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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-04-24] British Columbia. Supreme Court Apr 24, 1989

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 16041  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 Vancouver B.C.  2 April 24, 1989.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia,  7 Vancouver, this Monday, April 24, 1989.  Calling the  8 matter of Delgamuukw versus Her Majesty the Queen at  9 bar, my lord.  10 THE COURT:  Miss Mandell.  11 MS. MANDELL:  Thank you.  My lord, I'd like to call Jim  12 Morrison, a historian, and he's going to be giving  13 evidence, my lord, with respect to the application of  14 the Royal Proclamation of 1763.  15 THE COURT:  All right.  16  17 JAMES ANDREW MORRISON, a witness  18 called on behalf of the Plaintiffs,  19 having first been duly sworn,  20 testified as follows:  21  22 THE REGISTRAR:  Would you state your name for the record,  23 please, and spell your last name.  24 A   James Andrew Morrison.  M-o-r-r-i-s-o-n.  25 THE REGISTRAR:  Thank you.  You may be seated.  26 MS. MANDELL:   My lord, I seek to call Mr. Morrison to give  27 expert opinion in the following areas:  The first is  28 with respect to the fur trade history including  29 Imperial policy with respect to it during the  30 eighteenth and nineteenth century in North America and  31 the Indians with whom the Crown dealt.  The second is  32 with respect to the acquisition of Indian lands  33 including Imperial policy with respect to land  34 acquisition before the American revolution and after  35 and more particularly in the areas of Quebec and  36 Ontario.  37 MR. GOLDIE:  That's present day?  38 MS. MANDELL:  Present day.  And with whom the Crown dealt — the  39 Indians, I am sorry, and with the Indians with whom  40 the Crown dealt and, sorry, the third area is with  41 respect to the application of the Royal Proclamation  42 of 1763 and its relation to British colonial policy  43 regarding Indians.  I've asked Madam Clerk to hand up  44 to your lordship a curriculum vitae of Mr. Morrison  45 and I've provided that to my friends.  46  47 EXAMINATION IN CHIEF BY MS. MANDELL (On Qualifications): 16042  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 Q   Mr. Morrison, if you could identify the document which  2 you have in your hand.  Is that your curriculum vitae?  3 A   Yes, it is.  My apologies, sorry.  4 MS. MANDELL:  All right.  I would ask that it be marked as the  5 next exhibit.  6 THE REGISTRAR:  Exhibit 1024.  7 THE COURT:  1024.  8 THE REGISTRAR:  Yes, my lord.  9  10 (EXHIBIT 1024:  Curriculum vitae of Mr. Morrison)  11  12 MR. RUSH:  Thank you.  13 Q   Mr. Morrison, on page one at the top of the page you  14 indicate under Education that you took an Honours  15 Bachelor of Education in Modern History.  16 MR. GOLDIE:  Arts.  17 MS. MANDELL:  18 Q   Bachelor of Arts, sorry, in Modern History in  19 University of Toronto in 1970.  In the course of your  20 formal education there did you -- did you study the  21 topic of Imperial colonial history?  22 A  Well, I took in the first couple of years standard  23 history courses offered at university and my third and  24 fourth years I took among other things British  25 Imperial history and American colonial history.  26 Q   All right.  And under Languages, you spoke a number of  27 languages.  You indicate two Indian languages, Ojibwa  28 and Algonquin.  That is one language?  29 A   That's one language.  Algonquin is the French term for  30 the same language.  31 Q   And how did you acquire your ability to speak that  32 language?  33 A  Well, when I say basic I mean basic.  I can make  34 myself understood.  It was acquired through conducting  35 interviews with Indian people in the normal course of  36 acquiring a language.  37 Q   Okay.  Now, you graduated in 1970.  Since that time  38 have you earned your living doing research with  39 respect to certain historical projects?  40 A   Really since about 1972, '73 I've earned my living  41 practicing history, I guess you'd say.  42 MR. GOLDIE:  I beg your pardon?  43 A   Practicing history.  Researching historical documents,  44 writing reports on the basis of those documents.  45 MS. MANDELL:  46 Q   All right.  If I could start you at 1971.  Under your  47 Employment History you indicate there you worked for 16043  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 the Ontario Ministry of Natural Resources.  Was there  2 anything in that job working for the Ontario Ministry  3 which relates to your acquired knowledge of being  4 capable of doing historical research?  5 A  Well, I can say quite frankly it was in those two  6 years that I first -- because I grew up in Ottawa, my  7 first encounter with Indian people.  I was working in  8 Northern Ontario.  This had been a summer job and I  9 continued on.  I did everything from timber scaling to  10 working on fire crews and -- but in 1972, '73, because  11 of my background in history, I had developed while  12 living in the north an interest in local history and a  13 number of Indian people, of course, worked for the  14 Ministry.  And there was an Indian village outside the  15 town of Hornepayne where I was then living and I  16 worked on a couple of contracts for the Ministry.  17 Basically putting together local history of those  18 areas that involve, you know, interviews with not only  19 local Indian people but, you know, old trappers and  20 loggers.  21 Q   All right.  You indicate under Employment History that  22 from 1973 to 1978 you worked as a researcher and a  23 archivist with the Grand Council Treaty 9.  What was  24 your job with the Grand Council?  25 A   I was hired primarily to research and collect  26 documents from archives relating to some 40 bands and  27 communities which made up that particular native  28 organization which actually then was called Grand  29 Treaty No. 89.  It spanned the northern two-thirds of  30 Ontario.  And this involved frequent trips to archives  31 in particularly Ottawa and Toronto, Montreal.  32 Q   Can you estimate how much your work for the Grand  33 Council involved archival research?  34 A   Oh, at least 50 per cent of the time was spent in the  35 archives.  36 Q   And as a result of the work which you did for them,  37 were there any projects which you worked on which has  38 resulted in any claims being made by them to the  39 government?  40 A  Well, there were a number over the years.  