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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-06-12] British Columbia. Supreme Court Jun 12, 1989

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 17471  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR:  In the Supreme Court of British Columbia, this  4 12th day of June, 1989.  In the matter of Delgamuukw  5 versus Her Majesty the Queen at bar, my lord.  6  7 BARBARA LANE, a witness called on  8 behalf of the Plaintiffs, having  9 previously been duly sworn, testified  10 as follows:  11  12 THE REGISTRAR:  May I remind you are still under oath.  Thank  13 you.  And would you state your name for the record,  14 please?  15 A   Barbara Lane.  16 THE REGISTRAR:  Thank you.  17 THE COURT:  Miss Mandell.  18 MS. MANDELL:  My lord, apparently Mr. Chilton was left with  19 certain disclosures which were to be asked that --  20 which were to be left to the court for review.  This  21 is as I understand it with respect to the snow pack  22 mapping methodology and the snow pack evidence which  23 wasn't called by Mr. Grant in leading Mr. Chilton, but  24 I -- a request has been made for the disclosure of  25 this material and I have the draft report which  26 contains the aspect of it dealing with snow packs  27 together with the supporting material and Mr. Grant  28 left it with me to pass on to your lordship for your  29 decision on this.  So if I can just simply hand it up.  30 THE COURT:  All right.  Thank you.  31 MS. MANDELL:  Oh, I should just advise your lordship that the  32 aspects dealing with snow pack are indicated with an  33 arrow.  They begin on page one and I think it will be  34 self-evident, but they end at page four of the report.  35 THE COURT:  All right.  Thank you.  You say that the only parts  36 that I need to look at are pages --  37 MS. MANDELL:  Page one and to the middle of page four  38 together -- and then if your lordship is of the view  39 that that's disclosable, then the material behind is  40 is the supporting facts with respect to that part of  41 the draft opinion.  42 THE COURT:  And would also then be disclosable.  43 MS. MANDELL:  I am not — I can't go that far.  I haven't looked  44 at all those documents, but they are pertaining to  45 that issue so my --  46 THE COURT:  I thought you said that they were the supporting  47 facts? 17472  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS.  THE COURT  MR. RUSH:  THE  MR.  THE  MR.  THE  THE  MR.  THE  THE  THE  MR.  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  MANDELL:  They were.  They were.  And although I notice when  had -- the reason I am hesitating a bit is I notice  there is some correspondence at the beginning of the  file and that may come under a different category.  All right.  Yes.  Thank you.  I will look at that as  soon as I can.  All right.  Mr. Rush?  Yes.  I am going to continue with the  direct-examination of Dr. Lane.  My lord, I would  first ask that the numbers that were reserved by Mr.  Grant for the Barbara Lane document books now be  dedicated to the material volumes and I believe four  such numbers for the four volumes were set aside and I  would like to now have those volumes marked.  I wonder --.  Oh, yes.  It would have been at the beginning of Ms.  Marsden's --  At the beginning of --  Ms. Marsden's evidence.  She was called on Monday, June 5.  REGISTRAR:  Mr. Grant asked on your behalf.  RUSH:  That's what I am  —  REGISTRAR:  Yes, that's right.  That was last Monday.  COURT:  Last Monday?  REGISTRAR:  Yes.  RUSH:  Beginning at 1038, was it?  REGISTRAR:  Yes.  COURT:  I am surprised I don't have a note of it.  I am sure  I do somewhere.  What numbers were reserved?  Apparently 1038, 39, 40 and 41.  Well, never mind.  Yes.  All right,  want those numbers.  I would like Volume 1 to be Exhibit 103?  Yes.  Volume 2, 1039.  Yes.  Volume 3, 104 0 and Volume 4,  COURT:  RUSH:  COURT:  RUSH:  COURT:  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  And you now  1041,  Volume 1 Document book of Dr. Lane)  Volume 2 Document book of Dr. Lane)  Volume 3 Document book of Dr. Lane)  THE COURT:  MR. RUSH:  (EXHIBIT 1038  (EXHIBIT 1039  (EXHIBIT 1040  Yes.  And my lord, at the beginning of each of these  volumes I have prepared an index indicating the tabs  in the volume.  And I would like for the sake of the  record that each of the volumes have the entries in  the tabs separately referenced in the exhibit list, 17473  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  MR.  MR.  MR.  such that Volume 1 tab one be identified as the  exhibit at that particular tabulation, such that the  index reflects the entries throughout four volumes by  the separate tab designation.  THE COURT:  Yes.  All right.  MR. RUSH:  And I am going to be adding a few tabs to the end of  the last volume and I will hand those up in due  course, but -- and I will be introducing some other  documents arising out of the examination of last day,  but these are documents which will be added to  existing tabs and will be simply dividers for a large  part of these are typescripts and additional items  that the court and my friend alluded to.  COURT:  All right.  RUSH:  In the course of last day.  COURT:  Those may be marked accordingly unless there is some  obj ection.  RUSH:  Well —  GOLDIE:  Well — sorry.  RUSH:  At any rate, my lord, that's the way I intend to  proceed.  And I'll be handing up these as we go  through them.  GOLDIE:  My lord, can my friend characterize the purpose of  this?  Are these -- are these being tendered for the  truth of the matter stated therein?  Are they being  tendered as documents which Dr. Lane has referred to  or what?  There is a great variety of documents, my  lord.  Some of them are such that their admissibility  is evident on their face; other documents are ones  that are inadmissible for the purpose of proving  anything other than an event occurred at a certain  time.  THE COURT:  Well, at the very least they are evidence of  membership in the collection that the doctor has made.  MR. GOLDIE:  I agree with that, and if that's what they are  tendered for I have no objection.  THE COURT:  Now, at least it goes that far.  Now, where else  does it go, Mr. Rush?  MR. RUSH:  Well, to the extent that the witness has examined --  has been -- has passed comment on, has evaluated or  assessed documents which we say is the proper means by  which a document ought to be tendered for the truth of  its contents, then these documents are submitted for  that purpose.  There are some documents here such as  statutes which I am referring the witness to only  because she has made reference to them and will  identify them, presumably the document -- the statute 17474  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 speaks for its truth or other reasons.  But the  2 documents to which Dr. Lane has made reference I am  3 tendering for the truth of the statements.  To the  4 extent that she has commented upon the documents.  5 MR. GOLDIE:  Each document would have to be examined if it's  6 tendered for the truth of the matters stated, my lord.  7 The witness has not commented on a number of the  8 documents.  Not every tab has been dealt with.  9 THE COURT:  No.  10 MR. GOLDIE:  And there are documents of a character in here  11 which the witness could not prove.  I am content.  12 MR. RUSH:  Such as what?  13 MR. GOLDIE:  Newspaper reports.  14 MR. RUSH:  Well —  15 MR. GOLDIE:  If they are to go in, they go in because of their  16 age.  17 MR. RUSH:  Well, my lord, my friend mixes up two -- we have had  18 this debate 150 times.  The question of admissibility  19 is what age speaks to.  All of these documents are  20 admissible probably because of their age.  What they  21 speak to is the second issue and that's what I thought  22 my friend has was addressing.  23 MR. GOLDIE:  Well —  24 MR. RUSH:  And what our submission has been throughout that, an  25 experts' passing or reviewing or assessment of the  2 6              documents is the means by which we can evaluate or  27 assess the truthfulness of comments contained in those  28 statements.  Now, it might be that this is a question  29 of weight so far as the issue of newspaper articles  30 go, but the fact is that the items referred to in  31 newspaper articles commented on by Dr. Lane in my  32 submission allow them to be -- for those articles to  33 speak for their truth.  The documents that we did not  34 go through one by one are documents where I indicated  35 to your lordship for the sake of the convenience of  36 the court and the time that was involved to pass  37 through a number of the documents at one time and Dr.  38 Lane indicated she had reviewed those documents and  39 she gave a summary review of them.  Now, I don't  40 propose to do anything more than that, but if an issue  41 is being made about what these documents stand for, I  42 will go back and ask Dr. Lane about each one of these  43 documents.  I don't think it's necessary given the  44 lead in to the questions that I asked about those two  45 books of documents.  46 MR. GOLDIE:  Well, I am not making an issue about the fact that  47 not every document has been spoken to, but this is the 17475  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 first time it's been suggested that every document  2 referred to is contain -- is tendered for the truth of  3 the matters stated.  The witness has stated that she  4 considers these to be appropriate in respect of  5 context or significant in respect of policy.  All of  6 those items are going to be matters of argument.  And  7 in my submission the only appropriate way to deal with  8 that at this time is to mark it as -- each exhibit as  9 one referred to by the witness and leave it to the  10 reference that she has made for later argument.  But  11 to say now that each of these documents speaks to the  12 truth of the matters stated is a departure from what  13 has gone on so far and will precipitate a major  14 submission.  15 THE COURT:  Well, I don't think that these documents can be said  16 holus-bolus, as somebody once said, to be admissible  17 for proof of the truth of the facts stated in them.  18 Some of them are admissible for that purpose; some I  19 suspect are not.  Dr. Lane, by including them in this  20 collection, has either said or it follows from  21 necessary inference that she regards them as  22 significant members of this collection.  It isn't like  23 some of the other witnesses where there was a report  24 and it could be brought in or the documents could be  25 brought in under the rubric of being material that the  26 witness relied upon.  But at the end of the day it  27 seems to me that the documents that are not admissible  28 in their own right, either by being archival or by  29 being statutory or governmental in some ways, such as  30 orders in council, are at least available for the  31 purpose of putting in context events which have been  32 proven to have taken place either by the witness or by  33 some other witness, and I am satisfied that it is  34 quite unnecessary to have the witness positively deal  35 with every document.  There is in this case a  36 sufficient sub-stratum of proven fact to make this  37 kind of a collection useful for the purposes of  38 understanding those facts and I really don't think it  39 has to go any further than that.  At some point  40 counsel are going to treat me to a comprehensive  41 argument on what proves what, but I don't think we  42 need to delay the progress of the witness on that  43 account at this time.  I can give Mr. Rush the  44 assurance that it is not necessary in my view to have  45 the witness physically handle or positively speak to  4 6 each document and I think I can give Mr. Goldie the  47 assurance that every document will not be admissible 17476  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  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  MR. RUSH:  THE  MR.  COURT  RUSH:  THE COURT  MR.  THE  THE  MR.  RUSH:  COURT  A  COURT  A  RUSH:  to prove the strict truth of every fact it states in  it.  Some will and some will only be available for the  purpose of assisting me to understand context.  Now,  that's the best I can do with this problem at the  moment.  If that doesn't satisfy counsel we'll have to  hear more.  Well, I say only, my lord, that the discussion  departed on the basis of what the documents were being  tendered for.  :  Yes.  And plaintiffs' counsel tenders them to the extent  that the witness has examined and has commented upon  them for the truth of their contents.  And that's the  basis upon which we tender them.  :  She assumes their contents for the purpose of  putting them in the collection.  That seems to be a --  No.  I don't think that necessarily follows, my lord.  :  Well, surely it does.  No.  It doesn't?  No.  My lord, not all the documents are being advanced  solely to demonstrate that their contents are true.  We are tendering those to the extent that they have  been commented upon by the witness.  Some of the  documents we say are not true, but we've tendered them  for purposes of having the witness comment upon them  in the context of documents we say to contain true  facts.  THE COURT:  Well, surely it follows from her including them in  the collection that at least they are what they  purport to be.  A   Oh, yes.  MR. RUSH:  Well, yes, that's true.  There is a document that is  the sender and receiver and so on.  That's all so.  But what I say, my lord, is again that this is subject  to the witness' direction on the document as to the  way we sought to treat the document.  In some cases  for the most part we -- the witness commented upon  what she considered to be significant and relied on  the document and what we tendered to be so.  In other  cases much smaller number of documents we tendered for  the purpose of having the document assessed in the  light of the previous documents and where we don't  accept the truth of the content.  MR. GOLDIE:  Well, there has been no identification of that  distinction, my lord, and there can't be given the 17477  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  limitations that were placed upon the witness.  The  best that can be said is that Dr. Lane considers these  documents to be significant in terms of what she  stated her -- the job that she was to do at the outset  of her evidence in chief and that's -- if -- at the  end of the day my friend will be arguing this document  is to be taken at its face value.  This document  isn't.  So at the end of the day we're talking about  weight.  And at this time, and this is my only purpose  in raising this point, it would be wholly wrong to say  this collection -- my friend stated that this  collection is tendered for the truth of the contents  stated.  Then he had second thoughts and he said well,  some of them aren't.  And there has been no  distinction made so far.  THE COURT:  All right.  I expect at the end of the day this  isn't going to be an important problem, but I can  understand counsel's anxiety.  Well, I can't go beyond  what I have said, the assurance that I have attempted  to give counsel.  We could talk around it and we could  restate it and we could clarify or fuzzify these  things.  I am not sure there would be any profit in  it.  I think we should get on with the evidence.  The  documents are in.  We've had this discussion.  It  speaks for itself and counsel will assist me in due  course.  MR. RUSH:  I refer you, my lord, to Volume 2 of the document  books, tab 15.  COURT:  This isn't a series that -- or is it, that runs --  RUSH:  Sequentially through Volume 2 through Volume 3.  COURT:  Is tab one in this book?  It's not really 100, is  it?  RUSH:  No.  COURT:  No.  All right.  RUSH:   Just referring you to tab 15, my lord, and I'm going  to ask that this be inserted in tab 15 at the end.  COURT:  At the end.  GOLDIE:  Is this a document that you sent me on June 9?  RUSH:  I don't know if it was or it wasn't.  I don't think  so.  GOLDIE:  No.  It's a fresh document.  RUSH:  It's a document the witness referred to in her  evidence.  GOLDIE:  Well, it's still a fresh document.  RUSH:  Well, it could be.  GOLDIE:  Well, my lord, I would like to read this before the  witness comments on it.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  MR.  MR.  MR.  MR.  MR.  MR. 17478  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 MR. RUSH:  I don't have any problem with that.  2 THE COURT:  All right.  3  4 EXAMINATION IN CHIEF BY MR. RUSH (Cont'd):  5 Q   Do you have Exhibit tab 15 of Volume 2 in front of  6 you, Dr. Lane?  7 A   Yes, I do.  8 Q   And you refer to James Edward Fitzgerald in your  9 testimony last day in reference to tab 15.  Do you see  10 that reference in tab 15?  11 A   Yes, I do.  12 Q   And that was a letter Fitzgerald to Hawes of June 9,  13 1847 and you made reference to a proposal he made for  14 the colonization of Vancouver Island, and during your  15 testimony you indicated that Mr. Fitzgerald was an  16 employee of the British Museum.  I want to show you  17 now a document which has been inserted behind the  18 letter at tab 15 which is entitled James Edward  19 Fitzgerald Versus the Hudson's Bay Company Founding of  20 Vancouver Island.  21 MR. GOLDIE:  Well, my lord, I have checked on this matter in the  22 meantime and I concede that at the time the witness is  23 speaking of, namely June 9, 1847, Fitzgerald was an  24 employee of the British Museum.  He left shortly  25 thereafter to join a group that colonized New Zealand  26 and it was at that time that I thought he was writing  27 this letter.  I have since corrected that.  I accept  28 the statement that he was an employee of the British  29 Museum and I see no need for this document --  3 0 THE COURT:  In 1847?  31 MR. GOLDIE:  Yes.  And I see no need for this document to go in  32 which is --  33 THE COURT:  What is it, a published article?  34 MR. GOLDIE:  An article by Mr. Galbraithe.  35 MR. RUSH:  There are two articles.  One is by Mr. Galbraithe.  36 The other is a collection of letters from James Edward  37 Fitzgerald to W. E. Gladstone.  And these are both, as  38 Mr. Goldie has identified, to demonstrate that indeed  39 Mr. Fitzgerald was at the material time of this  40 proposal an employee of British Museum.  The fact that  41 my learned friend objected with this question that  42 this is what is designed to demonstrate and despite my  43 friend's consent now, I would like to tender these as  44 part of this exhibit.  45 MR. GOLDIE:  Well, I object to it, my lord, because I have no  46 notice of this particular document.  It goes far  47 beyond establishing that Fitzgerald was an employee of 17479  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE  MR.  THE  MR.  COURT  RUSH:  COURT  RUSH:  THE COURT  MR.  RUSH:  Q  A  the British Museum.  It goes into matters not even  touched upon by the witness in her evidence.  :  Well, if it's tendered for that purpose for a  purpose which is now admitted and if it's a new  document that hasn't been produced or notice given of  it previously, is it necessary to put it in, Mr. Rush?  Well, my lord, it's necessary from the standpoint  that my friend interjected and raised the question and  the witness answered that she had considered a range  of documents, including letters and articles which led  her to the conclusion not only that he was an employee  of the British Museum but also that these -- that  other authors had commented on the confidential memo  and the fact that it was likely prepared for cabinet.  Now, these documents in my submission were raised as a  result of an interjection and I think the witness and  counsel are entitled to demonstrate that the witness'  evidence there was supported by what she said.  :  Well, that's admitted, though.  Pardon me?  :  That's now admitted.  Yes.  Yes, it is.  Well, I have got a bunch of other  documents and I suppose they will all be admitted in  turn, but the point of the matter is that Dr. Lane has  referred to a large number of documents.  We tried to  cull them down and where they were challenged and in  my submission we are entitled to demonstrate that  those are documents which she relied on and referred  to.  :  Well, I think I am in the middle of a battle between  counsel here and that I tend to think is unnecessary.  I think I am going to resort to the policy of  protecting myself from this and say that if it's a  fresh document that hasn't been produced, and there is  no reason, no apparent reason to put it in, that it  may not be added to the collection now.  I think it's  too late for that.  I would rule otherwise if the  admission hadn't been made, but it has been made and I  think we'll delete the document.  I am going to keep  the half -- the first page because I have made my  notes about the agreement.  So I will just tear that  off, Mr. Rush.  Dr. Lane, I direct your attention to tab 43 in Volume  2, please.  Can you identify the document that's at  this tab?  Yes.  It's a letter dated May 7, 1850 and it's — 17480  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 THE COURT:  I am sorry, just a minute.  Letter -- what's the  2 date?  3 A   7th May 1850.  It's from James Douglas to James Murray  4 Yale, Y-a —  5 THE COURT:  James?  6 A   Yale, Y-a-l-e.  7 MR. RUSH:  8 Q   Who is he?  9 A   He was in charge of Fort Langley on the lower Fraser  10 River on the mainland at that time.  Hudson Bay  11 Company post.  12 Q   And the significance of the letter?  13 A   This letter was written a few days after James Douglas  14 had concluded the first of the Fort Victoria treaties  15 with the Indians for the session of lands and in the  16 southern part of Vancouver Island and as far as I know  17 this is the first written report by Douglas of what he  18 did at those treaty-making sessions.  And at the  19 second page of this letter Douglas wrote to Yale  20 beginning at the top of the page:  21  22 "In consequence of orders to that effect from  23 England, I have been lately engaged in buying out  24 the Indian right to the lands in this  25 neighbourhood and to the -- "  26  27 And the final word of the sentence I have trouble  28 reading.  It's either "westward" or "northward."  29  30 "It is rather a troublesome business but we are  31 getting on very well.  The price paid will come on  32 an average to about 15 shillings in goods to each  33 individual of the tribe.  I mention this  34 circumstance as your Indians will no doubt be  35 claiming payment for their lands also, but that  36 can be settled by and by."  37  38 Q   And this was addressed to Mr. Yale at what place?  39 A  At Fort Langley.  40 Q   Whereabouts was that located?  41 A   On the lower Fraser River on the mainland in what was  42 at that time not yet the mainland colony of B.C.  It  43 was at that time under the -- well, it was territory  44 to which the Hudson Bay Company had a trading licence.  45 Q   All right.  You made reference earlier to -- in tab 42  46 to the Fort Langley Journal.  Do you see that?  47 A   Yes. 17481  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  THE  COURT  2  MR.  RUSH:  3  THE  COURT  4  MR.  RUSH:  5  Q  6  A  7  Q  8  9  A  10  Q  11  12  13  14  A  15  Q  16  17  A  18  19  20  21  22  THE  COURT  23  MR.  RUSH:  24  A  25  Q  26  27  28  A  29  30  31  32  Q  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  :  Tab 42?  Yes.  The previous tab, my lord.  :  Oh, yes.  Is that the same Fort Langley that's --  I beg your pardon?  -- mentioned in the Fort Langley Journal that Mr.  Douglas refers to in his letter in tab 43?  Yes.  All right.  And I think you've also made reference to  Simpson's dispatch of -- which is tab 35, my lord.  I  would just like you to note that.  You do you have tab  35 there, Dr. Lane?  Yes, I do.  And that's Simpson's dispatch of 1829.  That talks  about Fort Langley, does it?  Yes.  At the second page in that tab, the first page  being the cover sheet of the title page of the item.  The second page in the tab on the right-hand side,  page 43, of the printed text with Fort Langley at the  top of the page.  :  Yes.  You read that passage to me.  That was --  Yes.  All right. Now, my question is is that so far as you  are aware the same Fort Langley that's being referred  to in the letter of Douglas to Yale?  Well, this earlier dispatch is at 1828 and the second  letter is at 1850 and Fort Langley was moved in its  location slightly, but we are still in the same  general area and it's still the same Fort Langley.  All right.  Thank you.  All right.  I'm going to hand  up another tab.  See what the fate of this is.  It's  relating to tab 74, my lord, and Dr. Lane -- I will  hand these up.  Will you please turn to tab 74.  Now,  I am going to ask that this document be added to  the -- there is a divider and I am going to ask that  the document be added as part of tab 74.  My friend  Mr. Goldie interjected about the Sebright Green  letter, you may recall this, my lord, and then your  lordship directed that if it was available that we  should produce it.  The Trutch report that's contained  as a memorandum in tab 74 makes reference to the  Sebright Green letter and what we have done is here  provided the letter as your lordship requested.  So Dr. Lane, if you look at this letter, can you  identify this for us, please?  Identify the source and 17482  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH  Q  A  Q  A  Q  A  Q  A  the letter, if you will.  THE COURT:  Where is this Sebright?  Oh, yes, I see.  It ends on  page 193.  Yes.  It's taken from a volume and we've provided a  cover page, an index.  Dr. Lane, do you see the volume?  Can you tell us what  that is, please, "The Colonial Intelligencer and  Aborigines' Friend"?  Yes.  I have never seen or handled an original copy of  this, but my understanding is that it was a  publication of the Aborigines' Protection Society in  England.  And the letter of Mr. Sebright Green is at 191?  Yes.  And in review of this letter, can you tell us if the  letter says anything about Mr. Sebright Green?  Yes.  Himself?  It does.  He begins the letter by saying:  "In the absence of any definite information  respecting the Aborigines' Protection Society, of  which I am informed you are the Secretary, I write  to ask you whether your Society can be induced to  take up the cause of the Indians in this colony,  who stand deplorably in need of assistance."  I take from this opening statement that Mr. Sebright  Green is not a member of the Aborigines' Protection  Society.  Q   And can you direct us to anything in this letter that  would indicate what his vocation was?  A   Yes.  He says later in the letter what his profession  is and what he's been doing on Vancouver Island.  Beginning at second full paragraph:  "I have myself been here over seven years, and  having originally settled in one of the country  districts, (Cowichan), in the very heart of Indian  tribes, and, after some months' experience there,  having been forced to throw up my land rather than  expose my wife to what I considered danger from  the proximity of Indians, burning under an acute  sense of unfair treatment on the part of the  Colonial Government, and having, since my return  to this city, for upwards of five years practised  my profession of attorney in the Supreme and other 17483  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 Courts of the colony, I have had ample  2 opportunities of observing the way in which  3 Indians are treated."  4  5 I take from this statement that he had been one of  6 those early settlers at Cowichan and that he was an  7 attorney practising in the City of Victoria, and I  8 know from other sources that I have consulted over the  9 years that both of those statements are true  10 statements.  They are verified by other information.  11 Q   Okay.  12 A   I have not found any evidence to suggest that he was  13 the editor of The Colonist.  I have seen a number of  14 letters that he wrote to the editor of The Colonist,  15 but he is characterized in Mr. Trutch's response as  16 being the editor of The Colonist and I have been  17 unable to find any documentation to support that  18 assertion.  19 Q   All right.  Now, Dr. Lane, if you'll just close up  20 your binder there.  Have you added that?  21 A   I will do.  22 Q   Just if you'll refer back, please, to the preceding  23 entry in the binder which is the memorandum on a  24 patent letter, treating of conditions -- condition of  25 the Indians on Vancouver Island, addressed to the  26 secretary of the Aborigines' Protection Society by Mr.  27 William Sebright Green.  Is the letter that you have  28 directed our attention to the one that is being  29 referred to in this memorandum signed by Joseph W.  30 Trutch?  31 A   Yes, it is.  32 Q   All right.  Now, Dr. Lane, I wanted to ask you  33 about -- for a moment about Mr. Trutch.  Can you give  34 us some background of Mr. Trutch from your reading of  35 the documents?  36 A  Mr. Trutch -- Mr. Joseph Trutch came out from England,  37 I don't recall the exact date.  I believe sometime in  38 the 1850s, to the Oregon territory.  I'm speaking of  39 the Oregon territory south of the 49th Parallel.  And  40 was engaged there for some time before he came north  41 to British Columbia.  He arrived in British Columbia,  42 I believe, in 1859 and pursued his profession.  He was  43 trained as a civil engineer, I believe, and was  44 engaged in that profession, and in 1864 James Douglas  45 recommended him for a position with the Department of  46 Lands and Works, apparently based on Douglas' opinion  47 that he was a competent engineer, surveyor.  His 17484  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  2  3  Q  4  A  5  Q  6  A  7  Q  8  9  10  A  11  Q  12  13  14  15  A  16  Q  17  18  19  A  20  Q  21  22  23  24  25  26  A  27  Q  28  A  29  Q  30  A  31  32  33  Q  34  A  35  Q  36  A  37  38  39  40  41  Q  42  THE COURT  43  A  44  45  THE COURT  46  A  47  MR. RUSH:  brother John was also a surveyor.  John Trutch.  They  both eventually came from Oregon up to here.  All right.  Thank you.  That is from the American territory.  Yes.  To the British territory.  Now, would you please place Volume 1 in front of Dr.  Lane, please.  Do you have Volume 1 in front of you,  Dr. Lane?  Yes.  If you will turn to tab five and will you just confirm  for me that tab five are the letters patent September  2, 1858 appointing James Douglas governor in and over  the colony of British Columbia and its dependencies?  Yes.  And tab 6, please, is the Royal Order of September 2,  1858 to provide for the administration of justice in  the said colony?  Yes.  All right.  And I have asked you to review the tabs  contained in this volume 8 through 14 and I would  ask -- and you can make reference to the index, Dr.  Lane, if need be, but I would ask you to confirm for  me that these are laws relating to land in the  mainland colony of British Columbia.  Excuse me --  Yes.  — Mr. Rush.  I am sorry?  I was just examining the pages that I have in this  volume for the previous tab that you just asked me  about.  Which tab number, please?  Tab number six.  Yes.  And I see that the -- there are two pages.  The order  providing for the administration of justice in said  colony begins on the second page but doesn't finish.  The entire item which is in that tab is the Royal Sign  Manual.  Yes.  That's the second item on page nine.  :  You say it's not complete?  Well, it's complete, but the one that begins at the  second half of the second page is not complete here.  :  The Sign —  That was the one that you I think asked me about. 17485  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 Q   I had asked you about the previous one.  2 A   I am sorry.  3 Q   But I am grateful for you drawing my attention to the  4 second of the two.  May I direct your attention to tab  5 7?  6 A   Yes.  7 Q   And this is a Proclamation of January 18, 1861.  I am  8 sorry.  An Act to provide for the government of  9 British Columbia August 2, 1858?  10 A   Correct.  11 Q   All right.  Now, you've reviewed, have you, Dr. Lane,  12 tabs 8 through 14?  13 A   Yes, I have.  14 Q   And are these laws relating to land in the mainland  15 colony of British Columbia?  16 MR. GOLDIE:  Well, they speak for themselves, my lord.  They are  17 all public documents.  18 THE COURT:  Well, yes, I suspect that's right.  But —  19 MR. RUSH:  20 Q   Well, I am happy to just identify them, my lord.  I  21 agree that they are public documents.  22 A   Yes.  23 Q   And they do speak for themselves on this case.  2 4 THE COURT:  Yes.  25 MR. RUSH:  My lord, just if you will review the index with me.  26 Tabs 8 to 14 are land laws dealing with the mainland  27 colony.  Tab 15 is an Act for the Union of the Colony  28 of Vancouver Island with the Colony of British  29 Columbia.  30 Q   And if you will just run through the index with me,  31 Dr. Lane.  Tab 16 to 18 are lands -- excuse me, laws  32 in relation to land in the United Colony of Vancouver  33 Island in British Columbia.  19, tab 19 are the terms  34 of the union.  35 THE COURT:  With Canada?  36 MR. RUSH:  Yes.  Tab 20 is the Law and Equity Act of 1879,  37 Province of British Columbia.  38 MR. GOLDIE:  What year?  3 9 THE COURT:  187 9.  40 MR. GOLDIE:  The tab I have is 1979.  I guess it's the same  41 thing.  42 MR. RUSH:  I am sorry.  It is 1979.  It's a mis —  43 THE COURT:  It's 1979?  44 MR. RUSH:  Yes.  Tabs 21 to 31, my lord, are laws in relation to  45 the Mainland Colony, laws relating to land in the  46 Mainland Colony.  And tabs 32 and 33 relate to the  47 United Colony.  And 34 is the Federal Dominion Lands 17486  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  2  MR.  GOLDIE  3  MR.  RUSH:  4  5  THE  COURT:  6  MR.  RUSH:  7  Q  8  9  10  A  11  Q  12  i  13  A  14  Q  15  16  Q  17  18  A  19  Q  20  A  21  22  ]  23  1  24  1  25  26  27  28  29  1  30  Q  31  32  A  33  34  35  Q  36  37  MR.  GOLDIE  38  39  MR.  RUSH:  40  41  42  43  44  45  46  THE  COURT:  47  Act, 1906.  :  That's from the Revised Statutes of 1906?  That's what I said.  I didn't say it was Revised  Statutes, but I can --  All right.  Now, Dr. Lane, would you turn, please, to tab 19 of  this volume.  These are identified as the Terms of  Union of 1871 with Canada?  Yes.  And did the Terms of Union contain a clause or clauses  dealing with Indians or Indians lands?  Yes.  Clause 13.  Clause 13, my lord, is located at page 284 at the  bottom.  Dr. Lane, have you reviewed documents leading to the  Terms of Union?  Yes.  And what kind of documents did you review?  I've reviewed instructions sent to Governor Musgrave,  correspondence of an official nature from Governor  Musgrave to others in the Government of the United  Colony; debates in the Victoria Legislature and the  Ottawa House of Commons about the terms of Union; the  proposed terms of Union; contemporary newspaper  accounts about the upcoming terms of Union and diaries  and personal correspondence of some of the figures  that were involved from British Columbia and from  Ottawa in respect of the proposed Terms of Union.  Do those documents deal with the question of Imperial  policy regarding Native title in British Columbia?  I found no mention in any of the materials that I  reviewed that addresses the question of Indian title  in British Columbia.  Is there any indication in the documentary record in  the change of Imperial policy?  :  I object to that, my lord.  That's a matter of  judgment and argument.  Not only, my lord.  I think it's a question of  whether or not present in the review of the documents  that she undertook whether there is an indication of  such an alteration or adjustment or a change in the  policy.  I think it's a question of -- certainly of  argument and I think it's also a question of what her  review indicated.  Well, what she is saying is that she saw nothing in  the documents she reviewed that she regarded as a 17487  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 mention of Imperial policy.  2 MR. GOLDIE:  Yes.  3 THE COURT:  I see nothing wrong with that.  4 MR. RUSH:  That's correct.  And now I'm asking her further  5 whether those documents which she reviewed indicated  6 any change in the Imperial policy.  7 MR. GOLDIE:  Well, my lord.  8 THE COURT:  But she didn't see anything related to it.  9 MR. GOLDIE:  Well, my lord, she didn't see anything.  Yes.  10 THE COURT:  What were the documents you mentioned?  You said  11 instructions, correspondence, newspaper?  12 A   I looked at both official and unofficial documents.  13 Some of them published, some of them unpublished.  14 Included were the instructions to Governor Musgrave,  15 Governor Musgrave's relaying of his instruction or  16 explanation of his instructions to other people in the  17 United Colony Government, House of Commons debates  18 about the terms proposed Term of Union.  19 THGE COURT:  There must be a time frame on this?  20 A  And diaries.  Yes, I am speaking about 1870 and 1871,  21 up until the time the terms that we have at tab 19  22 were settled on.  I have looked at drafts.  23 THE COURT:  Prior to the Terms of Union?  24 A   That's right.  The process in the roughly 12 months  25 previous in which the finalized version of the Terms  26 was arrived at.  27 THE COURT:  All right.  28 A   Including prior drafts.  2 9 MR. RUSH:  30 Q   All right.  Thank you, Dr. Lane.  Could you place  31 Volume 3, please, in front of the witness.  I am going  32 to ask that another letter be inserted in this tab  33 after the letter that's contained in the tab as a  34 whole, and I would like the blue divider, the  35 typescript and the letter from Robinson to Tomlinson  36 of February 29, 1884 to be inserted as part of the  37 tab.  This letter was mentioned by Dr. Lane in the  38 evidence given by her on the last occasion before the  39 court.  It is a reply, as I understand it, to the  40 letter of Tomlinson to the Chief Commissioner of Lands  41 and Works then dated February 27, 1884.  42 MR. GOLDIE: I have no objection, my lord.  