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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-17] British Columbia. Supreme Court Oct 17, 1989

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 20901  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  J.M. Magwood (for Province)  In chief by Mr. Willms  On Qualifications  Vancouver, B.C.  October 17, 1989  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE REGISTRAR:  In the Supreme Court of British Columbia, this  17th day of October, 1989.  Delgamuukw versus Her  Majesty the Queen, at bar, my lord.  THE COURT:  Mr. Willms.  MR. WILLMS:  My lord, the next witness is Mr. John Magwood.  THE REGISTRAR:  Will you stand in the witness box, please, sir,  and take the Bible in your right hand.  JOHN MICHAEL MAGWOOD, a witness  called on behalf of the Province,  having first been duly sworn,  testified as follows:  THE REGISTRAR:  Would you state your full name and spell your  last name, please, sir.  A   John Michael Magwood.  M-A-G-W-O-O-D.  THE REGISTRAR:  Thank you, sir.  Please be seated.  THE COURT:  Thank you.  EXAMINATION IN CHIEF BY MR. WILLMS ON QUALIFICATIONS:  Q   Mr. Magwood, you reside in Victoria, British Columbia?  A   Yes.  Q   You are presently a Senior Surveyor, Licensed Science  Officer 3, in the Surveyor General's branch of the  Ministry of Crown Lands?  A   Yes.  Q   And if you look in the folder in front of you can you  identify the first document.  And perhaps take it out  of the folder.  Can you identify that three page  document as your resume, your curriculum vitae?  A   That's correct.  MR. WILLMS:  My lord, could that be the next exhibit, please.  THE COURT:  Yes.  THE REGISTRAR:  Exhibit 1175.  THE COURT:  Thank you.  MS. SIGURDSON:  Six.  THE REGISTRAR:  Six?  THE COURT:  Yes.  1176.  I think volume 2 is 1175.  MR. WILLMS:  1176.  (EXHIBIT 1176:  Resume of Mr. J.M. Magwood) 20902  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  On Qualifications  1 MR. WILLMS:  2 Q   Mr. Magwood, you've been a B.C. Land Surveyor since  3 1974?  4 A   Yes.  5 Q   And your curriculum vitae sets out your field and  6 office experience in surveying and mapping since 1954;  7 is that correct?  8 A   Yes.  9 Q   Now, you have as part of your professional experience  10 plotted metes and bounds descriptions onto topographic  11 maps?  12 A   Yes.  13 Q   You have as part of your professional experience  14 plotted boundary lines from one map onto another map?  15 A   Yes.  16 Q   You have as part of your professional experience used,  17 and are familiar with, metes and bounds descriptions  18 and with topographic mapping?  19 A   Yes.  20 Q   You have surveyed metes and bounds descriptions on the  21 ground as part of your professional experience?  22 A   Yes.  23 Q   And you have also laid out boundary lines on the  24 ground as part of your professional experience?  25 A   Yes.  26 MR. WILLMS:  Now, my lord, I am tendering this witness as  27 qualified to plot metes and bounds descriptions and  28 boundaries shown on other maps onto topographic maps.  29 THE COURT:  Cross-examination.  30 MR. RUSH:  Oh, yes.  31  32 CROSS-EXAMINATION BY MR. RUSH ON QUALIFICATIONS:  33 Q   You're a Senior Surveyor for the Ministry of Crown  34 Lands?  35 A   Yes.  36 Q   And as a surveyor, I understand a surveyor as one who  37 measures a parcel of land on the ground to determine  38 its boundaries and to ascertain its contents.  Would  39 that be a fair description?  40 A   That's one of the things we do, yes.  41 Q   What else do you do?  42 A   How detailed an answer are you looking for?  43 Q   Well —  44 A   There's —  45 Q   You tell me.  I've said to you what I think a surveyor  4 6 does.  You do on the ground surveys where you attempt  47 to determine the length and direction of boundary 20903  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  On Qualifications  1 lines.  That's your main task, is it not?  2 A   Yes.  3 Q   And your measuring language is the metes and bounds  4 description?  5 A   Yes.  6 Q   That's what you use?  7 A   Yes.  Quite often it's a plan which is a metes and  8 bounds description in a pictorial --  9 Q   Yes.  10 A   -- Fashion, I suppose.  11 Q   Yes.  But whatever the case is the stock and trade of  12 a land surveyor is whether through its depiction on a  13 map or its description in words is to use a metes and  14 bounds description; is that right?  15 A   Yes.  16 Q   And I take it that in the last -- since 1974 your  17 resume says you've been involved in general cadastral  18 surveys for the Province of British Columbia?  19 A   Yes.  20 Q   And those are on the ground surveys, are they not?  21 A   Yes.  22 Q   And I take it that while you're doing those types of  23 surveys you're not plotting boundary descriptions on  2 4              maps?  25 A   Quite often plotting boundary descriptions on maps  26 comes after the survey on the ground.  Maps are  27 ordinarily the picture of what has happened on the  2 8 ground.  29 Q   Yes.  But for that you need a metes and bounds  30 description, don't you?  31 A   Or the actual survey.  32 Q   Yes.  What I understand to be your task is that you  33 actually do a survey on the ground and obtain a metes  34 and bounds description from that survey; is that not  35 correct?  36 A   Yes.  37 Q   And then from that task you may or may not transfer  38 that survey onto a map and plot it on a map?  39 A   Yes, we may or may not.  40 Q   Okay.  My question to you is in your -- when you've  41 been doing general cadastral surveys have you also  42 been involved in plotting descriptions on maps of the  43 surveys that you've done?  44 A   Yes.  45 Q   And how frequently have you done that?  46 A   Not often since I got to be land surveyor.  Quite  47 often that's done by a technician. 20904  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  On Qualifications  1 Q   Right.  Or a cartographer?  2 A  A person in my employ.  3 Q   Yes.  Isn't the actual task of transferring the metes  4 and bounds description or the pictorial representation  5 on a map done by somebody else?  6 A   Quite often it is, yes.  7 Q   And in your own personal experience isn't it the case  8 since 1974 it's been done by somebody else?  9 A   Not always.  10 Q   How many times since 1974 to the present have you been  11 involved in plotting or preparing cadastral surveys,  12 metes and bound descriptions onto a flat plane map?  13 A   I'm sorry.  I can't really answer that with a number,  14 I don't think.  I'm certain that I've done it, but  15 were I to say five or three I would -- it would be  16 pure speculation.  17 Q   But a very few number of times if you've done it since  18 1974?  19 A   Not many.  20 Q   All right.  In the work you did in preparation for the  21 plotting of the lines on this 1 to 250,000 scale map  22 that's here was that done by you or by a technician  23 under your direction?  24 A  All of it was mine.  25 Q   And is it not the case that the technicians who are  26 under your direction who do these types of plottings  27 are cartographers?  28 A   No, that's not correct.  29 Q   And as I understand from your resume you indicate that  30 since you have been employed with the Surveyor  31 General's branch with the Ministry of Crown Lands your  32 main function has been in record research and the  33 adjudication of work done in the ministry; is that  34 right?  I'm just reading from your resume.  35 A   Yeah.  The most recent part of it is.  Since  36 privatization I would say much of -- more of it has  37 been in that direction than the actual physical  38 surveying in the field.  39 Q   You're not doing field work any more?  40 A   Some of it.  Oh, yes, I still am doing field work.  41 Q   You're still doing surveys on the ground?  42 A  M'hm.  Yes.  43 Q   You are.  But is it fair to say the majority of your  44 work is in-office in Victoria doing record research,  45 dispute resolutions and adjudication of private sector  46 work?  47 A   The dispute resolutions are usually done on the 20905  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  On Qualifications  ground.  In other words --  So you don't do many of those?  Not -- I'm not out in the field as much as I'd like to  be.  Yes.  Just so we understand ourselves, from '74 to '81  that's when you were doing most of your on the ground  work as a B.C. Land Surveyor?  Yes.  And then from '81 to the present you basically moved  into a more senior staff position with the Survey  General's department?  I would say the transition came sometime later than  that.  We were still in the field for a considerable  amount of time until probably '83 or four.  It was  privatization that -- that shifted it more to an  office position.  And that was in '83, wasn't it?  Yes.  But it wasn't an instant transition.  Yes.  All right.  Thank you.  :  I don't have any questions on re-examination, my  lord.  Well, let me just make sure that I'm catching the  right perspective here.  This reflection or depiction  of metes and bounds on a map, you say, is more  generally done by technicians than by persons with  your qualifications?  No, my lord.  I have all the qualifications, I  believe, to do it.  Yes.  And in my resume that -- of course, I was a technician  for 20 years --  Yes.  -- Before I became a land surveyor.  Yes.  And you did that sort of thing as a  technician?  Yes.  And the technicians that do it now under your  supervision are persons with lesser qualifications  than yours, aren't they?  Yes, my lord.  Yes.  All right.  Thank you.  I have no submission, my lord.  Yes.  All right.  All right,  is qualified to give the kind of evidence you have  indicated, Mr. Willms.  1  2  Q  3  A  4  5  Q  6  7  8  A  9  Q  10  11  12  A  13  14  15  16  17  Q  18  A  19  MR.  RUSH:  20  MR.  WILLMS  21  22  THE  COURT:  23  24  25  26  27  A  28  29  THE  COURT:  30  A  31  32  THE  COURT:  33  A  34  THE  COURT:  35  36  A  37  THE  COURT:  38  39  40  A  41  THE  COURT:  42  MR.  RUSH:  43  THE  COURT:  44  45  46  47  Mr. Rush?  The witness, I think, 20906  J.M. Magwood (for Province)  In chief by Mr. Willms  1 EXAMINATION IN CHIEF BY MR. WILLMS:  2 Q   Now, before you, Mr. Magwood, is a coiled volume.  And  3 would you, please, look at the first part of the  4 volume.  The starting page is dated July 13th, 1989.  5 It's a letter addressed to myself.  And can you  6 confirm that the first 14 pages of that volume is your  7 letter opinion report along with your signature at  8 page 14?  9 A   Yes, it is.  10 Q   In paragraph one of the letter you say this:  11  12 "You have asked me, in your letters of April  13 28, 1989, and May 3, 1989, to plot those parts  14 of the six enclosed exhibits which fall on the  15 map marked Exhibit 646.  These exhibits are  16 numbered 1018-6, 1018-7, 1018-8, 1018-9,  17 1018-10 and 1018-11.  Both letters referred to  18 above are attached as Appendix I."  19  20 And, Mr. Magwood, if you could just turn to  21 Appendix I of the volume that I've put before -- that  22 you have before you.  Can you confirm that the  23 materials that you're referring to in paragraph one of  24 your letter are at tab 1 -- at Appendix I?  25 A   Yes, that's right.  26 Q   Okay.  Now, if you turn to tab 2 of the bound volume  27 you will -- you'll see a notation "Appendix II.  28 Exhibit 646 with boundary lines", and then in  29 parenthesis the word mounted.  Can you identify in  30 court the document that this refers to?  31 A   It's this large one here.  32 Q   All right.  And you're referring to a large map which  33 has at the top of the map "Appendix II to the Report  34 of John Magwood"; is that correct?  35 A   Yes, that's correct.  36 Q   And if you turn to tab 3 of the coiled volume which  37 says "Appendix III, Exhibit 646 with boundary lines",  38 and then in parenthesis half-sized and mounted.  And  39 can you confirm -- I'm putting a hard copy or a  4 0 mounted copy before you.  And I have one for your  41 lordship.  42 THE COURT:  Thank you.  43 MR. WILLMS:  44 Q   Can you confirm that that is the document that is  45 referred to as Appendix III to your report?  46 A   Yes, it is.  47 Q   And can you confirm that all of the coloured lines 20907  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE COURT  MR. RUSH:  THE COURT:  MR.  J.M. Magwood (for Province)  In chief by Mr. Willms  that have been placed on Appendix II, the large  mounted document, and on Appendix III, the half-size  mounted documents, all the coloured lines were placed  on by you?  A   Yes, they were.  WILLMS:  My lord, what I suggest is that the coiled volume  bear the next exhibit number and that the large map be  that number dash two and the small map be that number  dash three.  All right.  Any objection?  Only this reservation, my lord, is that two of the  documents that underpin the maps are presently  exhibits for identification about which there is  presumably some argument that's going to be made in  the future.  So subject to what is being relied upon  as an exhibit for identification and the resolution of  that I don't object.  All right.  So you're asking that this volume then  be 1177 and then the large mounted map will be 1177-1  and the other small --  WILLMS:  I was going to say dash two, my lord, because we've  Appendix I.  Because we've got a dash one we could  mark Appendix I as 1177-1, the large map as 1177-2 and  the half-size map as 1177-3.  THE COURT:  Yes.  All right.  (EXHIBIT 1177:  Report of John Magwood)  (EXHIBIT 1177-2:  Large Map)  (EXHIBIT 1177-3:  Small Map)  THE COURT:  All right.  Thank you.  MR. WILLMS:  Q   Now, Mr. Magwood, turning to page one of Exhibit 1177,  the first page of your report.  In paragraph 2 you say  this :  "None of these six exhibits are what I would  call a good description."  THE COURT:  I'm sorry.  Now, where are you, please?  MR. WILLMS:  I'm at the very first page of the coiled volume, my  lord, under Part I, the second paragraph which has  "none of the six exhibits".  THE COURT:  Yes.  I have it.  MR. WILLMS: 2090J  J.M. Magwood (for Province)  In chief by Mr. Willms  1 "Are what I would call a good description.  A  2 good description would be one that described  3 the boundary in such a way that a surveyor  4 using the description could mark the boundary  5 on the ground with no doubt at any point as to  6 where the line should be situated.  The line,  7 besides being unambiguous, should also exactly  8 represent the intentions of the parties on each  9 side of the line."  10  11 Q   What you have done, as I understand it, in order to  12 map the six exhibits you made some assumptions which  13 are set out in the next section of your report?  14 A   Yes.  15 THE COURT:  Mr. Willms, you're ahead of me.  I thought I might  16 be able to pick this up.  What are the six exhibits,  17 please?  18 MR. WILLMS:  The six exhibits are Appendix I.  They have been  19 marked as Exhibits 1018.  So there is a letter of  20 April 28th, my lord, at the beginning of Appendix I.  21 THE COURT:  Yes.  22 MR. WILLMS:  It's a five page letter.  And then following that  23 letter are copies of exhibits which have been marked  24 in this case.  25 THE COURT:  Yes.  But this comes to me cold.  I have no idea  26 what you're talking about yet.  27 MR. WILLMS:  All right.  These were marked, my lord.  These are  28 claimed territories of, for example, the Tahltans, the  29 Kitsumkalum band, the Kaska Dena, the Tsimshians.  30 THE COURT:  All right.  31 MR. WILLMS:  They were marked during Mr. George's  32 cross-examination.  And they follow at Appendix I.  33 THE COURT:  All right.  I know where you're going now.  34 MR. RUSH:  My lord, just so I'm not seen as agreeing with my  35 friend's description, some of these exhibits portray  36 claim territories, others simply depict or describe  37 territories which are bordering territories on the  38 land claim area.  3 9 THE COURT:  Thank you.  40 MR. WILLMS:  41 Q   Now, I asked you about that paragraph and you  42 confirmed that you've set out your assumptions later  43 in the report.  And just so that when we're looking at  44 either Exhibit 1177-2 or 1177-3 when we're looking at  45 the lines some of the lines are solid and some of the  46 lines are dotted, and can you explain why some of them  47 are solid and why some of them are dotted? 20909  J.M. Magwood (for Province)  In chief by Mr. Willms  1 A   The solid lines were -- were where I had no doubt as  2 to the intention of the description, and the dotted  3 lines would follow where I was making an assumption  4 rather than where I knew what the intention was.  5 Q   Now, just in terms of the methodology which you  6 describe of how you went about your task, at the  7 bottom of page one you describe that you used National  8 Topographic Series maps at a scale of 1 to 250,000.  9 On page two at the top you map each described area in  10 its entirety on the NTS maps, and then in paragraph 3  11 you describe how you took the portions of the  12 territory in their entirety that overlapped these maps  13 and mapped them on to the maps that have been marked  14 as Exhibits 1177-2 and 1177-3?  15 A   Yes, that's right.  16 Q   You say on page two that:  17  18 "Where maps were unclear or descriptions  19 faulty, I leaned toward using the height of  20 land as the boundary rather than a stream or  21 river."  22  23 Can you explain why you made that assumption?  24 A   It seemed to me that -- that where there were clear  25 parts of the description they often went down heights  26 of land and so when I was in doubt about where the  27 boundary went I continued with the assumption that  28 that was the intention.  29 Q   As a general description then on page two you start  30 Part III of your report, and in Part III you review in  31 detail the information contained in the exhibits that  32 were provided to you, and you comment on that  33 information in respect of its effect on the mapping?  34 A   Yes, that's right.  35 Q   All right.  And just to start with the very first one,  36 and I'm on page two, my lord, of Exhibit 1177, the  37 opinion report of July 13th, 1989.  At pages two  38 through five you deal with the Exhibit 1018-6, the  39 Kaska Dena Land Claim.  And you have plotted the  40 boundaries in red for the Kaska Dena claim insofar as  41 it overlaps onto 1177-2 and 1177-3 in the upper  42 right-hand corner?  43 A   Yes.  44 Q   And if I can describe the approach that you used in  45 going through the description in Exhibit 1018-6 is  46 you -- paragraph by paragraph you quoted from the  47 description.  And that's in the quote marks.  For 20910  J.M. Magwood (for Province)  In chief by Mr. Willms  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  example, down at paragraph one what you've quoted is  taken directly from the script; correct?  At the  bottom of page two.  A   Yes.  Q   And then following the quote is your comment on the  effect respecting mapping?  A   Yes, that's true.  I tried to analyze what I had done  at each step of the process.  WILLMS:  And, my lord, I don't intend to go through each one  of these.  There's a quote and then a description of  what the mapping effect is.  COURT:  Yes.  WILLMS:  I think it's self-explanatory.  I don't intend to  go through it.  If I could just get an understanding of this map.  Is the heavy black line along the top of this exhibit  supposed to represent the northern external boundary  of the claim territory?  WILLMS:  No.  COURT:  I don't know what it is.  I don't know what it is  though.  WILLMS:  I think they're administrative boundaries.  This  is, my lord, just a copy of Exhibit 646.  Maybe Mr.  Rush can help because 646 was his exhibit.  And it's evidence in the proceedings.  This must be  the base map for the overlay series, my lord, because  the overlays would then depict the boundaries as  they're shown.  So if we had the  you will recall the large --  I know I'll know some day, but  moment.  RUSH:  You recall the overlay series?  COURT:  Oh, yes.  RUSH:  Well, 646 is the base map that under sets the overlay  series on a 1 to 250,000 scale.  COURT:  Yes.  RUSH:  And so this map does not depict the boundaries of the  claim area.  That is to say the one that we now have,  Exhibit 1177-3, showing the boundaries although it is  by and large an area somewhat larger than the  boundaries shown on 646.  COURT:  Yes.  All right.  Well —  WILLMS:  Q   Maybe, Mr. Magwood, do you know what that dark line --  A   I'm not sure which dark line you're referring to.  Q   It's —  COURT:  The one across the top.  MR.  THE  MR.  THE COURT  MR.  THE  MR.  MR. RUSH  THE COURT  MR.  THE  MR.  THE  MR.  -- if we had 646 --  I don't know at the 20911  J.M. Magwood (for Province)  In chief by Mr. Willms  1 A   It may be of some clarification to unroll those 1 in  2 250,000 maps then.  I believe these are copies of  3 those maps glued together, if you like, and then  4 photocopied.  And that may be a coloured line that  5 would be clear if you had the total map in front of  6 you.  7 MR. WILLMS:  My lord, perhaps all this is is a duplicate of 646.  8 We can certainly find out for your lordship what it  9 was intended to depict on 646, but it is a heavy line  10 on 646.  11 THE COURT:  You people have the advantage.  You've been dealing  12 with this.  I haven't thought about 646 for some time.  13 I don't have a recollection of it.  I'm told now that  14 it's the underlying base map for the overlay series,  15 and that's some kind of handle, but I'm really not  16 able to grasp the significance of any of this.  17 Perhaps it will all be made clear sometime.  18 MR. WILLMS:  For the purposes now, my lord, the significance is  19 that this is a copy of the base map --  2 0 THE COURT:  Yeah.  21 MR. WILLMS:  -- Used by the plaintiffs, and this witness has put  22 coloured lines representing these claims onto that  23 base map.  24 THE COURT:  I intend no disrespect.  I wish you had put a  25 coloured line on to show me the claim boundaries.  26 MR. WILLMS:  My lord, I have an overlay for this.  In fact, the  27 plaintiffs' overlay will fit over this.  I didn't want  28 to do that because I was afraid this witness isn't  29 competent to put the claim boundary on it.  30 THE COURT:  All right.  31 MR. WILLMS:  My lord, if I can be of assistance.  The intention  32 of mounting these this way is that later on the  33 overlays 9A and 9B that have been marked as the claim  34 in this case can be placed directly over top of these,  35 the large map, so that your lordship will then be able  36 to see --  37 THE COURT:  Yes.  All right.  38 MR. WILLMS:  — How this all fits together.  But I thought my  39 friend might say it was a bit argumentative for me to  40 put that on the map itself.  41 THE COURT:  All right.  Thank you.  42 MR. WILLMS:  43 Q   Mr. Magwood, if you turn to page five of your report.  44 Now, from pages five to eight of the report under  45 paragraph B you deal with the Tsimshian claim in  46 Exhibit 1018-7, and you have plotted the boundary  47 lines from this exhibit with blue in the lower 20912  J.M. Magwood (for Province)  In chief by Mr. Willms  1 left-hand corner of Exhibit 1177-2 and 1177-3; is that  2 correct?  3 A   Yes, that's right.  