I worked  41 for them for five years and there were various areas  42 which I and a couple of others who were working for  43 them had been able to identify as potential  44 difficulties involving, for example, boundaries of  45 reserves, the, yeah, location of those reserves of the  46 land entitlements, that sort of issue.  47 Q   And were there any projects which you worked on where 16044  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 you reported unfavourable facts to them and resulted  2 in no claim?  3 A  Well, I mean certainly part of my job was to find all  4 the documented material available and that this  5 included favourable as well unfavourable material.  I  6 mean it was basically anything that would document  7 from government's historical sources the issue I was  8 researching.  9 Q   All right.  If I could turn you to page two of your  10 publications.  You have there indicated in the second  11 to the last item that you did a research report for  12 Indian and Northern Affairs Canada in 1986 on the  13 James Bay Treaty.  Did your work with the Federal  14 Government here have anything to do with the work  15 which you have previously described to us which you  16 had done with the Grand Council?  17 A  Well, in a sense it did.  I should explain that the  18 Department of Indian Affairs has put out a series of  19 these research reports on the so-called numbered  20 treaties which were made after Confederation with the  21 Indian people of western and northern Canada and they  22 asked a number of historians to do these reports and I  23 was asked to do the one on the James Bay Treaty,  24 Treaty No. 9.  25 Q   All right.  And has that since been published?  26 A   It was published in 1986 by the Department of Indian  27 Affairs.  28 Q   All right.  I'm back into your employment history.  29 From 1978 to '79 you indicate that you were research  30 co-ordinator for the Temagami, Bear Island tribe.  31 Could you explain there what was your job?  32 A   It was to assemble historical documents, organize the  33 material connected with the land claim of the Temagami  34 and the Anishnabai/Temagami Indians.  35 Q   And were there specific areas which you had  36 specifically been assigned to address?  37 A  Well, there were two generally speaking.  One was the  38 history of the people themselves.  I collected  39 documents from anthropologists, from fur trade  40 records, missionary records, dealing with the history  41 of the individuals and the group itself, so far as  42 that could be determined from historical documents.  43 Q   All right.  44 A  And the other aspect which I researched was asked to  45 research was -- from the beginning of my interest in  46 it was the process of acquisition of Indian lands in  47 Ontario, because I discovered very quickly that 16045  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 although a number of things had been written on a  2 general -- in a general sense on the topic, there had  3 been no specific study as far as I could tell ever  4 done of that issue and that topic.  5 Q   And in 1980 and 1981 you indicated that you were  6 research associate for the Native Law Centre in  7 Saskatoon.  Did your job there involve further work  8 with respect to both fur trade history and the  9 acquisition of Indian lands in Ontario?  10 A   That work was done on the topic of the acquisition of  11 Indian lands in Ontario.  That was my project during  12 the year that I was a research associate.  13 Q   And —  14 A   I did a great deal of additional research.  15 Q   And did you work under Brian Slattery or under Brian  16 Slattery at that time?  17 A   Yes.  Brian Slattery was then the researcher director  18 at the Native Law Centre.  19 Q   All right.  And on page two you indicate that under  20 Research Grants, in 1987 and 1988 you were awarded a  21 Social Sciences in Humanities Research Council Grant  22 to work on the legal history of aboriginal title in  23 Ontario.  Was this grant to do work with respect to  24 the same area that you've just described to us?  25 A   Yes.  Basically the study had become enlarged in the  26 course of the work I did in 1980, '81 and I continued  27 to work at it off and on over the following years as I  28 attempted to make a living as a consultant in this  29 area.  But I applied for and received a -- these are  30 academic grants from the Social Sciences and  31 Humanities Research Council to conduct some further  32 areas of research that I identified and to work on  33 writing up the study.  34 Q   Is the research grant award that you received in 1987,  35 '88, is that an award which is given out according to  36 peer approval?  37 A   Yes.  It's an academic grant.  You apply for the  38 grants to the Council and the Council submits them to  39 a panel of academics who basically assess these  40 projects and decide whether they are worthy of  41 funding, and mine was approved for funding by the  42 Council.  43 Q   All right.  And if I could turn you to the top of page  44 three.  You there have indicated under Publications an  45 item "Indian Lands and the Public Lands:  A  46 Documentary History of Aboriginal Title in Ontario"  47 from 1763 to 1867 in preparation.  Is this a book 16046  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 that's —  2 A   Yes.  3 Q   -- in preparation?  4 A   It's about 80 or 90 per cent complete.  I'm basically  5 rewriting a couple of later chapters and the first  6 chapter in it and it will be a -- the title is  7 self-explanatory and it will include a selection of  8 major documents on the subject as well.  9 Q   All right.  And is this still -- is this book flowing  10 out of the same work as we've been earlier describing?  11 A   Yes.  12 Q   With respect to your earlier projects?  13 A   That's quite correct.  The 1981, '80/'81 and my  14 research grant in '87, '88.  15 Q   Now, you mentioned earlier that you had research, done  16 research co-ordination with respect to the Temagami  17 people.  Did you testify in the Bear Island case  18 before Mr. Justice Steele?  19 A   Yes, I did.  20 Q   All right.  And have you -- and were you qualified as  21 an expert in that case?  22 A   I believe I was.  23 Q   And have you since been qualified to give expert  24 opinion with respect to the area that we are  25 attempting to qualify you today in any other court in  26 Canada?  27 A  Well, about a month ago I appeared in Ontario  28 Provincial Court in North Bay and was qualified as an  29 expert witness to discuss the Robinson Treaties of  30 1850.  These were two Indian treaties with the Indian  31 people of the Lakes Huron and Superior.  32 Q   Now, you indicate that since 1973, approximately,  33 you've been making your living as a -- what did you  34 call yourself, a practicing historian?  