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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-21] British Columbia. Supreme Court Oct 21, 1989

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 21246  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  MR.  THE  MR.  VANCOUVER, B.C.  October 21, 1989  THE REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, this 21st day of October, 1989.  In the  matter of Delgamuukw versus Her Majesty the Queen at  bar, my lord.  May I remind you, sir, you are still  under oath?  A   Yes.  REGISTRAR:  Thank you.  And would you state your name for  the record, please?  A   David Ricardo Williams.  REGISTRAR:  Thank you, sir.  COURT:  Mr. Adams.  ADAMS:  My lord, I'm handing up the extract from Mr.  Williams' notes that was provided to me yesterday  afternoon.  COURT:  Thank you.  ADAMS:  Q   And could that be put in front of the witness, please.  Mr. Williams, you recognize this document?  A   Of course.  Q   And the printing that appears opposite the question,  you will see the tab numbers running down the  left-hand side, 50 and then 51?  A   Yes.  Q   And then below 51 you see a "Q", which is your  conclusion with respect to this episode in 1872?  A   Right.  Q   And the printing there, is that yours?  A   Yes.  Q   All right.  And the handwriting on the bottom of the  document, is that yours?  A   Yes.  MR. ADAMS:  All right, my lord.  Could that be marked as the  next exhibit, please.  THE COURT:  Yes.  THE REGISTRAR:  Tab 19.  THE COURT:  Sorry?  THE REGISTRAR:  Exhibit 1172 tab 19.  (EXHIBIT 1172-19 - Extract from Mr. Williams' notes)  MR. ADAMS:  Q   Mr. Williams, in the hand printed portion opposite the  question I've referred you to, I take it that is your  answer to that question?  A   I don't think I was asked the question.  Q   I don't think you were either, but is that your answer 21247  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 to that question?  2 A   Yes.  3 Q   All right.  And your section on 1872 refers to the  4 burning of Kitseguecla and the events surrounding it,  5 does it not?  6 A   Yes.  7 Q   All right.  And your opinion summary coverage of that  8 event appears on pages 26 and following through to 30  9 of your opinion summary, Exhibit 1173?  10 A   Page 29.  11 Q   Yes, I'm sorry, thank you, 26 to 29.  And could you  12 confirm for me that you don't there express the  13 opinion that is recorded in 1172-19?  14 A  Well, I think I have referred to the -- to the  15 assistance that was offered by the chief of the  16 Hagwilget band to Mr. Fitzgerald.  I've referred to  17 that, I think, in the summary at page 28.  18 Q   Yes.  You don't there say that your conclusion with  19 respect to this episode is that it demonstrates the  20 willingness of the Wet'suwet'en to co-operate with law  21 enforcement officials, do you?  22 A   I don't say that in so many words in the summary, no.  23 Q   Yes.  Nor do you refer to the enforcement of law by  24 threat of force?  25 A   Not at that page, but I think at the end of my summary  26 I touched on that aspect of it at page 52, when I  27 said:  28  29 "On three occasions, in 1872, 1888 and 1909, that  30 recognition, indeed submission, was secured by  31 displays of military force, to be deployed if  32 necessary."  33  34 Q   And you have already said, I think, that you didn't --  35 weren't asked this question and didn't give these  36 answers in your direct examination?  37 A   I don't recall being asked.  38 MR. GOLDIE:  I think we should get the transcript, my lord.  3 9    MR. ADAMS:  40 Q   I have the transcript reference, my lord, and it's  41 volume 282, beginning at 21010, it goes on to 21014.  42 A   Yes.  43 Q   And in those pages you will see, I think, that you  44 don't make any specific reference to the enforcement  45 of law by threat of force nor to the willingness of  46 the Wet'suwet'en to co-operate as a conclusion about  47 the 1872 Kitseguecla incident? 2124?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A   I wasn't asked, I don't think.  MR. GOLDIE:  Well, I'm at a loss to understand the purpose of  this cross-examination, my lord.  Is it that the  witness should have followed the root map, or does he  wish to elicit from the witness additional opinions,  because that's what's happening.  MR. ADAMS:  What I wish to do, my lord, is to renew my  application for production of his document, because in  my respectful submission, even in the single page of  what is obviously a larger document that I happen to  have stumbled upon, the witness is expressing opinions  that are neither expressed in his summary nor in his  evidence, and in my submission if he is referring to  such opinions while he's on the witness stand  answering questions under cross-examination, and in  chief, for that matter, that I'm entitled to know what  it is he's including and leaving out, because that may  bear, in my submission, on his opinion, and I refer in  addition -- I didn't have this at my fingertips  yesterday, but in the -- Mr. Justice Finch's decision  in Phillips Barratt of 15, December, 1987 at page 7 --  at the last full paragraph, his lordship says:  "I am interested in the witness' opinion and the  weight which I may properly attach to it.  If  his opinion has been modified in some way by  communications from others, then I think I ought  to be told all that there is to know about such  modifications, no matter whether the  communications that led to those changes or the  notes that might serve to refresh the witness'  recollection of such communications are recorded  in his own hand or that of the lawyer or the party  who hired him."  And in my submission, what we have here is a reference  to notes to refresh the witness' recollection, and we  have expressions of opinion that are not given in his  evidence, and in my submission I'm entitled to inquire  into why they are not given in his evidence.  :  Well, I'm sorry, Mr. Adams, but I'm not with you on  this.  I think that the witness may not be expected to  explain why something is not in his evidence in chief  or in his opinion except in the usual way of asking  him for his opinions on matters that you wish to  examine him on, but to go beyond that, it seems to me,  is to enlarge in an unnecessary way the scope of  THE COURT 21249  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. ADAMS  THE COURT  MR. ADAMS  Q  A  Q  A  Q  A  Q  cross-examination.  If you wish to ask the witness  about these matters, well then you're at liberty to do  so, but it doesn't seem to me that one can look beyond  the material that went into the formulation of the  opinion to find out what other evidence the witness  was prepared to give if asked and then ask him why it  wasn't in his opinion -- or I'm sorry -- why it wasn't  in his evidence.  The witness isn't in control of what  he's asked at the time of his evidence in chief, and  it seems to me that while this whole area of  disclosure is under constant review, there must be  some limits to the amount of fine-tuning that goes  into the production of material that must be produced.  I've done my very best to comply in a general sense  with what Mr. justice Finch said.  He had an unusual  situation before him that isn't present here, so far  as I know, or hasn't been made apparent that it is  present in this case, and we're all struggling with  the consequences of Mr. Justice Finch's opinion, and  I've gone as far as I can go, I think, to follow it,  but I'm not prepared to go as far as you're suggesting  now.  Anything the witness looks at in the course of  his evidence, he has given his evidence, as I think I  said yesterday, you're entitled to look at, but I do  not think that you're entitled to go beyond where we  went at the end of my ruling yesterday.  Mr. Williams, I'm going to jump ahead a considerable  distance for a moment in your opinion summary and ask  you to look at page 48, please.  48?  48, my lord.  Yes.  And at the bottom of the page there you refer to the  year 1909 and confrontations, you say, stemming from  the assertion by Indians of the right to the land?  Yes.  And then you have the following sentence:  "The first was at Kitwanga, in June, when three  Indians stopped at gunpoint a party of surveyors."  Yes.  "A police constable from Hazelton attended two  meetings at Kitwanga with Indians both from  Kitwanga and Kitwancool in attendance, where land 21250  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 grievances were discussed."  2  3 A   Yes.  4 Q   And that's your recollection of your judgment as to  5 those events?  6 A   Yes.  I qualify it only by saying that I think that I  7 am mistaken in saying it was a party of surveyors.  I  8 think they were in fact men who were going through the  9 country with a view to settling.  10 Q   Yes, you did make that correction.  Now, do you recall  11 testifying early in your cross-examination that a  12 careful reading of the documents you're dealing with  13 is important in legal historical research?  14 A   Yes.  15 Q   And it is, isn't it?  16 A   Yes.  17 Q   Because to a considerable extent the validity of your  18 opinions depends on your being right about what's  19 contained in the documents?  20 A   Quite so.  21 Q   And I put it to you, sir, that in connection with this  22 passage that I've just read to you, you are mistaken  23 about almost every detail of the events you describe?  24 A   I do not believe I am mistaken.  25 Q   All right, let me start with this:  You've corrected  26 "surveyors" to "a party of land seekers", correct?  27 A  A party of men who were looking through the area with  28 a view to settling.  29 Q   All right.  Now, there was an incident involving  30 surveyors at Kitwanga, which you don't refer to, in  31 July 1909, and I would ask you to look at Exhibit  32 1035, which are Dr. Galois' materials, volume 5 at tab  33 306.  And you will see that's an extract from the  34 Province of July 27, 1909, correct?  35 A   Yes.  36 Q   All right.  And then this is a newspaper article  37 headed "Skeena Indians Are Looking For More Trouble",  38 and then the subhead, "Jubilant Over Acquittal  39 of Man Who Fired Shot Near Survey Party"?  40 A   Yes.  41 Q   And then you will see that the text of the article  42 datelined Hazelton on July 27th, says:  43  44 "The Indian population is jubilant over the  45 acquittal of Mark Benson of the Kitwingak reserve  46 on the charge of intimidation."  47 21251  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q  3 "A.W. Harvey, a surveyor from Victoria, and two  4 assistants had a close call from Benson's rifle  5 fire while engaged surveying below here last  6 week."  7  8 A   Yes.  9 Q  10 "The Indian was arrested and taken to Hazelton,  11 where the trial took place before Magistrate  12 Allison."  13  14 A   Yes.  15 Q  16 "For the defence it was argued that the accused had  17 fired the shots as a signal to his squaw to cross  18 the river in her canoe, and that he was unaware of  19 the presence of the white men on the opposite  20 shore.  Several bullets whistled in close  21 proximity to Harvey's party.  22 The prosecution submitted a number of threatening  23 letters written by Indians.  24 The magistrate decided there was not sufficient  25 evidence to commit for trial.  26 The recent incident tended to arouse no little  27 feeling among the white people.  Many Indians  28 regard the whites as interlopers and anxiously  29 await the decision of Ottawa in regard to their  30 demands.  Meantime they are displaying some  31 uneasiness.  Missionaries are doing good work in  32 preventing any overt acts of hostitility.  33 The Indians of several reserves on the Skeena have  34 asked for grants of 140 acres for each Indian,  35 male and female, and free sites along the shore  36 for the drying of salmon."  37  38 A   Yes.  39 Q   Now, that was an incident involving surveyors at  40 Kitwanga, was it not?  41 A   It was.  I have not read this account of the Province,  42 I have seen it only today.  There is an account in the  43 Omineca Herald of the same incident, which I did read.  44 Q   All right.  It's not something that you referred to in  45 your opinion summary?  46 A   You're correct.  47 Q   All right.  Now, leaving that aside, let's come back 21252  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 to the events that you do talk about.  And you relied  2 in your direct evidence in speaking of this incident,  3 or at least you referred to a statement by one Arthur  4 Skelhorne; do you recall that?  5 A   Yes.  6 Q   All right.  And it's in this same volume at tab 287.  7 A   The same volume I have?  8 Q   Yes.  Just backing up to 287, which will just appear  9 as an 87.  10 A   Right.  11 MR. GOLDIE:  I think that's tab 96, my lord, in Mr. Williams'  12 material.  13 THE COURT:  Thank you.  14 MR. ADAMS:  15 Q   And the first two pages of this tab are a letter from  16 Constable Deane to Superintendent Hussey dated June  17 5th, 1909?  18 A   Yes.  19 Q   And that's enclosing Skelhorne's statement?  20 A   Yes.  21 Q   All right.  And then the statement itself follows, and  22 you understand this to be the document that was  23 enclosed with Deane's letter?  24 A   Yes.  25 Q   All right.  And he says at the beginning -- at the  26 beginning of Skelhorne's statement:  27  28 "I, Arthur Skelhorne, of Hazelton accompanied by  29 John Blume of Hazelton landed at the village of  30 Kitwangak on Wednesday, June 2nd, 7:00 a.m."  31  32 A   Yes.  33 Q   And that's the date on which you understand this  34 incident occurred; is that correct?  35 A   That's when Skelhorne says it occurred, yes.  36 Q   All right.  And do you accept that?  37 A   Yes.  3 8 MR. ADAMS:  All right.  39 MR. GOLDIE:  That's tab 96d, my lord, of Mr. Williams' material.  4 0 THE COURT:  Yes, thank you.  41 MR. ADAMS:  42 Q   And it carries on:  43  44 "We started off down the trail over the reserve  45 which leads on to the Kitwancool trail."  46  47 And you understand we're still at Kitwanga here? 21253  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   All right.  3  4 "After going about one mile and being still on the  5 reserve we were surrounded by four Indians, three  6 of whom were armed with rifles."  7  8 Q   Do you see that?  9 A   Yes.  10 MR. ADAMS:  Now, this is a minor point, but you referred to  11 three Indians, and it appears there were four,  12 correct?  13 MR. GOLDIE:  Well, he says three stopped at gunpoint, Mr.  14 Skelhorne says in the report three of whom were armed.  15 I assume the unarmed Indian couldn't stop anybody at  16 gunpoint.  17 MR. ADAMS:  18 Q   My lord, I wonder if the witness could answer the  19 question for himself?  20 A   I said the first was at Kitwanga in June when three  21 Indians stopped at gunpoint a party of surveyors.  22 Q   Yes.  And I just invited you to agree with me that  23 while three people ended up being -- informations were  24 issued with respect to three people, there were  25 actually, according to Mr. Skelhorne, four Indians?  26 A   So he says.  27 Q   All right.  And you will see, as he carries on to say:  28  29 "Three were armed with rifles.  They inquired our  30 business, and on being told we were intent on  31 going along the Kitwancool trail looking over the  32 country prospecting for land."  33  34 A   Yes.  35 Q   All right.  And then you will see it carries on  36 describing this incident, threats, their determintion  37 to go ahead?  38 A   Yes.  39 Q   He says:  40  41 "I argued with them for an hour without any avail  42 and at last turned back escorted by the Indians to  43 seek the intervention of Mr. Price the minister on  44 our behalf."  45  46 A   Yes.  I take that to be Mr. Pierce.  47 Q   All right. 21254  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "The Indians organized a big council meeting and  2 summoned Blume and I along with Mr. Price and  3 three preemptors who were also going in on that  4 trail, all to attend" --  5  6 Either "the" or "their" meeting."  7  8 A   Yes.  9 Q   Now, you didn't refer anywhere to the three  10 preemptors, did you?  11 A   No.  12 Q   All right.  13  14 "We were then questioned and cross-questioned by  15 the leading members of the tribe, Mr. Price  16 interpreting.  They asked us our intentions and we  17 gave them, and Blume saying we were going  18 prospecting for land, the preemptors saying they  19 were going to settle on their preemptions."  20  21 A   Yes.  22 Q  23 "The result of a three hour meeting concluded with  24 the whole tribe warning us from going in on that  25 trail saying we would meet with serious trouble  26 if we went and also at no time in the future would  27 any white man be allowed into that country until  2 8 the Government had done something for them in the  29 matter of land."  30  31 A   Yes.  32 Q   All right.  Now, was that one of the meetings that you  33 intended to refer to when you said on page 49 "A  34 police constable from Hazelton attended two meetings"?  35 A   Yes.  If you will allow me to look at -- Constable  36 Deane, as I recall, attached to his own letter what he  37 called the minutes of the meeting.  It's at -- it's at  38 tab —  39 Q   I think you'll find it at —  4 0 A   9 6e of my volume.  41 Q   Yes.  You'll find it here at 286.  42 A  Well, I have my volume in front of me, Mr. Adams, and  43 the names of the people -- names of the white people,  44 at least, present at that meeting were given as  45 Dutton, Skelhorne, Blume, Nicholson, and Lenson.  46 Q   Yes.  And who do you say kept the minutes of that  47 meeting? 21255  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   I am not sure who did those minutes.  2 Q   But you do say that Constable Deane was present?  3 A   He -- Allison, in his letter of June 15th, says:  4  5 "I am enclosing herewith a copy of notes of two  6 meetings held at Kitwangak village as furnished by  7 Mr. Deane."  8  9 Q   Yes.  That says, does it not -- that the minutes were  10 furnished by Constable Deane, not that he was present?  11 A   Yes -- well, at the bottom of the copy of the meeting  12 that was held on the 11th the transcribe -- the  13 transcript, rather, says "Signed John R.C. Deane,  14 Constable 15 June, 1909.  15 Q   And yes, it does, and with respect, the June 2nd  16 meeting, which is the one I'm asking you about, there  17 is no such -- no station, is there?  18 A   That's so.  19 Q   And there's no reference in it to Constable Deane's  20 presence?  21 A   There is not.  22 Q   And there's no record of him having said anything  23 there?  24 A   There is not.  25 Q   And he is not referred to in Mr. Skelhorne's statement  26 as being there or saying anything there?  27 A  Well, no.  28 Q   All right.  So let me try to summarize this incident  29 so far.  Mr. Skelhorne and others set off from the  30 vicinity of Kitwanga on the 2nd of June, 1909, they  31 encounter four Indians, three of whom are armed?  32 A   Yes.  33 Q   Who prevent them from passing.  That same day,  34 apparently, the Indians at Kitwanga convene a meeting  35 to which they summon Skelhorne and Blume, who are  36 partners, and three preemptors.  37 A   Yes.  38 Q   And according to Skelhorne they -- I think his phrase  39 is question and cross-question -- yes.  It's tab 287,  40 my lord, of Exhibit 1035, where he says at the top of  41 page -- page 2 of Skelhorne's statement, it's page 4  42 of the tab:  43  44 "We were then questioned and cross-questioned by  45 the leading members of the tribe, Mr. Price  46 interpreting."  47 21256  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D.R. Williams (for Province)  Cross-exam by Mr. Adams  A   Yes.  Q   And I think if you look in the same tab, that is 287,  at Mr. Deane's letter of June 5th, 1909 —  A   Yes.  Q   Do you have that?  A   Yes.  Q   And if you look on the first page, you will see him  writing to Mr. Hussey in the second paragraph:  "I am going down river on Monday the 7th to serve  summons on these men."  A   Yes.  Q Now that's after the June 2nd incident and June 2nd  meeting, isn't it?  A   Obviously.  Q And it's clear from that, is it not, that Constable  Deane wasn't there, assuming he did what he said he  was going to do here, before the 7th of June?  A   Yes.  Q   And therefore he couldn't have been there on the 2nd  of June?  A   Evidently not.  Q   Yes.  And therefore a police constable from Hazelton  did not attend two meetings at Kitwanga?  A   Evidently I am mistaken.  MR. ADAMS:  Yes.  MR. GOLDIE:  Deane's letter is 96d, my lord.  THE COURT:  Thank you.  MR. ADAMS:  Q   Now, it appears that Constable Deane did in fact on or  after the 7th go down to Kitwanga, and if you go to, I  think it's tab 286, and at the third page in you will  find the notes of Deane's that you had referred to?  A   Yes.  Q   And those are written on the 15th of June, correct?  A   Yes.  Q   And they refer to a meeting held the 11th of June?  A   Yes.  Q   And that is entitled:  "Notes of a meeting held by the Kitwangak and  Kitwancool Indians at the village of Kitwangak on  the evening of the 11th, June, 1909, to which they  invited Constable Deane."  A  Yes. 21257  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 MR. GOLDIE:  This is tab 96e, my lord.  2 THE COURT:  Thank you.  3 MR. ADAMS:  4 Q   And then the statements that are there recorded.  It  5 says:  6  7 "Chief Limadeeks spoke:  Welcomed me to the  8 meeting; said they did not want trouble but the  9 land was theirs and did not belong to the  10 government, as the white people had never  11 conquered his people, nor did they buy it from  12 them, and they would not let any white man stake  13 that land."  14  15 A   Yes.  16 Q   And then if you go to the bottom of the document you  17 will see "Lak-Nits", L-A-K-N-I-T-S, "also spoke in the  18 same strain"?  19 A   Yes.  20 Q   "Others also spoke to the same effect"?  21 A   Yes.  22 Q   So it wasn't just that land grievances were discussed,  23 as you write on page 49, it's that an assertion was  24 made at that meeting, as recorded by Constable Deane,  25 that the land belonged to the Indians and not to the  2 6 government?  27 A   Yes.  28 Q   And is that the same thing you intended to refer to  29 when you said land grievances were discussed?  30 A   Yes.  31 Q   And was that a full-blown assertion of aboriginal  32 title, or was it missing a reference to the Royal  33 Proclamation?  34 A   I think that this is a -- there's certainly no  35 reference to the Royal Proclamation, but there is --  36 they're certainly asserting their claim to the land.  37 Q   And is that a full-blown assertion of aboriginal  38 title?  39 A   I don't consider it a full-blown assertion of  40 aboriginal title, because it's not company to some of  41 the other discussions by references to it, or  42 certainly implied references to it.  43 Q   To what?  44 A   To the Proclamation.  45 Q   And you have to have a reference, in your view, to the  46 Proclamation before you have a full-blown assertion of  47 aboriginal title? 2125?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  A   '  2  3  4  5  6  7  1  8  Q  9  10  A  11  Q  12  13  A  14  MR.  ADAMS:  15  16  MR.  GOLDIE  17  MR.  ADAMS:  18  THE  COURT:  19  A  20  21  22  23  24  25  26  27  28  29  MR.  ADAMS:  30  Q  31  32  33  34  35  A  36  Q  37  38  39  A  40  41  42  43  44  Q  45  46  47  A  Well, that was my phrase for it, Mr. Adams.  Again, I  say I was not offering advice on Indian title or  aboriginal title, my use of the phrase full-blown  assertion, I meant a full-scale discussion of the  problem and the alleged claims based on it by the  Indian people.  I don't know that this answers that  definition, but if you say it does, I accept it.  You do accept that that this is a full-blown assertion  of aboriginal title?  It's not a term of art on my part.  Yes.  I want to be clear, you accept that this is a  full-blown assertion of aboriginal title?  No.  I do not.  And what again is missing from it?  Is it simply  that it doesn't refer to the Royal Proclamation?  :  Let him answer your question first.  I would like to finish asking him --  You interrupted him, Mr. Adams.  I had already said, Mr. Adams, I was not asked to  inquire into the history of the assertion by the  Indian people in the claim -- area of their claims to  land by virtue of aboriginal title.  I made  observations on it.  I, for my part, took it that as a  full-blown assertion of title one would have to have  all the elements of entitlement discussed or laid out.  Perhaps I was wrong to do that, but that was the point  I -- that was what I had in mind when I used that  language.  You didn't simply make observations about assertions  of title,, full blown or otherwise, did you, you came  to conclusions about when it was first hinted at and  when there was first the full-blown assertion, and  those are on page 2 of your opinion report?  Yes.  And you made repeated reference throughout your  report, did you not, to the presence or absence of  assertions as to ownership of the land?  I haven't added up the number of references in the  report, Mr. Adams, to know whether your word  "repeated" is justified, but certainly I have referred  at various places to the question of aboriginal title,  yes .  And just on the page we happen to be on, which was 49,  at the end of the first paragraph you refer to land  claims?  Yes. 21259  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  Q  2  3  A  4  Q  5  6  7  A  8  Q  9  A  10  Q  11  12  13  14  15  A  16  17  Q  18  A  19  MR.  GOLDI  20  MR.  GOLDI  21  MR.  ADAMS  22  MR.  GOLDI  23  A  24  MR.  ADAMS  25  Q  26  27  28  29  30  31  32  33  A  34  Q  35  A  36  Q  37  38  39  40  41  A  42  MR.  ADAMS  43  44  THE  COURT  45  46  MR.  ADAMS  47  THE  COURT  At the end of the second paragraph you refer to land  claims?  Yes.  And I invite you to agree with me that your report is  replete with references to the assertion or  non-assertion of title?  Yes.  And land claims?  Yes.  Yes.  And you have already agreed with me, I think,  that that was significant to your subject, that is  it's a factor in considering whether law and order has  been imposed and accepted, whether assertions of title  are being made?  It was one of the elements in my consideration of the  behaviour of the people at the time.  Now, just before I leave this document --  Which document is that?  E:  The Deane letter, which you'll find at 287.  E:  96.  :  That's Deane's June 5th letter.  E:  96d.  Yes.  And there in the middle of the first page Constable  Deane writes:  "Mr. Loring Indian Agent told me the Indians will  do nothing for him, nor will his Indian police  obey him, and he wants to get 75 or 100 men  of the R.N.W.M.P. force here."  Yes.  All right.  And you noted that statement, did you?  Yes.  All right.  Now, with respect to the incident you  discussed on your report at pages 48 and 49 at  Kitwanga in June 1909, I put it to you again that you  were mistaken in almost every detail that you recorded  here?  I don't accept that.  :  All right.  You were mistaken about the number of  Indians who stopped the party?  :  Well, we've been through that, Mr. Adams.  I know  what the evidence there is.  :  My lord —  :  There's argument about whether he's mistaken.  You 21260  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  MR.  ADAMS  3  Q  4  5  6  A  7  Q  8  9  10  11  12  A  13  Q  14  A  15  Q  16  17  18  19  20  21  22  23  A  24  25  26  27  Q  28  29  A  30  Q  31  A  32  33  Q  34  35  36  37  A  38  MR.  GOLDI  39  MR.  ADAMS  40  Q  41  A  42  MR.  ADAMS  43  THE  COURT  44  A  45  THE  COURT  46  47  A  say he was and he says he isn't.  Yes, all right.  Let me take you back where we left  off yesterday, that was on page 30 of Exhibit 1173,  your opinion summary.  Yes.  And there under the heading of "1874", I think I had  begun to refer you to a letter which is to be found at  volume 3 of your materials, tab 52b.  Now, that's the  Tomlinson letter that relates to this incident, is it  not?  Yes.  And it's one that you referred to in your evidence?  Yes.  All right.  Now, this is a point of information as  much as anything.  Could you just explain for us,  please, how you got from the material in the Tomlinson  letter, or whatever else it was you referred to to  write this, to detect a faction at Kispiox allied with  or encouraged by Nass River Indians who feared that if  the country were opened up they would lose the power  over the Gitksans?  Well, the statement that I have made there, Mr. Adams,  is drawn from several sources, not restricted to  Tomlinson.  I have not, I see, quoted from Tomlinson  in my summary at page 30.  Yes.  My question was from that letter or anything  else you referred to?  Well, I did refer to other correspondence.  Yes?  One letter from Mr. Glenn and a letter from -- there  were other letters on the subject.  I'm a little handicapped in this, Mr. Williams,  because your notes at page 56 don't refer in this  connection to the Tomlinson letter or to anything  else?  Yes.  £:  Page 56 of what?  Of Exhibit 1173.  You drew my attention to that yesterday, you're right.  :  Yes.  :  You've got "Kitiksheans" --  That's how it was spelled, my lord.  :  -- in quotations.  Where does that quotation come  from?  That comes out of one of the letters. 21261  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 MR. ADAMS:  2 Q   That's Mr. Tomlinson's spelling at least, isn't it?  3 A   Yes, it is, yes, that's right.  4 MR. ADAMS:  And this was the document you referred to in your  5 direct evidence in connection with this incident?  6 MR. GOLDIE:  I think he also referred to the Woodcock letter at  7 tab 52c?  8 A   Yes.  9 MR. ADAMS:  10 Q   The outstanding question is where in the Tomlinson  11 letter, the Woodcock letter, or anything else you  12 referred to in connection with that incident did you  13 detect a faction at Kispiox allied with or encouraged  14 by Nass River Indians as responsible for firing on the  15 pack train leading north at Kispiox in 1874?  16 A   That was the sense that I took from Tomlinson's letter  17 and also from Glenn's letter.  Tomlinson says at the  18 bottom of page 1 of his letter:  19  20 "At first it seemed doubtful if the plan" --  21  22 That is his plan, Tomlinson's plan for a new trial,  23 which would avoid difficulties of this kind:  24  25 "would have a fair trial such a strenuous effort to  26 prevent any of the Kitiksheans from working on the  27 trail was made by a party from a tribe at the head  28 of Canoe Navigation on the Nass River, headed by  29 two of their chiefs, who feared that if the  30 country was opened up the Kitiksheans would not be  31 so much in their power and therefore they could  32 not drive such hard bargains with them in trade."  33  34 Q   Yes.  And he's referring, is he not, to the  35 construction of the trail in 1875 by Indians after the  36 1874 event that you refer to?  37 A   Yes.  But arising out of the 1874 event.  38 Q   All right.  And the way I read that, and correct me if  39 I'm wrong, he appears to say that whoever the tribe at  40 the head of Canoe Navigation on the Nass may have  41 been, they were making an effort to prevent any of the  42 Gitksans from working on the trail?  43 A   That's what he says.  44 Q   And to the best best of your knowledge, the people at  45 Kispiox are Gitksan?  46 A   Yes.  47 Q   Then I ask you again, how you get from that letter, or 21262  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 anything else you've referred to, to detecting a  2 faction at Kispiox allied with Nass River Indians?  