4 Q   And here again because you're using a metes and bounds  5 description you used the same format that you used  6 with the Kaska Dena, that is you quoted from the metes  7 and bounds description and then immediately after a  8 quote you have put a comment in about the effect on  9 mapping?  10 A   Yes, that's right.  11 Q   Now, one comment that you've made that I'd like to  12 direct you to is at the bottom of page five.  You've  13 quoted from a description in the metes and bounds from  14 Exhibit 1018-7 that describes Oliver Creek, Red Canyon  15 Creek, Coal Creek, the Zymoetz River and McDonell  16 Lake, and then you say this:  17  18 "At this point the description is unclear.  The  19 headwaters of the Zymoetz River would include  20 McDonell, Dennis and Aldrich Lakes, yet the  21 next call excludes all of these."  22  23 Then you say:  24  25 "Both possibilities are shown in dashed blue."  26  27 And if you could just refer to 1177-3 in front of  2 8 you could you explain what you mean by "both  29 possibilities are shown in dashed blue"?  30 A  Well, you'd see it as almost, well, a very rough  31 circle of dashed blue.  And what I've done is in the  32 first case included the headwaters of the Zymoetz  33 River.  34 Q   All right.  And that dashed line is the dashed line  35 that proceeds to the right, or is the more easterly  36 dashed line?  37 A   Yes, that's correct.  38 THE COURT:  That includes Hudson's Bay Mountain?  39 A   Yes.  And —  40 MR. WILLMS:  And the —  41 A   The next statement in the description asks that  42 McDonell Lake be excluded, which is part of the head  43 or part of the watershed of the Zymoetz River.  So the  44 next -- the line to the left excludes McDonell lake.  45 MR. WILLMS:  46 Q   All right.  And you've passed that dotted line to the  47 left of McDonell Lake where the lake -- where there 20913  J.M. Magwood (for Province)  In chief by Mr. Willms  1 appears to be a stream discharging from the lake?  2 A   Yes.  3 Q   Okay.  4 A   It's the river, the Zymoetz River.  5 MR. WILLMS:  Now, once again, my lord, the balance of the  6 descriptions I think are self-explanatory.  I hope  7 are.  8 Q   So I'd ask, Mr. Magwood, could you turn to page eight.  9 And here at the bottom of page eight you refer to the  10 Kitsumkalum Tribal Territory, Exhibit 1018-8, and you  11 have plotted this on Exhibit 1177-2 and 1177-3 in  12 green.  And it's in the lower left portion of the map;  13 is that correct?  14 A   Yes.  15 Q   Now, in paragraph one, and perhaps you could just --  16 well, I'll read the paragraph first so we can turn to  17 it.  You say this:  18  19 "In the absence of other direction I took the  20 intention of this map as being an outline of  21 the watersheds of the Kitsumkalum and  22 Zymagotitz Rivers.  The area around the City of  23 Terrace cannot fall under this general  24 definition and will need to be particularly  25 defined."  26  27 And could you turn at Appendix I and you'll note,  28 Mr. Magwood, that there is a pink sheet preceding each  29 exhibit, and turn to Exhibit 1018-8.  And that is a  30 fold out map.  31 A   Yes.  32 Q   Which if you look sideways says "Kitsumkalum Tribal  33 Territory" on it?  34 A   Yes, that's correct.  35 Q   And in your opinion report the assumption that you're  36 making here is that the watersheds are being  37 described?  38 A   Yes.  By the look of this fold out map it's the two --  39 the watersheds of the two rivers that I described in  40 the -- in my report.  That was a general assumption.  41 It went across the river, of course, at Terrace which  42 goes beyond that -- that generalization.  43 Q   Okay.  But when you reviewed this against the  44 assumption that it's the watershed that's being set  45 out -- the watershed that's being set out, and except  46 for a point I'll take you to in a minute respecting  47 Sand Lake, was the balance of this consistent with 20914  J.M. Magwood (for Province)  In chief by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  A  THE COURT  A  THE COURT:  MR. RUSH:  THE COURT:  MR. WILLMS  Q  A  Q  that assumption except for Terrace which you've just  pointed out?  A   Yes.  Terrace and Sand Lake were the exceptions to  that general assumption, yes.  Q   All right.  And if you could look at Exhibit 1177-3  you have around Sand Lake done as you did near  McDonell Lake, you've shown two possibilities.  And  this is about the middle, my lord, on the left-hand  side of the exhibit there are two green lines, one to  the north or above Sand Lake dotted or dashed, and one  to the -- one below or to the south of Sand Lake; is  that correct?  A   Yes, that's correct.  Q   Now, can you just explain why you have two lines near  Sand Lake instead of just one?  A   The one that would include Sand Lake in the  description is a graphic translation, if you like, of  the small map you sent me.  Where is Sand Lake, please?  It's very difficult to see on these maps, my lord.  Yes.  It's in here.  Yes.  All right.  Thank you.  It's a little easier to see on the bigger map, my  lord.  Oh,  yes.  Yes.  Thank you.  A  Q  A  Q  A  Q  A  Q  So on the exhibit itself, Exhibit 1018-8, Sand Lake is  shown as being included within the territory?  That's correct.  Correct.  And there is a dotted line showing it being  excluded.  Why did you draw the dotted line showing it  being excluded as well?  That was the line consistent with my first assumption  that it was just intended to be the watersheds of  those two rivers.  And where does the waters from Sand Lake flow?  To the -- down -- I'm not sure that I can say it  correctly.  Tseax.  T-S-E-A-X.  Yes.  Which is --  Which is part of the Nass watershed.  Okay.  But as you said earlier except for the Sand  Lake area and the area near Terrace the balance of the  Exhibit 1018-8 is consistent with your assumption that  it's intended to show a watershed? 20915  J.M. Magwood (for Province)  In chief by Mr. Willms  1 A   Yes.  It was shown all dotted, of course, because  2 that's a presumption.  3 Q   Because it's assumption?  4 A  M'hm.  5 MR. WILLMS:  Now, on pages nine and ten under paragraph D you  6 deal with the Tahltan Tribal Boundaries, Exhibit  7 1018-9.  This is an exhibit presently for  8 identification, my lord.  9 THE COURT:  Thank you.  10 MR. WILLMS:  11 Q   And you've plotted this boundary line using blue, and  12 it angles from the upper right portion of Exhibit  13 1177-2 and dash three down towards the middle of the  14 map and then off to the left-hand side middle of the  15 map; is that correct?  16 A   That's correct, yes.  17 Q   And once again could you turn in Appendix I to the  18 copy of Exhibit 1018-9, and it just follows the  19 Kitsumkalum map.  20 A   Yes, I have it.  21 Q   And page 52.  The pages are numbered at the bottom,  22 you'll see.  So if you turn to 1018-9, and the first  23 page is numbered 39, but if you turn to page 52 the  24 portion of the description, the metes and bounds  25 description here that you were able to put on Exhibit  26 1177-2 and 1177-3 starts at the middle.  And do you  27 see the words "longditude 127 west"?  28 A   Yes.  2 9 Q   All right.  And then the sentence one down.  30  31 "From here their line followed the centre of  32 the Cassiar Mountains south and southwesterly  33 between the sources of the Stikine and Finlay  34 to the headwaters of the Skeena."  35  36 And is that describing the beginning of where the  37 blue line comes at the upper right-hand portion of  38 1177-2 and starts coming down the watershed between  39 the Finlay and the Stikine?  40 A   Yes, that's correct.  41 Q   You've followed the -- with a solid blue line you've  42 followed that watershed.  And then on both Exhibit  43 1177-3 and dash two you depart from the watershed with  44 a dotted line across the Skeena and then don't pick up  45 a solid line until you've crossed the Skeena again.  46 Can you explain what assumptions you made to go  47 between the two solid lines, the assumption that you 20916  J.M. Magwood (for Province)  In chief by Mr. Willms  1 made represented by the dotted -- the dashed line  2 there?  3 A   The part of the description that says "somewhere east  4 of Ground Hog Mountain" is sort of doubtful so what I  5 did was picked a spot directly east of Ground Hog  6 Mountain on the river and joined that in both  7 directions up the height of land to the appropriate  8 watershed between the rivers, but because somewhere  9 east is a doubtful call it's dotted.  10 Q   All right.  And you left the Finlay Stikine watershed  11 boundary and crossed over to another watershed  12 boundary?  13 A   Yes, that's correct.  14 Q   And the next watershed boundary is the Nass Skeena?  15 A   Yes.  16 Q   All right.  Now, that boundary then runs in a solid  17 blue line on 1177-3 and dash two until you get to the  18 56th parallel, 56 degrees, then it runs off to the  19 west or to the left dashed.  Can you explain what that  20 represents?  21 A   The intersection of the watershed boundary in the 56th  22 parallel are a definite position so it went solid to  23 that point.  The next call is to Cottonwood Creek  24 which I couldn't identify.  The call after that is to  25 the headwaters of the Bear River, I believe.  And  26 because the 56th parallel happens to intersect the top  27 end of Bear Glacier which runs into -- feeds Bear Lake  28 and hence Bear River I drew the dotted line to that  29 position as the next possibly identifiable intention  30 in this description.  31 Q   Okay.  If you could turn back to exhibit -- the first  32 part of Exhibit 1177, page ten.  And here at page ten  33 under paragraph E you deal with Exhibit 1018-10 and  34 the Nishga claim.  And you've plotted this on 1177-2  35 and 1177-3 in yellow?  36 A   Yes, it's a yellow dotted line.  37 Q   All right.  And you -- the third paragraph down you  38 say:  39  40 "The rest of the boundary was plotted to  41 include the drainage of the Nass River Basin  42 upstream to the headwaters of the Nass River  43 and as far up the Bell-Irving tributary as the  44 mouth of Treaty Creek."  45 Now, you have made an assumption in respect of the  46 Nass River drainage there?  47 A   The map that I was given was almost unintelligible as 20917  J.M. Magwood (for Province)  In chief by Mr. Willms  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  far as detail was concerned.  You could discern that  there were -- had been words on it, but seldom could  read them and/or the detail.  However, when I overlaid  it over the maps which I could read it appeared to  be -- to include those watersheds as I described it,  so I made the assumption that that was the intention.  Q   All right.  And with the parts that you could identify  did you test the assumption on the parts that you  could identify with the exhibit?  A   Yes, I did.  Q   All right.  Once again, and this is the fourth  paragraph down on page ten under paragraph E, you've  mentioned two possibilities again shown where the  boundary crosses the Bell-Irving River and say:  "There is some doubt in my mind as to whether  the line follows the watershed boundary East of  the Bell-Irving River or comes down Deltaic  Creek."  As you did with the other instances where you had  two assumptions you've shown two dotted lines on the  map, and this is in the upper left-hand corner, to  take care of those two possibilities?  A   Yes.  The upper line would be consistent with my  watershed assumption at the beginning, and the other  one more closely approaches the detail I was able to  discern on the map.  I had no explanation as to why  they had switched from the height of land to follow a  creek, but it appears that's what they did.  And then,  of course, the next one is following a creek as well.  Q   Finally turn to page 11 in respect of your discussion  of the exhibits.  Kitwancool Territory, Exhibit  1018-11.  Now, you'll recall that 1018-11 was a metes  and bounds description?  A  As I initially received it, yes.  Q   And then later you received a map.  And if you just  turn to the back of Appendix I, the last page, that's  the map that you received?  A   Yes, it is.  WILLMS:  All right.  And, my lord, that last page is Exhibit  383.  This is the Kitwancool?  Kitwancool.  383.  And it's marked as Exhibit 383.  wonder, Mr. Magwood, if you could in your opinion  MR.  THE COURT:  MR. WILLMS:  THE COURT:  MR. WILLMS:  Q   I 2091E  J.M. Magwood (for Province)  In chief by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  A  Q  A  Q  A  Q  A  Q  A  report at page 11 in the first line on Kitwancool  Territory just write in in pen "and 383" beside  1018-11.  And 383.  Yes.  All right.  Thank you.  For Kitwancool what you've  done here is you've drawn two maps, one with dots --  plotted two, one with dots and one with -- and they're  both plotted in red on the left side, the upper left  side of 1177-2 and 1177-3?  Yes.  The one that you've plotted with the dashes is from  the metes and bounds description; is that correct?  Yes, that's correct.  The one you've plotted with the dots is from the map  drawing Exhibit 383?  That's correct.  Correct.  You also have inside all of that a solid  line in red.  Can you just describe what you intended  by that solid line?  Part of the description says that it must include the  watershed of, and I can't read the name of that river  just now, and the lake at the headwaters of it.  So  because that was a definite part of the description  that had to be included I've outlined it in solid red.  And I won't go through, but your discussion of the  metes and bounds portion of Exhibit 1018-11 -- and I  believe that one's for identification as well, my  lord, 1018-11.  Is that the Nass that's at the south of that solid  area you've marked?  I'm having a little trouble on this small map with my  tri-focals.  Stikine is here.  This area here that you've marked, is this the Nass  Valley or some other valley?  WILLMS:  It is, my lord.  A   Yes.  It is the Nass River.  THE COURT:  All right.  Thank you.  MR. WILLMS:  Q   And you have at pages 11 through 14 once again  paragraph by paragraph discussed the metes and bounds  description, and the impact of the metes and bounds  description on the mapping for the long dashed lines,  and then you deal briefly in the middle of page 14 in  that paragraph beginning "after attempting" with the  map from the Histories, Territories and Laws of the  Kitwancool.  A   I'm not with you.  THE COURT:  A  THE COURT: 20919  J.M. Magwood (for Province)  In chief by Mr. Willms  Cross-exam by Mr. Rush  1 Q   I'm on page 14.  2 A   Page 14.  Oh, yes.  3 Q   Sorry.  And up until that point you're dealing with  4 the metes and bounds description?  5 A   Yes.  6 Q   And then in the middle paragraph beginning with the  7 word "after" that's where you discuss briefly Exhibit  8 383, the extract from the Histories, Territories and  9 Laws of the Kitwancool?  10 A   Yes, that's correct.  11 Q   Your opinion respecting the lines that you have marked  12 on 1177-2 and 1177-3 is set out at the bottom of page  13 14 under part 4?  14 A   Yes, it is.  15 MR. WILLMS:  Now, my lord, I will have a submission later on one  16 of the exhibits for identification, but I'll leave  17 that for later.  Those are all the questions that I  18 have.  19 THE COURT:  Thank you.  Ms. Koenigsberg?  20 MS. KOENIGSBERG:  I have no cross-examination.  21 THE COURT:  Thank you.  Mr. Rush.  22  23 CROSS-EXAMINATION BY MR. RUSH:  24 Q   Now, you have your report there in front of you, Mr.  25 Magwood?  26 A   I do, yes.  27 Q   All right.  I want to firstly direct your attention to  28 what you were requested to do, and so if you turn to  29 tab 1, which is Appendix I, which is a letter from Mr.  30 Willms to you of April 28th, 1989.  And do you have  31 that?  32 A   I have it.  33 Q   And what he says here, bottom of this letter, is the  34 following, and I quote:  35  36 "We request that you plot the following  37 boundary lines on the copy of the Exhibit 646  38 using a different colour for each boundary  39 line, using a solid line where the description  40 or map submitted allows you to map the line,  41 and using a dotted line where it is necessary  42 for you to make assumptions as to where the  43 line should be mapped."  44  45 Now, that's what you were requested to do; is that  46 correct?  47 A   Yes.  Yes. 20920  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 Q   And is that what you endeavored to do?  2 A   Yes.  I had a problem with that in that this is a very  3 difficult medium to write on.  4 Q   When you say this is a difficult medium to what are  5 you referring?  6 A   To what was given to me as Exhibit 646.  Is that  7 correct, that large map?  8 Q   Yes.  Do I take it that you were given a copy of this  9 document which is Exhibit 1176-2 without any --  10 A   I believe that is, in fact, what I was given.  11 Q   That's the actual thing that you were given?  12 A   That's the actual thing, yes.  13 Q   And then you added the coloured lines and as well the  14 written descriptions?  15 A   Yes, that's correct.  16 Q   All right.  Now, did you want to add more to your  17 answer with regard to this being a difficult medium?  18 A   That's -- there was only one sort of pencils that I  19 could get that would write on this film material, and  20 it turned out that -- that these were the only colours  21 that you could really see.  I had a brown and -- I  22 forgot -- a black I guess where the other two -- in  23 other words, I didn't have enough colours for a  24 different colour for each band so I had to -- I think  25 I have two in red and two in blue and tried to explain  26 what I had done on the side of the exhibit in the  27 appropriate colours.  28 Q   All right.  I just will come to that in a moment, Mr.  29 Magwood, but what I'm here concerned about mostly is  30 the methodology of what you attempted to depict on the  31 map.  And if you look at page two of Mr. Willms'  32 letter he then goes on to say in paragraph one you'll  33 see:  34  35 "At page of Exhibit 1018-6 the following  36 description of the Kaska Dena territories as  37 contained:"  38  39 Then he gives a description.  Do you see that?  40 A   I do, yes.  41 Q   And then he said:  42  43 "We request that you map so much of this as you  44 can onto Exhibit 646."  45  46 Yes?  47 A   Yes. 20921  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 Q   Now, what I need to know from you is did you map Mr.  2 Willms' description or did you map the description  3 contained in the exhibit?  4 A   I mapped the one contained in the exhibit.  5 Q   All right.  So may I suggest to you that you forgot  6 about what Mr. Willms told you to map and you went to  7 the exhibit and you followed the exhibit; is that  8 right?  9 A  As well as I could, yes.  10 Q   Yes.  I understand that, but the information coming to  11 you were these exhibits by the -- and that's what you  12 relied on?  13 A   Yes.  14 Q   All right.  Now, dealing -- I take it that you first  15 drew your lines on 646, is that so?  16 A   No, that's not correct.  I had a set of maps which I  17 believe to have been the parents of the Exhibit 646.  18 They're in colour.  These are all black.  In other  19 words, the coloured map you can tell a river from a  20 contour line very easily so I went to the parent maps,  21 the 1 in 250,000 maps.  22 Q   All right.  I wonder if those could be produced to the  23 witness, please.  Now, if you'll just take those out  24 of the elastic bands.  25 A  M'hm.  26 Q   Just so that we can understand the process, Mr.  27 Magwood, what you're producing is a set of clipped  28 together map sheets of an area that comprises the area  29 shown on Exhibit 646; is that right?  30 A   Yes.  It certainly includes all of the area in 646.  31 Q   All right.  Now, you made the assumption that those  32 map sheets were, in fact, the underlying map sheets  33 that went together to make Exhibit 646?  34 A   I did, yes.  35 Q   You have no way of knowing whether that is so, or you  36 weren't told whether that was so?  37 A   No, I wasn't told.  My only method of figuring that  38 out was comparing one to the other.  39 Q   Yes.  They're NTS 1 to 250,000 scale.  So you drew the  40 assumption that, in fact, those sheet maps were used  41 to make the 646?  42 A   Yes.  And the detail would verify that.  43 Q   Yes.  Except that there are two series for the NTS 1  44 to 250,000 sheet maps, aren't there?  45 A   There are probably more than that if you go back  46 through history.  47 Q   But there is at least a current provincial and a 20922  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 current federal?  2 A   I'm not sure that each of these map sheets would --  3 that that would be true for each of these map sheets.  4 Some of that territory hasn't been mapped by one or  5 the other.  6 Q   Yes.  Because this is, 646, is in black and white you  7 cannot discern whether or not a federal or provincial  8 1 to 250,000 NTS map sheet was used for the creation  9 of 646?  10 A   I think on a cursory examination you're quite correct.  11 And I am -- I didn't compare absolutely detail by  12 detail to be sure.  13 Q   All right.  Now, but what you did do was to take the  14 map sheet of the particular area of concern, in this  15 case Bella Coola being the first one?  16 A   I'm not sure that this is actually part of 646.  It's  17 part of the descriptions though.  18 Q   All right.  All right.  It's part of the descriptions.  19 But, in any case, what you did, if I may say it  20 generally, was to take these individually clipped  21 together coloured NTS map sheets, and it was on these  22 map sheets that you attempted to draw the lines that  23 were depicted in those descriptions and the exhibits  24 given to you?  25 A   That's correct.  26 Q   And then from those, as I understand it, what you did  27 was to transfer the lines from those individually  28 clipped together sheets onto Exhibit 646?  29 A   That's correct.  30 Q   And then if I can understand it you had, or it was  31 done on your behalf, Exhibit 646 was reduced to half  32 its size; correct?  33 A   Yes.  34 Q   And then you again drew where those lines were that  35 you had drawn on 646 on the half-size version, being  36 here 1177-3?  37 A   Yes, I did.  38 Q   Onto that smaller version?  39 A   Yes.  40 Q   Okay.  I just want to understand the process, Mr.  41 Magwood, because you separately drew on each one of  42 these smaller maps, did you not?  43 A   Yes.  44 Q   Because the drawings that you did on the larger map  45 here are not photo-reproduced or photocopied on to the  46 little ones, are they?  47 A   No, they're not. 20923  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 Q   Because on the little ones we don't have the legend  2 for the colour on the right-hand side of the map, do  3 we?  4 A   No, we don't.  5 Q   All right.  Now, your opinion here, Mr. Magwood, as I  6 understand it, that's found on the last page of your  7 report, is that the boundary lines drawn on Exhibit  8 646 fairly represent and depict the boundaries of the  9 territories set out and described in Exhibits 1018-6  10 through and including Exhibit 1018-11; is that right?  11 A   That's my opinion as it's written here, yes.  12 Q   But that opinion is subject to a number of major  13 qualifications, is it not?  14 A   Yes, it is.  15 Q   And the first of your qualifications, as I understand  16 it, is set out on page one of the report that you  17 provided to Mr. Willms on July the 13th, 1989.  