This is a disclosed  4 3 document.  44 THE COURT:  Yes.  All right.  It will be added back at tab 99.  45 A   There is two 99s in this book.  46 MR. GOLDIE:  Yes.  47 MR. RUSH:  It's the first one. 17488  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  THE  COURT  2  3  MR.  RUSH:  4  THE  COURT  5  MR.  RUSH:  6  Q  7  8  9  A  10  11  12  13  14  THE  COURT  15  16  MR.  RUSH:  17  18  THE  COURT  19  MR.  RUSH:  20  THE  COURT  21  MR.  RUSH:  22  23  24  25  THE  COURT  26  27  28  MR.  RUSH:  29  30  MR.  GOLDI  31  MR.  RUSH:  32  Q  33  34  A  35  36  37  MR.  RUSH:  38  39  40  41  42  43  THE  COURT  44  MR.  RUSH:  45  46  47  :  Oh.  It's the first one, is it?  Madam Registrar, I  only have one 99.  There should be two.  One is 99, the other is 199.  :  Yes.  Dr. Lane, at tab 99 of Volume 3 of this document book,  can you just identify for me your typescript and the  letter of Robson to Tomlinson?  Yes.  The typescript is my best effort to make a more  legible copy of the handwritten document which appears  right behind it and it's a letter from Robson, John  Robson, who was then Provincial Secretary, dated 29  February 1884 to the Reverend Robert Tomlinson.  :  Well, you have confused me as you never have before,  Mr. Rush.  I am glad to hear that for so many days of trial, my  lord.  :  We have been undone mechanically.  Well, my lord --  :  Yes.  All right.  -- it may be of some assistance that the next item  I'm going to refer the witness to is a number of  typescripts that she prepared and they will be  inserted in a number of the tabs.  : All right. I have a particularly contrary set of  rings in this particular binder that are constantly  coming apart on me.  We tried to do our best to get the bad ones to our  learn friends and the good ones to the court.  £:  I thought they had succeeded.  Now, Dr. Lane, can you confirm that this is Mr.  Robson's response to the Tomlinson letter?  Yes.  The Tomlinson letter is dated February 27, 1884  from Victoria and this is the response 29 February  1884 to that preceding letter.  All right.  Thank you.  Now, my lord, I responded to  your request to provide certain typescripts for  documents that were in the book that were difficult to  read and I have a set of them here which I don't  intend to ask you to insert into the book at this  point, but I --  :  All right.  These are indicated in the upper right-hand corner of  the document which tab they are inserted into and they  run from tab 102 of Volume 3 to 118 of Volume 3.  They -- I think there were two documents which are not 17489  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  RUSH:  COURT  RUSH:  Q  A  RUSH:  REGISTRAR  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  THE COURT  MR. RUSH:  Q  typescripted. They are indicated. And I just ask  that at a convenient time these be inserted in the  appropriate document.  They are all in Volume 3.  They are all in Volume 3 and they all run between 102  and 118 and they can just be inserted at the front of  the original -- or the copy of the original document  that's in the tab.  All right.  Thank you.  And perhaps Madam Registrar -- I can just ask Dr. Lane  to confirm that these are her typescripts.  Dr. Lane,  if you will just review those.  Would you confirm for  me that these are typescripts prepared by you?  Yes, they are.  Thank you.  They are going in Volume 2?  No.  Volume 3.  For 102 to 108?  102 through to 118.  Oh.  And there should be a number in the upper right-hand  corner.  Yes, there is.  Yes.  Thank you.  All right.  I will move on to the next item then, my  lord, and they can be inserted at a convenient time.  Well, put them in the front of the book, Madam  Registrar.  MR.  THE  The next item in Volume 3 is tab 123, my lord, and I  would like to direct your attention to that.  And at  tab 123 is an illegible copy of a letter from -- or  excuse me, a memorandum of June 16, 1910 from Newcombe  to Laurier.  And I want to pass up to your lordship a  legible copy of this letter -- excuse me, memorandum,  and as well a document requested to be provided by  your lordship, and that is the ten questions for  reference to the Supreme Court of Canada that are  referred to in Newcombe's memorandum and I am also  providing a copy of the Laurier to Newcombe response  to the memorandum which is behind the blue divider.  So if I may just pass these up to your lordship.  GOLDIE:  I point out, my lord, that I think there is a  legible transcript or typescript at tab 149 of Volume  3.  COURT:  Yes.  All right.  Well, you can't have too many  copies of the documents. 17490  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  MR.  GOLDI  2  MR.  RUSH:  3  MR.  GOLDI  4  5  MR.  RUSH:  6  7  THE  COURT  8  MR.  RUSH:  9  Q  10  11  12  A  13  Q  14  A  15  16  Q  17  A  18  Q  19  THE  COURT  20  21  MR.  RUSH:  22  THE  COURT  23  MR.  RUSH:  24  Q  25  26  27  28  29  A  30  31  Q  32  33  34  35  36  37  A  38  Q  39  40  41  A  42  43  44  45  46  47  H:  No.  So I would --  £:  Mr. Newcombe is being memorialized in a way he  didn't dream of.  I would ask that you take out the Newcombe letter,  the one that's illegible, and insert this one.  :  Yes.  All right.  Now, Dr. Lane, you have the letter, the Newcombe  letter, together with the ten questions in tab 123 of  Volume 3?  Yes, I have.  All right.  Just --  By letter you refer to the memorandum from the prime  minister?  Yes.  I am sorry.  I do refer to the memorandum.  Yes.  The Newcombe memorandum.  :  I haven't found the ten questions yet.  Oh, yes, I  have.  They are followed right along.  :  Yes.  Thank you.  The Newcombe memorandum refers to the questions that  were drafted for a constitutional reference to the  Supreme Court of Canada.  I just ask you if the  questions that are behind the last page of the  memorandum are those questions?  Yes.  And then are referred to in the text on the  first page as being attached to the memorandum.  And in your testimony you drew our -- of last day you  drew our attention to the fact that Premier McBride of  the Province of the day refused to have the three of  the questions submitted for reference to the Supreme  Court of Canada.  Can you identify which of those  questions those were?  Yes.  They are the first three questions.  And I've also included here, Dr. Lane, a copy behind  the blue divider which would be the last document in  line.  Can you just identify that for me?  Yes.  This is a copy of the response of -- excuse me.  No.  This is a response by Laurier to Newcombe after  he receives the memorandum that was prepared for him  by Newcombe.  It's a response to the 16th June  memorandum and it's dated 21 June Ottawa, 21 June  1910: 17491  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 "My dear Newcombe.  I have yours of the 16th  2 instant in the matter of the British Columbia  3 Indian titles.  I cannot understand why McBride  4 should refuse to have the first three questions  5 determined by the Judicial authorities.  They seem  6 to be absolutely material.  I fail to see what  7 McBride can propose, but we must wait.  In the  8 meantime, I agree with you that we cannot recede  9 from the position which we have taken."  10  11 Q   All right.  Thank you.  Now, Dr. Lane, may I direct  12 you to tab 151.  This is the memorandum of agreement  13 establishing the Royal Commission?  14 A   Yes.  15 Q   My lord, at the end of my examination of Dr. Lane  16 about this memorandum there was a question as to who  17 the commissioners were on the Royal Commission and as  18 well who they represented.  And I have a tab here that  19 I would ask you to insert it after the memorandum  20 which is the introduction of the report to the report  21 of the Royal Commission on Indian affairs for the  22 Province of British Columbia, which simply outlines  23 who the people are.  24 Now, Dr. Lane, can you confirm for me that the  25 extract that I've handed up is the introduction to the  26 report of the Royal Commission?  27 A   Yes.  These are taken from the first few pages of  28 Volume 1 of the report which was published in 1916.  29 Q   And the recitation clause, which is clause number  30 three on page 8, that contains the names of the  31 commissioners?  32 A   Yes.  33 MR. GOLDIE:  Well, my lord, I think — not that it's very  34 material, but there was a change of the chairman from  35 the original.  3 6    MR. RUSH:  37 Q   There is a second portion of the extract, Dr. Lane,  38 which is, I believe, beginning at page 12 over to 13.  39 Does that indicate a change in the composition of the  40 Commission?  41 A   Yes, it does.  42 THE COURT:  This is —  43 A  Well, initially there were four commissioners and that  44 is set out at pages eight and nine, two for the  45 Dominion, two representing the Province and they were  46 to choose a fifth to be the Chief Commissioner.  And  47 starting at page 12 and going to page 13 there is a 17492  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1 notice of a change.  Mr. White resigned and he was  2 replaced by Mr. Carmichael.  3 MR. RUSH:  4 Q   And who did Mr. Carmichael represent, as I think it  5 was this gentleman that we had some doubt about who he  6 represented?  7 A   Yes.  He represented the Dominion Government.  8 Q   Okay.  Now, my lord, in her testimony of last day, Dr.  9 Lane made mention of the testimony given by Indian  10 people before the Royal Commission and she stated that  11 comments similar to those made by Commissioner  12 Carmichael to the Kitwanga band to which she made  13 reference to her evidence to the effect that the  14 Commission cannot deal with the larger question of  15 aboriginal title were made by that commissioner and  16 other commissioners at hearings with other Indians in  17 the Babine agency.  And I simply wish to direct the  18 witness' attention to the passages in Dr. Galois'  19 document book, which is document book number 6 of  20 tab -- at tab 380, and I'll simply direct her  21 attention to those.  Thank you, Madam Registrar.  22 Could you place Volume 6 of Dr. Galois' document books  23 before Dr. Lane.  24 THE COURT:  Is there any place in Dr. Lane's collection where  25 this should appear?  26 MR. RUSH:  Yes, my lord.  It should appear just prior at -- at  27 tab 154.  Dr. Lane made reference of the Babine Band  28 agency prior to her testimony regarding the Nass  29 agency.  There is a transcript of the hearings before  30 the Royal Commission in the Nass agency in 1915.  31 THE COURT:  Yes.  32 MR. RUSH:  And that was a different agency than the Gitksan and  33 Wet'suwet'en the people appear or were part of at the  34 time.  35 Q   Now, Dr. Lane, I'm referring you to tab 380 in this,  36 and I think you will confirmed for us already that tab  37 380 is the transcript of the proceedings before the  38 Royal Commission in the Babine agency?  39 A   That's correct.  40 Q   And in the upper right-hand corner there are  41 handwritten numbers, and although they are vague I  42 wonder if you would turn to page numbered 42 and that  43 should be in the upper right-hand corner.  44 A   Yes.  45 Q   And this is the transcript of the hearing of the  46 Getanmax band on Wednesday, April 21, 1915?  47 A   Yes. 17493  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  Q  2  3  4  5  6  THE COURT  7  MR. RUSH:  8  9  THE COURT  10  A  11  MR. RUSH:  12  Q  13  14  A  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  Q  30  A  31  32  33  34  Q  35  A  36  Q  37  A  38  39  40  41  42  43  44  45  46  47  And at page 42 would you -- is there there contained a  reference similar to the kind that you drew his  lordship to in your evidence of last day?  If you  could just direct his lordship's attention to that  portion of the transcript, if there is such a portion.  :  Well, Mr. Galois read all this to me.  Yes.  I don't intend to have it read.  I simply wish  that -- this is a for a different purpose, my lord.  :  All right.  Yes.  And what would you direct your attention to there, Dr.  Lane?  I am not asking you to read it.  Well, this is another instance in which the Indians  are declining to cooperate with the Royal Commission  and answer questions, because they have been told that  the Commission will not deal with the aboriginal title  issue.  Is not empowered to do so.  And Mr.  Commissioner Carmichael, beginning at the bottom of  the previous page and carrying on here, explains that  they don't have the power to deal with the larger  issue, and Chief Holland then responds and says:  "We could give you all kinds of answers if we made  our petition that way, but we did not make our  petition for reservations at all."  And —  All right.  -- declines to answer questions since the  commissioners say they can only set out reserves.  They can't deal with the title issue.  And then the  chairman addresses the Indians.  And that's in the middle of the page at 42?  Yes.  All right.  And he assures them that they can cooperate.  He says:  "We quite understand the view that you take.  We  think, though, that you have made a great mistake,  because if we were in a position to give the  Indians here more reserves that would not hurt  them in the claim that the Indians are making.  If  we gave them an additional one thousand acres for  their reserve it would not hurt them in still  holding to the claim that they have." 17494  B. Lane (for Plaintiffs)  In Chief by Mr. Rush  1  Q  2  3  4  5  A  6  Q  7  8  9  10  A  11  12  13  14  15  16  17  Q  18  19  20  21  A  22  Q  23  24  25  A  26  27  28  29  30  THE COURT  31  A  32  THE COURT  33  MR. RUSH:  34  35  36  37  38  39  40  41  42  43  44  45  46  47  All right.  Dr. Lane, in the same transcript would you  turn to what appears to be page 49.  And this, Dr.  Lane, is the meeting with the Glen Vowell band of  April 23, 1915?  Yes.  The comments on pages 48 and 49, would you just review  those to confirm if they are also comments of the kind  similar to the ones that you referred to in your  evidence of last day?  Yes.  The chairman again explains, beginning at the  bottom of page 48 and carrying over for quite some  time on page 49, that the aboriginal title issue is  going to be dealt with by the courts, not by the Royal  Commission, and that cooperation with the Royal  Commission will not in any way jeopardize the Indian  claim on the other matter.  All right.  And finally, Dr. Lane, can you -- can you  turn to page 73 handwritten in the upper right-hand  corner and this is the meeting with the Kuldo band or  tribe of Indians at Old Hazelton July 13, 1915?  Yes.  And I would ask you again if these -- this transcript  contains references of a similar kind to the one that  you made reference to on pages 73 and 74?  Yes.  Again, the chairman assures the Indians that  they understand about the aboriginal title issue and  that this is going to go before the Exchequer Court  and can be taken to the Privy Council.  You have no --  you need have no fear.  :  It's the same type of comment?  Same thing.  :  Can we take the morning adjournment now, Mr. Rush?  Thank you.  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Laara Yardley, Official Reporter,  United Reporting Service Ltd. 17495  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  A  Q  A  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  REGISTRAR:  Order in court.  COURT:  Thank you, Mr. Rush.  RUSH:  Q   Directing the witness' attention still in volume 3,  tab 95 which would be near the end.  Can you identify  this for us, Dr. Lane, please?  Yes.  This material is extracted from Hansard, 10th  day of August, 5th day of September, 1848, published  in London, 1848.  All right.  And the extracted pages are from discussions in the  House of Lords beginning Thursday, August 24, 1848, a  discussion about Vancouver's Island.  And my lord, it is difficult to see, but the fourth  page along is in the upper left-hand corner 471.  It  is the "Speech of Earl Grey" there, Dr. Lane?  Yes.  All right.  And the passage that you would have us  look at, is that contained on this page, the fourth  page along?  Yes, it is .  :  What page?  This is the fourth page of the tab in sequence.  :  All right.  And although it is difficult to read, the upper  left-hand corner indicates 471 handwritten.  You will  see in the middle of the column moving from left to  right, "Speech of Earl Grey"?  :  Yes.  A  Q  A  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  Q  A  All right.  And Earl Grey is talking about Vancouver's Island and  the role of government and the means by which  settlement can be effected on Vancouver's Island.  He  is discussing the present policy of government and  pointing out that at the bottom of the third column on  that page:  "If the government was going to meet the expense,  and had disposed of the land to settlers,  undoubtedly..."  and we move up to the top of the fourth column, the  right-hand column: 17496  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 "...the sale of the land would have been the  2 proper course.  But if we do not choose to that  3 undertake that expense, the only course that  4 remains open to us is, to place some other  5 authority over the territory, to make them the  6 trustees of the duties of the Government, and to  7 make them a grant of the land."  8  9 And I draw your attention to this because this is the  10 original language of Earl Grey that is referred to and  11 quoted in the item from Ellice to Labouchere that we  12 spoke about last time I was testifying.  13 Q   That item is at tab 198 for your reference, my lord.  14 Dr. Lane, would you just identify the entry at tab 196  15 next following?  16 A   Yes.  That is also from Hansard, 12th day of June to  17 the 6th day of July, 1949, again published in  18 London -- 1849, excuse me.  It is a continuation of  19 the discussions about Vancouver's Island and the  20 policy of the --  21 Q   In the House of Commons?  22 A   Of having the Hudson's Bay Company --  23 Q   That's in the House of Commons?  24 A   Yes, it is.  25 Q   Thank you.  I don't intend to refer further to the  26 that.  My lord, the next references I will direct the  27 witness to are contained in volume 4 which pertain to  28 the Bulkley Valley documents.  I would first direct  29 your lordship's attention to tab 8.  This is a  30 typescript of a newspaper article in the Vancouver  31 Daily Province of January 7, 1903.  This was -- the  32 question of the actual article was raised during the  33 evidence.  I have a photocopy for those who can read  34 it.  I would ask simply that it be placed in after the  35 typescript.  And, Dr. Lane, can you confirm for us  36 that the typescript at tab 8 of volume 4 is a  37 typescript of the article that's contained in the  38 Vancouver Daily Province which I have since now handed  39 up to his lordship?  40 A   Yes, it is.  41 Q   Thank you.  Now, I just ask you, please, to turn back  42 to tab 7.  My lord, I would like to -- there was a  43 question about the number of pages that were contained  44 in tab 7.  