3 A   I take that to be the sense of what Mr. Tomlinson was  4 saying.  5 Q   And is that what you rely on in that connection?  6 A   Combined with what Glenn himself says.  7 Q   Are you able to locate where the reference to Glenn is  8 in your material?  9 A  Well, Glenn says -- the second page of his letter.  10 Q   Sorry, what tab of your material?  11 A   Sorry, my lord, it's tab 52a.  "There appears to be a  12 rivalry"  -- on the second page about two-thirds of  13 the way down:  14  15 "There appears to be a rivalry between the two  16 parties about crossing people, and it is too bad  17 that men trading should run the risk of losing  18 their lives on that account."  19  20 Then —  21 Q   Is there anything else you wish to refer to in  22 answering that question?  23 A   Not in that letter, no.  24 Q   And you will agree with me that in neither the  25 Tomlinson nor the Glenn letter is there a reference to  26 a faction or an alliance?  27 A  Mr. Adams, in my reading of the -- of this  28 correspondence, that was my judgment of what it was  2 9 about.  30 Q   So is it not that you found Mr. Tomlinson's letter at  31 least confusing?  32 A   It is -- it is difficult to say just who the -- he  33 does not identify, as you rightly point out, just who  34 the people were on the head of canoe navigation on the  35 Nass, but the general tendency of the letter is  36 reasonably clear.  37 Q   Did you find his letter confusing?  38 A   I don't think I find it confusing.  I found it  39 initially a little hard to understand just who was  40 involved in the affair, but as to identity of people,  41 or bands, but the general tendency seems to be there  42 that there was difficulty between one segment of the  43 Indian people and another.  I don't think -- I don't  44 see much confusion in that general tendency.  45 Q   Let me ask you to look, please, at Exhibit 1172, which  46 is the cross-examination binder at tab 2, page 23.  4 7 A  Mm-hmm. 21263  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  THE  COURT  2  MR.  ADAMS  3  THE  COURT  4  MR.  ADAMS  5  Q  6  7  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  16  A  17  MR.  ADAMS  18  19  20  MR.  GOLDI  21  A  22  23  24  25  26  MR.  ADAMS  27  Q  28  29  A  30  Q  31  A  32  Q  33  34  35  A  36  37  38  Q  39  40  41  42  43  A  44  45  46  Q  47  Page 23?  Page 23, my lord.  Thank you.  And that's a page headed "Indian Unrest" with a  printed number 3 next to the handwritten 23.  Do you  have that?  Yes.  And you refer there to Mr. Tomlinson's letter?  Yes.  And you say there "I find his letter rather  confusing"?  Yes.  And but apparently Nass River Indians were  responsible?  Yes.  :  You didn't think -- or it isn't your view now that  it was Nass River Indians who were doing the shooting,  was it, or threatening?  £:  That isn't what he says.  Well, as I said a moment ago, it's hard to identify  just who was doing the -- who were the -- who the  people were, but I haven't any trouble with that.  This, incidentally, was written -- and what you see  here at this tab was written in December of 1986.  Yes, it was.  And your report was rendered at the end  of March 1987?  1987, yes.  Yes.  I see nothing inconsistent with that.  All right.  So somewhere between December '86 and  March '87 your confusion cleared up with respect to  this incident?  Well, one -- the letter does not contain every detail  of the people involved in it, and I have taken the  sense of it.  But the confusion was specifically with respect to who  was involved, wasn't it?  You say the difficulty was  apparently not with the Kispiox Indians, you find his  letter rather confusing, but apparently Nass River  Indians were responsible?  Yes.  There were -- they -- if that, you know, if the  Nass people were down at Kispiox -- well, I'm  speculating, I shouldn't.  Yes.  All I want to know is the source of your  confusion with respect to Mr. Tomlinson's letter as to 21264  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 the identity of the people involved and to which  2 Indian groups they belonged?  3 A  Well, he -- he's talking about, for example at the  4 bottom of the second page -- you see it's difficult to  5 tell who he's talking about here.  He says that:  6  7 "Several of the ring leaders of the party who  8 molested the packers at Kispiox last season" --  9  10 That's 1874:  11  12 "Since my return from the trail I have been  13 informed by some who have visited the Kispiox  14 village that year that several pack trains had  15 passed without any molestation, that all was  16 quiet."  17  18 And then elsewhere in the letter here, I've just  19 forgotten what page it is, he refers to some of those  20 people who had objected in the year earlier were now  21 working on the new trail, 80 of them.  He doesn't say  22 who they were.  23 Q   Yes?  24 A   I agree.  25 Q   The question I had asked you was that the source of  26 your confusion was centred on the identity of the  27 persons or groups involved?  28 A   I don't -- I don't admit to being confused on this  29 matter.  I'm saying that there are some elements in  30 the letter which are incomplete.  31 Q   All right.  My other question then was to ask you if  32 sometime between December 1986 and March 1987 the  33 confusion you record in your notes was cleared up?  34 A   I -- I have given my evidence on that point in this  35 case, and I stand by that.  36 Q   Now, still just -- now, at the bottom of page 30 of  37 your opinion summary -- well, on page 30 in general  38 you had spoken of a single incident in August of a  39 pack train heading north.  This is at the top of page  40 30 of your summary.  41 A   Yes.  42 Q   All right.  And you do only refer to one incident here  43 of that kind; is that correct?  44 A   In this section of my summary, yes.  45 Q   Yes.  And in fact, there were several incidents at  46 this time, and they weren't confined to Kispiox, were  47 they? 21265  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A  Would you tell me which incidents you refer to,  2 please.  3 Q   Well, are you aware to having left any out, is my  4 first question?  5 A   I -- so far -- in this section of my summary, Mr.  6 Adams, I am talking about the episode at Kispiox.  7 Q   A single episode?  8 A  A single episode, yes.  9 MR. ADAMS:  All right.  Let me ask you then, please, to look at  10 Exhibit 1035, which are the Galois materials, volume  11 4, tab 152?  12 THE REGISTRAR:  Is this a newspaper article?  13 MR. ADAMS:  14 Q   It's a newspaper article from the Colonist dated, as I  15 read it, August 23rd, 1874.  And you see that it's  16 datelined Skeena Forks, August 8th, 1874?  17 A   Yes.  18 Q   All right.  And you understand that to be at Hazelton  19 or Gitanmaax?  20 A   Yes.  21 Q   All right.  And then the author says this:  22  23 "Allow me through your paper to give the public  24 some idea of the state of affairs in this  25 locality.  The tribes of Indians are numerous and  2 6 abusive.  They are not depended upon for a moment.  27 Their offensive language and conduct are hard to  28 bear, and people have to sacrifice some property  29 nearly every day in order to keep them quite.  30 They have never been taught what law or justice  31 are.  32 Several parties have arrived here on their way to  33 Cassiar, and scarcely any have been permitted to  34 pass without more or less loss of time and  35 property.  In June last Mr. Campbell of Thompson  36 River Valley crossed the Skeena at the Kispiox  37 Ranch, some 15 miles above this place.  The  38 Indians belonging to the place in broad day  39 plundered and abstracted from the train any goods  40 they thought fit, and left the party destitute of  41 blankets and horses without rope."  42  43 A   Yes.  44 Q   Now, that wasn't the incident you were referring to,  45 was it, in your opinion summary?  4 6 A   No.  47 Q   All right.  And then at the bottom of what turns out 21266  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 apparently to be Mr. Youmans' letter, he says in the  2 final paragraph -- well, the last two paragraphs:  3  4 "If you mention to the Indians about making these  5 outrages public, they only laugh at you and say if  6 you have a government they have as little respect  7 for you as they have for a slave and you had  8 better 'dry up'.  9  10 A   Yes.  11 Q  12 "There never has been even as much as a constable  13 here, nor any person to administer justice.  If  14 there were a few men stationed on the river to  15 give them powder and ball in place of the potlatch  16 they received at Metlakatla, the Kitsagucla affair  17 would not have occurred."  18  19 A   Yes.  2 0 Q   "A.C. Youmans"?  21 A   Yes.  22 Q   Now, let me ask you in that connection what did you  23 understand Youmans to be referring to when he referred  24 to the potlatch they received at Metlakatla?  25 A  Well, I sometimes -- as I've read this letter, just  26 let me have a look at it again.  I can't say what he's  27 talking about.  28 Q   You do know where Metlakatla is?  29 A   Of course.  30 Q   Where is Metlakatla?  31 A  Well, I can't give you the longitude and latitude, but  32 it's on the coast, the Duncan settlement, mission  33 settlement.  34 Q   Mm-hmm.  And you will see that carrying on in this  35 newspaper article there's a heading after Mr. Youmans'  36 name, "Letters Referred To In Above Communication"?  37 A   Yes.  38 Q   And there's one by a Mr. Pettingill?  39 A   Yes.  40 Q   The Indians dateline Skeena River, August 3rd:  41  42 "The Indians have demanded more goods than we had  43 agreed to give them and threatened to shoot us if  44 we did not comply with their demands.  They loaded  45 all their guns and told us not to touch anything  46 until we gave them all they asked."  47 21267  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 And then the letter immediately below that, which says  2 P. Prinder, and I think we may discover from other  3 material that it should be Grinder.  But in any event,  4 he addresses Mr. Youmans as follows:  5  6 "We have got over the river after considerable  7 trouble.  The Indians would not let Jim, the  8 Indian, go across.  We expect trouble.  There will  9 have to be some protection given to travelers on  10 this road.  The Indians all came over armed, and  11 at one time we thought they would kill Jim.  They  12 asked for $100 or would make us turn back.  They  13 load firearms before us and fire them off over our  14 heads.  If we get away from here with our lives,  15 we shall consider ourselves lucky."  16  17 A   Yes.  18 Q   Now, that wasn't part of the incident you were  19 referring to, was it, in your opinion summary at the  20 top of page 30?  21 A   No.  22 Q   No.  Because this appears to have been at Gitenmaax or  23 Hazelton, and the one you referred to was at Kispiox?  24 A   I was talking about the Kispiox affair, yes.  25 Q   Yes.  And at the time that you wrote your opinion  26 summary, were you aware of these events as recorded at  27 Hazelton?  28 A   I cannot be sure, Mr. Adams, whether I saw these --  29 this correspondence or these letters in a Colonist  30 before or after my summary.  31 Q   All right.  You didn't refer to these events in your  32 evidence, did you?  33 A   No.  34 Q   All right.  They were events that should be considered  35 as relevant to your subject, should they not?  36 A   I agree.  37 Q   All right.  Let me ask you to turn to the next tab,  38 which is 153 in Dr. Galois' volume 4.  39 A   Sorry, which tab is it?  40 MR. ADAMS:  Sorry.  Next tab, it's 153.  That's another  41 newspaper article dated October 13th, if I'm reading  42 it correctly, 1874?  43 MR. GOLDIE:  I think it's 18th, is it not?  44 A   Yes.  It's about Father Grandidier.  4 5    MR. ADAMS:  46 Q   There's a heading on the left-hand column, "General  4 7 News"? 2126?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Oh, over there, all right.  2 Q   Do you see that?  And in the second paragraph of that  3 column under "General News" it reads:  4  5 "Messrs. McCallum and Pettingill arrived at  6 Woodcock's Landing from the Forks of the Skeena on  7 the 18th of September.  They have been employed as  8 packers for Phil Grinder, who last spring  9 undertook to pack from Clinton to Cassiar.  They  10 found abundance of food for animals until they had  11 passed Kispiox on the Skeena about 25 miles.  They  12 then for about 170 miles travelled through an  13 almost grassless country and encountered other  14 difficulties."  15  16 And it carries on.  Then skipping half a dozen or  17 eight lines:  18  19 "There were three trains in company belonging to  20 the following:  Thompson Hutchinson, Phil Grinder  21 and Alex Burnett.  The Indians at Kispiox were  22 troublesome and even shot at Burnett and one of  23 the others; they also robbed the trains of  24 flour, demanding pay for passing through their  25 country."  26  27 A   Yes.  28 Q   Was that the incident you were referring to in your  29 opinion summary at page 30?  30 A   No.  31 Q   And is that one you were aware of when you wrote your  32 summary?  33 A  Again, I've read this, but I'm not sure whether I read  34 it before or after the summary.  It's certainly  35 something that I've seen.  36 Q   It's not one that you included in your evidence?  37 A   No.  38 Q   If you could turn to the next tab, please, which is  39 154 in Dr. Galois' volume 4.  Do you have that?  40 A   154, yes.  41 Q   That's another Colonist article, this time October  42 14th, 1874?  43 A   Yes.  44 Q   It has a headline "From Skeena to Stickeen River"?  45 A   Yes.  46 Q   And it begins:  47 21269  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "Mr. R. Glenn and R. Cullen left Omineca on the  2 27th July last for Dease Creek.  They came to the  3 forks of Skeena River and there joined Red Aleck's  4 packtrain on the way to Cassiar.  At Kispiox Mr.  5 Glenn and Aleck were fired upon by the Indians who  6 tried to stop the packtrain."  7  8 Is that the incident you were referring to in your  9 opinion report at page 30?  10 A   I believe so.  11 Q   All right.  And then going one further tab to 155, in  12 Dr. Galois' volume 4?  13 A   Yes.  14 Q   And that Colonist article October 18th, 1874?  15 A   Yes.  16 Q   And there are reports referring to parties, including  17 under the heading of "The Trouble At Skeena" and  18 "Neglect of The Government" —  19 A   Yes.  20 Q   -- there's a reference to a Mr. Humphrey's party?  21 A   Yes.  22 Q   And it records his party:  23  24 "Is leaving Hazelton in the early spring to cut a  25 trail, either to intersect the trail from the head  26 of navigation on the Stickeen, or if possible, to  27 strike Dease's Lake.  After he arrived at" --  28  29 What is spelled C-U-L-D-A-W, and I take it that's  30 Kuldo?  31 A   Yes.  32 Q  33 "Some 80 miles from the lake, nothing more was  34 heard from him."  35  36 A   I gave evidence about Humphrey's party.  37 Q   Right.  38  39 "Some three weeks after this the first cattle party  40 passed Hazelton, and the Indian, i.e. the  41 Kyspyouks, were inclined to be troublesome, but it  42 ended in talk."  43  44 A   Yes.  45 Q   That's not the incident you were referring to, because  46 you were talking about a shooting incident?  47 A   That is true, but I don't recall Hazelton -- Humphreys 21270  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 in his diary talking about any difficulty at Kispiox.  2 He had difficulty at Kuldo because he couldn't get  3 people to pack for him.  4 Q   Carrying on:  5  6 "The next party of cattlemen, namely L. Campbell's,  7 when they got to Kyspyouks, were threatened, and  8 black mail was levied by stealing flour, tobacco,  9 etc., and killing one of their cattle.  They  10 further said that if any more passed that way they  11 would certainly kill them.  The Indians at the  12 Forks, who as yet had been quiet and civil, now  13 began to talk and claimed the settlers, gardens as  14 their ground."  15  16 A   Yes.  17 MR. GOLDIE:  That's tab 55 in Mr. Williams' material, my lord.  18 And it's quoted from at page 31 of his report.  19 MR. ADAMS:  2 0 Q   And then on the right-hand column of that same  21 article, just about the middle of the -- portion of  22 the column that is connected to this one, and you will  23 see in the middle of the paragraph the distances from  24 Fraser River to Dease Lake?  25 A   Yes.  26 Q  27  28 "is not less than 700 or 800 miles, and the whole  29 of that distance there is not the least sign  30 of any legal authority whatever, while the route  31 passes through country inhabited by no less  32 than eight tribes of Indians, numbering at least  33 4,000 people."  34  35 A   Yes.  36 Q  37 "The small town of Hazelton at the Forks of the  38 Skeena has now been started over three years, and  39 although situated in the midst of Indian tribes  40 and a whites continuously passing to and fro,  41 no legal authority has ever been stationed there.  42 Mr. Brown has paid two visits, one to arrest a  43 white man, and the other trip already referred  44 to."  45  46 A   Yes.  47 THE COURT:  What's the date of that please, Mr. Adams? 21271  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  The date, my lord?  Yes.  Is October 18th, 1874 in the Colonist.  Thank you.  MR. ADAMS:  THE COURT:  MR. ADAMS:  THE COURT:  MR. ADAMS:  Q   Now, you say at page 31 of your opinion summary that:  "On October 18, the Colonist printed a letter from  a 'correspondent' at Hazelton, commenting on the  affair."  A   Yes.  Q   Now, the affair dealt with in this letter is not at  least confined to the one that you referred to  beginning on page 30, is it?  A   No.  Q   So that the letter we've just referred to signed  "Hazlenut" was more than a comment on the affair that  you were talking about, wasn't it?  A   I don't say that it's restricted to one subject or  another.  He does comment on the 1874 Kispiox affair.  Q   All right.  You didn't intend to say that that was the  extent of what he was commenting on?  A   No.  Q   All right.  Now, in the portion I read to you, back on  the left-hand column of the first page, you see the  statement:  "The Indians at the Forks, who as yet had been  quiet and civil, now began to talk and claimed the  settlers, gardens as their ground."  A   Yes.  Q   And you will agree with me that where you have quoted  that on page 31 as "grounds", it should be "ground"?  A  Well, I'm not sure -- yes.  It's "ground" in the  Colonist, yes.  Q   And that's what you were quoting from, was it not?  A   Yes, it was .  Q   All right.  Now, you go on to say in the middle of  page 31 that:  "This is the earliest reference I have found."  Now, you're talking now about the Hazlenut letter  we've just been talking about: 21272  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "to any land dispute, though I think the dispute,  2 if such it was, would be over the question of  3 reserve boundaries."  4  5 Now, you will agree with me that the Hazlenut letter  6 there is no reference whatever to reserve boundaries,  7 is there?  8 A   No.  9 Q   And my question to you is what did you rely on to tell  10 you that this was a dispute over reserve boundaries?  11 A   It -- well, I have nothing more to rely on than what  12 Hazlenut says, and it's simply my judgment of it.  13 Q   And what is your judgment based on in this case?  14 A  Well, what Hazlenut says.  15 Q   Yes.  And what was it in it that suggested to you that  16 you were seeing a dispute over the question of reserve  17 boundaries?  18 A  Well, Mr. Adams, I can only repeat what he says.  19  20 "The Indians at the Forks, who as yet have been  21 quiet and civil, now began to talk and claimed the  22 settlers, gardens as their ground."  23  24 Q   Yes.  What I'm suggesting to you, that is -- that it  25 is at least equally probable that the dispute had  26 nothing whatever to do with the reserve boundaries?  2 7 A   You may be right, I don't know.  That was my judgment  28 based on that passage.  You will notice that what I  29 have to say is somewhat tentative.  30 Q   All right.  Well, what you say is, I think, the  31 dispute, if such it was, would be over the question of  32 reserve boundaries?  33 A   Yes.  34 Q   Nothing too tentative about that, is there?  35 A   It was my judgment -- it was my judgment of the  36 passage that I read.  37 Q   Yes.  This entire summary reflects your judgments,  38 does it not?  39 A   Yes.  40 Q   All right.  Let me ask you to look at Exhibit 1172 tab  41 2, that's the cross-examination binder.  And it's page  42 25 in tab 2.  43 A   Yes.  44 Q   And there in the second paragraph under the heading  45 "Indian Unrest", you speak of this apparently, and in  46 the second sentence of the second paragraph you say:  47 21273  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "If the Indian talk of claiming the settlers'  2 gardens as their ground was a sort of land claim,  3 then indeed it is the earliest such reference that  4 I have run across in the material.  On the other  5 hand, it may have been simply a resentment that  6 perhaps the boundaries of their reserve had been  7 infringed in some way."  8  9 A   Yes.  10 Q   And I suggest to you, Mr. Williams, that that's a more  11 accurate statement of the judgment you should have  12 reached about the Hazlenut article than what appears  13 in your opinion summary?  14 A   I see nothing inconsistent between them.  15 Q   You don't think that you've developed a degree of  16 certainty in your opinion summary that isn't reflected  17 in your notes?  18 A   I disagree.  19 Q   Well, you do refer to "It may have been a resentment",  20 and you say "Perhaps the boundaries of the reserve had  21 been infringed in some way".  You do say that, don't  22 you?  23 A   That's what I've said, yes.  2 4 Q   All right.  And the judgment you came to was I think  25 the dispute would be over the question of reserve  26 boundaries?  27 A   That's what I have said in my summary, and that's what  28 I have said in this 1986 report, and I think I have  29 said that today in my evidence.  30 Q   Now, when we were talking a couple of days ago about  31 the persistence or impersistence of the townsites and  32 reserve boundaries in Hazelton, there was a reference  33 I wasn't able to locate and refer you to, and my lord,  34 it's in Dr. Galois' materials in volume 1, tab 54,  35 which is the very last tab of volume 1.  3 6 A  Which tab, Mr. Adams?  37 Q   Tab 54.  It's the last one in the volume.  38 A   Yes.  39 Q   And you will see there are some printed numbers at the  40 top right-hand corner of those pages.  The first one  41 is 312.  42 A   Handwritten?  43 Q   No.  They're printed, starting --  44 A   I see, stamped, 212, is it?  45 Q   312.  And if you go through to 320?  46 A   Yes.  47 Q   You'll find the cover of this document. 21274  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   And do you know what this is?  3 A   It's -- no.  Until I have a look at it I'm not able to  4 say whether I've seen this before or not.  5 Q   You see Mr. Clifford's name on the front?  6 A   I recognize Clifford's name.  7 Q   All right.  Who was he?  8 A   He was at one time in charge of the Hudson's Bay store  9 at Hazelton, and later an MLA, a long-time resident of  10 the north country.  I'm not sure just what his status  11 was in 1890.  He may have been up the coast by then.  12 Q   I am instructed that this is a Hudson Bay inspection  13 report related to the Hazelton post?  14 A   Yes.  15 Q   All right.  And you'll see at the bottom of page 320  16 the name of McDougall and inspecting officer?  17 A   Yes.  I don't think I have seen this.  18 Q   This wasn't something you noticed in your review of  19 Dr. Galois' documents?  20 A   If I did, I must say I don't recall it.  21 Q   All right.  Now, let me ask you to go to 323, which  22 you will only be able to identify because it follows  23 322.  24 A   Do you want me to look at 323?  25 Q   322 -- sorry 323, but the printed page number isn't  26 there.  27 A   I see, all right, yes.  28 Q   Do you have that now, with "Buildings" at the top?  29 A   Yes.  30 Q   All right.  And then in the middle of that page is a  31 paragraph beginning "In 1870"?  32 A   Yes.  33 Q  34 "In 1870 or 1871 the flat was laid off by the  35 Government as a town site but no lots were sold.  36 A few occupants paid ground rent for a short time,  37 but when the Omineca mining excitement passed away  38 the place was almost deserted and all landmarks  39 loss and forgotten."  40  41 A   Yes.  42 Q   And then —  43 A   I think he's wrong in saying that no lots were sold.  44 There is reference -- reference somewhere in documents  45 that I put in that some lots were sold.  However, I  46 shouldn't interrupt you.  47 Q   And further down it says, on the same page: 21275  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2 "It has been proposed that the flat should be made  3 part of the Indian Reserve."  4  5 A   "It has been proposed".  6 Q   Yes.  7 A   Yes.  8 Q   All right.  I just wanted to draw that to your  9 attention because that was part of our discussion  10 about the state of the Hazelton settlement, and I  11 hadn't been able to find the reference when I was  12 asking you about it.  13 A   Oh, yes.  14 Q   Now, as far as the chronology of your opinion summary  15 here, we go from 1874 at Kispiox, and the next date  16 for you in chronological order is 1884 in the Youmans  17 murder?  18 A   Yes.  I draw to your attention, Mr. Adams, that at the  19 outset of this section I said that in the section I  20 was going to deal with four, I think -- a number of  21 events involving relations, and I then say that I will  22 set them out in chronological order.  23 Q   Yes.  So we are following the chronological order  24 here.  25 A   Yes, all right.  26 MR. ADAMS:  All right.  Now, part of the material relevant to  27 the imposition and acceptance or non-acceptance of law  28 and order would be public statements regarding  29 aboriginal rights by public officials in British  30 Columbia?  31 MR. GOLDIE:  Sorry, what was that again?  I missed the first  32 part of my friend's question.  33 MR. ADAMS:  34 Q   And, my lord, I don't remember the precise phrasing,  35 but I'll do it again.  When you were looking for  36 source material related to the imposition and  37 acceptance or non-acceptance of law and order as you  38 defined it in the claim territory, one relevant source  39 would be public statements by public officials  40 regarding aboriginal rights?  41 A  Well, to start with, I did not conduct a survey of all  42 of the debates in the legislative counsel and later in  43 the legislative assembly on matters affecting  44 aboriginal rights.  I was examining historical  45 evidence of documents relating to the claim area  46 with -- I have met in some instances looking at other  47 material, but I didn't canvass all the debates. 21276  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  Q  A  ADAMS:  Yes.  I hadn't asked you about debates and I hadn't  asked you either --  By debate, I mean the political discussion and  legislative bodies.  Yes.  I hadn't asked you either if you had canvassed  it.  I asked you if such material was relevant to your  subj ect?  I'm not -- I'm not sure.  I must confess, I hadn't  thought about looking at that sort of material.  I  just don't know.  MR. ADAMS:  Could you explain to me how it's possible that such  statements wouldn't be relevant to your subject?  MR. GOLDIE:  How can the witness answer that unless he's given  the statement.  I mean somebody may be talking in  Ottawa and may say this, that or the other thing, but  he's talking about a particular area at a particular  time.  MR. ADAMS:  My lord, the witness is put forward as an expert to,  among other things, evaluate the relevance of sources  to his opinion to decide which ones to use and which  ones not to use, but if it assists my friend, I'm  talking about public statements made in British  Columbia with respect to British Columbia.  MR. GOLDIE:  And what time are we talking about?  MR. ADAMS:  We are following the chronological sequence of your  opinion summary, Mr. Williams.  MR. GOLDIE:  We're looking at 1884 then, are we?  THE COURT:  Is your question, Mr. Adams, would statements of  aboriginal title be relevant to a discussion of the  imposition or acceptance of law and order in the  period being discussed in the summary report with  relation to these four or five items?  MR. ADAMS:  Yes.  Not just statements of aboriginal title, but  statements relating to aboriginal title, and  specifically in British Columbia, by public officials,  and in public.  THE COURT:  Well, I think that's a question that the witness can  answer.  Did I look at such public statements?  MR.  A  ADAMS  Q  A  Q  A  No.  Are they relevant?  Are they relevant?  Yes.  My task was to consider the imposition and the  response of the Indian community to the imposition of  law and order.  I would have to qualify any answers to  the relevance by saying depending on the source.  If, 21277  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  Q  6  7  A  8  9  10  Q  11  A  12  Q  13  A  14  Q  15  16  A  17  18  Q  19  20  21  A  22  23  24  Q  25  A  26  27  Q  28  29  A  30  Q  31  32  A  33  Q  34  35  A  36  Q  37  38  A  39  MR. ADAMS  40  41  MR. GOLDI  42  43  MR. ADAMS  44  Q  45  46  A  47  for example, Governor Douglas had come out and said  that "We're going to subdue the Indian population by  force", I suppose that would be relevant, but such a  thing never occurred, in fact.  Yes.  Would it be relevant if the Governor-General  said there was aboriginal title?  If you're talking about Lord Dufferin, I'm familiar  with what he said, and I considered it to be  irrelevant.  And why was that?  Well, it didn't seem to me to relate to my task.  And could you explain why that was?  Besides it was in 1876.  Indeed it was.  And that's a period you covered in  your opinion summary?  Yes.  It wasn't 1884.  I thought you were talking  about 1884, I'm sorry.  No.  That's Mr. Goldie's suggestion.  I'm dealing with  the gap where 1874, where your chronological sequence  leaves off and 184, where it resumes.  The short answer is that I do not consider that  statement made by Lord Dufferin in Victoria to be  relevant to what I was doing.  My further question is why not?  I didn't consider it relevant, it was not something  that concerned me and my task.  But is there a reason that in your judgment it wasn't  relevant?  I thought it was irrelevant.  I'm asking you, Mr. Williams, if there was a reason  for that judgment?  I thought it was irrelevant.  Can you assist me any further than that in the  reasoning that went into that thinking?  It did not relate to it what I was doing.  That, you will agree with me, is another way of saying  it is irrelevant?  Quite.  :  You will agree with me it's not a reason for saying  it's irrelevant.  'Ģ1:  If it doesn't relate to what he's doing, surely  that's a statement of fact in his judgment.  Is there any way you can enlighten me as to the  reasoning that goes into that judgment?  Lord Dufferin came to Victoria to make a statement  which has been relied upon many times in years since. 2127?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 It seemed to me to have nothing -- by the Indian  2 people -- it seems to me to have nothing whatever to  3 do with what my task was in this case.  I'm familiar  4 with what he said, I had been familiar with it long  5 before I began this affair.  6 Q   Yes?  7 A   But it had no relationship to what I was doing.  8 Q   You did know that he made a public statement in  9 Victoria in 1876?  