that, please?  "The distance from Fort Fraser is about one hundred  eighty miles, the line for the greater part  running through a well watered lightly timbered  grass country." 20876  D.R. Williams (for Province)  in chief by Mr. Goldie  1 Q   Would you continue, please?  2 A  3 "We met with no Indians between Stella and the  4 first crossing of the Wastomquah, (main  5 tributary of the Skeena) a distance of about one  6 hundred thirty miles, we passed several lodges but  7 the owners were salmon fishing..."  8  9 And something I am not quite sure what that is:  10  11 "...at and in the vicinity of Rocher de Bouille  12 they are now returning to their homes.  As the  13 last named place on the Wastomquah five miles  14 above its junction with the Skeena there is a  15 large village with probably at the time of my  16 visit a hundred inhabitants.  I was agreeably  17 surprised in finding them most friendly for I had  18 been informed that they strongly disapproved of  19 the whites coming through the country.  At present  20 the Indians have met the Metlahkatlah and Fort  21 Simpson have a monopoly of the fur trade with  22 these interior tribes and judging by the rates  23 allowed for marten..."  24  25 I take that to be.  26 Q   Yes.  27 A  28 "...it must be a most profitable business.  The  29 Simpsians naturally fear that they will now  30 lose this monopoly and they are endeavouring in  31 every way in their power to prejudice the 'stick  32 Indians' against the company saying that the wire  33 will kill Indians", et cetera, et cetera.  34 "I am happy to state that so far these  35 representations have only temporarily influenced  36 the Natives in this vicinity and our presence has  37 been apparently sufficient to undeceive them.  The  38 Telegraph Company is most kind and liberal in  39 treatment of the Indians near whose villages the  40 line passes and in the main camp, visited during  41 the past ten days by great numbers of Indians,  42 there has not as yet been the slightest approach  43 to a dispute much less a quarrel."  44  45 Q   Yes.  Perhaps you might go down several lines to about  46 half-way down that paragraph beginning with the words,  47 "I have just heard". 20877  D.R. Williams (for Province)  in chief by Mr. Goldie  1 A  2 "I have just heard that the chief at Espiox..."  3  4 which I take to be Kispiox:  5  6 "... on the Skeena does not wish the whites to pass  7 by his village and I was able at once to trace it  8 to a Simpsian who was trading there a few days  9 ago.  I doubt not but that he will be as friendly  10 and tractable as the rest when once we come in  11 close contact.  12 I have entered more fully into this Indian  13 question that perhaps in your opinion it deserves  14 but I am most anxious on the subject for should  15 the natives either now or hereafter become hostile  16 to the company, it would be necessary either to  17 exterminate the former or abandon the line:  18 neither, I think you will agree with me, being a  19 pleasant alternative."  20  21 Q   Thank you.  And then in the last page he makes  22 reference to the fact that he's been requested to  23 spend winter in charge of an exploration?  24 A   In charge of the exploration party and he does not  25 think that that will interfere with his duties as a  26 magistrate, and so he says he will do it.  27 Q   In the absence of any orders from the colonial  28 secretary to the contrary?  29 A   Yes.  30 Q   Yes, thank you.  Now, my lord, under 9c, would you  31 tell his lordship what we have there?  32 A   This is a very long report by Elwyn on the topography  33 of the country through which the telegraph wire  34 passed.  It is descriptive, both of the construction  35 of the wire -- of the line itself, as well as of the  36 country and its main geographical features.  It is  37 printed, I think --  38 Q   Well, is not the first document Mr. Birch's dispatch  39 to the Earl of Carnarvon?  40 A   Oh, yes.  41 Q   To which is attached as an enclosure Mr. Elwyn's  42 report?  43 A   Yes, you are quite right, Mr. Goldie.  Yes.  I was  44 jumping ahead there.  This indeed is the letter from  45 Birch advising the colonial office at London the  46 undertaking of the Telegraph Company and has  47 particular reference to Mr. Elwyn's role in it. 2087E  D.R. Williams (for Province)  in chief by Mr. Goldie  1 Q   Yes.  Would you turn to the second page of Mr. Birch's  2 dispatch which by the way is dated October 26, 1866?  3 A   It's probably -- yes, it is October 26, 1866.  4 Q   Would you turn to the second page of that dispatch and  5 look at paragraph 3 which is -- begins with the one  6 line at the bottom of the page.  7 A   "With the experience."  8 Q   Yes.  9 A   "...of the insurrection of the Chilcoten tribes."  10 Q   Yes, would you read that, please?  11 A  12 "...caused by careless indifference and the ill  13 treatment of the Indians by the labourers employed  14 in making a pack trail.  I was anxious if possible  15 to establish some law and order in the camp of the  16 working party consisting of one hundred and fifty  17 men selected to construct the line northward  18 through the wildest portion of the colony reported  19 to contain a large native population.  In  20 conversation with Colonel Bulkley, the  21 representative of the Western Union Telegraph  22 Company on the Pacific coast, I suggested the  23 advisability of a Government agent being attached  24 to the working party to obtain information of the  25 Country and act on behalf of the Government in any  26 matters connected with the Native tribes.  Colonel  27 Bulkley gladly acceded to my suggestion offering  28 on behalf of the Company to defray all travelling  29 expenses and to contribute one half the salary of  30 the officer I might select."  31  32 Q   Right.  And then he goes on to describe how he  33 obtained the services of Mr. Elwyn?  34 A   Yes.  35 Q   Mr. Elwyn had apparently at one time been a  36 stipendiary magistrate in the colony; is that correct?  