Some of the  35 recent contract work which you've done has been set  36 out in your curriculum vitae at the bottom of page one  37 and two, and I'm going to turn you to that now.  In  38 the fall of 1987 you indicate that you worked for the  39 Environmental Applications Group Ltd. in Toronto for  40 the Department of National Defense.  What exactly were  41 you doing for the Department of National Defense?  42 A  Well, the Department of National Defense had  43 contracted this Environmental Applications Groups to  44 do an environmental monitoring of a route through  45 Northern Ontario which had been proposed as a route  46 for low level training flights by the American Air  47 Force and there were a number of studies done. 16047  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 Everything from sound quality to the various type of  2 environmental assessment you do.  And I was asked to  3 report on native groups who lived in the area.  You  4 know, location of reserves there.  You know,  5 lifestyle.  Any conceivable native interest which  6 might be affected by these flights.  And I prepared a  7 report which is part of the report that was submitted  8 to the Department of National Affairs.  9 Q   All right.  And in the spring and summer of 1988 you  10 indicated that you worked for the Regional  11 Archeologist, the Ontario Ministry of Culture and  12 Communications in Sault Ste. Marie, and you did a  13 report on the ethnohistorical background of  14 17th-century Ottawa village.  What was your work there  15 with the Ontario Ministry of Culture and  16 Communications?  17 A  Well, the term is basically self-explanatory.  There  18 is a very large archeological dig going on in  19 Manitoulin Island in northern Lake Huron and it's  20 really the -- it's actually the only Ottawa village.  21 They are very prominent and very powerful, the Indian  22 tribe, if you read historical documents from the  23 seventeenth and eighteenth century.  It's the only one  24 of their villages which has ever been dug to date and  25 the Manitoulin Island is their aboriginal homeland.  26 And I was asked to prepare a background report on the  27 history of the Ottawas, their residence on Manitoulin  28 Island and the history of so much as I could find  29 references to that village site and their history  30 after the seventeenth century as well.  31 Q   Was that an archival task?  32 A   Yes, it was a principally archival task, although I  33 participated in the data as well.  34 Q   And did you have to interview elders or others?  35 A   Yes, I did interviewing at the very large Indian  36 village of Wikwemikong on the east side of Manitoulin  37 Island.  38 THE COURT:  I am sorry, the spelling, please?  39 A  Wikwemikong, is spelled W-i-k-w-e-m-i-k-o-n-g, and  40 it's on the northeastern side of Manitoulin Island in  41 Lake Huron, and the majority of the inhabitants there  42 are Ottawa Indians.  43 MS. MANDELL:  44 Q   Okay.  You indicated in the fall of 1988 you worked  45 for Michael Bennett, Barrister and Solicitor, at Sault  46 Ste. Marie preparing an ethnohistoric background on  47 the Cockburn Island Band.  What was your job here? 16048  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 A   The Cockburn Island is in actual fact the next island  2 west of Manitoulin Island in northern Lake Huron.  And  3 I was asked by Mr. Bennett to provide a report on  4 the -- based on archival documents of the identity of  5 the individual individuals who made up the particular  6 Indian band, their antecedents so far as I was able to  7 determine them, and on the really three Indian  8 treaties, 1836, 1850 and 1862, which involved Indian  9 people in northern Lake Huron.  10 Q   All right.  Now, you then worked in 1988 and '89 for  11 the Grand Council of the Crees of Quebec.  What was  12 your work there with the Cree people?  13 A   The main thing I was doing there was tracing land use  14 through historic documents from fur trade records  15 particularly of the Hudson's Bay Company and of the  16 competing companies with the Hudson's Bay Company and  17 as well I was tracing genealogies of individuals using  18 fur trade and missionary records.  19 Q   Is it common within your area of expertise to be  20 consulting both fur trade and missionary records as a  21 source base for the work that you do?  22 A   Oh, very common.  I can certainly say I probably read  23 every fur trade document connected with northern  24 Ontario and Quebec at least that exists.  25 Q   And finally, in 1988, '89 you indicated that you  26 worked for Settlement Surveys Ltd., a report on the  27 heritage resources in the area of proposed Hydro  28 installation west of Hearst Ontario.  Is this the same  29 sort of work as you did for the Department of National  30 Defense?  31 A   In a sense -- nutshell, yes, similar kind of work.  32 Q   Now, under Arbitration Services, you indicated that  33 you in 1988, '89 were a Workload Resolution Arbitrator  34 for the Northern College of Applied Arts and  35 Technology in Timmins.  What is your job there?  36 A   It's actually the academic year of '87/'88 and '88/'89  37 that my term expires in June and may not be renewed.  38 I am under the collective agreement between the  39 Ontario Public Service Employees Union and this  40 Northern College of Applied Arts and Technology.  I  41 resolve disputes between the teaching staff and the  42 management over workload, workloads assigned.  43 Q   Under Memberships, you have indicated that you are a  44 member of the American Society for Ethnohistory.  What  45 is the society?  46 A   It's the -- I guess you would say it's the major  47 academic group for people who do the kind of 16049  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 historical work I do in one sense.  It's based in the  2 United States, but the ethnohistory field is applied  3 world-wide and I guess you'd say it's a -- in a way a  4 fusion field between history and anthropology.  5 Q   If I could turn you to your Publications, the third  6 item down, a publication with an Adolph Greenberg.  Is  7 this a publication which relates in any way to the  8 American Society for Ethnohistory and your membership  9 in it?  10 A  Well, the journal Ethnohistory is the publication of  11 this society and this is a paper that, you know,  12 Professor Greenberg who teaches at Miami University at  13 Oxford, Ohio and I published in 1982.  