10 A   Yes.  11 Q   And is it reasonable to conclude that a public  12 statement made on that subject in those circumstances  13 would in some fashion come to the attention of people  14 in the land claim area?  15 A   How do I know?  16 Q   How do you know?  17 A   I don't know.  18 Q   Is it reasonable to conclude that it would, given its  19 public nature and the subject matter of the statement?  20 A   I dare say, it was well known in later years, but  21 whether it was known generally in the claim area in  22 1884 I have no idea.  23 Q   I'm speaking of 1876?  24 A   Or even 1876, I don't know.  25 Q   You do say that you've seen frequent references to it  26 after that time?  27 A   Yes.  But I -- again, I say I paid no attention to it  28 in my task.  29 Q   My question was that you do say that you have seen  30 references to it since that time?  31 A  Many times.  32 Q   Including references by representatives of the  33 Indians?  34 A  And by other people.  It's -- the statement is well  35 known.  36 Q   Yes.  So I take it you can't say when it came to the  37 attention of the Indian people in the land claim  38 territory, but I don't -- no doubt that it did come to  39 their attention?  4 0 A   I don't doubt for one moment that it did.  41 Q   All right.  Now, if you look at Dr. Galois' materials,  42 volume 6, tab 356, and I will be going, my lord, to  43 page 45 at the tab when we all get there.  44 A  What page number, Mr. Adams?  45 Q   Page 45, please?  46 A   Yes.  47 Q   If you could look there and see the quoted statement 21279  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 under Mr. O'Meara's name?  2 A   Yes.  3 Q   Correct.  And just ask you to review that quotation  4 and see whether that's the statement that you have  5 been referring to in our discussion to this point?  6 A   Yes.  7 Q   All right.  And he observes, first of all, that he's  8 been preoccupied with the condition of the Indian  9 population in the province?  10 A   Yes.  11 Q   And that's a reference to British Columbia?  12 A   I'm sure it is.  13 Q   He observes that the Indian population isn't  14 represented in parliament?  15 A   Yes.  16 Q   And then goes on to say this:  17  18 "There has been an initial error, ever since Sir  19 James Douglas quitted office, in the Government  20 of British Columbia neglecting to recognize what  21 is known as the Indian title.  In Canada this has  22 always been done; no government, whether  23 provincial or central, has failed to acknowledge  24 that the original title to the lands existed in  25 the Indian tribes and communities that hunted or  26 wandered over them.  Before we touch an acre we  27 make a treaty with the chiefs representing the  28 bands we are dealing with, and having agreed upon  29 and paid our stipulated price - oftentimes  30 arrived at after a great deal of haggling and  31 difficulty - we enter into possession."  32  33 A   Yes.  34 Q  35 "But not until then do we consider that we are  36 entitled to deal with an acre."  37  38 A   Right, yes.  I should observe, incidentally, that when  39 Sir John A. MacDonald was in Victoria in 1884 or 1886,  40 I've forgotten the dates, one of the two, he learned  41 of this in discussing with Premier Smithe, this  42 statement by Lord Dufferin.  Sir John A. wrote Smithe  43 on his return to Ottawa to ask Smithe by what  44 authority Dufferin had made this statement, implying  45 clearly that Lord Dufferin was speaking on his own and  46 was not advancing government policy.  But I fail to --  47 frankly, I just -- you know, I don't -- didn't take 21280  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  any of this into account in my work.  Q   Indeed.  Now, let me ask you, that reference to the  Indian title, you understand that to be a reference to  aboriginal title?  A   I'm sure.  MR. GOLDIE:  My lord, I'm going to object to any examination on  what Lord Dufferin said.  That's -- that's going to be  a matter of argument in this case, that your lordship  has already had some evidence that he was incorrect in  his facts and that he was speaking without authority.  The -- it is -- and now if my friend is going to ask  the witness what this means or what that means, I  think that falls precisely within the area that your  lordship said "That's for me".  THE COURT:  What is the purpose of asking the witness to comment  upon what the Governor-General said, Mr. Adams?  MR. ADAMS:  I simply wanted to know what he understood by what  he was reading, I'm not asking for his legal opinion.  MR. GOLDIE:  It doesn't matter what he thinks, because he said  he regarded it as irrelevant, so all that my friend is  getting is a gratuitous opinion.  MR. ADAMS:  Well, my lord, I'm entitled to challenge his  judgment as to its relevance, and that's what I'm  engaged in doing.  THE COURT:  I don't think so, Mr. Adams.  I think you're  entitled to show what you have, that he paid no  attention to it, he did not treat it as relevant, and  it seems to me that that's as far as the matter can  usefully go.  He may have a perfect understanding or a  completely imperfect understanding, but if he hasn't  considered it and he doesn't think it's relevant, well  then consequences will flow from that.  The job I have  will not be hindered or assisted in any way of I know  what he thinks now or even what he -- even what he  thought then, that something that for his purposes was  irrelevant.  And I think that we are approximately  half-way through the morning and we'll take the  morning adjournment.  THE REGISTRAR:  Order in court. 21281  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 (MORNING RECESS TAKEN AT 11:00)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein transcribed to the  6 best of my skill and ability  7  8  9  10  11 Graham D. Parker  12 Official Reporter  13 United Reporting Services Ltd.  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 21282  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Mr. Adams.  5 MR. ADAMS:  6 Q   Thank you, my lord.  7 Mr. Williams, I had been asking you about the  8 Governor General's statement in 1876.  I want to back  9 up a year and ask you whether you were aware in  10 formulating your opinion of the disallowance of the  11 provincial land legislation in 1875 by the Dominion  12 government?  13 A   No.  14 Q   You weren't aware of that?  15 A   No.  16 MR. ADAMS:   All right.  My lord, I'm handing up an extract from  17 the transcript in evidence of the Special Joint  18 Committee in 1927 which is already in Dr. Galois'  19 material, at least there are excerpts in Exhibit  20 1035-355 off the top of my head, and I believe the  21 entire document is in as a provincial exhibit, but I  22 don't have a number readily on hand.  2 3 THE COURT:  Yes.  24 MR. ADAMS:  This portion of it was not included in Dr. Galois'  25 materials and that's why I'm handing it up separately.  2 6 THE COURT:  Thank you.  27 MR. ADAMS:  And I wonder if that could be tab 20 or wherever  28 we've got to, of 1172?  2 9 THE COURT:  Yes.  30 THE REGISTRAR: Exhibit 1172-20.  31  32 (EXHIBIT 1172-20: Excerpt from transcript of Special  33 Joint Committee, 1927)  34  35 MR. ADAMS:  36 Q   And do I understand you to say, Mr. Williams, that you  37 have not before seen the report of the Special Joint  38 Committee in 1927?  39 A   Yes, you're right.  40 Q   All right.  That wasn't part of Dr. Galois' documents  41 that you reviewed, not this extract, but the report  42 itself?  43 A   It probably was, but I paid no attention to it.  44 Q   All right.  And you see on the last page of the  45 extract the name of T. Fournier, Minister of Justice?  46 A   Yes.  47 Q   And H. Bernard, Deputy Minister of Justice? 21283  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  A  2  Q  3  4  5  6  A  7  Q  8  A  9  Q  10  11  12  13  14  A  15  Q  16  17  18  19  20  A  21  Q  22  A  23  Q  24  25  A  26  27  Q  28  29  30  A  31  MR.  ADAMS:  32  THE  COURT:  33  MR.  ADAMS:  34  35  36  THE  COURT:  37  38  MR.  ADAMS:  39  40  THE  COURT:  41  42  43  44  MR.  ADAMS:  45  46  THE  COURT:  47  MR.  GOLDIE  Yes.  All right.  And do I understand you to say that you  did not know that in 1875 the Dominion government had  disallowed the Provincial Act to amend and consolidate  the laws affecting Crown lands in British Columbia?  You're right.  That had never come to your attention?  No.  Nor had the fact that the reason for the disallowance  was based at least in part on assertions by the  Dominion government that there was no or insufficient  provision in that provincial legislation for Indians  and Indian lands?  I can't say.  I just don't know.  Okay.  Now, you were aware, were you not, that in 1877  the then Minister of the Interior of the Dominion  government, one David Mills, had written to Lieutenant  Colonel Powell, then the Indian Superintendent for  British Columbia, on the subject of aboriginal title?  You will have to show me the letter.  Okay.  You recall seeing that before?  Yes, I think I've read this letter.  Yes.  And it's your characterization of this letter,  is it not, that it is on the question of Indian title?  I have not read the letter through today, but I  believe that was the subject of it.  Yes.  All right.  And it's your understanding that in this  letter Mr. Mills says that Indian title exists as of  the date he's writing, 1877?  Yes, that's what he said.  Yes.  Could that be the next exhibit, my lord?  Who's this addressed to?  This is addressed -- on the front page you'll see  the name of Lieutenant Colonel Powell, the Indian  Superintendent of Victoria.  Oh, he's the addressee.  It's not a one-paged  letter.  No, it's -- the letter itself, my lord, is I believe  seven pages long.  I'm with you now.  I just glanced at it because it  didn't invite my careful reading because it's so hard  to read.  I assumed it was a one-page letter followed  by something else.  No, it's a seven-page letter followed by a  transcript of a telegram.  Yes.  All right.  :  Mr. Mills was the Minister of the Interior, my 21284  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 lord --  2 THE COURT:  Yes.  3 MR. GOLDIE:  -- in Mackenzie's administration, and Powell was  4 the Federal Indian Superintendent.  5 THE COURT:  Yes.  Thank you.  6 THE REGISTRAR: 1172, tab 21.  7 THE COURT:  Thank you.  8  9 (EXHIBIT 1172-21: Letter dated August 2, 1877 from  10 David Mills to Lieutenant Colonel Powell)  11  12 MR. ADAMS:  This is already an exhibit to Dr. Lane, and I will  13 supply you as soon as I have it with the exhibit  14 number.  15 THE COURT:  All right.  Thank you.  16 MR. ADAMS:  17 Q   And let me just ask you, Mr. Williams, from your  18 familiarity with this letter, it's certainly not  19 referred to anywhere in your opinion summary?  2 0          A   No.  21 Q   And it's not among your documents?  22 A   No.  23 Q   Did you consider it irrelevant to your subject?  24 A   Yes.  25 Q   And why was that?  26 A   Because I was not inquiring into the question of  27 Indian title and the discussion of it by various  2 8              government people.  29 MR. ADAMS:   You were inquiring, were you not, into the  30 imposition of law and order, and that included what  31 you saw as denials of aboriginal title?  32 MR. GOLDIE:  I'm sorry, denials of aboriginal title?  33 MR. ADAMS:  34 Q   Did you understand denials of aboriginal title to be  35 part of the imposition of law and order?  36 A   I was not inquiring into the political discussions as  37 part of -- what I take to be a political discussion of  38 Indian title, and denials or affirmations of Indian  39 title by political officials was something I was not  40 interested in or instructed to do, to examine rather.  41 Q   I'm sorry?  42 A   I was not instructed to examine this sort of  43 discussion of aboriginal title.  44 Q   Yes.  You did, did you not, pay attention to denials  45 of the validity of Indian law inside the claims  46 territory?  You paid great attention to those?  47 A   To the denials? 21285  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   Yes.  2 A   Of title?  3 Q   I'm thinking of the incidents, for example, in 1888,  4 you quote at length from the speeches of Fitzstubbs  5 and Roycraft?  6 A   I don't take it from those speeches that there was any  7 negation of title.  It was a question of the Queen's  8 law being enforced.  9 Q   Yes?  10 A   Not the ownership of land.  11 Q   That was in distinction to the Indian law was it?  12 A  Well, I would have to re-examine precisely what they  13 said, but my recollection is that in 1888 Roycraft and  14 Fitzstubbs were not talking about Indian title.  15 Q   In your view, if I understand you, nothing that was  16 said by Roycraft or Fitzstubbs in 1888 was directed to  17 the question of Indian title?  18 A  Well, as I said, I would want to re-examine their  19 statements.  20 Q   Yes.  Well, perhaps we'll do that when we get that far  21 in the sequence.  But that's your present impression  22 is it?  23 A   That is my present impression, yes.  24 Q   All right.  25 A   Subject to a reading -- rereading.  26 Q   All right.  You know, do you not, that the Indian  27 people living on the Bulkley River in the 1870's were  28 Wet'suwet'en?  29 A   I -- so I believe, yes.  30 Q   Yes.  And in that connection I want to show you a  31 document, and this, my lord, is Mr. Dawson's report  32 dated 1879, and it's provincial document 1094 and it's  33 an extract from a document headed "Geological Survey  34 of Canada".  35 A   Is this for me, madam registrar?  36 THE REGISTRAR: No.  37 MR. ADAMS:  38 Q   Just before I take you into that document, another  39 question:  You are aware, and I believe you have said  40 so in your evidence, that the Bulkley River has also  41 been referred to from time to time as the Wedzen Kwe?  42 A   Yes.  It may not be continuously the Wedzen Kwe, but  43 I've just forgotten the portions of the present  44 Bulkley River which are more precisely described as  45 the Wedzen Kwe, but I have taken them to be the same.  4 6 Q   All right.  47 A   Geographical inexactitude perhaps. 21286  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   Have you seen this document before?  2 A   Yes, I have read this.  3 Q   This is one that you reviewed?  4 A   I read it.  Yes.  5 Q   Yes.  And is it referred to in your documents?  6 A   No.  7 Q   All right.  And it wasn't referred to in your  8 evidence?  9 A   No.  10 Q   All right.  Could you look please at page 30B in the  11 upper left-hand corner?  12 A   30B?  13 Q   30B.  14 A   Yes.  15 Q   Do you have that?  16 A   Yes.  17 Q   And then there's a heading towards the middle of the  18 page "Indian Population of Northern British Columbia"?  19 A   Yes.  20 Q   And then seven lines down you'll see a reference to  21 the Wedzen Kwe Valley?  22 A   Yes.  23 Q   And you understand that to be a reference to the  24 Bulkley Valley?  25 A  Well, I take it to be what is now the Bulkley Valley,  26 yes.  27 Q   Yes.  And then going down to the bottom of page 30B  28 you see this statement:  29  30 "There are no permanent villages on Francois  31 Lake, that part of the country belonging to the  32 Wedzen Kwe people who visit it periodically."  33  34 A   I'm sorry, right at the bottom of the page?  Yes, I  35 see.  36 Q   And then going over the page.  37 A   "There are no permanent villages on Francois Lake."  38 Yes.  39 Q   "That part of the country belonging to the Wedzen Kwe  40 people who visit it periodically."?  41 A   Yes.  42 Q   And that's not something you took into account in  43 formulating your opinion?  44 A   It is not.  45 MR. ADAMS:   All right.  Could that be the next tab in 1172, my  46 lord?  47 THE COURT:  Yes, 22. 21287  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D. R. Williams (for Province)  Cross-exam by Mr. Adams  THE REGISTRAR:  Yes, my lord.  (EXHIBIT 1172-22: Excerpt from report of G. Dawson  dated 1879)  MR. ADAMS:  Q   Turning now, Mr. Williams, to page 32 of your opinion  summary, Exhibit 1173?  A   Yes.  Q   In the middle of that page under the heading of  "1884 - Youmans Murder", you'll see you say:  "The Indians were aroused, and the small white  community felt threatened."?  A   Yes.  ADAMS:   And my information is, and I hope you will correct  me if I'm wrong, that the white community at Hazelton  at that time consisted of four people?  COURT:  Where are you?  WITNESS:   I would think it would be more.  COURT:  Where are you please, Mr. Adams?  ADAMS:  I'm in the middle of page 32 of the opinion summary.  COURT:  Oh, yes.  All right.  Thank you.  WITNESS:   I think it would be more than four, but it  certainly wasn't large.  Mrs. Hankins and her children  were still there I think.  MR. ADAMS:  Let me ask you to look in Volume 4 of Dr. Galois'  materials, Exhibit 1035-163.  COURT:  Where is this mentioned, please, the four people?  ADAMS:  The mention in the report, my lord, is a reference  to a small white community.  COURT:  At page 32?  ADAMS:  Yes.  The second small paragraph.  COURT:  Yes.  ADAMS:  And I had suggested to the witness that the white  population of Hazelton at that time was four, and he  gave his answer that he thought it would be somewhat  more.  All right.  And you're going to where?  I'm going to Dr. Galois' Volume 4 at tab 163.  Yes.  MR.  THE  THE  THE  MR.  THE  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  ADAMS  COURT  ADAMS  Q  A  Q  And that's a Colonist article dated June 21, 1884?  Yes.  And under the column heading of "A Skeena Indian  Murders A.C. Youmans", you'll see down at the bottom 212?  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 of the column the second to last paragraph:  2  3 "Mr. Sampare feels his life no longer safe.  4 There are four white men all told now residing  5 at the Forks, Messrs. Sampare, John Bryant,  6 George Thompson, and William Spears."  7  8 A   Yes, that's what it says, but I think he's wrong.  9 Thomas Hankin himself writes a letter on the same  10 paper for the Skeena and he was -- I said Mrs. Hankin  11 was still there.  Hankin died in 1884 I think, but  12 Hankin and his family were there.  But I think  13 Clifford might have been there.  There must have been  14 somebody at the Hudson Bay store in 1884, but I don't  15 know what -- I can't say whether there were 11 or 12,  16 but I think there were more than four. I mean, Youmans  17 was married and had two children.  There are four  18 people right there.  19 Q   Well, of course by the time of the writing of the  20 newspaper article Mr. Youmans wasn't living there?  21 A   Quite so.  22 MR. GOLDIE:  We agree the community was reduced by one as a  23 result of Mr. Youmans' murder.  2 4    MR. ADAMS:  25 Q   Turning to page 33 of your opinion summary --  26 A  What page, please?  27 Q   33?  28 A   Yes.  29 Q   Now, you refer there at the bottom of the page to  30 Chief Mountain?  31 A   Yes.  32 Q   And you then on page 34 quote from a letter authored  33 by Chief Mountain?  34 A   Yes, written I think by someone on his behalf.  35 Q   Yes.  Well, that's what I wanted to ask you about.  36 You don't indicate in your opinion summary that it was  37 probably authored on his behalf by somebody else, you  38 simply quote it.  That's so, is it not?  39 A  Well, yes, but that's a frailty that attaches to so  40 much of the correspondence.  In the petition, for  41 example, from Kitwanga and Kitanmax were not written  42 by the people who signed them.  43 Q   Yes.  That's what had caught my attention here, that  44 with respect to Chief Mountain's letter you had made  45 no comment as to who actually composed it, but just  46 the paragraph before on page 33 you had referred to a  47 letter of Kit-a-muldo, head chief at Hazelton, and 21289  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 there you said it was presumably composed by a  2 missionary?  3 A   Yes.  4 Q   Did you intend to suggest that for that reason chief  5 Kit-a-muldo's letter was not to be relied upon as his  6 own statement?  7 A   Not at all.  8 Q   All right.  So as far as you were concerned both the  9 Kit-a-muldo letter and the Chief Mountain letter were  10 as far as you could tell accurate statements of the --  11 of what had been expressed by the authors?  12 A   I believe so.  13 Q   All right.  Now, what you say on page 33 with respect  14 to Kit-a-muldo's letter is that he pleaded for  15 leniency?  16 A   Yes.  17 Q   All right.  And then you quote briefly from his  18 letter.  And what I want to suggest to you here is  19 that he did a great deal more than plead for leniency  20 that is relevant to your subject and not reflected in  21 your summary or your evidence, would you agree with  22 that?  23 A   Yes.  He talked about the application of Indian law to  24 situations of this kind, certainly.  25 Q   Yes.  26 A   The letter is here.  He talked of other matters,  27 talked of many matters, but essentially it was a plea  28 for leniency based on a number of matters which he  29 mentioned in his letter.  30 Q   Yes.  And the letter, my lord, is to be found at Dr.  31 Galois' materials Volume 3, tab 105.  32 A  And what is my tab number, please?  33 MR. GOLDIE:  I think it's 56.  Yes, the newspaper article that  34 my friend has referred to is tab 56A, and then Wood's  35 letter is 56A, 1.  36 MR. ADAMS:  I haven't referred to a Wood's letter.  37 MR. GOLDIE:  Well, I'm just going through this.  I'm not sure  38 whether the letter at 56F is the one you're referring  39 to.  40 MR. ADAMS:  I'm at Exhibit 1035, Volume 4 — I'm sorry 3, tab  41 105.  It's page 279 within that tab, Mr. Williams,  42 which is two pages in.  43 MR. GOLDIE:  That's at tab 58 of your volume, Mr. Williams.  44 THE WITNESS:   Yes, yes.  4 5 MR. ADAMS:  46 Q   And that's the letter that you were quoting towards  47 the bottom of page 33 of your opinion summary?  I 21290  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 believe you'll find you quote the last two lines.  2 A  At page 281?  3 Q   279.  4 A   279, I'm sorry.  5 A   Yes.  6 Q   And what Kit-a-muldo says there in the second  7 paragraph is:  8  9 "We wish to lay before you our law in regards to  10 accidents and death that occur in company with  11 others."  12  13 A   Yes.  14 Q  15  16 "It is expected that the survivors shall  17 immediately, or as soon as possible, make known  18 to the friends of the injured or deceased, what  19 has taken place.  If this is not done, it is  20 taken as evidence that there has been foul  21 play."  22  23 And then skipping a paragraph:  24  25 "The general custom among the Indians is  26 that if anyone calls another to hunt with him,  27 to go canoing, et cetera, and death occurs, the  28 survivor always makes a present corresponding  29 with his ability, to show his sympathy and good  30 will to the friends of the deceased, and to  31 show that there was no ill-feeling in the  32 matter.  33 Mr. Youmans failed also in this.  He gave  34 no present, thus showing no sympathy or good  35 will."  36  37 A   Yes.  38 Q   All right.  And let me refer you also just after that,  39 next page, to a letter of a Mr. Jennings that  40 apparently enclosed Kit-a-muldo's letter, do you have  41 that, dated September 16, 1884?  42 A   Yes.  43 Q   To the provincial secretary?  44 A   Yes.  45 Q   And he says that he and the Reverend Green were in the  46 Indian village of "Kit-au-max" at "the Forks of the  47 Skeena..." 21291  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q  3  4 "...where we had an interview with the friends  5 of the murderer of the late A.C. Youmans. They  6 wished us to write a letter that they might set  7 before the Executive of this Province their  8 views in regard to their friend."  9  10 A   Yes.  11 Q   And then he indicates that he's enclosing a letter,  12 and that's the one that we've just been reading from,  13 is that your understanding?  14 A   Yes.  15 Q   All right.  And then he goes on:  16  17 "They desired to mingle threats with their  18 expostulations. Threats we positively refuse to  19 write, telling them that such would prejudice  20 their case in the eyes of the Government."  21  22 You see that?  23 A   Yes.  24 Q   And to that extent, at least it seems that when we  25 read what Kit-a-muldo had to say through, as you  26 speculate, or you don't need to speculate, Jennings  27 says the pen of the missionaries, apparently  28 Kit-a-muldo and others wanted to write threats as  29 well?  I'm just asking you if that's what you  30 understand that to be saying.  31 A   That's what the letter says.  32 Q   All right.  And then skipping down, I'm about  33 three-fifths of the way down the sentence, paragraph  34 beginning "The Forks Indians..."?  35 A   Yes.  36 Q  37  38 "...threaten to close the navigation of the  39 Skeena in case their old friend hanged. In this  40 purpose, they say, the Kish-pi-ax, the  41 Kish-ga-gas, the Kit-wan-cool, the Kit-wau-gah,  42 the Kit-se-gew-clah, the tribes of the upper  43 Naas, are one with them.  We had an interview  44 with the head Chief of the Hag-wut-get Indians,  45 who assured us that he and his tribe would  46 co-operate with their friends, the Forks  47 Indians.  These Indians seem to be in earnest 21292  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D. R. Williams (for Province)  Cross-exam by Mr. Adams  in this matter.  They are certainly very  ignorant of the power our Government possesses.  They know but little of the majesty of the  Canadian law."  A  Q  Yes.  And you are able to identify that list of places as  Gitksan and Wet'suwet'en villages?  A   Yes.  Well, he talks about the chief of the  Hag-wut-get, but certainly yes, Wet'suwet'en.  Q   You understand that to be a reference to Hag-wut-get  do you?  A   To the Wet'suwet'en, yes.  Q   Yes.  A   He doesn't identify a village, but --  MR. ADAMS:   All right.  Let me take you to another document,  this time in Dr. Galois' Volume 4, and that's Exhibit  1035-163.  MR. GOLDIE:  What is it, please?  MR. ADAMS:  Q   It's a letter dated June 21st, 18 -- I'm sorry, it's a  newspaper article dated June 21st, 1884, in the  Colonist?  A  What volume is it?  Q   It's in Volume 4.  A   I don't have it.  MR. GOLDIE: I think that's tab 56A in Mr. Williams' Volume 3, my  lord.  MR. ADAMS:  Q   I'd understood my friend to say that the Chief  Mountain letter was 56A, and that's the note I'd made  opposite.  A   I'm sorry, the Galois tab number was what again,  please?  MR. ADAMS:   Was 163.  It would be towards the front of that  volume.  THE COURT:  163?  MR. ADAMS:  Q   Yes.  It will appear in the volume as 63.  A   Right.  And my tab, please, again?  MR. GOLDIE:  56A.  THE WITNESS:   Thank you.  Yes.  MR. ADAMS:  Q   This is the same article that had contained the  reference to there being four white men all told at  the Forks? 21293  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   But earlier on in that article, which appears to be  3 written by Mr. Woods, you can see that in the top  4 right of the third column from the left?  5 A   There is a letter from Woods reproduced there, but  6 whether Woods actually wrote the earlier article, I  7 must say I don't know.  8 Q   All right.  9 A   It's simply headed as a "Special Correspondence".  10 Q   All right.  In any event, whoever the special  11 correspondent is --  12 A   It's written from Port Essington I notice so it may  13 have been Jennings.  I'm just speculating.  I don't  14 know.  15 Q   It's headed "A Skeena Indian Murders A.C. Youmans"?  16 A   Yes.  17 Q   Among other things.  And if you go down the second  18 column from the left, oh, about 20 lines or so, you'll  19 see "Mr. Youmans did not at once relate..."  20 A   Yes.  21 Q  22  23 "...did not at once relate to the Indians at the  24 Forks the story of Billy Owens' death by  25 drowning, fearing they would take immediate  26 revenge; for he well knew the old Indian law  27 that when accident or death in the pursuit of  28 any enterprise occurred, he who originated it  29 should make compensation with money or its  30 equivalent to the friends of the injured or  31 forfeit his life."  32  33 A   Yes.  34 MR. ADAMS:   Okay.  And can you turn in that same volume just  35 two tabs forward to 165, please?  36 MR. GOLDIE:  What is that document?  37 MR. ADAMS:  38 Q   That is a letter, I'm sorry, again, a newspaper  39 article dated December 8th, 1884, from the Times?  4 0 A   The Times?  41 Q   Yes.  42 A   Tab number, please?  43 Q   165.  It will be the second page is the passage I want  44 to refer you to.  45 A   Yes.  46 Q   But this is the newspaper account of the trial of a  47 person -- 21294  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   I'm sorry, I've got the wrong tab.  2 Q   165?  3 A   Yes, but —  4 Q   I think you'll find the first page will tell you that  5 what you're reading is an account of the trial of  6 Youmans' killer, somebody identified here as "Aht"?  7 A   I'm sorry, yes, here it is.  Right.  8 Q   And if you go to the second page, the part I want to  9 take you to is in the left-hand column.  10 A   Yes.  11 Q   If you go half-way down the column, you'll see the  12 name "John Bryant"?  13 A   Yes.  14 Q   It says:  15  16 "John Bryant was called for the defense.  Being  17 sworn, he said I have been engaged some years  18 in the north country.  Have known the prisoner  19 for years.  He has always been looked on as a  20 quiet man.  I saw Mr. Yeomans at Lome Creek,  21 on his way to the Forks; he stayed some hours  22 at my camp. He told me that he had lost an  23 Indian named Billy.  I told him that when he  24 got to the Forks he would have to make some  25 compromise with the boys up there.  He said he  2 6 knew what he had to do.  He thought he could  27 make it all right by paying the friends.  There  28 is no Indian Agent there and that is the only  29 way of settling troubles."  30  31 A   Yes.  32 Q   And then if you skip the paragraph you'll see the  33 "Honourable Mr. Drake..."  34 A   Yes.  35 Q  36  37 "...then addressed the jury in behalf of the  38 prisoner.  He said that there were five  39 villages within a radius of a few miles.  They  40 were under the British Crown and supposed to be  41 under the rule.  But there was no agent there  42 and no effort made to teach them the law.  In  43 their ignorance of the law they were governed  44 by their old tribal law of compensation.  Mr.  45 Yeomans knew of this existing custom, and by  46 not appeasing the friends of the drowned  47 Indian, he lost his life.  He asked for mercy 21295  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 to be extended to the prisoner."  2  3 A   Yes.  4 Q   Okay.  And then finally in this connection let me ask  5 you to look in your materials at Volume 3, tab 56F.  6 A   Yes.  7 MR. ADAMS:   I might have your tab number wrong.  8 MR. GOLDIE:  Addressed to the Attorney-General, 24th of  9 September, '84, from the chiefs and others of  10 "Kitseguecla", "Kitwinscule", presumably "Kishgagash".  11 MR. ADAMS:  12 Q   Yes.  This is also Exhibit 1035-78, and I'm going  13 there because I have it marked.  If you look in the  14 second column from the left --  15 A   I'm sorry, my tab 56 is a letter, Mr. Adams.  Sorry,  16 what's the --  17 Q   Oh, all right.  That may be the source of my  18 confusion.  I didn't go to 56F. I'm sorry, it is 56F,  19 yes, and this is a letter signed by a number of  20 persons who in some cases are identified with  21 villages?  22 A   Identified by?  23 Q   With reference to villages?  24 A   Yes.  25 Q   "Kitwinscule" and "Kitseguecla" at least?  26 A  And "Kishgagash".  27 Q   Okay.  