And I  18 just want to deal with these with you.  The first  19 pertains to what you call a good description; correct?  20 A   Yes.  Yes.  Are you saying that's what you want to  21 deal with?  22 Q   I'm saying two things, and perhaps if I'm not  23 separating them thank you for drawing that to my  24 attention.  I'm first directing you to the report, and  25 I'm secondly suggesting to you that the first  26 qualification of your opinion is the qualification  27 that is set out in paragraph 2 on Mr. Willms' report;  28 is that not right?  29 A   Yes, that's correct.  30 Q   Because here you tell us what a good description is;  31 right?  32 A   Yes.  It's my opinion.  33 Q   Yes.  And none of the documents that you were provided  34 with provided you with a good description, did they?  35 A   None of them did -- none of them did, no.  36 Q   And you've told us what a good description is there in  37 paragraph 2, and now you've told us that:  38  39 "A good description would be one that described  40 the boundary in such a way that a surveyor  41 using the description could mark the boundary  42 on the ground with no doubt at any point as to  43 where the line should be situated."  44  45 That's correct?  46 A   That's correct.  47 Q   And that is a definition of what a metes and bounds 20924  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 description is, is it not?  2 A   Yes.  A good one.  3 Q   Now, is it not the case that not one of the boundaries  4 depicted or described in any of the exhibits given to  5 you could be marked on the ground?  6 A   Not exactly.  That's quite true.  7 Q   Portions of them could be marked?  8 A   Yes.  9 Q   But not in their entirety could those descriptions be  10 marked on the ground?  11 A   No, they couldn't.  12 Q   And I think you have given us the reason for that is  13 that in the case of every one of those descriptions  14 there is a great deal of doubt as to where the line  15 should be situated?  16 A   That's true in each one of them, yes.  17 Q   And is it not the case, Mr. Magwood, that the fact  18 that there is that doubt itself weakens the accuracy,  19 and indeed the utility of the whole description?  20 A   Indeed it does.  One mistake and you can throw a  21 description out.  22 Q   And it can be thrown out all the way around the line?  23 A   Quite right.  24 Q   And if there are many doubts throughout the entirety  25 of the description the description can be out again  26 and again for different reasons?  27 A   It's possible to get back on the line by a definite  28 geographic call in the description.  However, if  29 you've got one doubt you haven't got a solid boundary  30 around the place.  You have to straighten out each of  31 those doubts as you -- in other words, if you are  32 repairing one of these you'd have to find the  33 intentions at each place and correct the description  34 so that you didn't have any gaps in the final  35 boundary, and then you could put it on the ground.  36 Q   That's right.  37 A   Or the map, or whatever.  38 Q   That raises the next qualification, does it not, Mr.  39 Magwood.  You say, again on page one, that the line  40 also should exactly represent the intentions of the  41 party on each side of the line?  42 A   Yes, I do say that.  43 Q   And is it not the case that in respect of all of the  44 exhibits, the six exhibits that you were given, and as  45 well the map of the Kitwancool area, that the line did  46 not satisfy that criterion in any one of those  47 exhibits? 20925  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 A   I'm not sure of your meaning there.  Where I've shown  2 it solid I believe I have the boundary that was  3 intended, that's why I showed it solid.  4 Q   Yes.  5 A   Places where it's dotted I had doubt.  6 Q   But, Mr. Magwood, you said intended by both parties on  7 each side of the line; right?  8 A   I did say that, yes.  9 Q   And you only had an intention expressed by a party on  10 one side of the line; correct?  11 A   There are always parties on two sides of the line.  I  12 work for the Crown, and if there isn't a private party  13 on the other side it's usually the Crown.  14 Q   Right.  So your assumption was that on the other side  15 of that line was the Crown; is that right?  16 A   There's always someone on the other side of the line  17 otherwise you don't have a boundary.  18 Q   Correct.  What I'm saying to you, Mr. Magwood, is that  19 in this case in terms of an intention expressed in the  20 exhibits provided to you you only had an expressed  21 intention of one of the parties?  22 A   Yes.  I don't know the root of these documents, but I  23 presume you're correct in saying that, yes.  24 Q   And is it not the case that in terms of the exhibits  25 provided to you that even that intention was  26 incompletely expressed, or in some cases not expressed  27 at all?  28 A   Yes, I think you're correct.  I think my report says  29 exactly that.  30 Q   Yes.  I think it does too.  And it not only says that  31 there were incomplete or not expressed intentions, but  32 it also says that there were in some cases two or more  33 intentions expressed about the same area?  34 A   I believe that -- I may stand corrected.  I believe  35 where I have shown two choices one was because of my  36 presumption and one was what I believe the English of  37 the document had intended, or said, if you like.  38 Q   Yes.  39 A   Quite often I have drawn a -- I had made a presumption  40 at the beginning which was inconsistent with some of  41 the language in the description as I got through it.  42 Some of the language, not all of it.  Or the map, as  43 the case may be.  44 Q   The fact of the matter is, Mr. Magwood, isn't it the  45 case that you had to fill in the holes in these  46 descriptions where they were imperfect or where they  47 were omitted, and you had to make assumptions about 20926  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 where the line should be drawn?  2 A   Yes, that's true.  3 Q   And as I read your report in respect of the lines in  4 respect of all of the areas you were asked to draw or  5 to depict on 646 you made assumptions for the parties  6 in respect of every one of them?  7 A   Yes.  There was at least some assumption in each --  8 each one of them, yes.  9 Q   Now, I'd like you to just look at page two of your  10 report.  And if you look at the top of page two.  And  11 I'd like to suggest this is another qualification.  12 You said:  13  14 "Each described area was traced in its entirety  15 on these maps."  16  17 Do you see that?  18 A   I do, yes.  19 Q   But that's not quite accurate, is it?  20 A   No.  I think possibly the place where that might be --  21 where I might be tripped up on that simplicity is I  22 didn't go into the Yukon Territory and one of the  23 descriptions does.  24 Q   But you could not trace any of the descriptions in  25 their entirety without making the assumptions that you  26 did to fill in the holes?  27 A   That's true.  28 Q   And what I'm saying to you is that in the form that  29 the areas described were presented to you in the  30 exhibits that were provided to you they couldn't be  31 traced in their entirety?  32 A   I guess the semantics of that are quite correct.  33 Q   Well, I think from your own observations, Mr. Magwood,  34 in the report the descriptions were ambiguous in some  35 cases?  36 A   In some cases they were, yes.  37 Q   They were incomplete in other cases?  38 A   That's right.  39 Q   There were unknown features?  40 A   Yes.  Some of the place-names I couldn't identify with  41 the material I had.  42 Q   And, in fact, there were some features which to your  43 mind were non-existent?  44 A   No.  I never believed that somebody would write a  45 description believing that they were describing a  46 non-existent place.  I always -- they may have been  47 misled as to what they called it, or that they may not 20927  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 have known north from east, but I don't think anyone  2 would set out to describe a non-existent position in a  3 description.  4 Q   Perhaps I misstated it, Mr. Magwood.  There were  5 features stated that you couldn't find?  6 A   There were.  7 Q   Now, is it not the case, Mr. Magwood, that in terms of  8 the bundled together coloured NTS map sheets that are  9 in front of you there, is it not the case that there  10 are no plot lines depicted on those sheets in respect  11 of the boundaries that you tried to draw?  12 A   I -- I'm not sure I followed you there, sir.  13 Q   Well, despite the fact that you were given a  14 description of an area to plot, and you first went to  15 those NTS map sheets, the coloured ones to do so, is  16 it not the case where you were required to do so you  17 did not plot the boundary descriptions on each and  18 every one of those NTS map sheets?  19 A   I may not have.  I'm not -- I couldn't answer that  20 with absolute certainty at this point.  Have you found  21 one where I haven't?  22 Q   Well, I'm going to -- I'm going to come to that in  23 just a moment, but I was wondering if you could  24 recollect as a general matter that you could recall  25 not actually plotting the area because of the  26 ambiguity that was involved in the description?  27 A   I would suggest that the places that I didn't plot it  28 were more likely where I wasn't having any trouble  29 with Exhibit 646.  Some of the places are -- like the  30 Arctic Pacific Divide, and a few things like that, are  31 quite well shown on this map as well.  32 Q   You figured where it was outside of 646 you didn't  33 have to plot it, is that it?  34 A   I certainly followed it on all the maps because I  35 wanted to go from start to finish of each description.  36 It's very difficult to jump into a description in the  37 middle and hope that you're in the right place.  38 Q   That's my point though, isn't it, Mr. Magwood, if you  39 didn't plot it all the way around the entirety of the  40 description that you were given that a flaw at any  41 point in the description will necessarily impact upon  42 the whole of the description as it goes around unless  43 you can repair it, as you said?  44 A   That would be true in a description that, for  45 instance, had bearings and distances.  If you make a  46 wrong one everything after that is always wrong.  47 However, if you've got geographic positions that 2092E  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 wouldn't be the case.  In other words, you may go off,  2 if you'll pardon me, at a tangent but still come back  3 to a Mt. McCusker, or whatever, because that happens  4 to be the next call.  That might create a gap, but the  5 whole rest of the description is not necessarily  6 incorrect.  7 Q   You've shown the gaps on this 646, have you?  In each  8 case where there's a gap that appeared in those  9 descriptions you've shown it on 646?  10 A  Where I was in doubt as to the intention I've shown  11 dotted lines.  In one case I have shown a large gap.  12 Q   All right.  And you've shown other gaps on this --  13 well, I can just see two as I'm standing here.  14 A   Can you?  15 Q   I mean, this line right from this X over here on the  16 right-hand side of 646 all the way across is a huge  17 gap? isn't it?  18 A   Yes, it is.  19 Q   This solid line isn't intended to join them, is it?  2 0 A   No.  21 Q   The other one is what appears to be the -- this  22 balloon shaped figure here with a gap at the bottom.  23 A   Yes.  That was -- I'm not sure whether my report  24 described that.  I could have closed it at the Nass  25 River and it would have been just as valid.  It was  26 intended to point out that that was a definite call in  27 the description, that it must include that.  And, of  28 course, without closing it I guess you could say I  29 haven't described an area.  30 Q   Well, not only that, Mr. Magwood, but it's not joined  31 to any of the rest of the description?  32 A  At one point it is.  33 Q   At one little point up here --  34 A   Yes, that's right.  35 Q   -- It connects, but I mean in terms of a description  36 the description is going off in a northwesterly  37 direction and then you kind of come down and do a  38 little balloon in that area.  That's hardly closing a  39 description, is it?  40 A   I must say that that was the most difficult  41 description I tackled in the bundle.  42 Q   All right.  On page two as well, Mr. Magwood, you've  43 told us that when you transferred the description to  44 Exhibit 646 where the description was "unclear" you  45 used a dotted or dashed line?  46 A   Yes.  47 Q   Correct? 20929  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1  A  2  Q  3  4  5  A  6  Q  7  8  9  A  10  Q  11  12  A  13  14  Q  15  16  17  18  A  19  20  21  Q  22  A  23  Q  24  25  26  27  28  A  29  Q  30  A  31  32    ]  MR. RUSH  33  Q  34  35  36  A  37  38  Q  39  40  A  41  42  Q  43  44  45  46  47  A  M'hm.  And you used the dotted or dashed line because you  couldn't vouch for the reliability of the description;  isn't that right?  Yes.  And isn't -- is it not the case that you also used  that dotted or dashed line when there was not a  description at all and you had to fill it in?  I have a feeling that's the same as being in doubt.  Okay.  This might all be in doubt, but I was trying to  understand the various ways one might be in doubt.  I think when I made presumptions I had to make them to  fill in the gaps, if you like.  M'hm.  And you also had a dashed line where you had  two choices to go, whereas you said you could go north  and east around Hudson's Bay Mountain or you could  come south and west around McDonell Lake?  Yes.  I believe that the description offered you two  choices and I was showing both choices.  That makes it  a bad description.  Yes.  But a good picture.  Well, it's the descriptions we're interested in here.  Now, is it not the case as well, Mr. Magwood, that  you also used a dotted or dashed line when you  couldn't ascertain commencement points or measurement  points could not be ascertained?  Yes.  Whenever I was in doubt I used dots or dashes  All right.  Excuse me.  I wonder if I might have a bit more water,  please.  Sure.  Now, the other thing you say on page two, Mr. Magwood,  is wherever the maps were unclear or faulty you tended  to use the height of land as a boundary?  In fact, it says the descriptions were faulty, not the  maps, but however.  Yes.  Well, there were map descriptions, weren't  there?  I tended to use the height of land.  Did you want to  know why, is that your question?  No.  My question is that if there was a description  that was faulty, either mapped or described, you used  or tended to use a height of land as an assumed  feature to resolve the faulty description of that  particular point.  Is that a fair way of putting it?  Yes, I think so. 20930  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 Q   And now is that a convention in the -- in your  2 business as a surveyor?  3 A   No, I wouldn't say so.  I think the reason I did it  4 was that most of these, at least the map descriptions,  5 and quite often the written descriptions, used the  6 height of land as a boundary.  So when -- when I got  7 in a little trouble following the description I  8 presumed that that's what the intention of the next  9 call was to include a watershed, yes.  10 Q   All right.  So what you were doing was taking what  11 seemed to be some pattern that was moving through each  12 of the six exhibits; correct?  13 A   Yes.  14 Q   And then in respect of each one of the descriptions  15 you applied this assumption that a height of land  16 would have been presumed where there was a faulty  17 description; is that right?  18 A   I didn't always apply that.  19 Q   No, you didn't.  You departed from that rule sometimes  20 too, didn't you?  21 A   Yes, I think so.  22 Q   Is it not the case that there were several occasions  23 when a height of land was available for you to use and  24 you didn't use it?  25 A   Yes, I presume.  I'm not sure that I can remember  26 every line.  I know one case where I have two options.  27 One goes down a creek and one goes down a height of  28 land.  One was my presumption.  The height of land was  29 my presumption.  The creek was the best I could  30 discern from the intention of the map.  31 Q   All right.  And is it -- would you agree with this  32 description of your coloured -- your efforts to  33 describe the boundaries on the coloured NTS map  34 sheets, that you plotted them in a fairly rough manner  35 on those map sheets out of necessity?  36 A   Yes, I did.  I would say that that is fairly rough.  37 Q   All right.  Now, Mr. Magwood, I want to ask you about  38 certain portions.  If you'll turn, firstly, to the  39 Kaska Dena claim.  It's on page two.  40 A   Yes.  Are you with me there?  41 A   I am, yes.  42 Q   Okay.  Now, the first thing that you note on page two  43 in the full paragraph from the bottom is that the  44 description of the area here leaves a gap on the  45 boundary.  46 A   Yes.  There's a second gap, yes.  47 Q   It begins and ends at a different point, doesn't it? 20931  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 A   Yes, it does.  2 Q   Okay.  3 A   That's not on Exhibit 646, however.  4 Q   No.  But it is part of the description, isn't it?  5 A   Yes.  6 Q   And if you'll just go to page three here at the top of  7 the page, again dealing with this description that  8 you've given on the bottom of page two, and I quote:  9  10 "It is not clear whether it is intended to  11 include the watershed of the Liard at this  12 point or to just continue south along the  13 easterly bank of the Liard."  14  15 Now, that's an example of the ambiguities that you  16 were faced with in attempting to draw the descriptions  17 on a map as they were described to you?  18 A   Yes, it is.  19 Q   Now, carrying on in paragraph 3 you'll notice your  20 comment there in the indented portion:  21  22 "Although we have obviously crossed the Fort  23 Nelson River this is only implied in the  24 description."  25  2 6 A   Yes, that's my statement.  27 Q   Implied.  I mean, you take -- it is your work that  28 takes us across there, is it not?  29 A   No.  No.  It's the description that takes us across  30 there.  31 Q   However, they haven't told us we're going across there  32 in the description.  33 A   That's the fault I'm finding with it.  34 Q   All right.  35 A   In other words, to get to that watershed they describe  36 in the next paragraph of their description one has to  37 cross the river.  However, they didn't say that you --  38 Q   Cross the river.  39 A   -- Cross the river, nor did they tell you where you  40 should cross it.  41 Q   Or how you get across?  42 A   Right.  43 Q   Let me turn to page four, please.  This is dealing  44 with the description from Dewar Peak.  You see that?  45 A   Yes.  4 6 Q   And at the bottom your comment here begins  47 three-quarters of the way down page four.  The portion 20932  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 I'd like to refer you to is:  2  3 "This portion of the boundary from Dewar Peak to  4 Snow Peak follows the Arctic-Pacific Divide.  5 This portion of the boundary would be straight  6 forward except for the bracketed statement  7 which says some unnamed tributary lakes and  8 streams may be included or excluded.  These  9 lakes and streams will have to be specifically  10 described in order that the portion of the  11 boundary from 'a point North of Tucho Lake' to  12 'Snow Peak' can be adequately described."  13  14 Now, I take it here that either you had the option  15 to leave a gap or you had the option to draw a dotted  16 line because there is no specific description in  17 respect of that particular area, is there?  18 A   No.  I think my -- I was directed to draw a dotted  19 line where I was in doubt.  I think that's what I have  2 0 done.  21 Q   Here is a particular conundrum for you, is it not, Mr.  22 Magwood, where something more would have to be done  23 for you even to be able to draw a dotted line.  Is  24 that not the sense of what you're saying here?  25 A   I think the intention of the description calls for  26 expansion, if you like.  Although at a couple of  27 points smaller tributary lakes and streams are either  28 included or excluded.  I believe in order to make this  29 description complete at that point one has to grab the  30 parties involved and get them to say which creek and  31 lake it is and expand the description and then you  32 could make that a solid line rather than dotted.  33 Q   All right.  But what I'm suggesting to you, Mr.  34 Magwood, is that fortunately or unfortunately you  35 weren't in a position to do that.  All that you were  36 given was a particular description, and it seems to me  37 that -- and I'd like to suggest to you that the fact  38 that these -- the bracketed statement makes reference  39 to a main tributary, lakes and streams that may be  40 included or excluded significantly weakens that  41 boundary description even.  I'm suggesting it should  42 not have been dashed because of that weakness?  43 A   No.  Well, I think you're rewriting my instructions in  44 that case.  I was instructed where I was in doubt to  45 put it in dots or dashes.  I was certainly in doubt  46 there.  And I think you'll find that that line is  47 either dotted or dashed.  I can't see it from here. 20933  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 Q   All right.  Let me go to your next -- to the Tsimshian  2 Nation Land Claims, Exhibit 1018-7.  It's on page  3 five.  Now, this is in blue, is it not?  4 A   Someone has taken my map.  5 Q   I'm sorry.  It's the little one there.  I've taken it  6 from you.  I think you can confirm for me, Mr.  7 Magwood, if you can take that back --  8 A   Yes.  9 Q   -- The Tsimshian is in a dash and dotted blue line; is  10 that right?  11 A   Yes, it is.  12 Q   Now, I want to draw your attention to paragraph 2 on  13 page five.  And you say:  14  15 "then crossing the Skeena River at a creek  16 second above Oliver Creek on the Northwest side  17 of the Skeena River"  18  19 You say:  20  21 "This is unclear."  22  23 And then you describe the lack of clarity, and  24 then you said:  25  26 "My dashed blue boundary crosses the Skeena at  27 the mouth of the second creek above Oliver  28 Creek.  Only the creeks shown on my map on the  29 left bank of the Skeena River were counted."  30  31 My question to you is why did you make that  32 choice?  33 A  Why not?  I was in doubt.  And you'll see it's a  34 dashed line.  I described -- I suppose I believed the  35 intention was to count the creeks on the side of the  36 river that was Oliver Creek.  37 Q   Yes.  But that's a presumption you made.  You were  38 trying to read into the mind of the scriber of this  39 description and figure out what they were trying to  40 say, is that it?  41 A   Yes.  I had made a presumption, and a presumption I  42 suppose is a kind of supposed mind reading.  43 Q   Now, am I right in saying to you, Mr. Magwood, that if  44 you'd look at the boundary as it crosses at that point  45 where you've made your presumptions, as it passes to  46 the east it does not include the second creek north of  47 Oliver Creek? 