37 A   Yes.  38 Q   And resigned and then --  39 A   Resigned to go farming.  40 Q   Yes.  And then he was second in command of the  41 expedition against the Chilcotens?  42 A   Yes.  43 Q   That arose out of the what incident?  44 A   That's the so-called Waddington massacre incident of  45 1864.  46 Q   A survey party or a work party?  47 A   Yes, cutting a trail through from Bute Inlet up the 20879  D.R. Williams (for Province)  in chief by Mr. Goldie  1 Hematco River into the Cariboo.  2 Q   Then he goes on to enclose the copy of the report  3 dated the 4th of September, 1866 and, my lord, my note  4 is that that is the same report as we have under 9b.  5 And going over from that to the end of that there are  6 the minutes of the colonial office and the document  7 which I won't ask Mr. Williams to read.  And then  8 there is another document very difficult to read in  9 parts but this is another report by Mr. Elwyn?  10 A   Yes, starting at stamp number 198, is it, at the top  11 right-hand corner or something?  12 MR. GOLDIE:  Yes, it is, my lord.  13 THE COURT:  Starting with, "The route chosen".  14 MR. GOLDIE:  15 Q   Beg your pardon, my lord.  16 A   "The route chosen", yes, my lord.  17 Q   Yes, that's right, and that extends all the way to the  18 page numbered at the upper-right hand corner, 214, and  19 this was the description --  20 A   Yes.  21 Q   -- of the line beginning at the Fraser River and  22 continuing right on through.  23 A   Yes.  24 THE COURT:  There is no possibility I am going to be able to  25 read this, Mr. Goldie.  Is that going to be a problem?  26 MR. GOLDIE:  No, I am -- it is an enclosure with the report and  27 I don't intend to read it but perhaps, Mr. Williams,  28 with your greater skill you might turn to page 211.  2 9 THE COURT:  Can't even read the numbers.  30 MR. GOLDIE:  31 Q   Well, they are really only numbered every second page  32 because every second page is the back of the preceding  33 one.  34 A  Well, I can read that.  35 THE COURT:  Just a moment.  I think I might find 211.  Yes, that  36 looks like 211.  37 MR. GOLDIE:  38 Q   And then if your lordship would go over one page,  39 there is, in the upper left-hand corner, there is 212  40 reversed but beginning with the first complete  41 paragraph on that page where Mr. Elwyn says:  42  43 "I have a very high opinion of the capabilities of  44 the section between Stations number 10 and number  45 12.  For agricultural purposes I can find no fault  46 with it except in the latitude which..."  47 20880  D.R. Williams (for Province)  in chief by Mr. Goldie  1 And then brackets, (54 45, something or other, Mrs.  2 Leach) is high.  Do you understand that to be the area  3 in the Bulkley Valley which we have now called the  4 Bulkley Valley between Stations number 10 and number  5 12?  6 A   I believe so.  7 Q   I have got nothing further on that, my lord.  8 Following that we find a typescript of Mr. Birch's  9 dispatch to the Earl of Carnarvon from Professor  10 Hendrickson's work but he -- Professor Hendrickson did  11 not deal with the enclosures except to describe them  12 at the bottom of his page.  13 A   That's right.  14 Q   Mr. Elwyn is described as having been a stipendiary  15 magistrate.  Can you tell his lordship very briefly  16 something about the duties of stipendiary magistrates  17 in the Colony of British Columbia, the Mainland Colony  18 of British Columbia?  19 A  Well, they were sort of grand panjandrums in a way.  20 They were often referred -- often seems to be a  21 similar terminology used for them as for Justices of  22 the Peace but essentially unlike English Justices of  23 the Peace the stipendiary magistrates were Justices of  24 the Peace who were paid.  And, in addition to their  25 duties in dealing with crime, they had a very large  26 considerable civil function as well.  They acted as  27 coroners, they were -- they acted as assistant gold  28 commissioners, they conducted civil cases, and  29 starting I think in 1867 they sat as County Court  30 judges, so they were really -- had a very wide  31 jurisdiction, both in the criminal side and on the  32 civil side of law.  33 Q   Under tabs 10, 11, and 12, you have three ordinances  34 of the colony and the first one, an Ordinance to  35 prevent the violation of Indian Graves, that as I  36 understand it creates an offence with respect to the  37 violation of graves and the person before whom the  38 offence is tried.  The jurisdiction is that of a  39 magistrate?  40 A   Yes.  Just what I was mentioning a moment ago, Mr.  41 Goldie, in paragraph 1, they talk about a conviction  42 before a Justice of the Peace.  In the same paragraph  43 they talk about the Magistrate and then I believe in  44 the third paragraph they talk about the Magistrate, so  45 the terms are used interchangeably.  46 Q   And the stipendiary magistrate is, as you say, a  47 Justice of the Peace who's paid? 20881  D.R. Williams (for Province)  in chief by Mr. Goldie  1 A   Yes.  2 Q   And then under tab 11 we have an ordinance prohibiting  3 the sale or gift of intoxicating liquor to any Indian  4 of the continent of North America or of the Islands  5 adjacent thereto.  And there reference is made to the  6 convicting justice or the justice, and that too falls  7 within the jurisdiction of the stipendiary magistrate?  8 A   Yes.  9 Q   And then under tab 12, an ordinance respecting Indian  10 Reserves, and the preamble reads:  11  12 "Whereas it is expedient for the avoidance of  13 disputes among Indian and Settlers, as to the  14 right to lands used by Indians, to provide a more  15 speedy means than now obtains for the settlement  16 of all such questions."  17  18 And then that provides, I take it, a summary civil  19 jurisdiction?  20 Q   Yes.  21 A   In the stipendiary magistrate?  22 A   Yes, for the settlement of disputes as between white  23 persons and Native persons or between whites and  24 whites or Native persons and Native persons.  