And it's dated September 24th, 1884, and it's  28 addressed to the Attorney-General?  29 A   Yes.  3 0 Q   And says:  31  32 "We the undersigned residents of Kitwingach,  33 Kitseguecla, Kitwinscule..."  34  35 I take that to be Kitwancool?  36 A   So do I.  37 Q  38  39 "...and Kishgagas wish to bring before your  40 notice one of the Laws of the Kitickseans"  41  42 A   Yes.  43 Q   Okay.  And then going down five lines from the bottom:  44  45 "If A does not tell about the death of B shortly  46 after his return, he is then supposed to have  47 had a hand in the death of B, and the relations 21296  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 kill him for as they suppose he has killed  2 their relation."  3  4 A   Yes.  5 Q   Now, what I want to ask you is this:  In your  6 discussion in your opinion summary at page 33 where  7 your only observation, with respect to what was said  8 by the -- and done by the Indians in these  9 circumstances, the circumstances after Kit-a-muldo's  10 death, was you noted that Kit-a-muldo pleaded for  11 leniency?  12 A   Yes.  13 Q   And my suggestion is this:  There was material  14 available to you, to which you did not refer, which  15 made frequent references to Indian law in the context  16 of these events?  17 A   You're quite right.  I have not referred to all the  18 material in the summary of my report.  Everything that  19 you have shown me so far I looked at --  20 Q   Yes.  21 A   -- in the preparation of -- before the preparation of  22 my report.  23 Q   And why was it, Mr. Williams, that you isolated a plea  24 for leniency and commented on that in your summary,  25 but made no reference whatsoever to the Indian law?  26 A   I was not writing, as I have said before, a  27 dissertation on the subject.  I was writing a summary.  28 That's what I wrote.  It was not that I was unaware of  29 this material.  Indeed I was.  30 MR. GOLDIE:  He referred to it in his evidence in chief, my  31 lord, this particular document.  32 MR. ADAMS:  33 Q   You were writing about Indian acceptance of what you  34 defined as law and order?  35 A   Yes.  36 Q   And you were aware that the existence or nonexistence  37 of Indian law was a factor relevant in whether white  38 law was accepted or not?  39 A   I was aware of the statements made in these two  40 petitions, one from Kitwanga and one from Kitanmax, of  41 what was alleged to be the Indian law, yes.  I was  42 certainly aware of that.  43 Q   I wasn't asking you whether you were aware of them,  44 because you've told me that you were.  What I was  45 asking you was whether the existence and the operation  46 of Indian law was not of some significance in deciding  47 whether white law had been accepted? 21297  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   The -- I considered and weighed the statements that  2 were made on that subject in this correspondence, yes.  3 Q   And apparently, so far as I can tell from your  4 summary, you then discarded them?  5 A   If by discard you mean disregard it in the totality of  6 the correspondence relating to the event, no, I  7 didn't, but if you mean that I didn't cite it  8 specifically in my summary, you're correct.  9 Q   Nor did you refer to it however obliquely?  10 A   Evidently not.  11 Q   All right.  Now, going on to Chief Mountain --  12 A   Yes.  13 Q   -- who appears beginning on page 33 of your summary,  14 you have already in your evidence I think corrected  15 your surmise that he had assisted the police by  16 pursuading the Indian and his family to bow to the  17 wind and surrender himself?  18 A   Yes.  19 Q   And that was pure surmise at the time you wrote your  20 opinion, was it not?  21 A   It was indeed.  22 Q   I'm sorry?  2 3 Alt was, yes.  24 Q   Yes.  And I take it from your evidence that you now  25 disagree with your own surmise?  26 A   I don't disagree with it.  I didn't -- I didn't know  27 at the time that I wrote the opinion.  I now know.  I  28 learned it subsequently.  29 Q   Yes.  Are there any other places in your opinion  30 report where you wrote things that you had no reason  31 to know one way or the other?  32 A   Yes.  One other instance that I can think of offhand  33 is a discussion of the Hudson Bay Company, the  34 difficulty with the packers in 1888.  We haven't come  35 to that yet, but that's one instance.  36 Q   Okay.  Is there any other instance that comes to mind  37 where you had no evidence for something, but you  38 nevertheless wrote in your summary --  39 A   It wasn't lack of evidence, it was just the inferences  4 0 to be drawn from the -- from the documents.  41 Q   All right.  So you -- there was evidence to support  42 this surmise, or was there not?  43 A  With —  44 Q   The one with respect to Chief Mountain?  45 A  Well, yes, he'd been given in effect a reward, so he'd  46 obviously done something.  47 Q   Yes.  But there was no evidence, was there, to support 2129?  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 the surmise that his aid lay in persuading the Indian  2 and his family to bow to the wind and surrender  3 himself?  4 A   No, you're quite right.  5 Q   And then my further question was whether you could  6 identify any other occasion within your summary when  7 you made a similar statement without any evidence to  8 support it?  9 A  Well, I've just given you the episode of the Hudson's  10 Bay Company which is at page 43.  Again, at the time I  11 wrote that I wasn't certain -- I said I wasn't.  I  12 said I didn't know, but I now do know, or I think I  13 know.  14 Q   Any other instances of that kind?  15 A   I would have to review the summary, Mr. Adams, to give  16 you an answer.  That's the one that comes quickly to  17 mind.  18 Q   All right.  You don't have any others in mind at the  19 moment?  2 0 A   Not at the moment without reading the summary, no.  21 Q   Okay.  Now, you quote on page 34 a fairly lengthy  22 passage from Chief Mountain's letter?  23 A   Yes.  24 Q   And he there makes statements about his duty to his  25 great mother the Queen and his country?  26 A   Yes.  27 Q   And his love for law and order?  28 A   Yes.  2 9 Q   All right.  Why was that in your judgment a  30 significant enough statement to quote extensively in  31 your opinion summary?  32 A   It was a statement made by a chief, admittedly in an  33 area outside the claim area, but it seemed to me to be  34 of some relevance to what I was doing.  35 Q   Yes.  And what I wanted to have you explain was what  36 was the relevance?  37 A  Well, he here -- he at least affirms his intention to  38 observe the Queen's law, as I take it, from what he  39 says.  40 Q   Yes.  Did that tell you anything about the intentions  41 of the Gitksan or Wet'suwet'en to observe the Queen's  42 law?  43 A   Not directly, no, because he was not a Gitksan.  44 Q   Did it tell you anything indirectly about their  45 intentions?  46 A  Well, no, it does not I guess.  47 Q   All right.  Then could I ask you again to explain how 21299  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D. R. Williams (for Province)  Cross-exam by Mr. Adams  it was relevant to your subject, the imposition and  acceptance of law and order in the land claim  territory?  A  Well, he assisted the police party and the stipendiary  magistrate.  He assisted them into the Gitksan area.  Yes.  Where was Chief Mountain from?  Greenville, my lord.  MR.  THE  THE  MR.  ADAMS:  COURT:  WITNESS  ADAMS:  Q  THE  MR.  THE  MR.  A  Q  A  COURT  ADAMS  COURT  ADAMS  Q  And you're aware are you that Greenville is not in the  land claim territory?  Oh, yes, no doubt about that.  And you're aware that Chief Mountain was not Gitksan  or Wet'suwet'en but Nishga?  Quite true, but -- Nishga, yes, I believe he was  Nishga.  Where's Greenville, please?  Greenville's on the Nass, my lord.  Thank you.  MR.  THE  MR.  MR.  MR.  MR.  So all that you had here was a statement by somebody  who wasn't from the claim territory, who wasn't  talking about the claim territory, who said that so  far as the statement records for his part he loved law  and order?  A   That's what's there.  Yes.  Q   All right.  Now, if that was significant, and I take  it you thought it was to include it?  A   I've mentioned it.  Yes.  Q   All right.  Then I want to suggest to you that other  statements by the same person on the same subject  ought also to have been of some significance to you?  A   If he made other statements on the same subject I have  not seen them.  Q   Yes.  But you'd agree with me that they would be of  significance?  A   If he revised his opinion, I would obviously have to  agree, yes, but I have not seen --  Q   Let me --  A   I'm not denying their existence.  I haven't seen them.  ADAMS:   Let me ask you to look at Dr. Galois' materials  Exhibit 1035-196, which is in Volume 4.  COURT:  1035.  ADAMS:  196, my lord.  It's Dr. Galois' Volume 4.  GOLDIE:  Is this the Cornwall Planta inquiry --  ADAMS:  Yes, my lord.  GOLDIE:  — at Metlakatla? 21300  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. ADAMS:  Yes.  MR. GOLDIE:  Thank you.  MR. ADAMS:  Q   It's appendix C that I want to ask you to look at, Mr.  Williams.  Appendix C?  Appendix C.  Yes.  And what page is that?  That I'm trying to determine.  It's towards the back.  It's seven pages from the back?  Yes.  And you have that on the right-hand side, a "C", and  then "The Honourable Mr. Cornwall and Mr. Planta," the  "Commissioners"?  Yes.  All right.  And if you go over the page you'll see a  list of names and the date October 19, 1887?  Yes.  And you will recall that the date of the statement you  quoted was 1884?  Yes.  And do you see among the list of names one "Mountain"?  Yes.  And as far as you know, that's the same person as the  person you referred to when you were quoting?  I will assume that it is.  I don't know.  Now, was it  Mountain senior or Mountain junior, I don't know.  The  name is the same.  Yes.  And at the beginning you'll see "We, the Chiefs  of Greenville" and then there's a list of villages.  Where's that?  Right under appendix "C".  Yes.  But I don't know whether it's the same Mountain.  He may have died and his son may have succeded him.  I don't know.  THE COURT:  What's the year of this?  THE WITNESS:   1888.  MR. ADAMS:  Q   1887, my lord.  1887, I'm sorry.  And is that your understanding of the succession among  the Nishga?  You're asking me if this is the same man.  It is the  same name, but I don't know, I cannot say, if it is  the same man.  Yes.  And you had --  And I'm not going to swear to it.  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  A  Q  A  A  Q  A  Q  A 21301  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   You had suggested that perhaps the son succeeded the  2 father, and my question was was that your  3 understanding of succession among the Nishga?  4 A   I don't know what the -- what the law of succession  5 amongst the Nishga people is.  All I'm saying is I'm  6 not going to swear that this is the same man.  I don't  7 know.  8 Q   Just while I'm on the subject, you do know something  9 about the law of succession among the Gitksan?  10 A   No, I don't.  11 Q   You've written something about the law of succession  12 on the Gitksan?  13 A  Well, I touched on it, but when I say to you I don't  14 know about the law of succession, I don't have exact  15 knowledge.  I haven't made a study of it.  16 Q   All right.  Let me ask you to look at the  17 cross-examination binder 1172, tab 13.  Tab 13 is the  18 extract from the Trapline Outlaw?  19 A   Yes.  20 Q   And if you'll turn to page 14, please, which is the  21 first page included in the extract?  22 A   Yes.  23 Q   And you say there in the second -- I'm sorry, the  24 third full paragraph, "On his mother's side..."  25 A   Yes.  26 Q   "...Simon was descended from the Gail family..."  27 A   Yes.  28 Q  29  30 "...or more accurately, the Gail crest, which  31 was the term used by the Gitksan people to  32 designate family groupings."  33  34 A   Yes.  35 Q  36  37 "Because the Gitksan were a matriarchal society,  38 inheritance and succession to honours came  39 through the female rather than the male of the  4 0 family."  41  42 A   Yes.  43 Q   Correct.  So that you knew that much about succession  44 among the Gitksan?  45 A   Yes.  46 Q   Now, let me ask you this:  Do you understand what the  47 word matriarchal means? 21302  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  A  Well, as I was using it there it was a society which  the inheritors came from the female rather than the  male.  Q   Do you understand the distinction between matrilineal  and matriarchal?  A   No, I don't.  Q   You don't.  I'm going to suggest to you --  A  When I say I don't, except in the dictionary sense.  I  don't understand the ethnological significance of it.  Q   I wasn't speaking of the ethnological significance, I  was speaking of the dictionary meaning of the word,  and I want to suggest to you that, given what you say  there on page 14 about succession, that the word you  should have used was matrilineal?  A   You may well be right.  It shows my limited knowledge  of the subject.  ADAMS:   All right.  To come back to Chief Mountain's  recorded comments to Messrs. Cornwall and Planta, if  you look under appendix C, three lines from the  bottom.  COURT:  I'm sorry, where are we now?  ADAMS:  I'm back in Dr. Galois' Volume 4, my lord, at tab  196.  COURT:  Thank you.  GOLDIE:  Mohammad is going to the mountain.  WITNESS:   This is the bottom of the page, Mr. Adams?  ADAMS:  Q   That's right.  I'm three lines from the bottom.  A   Yes.  "The land was given to our forefathers..."  Q   Yes.  "...by the great God above, who made both the  white man and the Indian, and our forefathers  handed it down to us, and we have not given it  to anyone.  It is still ours and will be ours  till we sign a strong paper to give part of it  to the Queen."  A  Q  Yes.  And you'd agree with me that if we were talking about  the same Chief Mountain, that statement would be  significant in relation to the 1884 letter that you  quote in your opinion report?  A  Well, just let me have a look at that.  What have I  done with it?  It's vanished under this pile of paper  here.  THE REGISTRAR: Do you want this one? 21303  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 THE WITNESS:   I want my copy of it.  I'm sorry, my lord.  Was  2 it tucked inadvertently into one of these volumes?  3 Yes, it was.  I'm sorry, Mr. Adams, what page of the  4 summary?  5 MR. ADAMS:  6 Q   34.  7 A   Yes.  8 Q   That was the long quote from Chief Mountain's August  9 1884 letter?  10 A   Yes.  11 Q   All right.  12 A   He doesn't —  13 Q   And the question was, or the passage that I read you  14 from the Cornwall Planta materials, would it not have  15 been of some significance in deciding what to include  16 as Chief Mountain's views on the subject of law and  17 order?  18 A  Well, in the letter he doesn't talk about land, and  19 his views on land as expressed in the Cornwall Planta  20 commission don't seem to me to be inconsistent with  21 what he says here, but I can only say the letter --  22 there is the letter.  That's what he said.  23 Q   Yes.  And you're aware that he said still other things  24 that are much more closely on point are you?  25 A   I'm not.  I've already said I'm not familiar with his  26 later -- with anything he later said.  27 Q   I see.  You're quite sure of that are you?  28 A   To my recollection.  I don't know that I've read  29 anything about Chief Mountain other than this and what  30 you've just now shown me.  31 Q   All right.  Let me see if I can assist you.  Exhibit  32 1172, tab 1, that's the cross-examination binder?  33 A   Uh-huh.  What tab, please?  34 Q   Tab 1 at page 5?  35 A   Uh-huh.  36 Q   Do you have that?  37 A   Yes.  38 Q   And this is you referring to a Colonist article of  39 April 22, 1885?  40 A   Yes.  41 Q   And you see that your note there refers to a letter  42 written by "Metlakatlah Indians, described as Chief  43 Mountain, David McKay and Charles Russ."?  44 A   Yes.  45 Q   And you'll recognize David McKay and Charles Russ as  46 the other signatories to the passage that I just  47 referred you to out of the Cornwall Planta materials? 21304  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   And you'd agree with me that we're, notwithstanding  3 what the Colonist had to say about what kind of  4 Indians they are, we're talking about the same people?  5 A   It would appear so.  6 Q   All right.  Are you now recalling that you are  7 familiar with other statements made by Chief Mountain?  8 A   Now that you've drawn it to my attention, yes, I had  9 forgotten it.  10 Q   Yes.  And this is what you record the Colonist  11 recording him as having said on the subject?  12 A   Indeed I did.  13 Q  14  15 "We wish to say a few words about our land --  16 the land we live on and use -- the land our  17 fathers occupied; this is the one thing that  18 troubles our hearts, and until this trouble is  19 looked into and settled justly, we fear it will  20 remain.  It should not be forgotten that we  21 occupied this land before we saw a white man;  22 each tribe had its own piece of land, bounded  23 by some stream or mountain, which all tribes  24 recognized, and one tribe would not venture on  25 another's without a general war following.  26 Each tribe then subdivides their land  27 amongst the several villages and families that  28 compose the tribe, for fishing, trapping and  29 hunting, and for berrying, so each man occupied  30 his own place and no one would interfere with  31 him.  32 We believed the land was our own, we had no  33 cause to doubt this; and we were not a little  34 surprised when the missionaries told us the  35 land belonged to the Queen.  Trouble would have  36 taken place at once had they not told us too  37 the Queen would act justly by us.  And that if  38 we stopped our tribal wars and became friendly  39 to the white men, honour the Queen and obey her  40 laws, she would watch over us and protect our  41 rights.  We believed their words and stopped  42 our wars, and looked upon the white men as our  43 friends.  We never thought that in taking the  44 Queen's flag to wave over us and her laws to  45 guide us, and in acknowledging her as our  46 Queen, we were to be stripped of our land,  47 driven from gardens we had cleared and 21305  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 cultivated, made to take down our houses where  2 our fathers had lived before us, and move off  3 the land we had always occupied."  4  5 A   Yes.  6 Q   Now, that was in your working papers for the present  7 opinion summary wasn't it?  8 A   It was.  Yes, it was.  I suppose one would say that.  9 Certainly I had read it.  10 Q   Yes.  11 A   I had reported on it obviously.  12 Q   And something that in formulating your opinion summary  13 and in giving your evidence you disregarded entirely?  14 A   Insofar as the Youmans' episode was concerned.  Yes.  15 Q   Yes.  Does that now change your view of the  16 significance of the statement of Chief Mountain that  17 you quote on page 34 of your summary?  18 A   I don't think so.  This is what he said at the time on  19 that subject.  I'm not making an opinion on what  20 Mountain says.  I simply -- on the validity of it.  21 I'm just simply reproducing what he said.  That's what  22 he said.  23 Q   Well, I put it to you, sir, that you're reproducing  24 what he said very selectively.  That's so, is it not?  25 A  When one is writing any summary one exercises a  26 process of selection.  27 Q   And what was the basis for your selection in this  28 case?  29 A   I thought it was part of the whole episode.  30 Q   And you thought it was careful legal historical  31 research to refer to the I love law and order  32 statement, but not to refer and not to include in your  33 documents the statement made a few months later by the  34 same person on the same subject?  35 A   It's not a question -- if there's any criticism to be  36 made, which I don't accept, it's not of the research,  37 it's of the expression of the results of the research.  38 I had -- I'd read that article in the Colonist.  39 Q   And I take it, if I understand you, that you accept no  40 criticism for the results of the research?  41 A   No.  42 Q   Okay.  Now, when you were considering events connected  43 with the 1884 killing of Youmans' you seem to have  44 stopped at Chief Mountain's statement, and the next  45 time we have a chronological reference in sequence  46 it's 1888?  47 A   Yes. 21306  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   You were aware, were you not, that partly as a result  2 of -- apparently of the threats to the Lome Creek  3 miners in 1884, to which we referred yesterday, and  4 partly apparently as a result of Youmans' death, there  5 was held in 1884 in Metlakatla a royal commission?  6 A   I don't know frankly whether the -- whether that, if  7 there was a commission in Metlakatla in 1884, I'm not  8 sure that it stemmed from these events.  9 Q   All right.  Let's do it one at a time.  Are you aware  10 or not that there was such a royal commission?  11 A   To inquire into the Youmans' episode?  12 Q   To inquire into anything.  13 A  Well, I would like to see the terms of reference of  14 it.  15 MR. ADAMS:   Well, I'm happy to refer you to the report, and  16 that's to be found, my lord, at Dr. Galois' Volume 2,  17 tab 80.  18 MR. GOLDIE:  Is this the date of the Davie Ball inquiry?  19 MR. ADAMS:  20 Q   It may be, my lord.  It's one that hasn't retracted  21 the name -- the name for it yet in anything that I've  22 read, but I do see that the first two names are Edmund  23 Davie and Henry Ball, yes.  24 As you see from the cover page, Mr. Williams, that  25 this refers -- this is the report of the 1884  26 Metlakatla inquiry?  27 A   Yes.  28 Q   All right.  Is this something that you've seen before?  29 A   Yes, I think I have seen this.  30 Q   All right.  And was it something that you took into  31 account in formulating your opinion?  32 A   No.  33 Q   All right.  How did that come about?  34 A   I think it was referred to me or, if not, I'm not just  35 sure how it came to my attention, Mr. Adams, but I  36 have seen it.  Not recently.  37 Q   All right.  Let me ask you to look at page 133, which  38 is the third page?  39 A   Yes.  40 Q   About three-fifths of the way down you'll see "the  41 Commissioners"?  42 A   Yes.  43 Q   "The Commissioners consider the causes of disquietude  44 may be classed under the following heads:"  And there  45 you see number one, "The claim of the Indians to have  46 recognized their title to all the land."?  47 A   Yes. 21307  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   And you'll see under number four which reads, "The  2 Indian Council at Metlakatla.", this paragraph:  3 A   Yes.  4 Q  5  6 "The notion of the Indian land title led to  7 the driving off of Roundy from his location on  8 the Naas River; also to the threats made by the  9 Skeena River Indians to eject the miners..."  10  11 A   Yes.  12 Q  13  14 "...and may lead possibly to future serious  15 trouble, unless checked by the assertion of  16 authority."  17  18 A   Yes.  19 Q   All right.  Was that a reference that you noticed in  20 formulating your opinion?  21 A   I did not take this report into account in formulating  22 my opinion.  23 Q   What I'd asked you is whether that was something that  24 you noticed?  25 A   I cannot tell you sitting here today that I recall  26 specifically reading that sentence two or three years  27 ago when I first saw this document.  I don't know.  28 It's -- the statement is there.  29 Q   Yes.  Let me ask you to look at the last page of the  30 tab, which is numbered small Roman numeral vi?  31 A   Yes.  32 Q   And do you see there that apparently Mr. Clifford gave  33 evidence?  34 A   Yes.  35 Q   And that he is answering questions about Lome Creek?  36 A   Yes.  37 Q   And then if you go to the bottom of the page?  38 A   He notes that there were 30 Indians working there for  39 white men and mining on their own account.  40 Q   Yes.  If you go to the bottom of the page you'll see  41 Mr. Davie, who's one of the commissioners?  42 A   Yes.  43 Q   And is asking whether the witness knows anything about  44 the Yeomans affair?  45 A   Yes.  46 Q   All right.  Now, did that -- did those references to  47 Lome Creek, the threats to miners in Lome Creek, and 2130?  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  A  4  5  6  7  Q  8  9  A  10  11  12  13  14  Q  15  16  17  18  A  19  Q  20  A  21  22  Q  23  24  25  A  26  Q  27  A  28  Q  29  30  A  31  32  Q  33  A  34  Q  35  36  37  A  38  Q  39  A  40  MR. ADAMS  41  THE COURT  42  MR. ADAMS  43  44  45  46  MR. GOLDI  47  to the Yeomans affair, come to your attention when you  looked at this document?  I already knew about the concern of the miners at  Lome Creek.  They had sent off a petition about them.  I certainly knew about Mr. Sanpare feeling worried.  I  didn't find anything new in here.  And if you don't find anything new in a document, you  disregard it; is that what you're saying?  Well, it was -- I think this came to my attention  subsequent to my first work in December of 1986, but I  didn't think that it added any -- added to my sum of  knowledge particularly about what had happened with  the Yeomans affair in 1884.  Well, it should have told you something, should it  not, about what the aftermath of the Yeomans affair  was, and that something happened between 1884 and  1888?  Namely the commission.  Among other things?  Well, whether it should have or not I suppose is for  others to judge.  The fact is I didn't.  Now, this section of your opinion report was supposed  to deal with Indian tensions unrest and  confrontations; correct?  Yes.  And you covered the Yeomans affair under that heading?  Yes.  You made no reference to the 1884 Lome Creek miners'  petition?  Not in my summary I think, but I certainly did in my  evidence.  No mention of the 1884 Kitwanga chiefs' petition?  It is not referred to in my summary.  Yes.  And no mention of the 1884 Metlakatla royal  commission that referred specifically to the area and  the issues that you were concerned with.  It is not mentioned in my summary.  And it's not among your documents is it?  No.  All right.  Are you going on to a new subject, Mr. Adams?  Almost, my lord.  I have a couple more questions on  this one.  On what theory of relevance did you exclude any  consideration of those materials from your summary?  :  That requires -- that gets back to the same problem  that we had before, my lord.  The witness has given 21309  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 his views on relevance and now he's being asked for a  2 theory of relevance.  3 MR. ADAMS:  My lord, the only view the witness has given on  4 relevance that I can recall is with respect to in 1876  5 the speech of the Governor General in Victoria.  6 THE COURT:  I don't think the witness has said anything that  7 would preclude Mr. Adams from asking why these  8 particular specified items just mentioned were not --  9 MR. GOLDIE:  I don't object to that, my lord.  It was the — the  10 question was general, a theory of relevance.  11 MR. ADAMS:  Well, I —  12 THE COURT:  You can put your question again, please, Mr. Adams.  13 MR. ADAMS:  14 Q   Yes.  Mr. Williams, you excluded in your summary any  15 reference to the three things I've mentioned, Lome  16 Creek miners, Kitwanga chiefs, Metlakatla royal  17 commission, all in 1884?  18 A  And as to the first two of those I have given evidence  19 here, but -- but not as to the third.  But you're  20 quite right, there was no specific reference in the  21 summary to either of those three.  22 Q   And I put it to you that those are all significant  23 events to consider under the heading of Indian  24 tensions, unrest, and confrontation?  25 A   Certainly, and I did consider them.  2 6 Q   But you made no reference to them?  27 A   I have done at this trial, but you're right, there is  28 no specific reference in the summary to them.  29 MR. ADAMS:   All right.  That might be an appropriate time.  30 THE COURT:  All right.  Thank you.  Do counsel want to come back  31 at the usual time or at 1:30 or quarter to two even?  32 MR. GOLDIE:  I'll come back any time that's convenient to the  33 court and my friends.  34 MR. ADAMS:  I'm happy to come back at 1:30, my lord.  35 THE COURT:  One-thirty.  Thank you.  36 THE REGISTRAR: Order in court.  Court stands adjourned until  37 1:30.  38  39 (PROCEEDINGS ADJOURNED FOR LUNCHEON RECESS)  40  41 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  42  43 THE REGISTRAR: Order in court.  4 4 THE COURT: Mr. Adams.  4 5 MR. ADAMS:  46 Q   Thank you, my lord.  47 Mr. Williams, we were at page 34 of your opinion 21310  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 summary in Exhibit 1173 and I had been asking you some  2 questions about events intervening between Youmans'  3 murder in 18 84 and the Kitwancool Jim or Gamaxmelmux  4 episode of 1888, and I want to ask you to refer to Dr.  5 Galois' documents Volume 2, tab 80, in Exhibit  6 1035-80, my lord.  I'm sorry, that's not correct.  7 It's tab 73.  Right volume, wrong reference.  You have  8 that, Mr. Williams?  9 A   Yes, "Three Years' Hunting and Trapping in North  10 America in the Great Northwest".  11 Q   Yes.  That's Mr. Turner-Turner, and if you could turn  12 please to page 75 of that tab and there you'll see  13 chapter Roman numeral "X"?  14 A   Yes.  15 Q   And you can see that here he is at the Forks of the  16 Skeena?  17 A   Yes.  18 Q   And if you go eight lines down --  19 A  What year?  20 Q   Well, his account is dated 1967, but I think you'll  21 find that he is travelling in 1886.  That's apparent  22 from page 43, and it explains how he crossed the  23 Atlantic and so on.  24 A  Well, I don't have -- oh, I see.  Here we are.  25 MR. GOLDIE:  So that's September 28th, 1886?  2 6    MR. ADAMS:  27 Q   That's my understanding, my lord.  2 8 A   Uh-huh.  29 Q   All right.  So eight lines down on page 75 he says:  30  31 "Next day, L. and I walked to the village with  32 our interpreter, leaving orders for our canoe  33 to pick us up there, intending after an  34 interview with the chief, to continue our  35 journey, however, on entering his lodge where  36 the members of that all important  37 assemblage,called the council, were gether  38 together,a glance around sufficed to assure us  39 that our presence was regarded with much ill  40 feeling and hostility.  Do and say what we  41 would, we found it impossible to convince them  42 that we were not surveyors come to deprive them  43 of their lands; finally, as they utterly  44 declined to allow us to proceed we decided to  45 remain one day, and then failing to instil  46 common sense into their dull brains, we  47 determined to put their threats of forceable 21311  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 detention to the test; council after council  2 was held in our honour during the day, yet they  3 continued to behold us in the light of a  4 formidable enemy.  