Dr. Lane, I would ask you if you can  45 confirm that pages 1 to 5 setting out the register of  46 the script for the Cassiar District are the complete  47 number of pages for this entry? 17497  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1  A  2  MR.  RUSH:  3  4  5  THE  COURT  6  7  MR.  RUSH:  8  9  10  THE  COURT  11  MR.  RUSH:  12  Q  13  14  15  16  17  18  A  19  Q  20  21  22  A  23  Q  24  A  25  Q  26  27  28  A  29  Q  30  A  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  That's correct.  My lord, page 41 I think we agreed was placed in  there by mistake.  I just ask you to take that out.  It was page 41 of the previous tab.  :  We dealt with that before.  It belonged in the coast  section --  I don't think that we had confirmed at that point  that there were five pages for the Cassiar District  tab.  :  All right.  Now, I want to refer to tab 7, my lord.  And last day,  Dr. Lane, a question arose about the use of the South  African War Grants Script of the Kispiox River.  I  think you indicated that a number of the scripts for  land were granted in the Kispiox Valley on the Kispiox  River?  Yes.  I want to ask you if since then you have prepared a  map indicating the placement of the script by lot  reference on the Kispiox River?  Yes, I have done.  All right.  These are some of them.  They may not be all.  I am going to hand this up to your lordship.  I would  ask that this be placed at the back of tab 7.  Now, is  this the map that you prepared, Dr. Lane?  Yes.  And can you just explain what the map shows?  Yes.  The map shows outlined in red those lots which  were Crown granted to people using South African War  Grant Script to take up the land.  The ones that I  have outlined here are all on the Kispiox Rivers.  There are other places in the Kispiox Valley where  South African War Script was used to take up land, but  I have simply chosen some examples here on a part of  the Kispiox River upstream from the Indian Reserve  Number 3 because at several of these locations we had  specific correspondence references, letters,  discussing the fact that Indians were being  dispossessed from their fishing sites along the  Kispiox River in this area.  And these -- I should say  one thing, if you look at the top of the page the  first three lots that are all contiguous to one  another, the first two appear to border the Kispiox  River.  The third appears only to touch it at the  southwest quarter of the lot that is lot 424.  On this 1749?  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 drawing I don't know whether the river has altered its  2 course there or whether the original drawing with the  3 application was incorrect.  But the drawing that went  4 with the application for that land showed the river as  5 crossing the southwest corner of the lot itself.  6 Q   Dr. Lane, this is a photocopy from a larger map, is  7 it?  8 A   Yes.  9 Q   What's the map that this is a photocopy of, please?  10 A   I'm sorry, I don't have the map reference on the -- in  11 front of me here.  I can get that for you.  It is a  12 recent map, a current map, which I chose to display  13 the information on because the size of the map which  14 is very large was such that when I reduced and put it  15 on an eight and a half by eleven sheet which would fit  16 in the document book, the lot numbers were still quite  17 legible.  18 Q   All right.  19 A   I originally did this work on a 1914 pre-emption map.  20 The lot numbers in question here are the same as they  21 were at that time.  22 Q   The lot numbers that are shown on this map that is now  23 at the tail end of tab 7 are the same as the lot  24 numbers on the pre-emption map?  25 A   Yes.  2 6 Q   And how —  27 A  And this map, although I don't have the number of it  28 handy at this minute, is the map presently at use at  29 the Lands Department of the Province of British  30 Columbia in Victoria.  31 Q   And do these relate to the script that was granted as  32 shown in the Cassiar District at tab 7?  33 A   Yes, they do.  34 Q   And how many of these are there?  35 A   I think I plotted 10 on this map.  36 Q   And are there -- you have mentioned that there was a  37 correlation between -- in the case of some of these  38 script granted lots and the placement of Indian  39 fishing sites?  40 A   Yes.  41 Q   Are you aware of such a fishing site in relation to  42 the particular district lots that are shown on the  43 map?  44 A   Yes.  I would have to refer back to tab 7, I think, to  45 refresh my memory as to specific ones or to notes that  4 6 I have made.  47 Q   Can you refer to -- back to tab 7 to determine that? 17499  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 A   Yes, I believe so.  At least for one or two of them I  2 can.  3 Q   Yes.  Go ahead.  4 A   Yes, lot 294 which is one of that block of four that  5 make up a square in the middle of the map.  Lot 294,  6 if you turn to page 2 in tab 7, lot 294 is the first  7 one listed there.  The original scriptee was Mr.  8 Cooper, and the person who got the Crown grant was Mr.  9 McPhatter it says here at page two.  And when I  10 checked the Crown grant file, the information tallied  11 and that was one of the locations noted in one of  12 the -- one or more of the letters regarding the  13 problem of dispossession from Indian fishing sites.  14 It was cited, I believe, in surveyor Green's letter, I  15 believe.  16 Q   All right.  17 A  Among others.  There is another --  18 Q   Perhaps, Dr. Lane, I can direct your attention to  19 folio numbers 84 and 86 --  20 A   Yes.  21 Q   -- which deal with other quadrants of that square.  22 A   Yes.  Those were a couple pieces of script used by Mr.  23 McQueen of Vancouver in getting the Crown grant of two  24 of the adjacent lots there 295 and 296.  I may say,  25 however, that in examining the Crown grant file I  26 discovered no evidence that Mr. McQueen had ever been  27 up there.  But Mr. McPhatter was his agent and had  28 filed on Mr. McQueen's behalf.  Those lots were also  29 the subject of correspondence about Indian fishing  30 sites.  31 Q   Were there lots in the Kispiox Valley taken by  32 non-Indians by means other than a script grant?  33 A   Yes.  The ones that I have outlined here were all  34 taken with South African War Script.  These do not  35 reflect the entire use of script for taking land in  36 the valley.  I simply confined myself to the area of  37 Indian fishing areas on the river there.  Some of the  38 other intervening lots on the river as well as lots  39 elsewhere, of course, in the valley were taken through  40 pre-emption.  41 Q   Thank you, Dr. Lane.  If you would just insert that.  42 Now, my lord, I am going to hand up three tabs --  43 rather, sorry, six tabs.  I think there are two that  44 are empty here.  I would just ask that these be added  45 to the end of your volume.  This is the witness' copy.  46 All right.  Dr. Lane, would you just refer briefly to  47 tab 79 and just identify that for us, please. 17500  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 A   Yes.  These are a few pages extracted from writing by  2 doctor -- excuse me, Father Morice, transactions of  3 the Canadian Institute Session 1892-93.  The title is  4 "Notes:  Archaeological, Industrial, and Sociological  5 On The Western Denes" with an ethnographical sketch of  6 the same, 18 93.  7 MR. RUSH:  Most of this was extracts from -- that were entered  8 in the testimony of Dr. Mills.  9 MR. GOLDIE:  Is that Exhibit 949?  10 MR. RUSH:  11 Q   I don't know.  It could be.  I don't have the exhibit  12 number handy.  13 Dr. Lane, would you just turn to tab 80, please, and  14 identify this for us.  15 A   Yes.  These are a few pages extracted from a monograph  16 by Diamond Jenness, an anthropologist titled the  17 "Carrier Indians of the Bulkley River.  Their Social  18 and Religous Life".  19 Q   Okay.  And this was also exhibited in whole in Dr.  20 Mills' evidence.  Dr. Lane, what is the significance  21 of these two ethnographic works, please?  22 A   Yes.  Both of them contain pages which identify the  23 people that were being discussed, which particular  24 Indians were under discussion, indicate when the work  25 was done by the writer in each instance.  The first  26 one by Father Morice, pages 26 through 29, the first  27 few sheets identify who he is talking about, which  28 Indian groups.  And the subsequent pages are a  29 description of the houses, structures which were used  30 by the people of the Bulkley River, among others, at  31 their various seasonal locations.  32 Q   All right.  And the Jenness --  33 A   The Jenness item, the first page of preface indicates  34 when he did the field work on which this information  35 is based which was much before the publication date.  36 Field work was done in 1924, '25, and the subsequent  37 pages describe some of the territories of the various  38 clans, and specifically some of the territories around  39 the lakes in the Bulkley Valley that I believe I  40 referred to in my earlier testimony as having been  41 taken up by people using South African War Script.  42 Q   Okay.  Now, Dr. Lane, would you go to tab 81.  43 A   Yes.  44 Q   Would you identify that document.  45 A   Yes.  This is a 1902 publication of the Province of  46 British Columbia, Bureau of Provincial Information,  47 Bulletin Number 3.  It is entitled "Skeena River 17501  B. Lane (For Plaintiffs)  In chief by Mr. Rush  1 District and Bulkley Valley Settlement".  2 Q   And to what would you draw our attention to in this  3 document, please?  4 A  Well, there is a script of the agricultural potential,  5 the mining potential, the general characteristics for  6 settlement of the area in the Upper Skeena and the  7 Bulkley Valley based on a survey or a recent survey,  8 one done in the 1890's by Mr. Poudrier,  9 P-O-U-D-R-I-E-R.  The final page of this government  10 publication, page 14, contains a section entitled  11 "Bulkley Valley Colony".  It speaks about a  12 preliminary agreement which has been entered into for  13 the establishment of a Colony in the Bulkley Valley to  14 consist of 100 families and then sets out the  15 provisions.  And the concessions are proposed that  16 government make to the original 100 settlers --  17 Q   All right.  18 A   -- who would take up land in the valley under the  19 conditions that are set out there.  20 Q   This is 1902 you say?  21 A   1902.  22 Q   You made reference to the Poudrier document, did you?  23 A   Yes.  24 Q   I direct your attention to tab 82.  Can you identify  25 this for us?  26 A   Tab 82 is taken from the 1893 publication of the  27 Annual Report of the Department of Lands in which the  28 narrative account of the Poudrier survey is given of  29 the several townships that he surveyed in the Bulkley  30 Valley in 1829, although the report is dated January  31 1893.  It describes the previous season's work.  32 Q   All right.  Now, Dr. Lane, can you tell the court for  33 what period of time does the document indicate that  34 the records indicate that the script was used in  35 earlier?  36 A   Between 1901 and 1905.  37 Q   I want to just ask you to turn back now to tab 43.  38 A   I should perhaps add to my last answer, the script  39 lapsed in 1905.  The first act was passed in 1901.  40 Some of the Crown grants that were received through  41 the use of that script occurred later, after 1905.  42 Q   Yes.  I think you indicated that earlier.  43 A   Yes.  44 Q   Yes.  Thank you.  If you turn to tab 43, Dr. Lane.  45 A   Yes.  46 Q   This contains a letter apparently from Vowell to  47 Loring.  And, my lord, I have a typescript which I 17502  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  B. Lane (For Plaintiffs)  In chief by Mr. Rush  MR.  A  RUSH:  Lane, that  Are you  THE COURT  MR. RUSH:  Q  think would assist.  Can you confirm, Dr.  you prepared that typescript?  Yes, I did.  Now, I direct your attention to tab 46.  there at tab 46?  Yes.  In tab 46 you indicate that this is a memo to Ellice  from a Mr. Fulton which indicates that the indians  ought not to be allowed to pre-empt land as it would  be an admission that they had not sufficient lands in  the reserves.  My lord, I would like to produce to the  witness a document which I would like to add after  this memo which is identified as a letter of December  30th, 1909 from Renwick to Vowell.  I would like to  pass this up to your lordship.  Now, Dr. Lane, would  you turn to the letter, please.  Can you identify this  as a copy of a letter from Renwick to Vowell December  30th, 1909 in your typescript of that?  That's correct.  And this deals with one Charles Martin?  Yes.  Thank you.  Now, from your review of the records, are  you able to determine if there was a relationship  between the memorandum for the Honourable Price  Ellison and this subsequent letter?  Yes.  The application of Charles Martin was, I  believe, a Gitksan Indian to pre-empt land had been  before the department.  And the memorandum for Mr.  Ellison was prepared while that pre-emption request  was before them.  Mr. Vowell had been the Indian  superintendent who had been in conversation with  people at the lands office respecting these matters  and the decision -- the suggestion was made in the  memorandum as you read that it would be rather  stultifying the claim the province was making that the  Indians had more than enough land if they allowed  Indians to pre-empt.  The response in December 1st is  that:  "In view of the present status of Indian reserves  generally the Commissioner does not consider it  advisable to allow any further applications on  the part of Indians to pre-empt Crown Lands."  MR. RUSH:  All right.  Thank you.  Now, my lord  THE COURT:  Who is this addressed to?  A  Q  A  Q  A 17503  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  RUSH:  COURT  RUSH:  COURT  RUSH:  Q  Mr. Vowell.  It is Mr. Vowell, is it?  Yes.  You can see that from the copy of the original  letter.  Yes.  Who was the then Superintendent of Indian affairs in  Victoria, British Columbia, is that right, Doctor?  A   That's correct.  MR. RUSH:  Now, my lord, that completes my examination of Dr.  Lane, save for the fact that I believe there are a  couple of documents that we have typescripts for.  I  would like to be able to just add those, if I may,  when I get them.  Also there is one document, an Order  in Council which I have requested but have not yet  received a copy of.  And when I do, I think the  request was made by my friend that it be added to an  existing tab.  And subject to those two provisoes  which are merely, I think, housekeeping matters, I  will conclude my direct examination at this point.  THE COURT:  Thank you.  Are you going next, Mr. Goldie?  MR. GOLDIE:  Unless Ms. Koenigsberg wants to go.  THE COURT:  She seems to be yielding.  CROSS-EXAMINATION BY MR. GOLDIE:  Q   Dr. Lane, can you tell me whether the study of oral  history is one of the subjects in anthropology?  A   That's a study that some anthropologists engage in as  well as other people who are not anthropologists.  Q   But is it a recognized subject in the field of  anthropology?  A   I would say so.  MR. GOLDIE:  Thank you.  Now, in your evidence you made  reference to Captain Cook's instructions.  You  included a copy of those from a secondary source in  your Volume 2 at tab --  THE COURT:  Tab 2?  MR. GOLDIE:  Q Tab 2.  A Yes, I  Q   On page 2,  Do you have that before you?  do.  reference is made in the  the page in the sentence, and I quote:  halfway down  "Then proceed in as direct a course as you can to  the coast of New Albion."  There is a footnote to that by presumably the authors 17504  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 of this particular work to:  2  3 "Drake's name for the territory annexed by him on  4 the west coast of North America."  5  6 To your knowledge, were any instructions given Drake  7 with respect to his voyages?  8 A   I do not know.  9 Q   In tab 5 you have extracted some correspondence from  10 Cook's journals as edited by Professor Beaglehole.  At  11 page 306 you read to his lordship the first complete  12 paragraph beginning with the words "Here I must  13 observe..."  Do you see that?  14 A   Yes, I do.  15 Q   I direct your attention to the preceding paragraph.  16 And, in fact, the last sentence beginning with the  17 words "As soon as I heard of this..."  Do you see  18 that?  19 A   Yes.  20 THE COURT:  Sorry, where is that?  21 MR. GOLDIE:  It is the preceding paragraph, my lord.  It is the  22 last sentence.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  It begins with the words "As soon as I heard..."  2 5 THE COURT:  Yes.  26 MR. GOLDIE:  27 Q   Did you place that in the same context as the  28 paragraphs that you read?  29 A   Yes, I took that into account as well.  30 Q   Beg your pardon?  31 A   Yes, I took that into account as well.  32 Q   No.  My question was do you place it in the same  33 context?  34 A   Certainly.  35 Q   Thank you.  Cook's voyages were voyages of discovery,  36 I take it?  37 A   Yes.  38 Q   Now —  39 A  Well, exploration and discovery.  In this particular  40 account he was looking for a northwest passage.  41 Q   Could Volume 228 of the transcript be placed in front  42 of the witness, please, page 16693, my lord.  Lines 40  43 to 44 you refer to:  44  45 "...treaties made by Great Britain with various  46 native people in the eastern part of North  47 America in what is now Canada and the United 17505  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 States."  2  3 Do you see that?  4 A   Yes, I do.  5 Q   Could you tell me what treaties were made by Great  6 Britain with native peoples in what is now Canada and  7 what were you referring to there?  If you want to  8 provide me with a list, feel free to do so.  9 A   I would have to refer to notes.  10 Q   Yes.  11 A   Yes.  12 MR. RUSH:  I am referring only to treaties made by Great Britain  13 in the eastern part of North America in what is now  14 Canada.  You need not concern yourself with what is  15 now the United States.  16 THE COURT:  Well, there is bound to be difficulty with that, Mr.  17 Goldie.  Do you have a time or date cut-off in mind?  18 MR. GOLDIE:  No.  I just wanted to know what the witness was  19 referring to, my lord.  2 0 THE COURT:  Canada didn't have treaty-making power until the  21 Statute of Westminster.  22 MR. RUSH:  Well.  23 MR. GOLDIE:  Well, treaties in the international sense.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  But the witness' reference was to treaties made by  26 Great Britain in what is now Canada.  27 THE COURT:  All right.  Well, you don't have any trouble with  28 that, Dr. Lane?  29 THE WITNESS:  I think perhaps I didn't speak as clearly as I  30 should have in that that power was delegated to the  31 individual colonies in the early days.  Perhaps I  32 spoke loosely of Great Britain here.  The grantees of  33 the Crown to the colonies.  34 MR. GOLDIE:  35 Q   Well, then let me ask you what treaties you were  36 referring to made by colonies which became Canada?  