25 Q   Right, thank you.  26 A   Perhaps just observe that the phrase is used as the  27 stipendiary magistrate of the district.  When  28 stipendiary magistrates were appointed they were often  29 appointed for a district but sometimes they were  30 appointed for the province.  The appointment could be  31 limited or general.  32 Q   All right, thank you.  And indeed in section 2 it  33 appears that the stipendiary magistrate could issue an  34 injunction?  35 A   That seemed to be the effect of it.  36 Q   Under -- in your summary after discussing the Collins  37 Overland Telegraph, you then discuss the beginnings of  38 permanent white settlement around Hazelton, and you  39 state that that commenced with the laying out of a  40 town site and Indian reserve by Edgar Dewdney in 1871.  41 Would you please refer to the documents that relate to  42 that and tell us first what is -- what it is that we  43 find under tab 13a?  44 A   Tab 13a is a letter dated February 22, 1871 to Dewdney  45 from the -- doesn't label it as such, but I am certain  46 it is from the Commissioner -- the office of the  47 Commissioner of Lands and Works, issuing Dewdney 20882  D.R. Williams (for Province)  in chief by Mr. Goldie  1 instructions to make a survey of the Skeena area in  2 view of the gold discoveries on the Omenica which had  3 taken place near --  4 Q   That's referred to in the first eight or nine lines?  5 A   Yes.  And giving him instructions to settle upon a  6 trail linking Skeena Forks with Babine Lake, and  7 instructing him to go up to the Skeena River and make  8 observations with certain points on the river,  9 observation at the Forks, and the Forks at Fort  10 Stager, but that's I suppose the Kispiox River and the  11 Skeena, and giving him specific instructions to  12 examine certain aspects of the area; for example, on  13 the second page:  14  15 "It will be of great public interest..."  16  17 is about a third of the way down, my lord, on the  18 second page:  19  20 "It will be of great public interest to determine  21 whether the land in the Kispiox Valley is all that  22 is represented and a day or two spent in  23 reconnoitring and taking notes as to soil a few  24 miles up will not be thrown away."  25  26 Study the climatic conditions, soil, geological  27 formations.  And then at the end, the second last  28 paragraph on page 2, my lord, he says:  29  30 "You will lay out roughly or post notices on all  31 lands occupied or claimed by the Indians in the  32 country through which your exploration may lead  33 you, and take such notes of them as will enable  34 you to lay them down roughly in your plan.  The  35 military Grant of Henry Soar of 150 acres can be  36 laid out by you which Mr. Woodcock assures me will  37 not cost..."  38  39 and that's a reference to the land at the mouth of the  40 Skeena.  41 MR. GOLDIE:  All right.  We'll pursue that.  42 THE COURT:  Can we take the afternoon adjournment, Mr. Goldie,  43 please?  44  45  46  47 20883  Proceedings  1 THE REGISTRAR:  Order in court.  This court stands adjourned for  2 a short recess.  3  4 (PROCEEDINGS ADJOURNED AT 3:00 p.m.)  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings herein,  9 transcribed to the best of my  10 skill and ability.  11  12  13  14  15 TANNIS DEFOE, Official Reporter  16 United Reporting Service Ltd.  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 20884  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 (PROCEEDINGS RECONVENED AT 3:15 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  6 Q   My lord.  7 One question I neglected to ask you, Mr. Williams,  8 with respect to the Collins Overland Telegraph.  I  9 think it's common ground that that venture was  10 abandoned with the completion of the submarine cable  11 across the Atlantic.  But did any member of the  12 telegraph company's staff remain behind after the line  13 had been -- construction had been stopped?  14 A   Yes.  Apparently one man stayed behind for about a  15 year at Fort Stager.  16 Q   Thank you.  Now going back to Mr. Dewdney, my lord, we  17 were under tab 15 -- 13, I beg your pardon, and you  18 had referred his lordship to Mr. Dewdney's  19 instructions of the 22nd of February, 1871.  And under  20 tab 13b, we have what, Mr. -- one of Mr. Dewdney's  21 reports?  22 A   His first report.  23 Q   Thank you.  And that's dated when?  24 A  May 20th, 1871.  25 Q   And the gentleman whose name appears in the lower  26 left-hand corner, Mr. B.W. Pearse, P-E-A-R-S-E?  27 A   Pearse, P-E-A-R-S-E.  28 Q   Assistant Surveyor General of the Colony.  And he  29 states that he had returned to the Forks of Skeena  30 River on the 17th instant, that would be of May, 1871,  31 "after inspecting the two routes from the Skeena River  32 to Babine Lake, one starting from a creek about twelve  33 miles below the Forks of the Skeena called --"  34 A   Segucla.  35 Q   "-- Segucla, and the other from the Forks."  36 Would you direct his lordship's attention to any  37 other portions of this report that are relevant?  38 A   He was -- Dewdney was himself a surveyor and he was  39 considering these two routes as to which was the most  40 practicable, and he made specific references.  At page  41 000003 my lord, the stamped page 3, at the top of the  42 page he says:  43  44 Since my arrival here I have selected a  45 starting point for the trail, and reserved for  46 the government all the lands situated between  47 the Agwilgate River in the lower line of a 20885  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 pre-emption taken up by Messrs. Mitchell and  2 Farron.  A portion of it I have reserved as a  3 town site, the remainder as an Indian Reserve  4 for a tribe called the Kit-En-Macs.  5 On the proposed town site I posted a notice  6 (a copy of which I enclose) by it you will see  7 that I have staked off a few lots, and should  8 you think it advisable to lay out a small town  9 site here before I return, I should be obliged  10 if you would forward me the necessary  11 instructions.  