On the morrow, finding them  5 still of the same determination, we decided to  6 stand no more nonsense, and in any case to make  7 an attempt to proceed; we therefore ordered our  8 crew, much against their inclination, to man  9 the canoe preparatory to a start, and  10 surrounded by a band of wildly gesticulating  11 Indians, one of whom stood knife in hand ready  12 to cut our tow line, we solemnly took our  13 seats; a considerable crowd had by this time  14 assembled on the shore, some of whom menacingly  15 held our tow line which they threatened to cut.  16 I therefore landed in order to hold a final  17 parley with the chief, which resulted in my  18 writing a few lines on a slip of paper, to the  19 effect that I was no surveyor, and that I  20 should decline to accept their lands, if even  21 in a fit of generosity they should offer them  22 to me."  23  24 And again going ahead in the account, or in this  25 account, to page 101?  26 A   Yes.  27 Q   I'm sorry, I may have taken you too far too fast, 76,  28 just after the page we were on, do you have that?  2 9 A   I have 76.  Yes.  30 Q   Okay.  And seven lines down in the first full  31 paragraph you'll see that he's at Kispiox?  32 A   Yes.  33 Q   All right.  And then three-fifths, three-quarters of  34 the way down, you'll see a reference to Mr. Tomlinson?  35 A   "Now accompanied us".  36 Q   No, further down.  Next --  37 A   "Proceeded to the village to arrange".  38 Q   Yes.  Yes.  39 A   Yes.  40 Q   And then he says this:  41  42 "Imagine our surprise when on his return..."  43  44 And that's Mr. Tomlinson I take it.  45  46 "...he told us they refused to pack our things  47 under a prohibitorily exorbitant price 21312  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  amounting to something like 100 pounds, the  whole of the following day was spent in the  customary councils, without which no conclusion  can apparently be arrived at upon the most  trivial subject; through this, a decidedly  hostile feeling was maintained towards us.  Mr.  Tomlinson finally remarked, 'the fact is they  won't have you in their country, if you do get  where you intend and I leave you, you will be  cut off from the river and thoroughly in their  power, their evident intention is to molest  you; take my advice, therefore, and give up the  project or I cannot answer for your safety."  And then ahead to 101.  GOLDIE:  Excuse me, before my friend proceeds, I don't think  he's asked the witness if he's familiar with this  publication yet.  ADAMS:  No, I will come to that, my lord.  GOLDIE:  Well, my lord, I don't think this document by the  wildest stretch of anybody's imagination is a learned  treatise.  It is -- and unless the witness is familiar  with it, I'm going to object to its inclusion.  COURT:  What is the document, Mr. Adams?  ADAMS:  It's a travel account and it's marked as an exhibit  in these proceedings.  It was referred to extensively  in Dr. Galois' evidence without objection.  MR. GOLDIE:  Well, the whole report at that time was under  objection.  In my submission, my lord, it has  absolutely no weight at all.  I've glanced through it  and if it has any validity in anything that he's  saying I'll be surprised.  MR. ADAMS:  Well, my lord, weight is surely a matter for  argument at the end of the day.  The fact is that Dr.  Galois was examined on it, available to be  cross-examined on it, and in my submission I'm  entitled to question the witness about it.  THE COURT:  Well, I don't know if that's right, Mr. Adams.  You're entitled to ask the witness about statements in  it, surely.  That's all I'm doing.  At most.  Firstly, I think it would help if you  would ask the witness if he knows anything about it.  MR.  MR.  MR.  THE  MR.  MR.  THE  MR.  ADAMS:  COURT:  ADAMS:  Q  A  Certainly,  before?  Never.  Mr. Williams, have you seen this document 21313  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   It wasn't one that you reviewed when you reviewed Dr.  2 Galois' documents?  3 A   I don't recall reviewing it.  No.  4 Q   All right.  I take it that the information that is  5 contained in it is true and was unknown to you in  6 writing your opinion?  7 A   That's right.  8 Q   All right.  I have one more reference, two more  9 references, my lord, that are just different villages  10 in the same vein.  11 Mr. Williams, I was on page 101 and you'll see in  12 the first full paragraph a reference to Kitwanga?  13 A   "In April I made another excursion"?  14 Q   Yes.  15 A   Yes.  16 Q   All right.  And then in the next sentence:  17  18 "Once more the Indians refused to pack for me,  19 or to sanction my hunting in their country.  20 Split up and mystified by the various sects of  21 missionaries, they scarcely knew their own  22 minds, having been taught to resent the  23 intrusion of any stranger as one who came to  24 steal their land, this conviction had become  25 firmly rooted in their naturally avaricious and  26 selfish nature, necessitating the abandonment  27 of my final effort to hunt within a reasonable  28 distance of the Forks."  29  30 And then finally over the next page on 102, the  31 paragraph beginning "On the third day"?  32 A   Yes.  33 Q   And you see four lines down a reference to the village  34 of "Gishgegas"?  35 A   Yes.  36 Q  37  38 "...where we found many opposed to our hunting,  39 even in the spot where they dared not venture  40 themselves.  It must not be imagined that they  41 entertained any apprehension at the risk we  42 might incur, on the contrary, their opposition  43 arose solely from the dog in the manger  44 principle."  45  46 And he speaks of -- well, perhaps I should continue:  47 21314  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "however, Jim who foresaw this difficulty, had  brought several little presents of plain cakes  composed of flour and water, with which rare  luxuries, for flour was seldom tasted there, he  won over the chief, and most important of the  tribe."  Now, that's a source you weren't aware of?  A   That's right.  Q   And it's not something you reviewed since you formed  your opinion?  A   No.  MR. ADAMS:   Would the events that it records not have been of  some interest to you in forming an opinion about the  imposition of law and order and the acceptance or non-  acceptance of it by Indians in the land claim  territory.  MR. GOLDIE:  If truly described.  As I said, my lord, this is  not a learned treatise.  It's a travel book.  THE COURT:  You accept the qualification, Mr. Adams?  MR. ADAMS:  My lord, in the same way that I would accept it for  every newspaper article that has been referred to.  THE COURT:  Yes.  All right.  MR. ADAMS:  The unspoken assumption, in my submission, with  every document is if true or to the extent that it's  true.  Yes.  All right.  If true or to the extent that it's  true.  THE COURT  MR  ADAMS  Q  A  Q  A  Q  A  Q  A  Now, still at the bottom of page 34 and still that is  of your opinion summary and still in the gap between  1884 and 1888, you're aware that in 1887 there was a  second royal commission held at Metlakatla which is  commonly referred to as Cornwall Planta?  Yes.  And you were aware of that?  I was aware that there had been a commission, yes.  And have you looked at the documents surrounding that  royal commission?  No.  Okay.  You're quite sure of that are you?  Well, I'm not -- perhaps I speak too quickly.  I  looked at the thing.  I may have made some comment  about it, but I take it what you mean when I looked at  the documents surrounding it, did I study them with a  view to the formulation of my opinion.  The answer is  no, I did not take them into account. 21315  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   All right.  Could you look please at Exhibit 1172, tab  2 2?  3 A   Uh-huh.  What page?  4 Q   Page 59, please.  5 A   Yes.  6 Q   And you'll see there under item 4?  7 A   Yes.  8 Q   This is your letter to Mr. Goldie's attention in  9 August of 1986?  10 A   Yes.  11 Q   And you say you refer there to Cornwall and Planta?  12 A   Yes.  13 Q   And what they were doing?  14 A   Yes.  15 Q   And then you attach notes and you'll find those on  16 page 60 over the page as to their confidential letter  17 containing observations about Indian title?  18 A   Yes.  I see in my report at that time I referred to  19 that letter from Mr. Mills which we looked at this  2 0              morning.  21 Q   Yes.  22 A   Yes.  23 Q   And you record Mr. Cornwall as saying, in what turns  24 out to be from a private report:  25  26 "It has long been determined that government  27 cannot in any way allow this title to Indian  28 lands.  There is no ground..."  29  30 Is that your insertion, by the way, the "title to  31 Indian lands"?  32 A   I'm sorry, what passage are you looking at?  33 Q   You see at the top of page 60 under "Excerpt"?  34 A   That is a quote.  35 Q   Yes.  I just noticed that there are handwritten square  36 brackets around "title to Indian lands", and I just  37 wonder if you recall whether you put those there or --  38 A   I think -- well, it looks like my square brackets,  39 yes, that's what he's talking about.  4 0 Q   All right.  41  42 "There is no ground for the assertion that the  43 fee of the lands was ever invested in the  44 Indians.  Although in many parts of the old  45 provinces of Canada the Indian title was as it  46 is called extinguished by the farce of  47 purchasing the same for infinitesimally small 21316  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 sums, and a like course has been pursued in the  2 North West territories, yet, I conceive, it was  3 only done because it was deemed politic and  4 expedient to do so."  5  6 And then you record that your discovery, I gather,  7 as you're reading, that the quotation isn't from the  8 report.  And let me pause there to ask you, have you  9 ever seen the report?  10 A   I have not read the report in full, no.  Now, just a  11 moment now, let me have a look. I looked at this thing  12 obviously and, frankly, I don't remember how much time  13 I spent reading it.  Obviously enough to extract this  14 opinion by Cornwall, and he then reiterates that to  15 some extent in his private note.  16 Q   Right.  And then you say in the last paragraph on page  17 60, carrying on with his discussion of Indian title,  18 "He says", and that's you speaking of Cornwall?  19 A   That's right.  2 0 Q   And then you're quoting again?  21 A   Yes.  22 Q   "The Indian in his wild state has no idea of property  23 in or title to land."?  24 A   Yes.  25 Q   "He only knows his right to live on it in common with  26 others."?  27 A   Yes.  28 Q   "He has and makes only a partial use of it."?  29 A   Yes.  30 Q   "He has no defined boundaries within which he claims.  31 His ideas with reference to it are of the most vague  32 description."?  33 A   Yes.  34 Q   "He believes in his right to his own house and  35 improvements of whatever kind and personal property  36 generally, but beyond that the beasts of the field  37 have as much as ownership in the land as he has."  38 Now, let me ask you this first:  Would such a  39 statement by a representative of the provincial or  40 Dominion government in 1887 not have been of some  41 significance for your subject?  42 A   I did not think it affected my work.  I should say  43 that -- perhaps I'm sure I did say earlier, when I ran  44 across material which I, although I felt it did not  45 relate directly to what I was doing, might nonetheless  46 be of some interest, I passed it on, and that's what I  47 did here. 21317  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  Q  2  3  4  5  6  A  7  8  Q  9  10  A  11  Q  12  13  A  14  15  Q  16  17  18  A  19  MR. ADAMS  20  21  MR. GOLDI  22  MR. ADAMS  23  Q  24  A  25  Q  26  A  27  Q  28  29  A  30  Q  31  32  A  33  Q  34  35  36  A  37  Q  38  39  40  A  41  Q  42  A  43  Q  44  45  A  46  Q  47  A  Yes.  And with respect to the last passage of the  quotation that I've read to you about ideas of  property, you're aware, are you not, with respect to  at least to the Gitksan, that those statements to your  knowledge are not accurate?  I'm not a student in this field, Mr. Adams.  I can't  make a competent opinion on accuracy or inaccuracy.  Well, you'll recall that you published views about  Gitksan territory?  Of crests and territory, yes.  Yes.  And that suggests to you, does it not, something  beyond the conceptions of the beasts of the field?  I did not weigh this passage in the light of customary  law or tradition relating to land.  Yes.  What I was asking you is whether, to your  knowledge, the general characterization was accurate  with respect to the Gitksan?  I never considered it.  :   Well, I'm asking you to consider it in light of  your published work?  'Ģ1:  Well, perhaps you could refer him to that, please?  At Exhibit 1172, tab 13.  Yes.  And again at page 14 where we've been before.  Yes.  You speak of the possession of hunting or trapping  grounds at the bottom of the page?  Yes.  You say that the Gail crest held ancestral hunting  grounds at Bear Lake?  Yes.  You refer at the top of page 15 to that area as the  ancient lands of his family, referring to Simon  Gunanoot?  Yes.  You refer on page 18, which is also in the extract, 11  lines down, to Simon Gunanoot being jealous of his  hereditary possession?  I'm sorry, page 18?  That's right.  I was at 17.  Yes, it's 18, 11 lines from the top.  Yes, yet espousing the white man's capitalism.  76 of the extract, which is only a few pages ahead of  where we are, two lines from the top?  76?  76.  Yes. 2131?  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   Two lines from the top you refer to loss of their  2 traditional lands?  3 A   This was a fear of the loss, yes.  4 Q   Yes.  And all I'm inviting you to agree with me out of  5 this is that, to your knowledge, as you published it,  6 the characterization contained in Mr. Planta's  7 confidential report with respect to the Gitksan at  8 least was inaccurate?  9 A  What I wrote in that book as reprinted last year I  10 believed it to have been true, otherwise I wouldn't  11 have put it in, but what Mr. Planta's views are --  12 Cornwall's views are I have not analysed or -- they're  13 there to be compared with what I have said.  14 Q   Yes.  And the —  15 A   If you wish.  16 Q   The things that you wrote, the views you expressed in  17 your Gunanoot book, you still hold I take it?  18 A   I believe what I said was correct, yes.  19 Q   Okay.  That brings us to page 35 of your opinion  20 summary, and we are in 1888?  21 A   Yes.  22 Q   And you say in the third line on page 35, you refer to  23 this in the first three lines as to the Gamaxmelmux or  24 Kitwancool Jim episode as being "by far the most  25 significant example of contention and confrontation",  26 "in the period I am discussing"?  27 A   Yes.  28 Q   And the period you're discussing is what?  29 A   1889, 1910, or Great War.  I think I said that I took  30 my researches substantially down to the end -- or  31 stopped substantially at the end or at the beginning  32 of the Great War and then there are a few references  33 up to 1919 or 1920.  34 Q   Yes.  All right.  And do you mean to say 1889 because  35 you begin this section with 1872?  36 A   No, I'm sorry this is Kitwancool Jim.  Yes, you're  37 quite right.  I'm talking about the whole period of  38 time right from first contact up to the Great War.  39 Q   All right.  Now, you say in the second paragraph on 35  40 that the affair started in late March or early April  41 1888?  42 A   Yes.  43 Q   Just to pick up the minor point first, are you aware  44 that you are mistaken in that date by approximately  4 5 two months?  46 A  Well, the original shooting, I'm not sure that the  47 date has actually been pinpointed.  It might have been 21319  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  Q  5  A  6  7  Q  8  A  9  10  Q  11  12  A  13  14  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  24  A  25  Q  26  27  A  28  Q  29  A  30  31  Q  32  33  34  A  35  Q  36  37  38  39  40  A  41  MR. ADAMS  42  43  44  MR. GOLDI  45  46  MR. ADAMS  47  February.  I don't attach much significance to the  date of the actual shooting by Kitwancool Jim of  Neasqu, the actual date of it.  I'm sorry?  I say I don't attach much significance to the actual  date of the original shooting.  So it doesn't matter if you got it right or wrong?  Yes, it does matter, but I don't attach much  significance to it.  I would prefer to be right.  Yes.  If you don't attach much significance to it why  does it matter?  I don't think that whether the shooting took place in  February or March, in the scale of what took place, I  think it's a matter of small significance.  You'll agree with me that what you describe here is a  chronological sequence of events?  Yes.  And it's of assistance to know in a chronology whether  something happened before or after something else?  One would like to be accurate in the chronology, yes.  Yes.  We don't ordinarily think of something that  happens before something else is being caused by the  latter?  This didn't happen in 1887.  Yes.  My question was something that happens before  something else isn't caused by the latter?  Are you asking me a question?  That's correct, isn't it?  Well, I'm sorry, I thought it was more an observation  not a question.  What was the question, please?  The question was to invite you to agree that something  that happens before something else isn't caused by the  latter?  Yes, I guess that's right.  Cause and effect, yes.  Yes.  Now, I'm happy to take you to the documents that  show the date as February 1st, or I can simply give  the references.  I'm open to either approach.  Do you  have any reason to question that the actual date is  February 1st and not late March or early April?  I would like to see the document.  :   All right.  In Dr. Galois' materials, Volume 4,  it's 1035 and the tab reference is 168.  I'm sorry, I  may be in error in that.  'Ģ1:  Well, I think Mr. Williams' document 60C may be of  some assistance to you.  :  It's tab 172 and 173, same volume.  Okay.  In 172 at  the top, and this is Mr. Wootton, the stipendiary 21320  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  magistrate, writing in April 1888, and he refers to  the event as during the last winter.  MR. GOLDIE:  Well, the precise reference, my lord, is under tab  60C where --  MR. ADAMS:  My lord, I'm going to take the witness to the  precise reference.  MR. GOLDIE:  Well, that's the document that the witness has  placed in evidence.  That's the document he's  testified to.  MR. ADAMS:  Well, my lord, in my submission I'm not bound by the  document the witness placed in evidence nor what he  testified to.  I'm cross-examining him on that  evidence and those documents.  You do see that in tab  172 the reference to last winter, Mr. Williams?  THE COURT:  I have the former document, I don't have the other  one.  It would help me if we could look at the other  one for no other reason.  ADAMS:  Which one?  COURT:  I don't have Dr. Galois' reference.  ADAMS:  I'm handicapped by the fact that the only one I've  highlighted are Dr. Galois' references.  I'll follow best I can.  MR.  THE  MR.  THE  MR.  COURT  ADAMS  Q  A  Q  A  Q  A  Q  A  Q  A  A  Q  A  I'm grateful my friend has been when he's able  supplying the cross references.  Yes.  What is your question?  You see the reference there in the second line to  "during the last winter"?  This is the letter of April the 5th, 1888?  I believe it's April 3rd.  April 3rd.  And where's the --  The second line on the first page.  "Information has lately been received here that during  the last winter one Indian committed another at a  point on the Skeena River."?  I think it says "one Indian murdered another"?  "murdered another at a point on the Skeena River, not  very far from the scene of the Youmans' murder."?  Yes.  And you recognize that as a reference to  Kitwancool Jim's,  Gamaxmelmux's, killing of Neasqu?  Yes.  All right.  Next tab 173, this is Mr. Irving who I  think you've identified previously as the Deputy  Attorney-General?  No, I didn't.  I -- oh, I'm sorry.  Yes, this letter  is from him.  That's right.  He may have been  Attorney-General. 21321  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  Q  2  3  A  4  Q  5  6  A  7  MR.  ADAMS  8  9  THE  REGIS  10  MR.  ADAMS  11  12  THE  COURT  13  THE  WITNE  14  MR.  ADAMS  15  Q  16  17  A  18  Q  19  20  21  A  22  Q  23  24  A  25  26  27  Q  28  A  29  30  Q  31  32  A  33  34  THE  COURT  35  MR.  ADAMS  36  THE  COURT  37  MR.  ADAMS  38  Q  39  40  A  41  Q  42  43  44  45  A  46  47  Q  In any event, he's writing to Constable Anderson of  Fort Simpson?  Yes.  And you'll see there he refers to the murder and he  says "on the first February last"?  Right.  And finally in the previous volume, that is,  Exhibit 1035-149 --  RAR: What volume?  Volume 3, and the cross-reference, my lord, is 60C  to Mr. Williams' materials.  Thank you.  S: Yes, I have that.  And you'll see there in the first few lines there's  another reference on Wednesday, February the 1st?  Yes.  All right.  So out of all that you'll agree with me  that the date that should have appeared in your  opinion report was February 1st, 1888?  The date of the actual shooting, yes.  Yes.  And that's the date you're talking about, isn't  it?  I'm talking about the affair generally, but it  certainly started with the shooting on February the  1st, yes.  Yes.  As I say, I don't really attach much significance to  the actual date of the homicide.  Well, you do attach significance, do you not, to  reading your documents carefully?  Well, one tries to, Mr. Adams, indeed, but we're not  all fallible -- infallible rather.  I take it the year 1888 is the right year, is it?  Yes, my lord.  Oh, yes, it's up above.  Thank you.  Now, you do say there in the same paragraph that the  affair started with the shooting and killing; correct?  Yes.  And what I want to suggest to you is that for an  understanding of the event it didn't start with the  shooting and killing, it started with the events that  lead up to the shooting and killing?  Well, I've touched on that in the next sentence I  think.  Yes.  And that's your -- 21322  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  A  2  3  Q  4  5  A  6  Q  7  A  8  Q  9  10  A  11  Q  12  13  A  14  15  THE COURT  16  17  18  19  20  21  MR. ADAMS  22  Q  23  24  25  A  26  Q  27  28  29  A  30  31  32  Q  33  A  34  Q  35  36  A  37  Q  38  A  39  Q  40  41  42  A  43  Q  44  45  46  47  But you're quite right.  It was -- there was some  underlying circumstances.  Yes.  And that's your entire reference to those  circumstances, the next sentence?  In the summary of the report, yes.  Yes.  In the summary of the opinion, rather.  Yes.  And do you recall fleshing out that reference in  your evidence?  Yes.  And remind me what you had to say about the  surrounding circumstances?  Well, there were a number of references to it, as I  recall.  One, in particular, Mrs. --  :  I'm sorry, Mr. Adams, but you know I don't think  that's a helpful question for cross-examination.  You  have a transcript, the witness doesn't, and to ask the  witness to remember what he said about an incident  over several days of evidence seems to me to be not  very helpful because it doesn't get us anywhere.  We're agreed, are we, that there were surrounding  circumstances that were significant to an  understanding of the event?  Yes.  All right.  And part of those circumstances, were they  not, were a feast at which Gitksan names were in  issue?  I cannot recall the particular issue that was raised  at a feast, but there was reference in the material to  some dispute over the position to be taken at a feast.  Yes.  Which I took to be a family dispute, but --  Let me ask you now to look at Dr. Galois' Volume 4,  tab 168, and that is one of the Barbeau narratives?  What's the tab number?  It's tab 168, so it will be 68, towards the front.  Yes.  And you'll see there this is one of the Barbeau/Beynon  interview reports that you recall reviewing after  you --  Yes.  -- did your summary?  All right.  And you'll see that  it begins:  "The people of Gitwonwe," G-i-t-w-o-n-w-e  "gave a big potlatch here.  The people of 21323  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 Gitsegukla came and camped one mile above here,  2 and the people of Gitwinkul came out and camped  3 about 1/2 mile from here.  And many people from  4 this village went and gave them..."  5  6 The word recorded is "timginam", t-i-m-g-i-n-a-m,  7 which I take it is translated "something to eat".  So  8 we are dealing, are we not, with at least it appears  9 three villages?  10 A  Well, there's certainly a reference to three villages.  11 Yes.  12 Q   And then I'll ask you to look 22 lines down, which is  13 the beginning of a paragraph:  14  15 "The house here, one crest in one part gisgast"  16 g-i-s-g-a-s-t "laxse'l" 1-a-x-s-e-'-1 "and  17 another and laxkibu" 1-a-x-k-i-b-u "in the  18 other."  19  20 A   Yes.  21 Q   Do you understand what that reference is to?  22 A   I do not.  23 Q   All right.  And then going over to the next page in  24 the narrative, 13 lines down, so about three-fifths of  2 5 the way down.  26 A   Yes.  27 Q   And it reads:  "After the hallait came inside another  28 man goes out again."  29 A   Yes.  30 Q   Hallait spelled H-a-1-l-a-i-t?  31 A   Yes.  32 Q   Do you understand what that reference is?  33 A   I do not.  34 Q   Okay.  35  36 "And he called the names of the first chief who  37 has been taken by the hallait.  He calls his  38 name, and he tells him to come in and take a  39 seat in the house."  40  41 A   Yes.  42 Q   Okay.  And just so I don't appear to be going too far  43 afield, the heading of this narrative is it not is  44 "Gamaxmelmux", in brackets, "(Gitwinkul Jim)"?  45 A   Yes.  46 Q   Okay.  Now, back on page 2, eight lines from the  47 bottom? 21324  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   "And Wiget sat down and gixsum" g-i-x-s-u-m, "and  3 Ksg.ogmlaxe" K-s-g-.-o-g-m-1-a-x-e?  4 A Yes.  5 Q "And txatguml", t-x-a-t-g-u-m-1?  6 A Yes.  7 Q "And Tsa'olts.jump" T-s-a-'-o-l-t-s-.-j-u-m-p.  8 A Yes.  9 Q "And now they came to the seat of hanamwx."?  10 A   Yes.  11 Q   "That was Gamoxmolmux..." and that's the same person  12 you understand as Kitwancool Jim?  13 A   Yes.  14 Q   "...son, who was to take the place of the man called  15 ha'namux.  He ought to take his seat now."?  16 A Yes.  17 Q And then going over the page?  18 A Yes.  19 Q Page 3.  And I'm starting three lines down:  20  21 "And that woman came in with her son and she put  22 her son in ha'namux' seat and she sat down  23 behind her son.  And after that boy had sat  24 down Nitsu", N-i-t-s-u, "came after."?  25  26 A   Yes.  27 Q   And you understand that to be the person who  2 8 Gamaxmelmux or Kitwancool Jim eventually killed?  29 A   I believe so.  30 Q   Yes.  31  32 "And Nitsux", here it's N-i-t-s-u-x, "was to  33 take the place of hanamuq.  Nitsu was himself  34 decorated with his own gown.  And they could  35 not find place for him because that boy had  36 taken the place of hanamuq."  37  38 And then skipping a few lines just before the end  39 of the paragraph:  40  41 "...Nitsu turned back after he had spoken.  He  42 threatened the boy:  'You'll not sit in that  43 place very long.'  That meant that the boy  44 would die after a while."  45  46 A   Yes.  47 Q   And then going over to page 4.  Well, at the very 21325  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  A  4  Q  5  6  A  7  MR. GOLDI  8  MR. ADAMS  9  MR. GOLDI  10  MR. ADAMS  11  Q  12  13  A  14  Q  15  16  17  18  19  20  21  22  A  23  24  Q  25  26  A  27  Q  28  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  36  37  A  38  Q  39  40  41  42  43  44  A  45  Q  46  47  bottom of 3 it says "Nitsux looked like a very fierce  man."?  Yes.  "And they put the down on his head."  Do you understand the significance of that?  I do —  E:  I'm sorry, page 3 did you say?  :  Three going over to four just at the very bottom.  E:  All right.  Thank you.  Do you understand the significance of placing down on  his head?  I do not.  Okay.  And then four lines down, "Nitsux took the  seat."  And then five lines below that:  "And the  Gitwintkul people started to make a potlatch after  that." And then at the end of the paragraph:  "The  boy, the son of gamolmoxmuq died in Gitwintkul during  the potlatch.  That boy was named Gamux'on."  And the  name is G-a-m-u-x-'-o-n.  So that is, is it not, how the affair started?  This is the -- this is an account of how the affair  started by the man who gave the interview.  Yes.  And there are other similar accounts here, one's  at tab 169, the next tab?  Yes.  And this one is also headed "Gamoxmelmax, (Gitwinlkul  Jim), 1923"?  Yes.  And if refers to the death of Jim's child?  Is this Charles Mark's statement?  That's correct.  Yes.  I see that.  And then at tab 170 there's another account.  This  time the informant is Lelt, and the name in brackets  Salomon, S-a-1-o-m-o-n, Harris?  You see that?  Yes.  Okay.  And this account begins:  "There was a feast in which all the people  of Gitwanga and Gitwintkul and Gitsegukla were  invited."  Yes.  "They feast may have been given by wixe" w-i-x-e 21326  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 "but informant is not sure and at the feast  2 where all the chiefs were summoned Hanamuq:  3 wife of gamonxlpunq, were sent into the house  4 and sat in the place of hanamuq.  This place  5 was wanted by 'nitsux himself."  6  7 This is the same events, as far as you understand  8 it?  9 A  Apparently.  10 Q   All right.  11  12 "Nits came and sat in front of this place to  13 establish his claim to it.  14 Then the measles came upon the people and  15 among those that died from this epidemic was  16 this young boy.  And all the summoned guests  17 had now returned to their villages."  18  19 And he gives the boy's name consistent with the  20 other account?  21 A   Yes.  22 Q   And then:  23  24 "The mother of the boy then claimed that Nitsux  25 was blamed for the death of the boy using  26 powers as hallait to cause the death of his  27 son."  28  29 The word you used was bewitched, but you  30 understand that to be the same reference?  31 A   Yes.  32 Q   All right.  So it's correct out of these documents, is  33 it not, to say that this series of events began on  34 February 1st with a dispute about places in the feast  35 and names in the feast?  36 A  And the concomitant suggestion that there was a, if  37 that's the word, "hallait," or that there was a  38 bewitchment, of these two boys.  I think there were  39 two of his children who died.  Yes.  Those are the --  40 I have no reason to doubt the gist of what the people  41 here are talking about.  42 Q   Okay.  And then you go on in your opinion summary to  43 say in the second paragraph on page 35, that, this is  44 after Neatsqu has been killed:  45  46 "The Kitseguecla people were outraged, demanding  47 revenge on the Kitwancools..." 21327  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2 A   Yes.  3 Q  4  5 "...but were dissuaded by Mr. Pearce, the  6 missionary, from taking the law into their own  7 hands, and they agreed to wait for government  8 intervention."  9  10 A   Yes.  11 Q   Now, what I want to suggest to you here is that the  12 documents that were available to you, if not in  13 forming your opinion, certainly in giving your  14 evidence, say that far from the Kitseguecla people as  15 a people being outraged and demanding revenge on the  16 Kitwancools, that rather there was a settlement; that  17 there was compensation sought and paid, and that there  18 was a settlement.  And if it assists you any, if you  19 look at page 37 of your opinion summary you quote  20 captain Fitzstubbs to that effect?  21 A  At which —  22 Q   Your quotation on the top of page 37?  