37 A  Well, I would have to check.  38 Q   Yes.  All right.  Back to your Volume 2, and under tab  39 3, I note that you set out from I guess it is the same  40 source as the publication British Penetration Into The  41 Indian and Pacific Oceans.  You read to his lordship  42 from page 2 "The Instructions Of Richard Cadman  43 Etches, E-T-C-H-E-S, To Captain Nathaniel Portlock.  44 Who was Mr. Etches, please, assuming him to be the  45 author of the instructions?  46 A   I would have to refresh my memory by checking notes.  47 Q   I would ask you to do that, please. 17506  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Mh'm.  2 Q   I take it that this was a commercial venture?  3 A   Yes.  4 Q   Thank you.  I believe you testified and by reference  5 to tab 8 entitled "The Nootka Sound Controversy" by a  6 Dr. Manning of the war that almost came about between  7 Spain and England.  Captain Vancouver, George  8 Vancouver, was sent out to the implement the  9 resolution of that dispute, was he?  10 A   That was one of the things that he was to do.  11 Q   And one of the results of that, if I may put it that  12 way, was to restore English traders to their factors?  13 A   I don't know that that was as a result because I don't  14 know without checking whether there were, in fact, any  15 English traders there at the time.  16 Q   Did you consider Captain Vancouver's instructions when  17 you were determining the contextual documents that you  18 wished the court to consider?  19 A   Yes.  2 0 Q   I don't see them in your document book.  You excluded  21 them, did you?  22 A   I didn't find anything relevant in them.  23 Q   I see.  There is a reference to Indians, is there not?  24 A   Yes.  25 Q   And do you recall what that reference is?  26 A   Not without refreshing my memory.  27 Q   All right.  I'll come back to that in a minute.  28 Perhaps I ought to refer you to volume 229 of the your  29 evidence, page 16704.  You proceed to identify certain  30 documents which, as I understand it, you consider  31 significant in relation to the Oregon territory.  At  32 page 16704 at line 12, my friend directed you to tab 9  33 of your collection of documents, and that is extracts  34 from the a book by Mr. Richard Rush entitled "A  35 Residence At The Court Of London."  You went on to  36 explain the significance that you attach to this.  The  37 Hudson's Bay Company, I think you told the court, was  38 in occupation of the -- what was referred to in some  39 places as the Oregon territory by virtue of its  40 exclusive trading license; is that correct?  41 A   It's partly correct and partly not correct.  42 Q   Please make it wholly correct?  43 A   Tell me what time you are speaking about.  44 Q   Prior to 1846, at the time of these documents, Mr.  45 Rush's book is published in 1845.  But he is talking  46 about events which took place in the -- after the  47 United States acquired Spain's rights on the coast of 17507  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 North America, isn't that right?  2 A   That's correct.  3 Q   Yes.  Well, all right, does that time context assist  4 you?  5 A   I think your question to me was --  6 Q   The Hudson's Bay Company was in occupation of that  7 territory carrying on its business.  8 A   Hudson's Bay Company was carrying on business in parts  9 of that territory under license from the British  10 Crown.  11 Q   Yes.  Can you tell his lordship what period you  12 consider that that covers?  By that I am referring to  13 the little description you just gave me.  14 A   No.  I can't very easily because the Treaty of 1846  15 contained language which was a matter of dispute for a  16 number of years as to what prior rights the company  17 had still continued after 1846.  18 Q   They were mainly proprietary rights, weren't they?  19 A   They were rights to carry on trade.  20 Q   Well, prior to 1846, assuming that we take that as the  21 date upon which certain things changed, how far back  22 would you go in the description that you gave me in?  23 A   I don't remember the date of the original grant.  24 Q   All right.  Well, are we talking about the grant to  25 Rupert's Land, or are we talking about a statutory  26 license in the 1821, or what did you have in mind?  27 A   I believe I was not discussing the matters that you  28 are asking now.  29 Q   I see.  30 A   So if you ask me what I had in mind, I am a little bit  31 strained to answer.  32 Q   Yes.  Well, during the period down to 1846 which you  33 are discussing in your evidence here, did you find any  34 record of treaties entered into by the Hudson's Bay  35 Company with Indian tribes in the Oregon territory?  36 A   No.  I was not directing my attention specifically to  37 that matter, but I have never seen such.  38 Q   Or the record of any purchases of land in that area,  39 or indeed in any area by the Hudson's Bay Company?  40 A  Well, as I explained in my earlier testimony, at the  41 time that you are speaking about there was a dispute  42 between the United States and Britain as to  43 sovereignty over that area, and they had entered into  44 several agreements of joint occupation --  45 Q   Yes.  46 A   -- of the area.  So I would not expect to find  47 treaties being made or land purchases being made prior 1750?  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 to the time when the undivided sovereignty was  2 established.  3 Q   Yes.  Doctor, at page 16712 of volume 228.  Sorry,  4 volume 229.  In the course of providing the context of  5 a letter that Mr. Fitzgerald wrote to the Mr. Hawes,  6 you talk about various matters that were -- that you  7 considered to be significant in providing that  8 context.  Am I right in my understanding that the  9 Hudson's Bay Company had established Fort Victoria  10 some time before 1846?  11 A   They had established a post at what later became  12 called Fort Victoria prior to the 1846 treaty.  13 Q   Do you recall when that was?  14 A   Oh, I wouldn't trust my memory for the exact date.  It  15 was several years before in anticipation that a  16 boundary line would be drawn between British American  17 territory which would require a removal of their --  18 some of their operation which would then be south of  19 that line to a place north of it.  20 Q   And is it part of the context of the selection of  21 documents that you made that the initiative for the  22 establishment of the Vancouver's Island as a Colony  23 under the control of the Hudson's Bay Company came  24 from that company?  25 A  Would you repeat the question, please?  26 Q   I said is it part of the context of the collection of  27 documents which you have placed before his lordship  28 that the initiative for the establishment of the  29 Vancouver's Island as a Colony under the control of  30 the Hudson's Bay Company came from the Hudson's Bay  31 Company?  32 A   The Hudson's Bay Company, among several others, made  33 proposals for colonization of Vancouver's Island.  34 Q   Yes.  But my question is, is it significant in the  35 context that you perceive it, and in the context of  36 the collection of documents which you have made, that  37 at least part of the initiative was -- came from the  38 Hudson's Bay Company?  39 A  Well, the only significance is a fairly obvious one,  40 and that is with an establishment, and the only  41 establishment on the island, they were interested in  42 preserving their interests there.  43 MR. GOLDIE:  Now, I will come back to that in a minute.  But I  44 note at page 714, 16714, my lord, you referred in the  45 context of your evidence to a proclamation, a U.S.  46 proclamation of 1743.  47 THE COURT:  1783. 17509  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  1783, my lord.  2 THE COURT:  Yes.  3 THE WITNESS:  And where were you in the transcript?  4 MR. GOLDIE:  5 Q   16714.  The text of that is set out under tab 18 of  6 your Volume 2.  Now, the context of that proclamation  7 would include, would it not, the letter of George  8 Washington, General Washington of September 20, 1783?  9 A   I would have to see the document to know.  10 MR. GOLDIE:  Perhaps, my lord, we might adjourn, and I will have  11 that document.  12 THE COURT:  I'm sorry?  13 MR. GOLDIE:  I said perhaps we might adjourn now and I will have  14 that document after lunch.  15 THE COURT:  All right.  Is it useful to talk about hours?  Are  16 we going to be able to finish this witness in the  17 three days that we have available because I don't want  18 to be impossible in extending our sittings.  19 MR. GOLDIE:  As far as I'm concerned, I will be done quickly.  I  20 will be better able to give your lordship an estimate  21 in that regard this evening.  22 THE COURT:  Well, I will leave that to counsel to bring up if it  23 is necessary.  24 THE REGISTRAR:  Order in court.  Court stands adjourned to 2  25 o'clock.  2 6 (PROCEEDINGS ADJOURNED AT 12:30)  27  28  29 I hereby certify the foregoing to  30 be a true and accurate transcript  31 of the proceedings herein to the  32 best of my skill and ability.  33  34  35  36 LISA FRANKO, OFFICIAL REPORTER  37 UNITED REPORTING SERVICE LTD.  38  39  40  41  42  43  44  45  46  47 17510  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  Thank you, my lord.  My lord, I have two — I have  5 a volume of documents and a black binder, one copy for  6 the court and one copy for the witness.  And I wonder  7 if a number might be reserved at this point?  8 THE COURT:  Yes.  9 THE REGISTRAR:  1056.  10  11 (EXHIBIT 1056:  Reserved for document book put in by  12 Attorney General of Canada)  13  14 MR. GOLDIE:  And if one could be given to Dr. Lane.  15  16 CROSS-EXAMINATION BY MR. GOLDIE:  17 Q   Dr. Lane, under tab one I have placed Vancouver's  18 instructions and I just wanted to make sure that I  19 understood that which you referred to as being  20 irrelevant to your considerations.  And the -- because  21 we didn't identify that.  If you look under the tab  22 page Roman numeral 22, the first set of instructions  23 from the admiralty set out ending there, it's the last  24 paragraph on the left-hand column.  25 THE COURT:  Tab 22?  26 MR. GOLDIE:  Yes.  Tab one, my lord.  27 THE COURT:  Oh, tab one.  28 MR. GOLDIE:  It's Roman page 22.  The left hand of the  29 photograph should be at the upper left corner Roman 22  30 and the signatures Chatham, somebody, Hopkins, Hood  31 and Townsend.  Does your lordship have that?  32 THE COURT:  Yes.  33 MR. GOLDIE:  34 Q   Yes.  Is the last paragraph the one that you had in  35 mind when you said that yes, there were references to  36 Indians but that you did not consider it relevant?  37 A   I considered the -- I haven't read the additional  38 instructions.  I have just glanced quickly through the  39 first set of instructions.  40 Q   Yes.  41 A  And I considered this to be irrelevant because no  42 instructions were given as to the claiming of land or  43 taking possession of land on behalf of the Crown.  44 There are throughout this set of instructions  45 enjoinders to avoid giving offence to any other  46 European nations that may be settled, but simply to  47 bring back information respecting that.  And to avoid 17511  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 disturbing the Natives, and the last paragraph to  2 which you direct my attention speaks of making  3 presents to them and attempting to conciliate their  4 friendship and confidence.  But there is nothing in  5 these instructions relating to claims of the Crown to  6 territory here.  7 Q   You set out in your material --  8 A   Yes.  9 Q   -- instructions to Captain Portlock, is that correct?  10 A   Yes.  11 Q   And that was to establish or had as its object the  12 establishment of trading posts?  13 A   That's correct.  14 Q   On Vancouver Island?  15 A   That's correct.  16 Q   Is that your understanding?  17 A   Yes.  18 Q   And was not Captain Vancouver's mission to implement a  19 resolution of a dispute with Spain which involved the  20 restoration of those particular posts to the English  21 traders?  22 A   You asked me that question before and my answer now is  23 the same as it was then.  That was one of the tasks.  24 Q   All right.  Thank you.  All right.  Thank you.  Now,  25 in tab 21, not in that book, of your Volume 2, you set  26 out an excerpt from Fort Victoria letters' publication  27 of the Hudson's Bay Company.  Do you recall that?  28 A  Without seeing it in front of me, I don't recall what  29 you are referring to.  30 Q   Well, if you would just refresh your recollection by  31 looking at tab 21 of your Volume 2.  32 A   Tab 21?  33 Q   Yes.  34 A   Yes.  35 Q   Yes.  You extracted from that publication one of  36 Douglas' letters to Barclay, isn't that right?  37 A   That's correct.  38 Q   Yes.  The publication itself is a publication of the  39 Hudson's Bay Record Society as the facing page  40 indicates?  41 A   Yes.  42 Q   And you are familiar with it?  43 A   Yes.  44 Q   And you have read the foreword by Dr. Ormsby?  4 5 A   I have.  46 Q   Yes.  Under tab 2 of the binder that I have placed in  47 front of you I have set out Dr. Ormsby's foreword. 17512  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Did you consider that in making your selection of  2 documents for this particular case?  3 A   I have read the introduction many times.  4 Q   Yes.  5 A   I have selected the documents that I thought were  6 relevant --  7 Q   Yes.  8 A   -- to the opinion which I was addressing.  9 Q   Yes.  I said did you consider it?  10 A   Did I consider what?  11 Q   The introduction when making your selection?  12 A   The introduction sets out a great deal of information  13 which is not relevant to the task that I was  14 addressing.  15 Q   Yes.  16 A   So I have little difficulty answering your question.  17 Would you be more specific?  18 Q   Yes.  Did you or did you not consider it?  Was it a  19 source to which you went for whatever purpose?  20 A  Well, of course it was a source to which I went.  21 Q   Okay.  Thank you.  Now, you -- just before the  22 luncheon break, we discussed briefly the Proclamation  23 of 1783, the U.S. Proclamation?  24 A   I don't recall discussion.  You mentioned it.  25 Q   I see.  Yes.  All right.  And I suggested to you that  26 in the context of that Proclamation the letter of  27 George Washington of September 7, 1783 was  28 appropriate.  I am suggesting that to you now.  29 A   I said to you without looking at the letter in  30 question I certainly don't recollect which George  31 Washington letter you may be referring to.  32 Q   Would you look under tab 3, please?  33 A   Yes.  34 THE COURT:  Of your book, Mr. Goldie?  35 MR. GOLDIE:  Yes, my lord.  36 A   Do you wish me to read this letter?  37 MR. GOLDIE:  38 Q   Well, have you ever seen it before?  39 A   Oh, I am sure I have.  40 Q   Well —  41 A   Yes.  42 Q   Does it refresh your recollection to enable to you  43 answer my question with a yes or no?  Have you seen it  44 before?  45 A   I have seen it before.  46 Q   Yes.  All right.  Is it not an appropriate context to  47 the Proclamation? 17513  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   It is one of a number of documents which is  2 appropriate to a context, yes.  3 Q   All right.  Thank you.  Now, tab 19 of your book you  4 drew his lordship's attention to an Act of the United  5 States Congress to establish the territorial  6 government of Oregon and you drew his attention  7 particularly to a proviso that made reference to  8 treaties between the United States and such Indians.  9 In the context of that word treaty, when did the U.S.  10 Congress put an end to treaty-making with Indian  11 tribes, can you recall?  12 A   I don't recall the exact date without refreshing my  13 memory.  14 Q   Well, if you would look under tab 4 of the binder that  15 I have placed in front of you.  16 A   Uh-huh.  17 Q   You will find an extract of an Act of the U.S.  18 Congress dated March 3, 1871 and that was an act for  19 making appropriations for current and contingent  20 expenses of the Indian department?  21 A   Yes.  That's the correct year.  22 Q   Yes.  So that the U.S. Congress put an end to the  23 treaty-making activity referred to in your tab 19 by  24 March 3, 1871, is my understanding correct?  25 A   Your understanding is partly correct and partly  2 6 incomplete.  27 Q   All right.  28 A  As you've stated the situation.  29 Q   Yes.  Let me put this question to you:  Is that Act of  30 1871 a part of the context of the U.S. history to  31 which you wished his lordship to give some regard to?  32 A   No.  I -- if you're referring to the 1848 reference to  33 a treaty in the Act setting up a provisional  34 government for Oregon, the two are only distantly  35 related.  36 Q   Yes.  Would you agree with me that it is part of the  37 context of the history of the United States in its  38 relationship with Indian tribes which I gather you  39 believed was relevant to this case?  40 A   The -- it is apart of a history which would be  41 misleading if I didn't amplify my answer.  42 Q   I see.  Well, you would prefer to leave it that it is  43 not part of the context to which is --  44 A   That's not what I said.  45 Q   Just a moment, please.  You would prefer to leave it  46 that it is not part of the context to which you wish  47 his lordship to pay attention? 17514  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1  A  2  Q  3  A  4  Q  5  6  7  A  8  Q  9  10  11  MR.  RUSH:  12  13  14  MR.  GOLDIE  15  MR.  RUSH:  16  MR.  GOLDIE  17  Q  18  19  A  20  Q  21  A  22  Q  23  i  24  25  26  A  27  Q  28  A  29  Q  30  31  32  THE  COURT:  33  MR.  GOLDIE  34  THE  COURT:  35  MR.  GOLDIE  36  THE  COURT:  37  MR.  GOLDIE  38  39  THE  COURT:  40  MR.  GOLDIE  41  Q  42  43  44  A  45  Q  46  A  47  Q  No.  I do not agree with that.  All right.  That's not my position.  All I wanted to know was the appropriateness of  putting in or the reason why you have put in one thing  and not another in the U.S. history?  I would be happy to explain that.  No, I do not want your explanation.  I want to know  why the document that relates to the treaty-making  powers of the United States of 1871 is not relevant.  That's not what the question was.  The question was  is it appropriate to the context and the witness said  I can answer this with an explanation.  :  Well, I am re-framing my question.  To allow for the explanation.  No.  I just want to know is that document relevant or  is it not relevant?  It is not relevant.  All right.  Thank you.  Now --  In the context of the matters being discussed.  That's what I was trying to get at.  Thank you very  much.  Now, at tab 2 0 of your document you put an  extract from a report of the Senate -- of a Senate  Committee, is that correct?  I am sorry, which book are you looking at?  Your Volume 3 -- or Volume 2, I should say.  Yes.  Now, could you confirm for me, please, that the  Proclamation that is referred to in the paragraph  preceding that which you read --  I am sorry, where are you, Mr. Goldie?  :  It's her tab 20, my lord.  Of which volume?  :  Of her Volume 2 we are dealing with now.  Yes.  Thank you.  Yes.  :  Page 13, the witness drew to your lordship's  attention the second to last paragraph.  Yes.  And I just wanted her to confirm for me that the  Proclamation of Congress to which reference is made in  the preceding paragraph, do you see that?  I am sorry, I am not with you.  Your tab 20.  Yes.  Page 13 of the report. 17515  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Thank you.  2 Q   And you read a paragraph to his lordship which is the  3 second to last one on that page.  4 A   The only full paragraph on that page?  5 Q   No.  6 A   No, there are two.  7 Q   It begins with the words "the principles relative to  8 such new discovery."  9 A   Thank you.  I have it.  10 Q   Yes.  And my question is:  Would you confirm or  11 correct my understanding that the words in the  12 preceding paragraph line one, "the Proclamation of  13 Congress" is the Proclamation of 1783?  14 A   Yes, it is.  15 Q   Thank you.  And the same may be taken with respect to  16 the reference in the preceding paragraph line three,  17 "in 1783 a Proclamation was issued by the American  18 Congress"?  19 A   Yes.  20 Q   Thank you.  Now, before I leave these documents  21 relating to the United States which you have placed  22 before his lordship, I wish to have some further  23 understanding of whether they are to be taken in the  24 context of the acquisition of Vancouver Island by the  25 Hudson's Bay Company in 1849 and first in general  26 terms would you agree that Douglas' knowledge of what  27 was transpiring in the Oregon territory after 1846 is  28 relevant to the context of what we're discussing here?  29 A   If we are discussing here a Proclamation in 1783, I  30 don't think that it is relevant.  31 Q   No.  I'm putting my question in a more broad fashion.  32 I'm putting the question to you in terms of the  33 acquisition of Vancouver's Island as a colony in 1849  34 and if I omitted to give you that date I do so now.  35 We are moving away from 1783.  Would you agree with me  36 that the context of that acquisition in the context of  37 that acquisition it is relevant, and I'm going to put  38 a number of things to you.  First, Douglas' knowledge  39 of what was going on in the Oregon territory after  40 1846?  41 A   You've said quite a bit there and I'm not certain that  42 I'm focused on exactly what your question is.  Could  43 you phrase the question to me so that I am sure what  44 it is I am responding to?  45 Q   Well, we are talking now about the Hudson's Bay  46 acquisition of Vancouver Island in 1849?  47 A   You are speaking of the grant in 1849? 17516  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes.  2 A   Yes.  3 Q   And I am going to put a number of things to you and  4 ask you if they are relevant in the context of that  5 acquisition.  Are you with me so far?  6 A   Yes.  7 Q   Yes.  Now, the first one is Douglas' knowledge of what  8 went on in the Oregon territory after 1846.  9 A  And your question is that knowledge relevant to the  10 grant which was given by the Crown to the Hudson Bay  11 Company in 184 9?  12 Q   Is it part of the context of that acquisition?  13 A   Certainly.  14 Q   All right.  And that knowledge would include the  15 nature of the relations with the Indian peoples in  16 that territory?  17 A   Yes.  18 Q   And those relations included a period of warfare, is  19 that your understanding?  20 A   Yes.  21 Q   Yes.  22 A  Well, I don't know.  You are making a broad question.  23 I don't know what period of warfare you are referring  24 to.  Perhaps you could make it more clear to me what  25 it is you are talking about.  26 Q   We are talking about between the period of 1846 to  27 1849.  28 A   Yes.  2 9 Q   Have you got that in your mind?  3 0 A   I have.  31 Q   All right.  Thank you.  Now, if -- and between in that  32 period --  33 A   Yes.  34 Q   -- there was Indian warfare in what became the  35 territory of Oregon?  36 A   There was certainly armed conflict between whites and  37 Indians, yes.  38 Q   And that was knowledge that Douglas obtained at the  39 time he was, shall I say, taking care of Fort  40 Victoria?  41 A   That knowledge was widespread.  42 Q   Yes.  43 A  And generally known.  44 Q   Yes.  And is the kind of conflict you refer to that  45 which is referred to by Dr. Ormsby in her introduction  46 under tab 2 at page Roman 23?  47 A  We are in the other book now? 17517  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   We are in the book of documents I handed to you.  I  2 think that's the one to your -- sitting beside you.  3 THE COURT:  Roman 23 did you say?  4 MR. GOLDIE:  23, my lord.  5 Q   And I'm referring to the last two paragraphs.  6 A  Well, I don't see any mention of Indians in the first  7 of those two paragraphs.  8 Q   No.  9 A   The second paragraph the answer is affirmative.  10 Q   I beg your pardon?  11 A   The answer is yes.  12 Q   Yes.  And you accept that that is part of Douglas'  13 knowledge?  14 A   Yes.  15 Q   Yes.  Thank you.  And do you accept that that is part  16 of the context of the acquisition of Vancouver's  17 Island by the Hudson's Bay Company or the grant that  18 was made in 184 9?  19 A  Well, now I'm having trouble with your question again.  20 This is part of the history of those years, but I  21 don't know that there is any direct relation between  22 the conflict that's being described here, the white  23 man incident and the granting of the land of  24 Vancouver's Island to the Hudson's Bay Company as  25 opposed to other parties that were proposing  26 settlement or colonization of the island.  27 Q   Well, if that's your -- if you don't see a context,  28 please say so.  All I want to do is --  29 A   Simply part of the history of those years.  But --  30 Q   But not part of the context?  31 A   No.  32 Q   All right.  Thank you.  It had -- would you accept the  33 proposition, however, that the experience in the  34 United States had some influence on Douglas with  35 respect to relations with the Indians and that that is  36 part of the context of what you're concerned with?  37 A  What is part of the context?  38 Q   Well, I thought that your purpose in bringing to his  39 lordship's attention a collection of documents was to  40 provide the context of a variety of things; one of  41 them was colonial policy, isn't that correct?  42 A   That's correct.  43 Q   All right.  And I believe you gave evidence that part  44 of the relevant context for that was the fact that Mr.  45 Douglas made certain arrangements with Indian tribes  46 on Vancouver Island?  You did give evidence to that  47 effect, did you not? 17518  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1  A  2  3  Q  4  A  '  5  6  Q  7  A  8  9  Q  10  A   ]  11  12  13  14  Q  15  A   ]  16  17  18  Q  19  A  20  Q  21  A  22  23  24  25  Q  26  A  27  28  29  Q  30  A  31  32  Q  33  34  i  35  36  A  37  Q  38  A  39  Q  40  41  42  43  A   '  44  45  MR. RUSH:  46  47  MR. GOLDIE  Yes.  But I think you are mixing several things up  that are unrelated.  Well, you let me --  Well, you are asking me what I relied on or what was  in my mind and I am trying to correct --  Yes.  Complete your answer.  I'm trying to correct any confusion that may exist  here.  Yes.  Mr. Douglas didn't dictate policy to the Crown as to  who they would give the grant of the island to.  Mr.  Douglas learned of the decision after it was made in  England.  Yes.  Mr. Douglas was aware of conditions south of the  border in the American territory in 1846, 1847, 1848,  and right through to 1850 and beyond.  Yes.  He didn't make his treaties until 1850.  Yes.  And I do not draw any direct connection between the  white man massacre, which is referred to in the  paragraph on the page to which you have directed me or  in the paragraph to which you have directed me.  Yes.  Or the Cayuse war to the arrangements which were made  with Indians at Fort Victoria with respect to land  sessions.  I will come to that.  Or to the granting of the Vancouver Island to the  Hudson Bay Company.  Yes.  All right.  I am going to refer you to tab 98 of  your Volume 3.  Let me relieve you of that for a  minute.  Do you have 98 of Volume 3, it's the first  98?  Yes, I do.  It begins, "Judge Matthew Begbie's bench book."  Yes.  Would you turn to the last part part of that, please.  I should say Helmcken's letter to McKay of November  30, 1888 which is under one of the blue binders there.  Do you recall that?  Well, I recall the letter.  I just don't know where it  is exactly until I find it.  It's after the last of the two dividers in exhibit --  well, Volume 3 tab 98. 17519  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   It's almost -- I think it's the last page, is it not?  2 A   I see it now.  Yes.  3 Q   Yes.  4 THE COURT:  The last page of the whole tab?  5 MR. GOLDIE:  Of the whole tab, yes.  Well, just before 99 should  6 be the handwritten transcript -- or not transcript,  7 but photograph of Helmcken's letter to McKay.  8 THE COURT:  No.  We're lost.  Just a moment, please.  We have  9 found it.  Miss Thomson found it.  Yes.  Thank you.  10 MR. GOLDIE:  11 Q   Would you look in the left-hand column, please, and  12 you with your knowledge can read this paragraph a  13 little better than I can, and read me the second  14 paragraph.  It looks as if it begins with the words "I  15 know Douglas."  16 A   Yes.  17 Q   Would you read that, please?  18 A  19 "I know Douglas was altogether averse to making  20 any treaty with the Indians similar to those of  21 the Americans."  22  23 Q   All right.  Thank you.  And now, I want to refer you  24 back to the book of documents that I placed before  25 you.  And under tab five, this is Professor  26 Hendrickson's typescript of Douglas' dispatch to the  27 then secretary of state for the colonial departments,  28 Sir William Molesworth.  The photograph of the  29 original document is under the pink divider at the  30 last of the tab.  And Hendrickson's typescript is at  31 the beginning.  And the part that I refer the witness  32 to is the second paragraph on page one and then the  33 last half of the third paragraph beginning with the  34 words "the latest accounts for Oregon" and then over  35 the page on page two, the third paragraph from the end  36 beginning with the words "I wish by exerting all our  37 influence and mitigating the horrors of the cruel  38 war."  My first question is:  You are familiar with  39 this dispatch?  40 A   Yes, I am.  41 Q   You did not consider it relevant to the assignment you  42 had here?  43 A   I wish you could be more specific.  The assignment  44 that I have here covers a very long time period and of  45 course I considered it relevant.  I read it.  I  46 considered it.  But if you ask me if it was relevant  47 to some particular aspect of the task I was 17520  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 addressing, I could answer you more directly.  2 Q   Well, perhaps we can agree on one thing.  You did not  3 include it in the collection of documents you brought  4 before his lordship's attention?  5 A   I did not, as I did not include many other such  6 documents.  7 Q   All right.  Now, when Mr. Douglas -- and I am now on  8 page two of the document, my lord.  I direct your  9 attention to the second complete sentence:  10  11 "It is I confess a difficult game to play but  12 the same course of policy was adopted with success  13 during the Cayuse war."  14  15 Would you agree with me that he is referring to the  16 war in 1847 which is referred to in Dr. Ormsby's  17 foreword?  18 A   I am sorry, I didn't catch where you were on the page  19 here.  20 Q   Paragraph one, two, three, four beginning with the  21 words "I wish by exerting all our influence."  Do you  22 see that?  23 A   Yes.  24 Q   Good.  Now, would you go down to the second to last  25 sentence beginning with the words "it is, I confess."  26 A   Yes.  27 Q   And the Cayuse war is one that occurred when?  28 A   It's the one that you were referring to, I believe.  29 Q   All right.  Thank you.  The -- over the page on page  30 three is a typescript of the colonial office minutes  31 which you have described to his lordship.  These --  32 MR. RUSH:  Is that page three, please?  33 MR. GOLDIE:  Yes.  Page three.  34 Q   I think the first minute is that of Mr. Blackwood whom  35 you described as a clerk?  36 A   Yes.  37 Q   And the next is Mr. Labouchere and at that time he  38 would be the parliamentary undersecretary of the  39 colonies?  No.  I am wrong in that.  Mr. John Ball  40 was.  Now, he minuted, or I should say the next minute  41 is that of Mr. Merivale, is that correct?  42 A   Yes.  43 Q   Addressed to Mr. Labouchere?  44 A   Correct.  45 Q   Yes.  Now, the next dispatch to which I wish to draw  46 your attention is under tab 6.  And that too is Mr. --  47 Professor Hendrickson's typescript.  Are you familiar 17521  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 with that dispatch?  Well, let me reframe my question,  2 Dr. Lane.  Did you consider it but as sufficiently  3 irrelevant to your assignment here so as not to  4 include it in the collection of documents that you  5 placed before his lordship?  6 A   Let me answer you this way:  I would consider that all  7 of the official dispatches touching on matters that I  8 was addressing are relevant.  There are some thousands  9 possibly of such dispatches for the time period that I  10 covered.  I attempted to select only those that were  11 most germane to the points that I was examining rather  12 than include volume after volume after volume of  13 paper.  14 Q   Uh-huh.  I do not recall any one that you selected  15 that makes reference to the affairs in the State of  16 Washington and Oregon.  17 A  Well, if you look at the date of this dispatch you  18 will notice that it's in 1856 and it deals with the  19 hostilities that were present at that time, '55 and  20 '56 and they went on for a few years afterward, and  21 the grant of Vancouver Island had been made in '49,  22 the Douglas treaty-making had begun in 1850.  These  23 matters in '55 and '56 I considered to be not relevant  24 to what took place in 1849 and 1850.  25 Q   Or to events on the mainland?  2 6 A  What events -- on what mainland?  27 Q   Well, the mainland of British Columbia.  2 8 A  And what events?  At what time?  29 Q   The events we're talking about, 19th of May 1856 is  30 the date of this dispatch.  You've explained you did  31 not consider them relevant to events on Vancouver  32 Island, and my question to you is or to events on the  33 mainland?  34 A  Well, excuse me.  I don't think I said they were not  35 relevant to events on Vancouver Island.  There was a  36 narrow strait of water separating Vancouver Island and  37 the mainland of what was by this time Washington  38 territory where war had broken out or hostilities,  39 however you want to term it, and of course that was  40 relevant.  Douglas sent ammunition.  He sent a boat  41 down.  He was involving the British interests on  42 Vancouver Island with the ongoing hostilities in Puget  43 Sound.  44 Q   As explained in these dispatches?  45 A  And in many other places.  46 Q   Yes.  47 A  And so in that sense of course it affected and was 17522  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 relevant to what was going on in Vancouver Island.  I  2 said it was not relevant to the matters we had been  3 discussing before, which was the grant of the island  4 and the treaty-making that's referred to in Mr. -- Dr.  5 Helmcken's letter that you just pointed me to.  I'm  6 having a great deal of difficulty with your wide scope  7 questions that don't tell me what it is you are  8 referring to.  9 Q   Well, we'll struggle along.  I want to refer you now  10 to the mainland.  Do you follow me?  11 A  Mainland B.C. or mainland U.S.?  12 Q   No.  The mainland of British Columbia.  13 A   Thank you.  14 Q   Yes.  And I would like you to turn under tab 7.  15 The -- you are familiar with the document from which  16 this is taken, papers relative to the affairs of  17 British Columbia?  18 A  Are you at tab 7?  19 Q   Yes.  Tab 7 of —  20 A   Yes.  21 Q   Yes.  22 A   Yes.  I am familiar with.  23 Q   You are familiar with those?  24 A   Yes.  25 Q   There was a return made to parliament over a certain  26 period of all dispatches to and from the governor and  27 the colonial office relating to the government of that  28 Province -- of that colony, is that right?  29 A   I'm not certain whether all dispatches were laid on  30 the table.  31 Q   I said relative to the governor of the colony.  32 A   Relative to the governor of the colony.  I am not  33 certain whether all such dispatches were laid on the  34 table.  35 Q   All right.  Just taking the ones that we find here,  36 though, you accept them as accurate copies of the  37 dispatches that were in fact passed between the  38 governor and the colonial office, do you?  39 A   I haven't compared the printed version with the  40 originals, although I may have seen some of the  41 originals.  But I assume that they are correct and  42 accurate transcriptions.  43 Q   In the first dispatch, which is that of Douglas to  44 Lytton of March 14, 1859, there occurs under paragraph  45 ten a reference to the plan followed by the government  46 of the United States in making Indian settlements  47 which appears to Mr. Douglas in many respects 17523  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 objectionable and he says that I wouldn't recommend  2 the system pursued by the founders of the Spanish  3 missions in California.  Is that in your opinion an  4 appropriate item to be taken in the context of what  5 happened in the mainland colony of British Columbia?  6 A  Well, I certainly considered this when I was doing my  7 research.  You understand, of course, that the system  8 pursued in the Spanish missions in California had  9 nothing to do with the policy of the United States in  10 dealing with Indians.  11 Q   He's just rejecting that also?  12 A   That's right.  He's making a -- a comment about that  13 as well.  When he is speaking about the plan followed  14 by the government of the United States in making  15 Indian settlement, he's speaking, of course, at this  16 time about the reservation system.  17 Q   Yes.  18 A  And he's saying that he doesn't approve of the system  19 as it's being carried out then.  20 Q   Yes.  Is that appropriate to be taken into account in  21 considering the context of the creation of the colony  22 and the government of the colony on the mainland of  23 British Columbia?  24 A   Oh, I certainly think so.  And I did take it into  25 consideration.  2 6 Q   But it's not included in your documents?  27 A  Among thousands of others, no.  28 Q   All right.  Thank you.  