The work would not take more  12 than a week, as the ground is open and free  13 from any underbrush.  14  15 My lord, the notice that he refers to is at page  16 09.  17 Q   Yes.  18 A  And that reads:  19  20 Notice is hereby given that a tract of land  21 extending from the mouth of the Agwilgate River  22 to a stake about 4 chains above the notice is  23 reserved by the government of British Columbia.  24 And further that a portion of this running down  25 stream 30 chains from this point and 1/2 mile  26 back from the River Skeena is reserved as a  27 town site.  28 The front line of a few lots are staked in  29 order that parties wishing to build may do so  30 with some regularity.  No one will be allowed  31 to build closer to the river than the lines  32 staked.  33  34 And he gives the size of the lots and the price of  35 them.  And then he says:  "Any further information can  36 be obtained from Edgar Dewdney, J.P., Government  37 Agent."  38 Q   Right.  Thank you.  39 THE COURT:  What's he calling the Agwilgate River, the Bulkley?  40 THE WITNESS:  Yes, I think so.  And returning to page 3 then, my  41 lord, do you want me to continue reading?  42 MR. GOLDIE:  43 Q   Yes.  You -- you refer to the fact that he posted his  44 notice and staked out the lots?  45 A   Yes.  46 Q   And then right at the bottom there is reference to  47 "three lots have been taken"? 20886  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 A   Yes.  2  3 Three lots have been taken, one by Messrs.  4 Cunningham and Hankin, one by a Mr. Reid and  5 one by William Moore and buildings will be put  6 up at once.  7  8 Q   Right, thank you.  9 He makes reference to the trails that he is  10 blazing.  And then over on page -- printed page 5, the  11 top complete paragraph begins with the words:  12  13 Almost all the men that had arrived at Babine  14 from the Skeena (about 200) had crossed to  15 Tatla by the Fri Pan Pass.  Indians packing for  16 them make the trip in 4 days, returning in two.  17  18 A   Yes.  19 Q   And then on the next page, the second complete  20 paragraph, "From 450 to 500 men have come by this  21 route," and I take it he is there describing the  22 second route?  23 A   Yes, that's the route from the Forks not from the one  24 below it.  25 Q  26 ...have come by this route, and I have not  27 heard a single man complain of it.  28 The great draw back is the want of a trail  29 on which pack animals can work.  30  31 I take it that the reference to "Indians packing"  32 is back-packing?  33 A   Yes.  34 Q   And then on the next --  35 A  At this point, yes.  36 Q   Sorry, go ahead?  37 A  At this time, yes.  38 Q   Yes.  Then in the final page, the first complete  39 paragraph, would you read that, please?  40 A  41 There has been no disturbance in this part of  42 the country, but I have been detained a couple  43 of days longer than I should have been  44 inquiring into 2 or 3 cases of theft.  45  46 Q   You said with respect to Mr. Elwyn, that he was  47 probably the first judicial official in this part of 20887  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 the world, but that you had run across no record of  2 having -- of him having tried any cases?  3 A   That's so.  4 Q   Is this reference by Mr. Dewdney's the first you have  5 run across of an exercise of judicial power?  6 A   Yes, it is.  I believe it to be the first.  7 Q   The next page is a sketch map, and that shows the --  8 A   This one shows the junction of the Agwilgate and  9 the —  10 Q   Yes?  11 A   -- and the Skeena at the forks.  12 Q   And from that it would appear that the Agwilgate is  13 the Bulkley River?  14 A   Yes.  15 Q   My lord.  And the -- the Indian Reserve, is that, so  16 far as your understanding goes, approximately the  17 delineation of existing reserve lands?  18 A   Yes, I would say this would approximate, certainly.  19 Q   Yes.  Thank you.  20 Then over the next page, there is a note by Mr.  21 Pearse?  22 A   Yes.  23 Q   June of 1871, and this is for the information -- what,  24 of the Colonial Secretary?  25 A   Yes.  26 Q   And what does it refer to?  27 A  May have been -- may have been for the Governor now  28 that I look at it.  "Submitted for His Excellancy's  29 information with regard to the town site."  In fact it  30 is the Governor because Musgrave's initials are at the  31 bottom of the page I see.  32 Q   Oh yes.  33 A  34 Submitted for his Excellancy's information with  35 regard to the town site, I am quite ignorant  36 what instructions may have been given to Mr.  37 O'Reilly on this point.  38  39 Q   I instructed?  40 A  41 I instructed Mr. Dewdney a long time before, to  42 secure any location that appeared to him  43 suitable for a town site, as well as to reserve  44 all lands occupied by Indians, and to post up  45 notices that such lands were reserved for them.  46 It would be advisable, I think, to lay out a  47 few lots, which might be leased for the present 20E  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 and sold by auction at a future time.  2  3 Q   Right.  Mr. — the Mr. O'Reilly that is referred to  4 is, of course --  5 A   Peter O'Reilly.  6 Q   Yes, all right.  Now under tab 14b, you have a letter  7 addressed to the Chief Commissioner of Lands and  8 Works, dated -- can you make out that date, please?  9 A   It's December — I think it's December the 12th, 1870.  10 Q   All right.  11 THE COURT:  I'm sorry?  What number?  12 MR. GOLDIE:  Under 14?  13 THE WITNESS:  Oh, just a minute.  I may have misled you, Mr.  14 Goldie.  I think I re-arranged my own.  15 THE COURT:  14b looks like the 28 of January, 1871.  16 MR. GOLDIE:  Yes.  17 THE COURT:  I don't know if it's January.  I think it is.  18 THE WITNESS:  Yes, it is.  I'm sorry, my lord, the fault is  19 mine.  I happen to have mine chronologically.  20 THE COURT:  That's a very disorganized way to put things.  