23 A   "On my way up I was practically stopped by the Indians  24 of the Kitwangar village, who forbade the crew of my  25 canoe..." Is that the one you mean?  26 Q   Yes.  This is Fitzstubbs coming up after the killing?  27 A   Yes.  28 Q   And he says:  29  30 "I was then addressed by several of the elder  31 men, who complained that the whites had  32 interfered with the operation of their own laws  33 and taken the life of one of their race..."  34  35 A   Yes.  36 Q   "...that life being, by the payment of the stipulated  37 sum, no longer forfeit."  38 A   Yes.  39 Q   Yes.  And what I'm suggesting to you is that there was  40 information available to you in this case while you  41 were writing your opinion to tell you that this  42 killing had been the subject of compensation and a  43 settlement?  44 A  Well, to start with, Fitzstubbs is talking about  45 Kitwanga, and I understood you to be talking about the  46 reaction of the Kitseguecla people.  But I think in  47 some of the documents that I looked -- or that were 2132?  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 tendered the other day, I think there was reference to  2 compensation in respect of the killing of Kitwancool  3 Jim which was not accepted.  I think there was a  4 reference to 40 blankets, for example.  I may be wrong  5 about that, but I think there was discussion.  But  6 I -- this what you have here is a quote from  7 Fitzstubbs, and that's what he said.  8 Q   All right.  Let me take you back into the narratives  9 that we've already referred to and that you say you  10 have no reason to doubt, and the first is at tab 168  11 of Exhibit 1035, and that was the Jim Lagaxnitz --  12 A   I'm sorry, I closed this.  What's the tab number  13 again?  14 Q   It's 168.  15 A   Yes.  And which one did you want me to refer to?  16 Q   Page 10.  17 A   168?  18 Q   168, page 10.  19 A   Yes.  2 0 Q   And I'm seven lines from the top.  21 A   Yes.  22 Q   Well, maybe I better start a little sooner.  23  24 "And nobody would go up to Gitsegukla from  25 here..."  26  27 It's not clear where he's writing from.  28  29 "...or Gitwintkul for the feast because they  30 were afraid now.  Just one man carried the  31 message from here to Gitsegukla, and one  32 message sent from Gitwintkul sent down here.  33 They were discussing about Nitux after his  34 death.  35  36 That is Neatsqu as you understand?  37 A   Nitux is the man who was shot, I take to be the man  38 who was shot by Kitwancool Jim.  39 Q   Yes.  40  41 "And now the family agreed that they would not  42 give anything to Nitsu family as remuneration.  43 It is because they waited that the law would  44 recommence.  The Gitsegukla agreed with the  45 people here in Gitwintkul that they would not  4 6 give anything. And then the nephews of Nitux  47                     decided to give a big potlatch over Nitus to 21329  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 prevent any trouble and prevent shooting.  And  2 the people of Gitwange sent word to Gitwintkul,  3 asked to give a payment to the family of  4 Nitux..."  5  6 And then there's a term there K-s-i-s-u,  7 translated as "compensation".  8  9 "...and they made a reply to the people here  10 because the people were well trying to make  11 peace between, and the word came from  12 Gitwintkul that if the family of Nitsu agreed  13 that he made a payment to them it will be all  14 right.  And word was sent again from this  15 village to Gitsegukla telling what the  16 Gitwintkul people say.  Gitwonges"  17 G-i-t-w-o-n-g-e-s, "said to the nephews of  18 Nitu - If you want to give a big feast for Nitu  19 you may ask my men who killed Nitu to make a  20 compensation, that is, the people of  21 Gamoxmul..." G-a-m-o-x-m-u-1.  22  23 A   Yes.  24 Q  25  26 "...of Kitwancool.  And the family of Nitu  27 agreed.  And two days after they got a word  2 8 from here the nephews of Nitu came down here  29 and they went up to Gitwintkul to seek payment,  30 and I do not know how much they got from  31 Gitwintkul."  32  33 And then over on page 11, 13 lines from the top  34 A   Yes.  35 Q  36  37 "And the Gisgast people made a big potlatch in  38 Gitsegukla.  And the people stayed in  39 Gitsegukla a long time for several days.  And  40 when they finished they all went back home.  41 And the Gitwintkul people went to their hunting  42 camp and some went way out to their hunting  43 ground."  44  45 A   Yes.  46 Q   And then at tab 169, the next one, on the second page,  47 and this is the Charles Mark/Barbeau narrative? 21330  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   Seven lines from the bottom on page 2, and this again  3 I think you'll find is after the killing?  4 A   Excuse me, this thing is coming apart.  One of these  5 rings is sprung.  6 A   Second page.  7 Q   Second page.  Seven lines from the bottom.  8 A   Yes.  9 Q   And perhaps rather than have me read all through this,  10 I could have you review it from that point through the  11 next full page and down to six lines from the top on  12 page 4, all with it in mind as to whether it speaks to  13 compensation and settlement?  14 A   Yes, they're talking about -- certainly talking about  15 compensation and settlement.  16 Q   All right.  And at the bottom of page 3, in  17 particular, it says:  "They arrived in Gitwintkul",  18 and this is a reference I think you'll see to Nitux'  19 family.  It's five lines before that.  20 A   I'm sorry, what page?  21 Q   Page 3.  22 A   Yes.  23 Q   And you'll see the last paragraph "They arrived in  24 Gitwintkul"?  25 A   Yes.  26 Q   And just referring you to five lines above that, that  27 "they" appears to be Nitux' family, or at least  28 "...the men of his household..."  29 A   Yes.  30 Q   "...got together and they were going all in a band to  31 Gitwintkul and asked for a ransom for Jim's family."  32 A   Yes.  33 Q   "They had to pay Ksisux," K-s-i-s-u-x, "blood or  34 money."?  35 A   Yes.  36 Q  37  38 "They arrived in Gitwintkul but they did not  39 get into the house. They stood below the house  40 and they called to the murderer outside to talk  41 to him.  And this is the way they presented the  42 blood money.  When the murderer came out, he  43 was dressed in a grizzly's skin and in his  44 mouth he bit a copper hazetsu", h-a-z-e-t-s-u,  45 "and he came down on all fours like a grizzly  46 bear. This meant that he was going to pay.  And  47 they brought out and behind him the people 21331  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 carried the most valuable thing they had  2 blankets coats and guns and moose hides.  Then  3 after the payment was made, it was all over.  4 There was peace among themselves.  (There was  5 no need of any assistance from the outside  6 warriors."  7  8 A   Yes.  9 Q   That too, does it not, speaks to settlement?  10 A   That's what they're talking about, yes.  11 Q   And compensation?  12 A   Yes.  13 Q   All right.  And it contradicts, does it not, what you  14 say on page 35 when you say that the Kitseguecla  15 people were outraged demanding revenge?  16 A  Well, at the bottom of the second page the narrative  17 says:  18  19 "Jim arrived by this time to Gitsegukla. He went  20 to his father and he said:  I have killed  21 Nitux.  His father was asleep and he went home.  22 His father laughed and said:  Is that what your  23 father taught you?  but he got his father up.  24 He was afraid that Gitsegukla people would kill  25 his father so he got him away to come with him  2 6 to Gitwintkul."  27  28 My sense of reading the various documents led me  29 to use the word outraged.  I think the Kitseguecla  30 people were outraged. They may have calmed down after  31 these discussions amongst themselves.  Obviously they  32 did.  33 Q   And you were unaware of that in formulating your  34 opinion?  35 A   But I had read enough of the documents, and there are  36 many of them, even without the Barbeau/Beynon  37 material, to get a sense of the reaction of the people  38 at Kitseguecla.  39 Q   Well, there's no indication in those two narratives  40 that you've just looked at is there that, accepting  41 for the sake of argument that the Kitseguecla people  42 were looking for revenge, that what dissuaded them was  43 Mr. Pearce and that what they were waiting for was  44 government invention?  45 A   There's definitely a reference to that.  I can't give  46 you the letter offhand.  I think -- well, I shouldn't  47 speculate.  There's definitely a reference to it. 21332  D. R. Williams (for Province)  Cross-exam by Mr. Adams  I think it's 60B.  1  MR. GOLDIE  2  MR. ADAMS:  3  Q  1  4  5  6  7  8  9  i  10  11  A  12  13  Q  14  15  i  16  A  17  18  19  Q  20  21  22  A  23  Q  24  A  25  Q  26  27  28  29  A  30  Q  31  32  i  33  34  A  35  36  37  38  39  40  Q  41  42  A  43  Q  44  A  45  Q  46  47  My question, Mr. Williams, was out of those narratives  to which you've now been referred and which you say  you looked at after the completion of your report, but  before testifying, there is no indication in those  narratives is there that, accepting that the  Kitseguecla people were looking for revenge, that what  dissuaded them was Mr. Pearce or that what they were  waiting for was government intervention?  I see.  You're quite right.  There is nothing in this  Barbeau/Beynon material on that subject.  Okay.  And I suggest to you that if these narratives  are substantially accurate, your observations in the  middle paragraph of page 35 are in error?  No.  I don't see any inconsistency.  I don't see any  inconsistency between these various accounts and what  I have summarized.  You think that the narratives, the portions that  you've read and I've read to you, are entirely  consistent with what you say on page 35?  Essentially, yes.  All right.  One summarizes the mass of material.  Now, further down page 35, and now we're talking about  the shooting of Gamoxmelmax, Kitwancool Jim himself,  by Constable Green, you say that Gamoxmelmax ran away  apparently to avoid arrest?  Yes.  And you were aware, were you not, in writing that,  that the documents available to you were distinctly  mixed on the subject of the circumstances of how Green  came to shoot Gamoxmelmax?  There were certainly versions that differed in detail,  but I think most of the correspondence that I read  stated that it was during the attempted escape that  the shooting occurred.  Kitwancool Jim's father later  said that his son was standing still, but I didn't  have that when I wrote my report.  Let me ask you to look please at Exhibit 1172, that's  the cross-examination binder at tab 2.  Yes.  And it's page 62.  Yes.  And it appears that you did indeed have Gamoxmelmax's  father's letter when you were writing your opinion  because you quote from it? 21333  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  D. R. Williams (for Province)  Cross-exam by Mr. Adams  MR.  A  Q  A  Q  A  ADAMS  Yes, so I see.  All right.  And there are two things I point out to  you in your quotation from that letter, the first  right in the middle of your long quotation at the  bottom of page 62 saying it was all settled, you see  that?  I see that.  Yes.  Well, perhaps we should just go through the quote and  this is you quoting a letter purportedly written by  Kitwancool Jim's father?  Yes.  :   And he's recorded as saying:  "I wish to know if the government approve of the  white constable's shooting of my son Jim at  Kitwanga?"  MR. GOLDIE:  MR. ADAMS:  That's 60B, my lord.  "And to tell you that the Indian agent deceived  us, for he enquired why Jim killed the Indian,  and it was explained to him that the man he  killed was a medicine man who practised  witchcraft, that he had killed many people and  then killed Jim's two children, and all the  people wanted him killed, so Jim killed him.  And then..."  And there's an illegible word.  "...his friend and gave his own brother to the  widow to be a husband to her and support her,  and so it was all settled.  Now the Indian  agent heard this, he said it was 'all right'  and that Jim would not be taken, and wrote a  note to his 'Brother Jim' and when asked by all  the Indians if he was not going to deceive Jim,  he said No and held out his hand to witness to  his speaking the truth, and said he would cut  it off if he deceived them.  And so a woman  took his note to Jim, telling him to come to  Kitwangak.  He came, and they (illegible) him  down, breaking..."  MR. GOLDIE:  "Shot".  MR. ADAMS:  Thank you. 21334  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GOLDIE:  MR. ADAMS:  Q   Yes  "Breaking their strong promise.  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Q  A  Q  A  Q  A  "...and shot him when he stood waiting for them  to take him if they wished to.  We thought if a  white chief made a promise, we can believe him,  but now we see they deceive, and please let me  know if you instructed the officers to shoot my  son. "  A   Yes.  Q   And that was a version of these events distinctly at  variance to the one that you included in your opinion  summary, was it not?  A   So far as his waiting there for him -- waiting for  them to take him if they wished to, yes, that's  definitely at variance.  I notice incidentally that  this chap, this man, refers to the Indian agent.  There was no Indian agent at the time of his letter I  don't think.  I don't -- the Indian agent didn't come  to Hazelton until 1889.  The other material bearing on  the circumstances of the shooting, the general  tendency of it is that it was -- that Kitwancool Jim  was shot while leaving the house, while escaping from  the house.  Okay.  On page 36 of your opinion summary, first  full paragraph, do you have that?  I'm sorry, page 36?  Yes, my lord.  Thank you.  Yes.  Where you say the government feared a general  uprising?  Yes.  Why was that?  Why did they fear a general uprising?  Yes.  Because reports had reached them that there were  disturbances in the area and they responded to them.  Q   And is all that was required was a report of a  disturbance for the government to fear a general  uprising?  A  Well, the government had enough information that it  thought it should act, and it did.  Q   All right.  Towards the bottom of page 36 you refer to  two more shootings at Kitseguecla? 21335  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   One you say Tobus, T-o-b-u-s, shot and killed the  3 father-in-law of Kitwancool Jim, and then you refer to  4 his killing by Moulahan?  5 A   Yes.  6 Q   My question is, did you intend to suggest that these  7 events were related to the Gamoxmelmax episode, apart  8 from occurring at about the same time?  9 A   If I am correct in the attribution, they're saying  10 that it was Kitwancool Jim's father-in-law who was  11 shot.  There seems to be some connection.  I'm not so  12 sure that I'm right in that, as a matter of fact, but  13 the two events were contemporaneous and the shootings  14 at Kitseguecla occurred while the party was on its way  15 up the river.  16 Q   Yes.  17 A   It was not -- the shootings at -- these two shootings  18 at Kitseguecla were not the raison d'etre of the  19 military expedition.  20 Q   No.  And the only thing that suggested to you a  21 connection was the fact that you thought one of the  22 people involved was Kitwancool Jim's father-in-law?  23 A  Well, they were all intertwined.  They -- when  24 Fitzstubbs I think it was, or Washburn, I think it was  25 Fitzstubbs, arrived at Kitseguecla to find these two  26 killings had taken place, he found the village  27 deserted. The whole village had left.  They'd taken to  28 the woods they were so frightened.  These events at  29 Kitseguecla, combined with what had happened with  30 Kitwancool Jim, while they may causally had been  31 unrelated, they combined to form an atmosphere of --  32 certainly.  33 Q   Yes.  That's what I was getting at.  As far as you  34 know they were causally unrelated?  35 A   Unless I'm -- unless I'm correct that it was the  36 father-in-law of Kitwancool Jim.  37 Q   Yes.  And that's where I had started in saying that  38 was the only thing that suggested a causal relation to  39 you?  40 A   The shooting by Kitwancool Jim of Neatsqu certainly  41 had nothing to do with the shooting of Tobus of the  42 other man, if the other man was a complete stranger.  43 Tobus generally was given the reputation of being a  4 4              madman.  45 Q   Okay.  Now, going over to page 37 of your summary,  46 there was -- well, let me put a document to you first,  47 and I have for a change your tab reference.  It's 16B, 21336  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 and, my lord, the one I'll be working from is Dr.  2 Galois' Volume 4, tab 198.  And you'll recall  3 referring to this document for its population  4 estimate?  5 A   This is document again 16B?  6 MR. ADAMS:   That's my note.  I hope I'm right.  7 MR. GOLDIE:  Yes, Fitzstubbs.  8 MR. ADAMS:  9 Q   Fitzstubbs to the Attorney-General of July 27, 1888?  10 A   Yes.  11 Q   All right.  And, as I say, I believe you'd referred to  12 it in connection with the estimate of population it  13 contains.  What I want to do is ask you to go on in  14 the document, and this is taking place, just so we're  15 located, after the killing of Neatsqu and after the  16 killing of Gamoxmelmax by Constable Green?  17 A   Yes.  18 Q   And it's just before the 1888 meeting to which you  19 make extensive reference in your report?  20 A Yes.  21 Q Involving Fitzstubbs, among others?  22 A Yes.  23 Q All right.  And I want to ask you to look on page 2 in  24 the middle of the page, the paragraph beginning  25 "Unquiet"?  26 A Which page, please?  27 Q Page 2.  28 A Yes.  29 Q You have that paragraph?  30 A Yes.  31 Q  32  33 "Unquiet too has been caused by the idea  34 entertained by the Indians and inculcated, it  35 is said..." underlined?  36  37 A   Yes.  38 Q  39  40 "...chiefly by a Mr. Tomlinson, a resident on  41 the river, that the whites intend to deprive  42 them of their lands; however, this may be, it  43 is certain they are most jealous of strangers,  44 whom they suspect of being surveyors and hold  45 in utmost detestation, as was shown on the  46 arrival of Mr. Turner and James on a hunting  47 tour the winter before last, when the Indians 21337  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 armed, gathered excitedly in the Chief's house  2 and insisted on Mr. Turner's presence and  3 explanation of his intentions."  4  5 A   Yes.  6 Q   Just pausing there, that I suggest is a reference back  7 to the Mr. Turner-Turner from whose account we were  8 reading earlier this afternoon?  9 A   It would seem so.  10 Q   It fits the date of 1886, doesn't it, the winter  11 before last?  12 A   Yes.  13 Q   All right.  "Upon his appeasing and..."  14 A  Appearing I think.  15 Q   Appearing.  Thank you.  "...and removing..."  16 A   No, I guess appeasing.  No, it is appeasing, sorry.  17 Q   Well, I think you were right.  18  19 "Upon his appearing and removing their  20 apprehensions in this regard, he was treated  21 with some degree of civility."  22  23 A   Yes.  24 Q  25  26 "Another cause for the turbulence of the Indians  27 may be traced to the fact that for years their  28 misconduct has received no check whatever and  29 they believe themselves invincible to none but  30 themselves.  31 I hear too, that the familiarity which the few  32 whites, miners and others in the District for  33 some years back have permitted to the Indians  34 has tended to destroy or at least lessen the  35 respect and fear in which our race was once  36 held by them.  37 Again, they are intensely disgusted that the  38 law should assert itself in their country with  39 the chance of a check put upon their rapacity  40 and extortion."  41  42 A   Yes.  43 Q   And then he says:  "The above are I think, some of the  44 causes of their present lawlessness..." et cetera?  45 A   Yes.  46 Q   And then going to page 5, and I'm in the last  47 paragraph beginning "In dealing with"? 2133?  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  Yes.  "In dealing with the Indians here, the great  difficulty is that there is not to be found one  who is in favour of the supremacy of any law  but their own, but if there be any such, they  are too much afraid of the others to be of any  use to the whites and can only be induced to  take our services at extortionate rates,  dictated by those actively unfriendly to us."  A   Yes.  Q   And then going to page 9, beginning at the top of the  page:  "Forty miles up the Ap-wil-gate, it is said,  commences a valley about..."  And I'm sorry, my number is cut off.  It looks like  "14".  A   "140" I think it is.  MR. ADAMS:  "...miles long by 2 1/2 to 10 wide of good land,  a rich grazing country.  Mr. Borland..."  MR. GOLDIE:  Yes.  THE WITNESS:   Looks like it.  MR. ADAMS:  Q  "...is the last of several to report that only a  low-dividing range separates it from a like  valley of less extent on the Kit-se-guec-la  River, except at the mouth, a very sluggish  stream.  Doubtless..."  A  Q  "Doubtless", yes,  '...if the existence of these excellent ranges  were generally known, there would soon be found  ranchers ..."  A  Q  'Glad" I think. 21339  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1  2 "...glad to settle upon them, but as things are  3 now, the consent of the Indians would be  4 necessary to peaceable occupation, which will  5 not be given until they are disabused of the  6 correctness of the belief, almost..."  7  8 Are you able to read that word?  9 A   "An insisting" I think it is, "almost an insisting in  10 respect of their possessory rights."  11 Q   Okay.  12  13 "...in respect of their possessory rights in the  14 land, and this I think may require force.  This  15 belief has been strengthened by the teaching of  16 some of the whites and receives practical  17 support in the fact that the Tsimpcheans do and  18 have for some time exercised territorial  19 jurisdiction on the river below Kitse-las by  20 levying fines against those canoe crews who  21 travel on Sunday.  Conceding this to  22 Tsimpcheans below, they claim full jurisdiction  23 above, the village named."  24  25 THE COURT:  I'm sorry, Mr. Adams, but did that start "Forty  26 miles above Kispiox"?  27 MR. ADAMS:  It was -- he's writing from Hazelton, and he says  28 "Forty miles up the Ap-wil-gate", which I take to be  29 the Bulkley.  30 THE COURT:  Forty miles up the Bulkley?  The Kitseguecla River  31 doesn't flow into there surely.  I understood the  32 Kitseguecla River came in from the south into the  33 Skeena at the present village of Kitseguecla, but  34 that's not right.  There's Kitseguecla Mountain --  35 well, it's not a matter of great importance.  It just  36 seems to be a little bit confused.  I'm sorry, I may  37 be confused.  38 MR. ADAMS:  And I regret that I'm not able to enlighten your  39 lordship.  40 THE COURT:  Well, we won't delay ourselves for that.  Shall we  41 take the afternoon adjournment, please?  42 MR. ADAMS:  Yes, my lord.  43 THE REGISTRAR: Order in court.  Court stands adjourned for a  44 short recess.  45  46  47 21340  D. R. Williams (for Province)  Cross-exam by Mr. Adams  1 (PROCEEDINGS ADJOURNED FOR THE AFTERNOON RECESS)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein transcribed to the  6 best of my skill and ability.  7  9 Tanita S. French  10 Official Reporter  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 21341  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  MR.  MR.  MR.  MR.  MR.  (PROCEEDINGS RESUMED AT 3:00)  REGISTRAR:  Order in court.  COURT:  Mr. Adams.  ADAMS:  My lord, as a point of information, I hope, arising  out of your lordship's question with respect to the  Kitsegukla River --  Yes.  I'm advised by my team of historical geographers  that the Kitsegukla River rises south and west of  Moricetown and closed generally northwesterly into the  Skeena and Kitsegukla.  Yes.  And beyond that I won't attempt to explain what  Captain Fitzstubbs had been referring to.  Yes, all right, thank you.  Mr. Williams, I had just read you some extensive  extracts from Dr. Galois' volume 4 tab 198 and your  volume 1 tab 16b?  A   Yes.  Q   And I wonder if you're able to agree with me that the  subject of those extracts is law and land claims?  A  Well, I'm sorry, I would like to look at the extracts  at the beginning if I had known what you had in mind  when you were putting them to me.  Would you give them  to me again.  I didn't mark them as you gave them to  me, Mr. Adams.  All right.  The page references were pages 2 to 3.  This is out of 16b?  Yeah, I believe so, my lord.  It was the July 27th,  1888 letter from Fitzstubbs to the Attorney-General.  All right.  COURT  ADAMS  COURT  ADAMS  COURT  ADAMS  Q  ADAMS:  GOLDIE  ADAMS:  GOLDIE  A  ADAMS  Q  A  Q  A  Q  Yes.  reference I have given you is 5  to the very top of 6.  and  just over onto page 10.  A  Q  A  Q  And the next page  6, just at the --  Yes.  And then the whole of page 9,  Yes.  And what I was asking, now that we've come back, is  for your confirmation that the subject of those  extracts is law and land claims?  He's certainly talking about land in some places, yes.  Yes.  And about law too, isn't he?  Yes.  At the bottom of page 5? 21342  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q  3 "The great difficulty is that there is not to be  4 found one who is in favour of the supremacy of any  5 law but their own."  6 A   Yes.  7 Q   All right.  And then on page 9, where he says:  8  9 "Consent of the Indians would be necessary to  10 peaceable occupation which will not given until  11 they are disabused of the correctness of the  12 belief in respect of their possessory rights on  13 the land."  14  15 A   Yes.  16 Q   "And this, I think, may require force".  17 A   Yes.  18 Q   All right.  Now given that, given the timing of that  19 letter, that's in July -- the end of July, 1988 -- or  20 1888 I'm sorry?  21 A   Yes.  22 Q   That's right in the middle of the events that you're  23 dealing with on pages 35 through 42 of your opinion  24 summary?  25 A   Yes.  26 Q   And they were statements, were they not, that appear  27 to go to the acceptance, non-acceptance of the  28 imposition of law and order by Indians in the land  29 claim territories?  30 A   Yes.  31 Q   And they are statements to which you made no reference  32 whatsoever in your opinion summary?  33 A   I think you're right, but I'll just have a look.  Yes,  34 I agree.  35 Q   And I had mentioned to you at the beginning when I  36 introduced this document that you had referred to the  37 document in your evidence, you used the first page or  38 two to give some population figures.  And the  39 transcript reference, my lord, is volume 280, pages  40 20896 to 97.  And apart from that reference to the  41 document for that purpose, you didn't refer to these  42 events and statements in your evidence either?  43 A   I cannot recall whether I was asked to comment on this  44 letter in the context that you raised.  45 Q   Yes.  No, I think it's true to say you weren't.  And  46 my question is why not?  47 A   If I had been asked to read the letter I would have 21343  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 done.  2 Q   No, I'm sorry, I wasn't asking why you weren't asked  3 about it, I was asking given that you were aware of  4 the letter and had read it carefully, why would your  5 opinion summary include no reference to it at all?  6 A  Well, it was part of the massive correspondence which  7 I read on this matter, and I certainly read it, but as  8 I told you, I haven't cited every document in my  9 summary of opinion that I read.  10 Q   Did you discount this document, did you think that it  11 was not to be relied upon?  12 A   I don't discount anything that Fitzstubbs wrote or  13 said.  14 Q   All right.  It's not the source that's a problem,  15 because you do rely on Captain Fitzstubbs extensively,  16 don't you?  17 A   Yes.  I think he was a good man.  18 Q   All right.  And you certainly refer throughout the  19 passage in your opinion summary extensively, you quote  20 what he has to say and reports himself as saying or is  21 reported as saying to the Indians?  22 A   You're quite right.  What he's said to them in his  23 letter, it does not appear in my summary.  24 MR. ADAMS:  And what evaluation of this document was it that led  25 you to exclude it entirely from your opinion summary?  26 MR. GOLDIE:  Well, my lord, I've heard this now a series of  27 times, and the statement that is made by the witness  28 in his opinion summary, and I have emphasized before,  29 he said "I have dealt with my voluminous" -- this is  30 page 4:  31  32 "my voluminous research material under various  33 headings, along with details of the various  34 sources and particulars of documentary  35 references.  In what follows, I have summarized my  36 work under those headings; I will occasionally  37 refer to a particular document or record-group,  38 but details of all documents can be produced if  39 required."  40  41 Now, I don't know what, having stated that -- I don't  42 know what value there is in saying to a witness half a  43 dozen times "why didn't you" -- "why didn't you put  44 that in".  If he wanted to put everything in he would  45 have had the bibleography that we have here today.  46 MR. ADAMS:  My lord, the witness has testified as to the  47 necessity of considering as widely as possible, of 21344  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 evaluating sources and so on in his cross-examination  2 on qualifications.  The reasons for including or  3 excluding reference to particular material surely, in  4 my submission, are relevant to the weight that you can  5 give the opinion that results from the consideration  6 or non-consideration, inclusion or non-inclusion of  7 the material.  8 THE COURT:  Well, I'm not sure about this question.  I think  9 there is a difference of emphasis between counsel  10 arising out of a different conception about the  11 classification, if I can use that term, of a summary  12 of evidence.  It is the evidence the witness has given  13 at trial that governs.  I think -- I think it may be  14 relevant to a question of weight if a witness has  15 included or not included a document, and in that  16 regard I draw another distinction between not included  17 and excluded.  I'm not at the moment persuaded that a  18 document not included has been excluded if it doesn't  19 appear in the summary, but I'm not sure that that  20 means has been excluded.  I think the real problem  21 here is between the different views counsel have on  22 what can be done with this problem of documents which  23 are not included.  I think Mr. Goldie's position, if I  24 summarize it correctly, is that the absence of a  25 document from a summary is a consequence which can be  26 assessed by the fact of its absence and nothing more  27 is required.  Mr. Adams, on the other hand, thinks  28 that the matter can be advanced by going further and  29 determining if possible the reasons why the document  30 is not included.  While I would like to prefer Mr.  31 Goldie's view, I'm not sure that I can prevent Mr.  32 Adams from exploring that question.  33 MR. GOLDIE:  I would like to say only this, my lord, and I leave  34 it for the purposes of future reference:  Where you  35 have a report which is put forward as being completely  36 self-contained, such as Dr. Greenwood's was, then the  37 exclusion or failure to include a document in his  38 references is one for comment, because if he had been  39 allowed to present that report he couldn't have  40 strayed beyond the -- its boundaries without falling  41 afoul.  