14 Q   And is there anything in the preparation of that paper  15 which may have a bearing on the expertise for which we  16 are seeking to qualify you?  17 A  Well, it's based on an analysis of eighteenth --  18 seventeenth, eighteenth and nineteenth century fur  19 trade missionary and government records dealing with  20 the Indian people of the Upper Great Lakes.  21 Q   And if I could turn you to page three, the last two  22 papers under the section Papers Presented, one being  23 "The Jesuits Return to the Upper Great Lakes Region  24 1844-1900" and the next regarding the Temagami Ojibwa.  25 Are those two papers which you presented also in any  26 way related to your membership in the American Society  27 of Ethnohistory?  28 A   Yes.  They were presented at the last two annual  29 meetings of the American Society for Ethnohistory, the  30 one in Berkeley and the one this just past year in  31 Williamsburg, Virginia.  32 Q   And in the preparation of either of those papers is  33 there any work which you did which bears upon the  34 expertise for which we are seeking to qualify you?  35 A  Well, the paper on the Jesuits is based on an enormous  36 amount of nineteenth century Jesuit missionary  37 correspondence in French on the Indian people of the  38 Upper Great Lakes region.  And it's -- my long-term  39 view is to work on a -- translate and edit these  40 letters to make them as available to scholars as the  41 seventeenth century Jesuits relations are.  42 Q   Now, if I could ask you to turn to the section of your  43 curriculum vitae which deals with Publications on page  44 two.  The first item is a published -- is an article  45 entitled "Archives and Native Claims."  Could you  46 explain what is that, what is that article about?  47 A  Well, "Archivaria" is the publication of the Canadian 16050  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 Society of Professional Archivists, and the article in  2 question deals with the -- first of all, with the  3 history of these native claims processes as set up by  4 the Federal Government beginning in the late 60's,  5 early 70's and the type of work which has since been  6 done across the country, and then it goes on to  7 identify the types of archival records which are used  8 by people researching native claims from whatever  9 prospective.  And, you know, I identify the major  10 repositories where those records are kept and it's  11 kind of an introductory article on where to look.  12 Q   Now, you've -- I take it that that type of research  13 base material that you identified there would be  14 applicable to the research which you had to look at in  15 order to become familiar with this material?  16 A  Well, it was based on -- mostly on my own experience  17 but also on, you know, experience of others.  As I say  18 where to look for records relating to these topics.  19 Q   All right.  We've already dealt with many of these  20 other publications, but I just wanted, though, to  21 confirm with you that the major work on Indian lands  22 and public lands which is found at page three, does  23 that piece of work represent the largest concentration  24 of your energy in the area that we're seeking to  25 qualify you as an expert?  26 A   Yes, it does.  27 Q   And how long have you been working in the area for the  28 production of this book which is still in preparation?  29 A  Well, off and on for the last ten years, but with  30 particular periods of concentration.  As I say I do  31 other work in between in order to earn a living.  32 Q   All right.  Now, under Papers Presented, could you  33 identify whether or not any or all of these papers are  34 related to the area for which we seek to qualify you  35 as an expert?  36 A  Well, the -- all of the papers presented deal with,  37 you know, interpretation of historical, of archival  38 documents relating to Indian peoples.  Fur trade  39 missionary records in French and in English.  They are  40 mainly these ones of I guess you would say  41 ethnohistorical focus.  42 Q   And is the third item called "The Mysterious  43 Middlemen" particularly focused on the fur trade  44 history of the period between 1850 and -- I am sorry,  45 1750 and 17 -- 1650 and 1750?  46 A   Yes.  47 Q   And is that also an area for which we seek to tender 16051  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  On Qualifications  1 your expertise today?  2 A  Well, those -- as I say it's based on French and  3 Hudson's Bay Company fur trade records, principally.  4 French government records as well.  5 Q   All right.  If you could glance your eye down the  6 section which you have identified at page three and  7 four of Lectures and Symposia and Reviews and advise  8 us whether you have anything further to add as to  9 whether any of that work done and presented in those  10 forums has a bearing on the evidence of your  11 testimony?  12 A  Well, I suppose you'd say virtually all of them do in  13 one way or another.  The public lecture I gave at  14 Algoma University College in Sault Ste. Marie in  15 November of 1984 dealt with the acquisition of Indian  16 lands in Ontario as did the lecture I gave last year  17 as Michigan State University on -- entitled "Native  18 American Resistance to Canadian Rule" in the  19 nineteenth century.  This dealt with the making of  20 treaties and acquisition of Indian lands in the Upper  21 Lakes in the nineteenth century.  22 Q   All right.  I just wanted to ask you whether in the  23 course of the work which you've done between 1973 to  24 the present, whether you've in addition -- I know we  25 haven't reviewed the earlier period between 1973 and  26 1987 in any great detail.  But during that period of  27 your work history did you during that time work on any  28 projects which -- where the employee, the person for  29 whom you worked was not -- I will put it this way:  30 Were there any projects for whom -- were -- that you  31 worked on where you were working against the interests  32 of an Indian band or an Indian tribe?  33 A  Well, as I say, I do contract historical work on a  34 consulting basis and I have worked for, you know,  35 native bands, I worked for Federal/Provincial  36 Government.  And I guess another example is in 1985 I  37 did a contract for the firm of Goodman and Goodman,  38 barristers and solicitors in Toronto, who were acting  39 for a group of land owners near Belleville, Ontario  40 who were the subjects of an Indian land claim.  It  41 involved a nineteenth century lease from the Mohawk  42 Indians of the Tyendinaga Reserve and I prepared a  43 report for Goodman on this.  44 MS. MANDELL:  Those are my questions with respect to Mr.  45 Morrison's qualifications.  