21 THE WITNESS:  If you'll direct me, Mr. Goldie.  22 MR. GOLDIE:  23 Q   Well, I was looking -- well, perhaps you can tell us  24 without using these documents as a source, but  25 nevertheless, tell us in general terms.  We have seen  26 from Mr. Dewdney's sketch that there were references  27 to Hankin's pre-emption, Mitchell and Farron's  28 pre-emptions, and do these documents relate to those  29 matters?  30 A   These documents relate to the applications for  31 pre-emption by Robert Cunningham and Thomas Hankin.  32 And originally Hankin had applied for a pre-emption at  33 the mouth of the Skeena and Cunningham had applied for  34 one at the forks.  They decided to switch around and  35 Hankin decided to come to the forks and Cunningham  36 decided to go down to the coast.  And -- but they had  37 each applied for pre-emptions and Hankin got the  38 pre-emption at the forks, and Cunningham got the  39 pre-emption at the coast.  4 0          Q   Right.  41 A  And these documents relate to that.  42 Q   All right.  We needn't go into them in detail.  And at  43 tab 14c there is a document which is almost illegible?  44 A   I might observe -- sorry, Mr. Goldie, I might observe  45 Hankin also applied to become Post Master without  46 remuneration at the forks of the Skeena and was  47 appointed to that position right on the heels of his 20889  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 application for pre-emption.  But those applications  2 for pre-emption were made late in 1870, and apparently  3 granted early in 1871.  4 Q   Perhaps it's unnecessary for you to assist us with  5 respect to the document at 14c.  Would you turn to  6 14 -- I'm sorry, it's the second document under 14c,  7 that's Mr. Pearse's letter to Mr. Franklin of the 25th  8 of April, 1871, is that what?  9 A   Yes.  10 Q   The second letter in?  11 A   Yes.  12 Q   And he states:  13  14 I have the honour to acknowledge receipt of  15 your letter of the 20th ultimately asking me to  16 complete the record of the claim which you have  17 been permitted to occupy in Skeena River  18 District.  19 In reply, I have to inform you that Mr.  20 O'Reilly will be in Omenica in the course of 5  21 or 6 weeks and will then complete the record.  22 I have handed all papers connected with this  23 District to him.  24  25 A   Yes.  26 Q   And that is April of 1871?  27 A   Right.  2 8 Q   Now, you date them -- the permanent white settlement  29 in this area -- from the pre-emptions by Hankin and  30 Mitchell and Farron?  31 A   Yes.  And the sale of the lots to those other men that  32 were mentioned, Reid and Moore.  33 Q   Oh yes.  Yes.  34 The -- you next address in your report the growth  35 of the white population over the next 30 years, and  36 you state it was slow, and that reliable figures are  37 not available, but the population fluctuated between a  38 low of 5 and a high of 25.  That is your opinion from  39 the documents that you have examined?  40 A   Yes.  I had -- yes, that's right, to the turn of the  41 century.  42 Q   Yes.  We will go into that.  But firstly, you say  43 there are reliable figures for the Indian population?  44 A   Yes.  45 Q   And that is based upon the Dominion Census of 1881 to  46 begin with?  47 A   Yes. 20890  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 Q   And you have under tab 15a, firstly, a tabulation  2 which is yours?  3 A   Yes.  4 Q   I take it -- does your lordship have that, under 15a?  5 THE COURT:  No, I don't think so.  6 MR. GOLDIE:  Well then under 15a itself, there are the census  7 sheets, and you have --  8 THE COURT:  I just have the sheets.  9 MR. GOLDIE:  10 Q   And you have made a tabulation, have you?  11 A   I have.  12 Q   Of that account?  Perhaps you can deal with the --  13 with that.  Firstly, is it -- is it done by villages?  14 A   Yes.  15 Q   And you can identify Kispiox?  16 A   Yes.  17 Q   And how many names have been listed there?  18 A  At Kispiox?  19 Q   Yes?  20 A   333.  21 Q   And are they all Indians?  22 THE COURT:  This is 1881?  23 MR. GOLDIE:  2 4 Q   Yes, my lord.  25 A   Yes, my lord.  All Indians, yes.  2 6 Q   And of the -- and I understand you have counted a  27 hundred -- of the males, a hundred and nine gave their  28 occupation or stated that they had occupations?  29 A   Yes.  30 Q   Can you give his lordship the breakdown of that?  31 A   Yes.  Forty-seven said they were packers, 4 miners, 40  32 were hunters, and there were 18 miscellaneous.  By  33 that, fishermen or boatmen.  34 Q   Right.  The next village that you can identify is  35 Gitanmaax?  36 A   Yes.  37 Q   Or as it's spelled in the enumeration, Kit en max?  38 A   Yes.  39 THE COURT:  Are these listed somewhere in your summary?  40 MR. GOLDIE:  No, my lord.  41 THE COURT:  All right.  42 MR. GOLDIE:  These are -- he has gone through the pages that are  43 there.  44 THE COURT:  This is 1881 still?  45 THE WITNESS:  1881, my lord.  These are the Dominion Census for  46 1881.  The enumerator was a Reverand Robert Tomlinson.  47 Well-known missionary at the time. 20891  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 MR. GOLDIE:  Would your lordship turn to -- there is a paging in  2 the lower right-hand corner of the pages as well as in  3 the upper right-hand corner.  But there is a page  4 000014.  5 THE COURT:  Yes.  6 MR. GOLDIE:  7 Q   And the next page, the number is not clear, but is  8 that the page which begins "The Kit en max  9 Enumeration"?  10 A   Sorry, Mr. Goldie, what page are you?  11 Q   I'm looking at 000015, but I only identify that  12 because it follows 14.  13 THE COURT:  Fourteen plus one.  14 THE WITNESS:  I don't have a 000015 on my copies.  15 THE COURT:  There is no 15, just 14 plus one.  16 THE WITNESS:  Well, the pages are numbered 1 onwards.  17 THE COURT:  The bottom right-hand corner.  18 THE WITNESS:  Oh, I'm sorry.  I didn't see that stamped copy.  19 Yes, yes.  Sorry.  