I think it was a ruling of Mr. Justice Bouck's  42 that —  43 THE COURT:  The Degelder case, I believe.  44 MR. GOLDIE:  Yes, that's correct.  When a report is tendered  45 under the relevant section of the Evidence Act the  46 witness is not at liberty to embellish it.  The  47 summary was never tendered as a report, and it said 21345  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 very clearly on its face, as I have referred to, that  2 it is not all inclusive and is evidence -- its  3 evidence was intended to introduce the documents that  4 supported his opinion.  Now, I see at page 21032,  5 volume 2 82, line 15, and what you have got under tab  6 60a -- well, before I go on to that, what is  7 introduced at tab 60a is the Kitwancool Jim affair; is  8 it not?  Well, the proper word there is "introduced",  9 because the witness certainly did not read every  10 document that followed that related to the Kitwancool  11 Jim affair.  There's a long document in there which is  12 the -- is the so-called "Full Account", which, if my  13 memory serves me correctly, is not referred to in the  14 summary, and yet the Full Account is an essential  15 document to an understanding of the Kitwancool affair,  16 and it is the document which forwarded to the federal  17 government the reports of Fitzstubbs and Roycraft.  It  18 is a document which lays out the provincial  19 government's position with respect to the Kitwancool  20 affair.  21 MR. ADAMS:  Excuse me, my lord, we're, in my submission, a long  22 way into an argument here on an objection that was  23 made, I believe, and I understood ruled on.  24 THE COURT:  Well, I haven't finished.  25 MR. GOLDIE:  Well, my friend is quite right.  I said I wanted to  26 say for the purposes of future reference, I didn't  27 want to let it go by that there was an acceptance on  28 my part that Mr. Williams' summary was the equivalent  29 of a report.  30 THE COURT:  Well, thank you.  I was going to go on before Mr.  31 Goldie's interjection, and say I would like to accept  32 Mr. Goldie's objection because I think in short that I  33 started to say that I do not think that I can do that,  34 because it is a question that might go to weight if a  35 document has been left out, and therefore I suppose  36 excluded from the collection, and it may go to weight  37 if the witness has misconstrued any document that is  38 in the collection.  And for that reason it seems to me  39 that Mr. Adams is entitled to proceed with his  40 cross-examination, as he has been, but if it's of any  41 assistance, I think that I should repeat now that I do  42 not think the exclusion of a document from a summary  43 is necessarily a matter that goes to weight at all.  44 It may be that in the totality of evidence it will  45 appear otherwise, but my present and very preliminary  46 view is that the summary is what it says, that it is a  47 summary and that the evidence of the witness is what 21346  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 he gave in chief and what he included in his  2 collection.  I don't know if that's of any assistance  3 at all, but that sets out my present view of the state  4 of morass in which we have found ourselves -- state of  5 the morass that we have found ourselves.  6 MR. ADAMS:  7 Q   Mr. Williams, let me ask you this, the portion of your  8 opinion report beginning on page 35 that deals with  9 the Kitwancool Jim episode of 1888 --  10 A   Yes.  11 Q   That was intended, was it not, to be a summary of the  12 most significant events in that sequence in that year?  13 A  What I attempted to do here was to summarize a great  14 many documents by collating them and to some extent  15 quoting them, but in other cases summarizing what I  16 took to be the effect of them.  I certainly had in  17 mind in the preparation of my report Fitzstubbs'  18 letters, all his letters, not just this one.  19 Q   Confining yourself to a discussion of documents that  20 supported the conclusion that you eventually express  21 in your opinion summary?  22 A   No, of course not.  I weighed this, I read it.  23 Q   There's no reason for us to expect that documents that  24 do not support your conclusions would not be referred  25 to in your opinion summary, is there?  26 A  What is that again?  27 Q   There is no reason for us to expect the documents that  28 do not support your conclusions would not be referred  29 to in your opinion summary, is there?  30 A   I have -- if you mean have I tailored the documents to  31 a particular end, the answer is no.  I have read all  32 the material that bears on this affair that I haven't  33 been able to discover, and have formulated my view of  34 it.  35 Q   My question is more whether you tailored the summary  36 to support your view and excluded any reference to  37 anything that doesn't?  38 A  Well, I'm expressing an opinion which I have  39 formulated after reading all the material.  You're  40 quite right, I have not said on the one hand this and  41 on the other hand that, I have formulated an opinion  42 based on the material which I have read.  43 Q   And I asked you a moment ago whether the portion of  44 your summary that deals with this event, you have to  45 make an assessment, don't you, of the significance of  46 various events and documents in the sequence,  47 precisely because there's so much material? 21347  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Certainly.  2 Q   All right.  And your -- in your summary with respect  3 to these events you picked out what you saw as the  4 most significant events?  5 A   I -- the whole section relates in my mind to a  6 significant event.  I think all the documents are  7 significant.  8 Q   Within that sequence you picked the ones that were  9 most significant to illustrate your points, did you  10 not?  11 A   I picked those which are representative, not  12 significant.  They're all significant.  13 Q   And did you pick any documents that were  14 representative of the views reported in Mr.  15 Fitzstubbs' — Captain Fitzstubbs' July 27, 1888  16 letter?  17 A  Well, in the formulation of my opinion I did not  18 extract from any letters which -- I agree, which may  19 have taken an opposite point of view, but I think the  20 tendency of all the material in the file -- the Skeena  21 River Uprising file, as it is called, incidentally, I  22 read it all, and I think it supports the statements I  23 have made about it.  24 Q   Turning to page 38 of your summary, you say, with  25 respect to the disposition of the case against  26 Constable Green, and I believe you said in your  27 evidence that whereas you had said in your report you  28 suspected the charge must have been stayed.  You now  29 know that that was in error, that you know that he was  30 acquitted.  31 A   It was not an error, it was a statement made on  32 incomplete knowledge.  33 Q   If you make a statement on incomplete knowledge that's  34 wrong, is it not an error?  35 A   "I suspected", I said.  I didn't say that the charge  36 was stayed, I suspected that it must have been stayed.  37 This is another instance of the sort of thing you were  38 talking about this morning, incidentally, so that  39 makes three.  40 Q   Was your suspicion wrong?  41 A  My suspicion was wrong.  42 Q   Thank you.  Now, further down in the middle of the  43 quotation from Captain Fitzstubbs on page 38 of the  4 4 summary --  45 A   Yes.  46 Q   You have the sentence beginning:  47 2134?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "First, then, the past and continued misconduct  2 of the Indians of the Skeena generally, and of  3 those of the Kitmax in particular, determined the  4 government to send amongst you one in whom is  5 invested all the authority to inquire into all  6 branches" --  7  8 A   Sorry, Mr. Adams, what page are you quoting from?  9 Q   38 of your opinion summary.  10 A   Oh, I see.  Yes, all right.  11 Q   And I simply wanted to refer you to the short passage  12 that refers to the past and continued misconduct of  13 the Indians of Skeena generally and those of the  14 Kitmax in particular?  15 A   Yes.  16 Q   All right.  What did you understand Captain Fitzstubbs  17 was referring to in that passage, if you did?  18 A  Well, he refers to some of this in his letter of the  19 27th of July.  20 Q   Is that what you understand him to be referring to?  21 A   I think so.  22 Q   Are you aware of anything else that he may have been  23 referring to?  24 A   I don't know how far back in his recollection he is  25 going, but he hasn't -- he hasn't been in Hazelton  26 very long when he speaks these words.  27 Q   Yes.  Now, he's offering this, as I understand it, as  28 the first reason why he's been sent.  Is that how you  29 understand it?  30 A   That's what he says -- well, you can -- there are his  31 words.  32 Q   Yes.  And if that's the first reason he's there, would  33 it not have been appropriate to discuss the events  34 that had caused him to be sent in your summary or in  35 your evidence?  36 A   I did not refer to them in my summary and I was not  37 asked about it in my evidence, I don't think.  38 Q   Would it not have been -- would your opinion summary  39 not have been a better product, better legal  40 historical research if it had reflected the very  41 events that Captain Fitzstubbs ended up saying had  42 brought him to the area?  43 A  Well, perhaps it might have been, but I didn't do it.  44 Q   Going over to page 41 of your opinion summary --  45 A   Yes.  46 Q   And you say "The other chief" -- this is in the middle  47 of page 41: 21349  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "The other chiefs reported to be present were" --  2  3 And there's a list of names and villages?  4 A   Yes.  5 Q   And there is no reference there to Kisgegas?  6 A   No.  7 Q   Nor to Kuldo?  8 A   No.  9 Q   Nor to Moricetown or its earlier equivalent?  10 A   No.  11 Q   All right.  Going over to page 42.  12 A   Yes.  13 Q   You're aware, are you not, that even having sent the  14 militia up the coast and a party of constables up the  15 river, that the provincial government said in the  16 documents that it was not planning to keep an armed  17 force in the country?  18 A   You will have to show me the document that you have in  19 mind.  The -- after the affair was over the provincial  2 0 government said it was not going to keep an armed  21 force in the country, but it certainly had every  22 intention of sending the armed force up the river if  23 it had been thought necessary by Roycraft and  24 Fitzstubbs.  25 Q   Let me ask you to look, please, at your volume 4,  26 Exhibit 1179-64.  27 A   I'm sorry, it's my tab?  28 MR. GOLDIE:  64.  2 9    MR. ADAMS:  30 Q   And this is written, you will see, in July 1888?  31 A   Yes.  32 Q   And it's directed to Superintendent Roycraft?  33 A   Yes.  It says "Instructions for the Attorney-General".  34 Q   Yes.  And I call your attention on the first page to  35 the last paragraph.  And this, just to locate us  36 chronologically, is after the two killings but before  37 the meeting with the chiefs, correct?  38 A   On the first page?  39 Q   Well, I'm referring to the date of July 16, 1888.  40 A   Yes.  41 Q   And I'm just asking you to confirm for us that this is  42 being written after Kamalmuk has killed Niits and  43 after Constable Green has killed Kamalmuk, but before  44 the 1888 meeting between Roycraft and Fitzstubbs and  45 some of the chiefs to which you refer extensively?  46 A   Yes.  47 Q   All right.  And with that in mind, the bottom of the 21350  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 first page is -- his instructions say:  2  3 "The executive desire to express to you most  4 strongly the opinion that the militia should not  5 be called upon to fire except in the case of last  6 resort."  7  8 A   Yes.  9 Q  10 "and if the attitude of the Indians after the  11 relief party in Hazelton is such to indicate that  12 there may be further trouble or that white people  13 cannot remain there with safety, you will give the  14 white people notice that the government does not  15 propose at present to keep an armed force in the  16 country and that they had better retire to the  17 coast while the opportunity offers."  18  19 A   Yes.  20 Q   All right.  So my question was were you aware of  21 the —  22 A   I thought I had -- I thought that's what I had said  23 just a moment ago.  24 Q   Well, you had said, as I recall, that after --  25 afterwards --  26 A   Yes.  27 Q   The decision had been made to call the militia?  28 A   That was the intention, was not to leave a force in  29 the country after the expedition of -- after the work  30 of Roycraft and Fitzstubbs.  31 Q   Yes, okay.  Now then, you say at the end of the first  32 paragraph on page 42 of your summary that there was in  33 fact no armed conflict, it was due to the firmness and  34 resolution of Roycraft, Fitzstubbs and their  35 constables?  36 A   I believe that to be the case, yes.  37 Q   My question is what about the Indians?  38 A   Certainly.  This might perhaps have been better if I  39 mentioned it.  They, from what they were reported as  40 saying, they agreed with the statement of the law as  41 laid down by the two men.  42 Q   You're not suggesting there by only mentioning  43 Roycraft, Fitzstubbs and the constables as a reason  44 for the avoidance of armed conflicts that the Indians  45 were passive spectators to these events?  4 6 A   No.  47 Q   In fact, you know, don't you, from the Roycraft letter 21351  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 of July 27th that we've been talking about that they  2 were far from passive spectators at this time in this  3 place?  4 A   That's why the expedition was set up.  5 Q   Yes.  And I want to suggest to you that the avoidance  6 of armed conflict that you can comment on might  7 equally be attributed to the prudence of the Indians?  8 A   Their good sense, yes.  I think I've said that  9 somewhere.  10 Q   All right.  Now, there were statements made after?  11 A   I referred to that at page 52 of my report.  I'm  12 talking about the deployment of the military force.  I  13 said:  14  15 "That it was not deployed was due to the good  16 judgment of the whites and the common-sense  17 attitudes of the Indians that any sort of  18 resistance to the imposition of white rule and  19 government was likely to lead to their own  20 extermination, and an acceptance by them that they  21 had no special status in the governance of the  22 claim area, and like anybody else were subject to  23 the rule of law and government of the provincial  24 and federal authorities."  25  26 Q   Yes.  I had in mind a somewhat narrower definition of  27 prudence when I asked the question.  And what I had in  28 mind, so that you understand my question, I was  29 suggesting that whereas you said the absence of armed  30 conflict was due to the firmness and resolution of  31 Roycraft, et al, I was suggesting to you that it might  32 equally be attributed to the prudence of the Indians  33 without all, if I can call it that, the baggage of  34 your conclusion on page 52?  35 A   I don't accept the word "baggage".  36 Q   Without the addition of all the additional material on  37 page 52, just plain old prudence?  38 A  And common sense, which is what I said, yes.  39 Q   Yes, all right.  Now, you're aware, aren't you, that  40 after the meeting involving Roycraft et al and some of  41 the chiefs in 1888, that there were other documents  42 that cast some doubt on the -- either the genuineness  43 of what had been said by the Indians at that meeting  44 as far as reflecting their state of mind, or else cast  45 doubt on the permanence of the sentiments that had  46 been expressed there?  47 A   Yes.  Fitzstubbs himself in January wrote a letter, 21352  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  Q  5  6  7  8  A  9  10  11  12  Q  13  14  15  A  16  MR.  ADAMS  17  MR.  GOLDI  18  19  20  MR.  ADAMS  21  22  THE  COURT  23  MR.  ADAMS  24  25  26  THE  COURT  27  MR.  ADAMS  28  THE  COURT  29  MR.  ADAMS  30  THE  COURT  31  MR.  ADAMS  32  THE  COURT  33  MR.  ADAMS  34  35  THE  COURT  36  MR.  ADAMS  37  THE  COURT  38  MR.  ADAMS  39  Q  40  41  A  42  MR.  ADAMS  43  44  THE  COURT  45  A  46  MR.  ADAMS  47  Q  I've forgotten the date of it, from which it appears  that the -- perhaps the acceptance had not been so  wholehearted as he thought it had been in August.  Yes.  And we were referred, I think it was yesterday,  to a document in which he said that the promises of  last autumn had been not fulfilled.  I'm paraphrasing,  but do you recall that?  That's roughly what -- I don't know, I wouldn't -- I  won't -- I won't cabal (?) at the paraphrase, but I'm  not quite sure that that's what Fitzstubbs said.  His  letter is here, it's one of my documents.  Yes.  I think I put a typescript to you yesterday, and  so we're both clear what was said, I will go back to  it.  It's Exhibit 1172 tab 17, I think, my lord.  My tab 17, is it?  No.  It's in the cross-examination binder at tab 17.  :  I think there's a typescript in your lordship's  volume of Mr. Williams' material, I think it's under  tab 24a.  Yes.  I have a note 24a, my lord.  I'm sorry, I  wasn't reading what was in front of me.  Yes, thank you.  And on page 6 of the typescript that I have at  1172-17, at any rate, you will find a paragraph  beginning "To sum up"?  Can you tell me what -- at page 24, did you say?  It's page 6 of 1172-17.  In the typescript?  In this version of the typescript.  I'm not sure which one is this.  1172-17, that's in the cross-examination binder.  Oh, all right.  The difficulty was my friend and I both went out and  got typescripts made but not by the same people.  Yes.  Page 6, is it?  Page 6.  Yes, thank you.  The last full paragraph.  Do you have that, Mr.  Williams?  Is this the -- what tab in the Galois thing, is it?  :  If you've found the letter and you can find the  place it's not going to matter which volume you have.  :  It's not in Galois, it's --  5th of January, 1989.  Yes.  And you see where Captain Fitzstubbs says "To 21353  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 sum up"?  2 A  At the end of his letter, yes.  3 Q   Yes?  4 A   Just a moment.  5 Q   This is the very last paragraph of the letter?  6 A   Yes.  7 Q   All right.  And the phrase that I was recalling and I  8 now read for you is:  9  10 "The promises and appearances of last autumn were  11 to a great extent false."  12  13 A   Yes.  14 MR. GOLDIE:  I think my friend should start with the sentence  15 "To sum up there has been no serious crime".  16 MR. ADAMS:  17 Q   Well, my lord, I read the passage through yesterday  18 and I was attempting to expedite things.  I have no  19 objection to reading it again:  20  21 "To sum up there has been no serious crime up to  22 this time, and I do not anticipate any, now that  23 the first meetings are nearly all over, but the  24 promises and appearances of last autumn were to a  25 great extent false.  Indians in the abstract are  26 cowards in murders in numbers confident and cheeky  27 as the former portion of this letter shows.  There  28 is, I find, a strong race antipithy, above all  29 they abore the law, and their dislike for the  30 Government and the officials whom they are taught  31 to suspect is made evident daily."  32  33 A   Yes.  34 Q   I was simply trying to recall from yesterday for you  35 that I understood you to agree that the reference to  36 promises and appearances of last autumn was a  37 reference to the meeting with the chiefs?  38 A  Well, I'm sure it is.  39 Q   Yes, all right.  And still in your cross-examination  40 binder, 1172, at tab 2, page 17.  41 A   I don't have it.  Yes.  Which tab?  42 Q   Tab 2?  43 A   Yes.  44 Q   And actually, if you look at the bottom of page 16 to  45 locate yourself, you're quoting Captain Fitzstubbs in  46 a letter to the Attorney-General of September 30,  47 1888? 21354  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A  Well, I have tab 2, page 18.  2 Q   No, page 16.  Right at the bottom you see the  3 reference to Captain Fitzstubbs?  4 A Right.  5 Q And the letter to Attorney-General?  6 A Yes.  7 Q And I take it you're quoting from that letter on page  8 17?  Do you have that?  9 A   Yes.  10 Q   All right.  And he says:  11  12 "It is to be hoped that Homans" --  13  14 And that was one of the constables?  15 A   Yes.  16 Q  17 "May be sent back as soon as possible with the  18 witnesses, as the river may close at any time  19 after October."  20  21 A   Yes.  22 Q  23 "If I felt sure of the Indians for this winter, I  24 should now recommend the discontinuance of the  25 services of one constable."  26  27 And then there is your comment:  28  29 "but until winter, when the Indians say they will  30 have their councils, is over, it would be unsafe."  31  32 A Yes.  33 Q Okay.  And that's —  34 A And then he says:  35  36 "Until return of constables, I am trusting to  37 Indian police."  38  39 Q   Yes.  And that's written after the meeting with the  40 chiefs?  41 A   Yes.  42 Q   And in Dr. Galois' documents, volume 4 at tab 204,  43 it's Exhibit 1035 —  44 A  What volume?  45 Q   Volume 4.  This is a quick reference.  Could I just  46 have you read along with me.  This is a letter, just  47 before I give it to you, dated March 12, 1890, it 21355  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 appears?  2 A   Yes.  3 Q   And it's addressed to Captain Fitzstubbs and it's by a  4 Mr. Poekock?  5 A   Yes.  6 Q   And in it he says:  7  8 "After the troubles of 1888" —  9  10 And you take that to be a reference to Kitwancool Jim  11 and the events surrounding it?  12 A   Undoubtedly.  13 Q  14  15 "I undertook to reorganize the Mission at  16 Kitwangak of the Church Missionary Society."  17  18 And from that I infer that Poekock is a missionary.  19  20 "to reorganize the Mission at Kitwangak."  21  22 A   I take it -- yes, I'm not familiar with him, but it  23 seems likely.  24 Q   All right.  25  26 "Shortly after my arrival you came to the  27 village" --  28  29 That is you, Fitzstubbs:  30  31 "while visiting the several tribes to prohibit  32 potlatch."  33  34 And then skipping a paragraph:  35  36 "You addressed Indians, telling them that they must  37 desist from the 'Potlatching'.  They replied, that  38 the law was as weak as a baby, and in several  39 speeches defied you, and the government, one man  40 also threatened your life."  41  42 A  Mm-hmm.  I think the whole letter should be read  43 really:  44  45 "Before you left the village, next day you had  46 restored order and made the Indians like you."  47 21356  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 It's a letter which sort of goes both ways.  They  2 disliked Fitzstubbs at one time, the next time they  3 think he's fine.  4 Q   The language about the law being as weak as a baby and  5 in several speeches defying you and the government,  6 you will agree with me that that's distinctly  7 different language than that contained in the  8 statements attributed to the chiefs in 1888?  9 A   Yes.  But I take it they're talking about the  10 potlatch.  11 Q   Now, in the next paragraph, that is the second  12 paragraph on page 42 of your opinion summary, you  13 refer to two murders at Kisgegas?  14 A   Yes.  15 Q   And then you say:  16  17 "In view of the trouble over the Kitwancool Jim  18 affair" --  19  20 I'm sorry, I better start the sentence:  21  22 "The government at first felt it would be wise, in  23 view of the trouble over the Kitwancool Jim  24 affair, not to make matters worse by attempting to  25 arrest the perpetrator of the Kisgegas revenge  26 murder, but when the Kitwancool Jim affair died  27 down, the government acted."  28  29 A   Yes.  30 Q   And you're familiar with those events?  31 A   I am familiar with them in a general sense, yes.  I  32 certainly read the material concerning it, gleened  33 from Fitzstubbs' letter and the Attorney-General's  34 correspondence on this subject, yes.  35 Q   All right.  And you regarded what you reviewed in  36 connection with the Kisgegas murders as evidence of  37 the government's relaxed attitude towards those  38 murderers, did you not?  39 A   That's the sense that I took from the correspondence,  40 yes.  41 Q   And that wasn't dependent, was it, on any connection  42 with the Kitwancool Jim-Kamalmuk affair, it was a  43 relaxed attitude in general of the provincial  44 government towards murders of Indians by other  45 Indians?  46 A   That's not the sense I took.  The Attorney-General  47 wrote letters -- at one of my tabs wrote about this. 21357  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 The sense I took from it was that it would be wise to  2 leave the Kisgegas affair until a little later.  3 Q   Let me ask you to look in your documents at volume 3,  4 Exhibit 1178-64.  5 A  Volume 3?  And what was my tab number, please?  6 Q   64.  That's not going to be correct though.  I'm  7 sorry, it's volume 4, tab 64.  It's Exhibit 1179-64.  8 A   Yes.  9 Q   This is one we were just looking at in another  10 connection.  On the second page in the tab you will  11 see part of Roycraft's instructions, includes the  12 following, and I'm at the first full paragraph on the  13 second page:  14  15 "You will use your discretion whether or not to  16 investigate by magistrate's proceedings other  17 homicides which have occurred among the Indians.  18 My view is that they are best left alone in a  19 country which hitherto only the..(read in)...  20 laws of Indians have prevailed."  21  22 A   Yes.  23 Q  24 "I need not point out how just and expedient it  25 will be to use every effort to conciliate the  26 Indians and win their confidence."  27  28 A   Yes.  29 Q  30 "If their mind can be disabused of the notions  31 instilled into them by...(read in)... Indians must  32 keep out the while people and lawful authority  33 will be done."  34  35 A   Yes.  36 Q.  37 "Indeed, more happy results could not be  38 accomplished."  39  40 A   Yes.  41 Q   And then -- well, let me ask you this:  You accept, do  42 you not, that the provincial government's reluctance  43 to pursue the murderers at Kisgegas went beyond  44 concern that things were already in an excited state  45 because of Kamalmuk?  46 A  Well, that's what the Attorney-General says.  From the  47 other letters it's seems reasonably clear to me that 2135?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 the delay in taking action against the Kisgegas people  2 was one of expedience.  That seems clear -- I can't  3 cite the letters at this time of the day from memory,  4 but they're there in the material.  5 Q   Do you --  6 A  And ultimately they were -- one of them was proceeded  7 against.  8 Q   Yes.  Do you discount the Attorney-General's  9 instructions for Roycraft?  10 A   No.  Of course I don't discount them.  11 Q   Do you discount his view expressed on the second page  12 in the extract I read to you, that they, referring to  13 the Indians, are better left alone in a country which  14 they are too -- only tribal laws of Indians have  15 prevailed?  16 A   That's what he said.  17 Q   And do you discount that?  18 A   Do I discount it?  19 Q   Yes?  20 A   No.  I don't discount it.  That was his view at the  21 time, but the fact is the prosecution did proceed.  22 Q   And that was something apparently that the  23 Attorney-General of the province left in Fitzstubbs'  24 discretion?  25 A   I'm not so sure.  I really don't know that it was a  26 matter for Fitzstubbs' discretion.  It might have  27 been.  28 Q   That's what his instructions said, wasn't it?  29 A   Yes.  There are several letters on this which I  30 referred to, or at least which were -- which are  31 included in my documentary material which bear on the  32 attitude of the government towards these events at  33 Kisgegas.  34 Q   But you do see the instructions saying you will use  35 your discretion whether or not to investigate?  36 A   Yes.  37 MR. ADAMS:  All right.  38 MR. GOLDIE:  Well, I think -- I'm sorry, go -- I was just going  39 to point out, my lord, that the instructions are to  40 Roycraft.  41 MR. ADAMS:  Yes.  My friend's quite correct.  42 MR. GOLDIE:  And the last paragraph states that his -- in no way  43 is your discretion fettered.  4 4    MR. ADAMS:  45 Q   Thank you, I'm grateful to my friend for that.  46 A   He concludes by saying:  47 21359  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "You have charge of the expedition so far as the  2 government is concerned and will act on its  3 behalf."  4  5 Q   Mm-hmm.  But continuing on page 42 of your summary --  6 had you finished your answer?  7 A   I beg your pardon?  8 Q   Had you finished your answer?  9 A   Yes.  10 Q   There's a reference here to what you describe as the  11 prominent role of Big Louis?  12 A   Yes.  13 Q   And I simply want to ask you to confirm that the  14 Loring letter we looked at yesterday, I think it  15 was --  16 A   Yes.  17 Q   -- containing a contrary account to Fitzstubbs'  18 version, that was referring to these events, among  19 others?  20 A   Yes.  21 Q   And the exhibit reference, my lord, is Exhibit  22 1172-18.  That was Loring's letter.  Now, on page 43  23 of your summary --  24 A   Yes.  25 Q   In the last paragraph you speak -- you're speaking  26 just ahead of that of instructions from the provincial  27 secretary to Allan Graham, the stipendiary magistrate,  28 to go to Hazelton?  29 A   Yes.  30 Q   And you say in the last paragraph:  31  32 "I can find no record of Graham's actually having  33 gone there, but he must have done so, because  34 nothing more is heard of such threats."  35  36 A   Yes.  37 Q   And I simply want to suggest to you that for a  38 historian, the fact that somebody's told to go  39 somewhere and you can't tell whether they went or not,  40 the fact that threats stopped being made where they  41 were supposed to have gone is a weak reason to  42 conclude that they went?  43 A   Graham was a responsible and conscientious man.  If he  44 was told to go, I have no reason to doubt that he  4 5 went.  46 Q   Even in the absence of any evidence that he did?  47 A   This is one of the judgments that one must make on 21360  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  Q  3  A  4  Q  5  6  A  7  Q  8  9  A  10  11  12  13  14  Q  15  16  17  A  18  Q  19  20  21  22  23  24  A  25  Q  26  27  A  28  29  30  Q  31  32  A  33  Q  34  A  35  Q  36  A  37  MR. ADAMS  38  THE COURT  39  MR. ADAMS  40  Q  41  42  A  43  Q  44  45  A  46  Q  47  incomplete information, yes.  Page 44, you refer to what you call "Town Meetings"?  The phrase is mine, yes.  Yes.  That was my first question:  That is your  phrase, isn't it?  Yes.  And what is it that you meant by a town meeting in  quotes, as it is?  Well, it's a phrase which was popular 40 years ago to  describe "bull" sessions.  Perhaps that's too  flippant.  To describe meetings with people concerned  on a certain topic and with full discussion from all  sections of the gathering.  All right.  And then five lines into the paragraph you  mentioned the role of missionaries as having been one  of the subject of discussion?  Yes.  And I'm not referring to the discussion in those  meetings at the moment, it's just something that  catches my eye.  You have formed, have you not, a  general opinion as to the beliefs of missionaries in  general regarding the Indian way of life in British  Columbia?  