4 6    THE COURT:  Mr. Goldie.  47    MR. GOLDIE:  One or two, my lord. 16052  J. Morrison (For Plaintiffs)  Cross-exam by Mr. Goldie  On Qualifications  1 CROSS-EXAMINATION BY MR. GOLDIE, (On Qualifications):  2 Q   Mr. Morrison, you told his lordship that you had given  3 evidence in the Bear Island case?  4 A   Uh-huh.  5 Q   Fairly extensively?  6 A   Quite extensively, yes.  7 Q   Can you recall how many days?  8 A   I can't recall the exact number of days, but in terms  9 of calendar time it was, I think, about five weeks.  10 Q   That was beginning in and around June of '82, was it?  11 A  Well, the case itself began then, but if my memory  12 serves me correctly, I testified in 1983.  13 Q   I see.  All right.  I have some pages from the reasons  14 for judgment -- I have just got this copy.  Would you  15 like to -- I will be showing it to him.  Are you the  16 James Morrison who is described by his lordship in his  17 reasons for judgment in Ontario, Attorney General of  18 Ontario vs. Bear Island Foundation, and this is in the  19 fifteenth -- 15 DLR 4th Report, my lord, at page 358.  2 0              And the words, and I quote:  21  22 "He, Thor Conway, convey and James Morrison were  23 typical of persons who have worked closely with  24 Indians for so many years that they have lost  25 their objectivity when giving opinion evidence."  26  27 Unquote.  I am not asking you whether you agree with  28 that.  I just want to know if you are the James  29 Morrison his lordship was referring to?  30 A   Yes, I am.  31 Q   And on page 370 in the first complete paragraph on the  32 page his lordship starts off by saying:  33  34 "James Morrison, a researcher for the defendants,  35 gave evidence -- "  36  37 And then I go down to the fifth line and I quote:  38  39 "Mr. Morrison did a superb research job.  He  40 stated that he had a strong commitment to the  41 defendants and that it would be up to the court to  42 separate his sympathies and biases from the use of  43 his actual material.  Unfortunately, I find  44 that I must reject many of his conclusions because  45 they are either sheer speculation or because they  46 are interpretations of documents that I find  47 unreasonable.  This does not detract from my 16053  J. Morrison (For Plaintiffs)  Cross-exam by Mr. Goldie  On Qualifications  1 respect for his technical research."  2  3 And you're the Mr. Morrison that's referred to there?  4 A   Yes, I am.  Yes, sir I am.  5 Q   And do you still -- do you have a strong commitment to  6 the plaintiffs in this case?  7 A  Well, I don't think I have met more than one or two of  8 the defendants in this case.  9 Q   Well, I mean the plaintiffs in this case, the native  10 peoples in this case?  11 A   In this case, well, that's what I meant.  I don't  12 think I had met more than one or two of the plaintiffs  13 in this case.  14 Q   Well, do you have a strong commitment to their cause,  15 let me put it that way?  16 A   Depends what you mean by cause.  I, you know, I prefer  17 to judge, you know, these matters on their merits, I  18 guess you could say, and as I explained, I've -- I am  19 not familiar with the individuals or the plaintiffs in  20 this particular case.  And so I -- I'd have difficulty  21 saying that I manifest some sort of strong commitment  22 to their cause.  23 Q   Well, I appreciate that you have -- you may have some  24 difficulty, but I ask you to overcome that difficulty  25 and to tell his lordship whether you have a strong  2 6 commitment to the claims that are -- to the  27 plaintiffs' claims in this case?  28 A   I would have to say no, I don't.  2 9 Q   Do you have any commitment?  30 A  Well, I'm interested in the subject matter in which I  31 have been asked to give evidence.  I am interested in  32 the topic in general, and I'm interested in the  33 subject of native claims, because I have been involved  34 in researching many over the years.  35 Q   Well, you hold yourself out as a specialist in respect  36 of Indian land claims, don't you?  37 A   Yes.  38 Q   Yes.  And then his lordship went on to say -- well, he  39 went on to say:  40  41 ".... it would be up to the court to separate his  42 sympathies and biases from the use of his actual  43 material."  44  45 And I assume that's the case here?  46 A  Well, what I said and I haven't -- that was six years  47 ago, so I can't remember the exact words of what I 16054  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  J. Morrison (For Plaintiffs)  Cross-exam by Mr. Goldie  On Qualifications  said, but if I remember correctly, I basically set out  what I believed to be proper historic method which was  to cast the net as widely as possible when assembling  documentary evidence and that any historian takes a  position based on what they read and that the -- and  assemble, and certainly since this was in a court it  was up to the court to decide, you know, whether the  interpretation that I put on it was, you know, fair  and reasonable or not.  I mean that's the court's  prerogative.  Q   And then his lordship at page 375 referred to the  "excellent research work of James Morrison on  genealogies and fur trade records," and you identify  yourself as the person referred to there?  A   Yes, I am.  Q   And those, of course, were the fur trade records that  were relevant to Ontario and Quebec?  A   In that particular case, yes.  Q   Yes.  And then at page 412 his lordship said this, and  I quote:  "Later, he gave extensive evidence of his analysis  of numerous vouchers and documents.  He said that  they suggested to him that Nebenegwune had not  been -- "  THE COURT:  I am sorry?  MR. GOLDIE:  N-e-b-e-n-e-g-w-u-n-e.  Q       " -- had not been paid."  Continuing, quote:  "I have reviewed this evidence and I am of the  opinion that it is pure speculation on Mr.  Morrison's part, and again shows his attempts to  argue the defendants' cause rather than allowing  the documents to speak for themselves."  Unquote.  And that you are the James Morrison referred  to there?  A   Yes, I am.  Q   Yes.  And when his lordship talked about "rather than  allowing the documents to speak for themselves," he  was speaking of what you said a few minutes ago,  namely every historian interprets the documents that  he collects on a given subject? 16055  J. Morrison (For Plaintiffs)  Cross-exam by Mr. Goldie  On Qualifications  1 A   Yes.  And that I suppose you'd say one of the major  2 difficulties, differences, whatever you want to call  3 it, is that in my view, and I think the view of most  4 historians, documents don't really speak for  5 themselves.  