20 MR. GOLDIE:  21 Q   Now, I don't know whether you can make it out, and we  22 may have to get a better copy of this, but is this the  23 beginning of the enumeration of the Kit en max group  24 or tribe?  25 A  At page?  26 Q   Fifteen?  27 A  At page 15?  28 Q   Yeah?  29 A   Yes, I think it is.  30 Q   Now, your lordship will see the name --  31 A   Yes, I'm sorry, Mr. Goldie, I can definitely -- the  32 Kit en max enumeration starts at page 15.  33 Q   All right.  And your lordship will see the name and  34 the sex and the age and the country or province of  35 birth, the religion.  Mr. Tomlinson wasn't very  36 optimistic.  He's got them all on that page listed as  37 heathen, the Indian, and then the occupation.  38 And is that the column that you had regard to when  39 you made your estimate of the occupations?  40 A   Yes.  41 Q   Now, you totalled these up.  Can you give us the total  42 number of male and female in the Kit en max group?  43 A  Well, there were a hundred and eighty-two people  44 enumerated at Kit en max.  Of those, I concluded there  45 was -- as far as -- that there was roughly half and  46 half between male and female.  4 7          Q   Um-hmm? 20892  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 A  And of the males, 90 of them, 50 of them gave  2 occupations.  3 Q   And what were they?  4 A  And those were 25 packers, 7 miners, and 18 hunters.  5 Q   And then at page 23, there is an enumeration for a  6 place that I make out to be --  7 A  Well, I make it out to be Koldoa which I take to be  8 Kuldoe.  9 Q   Yes.  And could you give us the total there and the  10 breakdown?  11 THE COURT:  What page number?  12 THE WITNESS:  Twenty-three, my lord.  The population there was  13 57.  14 MR. GOLDIE:  15 Q   And of those, how many gave occupations and what were  16 they?  17 A   Eighteen, and they were all hunters.  18 Q   And then Kit-se-guec-la?  19 A   Page 26.  20 Q   The total number?  21 A  And the total was a hundred and ninety-six, and 44 of  22 the males stated that they had occupations, 34 hunters  23 and another 10 who were fishermen and boatmen.  24 Q   Any duo occupations?  25 A  Well one, yes.  One said he was both packer and miner.  26 Q   All right.  And then Kit -- a locality described as  27 Kit-win-gach (phonetics)?  28 A   Yes.  2 9 THE COURT:  What page?  30 THE WITNESS:  Page 34, my lord.  The total population there was  31 given as 225.  32 THE COURT:  225?  33 THE WITNESS:  225.  And 53 of the males gave occupations.  34 Thirty-nine of them hunters, they had 14 -- and  35 various other categories.  I didn't try to break them  36 down into every type of occupation.  37 MR. GOLDIE:  38 Q   And then there is one beginning at page 42 which  39 appears to be Kitwancool?  40 A   Yes.  41 Q   And I won't ask you to give the figures for that.  42 A  All right.  43 Q   There is another one Kiskagas (phonetics)?  44 A   Yes.  45 Q   And do you identify that as Kisgagas?  46 A   I would think so.  47 THE COURT:  What page? 20893  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  MR.  MR.  WITNESS:  Page 51.  And the population of Kisgagas was given  at 270.  And of the males, 61 gave an occupation.  There were 56 hunters, 2 miners, 2 packers and 1  hunter and a packer.  GOLDIE:  Q   All right.  Thank you.  And the -- I believe you have identified the  total for the seven villages, including Kitwancool, as  1450?  A   Right.  If you exclude Kitwancool, it's 1263.  Q   Thank you.  COURT:  1263?  WITNESS:  1263, my lord.  GOLDIE:  Q   Then there is another indication of numbers, some five  years later, under tab 15b?  A   Yes.  Q   Which is Mr. Graham's letter to the Provincial  Secretary.  And we'll come across this again.  It's  dated February 11th, 1886, and he encloses a letter  from Mr. Tomlinson to the Kispiox chiefs of 1885.  And  then the last page is a table headed "Skeena River  Indians Population 31 December 1885"?  A   Yes.  Q   And what is the total on that, please?  A  Well, he did five villages.  COURT:  Is it here?  GOLDIE:  Pardon, my lord?  COURT:  Is it here?  GOLDIE:  Yes, it is, my lord.  COURT:  Where do I find the table?  GOLDIE:  It's the last page.  COURT:  Yes, I have it.  GOLDIE:  Under tab 15b.  COURT:  Yes.  WITNESS:  First I should say, my lord, that Graham at this  point was a Stipendiary Magistrate and Gold  Commissioner at Lome Creek, farther downstream from  Hazelton.  And his total of these five villages listed  there is 1367.  GOLDIE:  Q   Yes.  So this is his total, not anything to do with  Tomlinson whose letter he enclosed?  A   No.  GOLDIE:  All right.  Thank you.  My lord, I tender that volume as Exhibit 1174,  with each of the tabs -- utilizing the number of the 20894  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 Plaintiff)  In chief by Mr. Goldie  tabs, given the number of the tab as the exhibit,  it would be Exhibit 1174-1, Downie's report to  Governor Douglas, and so on down, using the  description in the index.  THE COURT:  All right.  So  EXHIBIT 1174-1:  DOUGLAS  EXHIBIT 1174-2a:  DOUGLAS  EXHIBIT 1174-2b:  CORRESPONDENCE FROM DOWNIE TO JAMES  CORRESPONDENCE FROM DOWNIE TO JAMES  COLONIST ARTICLE RE LETTER FROM B.  BETTERWORTH  EXHIBIT 1174-2c:  COLONIST ARTICLE ENTITLED "NEW  DIGGINGS ON SKEENA RIVER"  W. HUMPHREY DIARY, MAR. 11 - AUG.  HUMPHREYS TO BEAVEN, CCLW DD.  HUMPHREYS TO BEAVEN, CCLW DD.  