Now, would you look under tab  29 8, please, and I refer you first to a copy of dispatch  30 from governor Douglas, C.B. to His Grace, the Duke of  31 Newcastle, Victoria, Vancouver Island, October 25,  32 1860, and he states, and I quote:  33  34 "Resuming the Subject of my Report on British  35 Columbia"  36  37 And pausing there, you understand that to be the  38 colony of British Columbia?  39 A   Yes.  40 Q  41  42 "marked Separate, of the 9th of the present month,  43 I proceed to inform Your Grace that on leaving  44 Lytton, accompanied by Mr. Good, Private  45 Secretary, and four mounted attendants, my course  46 was directed towards Shimilkomeen and Rock Creek,  47 the latter being about 228 miles from Lytton." 17524  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 And then I direct your attention to paragraphs three,  3 four and five and also seven, and I would ask you if  4 the context of the reference to events in the United  5 States is one that should be taken into account in  6 considering the documents that you have filed with his  7 lordship?  8 A   Yes, I think so.  9 Q   Yes.  But these were not included in your --  10 A   No.  I took them into account and included only those  11 which were more pointedly addressing the issues that I  12 was looking at.  13 Q   And in paragraph five Mr. Douglas says, and I quote:  14  15 "There was one subject which especially  16 pre-occupied their minds, as I discovered by the  17 frequent allusions they made to it, namely the  18 abject condition to which the cognate Native  19 Tribes of Oregon have been reduced by the American  20 system removing whole Tribes from their native  21 homes into distant reserves where they are  22 compelled to stay, and denied the enjoyment of  23 that natural freedom and liberty of action without  24 which existence becomes intolerable.  They  25 evidently looked forward with dread to their own  26 future condition, fearing lest the same wretched  27 fate awaited the natives of British Columbia.  I  28 succeeded in disabusing their minds of those  29 false impressions by fully explaining the views of  30 Her Majesty's Government, and repeating in  31 substance what I have in a former part of this  32 report informed Your Grace was said on the same  33 subject to the Assembled Tribes at Cayoosh  34 and Lytton."  35  36 Can you direct me to what was said by Mr. Douglas to  37 the Assembled Tribes at Cayuse and Lytton?  38 A   I think you have to go to a prior dispatch for that,  39 unless it's in the earlier part of this dispatch.  40 Q   Before we pursue that, I also direct your attention to  41 paragraph 7 on the following page of the dispatch  42 under tab 8 where Mr. Douglas refers to an appalling  43 Indian outrage committed in the neighbouring state of  44 Oregon, and I take it that that is the enclosure  45 number one on page 31?  46 A   It would appear to be.  47 Q   Now, if you would look at the next tab, number nine, 17525  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 this is again in the same series I have placed there  2 dispatch 13, separate, dated the same date as the  3 one -- sorry, dated a couple of weeks earlier than the  4 one that we've been looking at.  5 THE COURT:  Where is this, Mr. Goldie?  6 MR. GOLDIE:  Under tab 9 of my -- this is another separate  7 dispatch, my lord,  8 THE COURT:  Yes.  9 MR. GOLDIE:  Dated October 9, 1860.  And he states:  10  11 "I have the honour to submit for your Grace's  12 information the following particulars relative to  13 a recent journey in British Columbia, from whence  14 I have just returned."  15  16 And he says he left Victoria on August 28 and then he  17 goes through a number of items.  Up to Lillooet.  And  18 then he gets down to a point where on page 25  19 paragraph 34 he said:  20  21 "The assizes were open by the Judge of British  22 Columbia during my stay at Cayoosh,"  23  24 And 35:  25  26 "I had an opportunity of communicating personally  27 with the native Indian tribes who assembled in  28 great numbers at Cayoosh during my stay.  I made  29 them clearly understand that Her Majesty's  30 Government felt deeply interested in their  31 welfare, and had sent instructions that they  32 should be treated in all respects as Her Majesty's  33 other subjects; and that the local magistrates  34 would attend to their complaints, and guard them  35 from wrong, provided they abandoned their own  36 barbarous modes of retaliation and appealed in all  37 cases to the laws for relief and protection.  I  38 also forcibly impressed upon their minds that the  39 same laws would not fail to punish offences  40 committed by them against the persons or  41 property of others.  42 I also explained to them that the  43 magistrates had instructions to stake out, and  44 reserve for their use and benefit, all their  45 occupied village sites and cultivated fields and  46 as much land in the vicinity of each as they could  47 till, or was required for their support; and that 17526  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 they might freely exercise and enjoy the rights of  2 fishing the lakes and rivers, and of hunting over  3 all unoccupied Crown lands in the colony; and that  4 on their becoming registered free miners they  5 might dig and search for gold, and hold mining  6 claims on the same terms precisely as other  7 miners: in short, I strove to make them conscious  8 that they were recognized members of the  9 commonwealth, and that by good conduct they would  10 acquire a certain status, and become respectable  11 members of society.  They were delighted with the  12 idea, and expressed their gratitude in the warmest  13 terms, assuring me of their boundless devotion and  14 attachment to Her Majesty's person and crown, and  15 their readiness to take up arms at any moment in  16 defence of Her Majesty's dominion and rights."  17  18 Now, does that appear to be to you the -- a document  19 or the reference that Mr. Douglas referred to in his  20 later dispatch under tab 8 where he said:  21  22 "I succeeded in disabusing their mind of these  23 false impressions by fully explaining the views of  24 Her Majesty's Government and repeating in  25 substance what I have in a former part of this  26 report informed your Grace was said in the same  27 subject to the assembled tribes at Cayuse and  2 8 Lytton."?  29  30 A   Yes.  31 Q   And would you agree that that context should be taken  32 into consideration?  33 A   Certainly.  34 Q   In respect of the documents which you have placed  35 before his lordship?  36 A   Like many others which were not included, it is also  37 part of the context and history of this era.  It says  38 nothing, however, about Indian title to which I was  39 directing my attention more specifically.  40 Q   The —  41 A   These are simply the whole series that we have been  42 discussing are simply expressions of attitudes and  43 ideas about various kinds of reservation system.  44 Q   You mean the references to the American system?  45 A  And to what is proposed for the people here, if you  46 read in this dispatch he discusses the size of the  47 reserves that are set aside and the assurances that 17527  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 were given to the Indians as to what lands would be  2 reserved solely and exclusively for their use.  3 Q   Yes.  Under tab 6 I have set out a document which you  4 did include.  If you want to make a note of it, it's  5 your tab 40 in Volume 2, and you read paragraph three,  6 if I recall correctly.  I am sorry, I am referring you  7 to the wrong one.  8 MR. RUSH:  That's not tab 6?  9 MR. GOLDIE:  That's not tab 6, no.  10 Q   I am referring, if you would look at tab -- I think  11 it's tab 10.  And it's not -- I'm now directing you to  12 dispatch number eight of August 14, 1958.  13 MR. RUSH:  1858?  14 MR. GOLDIE:  15 Q   1858, thank you.  And you see in paragraph five it  16 begins with the words "I highly approve of the steps  17 which you have taken as recorded by yourself with  18 regard to the Indians"?  19 A   Yes.  2 0 Q   Same comment applies to that that you made with  21 respect to the preceding dispatch?  22 A  Well, you'll have to allow me a moment to see what it  23 is he's referring to here.  24 THE COURT:  Perhaps while you are doing that, we can take the  25 afternoon adjournment.  26 MR. GOLDIE:  Thank you, my lord.  27  2 8 (PROCEEDINGS RESUMED PURSUANT TO AFTERNOON BREAK)  29  30 I hereby certify the foregoing to be  31 a true and accurate transcript of the  32 proceedings herein to the best of my  33 skill and ability.  34  35  36  37  38 Laara Yardley, Official Reporter,  39 United Reporting Service Ltd.  40  41  42  43  44  45  46  47 17528  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  9  10 THE REGISTRAR:  Order in court.  11 THE COURT:  Mr. Goldie.  12 MR. GOLDIE:  My lord, I had reached tab 10.  But I am going to  13 skip that and go to tab 11 which is Lytton's despatch  14 number 19 to Douglas of September 2, 1958.  15 THE COURT:  1858.  16 MR. GOLDIE:  17 Q   1858, thank you.  He says:  18  19 "In my despatch of the 31st July, No. 6, I  20 directed your attention to the treatment of the  21 Native Indians in the country which it has so  22 recently been decided to establish as a British  23 colony."  24  25 Tab 6 -- I'm sorry, despatch number 6 is, I believe,  26 under your tab 40 of volume 2.  I am not asking you to  27 turn to that, I am just giving you the context.  Then  28 Lytton continues:  29  30 "I regard that subject as one which demands your  31 prompt and careful consideration.  I now transmit  32 to you the copy of a letter from the Aborigines  33 Protection Society, invoking the protection of  34 Her Majesty's Government on behalf of these  35 people.  I readily repeat my earnest injunctions  36 to you to endeavour to secure this object."  37  38 Now, just pausing there, attached to it is a letter  39 from the Aborigines Protection Society, Mr. Chesson,  40 as secretary.  I don't know what the date of it is,  41 but -- I am not asking you to read the entire letter,  42 but the writer in the second to last paragraph makes  43 reference to "recognition of native rights" midway  44 through the paragraph.  Do you see that?  45 A   You're at page 59?  46 Q   Yes, I am.  47 A  And which paragraph? 17529  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   The second to last paragraph.  2 A   The last full paragraph?  3 Q   The last full paragraph.  4 A   Yes.  And your question is?  5 Q   You see that, do you, and the reference in the last  6 sentence:  7  8 "We would beg, therefore, most respectfully to  9 suggest that the Native title should be  10 recognized in British Columbia, and that some  11 reasonable adjustment of their claims should be  12 made by the British government."  13  14 A   I see that.  15 Q   Would you agree with me that the observations of the  16 colonial office officials is appropriate to take into  17 account in determining context in this matter?  I  18 believe you've referred to those minutes yourself.  19 A  When you say "this matter", I'm again at a loss.  20 Q   What we are here for.  21 A  All right.  You have directed me to one sentence in a  22 long letter.  23 Q   Yes.  And I directed --  24 A  And said it contains --  25 Q   Yes, go ahead.  26 A   -- a number of suggestions regarding a programme for  27 the administration of Indian affairs in the colony of  28 British Columbia.  29 Q   Yes.  30 A   The mainland colony.  The recommendations are  31 numerous.  You've directed my attention to only one  32 item in this lengthy letter and the -- then you're  33 asking me about the comments in the minutes --  34 Q   No.  My question to you was, would you agree with me  35 that the observations of the colonial office officials  36 is appropriate to take into account in considering  37 context?  38 A   Certainly.  39 Q   Yes.  With that, would you turn to those minutes,  40 please.  41 A   Yes.  42 Q   The originals are found in the last part which is a  43 photograph of the letter to which the minutes were  44 attached and the typescript of those minutes is found  45 under the pink divider.  I'm not going to ask you to  46 read those, but again we identify the minute makers,  47 if I may use that phrase, ABd is Mr. Blackwood, 17530  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Merivale is HM, and C is Lord Carnarvon, is that your  2 understanding?  3 A   I wasn't sure if you were going to list the last one  4 as well.  5 Q   Well, I am going through it.  I've gone down the  6 people who have made the observations, EBL is the  7 secretary; is that right, Sir Edward Bulwer Lytton?  8 A   I thought you were going to continue, I'm sorry.  9 Q   All right.  10 A   I should say that I have read this typescript, and I  11 am not sure that it is an accurate transcription of  12 the original.  13 Q   Well, the original is attached if you wish to examine  14 it.  15 A   Yes.  I have done, and that's why I make the remark.  16 Q   And the question I put to you is Lord Carnarvon is C?  17 A   That's correct.  18 Q   And he was the parliamentary under-secretary at the  19 time?  To assist you and to assist the court, I refer  20 to tab 20.  My lord, I have placed there an extract  21 from a publication called The Dominions Office And  22 Colonial Office List.  And while it is for 1926, it  23 has some -- it has now got some historical value  24 because it sets out the officials as they were from at  25 least the time that we are interested.  And your  26 lordship will see on the first page, the second group,  27 Secretaries Of State For The Colonial, And War  28 Departments from 1794 to 1854, and then continued  29 under -- from 1854.  And the period that we are  30 looking at 1858, May 31, Sir Edward Bulwer Lytton.  31 1859, June 18th is the Duke of Newcastle.  Then over  32 the page, the Permanent Under-Secretaries Of State For  33 The Colonies is 1847 to 1858 was Mr. Merivale, and  34 then 1859 was Sir Frederick Rogers.  The parliamentary  35 secretary of -- under-secretary of state for the  36 period that we are looking at 1858 is the Earl of  37 Carnarvon.  He was exceeded by Mr. Chichester S.  38 Fortescue whose initials we will see at a later point.  39 The assistants for the same period are also set out  40 there.  So the Earl of Carnarvon would appear to be  41 the parliamentary under-secretary of state reporting  42 to Sir Edward Bulwer Lytton at this particular point,  43 would you agree with that?  44 A   Yes.  45 Q   Now, we were at tab 11.  You say you are familiar with  46 this despatch and you've read the minutes.  And, of  47 course, you have also read the reply or the despatch 17531  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 to Governor Douglas at page 58, and I complete my  2 reading of that --  3 A  Where are you, which tab?  4 Q   Under tab 11.  I complete my reading of that with the  5 words, and I quote:  6  7 "At the same time I beg you to observe that I must  8 not be understood as adopting the views of the  9 Society as to the means by which this may be best  10 accomplished."  11  12 That document or that despatch is of the same  13 character, is it, of others that you did not include  14 in your collection because, while it is part of the  15 historical context, it is not part of the context that  16 is before his lordship, is that a fair way of putting  17 it?  18 A   No, it isn't.  19 Q   Well, would you like to --  20 A  And I would like to explain.  I carefully reviewed  21 that.  I consider that to be a very important  22 despatch.  And of the literally thousands of documents  23 that I reviewed in the course of the last number of  24 years in looking at the question of native title, I  25 segregated those documents which I thought were most  26 germane to the issue.  And the body of materials which  27 I had thus segregated were further winnowed in terms  28 of those that were put into the record in this case.  29 I consider the despatch that you just referred to, in  30 fact the series, as being very pertinent.  I  31 considered them in forming my own opinions.  If they  32 are not -- if the last one that you mentioned is not  33 among the documents included here, it was apparently  34 taken out at some last stage.  I consider it to be  35 very important, one which has been much misconstrued.  36 I notice again that while you pointed me to only one  37 section in Mr. Chesson's letter you are also using a  38 concluding remark which --  39 Q   Excuse me?  40 A  Which, taken out of context, I cannot accept.  41 Q   I am not taking anything out of context.  I was  42 drawing your attention to certain words.  43 A   That's right.  44 Q   Because I have understood, and you have now corrected  45 me, that the basis for your selection was a reference  46 to title.  I am not asking you to construe this  47 document.  I am not suggesting any construction, but I 17532  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 had understood your previous answer, and perhaps  2 wrongly.  3 A  Well, the sentence --  4 MR. GOLDIE:  And I am glad to have your correction.  Now --  5 MR. RUSH:  Excuse me, my lord.  I suppose if the witness has  6 something to add by way of her answer to this she  7 ought to be able to answer it.  8 THE COURT:  All right.  9 THE WITNESS: The last sentence to which Mr. Goldie has directed  10 me, I believe, was, and I quote:  11  12 "At the same time I beg you to observe that I must  13 not be understood as adopting the views of the  14 Society as to the means by which this may be best  15 accomplished."  16  17 And I submit that this is a referent to something  18 which preceded --  19 Q   Excuse me, my lord.  20 A  And the sentence --  21 THE COURT:  Just a moment.  22 MR. GOLDIE:  With great respect, I din't ask this witness to  23 construe the document.  The emphasis that she may  24 instruct counsel to place upon it is something for  25 argument.  All I'm endeavouring to do is to understand  26 the basis of selection, whether it is the witness'  27 judgment that a document is relevant or irrelevant.  I  28 now understand her to say that this document is  29 pertinent for whatever it says or whatever counsel can  30 take out of it or for whatever your lordship will  31 finally determine it says.  But the witness is no more  32 entitled on cross-examination to give inappropriate  33 evidence than she is on her examination in chief.  I  34 am not asking her to construe this, that or anything  35 else.  36 MR. RUSH:  However, my friend is asking whether or not the  37 context is appropriate.  He directs her attention to a  38 specific sentence to which the appropriate response  39 is, it is taken out of context.  Surely what's  40 important here is to determine what is the context,  41 and that I think has been the overwhelming thrust of  42 my friend's examination.  What is the appropriate  43 context?  Well, he suggests a context to the witness  44 and then when a witness says it is out of context,  45 leaps away from the sentence to say, you can't go into  46 that.  And I say, my lord, that is not a correct way  47 of proceeding.  