They are a matter of interpretation.  And  6 every historian interprets material based on, as I  7 say, casting the net widely, weighing documents one  8 against the other, subjecting the documents themselves  9 to a kind of scrutiny about, you know, who prepared  10 them, how they were prepared, how they fit into a --  11 you know, the overall historical framework within  12 which they are being dealt.  And I -- if I can comment  13 as well, the first or second, I forget now, comment  14 you referred me to from his lordship in the Temagami  15 case about the particular example where my conclusions  16 were I guess sheer speculation, I delivered a paper  17 which is on my curriculum vitae, the one dealing with  18 Nipissing traders at an archeological conference on  19 that very topic and on what I had testified on and  20 that paper will be appearing next year in a  21 publication put out by the University of Western  22 Ontario, and I would say that my, you know, my  23 speculation on these matters are accepted as  24 conventional scholarly wisdom on this subject.  That  25 is my academic peers accepted what I had to say.  26 Q   You proved to yourself that what his lordship said was  27 wrong?  28 A   No.  I would say that --  I am not suggesting that.  I  29 am just saying that, you know, academics --  30 Q   Speculate?  31 A   Speculate, and their conclusions are often accepted by  32 other academics.  33 Q   Yes.  34 A  As being legitimate and valid.  35 Q   Yes.  And sometimes --  36 A  And sometimes not by other academics.  But I am just  37 saying in this instance those very conclusions were  38 accepted.  39 Q   Yes.  So as far as you know?  40 A   I have talked extensively with many of the other  41 people who are interested in the field and --  42 Q   Yes.  43 A   -- I haven't had an objection yet.  44 Q   And at page 414 his lordship said:  45  46 "A line drawn north from the eastern boundary of  47 Lake Nipissing encompasses the Temagami lands. 16056  J. Morrison (For Plaintiffs)  Cross-exam by Mr. Goldie  On Qualifications  1 This is clear from practically all maps prepared  2 by provincial and Canadian governments in  3 subsequent times.  I make this finding  4 notwithstanding Mr. Morrison's opinion that the  5 Temagami lands would not be included within this.  6 In my mind, it is another example of Mr.  7 Morrison's bias in clearly refusing to  8 accept the obvious."  9  10 And you are the Mr. Morrison referred to there?  11 A   Yes, I am.  12 Q   And then in the same page the last paragraph:  13  14 "Mr. Morrison advanced the theory that, because  15 the insurrection of the Indians over the mining  16 claims had been suppressed, charges had been laid  17 against some Indians in connection therewith, and  18 troups had been present at the signing of the  19 treaty, therefore, the Indians were under duress  20 and did not sign freely."  21  22 And then his lordship says:  23  24 "I find that the Indians were not under duress to  25 sign."  26  27 And you are the Mr. Morrison who advanced the theory?  28 A   Yes.  29 Q   Thank you.  Now, in your curriculum vitae which has  30 been marked, and this seems to be slightly different  31 from the one that we were given.  All right.  The  32 cirriculum vitae that is Exhibit 1024, you say  33 self-employed in legal and historical research.  Am I  34 correct that when you gave evidence in the Bear Island  35 case that you stated that your period of  36 self-employment was in historical research?  37 A   Oh, I may well have, sure.  38 Q   Well, I'm referring to page 7090 of Volume 41 at line  39 20 and were you asked this question:  40  41 Q "Your curriculum vitae indicates the year  42 1979 to present 'historical research  43 consultant with a number of Ontario native  44 organizations and bands,' is that correct?  45 A:    That is correct. "  46  47 And that was your answer, was it? 16057  J. Morrison (For Plaintiffs)  Cross-exam by Mr. Goldie  On Qualifications  1 A   Yes.  2 Q   Yes.  Well, am I correct, then, in my understanding  3 that the addition of the word legal has come about as  4 a result of work you had done since you gave evidence  5 in the Bear Island case?  6 A   Yes.  Largely.  That —  7 Q   I take it that by that you mean work done for lawyers?  8 A  Well, and in the field of legal history I -- you know,  9 sure.  10 Q   Well, you have no legal qualification yourself?  11 A   Oh, none whatsoever, and I make no pretense to have  12 any.  13 Q   What I am trying to get at is what is the distinction  14 that you have made since you gave evidence in the Bear  15 Island case or the experience that you have which  16 warrants your description as legal and historical  17 researcher?  18 A   Oh well, sure, I will explain why.  When I mentioned  19 the contract which I did for the Goodmans firm, in the  20 course of that, because it involved the question of a  21 lease from the Mohawk Indians in the 1830s, it  22 involved researching a great deal of early land  23 registers and title deeds, tracing the chain of title  24 involving those lands in question, and as I say, I am  25 in the business of doing contract work and since I  26 felt I thereby acquired a certain amount of expertise  27 in dealing with what were in effect questioned titles,  28 I put it on my shingle, I guess you would say.  29 Q   All right.  And it is that which primarily you have in  30 mind when you add the words legal researcher?  31 A   Yeah.  No, that's exactly what I had in mind.  32 Q   All right.  33 A  And if you look at the bottom of my thing, it says  34 "Questioned Titles, Titres Contestes".  That's what I  35 meant.  36 Q   Thank you.  And I gathered from the evidence you have  37 given so far that your particular field of interest  38 has been and is now native claims in Ontario?  39 A  Well, Ontario is the primary geographical focus,  40 certainly.  I mean I am not adverse to if someone were  41 to offer me a contract in an area outside Ontario, I  42 would be happy to research it.  43 Q   But your experience today has been primarily in  44 Ontario?  45 A   Primarily in Ontario, yes.  46 Q   Yes.  I think you spoke of one in which you did some  47 research involving the Quebec fur trade? 16058  Submissions by Mr. Goldie  On Qualifications  of James Morrison  1 A   Yes.  2 Q   Miss Mandell referred you to one of the publications  3 on page three under Papers Presented, "The Mysterious  4 Middleman," the region 1650 to 1750?  5 A   Uh-huh.  6 Q   What relevance do you understand that paper to have to  7 the issues that are before the court in this lawsuit?  