HUMPHREYS TO SULLIVAN PRINTED  EXTRACTS FROM GARDINER DIARY  WALSH REPORT TO MIN. OF MINES  "THE INTERNATIONAL TELEGRAPH  EXHIBIT 1174-2d:  26, 1874  EXHIBIT 1174-2d:  1874/04/21  EXHIBIT 1174-2d:  1874/06/07  EXHIBIT 1174-2d:  VERSION  EXHIBIT 1174-2e:  EXHIBIT 1174-2f:  EXHIBIT 1174-3a:  ORDINANCE, 1865"  EXHIBIT 1174-3b:  "THE INTERNATIONAL TELEGRAPH  EXTENSION ORDINANCE, 1865"  EXHIBIT 1174-3c:  "INTERNATIONAL TELEGRAPH ORDINANCE,  1866"  EXHIBIT 1174-4:  SKETCH OF PROPOSED ROUTE - WESTERN  UNION TELEGRAPH  EXHIBIT 1174-5:  MORISON, "REMINISCENCES OF BRITISH  COLUMBIA FROM 18 62 BY A PIONEER OF THE NORTH WEST  COAST"  RUSSIAN-AMERICAN TELEGRAPH, GENERAL  EXHIBIT 1174-6a  RULES  EXHIBIT 1174-6b  TELEGRAPH"  EXHIBIT 1174-7a  EXHIBIT 1174-7b  EXHIBIT 1174-7c  EXHIBIT 1174-7d  CONWAY TO BIRCH DD  EXHIBIT 1174-7e  EXHIBIT 1174-7f  BULKLEY REPORT RE "RUSSIAN-AMERICAN  CONWAY TO CAPT. COFFIN  POPE TO CONWAY  POPE TO BULKLEY  CONWAY TO BULKLEY WITH LETTER FROM  APRIL 21, 1866  CONWAY TO BULKLEY  CONWAY TO BULKLEY WITH LETTER FROM  CONWAY TO BIRCH DD. APRIL 21, 1866 20895  D.R. Williams (for Plaintiff)  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  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  174-  -7g:  174-  -8a:  174-  -8b:  174-  -8c:  174-  -8d:  174-  -8e:  174-  -8f:  174-  -8g:  174-  -8h:  174-  -9a:  174-  -9b:  174-  -9c:  174-  -10:  174-  -11:  174-  -12:  174-  -13a  174-  -13b  174-  -14b  CONWAY TO BULKLEY  EXHIBIT  OF LANDS & WORKS  EXHIBIT 1174-14c:  PEARSE TO FRANKLIN  EXHIBIT 1174-15a:  FOR NEW WESTMINSTER  EXHIBIT 1174-15b:  GRAHAM TO  TWO LETTERS, CONWAY TO BULKLEY  CONWAY TO BULKLEY  EXTRACT OF LETTER,  CONWAY TO BIRCH  CONWAY TO BULKLEY  CONWAY TO MUMFORD  CONWAY TO DECKER  CONWAY TO MUMFORD  CONWAY TO BULKLEY  ELWYN TO COL. SECTY.  ELWYN TO COL. SECTY.  BIRCH TO CARNARVON  "INDIAN GRAVES ORDINANCE, 1865"  "THE INDIAN LIQUOR ORDINANCE, 1865"  "INDIAN RESERVE ORDINANCE, 1869"  PEARSE TO DEWDNEY  DEWDNEY TO B.W. PEARSE  HANKIN & CUMMINGHAM TO CHIEF COMMR.  DD.  DD.  1866/07/05  1866/09/04  FRANKLIN TO PEARSE WITH LETTER FROM  DD. 1871/04/25  DOMINION CENSUS ENUMERATION SHEETS  PROV. SECTY.  MR.  THE  THE  MR.  THE  THE  THE  THE  MR.  MR.  GOLDIE:  Now, turning to the next volume, if we could turn  to that.  WITNESS:  May I step out for a moment, my lord?  COURT:  Yes.  GOLDIE:  My lord, I am handing up two volumes.  This is  number two.  Again, the same index is found at the  beginning, and we will be commencing with tab 16a  which is almost wholly unintelligible.  Could a number  be reserved for that, my lord?  COURT:  Yes.  REGISTRAR:  1175.  COURT:  1175?  REGISTRAR:  Yes, my lord.  GOLDIE:  Thank you.  EXHIBIT 1175:  RESERVED  GOLDIE:  Q   Now, turning to the estimates for the white  population, can you describe to his lordship what it  is we find under tab 16a?  Well, this is one of these delightful little nuggets  that researchers run across every now and then.  This  is the funny little newspaper published in Hazelton in  A 20896  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 Plaintiff)  In chief by Mr. Goldie  1880 on a gelatin press by some very talented person.  I think Clifford.  And it was put out for the benefit  of the few people who lived there at the time.  There  were 12 or 13 or 14 issues, I think, running from  January 1881 to March -- well, December 1880, until  March of 1881.  THE COURT:  Where is this, Mr. Goldie, please?  Tab?  MR. GOLDIE:  16a, my lord, of volume 2.  THE COURT:  Let's see what it looks like.  Oh, that is it.  All  right.  WITNESS:  Yes.  lord.  COURT:  Well,  THE  THE  THE WITNESS  Some of it is more legible than that, my  that doesn't appear to me to be legible at  all, is it?  No.  THE  THE  MR.  But in the introduction to this, my lord, at  the outset of it, the third page in, at the very end  of the handwritten scrawl there, which tells you how  the newspaper was inspired.  "Transferred it to a  gelatin press, sufficient numbers for the regular  customers, about 10 or 12, I suppose, the Hankins,  ourselves and the miners."  COURT:  Yes.  WITNESS:  And then a little later on in the issue of January  the 22nd of 1881, it's about half-way in, roughly, it  has a line drawing of Rocher de Boules, that's the  heading of it.  GOLDIE:  Q   What's the date again?  A   January 22nd, 1881.  On the second page of that issue  in the middle of the page, is an item headed:  The following is a list of the names of miners  at present wintering at Hazelton and in the  vicinity, namely...  And then there follow 13 names, I think it is.  Fourteen.  So I take it that in 1881, at the time of  this little newspaper was published, there were in the  vicinity -- that would be Lome Creek and Hazelton  itself -- 25 white persons.  Q   All right.  Under tab 16b there is a letter dated 27th  of July, 1888?  A   Yes.  Q   And that is addressed to the Attorney General by --  and it's signed by N. Fitzstubbs S.M.  He was a  Stipendiary Magistrate?  A   Yes, yes. 20897  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1  Q  2  A  3  Q  4  5  A  6  7  8  9  10  11  Q  12  13  A  14  Q  15  16  17  A  18  Q  19  20  A  21  22  Q  23  THE  COURT  24  THE  WITNE  25  26  27  THE  COURT  28  MR.  GOLDI  29  Q  30  31  32  A  33  Q  34  35  A  36  37  38  39  40  41  Q  42  43  44  A  45  46  Q  47  THE  COURT  And it's —  At Hazelton.  At Hazelton at this time.  And on the first page there  is what?  Well, he has done an estimate of the population of the  Skeena villages from Kuldoe down -- Koldoa, rather.  "Koldoa, Kispyooks, Kit en max, Kit-se-guec-la,  Kit-wan-gar, Kit-wan-cool, Ag-wil-gate."  He estimates  the total of all of those at 2285.  But if you take  out Kitwancool, you have 1935.  And that does include also the Hagwilget village which  would be -- would not be Gitksan people, would it?  No.  Wet'suwet'en.  All right.  Then over the page he states, and I quote,  line two, "These figures are computed since the time  of havoc made by measles"?  Yes.  And is there any reference in there to the white  population?  On the third page of the letter he refers to the few  whites miners and others in the district.  Right.  :  Where is that, please?  3S:  It's the third -- second complete paragraph, my  lord -- third complete paragraph. "I hear too, that  the familiarity which the few whites, miners --"  :  Yes.  Under tab 16c, there has been reproduced again  Dewdney's report of May 20th, 1871, and I think you've  counted up the references to the number of whites?  Yes.  And what did you come to -- the conclusion you came to  in that regard?  There was five or six.  