20934  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 A   I believe the call says that that's where it crosses  2 the Skeena.  3 Q   Yes.  4 A   Then it calls for a particular watershed, is that not  5 correct?  I mean, I would have to read it again to be  6 sure.  7 Q   Yes.  It says:  8  9 "Taking in the watersheds, headwaters of Oliver  10 Creek".  11  12 A   The reason that I haven't included the second creek is  13 because it isn't called for in the next call on the  14 description.  If it intended to include the watershed  15 of the second creek above Oliver Creek I believe it  16 would have said so.  It didn't so I drew my dotted  17 line over until I came to just the watershed of Oliver  18 Creek.  19 Q   All right.  Again another assumption on your part?  20 A   Yes.  That's why it's dotted.  21 Q   Yes.  Thank you.  And then on number -- page six,  22 please, paragraph 4.  Here you refer to:  23  24 "Limonite Lake does not show on my map,  25 however, there are three small lakes at the  26 headwaters of Limonite Creek so I believe the  27 line is intended to continue across Telkwa  28 Pass."  29  30 Now, once again, where the line goes and how it is  31 to be drawn is your assumption in this respect?  32 A   Yes.  33 Q   Because you don't know what lake they're referring to  34 in that description?  35 A   No, I don't.  36 Q   If you look at the next one, paragraph 5.  37  38 "One cannot exclude the mountain range and  39 include the Kilnayakwa watershed."  40  41 And then you say:  42  43 "The watershed divide does exclude most of the  44 area of this 'Howson Range' so it is assumed to  45 be the intention."  46  47 Now, again, by the intention you're referring to 20935  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 the intention of the maker of the description?  2 A   Yes.  3 Q   And then you go to Pillar Peak.  It's just noted -- it  4 says "'thence to Pillar Peak Mountain'", but it  5 doesn't say how you get there?  6 A   I would have to reread that.  Doesn't it say something  7 about the watershed before that?  If you continue  8 around the watershed I believe you would come to  9 Pillar Creek.  I might be corrected on that.  10 Q   Well, it just says on page six:  11  12 "'thence Southeasterly to the second part of  13 the Bulkley Ranges but not including these but  14 following on the West side to the headwaters of  15 the Kitnayakwa River its watersheds'".  16  17 And then you express your assumption, and then you  18 say "'thence to Pillar Peak Mountain'", and you say  19 that's a readily identifiable feature.  And indeed it  20 is, but it doesn't say how you get there?  21 A   Yes, I suppose you're correct.  22 Q   And if you look down to the next item, paragraph 7:  23  24 "In order to get from Pillar Peak Mountain to  25 the headwaters of Clore Creek it is necessary  26 to cross the Burnie River."  27  28 And you'll see that the description you put in  29 quotes there:  30  31 "'thence to the watersheds and including the  32 headwaters of Clore Creek'".  33  34 And then your observation is:  35  36 "Where this crossing should be made is left in  37 doubt."  38  39 Well, it's more than doubt, you don't know where  40 to cross, do you?  41 A   No.  No, I don't.  I know that you have to get across  42 because of the next call, but not where.  And that's  43 why it's dotted again.  44 Q   All right.  Well, similarly on page seven, Mr.  45 Magwood, you have reservations expressed in paragraph  46 8 and paragraph 9.  You express where you think the  47 boundaries should run in paragraph 9.  And in 20936  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 paragraph 11 you'll note that you expressed:  2 "No Coal Creek could be found on the map in  3 vicinity."  4  5 And you've made an assumption -- assumption that  6 the makers of the description meant Coldwater Creek  7 and marked the dashed boundary according to that  8 assumption?  9 A   Yes.  10 Q   But, I mean, you have -- you have no basis for making  11 that assumption except for the fact that coal and cold  12 sound a little bit the same; isn't that right?  13 A   Yes.  Yes, that's quite correct.  That's why it's got  14 its line at that point.  15 Q   All right.  Thank you.  Now, again, Mr. Magwood, on  16 page eight at paragraph 13 you comment on the -- the  17 description:  18  19 "'thence a straight line to a point  20 approximately 33 kilometres Southwest of the  21 Old Terrace Bridge thence to the said bridge  22 crossing to the North side'".  23  24 Then you say:  25  26 "This above section of the description encloses  27 a long thin wedge of land extending some 20  28 kilometres to the Southwest.  It would seem  29 more likely that the intention was that this  30 read '3.3 kilometres Southwest'".  31  32 Well, you have no basis for saying that at all, do  33 you?  This is just what you think it is?  34 A   Every presumption is just what I think it is.  35 Q   Some presumptions are based a little bit more on  36 clues, are they not?  I mean --  37 A  Well, how does one make a presumption?  I'm not sure.  38 Q   Well, can you tell me how you made the presumption in  39 paragraph 13?  40 A   The 33 kilometres southwest of the Terrace Bridge --  41 Q   No.  42 A   -- Is a fairly definite point.  Now, the description  43 up to that point is dotted.  It could be faulty.  And,  44 in fact, the line that I drew leaves a long thin wedge  45 which describes the parcel of land that one seldom  46 sees.  Because it was so unusual and included no  47 features of discernable use I presumed that -- that it 20937  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 was not the intention of the description.  It's a  2 presumption.  By the way, it doesn't show on Exhibit  3 646 either.  It shows on my complete set of maps, I  4 believe.  5 Q   But when you come back onto 64 6 you've got it does  6 show, does it not?  7 A   Yes.  Just possibly the position that's 3.3 kilometres  8 from the bridge which shows.  9 Q   Is that in a dashed line there, Mr. Magwood?  I can't  10 make it out.  11 A   Yes.  12 Q   But it certainly should be, shouldn't it?  13 A   Yes.  14 Q   And you've got -- leading from the area of Terrace  15 you've got what is a straight line, you say, thence  16 back to the point of commencement, and you call that  17 unambiguous?  18 A   I think the description is a little more detailed than  19 what you've just said.  20 Q   Well, I'd like to suggest to you that it doesn't seem  21 to suggest to you that it doesn't follow any features  22 or any heights of land or any topographical point?  23 A   I'm not sure.  I think it says it goes from the bridge  24 to a peak.  Is that not correct?  25 Q   It may well be.  26 A  Which I presume to be a straight line or great circle,  27 or something.  28 Q   It says:  29  30 "thence to the said Bridge crossing it to the  31 north side, thence a straight line to Leanto  32 Mountain, thence continuing a straight line to  33 the headwaters of Hardscrabble Creek, thence a  34 line to and including Fiddler Lake, thence to  35 the Headwaters of Fiddler Creek its  36 watersheds."  37  38 A  M'hm.  39 Q   But what I'm suggesting to you is that those are peak  40 to peak reference points and they don't follow any  41 topographical feature between these points, do they?  42 A   I believe I have a straight line on the map.  43 Q   Yeah.  44 A   Yes.  If you say the boundary runs from one point to  45 another I --  4 6 Q   That's what you draw?  47 A   Unless you call it a curve and give the radius you're 2093E  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 talking about a straight line.   I guess as straight  2 as lines get on the earth anyway.  3 Q   Yeah.  All right.  Well, let me ask you now, Mr.  4 Magwood, to turn to page eight.  Are you still at page  5 eight?  6 THE COURT:  Are you still on the same one?  7 MR. RUSH:  No, my lord, I'm moving to the Kitsumkalum tribal  8 territory.  9 THE COURT:  We'll take the morning adjournment now.  10 THE REGISTRAR:  Order in court.  Court stands adjourned for a  11 short recess.  12  13 (PROCEEDINGS ADJOURNED)  14  15 I hereby certify the foregoing to be  16 a true and accurate transcript of the  17 proceedings herein to the best of my  18 skill and ability.  19  20  21  22 Peri McHale, Official Reporter  23 UNITED REPORTING SERVICE LTD.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 20939  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE REGISTRAR:  THE COURT:  MR. RUSH:  Q  MR.  Mr.  Order in court.  Rush.  A  Q  A  Q  A  Q  A  Q  A  RUSH:  THE COURT  MR. RUSH:  Q  A  Q  Again, Mr. Magwood, if you would please refer to the  report.  And I am directing your attention now to page  8 and the Kitsumkalum Tribal Territory as it is  described in this report.  In the first paragraph  under subsection C on page 8 you state:  "In the absence of other direction I took the  intention of this map as being an outline of  the watersheds of the Kitsumkalum and  Zymagotitz Rivers."  And later on you defined this map as a crude map --  Yes.  -- is that right?  And that's why you drew the  boundary for this particular area in a dashed line, is  that not the case?  Yes.  Mr. Magwood, if you look, please, at your tab -- let's  see, this would be --  Last page of Appendix 1.  This is Appendix 1.  I would like you to refer to the  second entry under Appendix 1 which is Exhibit 1018-7  which is document AG Canada 5427.  And if you look  from the second --  I am not with you yet.  All right.  Do you have the divider 1018-7?  And it's  document number 5427 in the upper right-hand corner?  Yes, I have it.  And I would like you to turn to the second page from  the end of that division.  Carry on.  Here we are.  Now, at the top of the page, my lord, it is entitled  "Kitsumkalum Aboriginal Claim".  Does your lordship  have that?  Yes.  Now, Mr. Magwood, I take it that in drawing your  dashed boundary you did not take into account the  description that is contained in paragraph 1 at  this -- in this document?  No.  I believe I went just with the map.  Right.  And particularily the words:  "Being the water  shed of the" -- well, perhaps the whole paragraph.  "We, the Tsimshian People of the Kitsumkalum  Tribe of British Columbia, are the rightful 20940  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 owners, users and occupants of the lands and  2 waters shown on the accompanying map."  3 And then it says:  4 "Being the watershed of the Kisumkalum River,  5 Zimagotitze River, Feak Creek, Port Essington,  6 as well as, certain lands and waters used  7 in-common on the Skeena River, Ecstall River,  8 Telegraph Passage, Grenville Channel, Edye  9 Passage, Chatham Sound and Work Channel."  10 Now, that passage was not taken into account by you,  11 is that not the case?  12 A   Yes, I don't believe I have seen it before.  13 Q   All right.  Because that description is completely  14 unmappable, is it not?  15 A   I would have to put a dotted line around what I  16 thought it was -- thought the intention was.  17 Q   Yes, I see.  You're saying it would be mappable then,  18 are you?  Are you saying that, that this  19 description --  20 A   I believe -- I believe my report says that none of  21 these were mappable.  22 Q   All right.  23 A  Were absolutely definable.  24 Q   All right.  In any event, that's a description you  25 didn't take into account when you considered the map  26 that was provided to you in Exhibit 1018-8?  27 A   I did not.  28 Q   Thank you.  Now, if you will turn, please, to page 9  29 and the description of the Tahltan Tribal Boundaries.  30 And if -- now, Mr. Magwood, you'll notice at  31 divider -- tab 1 of your report and divider Exhibit  32 Number 1018-9 this is Teit, T-E-I-T, on Tahltan and  33 Kaska Indians.  34 A   Yes.  35 Q   Do you see that?  36 A   Yes, I have that page.  37 Q   And you'll see in the next page, page 40 "Field Notes  38 on the Tahltan and Kaska Indians:  1912-15 by J. A.  39 Teit"?  40 A   Yes.  41 Q   Now, in drawing the description or mapping the lines  42 that you did with regard to the Tahltan boundaries,  43 did you take into account the whole of this document  44 that's to be found in this divider and is Exhibit  45 1018-9 for identification?  46 A   Yes.  I certainly read the whole document.  47 Q   All right.  What I would like you to do, then, is if 20941  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 you would please turn to page 52 where you have  2 provided -- where you have been directed previously.  3 And I direct your attention to the note at the bottom  4 of this page.  And I quote:  5 "I found it rather hard to get a full  6 understanding of the approximate boundaries of  7 the Tahltan, as some persons had a knowledge of  8 some but not of others.  There may have been  9 some changing or extension of boundaries within  10 the last 100 years in certain places owing to  11 trade and some changing of headquarters."  12 And then over to page 53:  13  14 "Boundaries are less well defined than / those  15 of / tribes further south, because / the  16 Tahltan were? / more nomadic and / had / no  17 real permanent villages formerly.  Also certain  18 families through intermarriage with neighbors,  19 especially in the east and west, appear to have  20 ranged over and used territory of both tribes."  21 Now, did you take that note into account when you drew  22 the boundary description for the Tahltan on your map  23 1177-2?  24 A   Certainly I read it all.  I believe the part of the  25 description that I endeavored to put on the map came  26 from the -- that part of the paragraph about that.  27 Q   Well, I understand that.  But given the note, Mr.  28 Magwood, aren't those significant qualifications about  29 the reliability of even the solid portion of the line  30 that you placed on the exhibit?  31 A   He is saying he has some doubt in certain areas as --  32 as to the bounds of the tribal territory.  He doesn't  33 say which areas in that note.  I have some doubt as  34 well.  35 Q   But, Mr. Magwood, I would like to suggest to you that  36 the first sentence of the note suggests that the whole  37 of the boundaries are in question.  38 "I found it rather hard to get a full  39 understanding of the approximate boundaries of  40 the Tahltan, as some persons had a knowledge of  41 some but not of others."  42 MR. WILLMS:  Well, I object, my lord.  What my friend is really  43 asking is whether the witness did some sort of  44 anthropological interpretation of this rather than  45 just making a metes and bounds description and putting  46 it on a map, and that is really for argument.  My  47 friend can argue later on that that no matter what Mr. 20942  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1  2  3  4  5  6  7  THE COURT  8  9  10  11  12  13  MR. RUSH:  14  Q  15  16  A  17  18  19  20  Q  21  22  23  24  25  26  A  27  28  29  30  Q  31  A  32  Q  33  34  A  35  Q  36  37  38  39  A  40  41  Q  42  43  44  45  46  47  A  Magwood thinks about his line when you read all of  Teit and bring the anthropology to bear on it that  perhaps what Teit noted wasn't very accurate.  But  that is neither here nor there with respect to what  this witness is doing.  In my submission, it is just  argument.  : Well, it may have an argumentative flavour to it,  Mr. Willms, but I think counsel is entitled to explore  within reason what the witness has taken into account.  I am not sure he is doing much more than that. If the  witness didn't take it into account presumably he will  say so.  I think you may proceed, Mr. Rush.  But here, Mr. Magwood, you say that you did take it  into account, correct?  Well, I don't believe I took that note into account  when -- as I said before, that outline part of the  paragraph above it is what I followed as I drew the  line on the map.  Yes.  I understand.  But what I am saying to you as  someone who has to determine the reliability of the  description that's given on page 52, certainly it is a  factor for you to take into account what the author  him said -- himself says about the reliability of the  information provided, is that not the case?  Yes.  He says that he found it rather hard to get a  full understanding.  I underlined the "full" because  he -- that to me is saying he is in some doubt as to  parts of it.  He didn't know the full boundary.  Correct.  So I am in some doubt about some parts of it as well.  But you don't know if the parts that you are in doubt  about are the same one that he is in doubt about?  I have no idea.  And that's why I suggest to you, Mr. Magwood, that it  isn't a fair representation by you to place a solid  blue line anywhere on the map respecting the Tahltan  territory.  I am not sure that that was a question.  You don't  think that I should have put a solid line anywhere?  That's right.  Because you've said all the way along  that where there is doubt you put in a dashed or  dotted line.  And I would like to suggest to you that  that note raises the very doubt which should have led  you to place a dashed line where you, in fact, placed  the solid line in respect of the Tahltan territory.  I think the calls in the description are quite 20943  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  This  Now,  THE  THE  THE  THE  THE  THE  A  COURT:  WITNESS  COURT:  WITNESS  COURT:  WITNESS  definite in the places where I put solid lines.  Well, the one I would like to draw your attention to  on page 52, Mr. Magwood, is the one that starts -- and  I believe that portions of this have been read to you.  Six lines, seven lines down beginning with the word  "continuing"?  Yes.  is page 52, and I am quoting:  "Continuing, their boundary followed the  watershed between the Skeena and Nass Rivers to  about latitude 56, (its) most southern point.  Thence their line ran west crossing the upper  Nass somewhere near the mouth of Cottonwood  Creek, reaching the Cascades again somewhere  near the heads of Bear and Salmon Rivers."  Mr. Magwood, I am particularily directing your  attention to the solid line in respect of the  language:  "The watershed between the Skeena and Nass  River to about latitude 56."  Now, I would like to suggest to you that that is  language which is uncertain language and that the  southern boundary latitude 56 is not a boundary that  is easily identifiable.  Yes, I explained that before.  Certainly Cottonwood  Creek wouldn't be found.  And the headwaters of the  Bear River is certainly not a definite identifiable  geographic feature.  My line is dotted through those  areas.  Yes.  But what I would like to suggest to you is that,  in fact, it should have been dotted from where you  started in the upper right-hand corner where it meets  the red lines all the way across to where you begin  the dotted line at 56 which you say, I take it, is  latitude 56?  I believe that the -- he described the watershed that  I have shown solid is a definite identifiable  geographic feature.  What is the solid curved line supposed to represent?  Where I didn't have any doubt, my lord.  I'm sorry, this one with arrows where you've got --  The red one, Kitwancool.  Yes, below the plus or minus 70 miles?  The written description, my lord, took me 70 miles  to the east.  The next call is to some mountains which  I believe divide -- well, very shortly after that in  the description there on to the watershed of something  called Moonlight Creek, I believe, or is it the other 20944  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  way around?  The map says Moon Creek and the other  says Moonlight.  In other words, from 70 miles to the  east you don't -- there is nothing in the description  that leads you back to where you have to get to end at  the beginning of it.  I don't know if that was very  clear.  THE COURT:  No, I am not following that.  Tell me again, please.  This line here --  THE WITNESS:  Yes.  The written description took me to this  point.  THE COURT:  Yes.  THE WITNESS:  The next thing I could identify was — I am  talking about what I believed to be this lake.  This  creek's watershed.  In other words, there was nothing  in the description that took me from this point to  this point.  THE COURT:  You've got 7 0 miles to the east and now you've got  to get back to the west some way.  WITNESS:  Some way.  Yes.  And I was unclear as to how to do that.  Thank you.  THE  THE  THE  THE  MR.  COURT:  WITNESS  COURT:  RUSH:  Q  THE  MR.  Well, there was no description getting you back there  at all, was there?  A   No.  Q   And the lines that you've been referred to there, Mr.  Magwood, are the Kitwancool depictions, is that not  right?  A   That's correct.  COURT:  I'm sorry, the Kitwancool?  RUSH:  Kitwancool descriptions or depictions.  Your  lordship's questions were with regard to the  red-orangish line, plus or minus 70 miles.  That was  one version of the Kitwancool description given to the  witness.  THE COURT:  Is that description on page 52 a Kitwancool  description?  RUSH:  No, my lord, that is Tahltan on 52.  COURT:  That's what I thought.  So which is the Kitwancool  in this context?  MR. RUSH:  Well, your lordship asked about that red-orangish  line plus or 70 miles?  COURT:  Yes.  RUSH:  That is one version of the Kitwancool --  COURT:  All right.  Thank you.  RUSH:  -- description which the witness has alluded to.  MR.  THE  THE  MR.  THE  MR. 20945  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  Okay.  1  THE COURT  2  MR. RUSH:  3  Q  4  5  6  7  8  9  A  10  Q  11  A  12  Q  13  14  15  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  23  24  25  A  26  Q  27  28  A  29  Q  30  31  32  33  A  34  Q  35  36  37  38  39  40  41  42  43  44  A  45  46  47  Confirm for me, Mr. Magwood, if you will, that the  yellow line shown on Exhibit 1177-2 and its half-size  version 1177-3 is the dashed line -- is dashed  throughout and is intended to depict the  representations of the area on Exhibit 1018-10 which  is the Nishga Tribal Council area.  Yes, it is.  I've lost my page again, though.  Yes.  Well, your page reference there is page 10.  Yes.  Now, I would like to take you to page 11, please, and  I will go to the Kitwancool area.  And you were  provided with two descriptions of that area; is that  correct?  I was provided with a written description and a map.  And a map?  And a map referred to in that description.  Right.  I got the map some time later.  Right.  And the -- I take it that the two -- the  dotted orange line on this map or dotted orange-red  line on this map is intended to show the map  description?  Yes.  And the other dashed orange line is intended to show  the written description that you were given?  It's the best I could do with the written description.  Yes.  On page 11, Mr. Magwood, you'll notice that the  bottom in paragraph 4 "Git-kse-dzouou",  G-I-T-K-S-E-D-Z-O-U-O-U.  The position of that place  was never provided to you, was it?  No, it wasn't.  And the question that I would like to ask on page 12  is you'll see in paragraph 5 the description that was  provided to you:  "and continuing so that Kin-sk-uch Lake and  Kin-sk-uch River are situated inside the  Kitwancool territory."  In terms of the direction that you were to continue, I  would assume from that that you would continue in a  westward direction, would you not, given the previous  call?  