I have not.  You have not?  I wonder if you could look, please, at  the cross-examination binder --  I have read a good deal about the comments made by and  about them, but I don't think I formed any opinion of  them.  If you look at Exhibit 1172, which is the  cross-examination binder, tab 13.  Tab 13?  Tab 13.  Yes.  I'm on page 17 at the bottom.  Yes.  And there you say --  I'm sorry, what page?  Page 17 in tab 13, my lord, five lines from the  bottom.  Yes.  You refer to Simon Gunanoot's schooling at Port  Simpson?  Yes.  And then you say: 21361  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "Missionaries firmly believed that the Indian  children in their charge should be taught that the  Indian way of life was the wrong way.  Native  habits, native dress, native arts, native culture  all were disparaged and demeaned.  The children  were to be baptised, if the sacrament of baptism  had not already been administered.  In any case,  they were to be raised as Christians and taught  that native customs were to be avoided as  undesirable, if not as evil.  Of course, some  tribal customs were, in the eyes of the  nineteenth-century missionaries and some  of us today, barbaric and violent - slavery and  retributive killings were common, and murder was  by tribal custom often excusable, even  honourable."  A   Yes.  Q   And then you go on to say:  "In Simon's case, he must have been to some extent  receptive to the indoctrination of the  missionaries which denied to his culture any  value, since in later life he had a foot in both  camps - proud of his heritage, jealous of his  hereditary possessions, yet espousing the white  man's capitalism."  A  Q  Yes.  And that was a statement, was it not, of your opinion  as to the beliefs of missionaries regarding the Indian  way of life?  A   It's not a statement of my opinion, it's a statement  of the opinion of the missionaries.  Q   Sorry, let me refine that.  It's your characterization  of the missionaries' beliefs?  A  As -- yes.  That's as I believed it to be when I wrote  those words, yes.  Q   Yes.  And you still do?  A   I don't retreat from them.  MR. GOLDIE:  What's the period being talked about here, please?  A   1870's.  MR. GOLDIE:  Thank you.  THE COURT:  How are you getting along, Mr. Adams?  MR. ADAMS:  My lord, the summary is 52 pages long, I'm on page  44,  THE COURT:  Would another hour do it? 21362  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  MR.  ADAMS:  2  3  THE  COURT:  4  MR.  GOLDIE  5  THE  COURT:  6  MR.  GOLDIE  7  THE  COURT:  8  9  MR.  GOLDIE  10  11  THE  COURT:  12  MR.  FREY:  13  14  15  16  17  ]  18  19  20  MR.  ADAMS:  21  22  THE  COURT:  23  24  25  26  MR.  ADAMS:  27  THE  COURT:  28  29  MR.  ADAMS:  30  31  32  33  THE  COURT:  34  35  36  i  37  A  38  THE  COURT:  39  MR.  ADAMS:  40  Q   1  41  42  43  A  44  Q  45  46  47  I doubt it, my lord.  I very much doubt it.  The  further I read the more I doubt it.  How tight are we next week, Mr. Goldie?  :  We're becoming increasingly tight, my lord.  Is another hour now going to make any difference?  :  No.  Keeping in mind that I would expect, if necessary,  we would sit next Saturday?  :  Yes.  And I -- well, we're tight, but I don't think  an hour will make any difference.  Yeah.  My lord, actually, although there are other counsel  for the Attorney General of Canada, I had made  arrangements, I thought safely, that I will be leaving  town on other matters on Monday afternoon.  Of course  other counsel can come, but if we could even do a bit  more today or start early on Monday or both, that  would assist me somewhat in terms of the conflict in  the evidence, but as I say, it's not essential.  What I propose, then, my lord, is we start at 9:30  on Monday morning.  Sorry, but starting at 9:30 is just a terrible  problem, just too much frantic rushing, and it doesn't  bring me into court in the right frame of mind to  harken appropriately to the evidence.  My lord —  Decisions have to be made between 9:00 and 10:00  every morning.  I'm equally prepared to proceed.  I just know that  the witness referred at some point to the lateness of  the hour, and I am concerned that he might be getting  tired.  I'm sure that's right, and I'm sure he speaks for  all of us.  I would like to suggest we go until 4:30  and we'll adjourn at 4:30.  Is that all right, Mr.  Williams?  Fine, my lord.  Yes, all right.  Mr. Williams, after the section on page 44 dealing  with "Town Meetings", you next refer to events in  1893.  Yes.  And my question is this:  If in the intervening years  between the so-called town meeting and the events you  recount in 1893 there had been a mention of law and  land claims, would that not have been significant for 21363  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 your subject?  2 A   I was not doing a study of land claims as such in the  3 sense of the Indian title.  It is true that in 1891  4 and 1892 the Indian Reserve Commission came to  5 Hazelton, but I -- I don't know whether I've  6 referred -- whether there's a letter on that subject  7 from me on this litigation or not, but in any case, I  8 didn't deal with any particular episode between 1889  9 and 1893 in the preparation of this summary.  10 Q   Yes.  You say in the last line of page 44 with respect  11 to the so-called town meetings:  12  13 "There was no reference of any of these meetings to  14 land claims."  15  16 A   Yes.  17 Q   Now, you regarded that absence as of some  18 significance, did you not?  19 A   Yes.  I thought it was a matter of interest, yes.  20 Q   All right.  So meetings where there was reference to  21 land claims would have been significant, would it not?  22 A   Possibly.  The -- but I didn't instance them in the  2 3 summary.  24 Q   Yes.  Why was that?  25 A   I was dealing in this section of the report with --  26 under the general heading of "Tension, Confrontation  27 and Unrest".  I cited this as an example of, as I  28 said, not an example of confrontation, quite the  29 opposite, but an unusual example of Indians turning to  30 government officials to resolve a family or  31 inter-village dispute.  32 Q   You were aware, were you, that in 1890 a Mr. Vowell  33 went up the Skeena, if I can put it this way, as an  34 advance man for Mr. O'Reilly from the Indian Reserve  35 Commission?  36 A   Yes.  37 Q   And that meetings were held with the Indians in Mr.  38 Vowell's case in Hazelton and Kispiox?  39 A   I believe so.  I'm not sure which villages he visited.  4 0 He did go up.  41 Q   All right.  You don't refer to those in your summary?  42 A   No.  43 Q   Correct?  44 A   That's true.  45 Q   All right.  Why was it that those meetings didn't  46 attract your attention?  47 A   I was aware of his visit, I -- I made no reference to 21364  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 them in my summary.  That's all I can say.  2 Q   Let me ask you to look at Dr. Galois' materials,  3 volume 2, That's exhibit 1035-69.  4 A What tab?  5 Q 69.  6 A Did you say 59?  7 Q 69.  And you will see from the back page that that's  8 coming from Mr. Vowell, correct?  9 A   I'm sorry, I've got tab 70, okay.  Yes.  10 Q   And he's the Indian Superintendent for B.C.?  11 A   Yes.  12 Q   And he's writing to Mr. Vankoughnet, who is the Deputy  13 Superintendent-General of Indian Affairs in Ottawa?  14 A   That's right.  15 Q   All right.  And on page 3, the bottom paragraph, you  16 will see that he says this:  17  18 "I got to the Skeena on the 12th of August with the  19 Vigilant and Mr. Todd" —  20  21 A   Yes.  22 Q  23 "Where I visited some of the fishing stations and  24 was met by Indians representing different bands on  25 the Skeena."  26  27 A   Yes.  28 Q   Now, this is going to be tough:  29  30 "They seemed uneasy on account of my visit,  31 especially so when learning that I was going up to  32 Hazelton" —  33  34 A   Yes.  35 Q  36 "Some 140 miles from Essington saying that they  37 never had a Chief visiting them before and they  38 now feared that it was for some purpose injurious  39 to their interests et cetera that I was going into  40 their country."  41  42 A   Yes.  43 Q  44 "It seemed that they had been generally informed  45 all up the Skeena that their lands were going to  4 6 be taken away from them by the Government and that  47 that was what Mr. O'Reilly was going up with the 21365  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 surveyors for."  2  3 A   Yes.  4 MR. GOLDIE:  Excuse me, I wonder if my friend can assist me.  5 Does he take it that the paragraph that he started  6 with is at the mouth of the Skeena -- is he speaking  7 at a point where he's 140 miles from Hazelton?  8 MR. ADAMS:  I take it in answer to my friend's query that he --  9 as of the 12th of August he is indeed at the mouth of  10 the Skeena.  11 MR. GOLDIE:  All right, thank you.  12 MR. ADAMS:  13 Q   I believe it becomes clearer who he's talking to and  14 where he goes.  Carrying on, Mr. Williams, on page --  15 no, I'm sorry, I read that.  16  17 "It seems they have been generally informed all up  18 the Skeena."  19  20 A   Yes.  21 Q   And then he says four lines further down:  22  23 "It took both time and patience to disabuse their  24 mind of these falsehoods, which I was given to  25 understand have been circulated by persons who  26 should know better, and whose duty it should be to  27 refute rather than promulgate rumours so  28 misleading and distressing to the Indians and so  29 injurious to the Government and those acting  30 under it in the interest of the Indians."  31  32 A   Yes.  33 Q   And then going over -- well, let me carry on:  34  35 "On the 13th of August" —  36  37 That's the next day:  38  39 "I made arrangements for the services of the Indian  40 Crew and canoe to proceed as far as Hazelton at  41 the Skeena Forks, and started on the same day.  42 This rough trip I was induced to take in  43 consequence of the rumors prevailing to the  44 unsettled and disturbed state of the Indians in  45 that locality on the land question et cetera."  46  47 A   Yes. 21366  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   And then skipping two paragraphs:  2  3 "When at Hazelton I learned that the Indians had  4 been advised not to let surveyors or Government  5 Officials connected with the Indian Department, up  6 the Skeena River, it being stated that when these  7 Officials came it would be for the purpose  8 of turning the Indians out of their homes and away  9 from their fisheries et cetera."  10  11 A   Yes.  12 Q  13 "As soon as convenient I had a meeting with Chief  14 Kit-get-dum-gal-doe presiding.  I explained to  15 them how they had been misled and showed them the  16 position of the Government towards them."  17  18 And I believe the insertion says "which more than  19 pleased them".  20  21 "And as they said, removed a load from their hearts  22 as they had ever before them the probability  23 of themselves, their wives and children being  24 driven from their villages and made very  25 slaves by the Government.  26 Having heard that the Kis-py-oux Indians, whose  27 village is about nine miles above Hazelton  28 on the Skeena, were much excited on account  29 of the false reports already alluded to.  I  30 visited them with the Indian Agent and was  31 able to allay their fears and made them look to  32 the Government and their officers as their friends  33 and protectors etc. they promising to give Mr.  34 O'Reilly and his staff, who I informed them were  35 on their way up the Skeena, a good reception and  36 every possible assistance in the laying out of  37 their reserves."  38  39 A   Yes.  40 Q   Now, just draw your attention to one thing in this  41 document.  You see there was reference to an Indian  42 agent by the name of Todd?  43 A   Yes.  44 Q   That was on the bottom of page 3.  45 A   Yes.  46 Q   And he's travelling up the river with Vowell?  47 A   Evidently. 21367  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   Yes.  And I just wondered if that assists you in  2 sorting out why it was that Kamalmuk's father was  3 referring to an Indian agent up the Skeena before one  4 was appointed at Hazelton?  5 A   I suppose it's possible, I can't tell.  6 Q   Yes.  Now, there is in those extracts, is there not,  7 information that is pertinent to the imposition of law  8 and order and its acceptance or non-acceptance by  9 Indians in the land claim territory?  10 A   It's pertinent to the land claim question, certainly.  11 This was one of the documents, incidentally, which I  12 read subsequent to the preparation of my summary.  13 Q   And the fact that it's pertinent to land claims, you  14 will agree with me, makes it pertinent to the  15 acceptance or non-acceptance of what you've defined as  16 law and order?  17 A   It is the element to the -- sort of element to be  18 taken into account, yes.  It didn't cause me to change  19 my opinion.  20 Q   And it didn't in fact cause you to comment at all, did  21 it?  22 A   No.  You're right, rather.  23 Q   All right.  Now, you're aware, are you, that in spite  24 of Mr. Vowell's advice, Mr. O'Reilly didn't make it  25 that year, he didn't get there until the following  26 year?  27 A   That is so, so I believe, yes.  28 Q   All right.  And when he did go, he visited a number of  29 villages.  And I want to draw your attention to the  30 records we have of those meetings, and they're all  31 together for once, all in Dr. Galois' volume 4, that's  32 Exhibit 1035.  And first at tab 213, and you will find  33 there's a typescript at the back of the tab.  Do you  34 have the one for New Kitseguecla?  35 A   New Kitseguecla, yes.  36 Q   Dated September 30th, 1891?  37 A   Yes.  38 Q   And you'll note that there are apparently 12 or 14  39 people there out of a band population of 83?  40 A   Yes.  41 Q   And further, that Mrs. Loring is there as an  42 interpreter?  43 A   Yes.  44 Q   All right.  45 A   It doesn't seem that they're awfully concerned about  46 it if there are only less than about ten percent of  47 the village there, but I guess maybe they were away. 2136?  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   Are you sufficiently aware of the seasonal -- are you  2 sufficiently aware of the seasonal rounds of the  3 Gitksan in 1891 to know where they're likely to be at  4 the end of September?  5 A   I dare say many of them were down at the coast.  6 Q   And you will see that Mr. O'Reilly says:  7  8 "I should have liked to see more of you but I  9 know you have your business to attend to, and I am  10 glad to find they have left a man to represent.  I  11 come here to represent both provincial and  12 Dominion Government, who are the guardian of the  13 Indian, both Government have dispatched me to  14 define what lands are to be officially set aside  15 for the Indian."  16  17 A   Right.  18 Q   And then in the second paragraph, nine lines into the  19 paragraph, he says:  20  21 "The fisheries are virtually all the Indians, and  22 it is not necessary to make a reserve of  23 every little place where an Indian fishes.  24 I hope you will not ask an unreasonable extent of  25 country, but only for that which would be useful  26 to you.  It is not necessary that the berrying or  27 hunting grounds should be reserved.  It would be  28 an impossibility to define them as you go over  29 hundreds of miles.  You will not be confined to  30 the reserves, but can hunt fish or gather berries  31 where you will as heretofore."  32  33 A   Yes.  34 Q   And then going to the next tab, and again there's  35 typescript in the back of the tab.  36 A   Tab 14?  37 Q   Tab 214, yes.  And it's dated 18th of September, 1891,  38 and with the Hag guil get Indians?  39 A   Yes.  40 Q   And you take those to be Wet'suwet'en?  41 A   Yes.  42 Q   And you will see that the place is identified as Lach  43 kal tsap?  44 A   Yes.  45 Q   And it identifies where that is on the Hag guil get  46 River about 35 miles from Hazelton?  47 A   This is Moricetown, I think. 21369  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 Q   It's in the same general location as Moricetown.  And  2 you see that there are 22 people there out of a  3 recorded population of 76?  4 A   Yes.  5 Q   And Mr. O'Reilly starts by saying "Am sorry the chief  6 is absent"?  7 A   Yes.  8 Q  9 "The government is anxious land should be set aside  10 for you as it has been in the rest of B.C.  A  11 reserve when made protects the land from trespass  12 by others, but the Indian still has the right to  13 hunt, fish or gather berries outside."  14  15 And then there are reported, apparently, statements of  16 some of the chiefs, the first one being Na mox, and he  17 says:  18  19 "God has given us this river and good land.  The  20 priest" —  21  22 And it's underlined and a marginal note indicating the  23 reference is to Father Morice:  24  25 "has explained the land laws, and we are glad you  26 have come to make the reserve.  I wish to tell you  27 what I want. You only see part of our people, you  2 8 must not judge of our requirements from the number  29 present."  30  31 And then someone identified as Hay win, third chief,  32 says in the last sentence:  33  34 "The land belongs to all of us, not one only."  35  36 A   Yes.  37 Q   And then following Mr. O'Reilly along, if you look at  38 tab 216, you will see a letter dated October 1st, 1891  39 signed by Margaret Loring?  40 A   Yes.  41 Q   And you will see, if you look four lines down, that  42 the Reserve Commission, Mr. Green, Mr. Loring, the  43 Indian agent, are at Kispiox?  44 A   Yes.  45 Q   And that she's acting as interpreter?  46 A   Yes.  47 Q   And then it carries on: 21370  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 "When we crossed the Skeena to the village we found  2 the Indians in a state of great excitement  3 declaring they would not have the land surveyed,  4 that it belonged to them, and therefore it could  5 not be given to them."  6  7 A   Yes.  8 Q   And then five lines further down:  9  10 "After some time Kail, the chief, came out, he  11 did his best to appease the people but they could  12 not be kept quiet.  There were a great many others  13 who sided with the chief.  I explained what the  14 Commissioner said to the people with reference to  15 the land.  He told them again and again how much  16 they would be benefitted by having their reserve  17 defined.  He also explained about their fishing,  18 hunting and berrying grounds."  19  20 And then over on the other side of the page, 4 lines  21 down:  22  23 "We then went towards the mission house" --  24  25 I'm sorry, I should keep reading where I was on the  26 left-hand side:  27  28 "The chief was anxious to have the land set apart  29 for them, and offered to show the Commissioner  30 what places he wanted, and took them to the mouth  31 of the Kispyoux River.  On the way to the Kixpyoux  32 Nochtaik, Limks, and Kortz struggled with Jack,  33 one of the Indians, for the possession of an axe,  34 which he was carrying --"  35  36 And I've punched out the word.  I think it's "for Mr.  37 Green".  38  39 "I saw Nochtaik try to snatch Mr. Green's pencil  40 and notebook, he also caught Mr. Green by the arm.  41 We then went towards the Mission house.  Some  42 friendly Indians warned me not to delay but to  43 move on.  At the Mission house I saw Kail, he was  44 troubled and asked me to go for Mr. O'Reilly and  45 Mr. Green, who were being obstructed by several  46 Indians and tried to get them to come back."  47 21371  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   Now, those were events that should have been  3 considered in forming your opinion, should they not?  4 A   I did not see these documents until after I prepared  5 my summary.  6 Q   But I think you said having seen them they made no  7 difference to your opinion anyways?  8 A   That is so.  9 Q   And why is that?  10 A   This was on the general question of title,  11 establishment of reserves, land claims.  I did not  12 think it was directly -- I did not think it altered  13 my -- the opinion which I expressed in my summary.  14 Q   It certainly did tell you, did they not, that there  15 wasn't a gap between 1889 and 1893 as far as activity  16 that was relevant to your subject?  17 A   That is so.  In the preparation of my summary I did  18 not refer to these episodes, but they do not alter my  19 essential -- the statement of my opinion.  20 Q   And you didn't refer to those stages in your evidence  21 either, did you?  22 A   I was not asked about them.  23 Q   Yes.  In fact, if I'm not mistaken, they are not in  24 your materials?  25 A   That, I think, is correct.  26 Q   Was there a reason why you excluded them from your  27 collection of materials?  28 A   I think is not in my material the letter from O'Reilly  29 of 1891 and 1892 on this subject?  But I was certainly  30 not asked about it in the courtroom.  31 Q   Yes, all right.  You're aware that Mr. O'Reilly came  32 back in 1893, and if you aren't, I can tell you that  33 he did?  34 A   I confess, I do not recall that he was there in 1893.  35 The other two dates, the other two years, I do recall.  36 Would you show me the reference, please?  37 Q   Yes.  It's in Dr. Galois' documents, Exhibit 1035-68,  38 it's volume 2, I'm sorry.  Do you have that?  39 A   This is tab?  40 Q   68.  It will be pages of a diary, handwritten, and you  41 will see from the top that it's dated in September,  42 1893?  43 A   Yes.  44 Q   And it has been identified in these proceedings as Mr.  45 O'Reilly's diary.  And if you could go to the last  46 page of the extract, under Friday the 15th of  47 September, 1893. 21372  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   And you will see that he says there that he arrived at  3 Kitwangar at noon, and do you see that in the third  4 line?  5 A   Yes.  "Arrived at Kitwangar at noon", yes.  6 Q   All right.  And then he refers to Mr. Price?  7 A   Yes.  8 Q   Charles Ridley?  9 A   Yes.  10 Q   And the chiefs?  I'm sorry, I think the word on the  11 line before is "met Mr. Price, Charles Ridley and the  12 chiefs about chiefs absent"?  13 A   "Chief absent".  14 Q   About 6 -- oh, I'm sorry?  15 A   That's not how I read it.  He says "Mr. Price, Charles  16 Ridley, and the chief's absent".  17 Q   "And the chief's absent".  And then says "About 6:00  18 p.m. two of the chiefs Kawk, K-a-w-k, and what appears  19 to be Jemmy, J-E-M-M-Y, returned?  20 A   Yes.  21 MR. ADAMS:  22 "Held meeting in the school house, when the usual  23 extravagant demands were made."  24  25 MR. GOLDIE:  Where it is — is it "most"?  2 6 MR. ADAMS:  27 Q   I think I recall, my lord, that Dr. Galois deciphered  28 for us, and his word there was "usual".  I don't think  29 it's "most" because I can't see a cross on it for a T.  30  31 "The usual extravagant demands were made, namely  32 Kitsegukla to below Lome Creek."  33  34 A   Yes.  35 MR. ADAMS:  All right.  36 MR. GOLDIE:  What's the rest of it, "They expressed" —  37 MR. ADAMS:  38 "They expressed surprise at hearing Mr. Tomlinson  39 had preempted his land.  Black flies very  40 troublesome."  41  42 MR. GOLDIE:  I got that one.  4 3 MR. ADAMS:  44 Q   I understand, Mr. Williams, that you are not able to  45 locate an 1891 letter from Mr. O'Reilly, and you had  46 suggested that there might be such in your materials?  47 A   If you say so, I thought there was one. 21373  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  MR.  ADAMS  2  3  THE  COURT  4  5  MR.  ADAMS  6  7  THE  COURT  8  MR.  ADAMS  9  Q  10  11  12  A  13  Q  14  15  A  16  Q  17  18  19  20  21  A  22  Q  23  24  25  26  27  A  28  Q  29  30  31  A  32  33  34  35  36  37  Q  38  A  39  Q  40  41  42  A  43  44  45  MR.  ADAMS  46  47  THE  COURT  :  Well, we'll make a further effort to do that in  what's left of the weekend.  :  Do you want to take the weekend to do that, Mr.  Adams?  It's almost 4:30.  :  My lord, I, with a very few questions, can get all  the way to page 47.  :  All right.  When you do get to 1893 on page 45, Mr. Williams, you  recount this incident of the exhumation of a body at  Meanskinisht to be moved to, at this time, Kitwanga?  Yes.  And you speak of Mr. Tomlinson sending a letter and  enclosing one signed by seven Indians of Meanskinisht?  Yes.  And then you say:  "It's a moving document and worth quoting."  And you do quote it at some length?  Yes.  And you say:  "But it does illustrate obedience to government  rule in a matter very close to their hearts."  I think so.  And how was it significant for your subject that you  had a statement illustrating obedience to government  rule in a matter close to the hearts of the Indians?  Part of my task was to consider the responsive  reaction of the Indian community to white rule.  Part  of the white rule, as I said at the outset of my  evidence, I think would be the legislative enactments  affecting the area, and here was -- here was an  illustration of it.  Did you find the --  The provincial legislation.  Did you find the 1884 Kitwanga chief's petition a  moving document related to a matter close to the  hearts of the Indians?  It was a -- I don't think I would describe it as  moving, because this touches life anecdote.  It was an  impressive document, certainly.  :  My lord, that does get me to page 47.  However, I  will have to spend slightly longer on --  :  Do you want to do that now or do you want to do it 21374  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  2  MR.  ADAMS  3  THE  COURT  4  MR.  ADAMS  5  THE  COURT  6  MR.  ADAMS  7  Q  8  9  10  A  11  Q  12  13  14  15  A  16  17  Q  18  19  A  20  MR.  ADAMS  21  22  23  MR.  GOLDI  24  25  MR.  ADAMS  26  27  28  29  30  THE  COURT  31  A  32  33  MR.  ADAMS  34  Q  35  36  37  A  38  39  40  41  42  Q  43  A  44  45  46  Q  47  on Monday morning?  I can probably knock off another one in two minutes.  Let's do it.  Then it does get stickier.  Yes, all right.  Page 47, Mr. Williams, you refer to 1906, the Babine  Fishery.  And you have formed the opinion, I take it,  that this was outside the land claim area?  I say it is probably.  All right.  And you agree, do you not, that  non-enforcement of the law is significant in  considering whether it has been imposed and whether it  has been accepted or rejected?  Well, I'm not sure what you mean by non-enforced, but  it was enforced.  There were charges laid.  I'm asking you a general question without reference to  this particular incident?  Oh, I'm sorry, what --  :  Non-enforcement of the law is significant in  considering whether it has been imposed and whether  it's been accepted or rejected?  'Ģ1:  Well, we got into this debate yesterday, my lord,  and it -- I think the question is much too general.  :  My lord, I'm not intending to enter into any  debates.  The terms are chosen from the witness' title  for his summary, and I'm asking him to use them in the  same way and to understand them in the same way that  he used them in titling his summary as he did.  :  Can you answer it, Mr. Williams?  I would appreciate it being rephrased, my lord.  Non-enforcement of the law?  Yes.  That's a significant consideration when you're  considering whether law has been imposed and whether  it has been accepted or rejected by the Indians?  Well, if by non-enforcement you mean government  inaction in a particular case or a particular type of  offence, I suppose one would want to consider that.  I  suppose it's an element, a matter of government  policy, perhaps, like a potlatch law.  Yes.  It's -- I suppose it's one of -- one would want to  look at it, I guess.  I find the question very  general, I don't know what you mean by it exactly.  You wrote extensively in your summary about crime  statistics? 21375  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1 A   Yes.  2 Q   You took those, among other things, as evidence of the  3 enforcement of the law, did you not?  4 A   I did, and I've included in these incidentally,  5 these -- those who were convicted as a result of this  6 fishery affair are included in my statistics.  7 Q   Yes.  If the law was not enforced, that would also be  8 significant, wouldn't it?  9 A   I don't know how significant it would be, Mr. Adams,  10 but one would look at it.  11 Q   Let me try again.  Was it significant that it was  12 enforced and that's why you spent several pages  13 discussing conviction statistics?  14 A   It was an episode which I thought touched on what I  15 was doing or what touched on my task, and I have  16 reported on it.  17 Q   Perhaps I am misleading you by having this page open.  18 I'm not talking about the Babine Fishery affair in  19 1906.  20 A   I'm sorry.  I thought we were talking about that.  21 Q   I'm referring to the portion of your report that dealt  22 with crime statistics, and that begins on page 20, and  23 it goes on to page 25?  24 A   Yes.  25 Q   And I took it from that that you regarded convictions  26 as a significant subject, and you concluded on page 25  27 from the statistics that you assembled that there was  28 a general acceptance by the Indian community of the  29 strictures imposed upon them by the criminal law, et  30 cetera?  31 A   Yes.  32 Q   All right.  So my proposition is if it was significant  33 that the law was being enforced and people were being  34 convicted, it also would be significant if it wasn't  35 being enforced and people weren't being convicted?  36 A   I guess in general that would be true.  37 Q   All right.  And you formed the opinion, have you not,  38 from the documents you've examined, that in 1915 and  39 1918 the fishery laws were not being strictly enforced  40 in the land claim territory?  41 A   Did I say that?  42 Q   I never suggested that you've said anything without  43 being able to demonstrate it.  44 A   If you would show me, I would --  45 Q   In the cross-examination binder, Exhibit 1172, tab 2,  46 do you have that still at hand?  47 A   I don't have it.  What tab? 21376  D.R. Williams (for Province)  Cross-exam by Mr. Adams  1  Q  2  A  3  Q  4  5  6  7  8  9  10  11  12  13  14  15  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  A  25  Q  26  A  27  28  29  MR. ADAMS  30  THE COURT  31  32  THE REGIS1  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Tab 2, page 30.  Yes.  And after a rather more lengthy discussion than  appears in your summary of 1906 at Babine, you say in  the second paragraph on page 30:  "I have not run across any similar episode in the  claim area.  In view of the stories in the Omineca  Herald of May 14, 1915, and June 7, 1918, about  Indians openly selling to the public salmon caught  in the Skeena and Bulkley Rivers, one may infer  that the fishery laws were not strictly enforced,  much as potlatching was carried on without  restriction."  Yes.  All right?  I recall that, yes.  And that's the view you formed?  That's the -- the reports which I passed on.  Yes.  And it's the inference you drew?  Yes.  Yes.  And you still do draw that inference?  I think it's a fair inference, yes.  All right.  I point out that that was beyond the time or the  period, if you like, of my major inquiry, but  nonetheless, I don't retreat from what I said.  :  Thank you.  :  All right, thank you.  We'll adjourn until ten  o'clock on Monday morning.  PRAR:  Order in court.  Court stands adjourned until  Monday at ten o'clock.  (PROCEEDINGS ADJOURNED AT 4:40)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability  Graham D. Parker  Official Reporter  United Reporting Service Ltd.

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