There was Mitchell and Farron  and Hankin, Reid and Moore.  There was another man  down at Kitselas (phonetics), man named Currie, who  had pre-empted down there in 1871, the canyon, I  gather.  And so there were five or six white settlers  at Hazelton in 18 -- early in 1871.  Now, under tab 17a, we jump forward 17 years and there  is Fitzstubbs' letter of the first of December, 1888.  What information did you glean from that?  Well, it appends a list of miners at Lome Creek.  He  says, "There are 12 miners in all at Lome Creek."  All right, thank you.  :  Well -- oh, I'm sorry.  On the first page it says 2089J  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 Plaintiff)  In chief by Mr. Goldie  "not more than six here intending to return to it next  year."  GOLDIE:  Yes.  COURT:  Somewhere it says 12 now, does it?  GOLDIE:  That's what you take from the return, that's the  last page?  WITNESS:  "No more than six here intending to return to it  next year."  And he says 12 miners in all.  COURT:  Oh yes.  Oh, I am sorry.  He lists them there.  Yes.  MR.  THE  MR.  THE  THE  MR.  THE  THE  MR.  GOLDIE:  WITNESS  COURT:  GOLDIE:  Q  a letter from  Is that the  Q  A  Q  A  Then under 17b we move forward to 1898,  Mr. Sargent, addressed to a Mr. Irving,  twelfth of April?  A   Twelfth of April, 1898, I take it, yes.  Q   Yes.  What do you --  A   This was a petition from the residents at Hazelton to  be put on the provincial voters' list so they wouldn't  have to go down to Port Essington to vote.  They  wanted an election official to come up and take their  votes at Hazelton.  And it's signed by 13 people at  Hazelton.  Right.  Or at Hazelton and the neighbourhood.  And in August -- under 17c, a letter from Mr. Langley.  Is that Sergeant of the Provincial Police or  Superintendent?  Well, he was Acting Superintendent.  I think at this  time he actually was a Sergeant with the Victoria  Police -- well, I've forgotten the chronology.  In any  event, he was a police officer who went up to Hazelton  and he talks about another petition.  He says that  there are 46 names on it, but 30 of them are tran -- I  think a number of them are transients.  And he says  that, "The population of Hazelton" -- this is the  third paragraph, my lord, "did not exceed 25 white men  when I left for Victoria."  And that would be August  of 1898 or thereabouts.  And he says that he "was informed by the Indian  Agent that the population (Indian) of the Reserve,"  this would be at Hazelton, "was about 250."  Q   That's what we have identified earlier as Gitanmaax,  is it?  A   Yes.  Q   And he states, "They have their own Indian police in 20899  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 uniform," and et cetera?  2 A   Yes.  3 Q   All right.  And we have noted the effect of measles.  4 And there is reproduced under 17d, Fitzstubbs' letter  5 of the 27th of July, 1888.  And on page 2, he  6 estimates in the first paragraph that the Indian  7 population -- 240 of their number died of measles?  8 A   Yes.  9 Q   That would be of the 2285 that he refers to in the  10 first page?  11 A   No.  He says that they were compiled after the  12 measles.  13 Q   I'm sorry, yes, thank you.  14 THE COURT:  This is 17e?  15 MR. GOLDIE:  D.  D as in —  16 THE COURT:  Thank you.  17 MR. GOLDIE:  18 Q   And there is -- there was a census in 1891, was there  19 not?  20 A   Yes.  Dominion Census.  21 Q   And that is in volume 3, my lord.  Do you have a note  22 of --  23 A   That's also in this volume, my lord.  It's at tab 19.  24 Q   Oh yes, thank you.  25 Firstly, can you give us the same sort of  26 information that you have obtained from this  27 enumeration --  28 A   Yes.  29 Q   -- that you got from the earlier one?  And perhaps at  30 the outset you might tell us the totals of the -- of  31 the villages that you looked at?  32 A  Well, he -- the enumeration was done, the villages of  33 "Kispyooks, Kit-se-guec-la," which I take to be  34 Kitsegukla, "Kit en max, Kit-wan-gar, Kit-wan-cool,  35 Koldoa, Ap-wil-gate," and then Hol-get (phonetics).  ]  36 must say, I am a bit mystified by that.  Kiskagas,  37 123 -- sorry, Kisgagas, Kitselas, and then Babine  38 which is outside of the claim area, I take it.  39 Q   And the total -- can you give us a total which would  40 exclude Kitwancool?  41 A   Yes.  The total was -- would be 1156.  42 Q   Thank you.  43 THE COURT:  Excluding Kitwancool?  44 THE WITNESS:  Excluding.  45 THE COURT:  That's 19a?  46 THE WITNESS:  1891, my lord.  47 THE COURT:  1891.  But where are those documents? 20900  D.R. Williams (for Plaintiff)  In chief by Mr. Goldie  1 MR. GOLDIE:  At tab 19, my lord.  2 THE COURT:  Sorry, I don't have a 19, I don't think.  Maybe I  3 do.  I think my 18 looks like a 19.  4 MR. GOLDIE:  It should follow 18h.  5 THE COURT:  Quite right.  Thank you.  6 THE WITNESS:  The same census figures, my lord, show the white  7 population of Hazelton as 18.  8 THE COURT:  White population 18?  9 THE WITNESS:  Yes.  Almost half of whom are young children of  10 Loring, the Indian agent, or step-children.  11 THE COURT:  Is it convenient to adjourn, Mr. Goldie?  12 MR. GOLDIE:  Yes, it is, my lord.  13 THE COURT:  All right.  Thank you.  14 THE COURT:  We will adjourn then until ten o'clock tomorrow  15 morning.  16 THE REGISTRAR:  Order in court.  Court stands adjourned until —  17 MR. RUSH:  My lord, I think it's 9:30 tomorrow.  18 THE COURT:  Oh, is it?  19 MR. GOLDIE:  Yes.  2 0 THE COURT:  Thank you, Mr. Rush.  21 THE REGISTRAR:  Order in court.  Court stands adjourned until  22 9:30 a.m. tomorrow morning.  23  2 4 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  25  26 I hereby certify the foregoing to be  27 a true and accurate transcript of the  28 proceedings herein transcsribed to  29 the best of my skill and ability.  30  31  32  33  34 Toni Kerekes, O.R.  35 United Reporting Service Ltd.  36  37  38  39  40  41  42  43  44  45  46  47

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