8 A   Only in the general sense that the way in which the  9 French fur trade was organized, the way in which the  10 British fur trade, whether the Hudson's Bay company or  11 other traders was organized and, you know, reading and  12 interpreting governmental and fur trade records,  13 dealing with these issues.  That's what I meant.  14 Q   I see.  Right.  And she referred you to the document  15 "Archives and Native Claims" under Publications page  16 two, "Archivaria"?  17 A   Yes.  18 Q   Is that the one that started off describing the  19 strange new beast found in the corridors of the  20 National Archives?  21 A   Probably, yes.  22 Q   And that is a calling which, to use those words, came  23 into being as a result of the land claims process set  24 up by the Federal Government?  25 A   Yes, in fact it did.  26 Q   And am I to take it that you are describing -- you are  27 including yourself in that description?  28 A  Well, along with a great number of people who have  2 9 become involved.  30 MR. GOLDIE:   All right.  Thank you.  31 THE COURT:  Miss Koenigsberg?  32 MS. KOENIGSBERG:  I have no questions.  33 THE COURT:  Thank you.  Well, Mr. Goldie, are you submitting  34 that -- do you have a submission to make?  35 MR. GOLDIE:  Yes, I do, my lord.  I think there is no question  36 but that Mr. Morrison is a qualified researcher and he  37 is competent to bring before the court the result of  38 his research into the factual circumstances  39 surrounding the Royal Proclamation of 1763.  I am -- I  40 doubt the relevance of two of the items that Miss  41 Mandell stated she was anxious to qualify him in, but  42 that can best be left until the evidence is given.  4 3 THE COURT:  Yes.  44 MR. GOLDIE:  In my submission he has the skill of the researcher  45 which for the purposes of litigation lies in the  46 selection of the documents that will enable the court  47 to determine as best as circumstances allow the matrix 16059  Ruling On Qualifications  1 of facts to use the words in Pren and Simmons or the  2 circumstances surrounding what brought -- what brought  3 into being the Royal Proclamation.  And this is --  4 this is a necessary step, of course, my lord, because  5 there is no oral evidence from people who were present  6 in 1763.  So it is a matter of documents, and in my  7 submission he is fully qualified to exercise his  8 judgment and to bring before your lordship the  9 selection of documents which he thinks is relevant and  10 which will be the matter of submissions.  I do not  11 think with respect that he is qualified in the sense  12 of anything I've heard so far to offer, as a legal  13 historian to offer your lordship conclusions with  14 respect to those documents or the interpretation to be  15 placed on the documents, but that will be a matter of  16 submission when I hear what the opinions are sought to  17 be elicited from him.  But so far as his  18 qualifications are concerned, I think it's clear that  19 he's qualified as he has testified as a researcher.  20 THE COURT:  Is there a report?  21 MS. MANDELL:  My lord, there isn't a report.  22 THE COURT:  I see.  23 MS. MANDELL:  We filed a summary and we will be leading this  24 evidence viva voce.  There is a summary of the  25 evidence which includes some nine opinions that will  26 be elicited from Mr. Morrison.  27 THE COURT:  Yes.  All right.  Thank you.  Miss Koenigsberg?  28 MS. KOENIGSBERG:  I have nothing further.  29 THE COURT:  Yes.  All right.  Well, I'm going to take advantage  30 of the opportunity Mr. Goldie has furnished to rule at  31 least that the witness can give expert evidence on the  32 research he has conducted and I'm going to have to  33 deal with other matters as they arise.  34 MS. MANDELL:  My lord, if I could advise you first.  I'd like  35 to -- there will be four volumes of documents which  36 will be tendered with this witness and several loose  37 items from time to time.  Mr. Morrison has his own  38 volume and if your lordship has no objection, either  39 do my friends, that he remain with the one that he  40 has.  There is some underlining, but I think it's  41 going to help things rather than anything else.  42 THE COURT:  All right.  43 MS. MANDELL:  In front of each of the volumes will be an index  44 and subject to my friends' suggestion on it, what I  45 proposed to do is to mark the volume as an exhibit,  46 Volume 1 beginning today and as we complete each tab,  47 then to indicate that that tab would be the next 16060  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  1 exhibit.  And for convenience the tab is indexed at  2 the front and I hope that that will facilitate it.  At  3 the end of the day I will give a chronological listing  4 of all of the documents and I think it will assist  5 when my friend is dealing with similar material with  6 his witness.  7 THE COURT:  Yes.  All right.  8 MS. MANDELL:  If I could begin by referring your lordship to the  9 Royal Proclamation that's been handed up to you and I  10 think my friends all now have a copy.  11 THE COURT:  Yes.  12  13 EXAMINATION IN CHIEF BY MS. MANDELL (Cont'd):  14 Q   You have a copy of this document in front of you.  Can  15 you identify it, please?  16 A   It's a printed copy of what we now know as the Royal  17 Proclamation of 1763, October 7, 1763.  18 Q   And there is some writing on the document throughout  19 beginning with the title page and indicating various  20 paragraph numbers.  Do you know whose writing that is?  21 A   Yes.  It's the handwriting of Professor Brian Slattery  22 who is now at a law school.  It's basically copied  23 from the appendix from his doctoral thesis, "The Land  24 Rights of Ishkaninis People" (phonetic) 1979 I think  25 it was.  But it's taken from this volume of  26 transactions and collections of the American  27 Antiquarian Society, and this is generally considered  28 to be the text which is most similar as a typescript  29 to the original document.  30 Q   And the little -- the number handwriting 3.1 at the  31 top of the document, is that your handwriting?  32 A   That's my handwriting.  33 Q   And does it have anything to do with --  34 A   No.  It has nothing whatsoever to do -- the numbering,  35 though, of the paragraphs on the left-hand side, the  36 identifying of the paragraphs and as to preamble and  37 identifying the paragraph is as they were numbered and  38 identified by Dr. Slattery.  39 MS. MANDELL:   All right.  I would ask that this be marked as  40 the next exhibit.  41 THE REGISTRAR:  Exhibit 1025.  42 THE COURT:  Yes.  