No, I don't believe so.  I don't think it has any  direction associated with it.  I presumed that if they  had wanted more than the watershed of that river and  lake they would have directed the description to go 20946  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 further to the west.  As they didn't, I went to a  2 point that was indeed the westerly extension of what  3 they had said had to be included in the described  4 area.  5 Q   All right.  The river Gis-am-melded on page 12,  6 G-I-S-A-M-M-E-L-D-E-D, that was never described for  7 you, was it not?  8 A   The river?  9 Q   Yes.  10 A   No, it was not.  However, when I got the map I believe  11 it became clear.  I have a feeling I would have to  12 check it.  13 Q   Yes.  14 A   But I have a feeling that that is on the map.  15 Q   Yes, it is.  16 A  Which is Survey Creek on this map, I believe.  17 Q   Well, if you just turn to what you were subsequently  18 given by Mr. Willms, and look at the map that you were  19 provided.  2 0 A  Mh'm.  21 Q   It's the very last page before we begin tab 2, and  22 it's Exhibit 383 Gis-sa-am-maldid is located on that  23 map, is it not G-I-S-S-A-A-M-M-A-L-D-I-D?  24 A   Yes, it is.  25 Q   And that is not the Bell-Irving River, is it?  26 A   No, it's not.  27 Q   And having seen that on the map that was subsequently  28 provided to you, it seems that you did not change your  29 description on -- as a result of -- as a result of  30 seeing that on your initial description of the written  31 depiction given to you?  32 A   No, I didn't change it.  I should point out possibly  33 that these were two independent endeavors.  Certainly  34 if I had had -- well, I followed the written  35 description as best I could with the dashed -- with  36 the dashed boundary shown on there.  When I got the  37 map at a later date I circumposes it, but I didn't  38 change what I had done in the initial endeavour.  39 Q   All right.  But -- well, since the whole thing is in  40 question because of your dashed and dotted lines, I  41 suppose that this one matter isn't that significant  42 overall.  But it certainly would have changed even  43 your dashed and dotted line, would it not, with that  44 additional information of the location if  45 Gis-am-melded  46 A   I believe one would have difficulty with the  47 description in one hand and the map in the other 20947  J.M. Magwood (for Province)  Cross-exam by Mr. Rush  1 making sense of the two documents.  2 Q   Yes.  Page 13, Mr. Magwood, please, paragraph 10.  You  3 talk about the 70 miles east, that's that long dashed  4 line to a hanging point out to the east that you've  5 described on the --  6 A   Yes.  7 Q   -- 1177-2.  And then you talk about other  8 possibilities there.  I want to refer you to paragraph  9 11.  It says:  10 "and then the boundary line following the ridge  11 of mountain called 'leap-ha-haedquid'."  12 L-E-A-P-H-A-H-A-E-D-Q-U-I-D.  Now, that feature was  13 never identified to you, was it?  14 A   No, it wasn't.  15 Q   All right.  And you express your other assumptions  16 there.  And you state finally on page 14 with regard  17 to this Kitwancool dashed line, Mr. Magwood, paragraph  18 14, second portion of that quote:  19 "As you can see I have drawn the whole of the  20 Kitwancool Territory in long dashed lines and  21 have left several gaps in the boundary.  There  22 are uncertainties on every course of the  23 description and there is no obvious way to get  24 from the last described point to the next."  25 I'm sorry:  26 "...and where there is no obvious way to get  27 from the next obvious line to the next I have  28 left a gap."  29 Now, I want to ask you, Mr. Magwood, if that statement  30 applies to this area which is apparently like a  31 balloon area covering this watershed on 1177-2 as part  32 of that description where you have left a gap?  33 A   No.  I don't think that was one of the gaps that I was  34 referring to.  35 Q   So that's in addition to the other gaps that you  36 referred to in that description?  37 A   Yes, I guess it is.  38 Q   And, Mr. Magwood, again referring to the map that you  39 were provided with respect to the Exhibit 383, it is  40 the last page in tab 1.  Do you have that map in front  41 of you?  42 A   Yes, I have.  43 Q   You'll agree with me, Mr. Magwood, that there are no  44 identifiable topographic features on any of the points  45 of the boundary depiction given on that map?  46 A   Yes, I believe you're correct.  Possibly with the  47 exception of Git-kse-dzozqu which may be a village 2094E  J.M. Magwood (for Province)  Re-exam by Mr. Willms  MR.  A  RUSH:  that people could identify.  It is not on my map, but  it may be an identifiable feature.  All right.  Except for that exception my proposition  is correct, is it not?  Yes.  G-I-T-K-S-E-D-Z-O-Z-Q-U.  Thank you, Mr. Magwood,  those are my questions for you.  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  RE-EXAMINATION BY MR. WILLMS:  Q   I have got a minor point, my lord, and I don't know if  anything will arise out of this.  Can you turn to page  14 of Exhibit 1177, part 4.  You will see at the  bottom you've listed the exhibit numbers 1018-6 all  the way through to 1018-11.  You have also mapped  Exhibit 1813 as well, the Kitwancool map?  A   Yes.  RUSH:  And I wonder if you could add on 1018-11 just add in  the report "and Exhibit 383".  COURT:  I'm sorry, where is that, please?  WILLMS:  It is three lines from the bottom of the page, my  lord, right after number 11.  COURT:  Which page?  I was looking at page 11.  WILLMS:  Page 14.  COURT:  Yes.  WILLMS:  So that after 1018-11 would be added "and Exhibit  383".  COURT:  Thank you.  WILLMS:  And I don't have any re-examination.  COURT:  All right.  Thank you, Mr. Magwood, you are excused.  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  (WITNESS EXCUSED)  MR. WILLMS:  My lord, there were two -- as my friend pointed out  from the beginning, two of the documents were marked  for identification initially.  And one of them I  think, and had I known at the time I probably would  have structured the exhibit differently.  But Exhibit  1018-11 For Identification which is reproduced at  Appendix 1 is merely a portion of Exhibit 439 which is  the Kitwancool Comprehensive Claim.  Exhibit 439 is an  exhibit in these proceedings.  All 1018-11 is an  extract from something that is already an exhibit.  So  it is my submission that there is no reason why it  should not be an exhibit for the same purposes as  Exhibit 439.  It doesn't need to be for identification  THE COURT  anymore.  Mr. Rush. 20949  Proceedings  1 MR. RUSH:  I would like to confirm that, my lord.  And if that  2 is so and that is an exhibit we may well withdraw the  3 objection.  4 THE COURT:  All right.  5 MR. WILLMS:  The second point is —  6 MR. RUSH:  Well, my lord, before my friend goes on to argue this  7 point, I am not ready to argue this now.  I feel that  8 possibly what he is going to refer to is the point in  9 the transcript where I made the objection.  And what I  10 would like to do is to have a look at that objection.  11 I recall it in vague terms.  It was during Miss  12 Albright's testimony.  Perhaps when I have done that I  13 can make my argument with regard to it if I feel it is  14 still relevant.  15 MR. WILLMS:  Well, it might help my friend if he knows exactly  16 why I say it should be marked and that might make it  17 simpler for him.  Because all that the exhibit which  18 is 1018-9 For Identification, all that that exhibit is  19 is a reference from Miss Albright's report which has  20 been marked by my friend as Exhibit 858.  And if my  21 friend goes to page 10 he will find the same  22 description that the witness mapped in a little  23 shorter version.  He will find the same description on  24 page 10 of Exhibit 858 as the witness took from  25 Exhibit 1018-9.  And he will also see a reference to  26 at a time at 1956 which is -- and pages 50 to 53 which  27 is Exhibit 1018-9P.  But if my friend wants to argue  28 that at a later time I am content to wait.  2 9 THE COURT:  All right.  Thank you.  30 THE COURT:  Ready to proceed, Mr. Goldie?  31 MR. GOLDIE:  Yes, my lord.  Mr. Williams, will you also bring  32 with you volume 1, please.  33 THE REGISTRAR:  Mr. Williams, may I remind you you are still  34 under oath?  35 THE WITNESS:  Yes.  36 THE REGISTRAR:  And will you state your full name for the  37 record, please?  38 THE WITNESS David Ricardo Williams.  39 THE REGISTRAR:  Thank you, sir.  40  41 David Ricardo Williams:  Resumed  42  43 MR. GOLDIE:  My lord, I am going to hand up two typescripts.  44 Yes, there are two there.  Under tab 9C of volume 1,  45 my lord, is the despatch of Mr. Birch to the Earl of  46 Carnarvon.  There is a print of that despatch at the  47 very last page under tab 9C.  But that's confined to 20950  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Mr. Birch's despatch.  2 THE COURT:  Yes.  3 MR. GOLDIE:  And as I noted yesterday, my lord, there are two  4 enclosures, both to Mr. Elwyn, one to the colonial  5 secretary of the 4th of September 1866.  The other is  6 an undated report to the chief commissioner of Lands  7 and Works.  What I am -- and the first of those  8 immediately follows Mr. Birch's despatch.  It is  9 handwritten.  It is identified by number 194 in the  10 upper right-hand corner.  11 THE COURT:  Yes.  12 MR. GOLDIE:  The first of the tabs which — the first of the  13 typescripts which I have handed up is a typescript of  14 that particular despatch.  And then there begins the  15 undated one at page 198.  And the second of the two is  16 that document.  The second of the two typescripts is a  17 typescript of that particular document.  This has now  18 passed -- these typescripts have now passed under the  19 eyes of a number of people.  And with only a few  20 exceptions, I believe them to be reasonably accurate  21 typescripts.  I would suggest perhaps, my lord, that  22 the two typescripts might follow the last page which  23 is a typescript of Mr. Birch's despatch.  24 THE COURT:  All right.  Any objection?  2 5 MR. ADAMS  2 6 THE COURT  I have no objection, my lord.  All right.  Those two documents can be added to tab  27 9C in the first volume of Mr. Williams' documents.  28  29 EXAMINATION IN CHIEF MR. GOLDIE CONT.:  30 Q   Before proceeding onwards, Mr. Williams -- before  31 proceeding onwards where we were with volume 2  32 yesterday I want to have you keep volume 1 in front of  33 you.  I would like you to assist me in this respect.  34 A number of these documents are -- you have identified  35 the sender and the recipient by their title and their  36 occupation.  A number of the documents are, of course,  37 self-evident, that is to say newspaper articles, the  38 three ordinances relating to the telegraph line, Mr.  39 Morrison's diary and the correspondence of the Western  4 0 Union Company between the engineering and the  41 assistant engineer and others.  But I would like you  42 to identify for me those which were -- those of the  43 senders which you can identify as Dominion or  44 Provincial officials.  And of those which of the  45 documents constitute, in your opinion, reports of such  46 officials to their superiors in the course of their  47 duties. 20951  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Now, taking, for example, the first document under  2 tab 1 and a similar document under tab 2a Downie to  3 Douglas.  We have, of course, Douglas being the  4 governor.  Can you tell us the character of the two  5 reports and in what capacity the -- they were sent?  6 A   Downie had been engaged by the governor to conduct  7 this exploration.  And his two reports are his reports  8 to the governor of his exploration.  They are really,  9 I guess, official documents.  They are written to --  10 as a result of his exploration pursuant to  11 instructions he had received.  12 Q   Right.  Thank you.  Then there is the -- there are two  13 columnist articles.  We need not detain ourselves over  14 that.  Mr. Humfreys' diary.  But under tab 2d the last  15 of the documents under that tab I think you identified  16 the publication as a British Columbia paper.  And you  17 identify Mr. Humfreys as one who was exploring in  18 relation to a trail; is that correct?  19 A   Yes.  Under instructions from the commissioner of  20 Lands and Works, chief commissioner of Lands and  21 Works.  22 THE COURT:  What are you looking at now?  Are you looking at the  23 last --  24 MR. GOLDIE:  The last document under tab 2d, my lord.  25 THE COURT:  Which is after the last pink sheet, is it?  26 MR. GOLDIE:  After the last pink sheet.  27 THE COURT:  And where in that document?  28 MR. GOLDIE:  And your lordship will see at page -- starting at  29 page 49 in the upper right-hand corner.  30 THE COURT:  Yes, all right.  31 MR. GOLDIE:  Late Town Cassiar, August 28, 1874.  32 THE COURT:  Yes, I have it.  33 MR. GOLDIE:  And that carries through and is signed by William  34 Humfrey.  35 THE COURT:  And he was also on the voyage of exploration  36 requested by the governor?  37 THE WITNESS:  By the governor, yes, my lord.  38 MR. GOLDIE:  39 Q   And under 2f there is a handwritten document which you  40 identified as being a report by one Walsh addressed to  41 the Honourable Minister of Mines?  42 A   Yes.  43 Q   Can you tell us anything about that?  44 A   I have not seen the instructions.  But underlying that  45 this is a report by Walsh to the Minister in which  46 there was an agreement to prospect.  So there  47 obviously had been some instructions from the Minister 20952  D.R. Williams (for Province)  In chief by Mr. Goldie  1 of Mines to conduct this survey.  He is reporting on  2 the outcome of that to the Minister.  3 Q   Under tab 9a there is a document which is from Mr.  4 Elwyn to the Honourable The Acting Colonial Secretary  5 from Fraser Lake of the 5th of July, 1866.  You have  6 identified Mr. Elwyn as a magistrate accompanying the  7 Overland Telegraph work parties.  From the -- from  8 your researches, are you able to say whether these  9 documents were prepared by Mr. Elwyn in the course of  10 his duties?  11 A   Yes.  12 Q   And same thing with respect to the document under tab  13 9b?  14 A   Yes.  15 Q   And under tab 9c we have, of course, the despatch from  16 the Acting Colonial Secretary, Mr. Birch, to the  17 Colonial Office.  And the two -- to which is attached  18 the two accounts of Mr. Elwyn?  19 A   Yes.  20 Q   And I need not -- those -- the despatch from Birch to  21 the Colonial Office is one that is made in the  22 discharge of Mr. Birch's duties?  23 A   Yes.  24 Q   And the ordinances that we find under tabs 11, 12 --  25 10, 11 and 12 we need not concern ourselves with.  26 Then under tab 13a you've identified this, I believe,  27 as instructions from Mr. Pearse who is the chief  28 commissioner of Lands and Works?  29 A   Yes.  30 Q   To Mr. Dewdney who was an employee of the Colonial  31 Government at that time?  32 A   I'm not sure that he was an employee of the Colonial  33 Government, but he was directed for this purpose to  34 visit the Skeena region.  35 Q   Right.  And he was also a justice of the peace?  36 A  A justice of the peace.  37 Q   And then under tab 13b we have the first of Mr.  38 Dewdney's reports to Mr. Pearse as the assistant  39 surveyor general?  40 A   Yes.  41 Q   I think I characterized him as the chief commissioner  42 of Lands and Works?  43 A   Frankly, I am not sure whether at that time he was the  44 chief commissioner of Lands and Works or the minister  45 general.  But he was part of the apparatus of  4 6 government.  47 Q   And Mr. Dewdney's reports of May 20, 1871.  And under 20953  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)  In chief by Mr. Goldie  tab 13b including the sketch map and the copy of the  notice posted at Hazelton, were those, from your  research, made in the course of Mr. Dewdney's official  duties?  A   Yes.  Q   And the correspondence under 14b from Mr. Hankin and  Mr. Cummingham is to the chief commissioner of Lands  and Works.  And I refer you only in that regard to the  tab 14c.  A   Yes.  Q   The second letter which is signed by Mr. Pearse  addressed to one Lumley Franklin of the 20th of April,  1871.  Is that document part of the official  correspondence of Mr. Pearse?  A   Yes.  I see that the first document in that tab is a  letter from Franklin to the chief commissioner of  Lands and Works.  And so that Pearse must have at that  time been the chief commissioner of Land and Works,  not the surveyor general.  THE COURT:  I'm sorry, I am looking at 14b?  MR. GOLDIE:  No.  There is nothing in 14b that is of an official  character as far as I'm aware, my lord.  THE COURT:  All right.  Where are we?  14c.  All right.  Thank you.  MR. GOLDIE  THE COURT:  MR. GOLDIE  Q  I shouldn't say nothing of an official character.  There are letters addressed by Hankin and Cunningham  to the chief commissioner of Lands and Works.  But  Hankin and Cunningham were private citizens, is that  not correct, Mr. --  A   Yes.  The correspondence is on government business.  Q   Yes.  And -- but under 14c I am directing your  attention particularily to the second document.  I  think you told me that that letter by Mr. Pearse or a  copy of a letter by Mr. Pearse is part of the official  correspondence of his office?  A   Yes.  Q   All right.  The -- and then under tab -- the under tab  15a is, of course, the photocopies of the 1881 census;  is that correct?  A   Yes.  Q   And then under tab 15b is a letter from Mr. Allen  Graham.  I think you identified him as a stupendory  magistrate?  A  And gold commissioner.  Q   Right. 20954  D.R. Williams (for Province)  In chief by Mr. Goldie  1 A  At the time.  2 Q   And in his address to the Honourable, The Provincial  3 Secretary.  And from your knowledge of these files,  4 was that document written by him in his official  5 capacity reporting to his superior?  6 Alt was .  7 Q   That includes a copy of a letter from **Mr. Tomlinson,  8 of course.  It also includes, and is the last document  9 on that page, Mr. Graham's recapitulation of the  10 Indian population of the 31st of December, 1885?  11 A   Yes.  12 Q   All right.  Well, let's go now back to volume 2.  And  13 we had been looking at the population estimates of the  14 claims area.  And I think we had -- you had completed  15 consideration of tab 17a which was Mr. Fitzstubbs'  16 letter to the Honourable, The Minister of Mines.  And  17 I think you have told us that Mr. Fitzstubbs was -- as  18 well as being a gold commissioner was a stupendory  19 magistrate?  20 A   Yes.  21 Q   And in this letter he is reporting to the Honourable  22 Minister of Mines.  Is it your understanding that that  23 is an official part of his correspondence?  24 A   Yes.  25 Q   Under tab 17b you have a -- and I think you have  26 explained this to us, you have a petition of people in  27 Hazelton that wish to be able to vote without having  28 to go to the coast; is that correct?  29 A   Yes.  30 Q   Under tab 17c you have Mr. Langley letter to the  31 superintendent of provincial police of August 9, 1898.  32 Is that from your knowledge of Mr. Hussey's files, is  33 that a report made by Langley in the course of his  34 duties?  35 A   Yes.  He went up to Hazelton at the request of the  36 superintendent of police.  37 Q   That's Mr. Hussey?  38 A   Yes.  39 Q   Yes.  17d you had Mr. Fitzstubbs' letter this time in  40 his capacity as a stupendory magistrate addressed to  41 the attorney general.  How would you characterize that  42 document?  43 A   That was a report by him.  He signs it as a stupendory  44 magistrate.  45 Q   All right.  Thank you.  46 A   To the attorney general, his superior on government  47 business. 20955  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Q   In your report you state at page 10 that:  2 "There are no reliable estimates for population  3 in the Francois Lake and Ottsa Lake areas.  In  4 1908, the white population was estimated at  5 75,"  6 et cetera.  What documents do you wish to refer his  7 lordship to in respect of those matters?  8 A  Well, at tab 17e there is an extract from the Omineca  9 Herald, which was the newspaper published in Hazelton  10 at that time, dated November 28, 1908 which has a  11 survey of sort of the comprehensive article on the  12 district.  And at the third page of the tab under the  13 left-hand column, my lord, under the heading of  14 Francois and Ootsa Lake District, the newspaper  15 states:  16 "At the present time there are about 75  17 settlers in the vicinity of Francois and Ottsa  18 Lake.  They are deserving of much credit for  19 what they have accomplished so far."  20  21 Q   All right.  22 A  And then —  23 Q   Sorry, go ahead.  24 A   On the 31st of May at tab 17f the letter of the 31st  25 of May of 1910 from James Maitland-Dougall who at the  26 time was the chief constable of Hazelton reporting to  27 his superior Mr. Hussey, the superintendent.  He says  28 at the end of the first paragraph, my lord, on the  29 first page of the letter he is discussing the  30 appointment of a JP.  And he says:  31 "About 40 settlers settled in the Ootsa and  32 Francois Lake District last winter and there  33 are about 30 Indian families scattered about in  34 that section."  35 Q   All right.  Thank you.  In your report at page 10 you  36 give your estimates for the Indian population in and  37 around Hazelton.  Your conclusion was that there be  38 about 1,700 around Hazelton in 1881, that it had  39 dwindled sharply as a result of the measles epidemic  40 in 1887?  41 A   Yes.  Out of that figure of 1,700 would now have to be  42 taken -- excluded the Kitwancool figures.  43 Q   Oh, yes.  All right.  44 A   They are included in that figure of 1,700.  45 Q   And then you comment on the increase in the population  46 as a result of the construction of the Yukon Telegraph  47 line and later, the railway.  That's the Grand Trunk 20956  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Pacific?  2 A   Yes.  3 Q   That went to Prince Rupert?  4 A   Yes.  5 THE COURT:  When was the Yukon Telegraph built?  6 THE WITNESS:  It was completed in 1901 I think, my lord, it was.  7 MR. GOLDIE:  8 Q   That was the Dominion's completion of the Telegraph  9 line from where the Collins' line ended or --  10 A   Yes.  The dominion government took over the -- in  11 essence took over the abandoned -- well, it wasn't  12 abandoned.  I think it was ceded to the Dominion  13 Government.  And, ultimately, they constructed  14 themselves a telegraph line following generally the  15 line of the Collins'.  16 THE COURT:  All right.  And the —  17 THE WITNESS:  From Quesnel —  18 THE COURT:  The railway wasn't until 1910?  19 THE WITNESS:  Beg your pardon?  2 0 THE COURT:  The railway?  21 THE WITNESS:  It I think was completed I think it must have been  22 1912 that the entire section was completed.  1912 or  23 1913 I think the first train went into New Hazelton.  24 I have just forgotten the exact date, but it was about  25 then.  26 MR. GOLDIE:  The construction, of course, preceded that by a  27 considerable period?  28 THE WITNESS:  By some years, yes.  29 THE COURT:  Yes.  All right.  Should we adjourn until 2 o'clock,  30 please.  31 MR. GOLDIE:  Thank you, my lord.  32 THE REGISTRAR:  Order in court.  Court stands adjourned until 2  33 o'clock.  34 (PROCEEDINGS ADJOURNED UNTIL 2 O'CLOCK)  35  36  37 I hereby ceritify the foregoing to be  38 a true and accurate transcript of the  39 proceedings herein to the best of my  40 skill and ability.  41  42  43  44 LISA FRANKO, OFFICIAL REPORTER  45 UNITED REPORTING SERVICE LTD.  46  47 20957  D.R. Williams (for Province)  In chief by Mr. Goldie  1  (PR'  2  3  THE  COURT:  4  MR.  GOLDIE  5  Q   1  6  7  8  9  A  10  Q  11  12  13  A  14  15  16  17  THE  COURT:  18  MR.  GOLDIE  19  THE  COURT:  20  MR.  GOLDIE  21  22  THE  COURT:  23  MR.  GOLDIE  24  Q  25  26  27  A  28  Q  29  THE  COURT:  30  MR.  GOLDIE  31  Q  32  A  33  Q  34  35  A  36  Q  37  38  39  40  41  A   '  42  43  44  45  46  Q  47  A  (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  Mr. Goldie.  Mr. Williams, we had got to tab 17g in volume number  two, which is Mr. Loring's report to the  Superintendent General of Indian Affairs for July the  15th, 1901?  1901.  And rather than subjecting ourselves to Mr. Loring's  handwriting perhaps you can tell us what his total  numbers are for the bands that he's reporting on?  Amongst a variety of other matters, my lord, he gives  the population figures for the various villages within  his agency, and specifically the population figures  for the bands within the claim area.  Are you on 17g?  :  Yes, my lord.  Whereabouts, please?  :  The population numbers he reports on each band  separately.  Yes.  And on the page one, for instance, there's Kitwanga, I  think it is, Indians, and over the page he gives a  number.  Not Kitwanga, that's Kitwan -- Kit --  I make it Kitwanga.  Yes.  All right.  Is that what it says?  On page two isn't it Kitwanga?  Page two stamped number 507?  Yes.  And then he has a section "Vital Statistics"  followed by the words "The population is 148"?  Yes.  Now, he does that with each of the others, and without  going into them in individual detail can you give his  lordship the number of the Gitksan bands and the  Hagwilget that he's reporting on, with the exception  of Kitwancool?  Well, the pages, my lord -- rather, at least the bands  within the claim area which he reports run up to stamp  number page 520, and he reports on the villages  starting with Kitwanga.  The total as I make it of all  these villages, leaving out Kitwancool, is 1,318.  All right.  Thank you.  And that —  There were 64 at Kitwancool, but I've taken that out. 2095E  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Q   And that includes Moricetown and Hagwilget?  2 A   Yes.  Yes.  3 Q   All right.  Thank you.  Now, in your report at page 11  4 you next consider employment, and you make reference  5 there to the Collins Overland Telegraph, and you state  6 that:  7  8 "Indians in the claim area were employed or  9 participated in the economic activities of the  10 white man."  11  12 And I just want to pick up some of the documents  13 that you refer to in that regard.  14 A   Yes.  15 Q   Firstly, I should note that you make reference in the  16 paragraph that I read from your report to:  17  18 "In the later rush in the Omineca in 1897,  19 Indians mined on their own account as well as  2 0 being employed."  21  22 And I take it you identify those who mined on  23 their own account by reference to free miner's  24 licenses?  25 A   Yes.  26 Q   And under tab 18a you have what?  27 A   This is an extract from the volume in the Department  28 of Mines which recorded the issue of free miner's  29 certificates.  30 Q   Yes.  31 A   They're called for the years starting with 1998, June  32 of 1998.  33 Q   And in that -- in that extract how many Indian names  34 were you able to identify?  35 A  Well, in this particular extract at this tab there are  36 at least three that I can identify as having come from  37 the claim area -- three Indians from the claim area.  38 Q   M'hm.  39 A   Elsewhere in the material there are references to  40 other Indians whom I'm unable to identify as from the  41 claim area.  Tab 18a the face page, the first page,  42 the lead entry there is David Hagwilget or Acquilgate.  43 Q   Yes.  44 A  And just —  45 THE COURT:  I'm sorry.  18a?  46 MR. GOLDIE:  Yes, my lord.  The first entry on that page.  47 A   Yes. 20959  D.R. Williams (for Province)  In chief by Mr. Goldie  1  THE  COURT:  2  3  MR.  GOLDIE  4  ]  5  THE  COURT:  6  MR.  GOLDIE  7  ]  8  THE  COURT:  9  MR.  GOLDIE  10  THE  COURT:  11  12  MR.  GOLDIE  13  THE  COURT:  14  MR.  GOLDIE  15  THE  COURT:  16  MR.  GOLDIE  17  Q  18  A  19  20  21  22  Q  1  23  A  24  25  Q  26  A  27  28  29  30  31  32  Q  33  34  A  35  36  37  Q  38  39  40  A  41  Q  42  THE  COURT:  43  A   ]  44  45  46  THE  COURT:  47  A  First entry on the page looks like Plug Hat Tommy --  Tom.  :  That should not be 18a.  Your lordship must be  missing a page.  That's the second page.  Oh.  It's that page there, my lord.  There's a page  missing.  All right.  Thank you.  :  We'll supply that.  It may just be misplaced.  Let me just look behind  it.  :  It —  No, I don't have it.  :  All right.  Thank you.  And on the third page which --  On that same page, my lord, there are two references  to one other Indian, rather, who's not a claim area  Indian.  The next page is Plug Hat Tom.  Plug Hat Tom  was from Bear Lake.  M'hm.  And on the third page there's reference to Sam  Acquilgate about half-way down, my lord.  Right.  Certificate 27088.  And below him -- three below him  is a reference to -- in my view those three are  clearly from the claim area.  The three below Sam  Acquilgate is reference to Shanoss Indian.  I think  Shanoss was a Skeena Indian, but I can't swear to it,  but I believe he was.  Now, then there's a pink divider sheet and then  another long series or a series of --  Yes.  It's the same record book, and it is -- it is  the -- it was the pages of the volume from which these  first three pages we've just looked at were derived.  Oh.  All right.  Thank you.  And it's in there that  you found other people identified as Indians, but for  whom you can't --  Yes.  -- Be sure it's from the claims area?  These all look like Chinese names.  Are they?  Many of them are, yes, my lord.  Yes.  Under the  letter J -- excuse me, under the letter J -- they're  raised alphabetically, my lord, the pages.  Yes.  The first name there is Joseph Indian.  And under L 20960  D.R. Williams (for Province)  In chief by Mr. Goldie  1 there's a reference to an Indian Luke who held a free  2 miner's certificate which was renewed.  Under R  3 there's a reference to Robert, an Indian.  And under W  4 there's a reference to a Robert Williams, an Indian.  5 Three references I take it are the same man.  They  6 might not be the same man, but Robert Williams, Indian  7 is identified twice, and perhaps three times.  8 THE COURT:  Where do you see Robert Williams called an Indian?  9 A   Under W, my lord, half-way down the entries.  Williams  10 Robert Indian.  11 THE COURT:  Oh, must be somewhere else.  I have a Williams  12 Roberts, it doesn't say Indian.  13 MR. GOLDIE:  Four down from that first one, my lord.  14 THE COURT:  Oh, yes.  There it is.  All right.  15 MR. GOLDIE:  16 Q   Now, in your -- in your report you say that the  17 Omineca was linked physically to the claim area by the  18 Babine Trail and economically because of the coming  19 and going between Hazelton and the mines?  20 A   Yes.  21 Q   And under tab b, I'm sorry, 18b you have documents  22 relating to the construction, in part, of a trail  23 between the Skeena and the Omineca.  The first  24 document being a proposal by Mr. Woodcock to build a  25 part of a trail?  26 A   Yes.  27 Q   And then under 18c there is the minutes of the  28 Executive Council for Friday the 27th of January,  29 1871.  At the bottom of the page, my lord, you'll see:  30  31 "A letter of 26th January was first read from  32 Messrs. Nelson and Woodcock relative to a  33 Charter being granted them for a Pack Trail  34 from the Skeena River to Lake Tatlah."  35  36 And the -- and over the page also a letter from  37 the same parties of the 21st December.  And that, my  38 lord, is the document that's under 18b offering on  39 certain conditions to open a trail from a point on  40 Skeena River between the Acquilgate and junction of  41 the Skeena to Tatlah Lake.  The matter was to be  42 referred to the chief commissioner?  43 A   Yes.  Tenders were to be called.  44 Q   And then under 18d would you refer his lordship to  45 the —  46 A   It's page 166, my lord, of that extract from the  47 minutes of the Executive Council. 20961  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Q   And that's —  2 A   Of the 8th of —  3 Q   That's reference beginning with the words "two  4 tenders"?  5 A   Two tenders.  6 Q   Yes.  7 A  8 "Were then read from Robert Cunningham and  9 William Woodcock respectively, the first from  10 Mr. Cunningham agreeing to open a trail from  11 the Forks of Skeena River to Babine River for a  12 Charter to levy tolls for five years.  13  14 The 2nd from Mr. Woodcock agreeing to construct  15 a trail for five years Charter from Skeena  16 River to Babine Lake which was accepted and  17 the Chief Commissioner of Lands and Works was  18 ordered to prepare the necessary Contract  19 accordingly."  20  21 Q   Then while we're on that page would you note for  22 Monday the 20th of February, 1871 the second complete  23 paragraph there?  24 A   Yes.  25  26 "A Petition was then read from certain Miners  27 of Omineca representing the necessity for a  28 Gold Commissioner in that District, during the  29 coming season, and requesting that Mr.  30 Fitzgerald the present Constable there might be  31 appointed to act in that capacity, when it was  32 decided that Mr. O'Reilly from Yale should be  33 detached for the purpose of visiting and  34 reporting on the prospects of the Omineca  35 District."  36  37 Q   Right.  Under the next tab, which is 18e, is a letter  38 from Mr. O'Reilly to the Colonial Secretary.  There's  39 a typescript of that, my lord, immediately following  40 the manuscript copy.  41 Would you refer to that, please, Mr. Williams.  42 A   Yes.  It's a letter from Peter O'Reilly, my lord,  43 Secretary.  Well, the second -- third paragraph he  44 says:  45  46 "I have further to request that I may be  47 informed if I shall be at liberty, as hitherto, 20962  D.R. Williams (for Province)  In chief by Mr. Goldie  1 to expend small sums in opening trails, or in  2 otherwise facilitation communications between  3 any new mining creeks that may be discovered;  4 for should a necessity arise it would be  5 impossible to obtain the requisite authority in  6 time."  7  8 Then the fourth paragraph he says:  9  10 "From my past the experience, I am aware that  11 much future inconvenience may be avoided by the  12 early selection of lands for town sites, Indian  13 Reserves, et cetera, and I would therefore  14 suggest that I be furnished with instructions  15 to reserve lands for these purposes where I  16 think it desireable."  17  18 Q   And then on the next page are the requirements of  19 somebody who's going to be a Magistrate, Gold  20 Commissioner.  And I notice also he requires four pair  21 of handcuffs and two pair of leg irons as well as  22 Broom's County Court Practice?  23 A   Yes.  24 Q   Then under tab 18f what do you -- this is a report of  25 Mr. Dewdney to the --  26 A   The Chief Commissioner of Lands and Works --  27 Q   And the date being?  28 A   — Mr. Pearse.  29 Q   Can you make out the date there for us?  30 A   I make it the 8th of September of 1871.  31 Q   Right.  32 A   The copy regrettably is very difficult to read on the  33 first page.  It's not so bad farther on, but it's bad  34 enough.  35 Q   And there he makes reference to Woodcock and his trail  36 making activity?  37 A   Yes.  He starts by noting that he had been at the  38 Forks of Skeena at the first page -- had been at Forks  39 of Skeena, and he notes that he named the town  40 Hazelton after the nut bush of that name which grows  41 there in great profusion.  42 Q   That's the last three lines, is it?  43 A   That last three lines of the first page.  44 Q   All right.  Okay.  45 A   He then goes on at the top of the second page, my  46 lord, to say:  47 20963  D.R. Williams (for Province)  In chief by Mr. Goldie  1 "I communicated with Mr. O'Reilly as to the  2 advisability of selling the town lots by public  3 auction, and strongly advised him to do so as  4 there are some seven or eight parties wishing  5 to purchase who have either built or intend  6 doing so at once."  7  8 Q   All right.  Thank you.  9 A   He then in the following pages of his report describes  10 his own journey eastward, and to inspect the work  11 being done by Mr. Woodcock on the trail.  Page four,  12 for example, he gives some details of the work; the  13 bridging that was required, the estimate of cost of  14 the work which Dewdney estimated at 100 to $110 a  15 mile, including the cost of bridging.  He gives some  16 descriptions of the agricultural potential of the area  17 around the Forks of Skeena.  He at the bottom of page  18 seven -- I number it seven.  I'm not sure whether your  19 lordship will have it.  It's the seventh page, in any  20 case, at the bottom of which he says:  21  22 "From about six miles below Kitwanga to  23 Hazelton, there are hundreds of acres of land  24 available for settlement, with soil that I have  25 not seen surpassed in British Columbia, but  26 whether too far north for purposes of  27 agriculture remains"  28  2 9 And the top of the next page:  30  31 "To be proved.  My opinion is that grain of all  32 kinds can be raised."  33  34 He continues on with a further description of the  35 country around the Hazelton area.  36 At the bottom of the page -- the 10th page he  37 says:  38  39 "I was much pleased with the portion of the  40 Acquilgate Valley.  And that" —  41  42 I think it's:  43  44 "And I think I saw extensive benchs on either  45 bank of the river of excellent soil and  4 6 abounding in feed."  47 20964  D.R. Williams (for Province)  In chief by Mr. Goldie  1 In feed.  2 And then at page 13 he describes a visit he made  3 to Kispiox.  He'd been instructed, amongst other  4 things, to have a look at the Kispiox Valley.  And  5 then at page 13 he says about in the third  6 paragraph -- the second paragraph, my lord:  7  8 "It only remains for me to describe the portion  9 of the Kispiox Valley that I visited.  10  11 On leaving Hazelton I followed a good Indian  12 trail for about four miles, where it intersects  13 the Telegraph line, and about four miles along  14 it, brings you" --  15  16 I think it is :  17  18 "To the forks of the Kispiox and Skeena Rivers  19 called Fort Stager."  20  21 He then gives some description of the -- the flora  22 of the valley.  And at page 14 he says:  23  24 "The valley of the Kispiox is very picturesque.  25 The benchs" —  26  27 THE COURT:  Where is that?  28 A   On the 14th page, my lord, the second paragraph.  The  29 first complete paragraph.  30 THE COURT:  Oh, yes.  31 A  32 "The valley of the Kispiox is very picturesque,  33 the benchs" something "on the river being low."  34 "Bordering on the river being low, clear of  35 bush and covered with grass and wild flowers.  36 The only lands available for agriculture are  37 the low benchs adjoining the river.  These are  38 numerous but not extensive.  The hills at the  39 back although covered with good feed are  40 gravely and unfit for any purpose except  41 grazing.  42  43 MR. GOLDIE:  All right.  44 Q   Now, under tab 18g is the Colonial Secretary's  45 instructions to Mr. O'Reilly.  This is the top part,  46 my lord.  And I refer to the second paragraph.  47 20965  D.R. Williams (for Province)  In chief by Mr. Goldie  1 "H.E." or "His Excellency will also be glad to  2 approve any steps taken by you as regard  3 Reserves of Town Sites or Indian Villages."  4  5 And then at 18h what do we have there?  I believe,  6 my lord, there is a typewritten copy of this which is  7 Mr. O'Reilly's report of October 21st, 1871 to the  8 Chief Commissioner of Lands and Works.  9 Would you refer to the typewritten part, please,  10 Mr. Williams?  11 A   Yes.  Yes, I have it.  12 Q   And he's reporting that he's marked off Indian  13 Reserves in the District of Omineca, and then gives  14 the boundaries of a number of them there?  15 A   Yes.  16 Q   These are all outside the claims area, are they?  17 A   I believe so.  18 Q   Yes.  All right.  And under tab 19 are the -- is the  19 1891 census.  And you gave his lordship yesterday an  20 indication of the occupations, and you did that also  21 with the 1881 census?  22 A   Yes.  23 Q   If we look, please, at the next tab, which is 20a,  24 this is a continuation of the documentation relating  25 to employment and employment opportunities?  26 A   Yes.  27 Q   Would you just tell his lordship what is that?  28 A   This tab consists of a number of pages from the volume  29 which was kept by the Gold Commissioner or Assistant  30 Gold Commissioner at Omineca, Germansen Creek,  31 detailing the expenses of running the government  32 office there.  33 Q   And in a number of cases you find references to the  34 employment of Indians; is that correct?  35 A   There are a number of references to the employment of  36 an Indian called Billy Indian, who obviously was  37 employed as the janitor and wood cutter for the  38 office.  And one other person on the first page of  39 that tab, my lord, the third line from the bottom, who  40 I take to be an Indian although he's not described as  41 such, was referred simply to as Dick who -- from whom  42 the office bought some wood.  43 Q   Now, just pursuing that under tab 20b there is an  44 extract from the Colonist, the second page of which is  45 an enlargement of that page.  Can you tell us the date  46 of this — well, it's October the 5th, 1871?  47 A   Yes.  October 5th, 1871, yes. 20966  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Q   Would you direct our attention, please, to --  2 A   Yes.  Under the news story, my lord, headed up  3 "Omineca".  It's the third column from the right of  4 the extract in the tab from Germansen Creek in August  5 19 of 1871.  6 Q   Yes.  7 A   It's a discussion of the activity in the mines at  8 Germansen Creek.  And at the end of the third last  9 paragraph the writer says this:  10  11 "Josephine and two other women are here, with  12 two more on the way.  There are also three  13 squaws and one Chinese woman."  14  15 I take it from that that if there were Indian  16 women there there obviously were Indian men.  I assume  17 there were Indian men there as well.  18 Q   Right.  And 20c is again a documentation from the  19 Colonist of November -- I can't make out --  20 A   November -- I take it as November the 18th, 1886.  21 Q   And there's an enlargement here.  And again there's a  22 reference on the second page to Omineca?  23 A   Yes.  It's November the 18th, 1885, I think.  If I had  24 it originally I take it as 1885.  My original notes  25 give that as the date.  26 Q   Yes.  1885.  27 A  And it's on the third column from the right on the  28 second page of the extract, my lord, under  29 letterheading of "From Omineca" in which this report  30 is given:  31  32 "Messrs. George Kenney and E.C. Stevens arrived  33 on the Boscowitz yesterday."  34  35 This is speaking of the arrival in Victoria of the  36 Boscowitz from the Omineca.  37  38 "The former gentlement states that the output  39 for the season is about the same per man as  40 that of the previous year, averaging wages, and  41 some more" I think it is "averaging wages, some  42 more, others less.  43  44 There was a lesser number of miners on the  45 various gold bearing creeks emptying into the  46 Omineca River this year than formerly, a number  47 of having gone to Lome Creek during the 20967  D.R. Williams (for Province)  In chief by Mr. Goldie  1 excitement there.  About 40 whites, Indians and  2 Chinese have been at work this season, but it  3 is expected that these will be largely  4 increased next year, owing to the almost total  5 failure of Lome Creek."  6  7 Q   All right.  That was 1885.  Under tab 21a I want to  8 take you back to 1871, and this is Mr. Dewdney's  9 report of that date to Mr. Pearse?  10 A   Yes.  11 Q   And would you look at the last paragraph on the first  12 page, please.  13 THE COURT:  Whereabouts, please, Mr. Goldie?  14 MR. GOLDIE:  This is under 21a, my lord.  15 THE COURT:  Yes.  All right.  16 MR. GOLDIE:  And it's a report of Dewdney to Pearse of -- from  17 the Forks of Skeena and dated July 17, 1871.  And I  18 was directing the witness' attention to the last  19 paragraph on the first page.  20 Q   Would you read that, please?  21 A   Yes.  He says there -- this is Dewdney speaking, my  22 lord.  23  24 "Babine I found great difficulty in obtaining  25 Indians to pack across the Frying Pan Pass,  26 their objection being the number of swamps and  27 quantity of fallen timber, but as they were  28 making more money by taking miners in their  29 canoes to the Portage near the Hudson Bay  30 Company station, than they could make by  31 packing on the Frying Pan Pass, I concluded  32 that was the reason of their objection."  33  34 Q   And then the -- in the next paragraph the last four  35 lines he stated that he:  36  37 "Engaged two Roucher de Bouille Indians for $20  38 each for the trip and on the 31st of June  39 started over to Tatlah."  40  41 A   Yes.  42 Q   Then after reporting on his trip over the pass and  43 various references to Mr. Woodcock would you refer,  44 please, to the third page from the end.  Third to last  45 page.  46 A   Yes.  47 Q   And would you refer to the fourth paragraph, please. 2096E  D.R. Williams (for Province)  In chief by Mr. Goldie  1 A   Yes.  The paragraph starts:  2  3 "As I hear from Mr. O'Reilly that he is  4 instructed to settle the Indian Reserves in  5 this part of the District I have done nothing  6 further than post notices on the Kitenmacs of  7 Babine Ranches.  He expects to arrive here  8 shortly and should I meet him I shall be unable  9 to assist him with information as to the  10 different tribes, number of Indians, et  11 cetera."  12  13 Q   All right.  Thank you.  14 A   He's writing that from the Forks of Skeena.  15 Q   Then under tab 21b there is another extract from the  16 Colonist of July the 2nd, 1871.  And once again  17 there's an enlargement.  Would you direct his  18 lordship's attention to the -- to the part of that  19 that —  20 A   Yes.  This is the second column from the left, my  21 lord, under heading of "Omineca News", fourth  22 paragraph down.  23  24 "The first Skeena party reached Tatlah Landing  25 on 2nd May.  The fleet from" —  26  27 It looks like -- I'm not sure what that is.  From  28 Quesnelmouth, or the -- I don't know what that is.  29  30 "From Quesnelmouth via Salmo and Omineca Rivers  31 arrived on May 15th and the little fleet"  32 something "at Stuart's River coming in on the  33 17th.  The last mentioned were compelled to  34 move their provisions for" --  35  36 Q   For want of.  37 A   "Want of Indians".  That's right.  38  39 "To cash them to Hogem as high as $25 per  40 ton" --  41  42 THE COURT:  And being demanded?  