Thank you.  43  44 (EXHIBIT 1025:  Royal Proclamation dated October 7,  45 1763)  46  47 16061  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  1 MS. MANDELL:  2 Q   I'd like to turn to the Royal Proclamation and  3 familiarize his lordship with its provisions.  If you  4 could begin with what is marked Part I, Preamble, and  5 identify here what the Proclamation is enacting.  6 A  Well, it begins --  7 MR. GOLDIE:  Well, excuse me, I object to the question  8 "enacting."  9 MS. MANDELL:  10 Q   I will change the question.  Which the Proclamation --  11 if you could identify that which is stated in Part I  12 of the Preamble, the topic of it?  13 A   Yes.  The topic is as stated:  14  15 "Whereas We have taken into Our Royal  16 Consideration the extensive and valuable  17 Acquisitions in America,"  18  19 And then it goes on to refer to the "late Definitive  20 Treaty of Peace" and this is the treaty of Paris of  21 February 1763 which put an end to the Seven Years War  22 and which secured to Britain, among other things, what  23 had been Spanish Florida, which what had been portions  24 of French Louisianna as well as what had been Canada  25 under French rule, New France.  26 Q   All right.  And what does, then, Part I deal with?  27 A  Well, it sets out basically establishing new  28 governments for the portions of the conquered,  29 captured territories, so that as it mentions:  30  31 "All Our loving Subjects, as well of Our Kingdoms  32 as of Our Colonies in America, may avail  33 themselves"  34  35 And it goes on:  36  37 "of the great Benefits and Advantages which must  38 accrue therefrom to their Commerce, Manufacturers  39 and Navigation."  40  41 And the Proclamation goes on:  42  43 "to erect within the Countries and Islands ceded  44 and confirmed to Us by the said Treaty , Four  45 distinct and separate Governments."  46  47 And they name them as Quebec, East Florida, West 16062  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  1 Florida and Grenada.  Now, Grenada, as you see a  2 little further on, is, of course, the West Indian  3 island and deals with a number of islands surrounding  4 it and nothing much more is done about Grenada other  5 than erecting the governments, and of course it's not  6 on the North American Continent.  So from the point of  7 view of those issues it's no longer relevant really to  8 the rest of the Proclamation.  But a government of  9 Quebec, in paragraph two of Part I, is established and  10 it extends from Labrador down to the Lake -- it says  11 nigh Pissin.  That's Lake Nipissing.  And that's in  12 what's now Ontario at -- more or less at the head of  13 the Ottawa River as it turns northward.  And it's  14 quite a circumscribed geographical entity shaped like  15 a triangle carved out of what had been New France  16 which, of course, is much larger in extent.  And the  17 second new government created is East Florida which is  18 basically the Panhandle and which had been Spanish.  19 And then thirdly, government of West Florida which is  20 the sort of what's now the Gulf Coast of Florida and  21 of Alabama, going over to the River Mississippi and  22 extending north a certain distance in what had been  23 part of French Louisianna.  And then it -- I mentioned  24 Grenada.  And then it adds the coast of Labrador to  25 the governor -- government of Newfoundland.  It adds  26 St. John's Island.  That's Prince Edward Island, and  27 Cape Breton to the government of Nova Scotia.  And it  28 adds certain territories in the south to the  29 government of the Province of Georgia.  30 Q   All right.  So with respect to paragraphs marked six,  31 seven and eight, these are all to deal then with the  32 expansion of the Old Colonies?  33 A   Of certain of the Old Colonies, yes.  34 Q   Thank you.  Now, the portion that's marked Part II,  35 Preamble, and then --  36 MR. GOLDIE:  My lord, I don't want to take any minor objections,  37 and I am assuming that this is a useful exercise for  38 your lordship, but I am pointing out that the document  39 is very clear in itself and speaks for itself.  It  40 does not need any expert to interpret it.  And I will  41 be submitting later that a copy of this without these  42 Part II, Preambles and things which Professor Slattery  43 has put on is a more appropriate document, but I think  44 I am assuming that this is of assistance to your  45 lordship.  46 THE COURT:  I think this probably is.  I — all this is  47 memorized from preschool days, but it's useful to be 16063  J. Morrison (For Plaintiffs)  In Chief by Ms. Mandell  1 reminded.  2 MS. MANDELL:  I thought it would be to help you figure the  3 evidence that's to come.  Thank you.  4 Q   Dealing with Part II, then, could you explain what  5 Part II is dealing with here?  6 A  Well, as I say, Part II as set out by Professor  7 Slattery was organized by him.  But the preamble  8 states that it will greatly contribute to the speedy  9 settling of our said new governments, that there be  10 various directions about how they are to be organized  11 in terms of government and that's in paragraph one,  12 you know, a Governor and Assembly Council in each of  13 these New Colonies.  And then in what's marked as  14 paragraph two, these Governors and Councils of the  15 said Three New Colonies upon the Continent are given  16 full power and authority to settle and agree with the  17 inhabitants, and it says:  18  19 "Or with any other Persons who shall resort  20 thereto, for such Lands, Tenements, and  21 Hereditaments, as are now, or hereafter shall be  22 in Our Power to dispose of."  23  24 And then it says that the Governors and Council can  25 grant such lands under the conditions that they deem  26 to be expedient for that purpose.  27 Q   All right.  So this section in summary is -- is  28 providing for the governors of the Three New Colonies  29 to summons Assemblies and to create Courts and also  30 to —  31 A   Grant land.  32 Q   -- give them the power to grant land?  33 A   Yes.  34 Q   All right.  Part III then, as Dr. Slattery has marked  35 it on page 215, what is the subject matter of that  36 section?  37 A  Well, it's basically dealing with the demobilized  38 soldiers from the Seven Years War who are still there  39 in the North American colonies.  They have been sent  40 over in quite considerable numbers during the war and  41 so there is this signification in the Proclamation  42 that they are to be provided with lands within the  43 Three New Colonies as well as it says it's directed  44 to:  45  46 "All other Our Governors of Our several Provinces  47 on the Continent of North America, to grant,


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