43 A   "Being demanded."  Just a couple of lines on it is  44 stated:  45  46 "Honorable P. O'Reilly, Gold Commissioner,  47 arrived at Germansen on June 4th via Giscome 20969  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Portage.  He was to leave in a few days to  2 inspect the Skeena route and it was thought to  3 be preferable to the Giscome route."  4  5 MR. GOLDIE:  6 Q   Right.  On 21c there's the Colonist for October 25th,  7 1871.  And in the second column under heading  8 "Omineca" would you read to his lordship the reference  9 about --  10 A   Yes.  It's about —  11 Q   -- The first paragraph.  12 A   It's about two-thirds of the way down, my lord.  13 Q   Yes.  14 A  15 "At Skeena business was very dull.  Floyd is  16 paying five cents per pound to Indians to pack  17 his goods to Tatlah Landing and the Indians are  18 the nabobs of the country."  19  20 Q   That's five cents a pound.  Would you then turn to  21 21d, please.  And this is Mr. Fitzgerald's letter to  22 the Colonial Secretary.  I think you've told us that  23 Mr. Fitzgerald was Provincial Constable?  24 A   No.  At the time of writing this he was stipendiary  25 magistrate.  26 Q   Thank you.  This is February 1st, 1872.  Would you  27 read the relevant items there, please?  28 A  Well, he says he's reporting from Tatlah Landing.  He  29 says:  30  31 "Nothing of importance has occurred since Mr.  32 O'Reilly's last report."  33  34 He goes on to say in the third paragraph:  35  36 "There are about 150 men in the diggings, who  37 are, with the exception of those engaged in  38 mining, employed in sawing timber and building  39 houses on speculation.  40  41 Large quantities of provisions are arriving  42 here daily from Skeena via Frying Pan Pass, by  43 Indians, who are packing, at the rate of 12  44 cents, per pound."  45  46 Q   And 21e.  This is Mr. Allan Graham writing from  47 Hazelton on the 27th of July, and we are now -- we've 20970  D.R. Williams (for Province)  In chief by Mr. Goldie  1 now jumped to 1887 -- to the Provincial Secretary.  2 And Mr. Graham at that time was what?  3 A   Stipendiary magistrate and Gold Commissioner.  4 Q   And would you refer to the last paragraph, please?  5 A  At the bottom of the page, my lord, the first page:  6  7 "The Hudson's Bay Company are sending a pack  8 train to pack their freight across this portage  9 a distance of 60 miles, Hazelton to Babine  10 Lake.  This freighting 100,000 pounds during a  11 season has been previously done by Indians.  12 They claim this packing as their privilege and  13 are opposed to pack trains."  14  15 Q   The pack train, of course, as you've explained is by  16 horse?  17 A   Now, yes.  18 Q   All right.  And under 21f we have on the first of  19 December, 1888, Mr. Fitzstubbs' report to the —  20 A   To the Minister of Mines.  21 Q   To the Minister of Mines.  And it's just a report on  22 how things are at that point.  But there are attached  23 to it returns.  And from that can you tell us the  24 miners who are at the workings as of the 1st of  25 December?  26 A  Well, he records the miners at Lome Creek as being  27 12, although none of them are shown as Indians in that  28 return.  But at the next page is the statistics for  29 Manson Creek and Vital Creek, which is at -- in the  30 Omineca.  He notes at Manson Creek of the thirteen  31 miners there four of them are Indians, and at Vital  32 Creek of the 14 men eight are Indians and six are  33 white.  34 Q   And under tab 21g is the letter of the Chief  35 Commissioner of Lands and Works of the 1st of May,  36 1902 to Mr. Valleau.  Mr. Valleau was what?  37 A   In 1902 I'm not just quite sure who Mr. Valleau was.  38 He pops up various periods.  He became Government  39 Agent at Hazelton eventually, although he wasn't  4 0 Government Agent at this time.  I think he was looking  41 for work.  But in the letter to him the Chief  42 Commissioner says -- well, I'm wrong about that  43 looking for work.  He must have had some government  44 position, but I'm not sure what it was in 1902.  45 But the Chief Commissioner says:  46  47 "With regard to repairs to Babine River bridge 20971  D.R. Williams (for Province)  In chief by Mr. Goldie  1 and the bonus of $100 to the Indian ferryman,  2 $500 will be provided for these purposes,  3 available July 1st next.  The payment to the  4 ferryman will be conditional on no further sum  5 being asked."  6  7 Q   And then continuing on this question of employment  8 with particular reference to the mines and packing  9 would you look under tab 22a, please, which is the  10 Colonist of October 19th, 1897.  11 A   Yes.  12 Q   And what is the reference that you wish to direct his  13 lordship to?  14 A   The Omineca gold mines suffered -- suffered --  15 enjoyed, I guess, a revival in 1897, and this news  16 story is about the new mine workings, and it's under  17 heading, my lord, "Auriferous Omineca".  My lord, at  18 the very bottom of the page of the extract the story  19 notes:  20  21 "About 20,000 pounds of provisions had been  22 delivery by dog sleighs during the winter and  23 as a plentiful supply of fresh" --  24  25 My copy has been punched with a three hole punch.  26  27 "Fresh" something "meat was coming in every" --  28  29 Yes.  Then I think perhaps the more applicable  30 passage, my lord, would be on the second page of the  31 extract at the top left-hand corner following the  32 passage I have just read.  It's run over.  It's sort  33 of repeated in the photocopying.  The story goes on to  34 note:  35  36 "The Indians from Babine and Hazelton had  37 flocked to the scene of the proposed  38 operations, and the work of surveying and  39 locating the ditches being completed on April  40 the 2nd, ditching was commenced in earnest."  41  42 Q   And under tab 23a?  43 A  Another story from the Colonist.  This is November the  44 24th, 1998.  And the left-hand column, my lord, under  45 about two-thirds of the way down under heading of "And  46 Still More Gold" reporting on further advice from the  47 Omineca mining country stating: 20972  D.R. Williams (for Province)  In chief by Mr. Goldie  1 "Omineca, where Indians are said to have been  2 taking out from 30 cents to $1 to the pan.  Of  3 course the customary rush to stake on the new  4 ground is already under way."  5  6 Q   Somebody who's taking out 30 cents to $1 in the pan,  7 that's somebody who's mining to his own account?  8 A  Mining on his own account, yes.  9 Q   Yes.  And we looked -- we looked earlier at the -- at  10 the free miner's extracts, and that's shown again  11 under tab 23b.  And you've given his lordship  12 information with respect to that.  And then the -- in  13 your -- in your report you make mention of some  14 evidence of prosperity on the part of individuals.  15 And under tab -- tab 24a you have a collection of  16 documents relating to the estate of one --  17 A  Alexander Oakes.  18 Q   Alexander Oakes.  And he was an Indian merchant at  19 Hazelton, was he?  20 A   Yes, he was.  21 Q   Perhaps if you'd turn to the very last document, the  22 Affidavit of Value and Relationship, you could  23 indicate to his lordship the gross value of the estate  24 and —  25 A   It's at page 512, my lord.  There's a great collection  26 of documents here, but it's numbered 512.  It's  27 almost -- the Affidavit of Value and Relationship.  2 8    THE COURT:  Yes.  29 A   Of the Estate of Alexander Oakes.  Who died testate,  30 incidently.  A copy of his will is at page 446.  31 MR. GOLDIE:  32 Q   Right.  33 A   The gross value of the estate was $8,706.19.  34 Q   And he'd operated a general store of some kind?  35 A   He had.  Yes, he had.  He'd -- evidently he'd been  36 there since, I infer, from the year 1884, because  37 there was a letter here from a firm of wholesale  38 merchants in Victoria under tab 24b writing Mrs. Oakes  39 on the 12th of February, 1909 and saying:  40  41 "We are very sorry indeed to hear of the loss  42 of your husband, whom we have known for many  43 years, and who has done business with us for  44 over 25 years.  We have always found him  45 straight forward and honorable in all his  46 dealings, and we extend our heart felt  4 7 sympathy." 20973  D.R. Williams (for Province)  In chief by Mr. Goldie  1  2  3  4  5  MR.  GOLDIE  6  Q  7  8  A  9  10  11  12  13  1  14  15  16  Q  17  18  i  19  A   '  20  21  22  23  24  Q  25  A  26  Q  27  28  29  A  30  Q  31  A  32  Q  33  34  A   ]  35  36  THE  COURT:  37  MR.  GOLDIE  38  THE  COURT:  39  MR.  GOLDIE  40  Q  41  A  42  Q  43  44  A  45  Q  46  47  A  And then they get down to the nitty gritty.  "Would you please pay our bill, $1,531.91,  And Mr. Loring, the Indian agent, was the executor,  was he?  He was executor, yes.  If I may digress, I can't  resist mentioning it.  According to the Omineca Herald  on the death of Mr. Oakes he had left instructions  that -- this is a story in the Omineca Herald -- that  his body was to be taken from tavern to tavern, and  drinks were to be stood for the people in the various  taverns which he himself had patronized in his life  time.  We honour his memory.  Do you have any other references that you wish to  make with respect to this question of employment?  Well, I guess probably the most prosperous Indian in  the Hazelton area in the early years of the century  would have been Simon Peter Gunanoot, who was himself  a storekeeper, and operated a large pack train of  horses.  Right.  Very successfully.  In relation to the activity of packing I take it that  at some point the Indians operated pack trains as  opposed to backpacking; is that correct?  Yes.  Would you --  Definitely.  Would you look at the next series of documents  beginning with 25a.  This is Mr. Loring's letter?  Mr. Loring's letter, yes.  It's the last paragraph, my  lord, in the first page.  25a?  :  Yes, my lord.  Thank you.  This is May 31st, 1901?  Yes.  And this is Mr. Loring's report of occurrences from  this agency during the month of May of that year?  Yes.  All right.  You were going to refer to the last  paragraph on that page?  It's very difficult to read, I'm afraid. 20974  D.R. Williams (for Province)  In chief by Mr. Goldie  1 THE COURT:  It's 1881, is it?  2 A   1901, my lord.  3 THE COURT:  Oh.  4 A  5 "The parties constructing the latest line of  6 telegraph in these parts, usually that from  7 Fort Simpson to the Omineca, B.C. are daily  8 expected in, whereupon Indians of here will" --  9  10 I just don't know what the next word is.  11 Something:  12  13 "Take the place of the Tsimshians expected  14 there unto soon to arrive.  Consequence of its  15 construction not from both terminals as usually  16 is the procedure when" something "by land."  17  18 I just -- I can't read that.  Mr. Loring's  19 handwriting is very, very difficult to read.  20 Q   And at the top under the same tab, the last page,  21 appears to be an extract from another letter of his,  22 and --  23 A   It's the same -- it's the same letter, I believe.  24 Q   I see.  25 A   There's an intervening page there.  26 Q   Oh, yes.  And the first sentence refers to the outlook  27 for plenty of employment for the Indians for the  28 season?  2 9 A   Yeah.  30  31 "The outlook for plenty of employment to the  32 Indians for the season is in every direction  33 very evident.  Supplementary to the  34 opportunities already stated the" --  35  36 And he refers to the mining -- mining in the  37 Omineca.  Refers to packing thither, and says that --  38 in effect, that this is going to continue.  This is  39 how -- I must say, my lord, I'm not -- I'm just  40 gathering the sense of it from his very difficult  41 writing.  42 Q   Well, you're in luck.  He appears to have acquired a  43 typewriter.  Would you look under 25b.  That's Mr.  44 Loring to Mr. Vowell of November 30th, 1904 with  45 respect to occurrences during that month?  46 A   Yes.  47 Q   And what parts of that do you refer to? 20975  D.R. Williams (for Province)  In chief by Mr. Goldie  1 A  Well, at bottom of that first page, my lord, over to  2 the top of the next he says this:  3  4 "Hunting and trapping are fast becoming less of  5 an occupation with the Kit-Ksuns - exclusive of  6 those north and beyond Kispiox."  7  8 I take it he means Gitksans there.  9  10 "And aim in a larger degree to the up-building  11 of homes and bettering their lot or suiting  12 opportunities to the intent and locations in  13 severalty are constantly in demand.  14  15 Likewise are the Hagwilgets getting into  16 preferring that than when occasions offer.  17 Many of them now are working for surveyors and  18 settlers in the Bulkley Valley.  And the  19 Indians frankly assert the desire that this  20 mode of gaining a livelyhood should become more  21 general.  Apprehensions, ominous of a gloomy  22 future, are fast giving way to appeasement and  23 content.  No doubt, but they will make a  24 progress at the ratio the valley gets peopled."  25  26 Q   And then under 25c is his report for April of 1905.  27 And in that he reports that:  28  29 "More of the Indians of the Skeena have gone  30 freighting into the interior, and many of the  31 Hakwelgets are equally employed for the  32 settlers" --  33  34 A   Of the Bulkley Valley.  35 Q   "Of the Bulkley Valley."  Yes.  That's in the first  36 four lines of the first page there, my lord.  37 Then in 1909 under tab 25d Mr. Loring reports to  38 Mr. Vowell for occurrences during the month of  39 September.  And would you refer to the last paragraph  40 on that page?  41 A   Yes.  The second to last paragraph, first page, my  42 lord:  43  44 "On my return trip, by the steamer Hazelton, a  45 great many railway contractors were aboard the  46 boat, of whom invariably I secured the promise  47 to give the Indians all possible employment. 20976  D.R. Williams (for Province)  In chief by Mr. Goldie  1 In connection therewith, 25 Hagwilgets are at  2 present busily engaged on a wagon road from a  3 railway supply point at the Forks of the Skeena  4 to follow the Bulkley eight miles to the east  5 of here, and they give the contractor great  6 satisfaction in every respect."  7  8 Q   And then the last document you have under that is 25e,  9 Mr. Loring's report of August 31st, 1906 in which he  10 makes reference to a lot of fencing being done, and  11 some of the lines on the locations of severalty on  12 several of the reserves?  13 A   Yes.  He goes on to report on various matters, but at  14 the end of his letter, second page, my lord, second to  15 last paragraph he says:  16  17 "I understand that survey parties for the Grand  18 Trunk Pacific will be in the field for all  19 winter.  If that prove so, so much the better.  20 On account of their intelligence, the Indians  21 here are much sought after for that kind of  22 work, but insist on too high a wage generally  23 conceded."  24  25 Q   Mr. Williams, your next section in your report  26 beginning at page 12 deals with area policing.  And  27 you state:  28  29 "Until establishment of a government office, a  30 rural police officer was effectively the  31 government agent, discharging all sorts of  32 functions."  33  34 And you make reference to them and their power to  35 swear in special constables, and that a regular  36 constable station at the Omineca mines at 1870, and so  37 on?  38 A   Yes.  39 Q   And I understand you have a number of documents that  40 you wish to refer to in respect to this section.  41 Would you turn, please, first to 26a and tell us what  42 that is?  43 A   I have it as 26.  Is this the extract?  44 Q   Yes.  It's not 26a, it's tab 26.  45 A  AGBC 4906?  46 Q   Yes, that's correct.  47 A   This, my lord, is an extract from the reminiscences, I 20977  D.R. Williams (for Province)  In chief by Mr. Goldie  1 guess, of T.W.S. Parsons, who ultimately became  2 Superintendent of the British Columbia Police, and  3 wrote this, I think, after his retirement.  And in the  4 course of it, of the second page, numbered page 14, he  5 records the duties that rural -- that a police  6 officer, British Columbia Police Officer, had to  7 discharge in a rural area.  And from the list at page  8 14, my lord, he was the veritable Pooh-Bah  9 Q   Well, at the bottom of the first page he says that:  10  11 "Your rural policemen did everything.  Apart  12 from law enforcement, the least of his  13 troubles."  14  15 A   Yes.  16 Q   And then under tab 27 this is an indication dated --  17 it's a letter dated September 4th, 1872 from Mr.  18 Fitzstubbs, Stipendiary Magistrate, and -- I'm sorry.  19 A   Excuse me, Mr. Goldie.  It was Mr. Fitzstubbs at this  20 stage.  Later he became a stipendiary.  At this point  21 he was appointed as Constable at Omineca.  22 Q   Being appointed by Mr. Fitzgerald?  Yes?  23 A  Mr. Fitzgerald, yes.  24 Q   Yes.  Thank you.  And then under the same page there  25 is the resignation of a constable -- under the same  26 tab, I should say, there's a resignation of Mr.  27 Ballantines?  28 A   Yes.  29 Q   And then would you go to tab 28, please.  30 A   Yes.  31 Q   And that is a record of a Constable at Lome Creek?  32 A   Lome Creek, yes.  33 Q   Yes.  34 A  A man by the name of Lewis.  35 Q   And that's on March the 24th, 1885?  36 A   Yes.  He was appointed a mining recorder of the 11th  37 of September, 1885, and he was appointed Constable on  38 the 24th of March, 1885.  3 9 Q   And then under tab 2 9 we have --  40 A   Sorry.  His tenure was pretty short lived.  The  41 government had decided to terminate Mr. Graham's  42 appointment there, but there was a hue and cry and he  43 was kept on and Lewis lost out to Graham.  44 Q   Oh, is that -- that's the explanation of the second  45 letter under tab 28, is it, where Lewis appears to  46 be —  47 A   He's applying -- 2097E  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Q   -- Applying for another position?  2 A   Yes.  3 Q   Yes.  And what do we have under tab 29, please?  4 A   This is a letter from Mr. -- sorry, Superintendent  5 Hussey of August 9th, 1998.  6 THE COURT:  Superintendent of what?  7 A   Of the British Columbia Police.  8 THE COURT:  Thank you.  9 A  And he writes:  10  11 "I beg to acknowledge the receipt of your  12 petition."  13  14 This is a letter to R.S. Sergent.  15  16 "I beg to acknowledge the receipt of your  17 petition for the appointment of Provincial  18 Constable at Hazelton, and in reply to say that  19 I will lay the matter before the government.  20  21 Mr. Loring, the Indian Agent at Hazelton, is of  22 the opinion that the early appointment of a  23 white constable for Hazelton is quite  24 unnecessary, as the Indian Constables are quite  25 capable of looking after the Indians, and the  26 White population is not sufficient to justify  27 such an appointment."  28  29 THE COURT:  Can we take the afternoon adjournment, please.  30 MR. GOLDIE:  All right, my lord.  31 THE REGISTRAR:  Order in court.  Court stands adjourned for a  32 short recess.  33  34 (PROCEEDINGS ADJOURNED)  35  36 I hereby certify the foregoing to be  37 a true and accurate transcript of the  38 proceedings herein to the best of my  39 skill and ability.  40  41  42 Peri McHale, Official Reporter  43 UNITED REPORTING SERVICE LTD.  44  45  46  47 20979  D.R. Williams (for Province)  In chief by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie, before you start would it be convenient  5 if we adjourned at ten to four this afternoon?  6 MR. GOLDIE:  Yes.  7 THE COURT:  All right.  Thank you.  8 MR. GOLDIE:  9 Q   Mr. Williams, in your report page 12 I have already  10 referred to your discussion of area policing with  11 respect to the regular constables and the appointment  12 of a chief constable at Hazelton in 1909.  But you  13 also go on to deal with what you refer to as:  14 "A striking feature of policing in the last  15 decades of the 19th century and in the early  16 years of this was the engagement of Indians as  17 constables."  18 And not only employed by the Indian agent for policing  19 the reserves, but also employed as special constables  20 to do duties according to the requirements of the  21 matter which gave rise to their swearing in as  22 specials.  And you made particular reference to one  23 special, Big Louis of Git-hksan from Kispiox.  You  24 note that, in fact, he was the constable at Hazelton  25 for everybody from late 1888 at least until June of  26 1891.  27 A   Yes.  28 Q   Could you refer to what Mr. Fitzstubbs had said about  29 him in 1890.  I would like to go to the documents that  30 deal with that, please.  Under tab 29 I think we had  31 dealt with that.  Yes, Mr. Loring's view was that  32 Indian constables are quite capable of looking after  33 the Indians and the white population is not sufficient  34 to justify an appointment.  That was 1898?  35 A   Yes.  36 Q   Tab 30 is another extract from the book of accounts  37 maintained by -- or maintained on account of the  38 stupendory magistrate would it be or the constable?  39 A  Actually, the gold commissioners.  40 Q   Yes.  And what is the entry that you refer here to?  41 A  Well, at the bottom of the page, my lord, the tab 30,  42 second last item there is a reference to "March 27,  43 1876 to Doets, D-O-E-T-S, Indian, Special Constable"  44 who was paid $3.  That's the earliest reference I have  45 seen to the employment of an Indian as a special  46 constable.  But I can't say that that particular man  47 came from the claim area. 20980  D.R. Williams (for Province)  In chief by Mr. Goldie  1 Q   Right.  Now, would you go to tab 31a which is a report  2 to the attorney general from Mr. Roycraft who is the  3 superintendent of the provincial police as of the date  4 of this letter, August 14, 1888; is that correct?  5 A   Yes, that's right.  6 Q   And we will come to it later.  But this, as I  7 understand it, is around the time of the Kitwancool's  8 episode.  The Kitwancool Jim episode, but relates to  9 the shooting of one Indian by another.  And I think  10 that is referred to in the second paragraph on the  11 first page?  12 A   Yes.  13 Q "The body of the Indian Tobush —"  14 A   Yes.  15 Q  16 "...was brought up to the Forks on the 3rd  17 trist and on the same day I held an inquest,  18 the jury finding a verdict that the deceased  19 came to his death through a gun-shot wound  20 inflicted by the hands of Chief Morla-han --"  21 A   Yes, that's right.  22 Q  23 "...in self-defence.  This has caused great  24 satisfaction to the Indians, as they were all  25 afraid the Chief would be taken to Victoria,  26 which, I believe, they would have resisted. "  27 Then he makes reference to the killing of Kitwancool  28 Jim.  We will come to that a little later.  And on the  29 next page he refers to calling the chiefs of the five  30 villages together and encloses the minutes of the  31 meeting, and again we will come to that.  At the  32 second to last paragraph, the last six lines, if I  33 read it correctly:  34 "I intend having a number of Indian police  35 badges made which will be sent to Captain  36 Fitzstubbs for distribution by him to the  37 Indian Constables."  38 A   Yes.  39 THE COURT:  I'm sorry, where is that?  40 MR. GOLDIE:  That was on the second page, my lord.  41 THE COURT:  Yes.  42 MR. GOLDIE:  The last three lines before the paragraph.  43 THE COURT:  Oh, yes, I see.  Thank you.  44 MR. GOLDIE:  45 Q   And then on page 3 Superintendent Roycraft in the  46 middle of the page refers in the following words:  47 "In consequence of Captain Fitzstubbs' letter, 20981  D.R. Williams (for Province)  In chief by Mr. Goldie  1 and also the letters of the white residents of  2 Hazelton, I left two constables there, until  3 the Captain has made arrangements regulating  4 the Indian Constables which can be done in a  5 month or so."  6 A   Yes.  7 Q   And then over the -- under tab 31B is Captain  8 Fitzstubbs' report to the attorney general of the 23rd  9 of April, 1889.  He makes reference on page 3 to some  10 of the difficulties that he is having with his Indian  11 constables.  Would you refer to that, please?  12 A   On that page, that third page, my lord, he introduces  13 the topic of the constables by reference to the  14 missionaries, a Methodist teacher.  15 "...the  Methodist teachers, chiefly native on  16 the river, who seemed to furnish a mission  17 other than religous and to desire to fan a race  18 and antipathy into race hatred."  19 Then he goes on to say, starting about a third of the  20 way down, my lord:  "They", that's the teachers he is  21 talking about,  22 "They affect to slight the authority of the  23 law; and have so ridiculed the idea of  24 assumption of police duties by the chiefs that  25 these last have shrunk from their acceptance  26 with aversion, though they were at first --"  27 I take that word to be "emulous".  28 "...emulous of them, except those at  29 Kitsegukla, who were sworn in last autumn and  30 now complain that they are constantly derided  31 for the possession of the badge."  32 I should say perhaps at this time the B.C. police was  33 a non-uniformed force.  The mark of authority was the  34 badge.  35 "...by the adherents of the missionary at that  36 place:  before whose arrival, the peoples so  37 gladly welcoming the advent of lawful  38 authority, and to which, more than half it is  39 said are now antagonistic."  40  41 Q   And he encloses the -- some statements reported or  42 recorded with respect to meetings of the kind that he  43 refers to.  We will be coming back to some of those.  44 I refer next to tab 31c which is Fitzstubbs' letter to  45 the attorney general of the 30th of September, 1888.  46 That is to say some six months -- the fall -- the  47 autumn before the letter you've just referred to? 20982  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)  In chief by Mr. Goldie  A  Q  A  Q  A  THE  THE  THE  THE  THE  THE  COURT:  WITNESS  COURT:  WITNESS  COURT:  WITNESS  Yes.  And this, of course, is after the Kitwancool Jim  affair.  And would you make reference, please, to page  2 --  Yes.  Where --  Yes.  Well, two thirds of the way down the page, my  lord, he says:  "Until return of Constables, I am trusting to  Indian Police.  About the 1st of November, when  the various tribes will have reached their  homes, I intend to visit them, swear in police  in presence of each tribe, after teaching  something of their duties and impressing them  with their responsibilities.  I am glad to say  there is some emulation among them --"  "Amongst some".  Beg your pardon, my lord?  Not among them.  Among some,  "some of the best of them".  MR.  "I am glad to say there is emulation among some  of the best of them for the position."  GOLDIE:  Q   If you would just refer to tab 32.  You mentioned the  payment of moieties.  There appears to be Mr.  Vowell's -- I'm sorry, Mr. Loring's letter of June 11,  1901?  A   Yes.  Q   To the deputy provincial secretary "enclosing a cheque  for $50 for fines imposed and collected under date of  the 17th ultimoe, to wit:"  And then he appears to  give the details of a couple of cases.  One, "John  Mcintosh, infraction of Indian Liquor Act, fine $50  less the amount of $25 moeity paid to" -- and I can't  make out the name.  A   Frank Clartte, I think.  Q   Oh, yes, Indian Constable of here, as per receipt  attached to my return of" something.  A   "My return of convictions".  Q   "Convictions enclosed during Quarter ending June 30,  1901."  And the Rex versus a name.  A   Thomas Lolai, I think it is.  Q   "Infraction of Indian Act 1796."  Now, just pausing  there, Mr. Williams, I take it that Mr. Loring as 20983  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  Indian agent had authority under the dominion or  federal legs as a J.P., did he?  A   Yes.  Q   And then the return --  A   That's for -- not general jurisdiction as a J.P., but  for offences arising under the Indian Act.  Q   Oh, yes.  And both of the convictions specified in the  return are for infractions under the Indian Act?  A   Yes.  Q   All right.  And then —  A   I should say, if I may, my lord, that the British  Columbia police constables were absolutely forbidden  to receive any portion of the fine under the common  informer provisions of various statutes.  But special  constables were allowed to make the claim.  Q   Whether they were native or white?  A   Native or white.  Q   And the last page there is the -- is the  reconciliation of his accounts.  It shows a moeity of  $25 paid over to the Indian constable?  A   Yes.  Q   And the document under tab 33a we have looked at.  That's the payment to Doets, the Indian special  constable.  A   Yes.  Q   And then under tab 33b, what do we have here?  A   That is a record of -- this is 1897 now, my lord.  The  fifth last item records payment to another -- to a man  named as Indian Charlie, services as special  constable, 2.50.  That's in the Omineca.  Q   Right.  I tender --  A   I don't know that he is from the claim area.  MR. GOLDIE:  Thank you.  I tender Exhibit 1175 as consisting of  Volume 2 with the individual exhibits to be identified  by the tab number and described in accordance with  with the index which is in the front of the  building -- of the volume.  THE COURT:  All right.  (EXHIBIT 1175-16a: Hazelton Queek dated December 11, 1880)  (EXHIBIT 1175-16b:  (EXHIBIT 1175-16c:  1871)  (EXHIBIT 1175-17a:  December 1, 1888)  (EXHIBIT 1175-17b:  April 12, 1898)  Fitzstubbs to AG dated July 27, 1888)  Dewdney to B.W. Pearce dated May 20,  Fitzstubbs to Minister of Mines dated  Sargent to Provincial Sect, dated 20984  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)  In chief by Mr. Goldie  Langley to Hussey dated August 9,  Fitzstubbs to AG dated July 27, 1888)  Omineca Herald dated November 28,  Maitland-Dougall to Hussey dated May  Lorgin to Supt.-Gen. dated July 15,  Free Miner's Cert. 1898 - 1904)  Woodcock to Trutch dated December 21,  Minutes, B.C. Executive Council dated  Minutes, B.C. Executive Council dated  O'Reilly to Colonial Sect, dated March  Dewdney to Pearse dated October 21,  Hankin to O'Reilly dated March 23,  O'Reilly to Pearse dated October 21,  Dominion Census 1891)  B.C. Dept. of Mines Record Book dated  Colonist article dated October 5,  Colonist article dated November 18,  Dewdney to Pearse dated July 17, 1871)  Colonist article dated July 2, 1871)  Colonist article dated October 25,  Fitzgerald to Prov. Sect, dated  Graham to Prov. Sect, dated July 27,  Fitzstubbs to Minister of Mines dated  (EXHIBIT 1175-17c:  1898)  (EXHIBIT 1175-17d:  (EXHIBIT 1175-17e:  1908)  (EXHIBIT 1175-17f:  31, 1910)  (EXHIBIT 1175-17g:  1901)  (EXHIBIT 1175-18a:  (EXHIBIT 1175-18b:  1870)  (EXHIBIT 1175-18c:  January 27, 1871)  (EXHIBIT 1175-18d:  February 8, 1871)  (EXHIBIT 1175-18e:  20, 1871)  (EXHIBIT 1175-18f:  1871)  (EXHIBIT 1175-18g:  1871)  (EXHIBIT 1175-18h:  1871)  (EXHIBIT 1175-19:  (EXHIBIT 1175-20a:  1873-1876)  (EXHIBIT 1175-20b:  1871)  (EXHIBIT 1175-20c:  1885)  (EXHIBIT 1175-21a:  (EXHIBIT 1175-21b:  (EXHIBIT 1175-21c:  1871)  (EXHIBIT 1175-21d:  February 1, 1872)  (EXHIBIT 1175-21e:  1887)  (EXHIBIT 1175-21f:  December 1, 1888)  (EXHIBIT 1175-21g:  Chief Commr. of Lands & Works to  Valleau dated May 1, 1902)  (EXHIBIT 1175-22a:  Colonist article dated October 19,  1897)  (EXHIBIT 1175-23a:  Colonist article dated November 24,  1898) 20985  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  MR.  (EXHIBIT  Estate o  (EXHIBIT  12, 1909  (EXHIBIT  (EXHIBIT  1904)  (EXHIBIT  (EXHIBIT  (EXHIBIT  1906)  (EXHIBIT  (EXHIBIT  Septembe  (EXHIBIT  2, 1886)  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  1888)  (EXHIBIT  1901)  (EXHIBIT  (EXHIBIT  1897)  1175-24a: Documents & Correspondence relating to  f Alexander Oakes)  1175-24b: Leiser to Mrs. A. Oakes dated February  )  1175-25a: Loring to Vowell dated May 31, 1901)  1175-25b: Loring to Vowell dated November 30,  1175-25c: Loring to Vowell dated April 29, 1905)  1175-25d: Loring to Vowell dated Sept. 30, 1909)  1175-25e: Loring to Vowell dated August 31,  1175-26: Extract from T.W.S. Parsons' Journal)  1175-27: Fitzgerald to Prov. Sect, dated  r 4, 1872)  1175-28: Memo Prov. Sect. Office dated Feburary  1175-29: Hussey to Sargent dated August 9, 1898)  1175-30: Doets Entry dated March 27, 1876)  1175-31a: Roycraft to AG dated August 14, 1888)  1175-31b: Fitzstubbs to AG dated April 23, 1889)  1175-31c: Fitzstubbs to Ag dated September 30,  1175-32: Loring to Prov. Sect, dated June 11,  1175-33a: Doets Entry dated March 27, 1886)  1175-33b: Treasury voucher dated September 3,  MR. GOLDIE:  I noted in your report your reference to the Indian  Constable Big Louis.  And by reference to your book of  documents, Volume 3, I would ask you to give us  particulars of that.  But before answering, could I  tender that document and ask that a number be reserved  for it, my lord.  THE COURT:  Yes.  It will be 1178 I think.  THE REGISTRAR:  Yes, my lord.  (EXHIBIT 117E  RESERVED)  GOLDIE:  Q   Well, we are at tab 34 then, Mr. Williams.  And the  first document is Fitzstubbs' report to the attorney  general of the 5th of January, 1889.  There is a  typescript that follows that.  Would you direct us to  those parts of Captain Fitzstubbs' report which are  relevant to Big Louis?  A   Yes.  It appears at page 207, my lord, of the -- 20986  D.R. Williams (for Province)  In chief by Mr. Goldie  1 numbered page 20 and on the third page -- fourth page  2 of the typescript where the printed word page 20  3 appears.  The letter is written in the aftermath of  4 the Kitwancool Jim affair.  Fitzstubbs is talking in  5 the general in the letter about, oh, how can I say it,  6 law enforcement in the very general terms with  7 particular reference to some of the Indian villages.  8 At page 20 he is speaking of a visit which he made to  9 Kispiox.  He is up there trying to persuade people to  10 take the badge.  He was having difficulty.  And he  11 says:  12 "I exhorted them, the people of the village, to  13 show the government and their own that they  14 were not only man and brave, but chiefs, but to  15 no purpose.  They're taunting them with  16 pusillanimity --"  17 I think that's a reference to the people taunting the  18 chiefs, I think, or it might be the other way around,  19 I'm not sure.  But any way he says:  20  21 "...told the people they were unworthy of the  22 compliment offered them,"  23 and now this is Fitzstubbs speaking,  24 "...that the Government would require policemen  25 on all occasionsrequiring them, but the law  26 would reach offenders no matter how the Kispiox  27 or any others were affected towards it, and  28 bowing left them.  Re crossing the river next  29 morning the man who had carried me,"  30 that's across the river,  31  32 "...at such a sacrifice of popularity as to  33 endanger him, said he would accept the badge  34 and not disgrace it.  He came with me to  35 Hazelton where I swore him in and gave him a  36 paper, and the warrant for one of the Kisgahgas  37 murderers who was expected to attend the  38 Kispyooks Yooks, offering him one hundred  39 dollars for his capture and delivery at  40 Hazelton gaoel.  As he has since redeemed his  41 pledge who plucky and credible a manner I have  42 pleasure in naming Big Louis to the  43 Government."  44  45 Q   And you mark that as the employment of Big Louis as a  46 special constable?  47 A   Yes.  Now, it's difficult to tell from the letter 20987  D.R. Williams (for Province)  In chief by Mr. Goldie  1 whether that was late -- I assume that that was late  2 1888.  But it doesn't matter, within a month.  1889,  3 perhaps.  4 Q   And then we have a letter that we had looked at  5 earlier which is the Fitzstubbs' report to the  6 attorney general of the 23rd of April, 1889.  Would  7 you refer to page 2 of that and direct our attention  8 to the parts relevant to Big Louis.  9 A   This is -- in this letter he is talking about the --  10 in the extract I just read, my lord, there was a  11 reference to the Kisgahgas murders two people killed  12 up there.  And Big Louis was engaged by Fitzstubbs to  13 go up there and swear -- and execute the warranties  14 for arrest and swear -- and lay the information <-Ss.  15 And at the top of the second page of his letter he  16 says this:  17 "The informations in the Kisgahgas murder cases  18 were never here, and I held the examination  19 here without any, in order to learn who were  20 necessary witnesses so as to reduce the number  21 of them to its smallest limits.  Big Louis was  22 engaged to go to Bear Lake and serve the  23 summonses and on the witnesses not appearing,  24 was sent with Homans to meet them and found  25 them at Kiskahgas bringing them here under  2 6 warrant."  27 Q   Homans was a regular constable?  28 A   Yes.  Homans was a regular constable who was briefly  29 stationed at Hazelton.  30 Q   All right.  And then in the next paragraph he --  31 A  Well, perhaps I should continue.  He refers to Mr.  32 Homans.  He says:  33 "...with whom the mountain air does not seem to  34 agree tells me it is possible he may not  35 return.  And I have taken on Big Louis who  36 otherwise would have left for the mines, where  37 he was offered a season's engagement.  I have  38 agreed to give him $60 per month, for at no  39 time should that place be without a police  40 officer."  41 Q   And then he goes on  to give the report of his earlier  42 attempts to recruit Indian constables.  And you made  43 reference to the "baleful teaching".  44 A   Yes.  45 Q   Of the missionary teachers, Methodist teachers.  46 A   Yes.  47 Q   And there is appended to this the statements of 209E  D.R. Williams (for Province)  In chief by Mr. Goldie  1 several people.  And perhaps you might turn over until  2 you come to the page which begins with the words:  "I,  3 Big Louis, do solemly declare"?  4 A   Yes.  This, my lord, is a statement which Fitzstubbs  5 enclosed with his letter.  It refers to a meeting  6 which has been held I think at Kispiox.  No, it was at  7 Hazelton in Kitiksheu's house at Hazelton.  Yes, on or  8 about the 18th of January, 1889.  And there was some  9 controversy about -- it is a relatively neutral term,  10 I guess, about Big Louis' employment as a constable.  11 Big Louis spoke at this meeting and what he said here  12 was interpreted by Mrs. Hankin who later that year  13 married Mr. Loring.  She had lived in the Hazelton  14 area.  She was the widow of Thomas Hankin.  She lived  15 there since 1871 and was familiar with the language  16 and she interpreted this statement, which reads:  17 "I, Big Louis, do solemly declare that I am a  18 Kitchshen Indian of Kispiox and a Special  19 Constable.  During the month following  20 Christmas of last year the Reverand Mr. Pierce  21 of Kitsayookla and some other Indians of the  22 lower villages came to Kispiox and there held a  23 meeting, a religous one.  I told him that I  24 wished to join the Church, that I already had  25 the Crown and had sworn to obey the Law and  26 promote its observance amongst the people of my  27 village.  Having the Crown, I thought I should  28 also join the Church as I considered they go  29 together.  Mr. Pierce answered he would receive  30 me, but that the Crown I have carried no honor  31 with it.  The people he said would not regard  32 me as being more manly for having the Crown."  33 He then goes on to talk some more about the  34 relationship between the Crown, the badge and God.  35 And then towards the bottom of the page he says:  36 "Then I publicly pinned my badge to my breast  37 and spoke thus:  My friends, I have taken the  38 Crown because it is my set purpose to obey the  39 law.  I wish to become a member of the church.  40 I am determined so far as I can to do the duty  41 that I swore before the judge to perform, and I  42 invite all my people, and those from the lower  43 villages, to follow my example."  44  45    THE COURT:  I'm sorry.  Oh, yes, I have a page out of order.  I  4 6 have found it.  47    THE WITNESS: I take the reference to the "judge", my lord, to be 20989  D.R. Williams (for Province)  In chief by Mr. Goldie  1 to Fitzstubbs.  2 MR. GOLDIE:  3 Q   Yes.  Well, that, as you say, was 1889?  4 A   January, 1889.  5 Q   Yes.  And under tab 34c there is Fitzstubbs' report, a  6 typewritten copy of Fitzstubbs' report of March of  7 that year.  And then --  8 A   Yes.  9 Q   That reports that:  10 "On the resignation of Constable James Homans,  11 the Constable Louis, an Indian, was appointed  12 by me for the following reasons.  A large  13 majority, or I might say all of the white  14 residents, from the Mouth of the Skeena to the  15 Peace River, gave him a very good character.  16 He is heir to the headship of the largest clan  17 among the Indians of that quarter, and has  18 great influence among them."  19 And 34d, this appears to be Mr. Loring's report to Mr.  20 Vowell of February 28, 1892 in which he appears to  21 complain of Big Louis' failure to support him with  22 respect to -- well, perhaps I should leave you to  23 translate Mr. Loring.  24 A   I think it is the other way around.  Mr. Loring is now  25 recanting.  He was one time opposed to Big Louis and  26 didn't think much of them.  But here in this letter of  27 1892 he is talking about the salary of a constable  28 $60.  And he then has this to say about Big Louis:  29  30 "It may seem paradoxical, but to my choice  31 there would be no Indian as well adapted to  32 answer the purpose, as Big Louis.  I had  33 occasion once to disapprove of his conduct.  Of  34 late he has shown himself most trustworthy and  35 loyal, to which the Honorable Peter O'Reilly,  36 Indian Reserve Officer, is well cognizant of."  37 Loring is talking about the engagement of -- this is  38 1892 -- talking about the engagement of a constable  39 here for the -- at a monthly salary.  Louis evidently  4 0 was the man.  41 Q   Right.  And under tab 34e?  42 A   This is a letter also from Loring, June 8, 1892.  43 Q   And this appears to be to the deputy attorney general  44 of the province?  45 A   Yes.  46 Q   Yes.  47 A   Now, I think by this time I think Big Louis has ceased 20990  D.R. Williams (for Province)  In chief by Mr. Goldie  1 to be -- how shall I say it, the permanent constable.  2 It seems to me that this engagement here June 9, 1892  3 refers to an ad hoc engagement of Louis.  4 Q   That was the apprehension --  5 A   Yes.  Of an individual.  6 Q   Right.  7 A   But Loring hired him, nonetheless.  8 Q   And under tab 34F you again have the 1891 census.  And  9 on one of those pages you have found Big Louis and his  10 occupation was that of constable?  11 A   Yes.  He was enum -- this is at page 56, my lord, of  12 the material.  13 Q   The numbering is in the upper right-hand corner above  14 the word "Canada"  15 A   It's almost exactly halfway down the page, my lord.  16 This is the enumeration of Kitanmaax.  And you will  17 see a reference to Big Louis there.  Big Louis his age  18 is given as 35.  His occupation is given as constable.  19 Not special constable, but constable.  20 MR. GOLDIE:  Then you provide some documentation with respect to  21 the employment of Indian special constables generally.  22 And under tab 34a there is --  23 THE COURT:  You mean 35, Mr. Goldie?  24 MR. GOLDIE:  Pardon me, my lord?  25 THE COURT:  35?  26 MR. GOLDIE:  27 Q   Yes, thank you.  There is Mr. Flewin's letter of the  28 date of October 11, 1900.  Mr. Flewin appears to be a  2 9 government agent?  30 A  At Fort Simpson.  31 Q   Can you direct us to the part you have in mind here?  32 A   It's -- in the first paragraph of his letter, my lord,  33 he records having -- making a trip in Aujaush.  34 "I left here en route to Aujaush on the First  35 day of September."  36  37 There was some matter requiring police investigation,  3 8 my lord.  39 "On reaching Kincolith, I found that some of  40 the Indian Constables who had received their  41 instructions from me on the previous Sunday,  42 had arrested two brothers (Swedes) name Olefson  43 on a charge of supplying intoxicants to Indians  44 and had seized their sloop."  45  4 6 Q   All right.  47 A   Elsewhere in the letter he talks about employing 20991  D.R. Williams (for Province)  In chief by Mr. Goldie  1 constables on the second last page, my lord, he says  2 this is -- this is the Nass he is talking about here.  3 "After investigating matters thoroughly I  4 concluded to appoint two intelligent Indians on  5 the Upper River as special Provincial Officers  6 to act entirely under my instructions.  One  7 belongs to Aujaush Mission Village and the  8 other is a heathen, belonging to  9 Git-lak-dawiks, but a man very generally  10 respected both by Whites and Indians on the  11 river, having worked for many years in the  12 Omineca Mines.  I am sure they will work in  13 harmony.  Their names are Andrew Mercer and  14 Stephen Grandison.  I would recommend the  15 Government to supply them with a coat, cap,  16 baton, shielf and handcuffs each."  17 Q   And under tab 35b is Superintendent Hussey's letter of  18 August 1906?  19 A   Yes.  20 Q   Referring to the employment of Indian specials in  21 the -- the Simon referred to there is Simon Gunanoot?  22 A   Yes.  This is the search for Simon Peter Gunanoot.  23 Q   Right.  24 A   I don't know how many Indian specials were hired on  25 that -- for that purpose, but there were a number of  26 them.  And this letter refers to some of them, at  27 least.  2 8 THE COURT:  I haven't found it yet.  29 THE WITNESS:  It is the second paragraph, my lord, of tab 35b.  30 THE COURT:  Yes.  You say there is some mention of Simon?  31 MR. GOLDIE:  32 Q   In the first paragraph <PRAFR>.  33 A   In the first paragraph it is referred to, my lord.  34 MR. GOLDIE:  The third to last line:  "To assist in the capture  35 of Indians Peter and Simon."  36 THE COURT:  Oh, yes.  37 MR. GOLDIE:  38 Q   You identify the Simon on as Simon Gunanoot?  39 A   Yes.  4 0 THE COURT:  Could we adjourn, Mr. Goldie.  41 MR. GOLDIE:  Yes, my lord.  42  43  44  45  46  47 THE COURT:  All right.  Thank you.  10 o'clock, please. 20992  D.R. Williams (for Province)  In chief by Mr. Goldie  1 THE REGISTRAR:  Order in court.  Court stands adjourned until 10  2 o'clock tomorrow.   (PROCEEDINGS ADJOURNED TO OCTOBER  3 18, 1989 AT 10 O'CLOCK)  4  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein to the best of my  9 skill and ability.  10  11  12  13    14 LISA FRANKO, OFFICIAL REPORTER  15 UNITED REPORTING SERVICE LTD.  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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