The witness, if she is allowed to 17533  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  pursue what is the context --  THE COURT:  But why should we take the time to hear what her  construction is of the document when counsel has made  it very clear that that's not what he has embarked  upon  9  MR.  THE  THE  MR.  MR.  THE COURT  MR. GOLDIE:  RUSH:  It is not a matter of construction.  COURT:  But that's what she said.  She said, I would  construe the document.  WITNESS:  No.  RUSH:  Well, my lord, she wasn't able to answer what she was  going to say.  In my submission what the cutting line  is if the something is out of context you should hear  why it is out of context.  GOLDIE:  My lord, the witness has dealt with this and she  said it is in context.  She said:  If it is not in my  selection of documents it should be.  So far as I'm  concerned, that ends the matter.  I don't see any reason to go on further with this  document.  I don't think the world can determine what  Mr. Lytton said when he said it.  I think we should go  on to something else.  Now, Dr. Lane, in your selection you had under tab  41, Volume 3, a despatch signed by Carnarvon on behalf  of Lytton dated 11th of April, 1959.  I'll place that  in front of you.  You read the second to last -- you  read the last paragraph.  Do you recall that?  THE COURT:  I'm sorry, Volume 3?  MR. GOLDIE:  Volume 3, my lord, tab 41.  THE COURT:  Okay.  THE WITNESS:  And your question is?  MR. GOLDIE:  Q   You recall that document?  A   Yes.  Q   Yes.  And that refers to the Songeese Indian Reserve  on Vancouver's Island?  Volume 2 it should be, my lord, so I'm instructed.  Is  that the --  A   I think so.  Q   Dr. Lane, this is in response to the Douglas:  "...despatch of the 9th of the February, No. 4,  transmitting copies of communications which have  passed between you and the House of Assembly of  Vancouver's Island between the 23d of August and  the 5th February last."  Now, am I correct in my understanding that you have 17534  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 placed under tab 37 one of those communications, tab  2 37?  3 A   Tab 37 was a communication from Douglas to the House  4 of Assembly of 5th February, 1859.  5 Q   Right.  And that deals with the Songeese Indian  6 Reserve?  7 A   Correct.  8 Q   Right.  And was it not that document one of those  9 which he transmitted to the colonial office and to  10 which the Earl of Carnarvon is referring?  11 A   I would have to see the response.  12 Q   Well, let us look, then, if you would be kind enough,  13 to tab 13 of my book.  Now, this is a Hendrickson -- a  14 Hendrickson typescript.  It is No. 4, Vancouver's  15 Island despatches, 9th of the February, 1959.  Mr.  16 Douglas says:  17  18 "I have the honor of transmitting herewith for  19 your information my correspondence with the House  20 of Assembly on Vancouver's Island and the public  21 business of this colony.  22 The subjects referred to in that correspondence  23 are not an important nature with the exception of  24 that marked Letter 1 dated 5th February 1859  25 which touches on the subject of the land reserved  26 near to the Town of Victoria for the benefit of  27 the Native Indian Population."  28  29 And then he goes on to say:  30  31 "I instructed the Crown Solicitor to insert a  32 public notice in the 'Victoria Gazette' to the  33 effect that the land in question was the property  34 of the Crown..."  35  36 and could not be sold.  He said:  37  38 "In my communication before referred to you will  39 perceive that I have informed the House of  40 Assembly of the course I propose to adopt with  41 respect to the disposal and management of the  42 Indian Reserve at Victoria."  43  44 Isn't that the document to which Carnarvon is  45 responding?  46 A   Yes.  47 Q   Right.  And isn't the subject matter of the enclosure 17535  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 which is under your tab 37 the proposal that some  2 parts of the Songeese Indian Reserve in Victoria be  3 used for public or private purposes?  4 A   Yes.  5 Q   Right.  So that what the Earl of Carnarvon is doing is  6 commenting on Douglas' proposals with respect to that  7 reserve, would you agree with that?  8 A   In part that's what he's doing.  9 Q   Is he referring to anything else?  10 A  Where?  11 Q   Well, I'm sorry, I do not need to ask you that  12 question.  All I want to do is to have you correct or  13 confirm my understanding that Carnarvon's despatch  14 under your tab 41 of volume 2 is in response to the  15 document that I have placed under tab 13.  16 A   I may be confused here going back and forth between  17 the two books.  18 Q   Yes.  19 A  My understanding is that the item that you are  20 referring to me at tab 37 --  21 Q   Yes.  22 A   -- is the Douglas communication to the House of  23 Assembly dated 5th February 1859.  And that the other  24 item that you are referring to me -- referring me to  25 is the item dated 9th February, 1859 which is Douglas  26 to Lytton.  27 Q   That's correct.  And is Douglas not sending on to  28 Lytton the communication from him to the speaker in  29 the House of Assembly on Vancouver's Island dated  30 February the 5th?  31 A   That's correct.  32 Q   And that deals with the Songeese Indian Reserve?  33 A   Yes.  34 Q   Thank you.  And that was a reserve that was located in  35 Victoria?  36 A   Yes.  37 Q   Now, I take it that you did not include in your  38 assembly of documents Douglas' despatch enclosing the  39 communication with the House of Assembly in Victoria  40 on the Songeese Indian Reserve because you considered  41 it to be irrelevant to the matter in hand?  42 A   No.  I don't consider it to be irrelevant to the  43 matter at hand.  It doesn't speak to Indian title as  44 this was part of the land that had been seated by  45 treaty.  46 Q   Yes.  47 A   But I would consider it a relevant -- part of the 17536  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 relevant corpus of information as to how Indian lands  2 were being dealt with the.  And, as a matter of fact,  3 the notice which was in the Gazette is part of that  4 corpus of material.  5 Q   Which you have included?  6 A   Have I?  7 Q   I believe you have.  8 A   I'm not certain what was finally included at the end  9 of the day out of the vast array of documents.  10 Q   But for our purposes at the present time --  11 A   Yes.  12 Q   -- you would now agree that the context of what we are  13 considering in this case requires consideration of  14 Douglas' despatch to Lytton of 9th of February of  15 1849.  16 A   The relevance of the Douglas statement on February 5,  17 1859, it seems to me is the reference to the treaty  18 alluded to in the last full paragraph where it says  19 that:  20  21 "Government will not cause them to be removed,  22 because it is bound by the faith of a solemn  23 engagement to protect them in the enjoyment of  24 those agrarian rights."  25  26 Q   Yes.  27 A  And the relevance of the treaties is that they were to  28 exstinguish native title to the lands covered by the  29 treaties.  30 Q   So that's —  31 A   So this is directly relevant to the question of how  32 they were dealing with native title.  33 Q   All right.  Thank you.  Now, under tab 16 of your  34 collection of documents under volume 2 you make  35 reference or set out a document marked "Confidential,  36 Vancouver's Island".  You read to his lordship a  37 section on pages 3 and 4.  If I read your evidence  38 correctly, you stated in the transcript 229, page  39 16720.  That's where you begin your discussion on that  40 document.  Then at page 16721 you characterize it as:  41  42 "... a confidential report or memorandum that was  43 printed for the perusal of cabinet simultaneous  44 with the issuance of the Royal Grant."  45  46 Do you want to have that in front of you?  47 A   Yes, please. 17537  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Page 16721, lines 3 to 5, or 2 to 5, or 2 to 4?  2 A   Yes.  3 Q   Now, first I would like you to assist me, please.  The  4 Royal Grant that you are referring to there is the  5 grant from the Crown to the Hudson's Bay Company?  6 A   Yes.  7 Q   And that was made in January 13, 1849, was it not?  8 A   That's probably correct.  I don't hold the exact date  9 in my head.  10 Q   Well, attached to the confidential document and  11 referred to in the body of it are resolutions of the  12 Hudson's Bay Company, is that not correct?  13 A   Yes.  14 Q   And if you would look at those for a minute, you will  15 see in the first preamble a reference as follows, and  16 I quote:  17  18 "Whereas, by a Royal Grant or Letters Patent under  19 the Great Seal of the United Kingdom of Great  20 Britain and Ireland, bearing date at Westminster,  21 the thirteenth day of January, one thousand eight  22 hundred and forty-nine, the conditions of which  23 are hereunto appended..."  24  25 and so on?  2 6 A  Mh'm.  27 Q   So would you not agree with me that the anonymous  28 document, if I may put it that way, the confidential  2 9 document came into being apparently some time after  30 the conveyance or the Royal Grant?  31 A   I don't know that that's correct.  They are certainly  32 at about the same time.  When the memorandum was made  33 we are uncertain of.  34 Q   Well, I agree, Dr. Lane, but I thought you pointed out  35 to his lordship the date of March 1849.  36 A   That's when it was printed.  37 Q   I see.  Yes, all right.  But we don't know when it  38 came into being?  39 A   That's correct.  40 Q   Yes.  41 A  And the reason I make that distinction is because I  42 have read, in going through the publication record,  43 office records, comments about log jams, so to speak,  44 that's not the exact language, of the printing in  45 terms of getting papers printed up.  46 Q   Yes.  Well, I was seeking clarification from you  47 because you had stated: 1753?  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2 "It appears to be a confidential report or  3 memorandum that was printed for the perusal of  4 cabinet simultaneous with the issuance of the  5 Royal Grant."  6  7 A  Mh'm.  8 Q   Now, that doesn't seem to be the case.  You say it  9 might have come into being, but it wasn't printed  10 until March of 1849.  11 A   It says on its face "Printed at the foreign office  12 March 1849".  13 Q   Yes.  14 A  Whether it was in being or how long before it was  15 printed it was in being and being considered, I don't  16 know.  But since it also says in its body that nothing  17 is being put in the grant because of the explanations  18 given in the confidential memorandum, I assume that  19 they were produced at the same time.  20 Q   Well, I suppose the only other thing that you can  21 assist us on is the date of the Hudson's Bay's  22 resolutions.  23 A  Again, they were revised.  I don't know whether this  24 is the last set or the set that was ultimately  25 altered.  26 Q   Well, I -- I'm not going to --  27 A  We will have to examine it.  28 Q   I am not going to pursue the matter.  29 A   This was not the only set of resolutions.  They went  30 under alteration and change.  31 Q   Yes, of course.  But this is a set of resolutions that  32 refers to the Royal Grant of January 13, 1849?  33 A   That's correct.  34 Q   And you don't know the date of these resolutions?  35 A   No, I don't.  36 Q   All right.  Thank you.  Now, you refer to cabinet.  I  37 would like you to assist me a bit there.  That would  38 be the cabinet which approved the form of the grant is  39 that to which you are referring?  40 A   I don't know for sure, that is my assumption.  My  41 reference to it being prepared or probably prepared  42 for cabinet's perusal is information received from the  43 keeper at the public record office who has tried to  44 pin down more definitely the history of this  45 particular document.  It is also the opinion of  46 several historians who have considered the matter,  47 including the one in the document which you would not 17539  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 permit to be entered this morning.  2 Q   Well, what is your opinion as to whether this --  3 A  Well —  4 Q   I'm sorry, let me put it this way --  5 A   I bow to the opinion of the keeper at the public  6 record office and the historians who have attempted to  7 assess this document, along with whatever knowledge I  8 have as to how these papers moved from one office to  9 another --  10 Q   Well, we can all read --  11 A   -- at that time.  12 Q   We can all read Mr. Galbraith's article, but do you  13 have a communication from the keeper of the records?  14 A   The keeper of the records was consulted and that was  15 her assessment.  16 Q   No.  Do you have a communication that you could  17 produce?  18 A   No, I don't have a written statement from her.  19 Q   I am not asking for a statement.  I am just asking is  20 there any communication from the keeper of the records  21 which we can weigh along with Mr. Galbraith's article?  22 A   I don't have a written communication.  I presume I  23 could have one reduce produced.  24 Q   All right.  In any event, the draft was approved in  25 October 1848, was it not?  The form, I should say?  26 A  A draft of what?  27 Q   Of the Royal Grant?  28 A  Again, I don't hold those dates in my head.  29 Q   I see.  Well, if you would look under tab 14, please.  30 A   Yes. In your book?  31 Q   Yes.  That was a cabinet meeting, was it not?  32 A   Yes, you're referring to the item under B on that  33 page?  34 Q   Yes, that's right.  35 A   Yes.  36 Q   And they had -- they had before them a report of  37 the -- a special committee to which a draft had been  38 referred.  Over the page on page 20 about three  39 quarters of the way down the page there is a sentence  40 that begins at the left-hand margin with the words:  41  42 "That the neglect on the part of the Hudson's Bay  43 Company to observe..."  44  45 A   Yes.  46 Q   It goes on:  47 17540  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 "...the hereinbefore-mentioned conditions  2 respecting the sale of land and coal shall be  3 included among the conditions upon which it  4 shall be lawful for Her Majesty...",  5  6 et cetera,  7  8 " revoke the said grant..."  9  10 And then follows the words:  11  12 "And we accordingly submit an amended draft of a  13 grant embodying the foregoing stipulations."  14  15 That was approved, that report?  16 A   Yes.  17 Q   Thank you.  I have one other question that you may be  18 able to assist me on with respect to this document  19 under your tab 16.  There are blanks in it.  20 A   Yes.  21 Q   Have you seen a document in which the blocks are  22 filled out?  23 A   No.  You are referring to the blank, I think it was a  24 date that is missing, a year?  25 Q   Yes.  26 A   I'm sorry, which tab?  27 Q   Tab 16.  28 A   I must be in the wrong book.  2 9 Q   Of your Volume 2.  30 A   Yes.  You're referring to the first page of that  31 "Confidential, Vancouver's Island" the last full --  32 the last paragraph, second line?  33 Q   Yes.  There are a couple of blanks, aren't there?  34 A   I believe there is at least one other.  I don't know  35 that there are more than two.  36 Q   But my question is, have you, in the course of your  37 researches, found one with the blanks filled in?  38 A   No, I have not.  39 Q   All right.  Thank you.  Now, this morning -- I  40 shouldn't say this morning, but you have included in  41 your Volume 1, The Commission And Instructions To  42 Governor Blanshard, I believe?  43 A   Yes, I think so.  44 Q   You have also -- I put those under tab 15.  I need not  45 ask you anything further with respect to that.  Under  46 tab 16 I have put The Commission And Instructions To  47 Governor Douglas, and I need not ask you anything 17541  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 about that.  I think you may have mentioned this, but  2 if not it is self-evident.  Douglas' commission which  3 is dated May 16, 1851 is after he had concluded some  4 11 of the Vancouver's Island treaties; is that  5 correct?  6 A   I don't recall how many.  But certainly after the  7 initial treaties.  8 Q   Yes.  And would these treaties be contextually  9 significant from your point of view if the colonial  10 office was unaware of them?  11 A  Well, that would be significant.  12 Q   Yes.  Were they aware of them at the time?  13 A   Your question is, was the colonial office aware of the  14 Douglas -- the initial Douglas treaties at the time  15 that they were made?  16 Q   Yes.  17 A   I don't know.  I assume given the various documents  18 that I placed in the record that indicated a concern  19 with exstinguishing Indian title and the documents  20 that speak of transferring the duties of government to  21 the Hudson's Bay Company at that era that there must  22 have been some kind of communication, but I have not  23 found it.  24 Q   Well, you did put before his lordship a document under  25 tab 33 of your volume 2 which is Blanshard's letter of  26 February 18, 1851.  Perhaps you could have that in  27 front of you.  28 A   33 did you say?  29 Q   33, yes.  30 A   Yes.  31 Q   You recall that?  32 A   Yes.  I recall the correspondence in 1851 from  33 Blanshard to England.  34 Q   And that was over the question of the governor being  35 asked to approve accounts which included, apparently,  36 some of the items which Douglas had used to -- in his  37 negotiation of the treaties?  38 A   That's correct.  39 Q   That's the context of that letter; is that right?  40 A   That's right.  Blanshard was asked to sign off on the  41 accounts --  42 Q   Yes.  43 A   -- of the expenses incurred.  44 Q   Now, I have placed under tab 17 the Hendrickson  45 typescript of that, and I do so only as a matter of  46 convenience.  You'll see the minutes are on the next  47 page and they foreshadow the sending to the Hudson's 17542  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Bay Company of extracts for a report and explanation.  2 You placed in evidence the draft of Mr. Hawes' letter  3 to Sir John Pelly of the Hudson's Bay Company in which  4 some -- one aspect of that was gone into.  But that  5 document is in reply to Pelly's of the 12th of June.  6 So if we are going to get the sequence we have to go  7 back to Hawes' letter and get Pelly's response to it,  8 would you agree with that?  9 A   Yes.  As I recall there was a series of four or five,  10 perhaps six letters relating to this matter.  11 Q   Right.  So under tab 18 I have Hawes' letter of June  12 4th to Pelly.  It sets out the extracts.  He said:  13  14 "I am directed by Earl Grey to transmit to you for  15 any observations which the Hudson's Bay Company  16 may have to offer..."  17  18 A  Mh'm.  19 Q       "...the accompanying Extracts from a Despatch from  20 the Governor of Vancouver's Island on the subject  21 of the Goods paid to the Indians to extinguish  22 their title to land..."  23  24 and et cetera?  25 A   Yes.  26 Q   And Pelly's reply is under 19.  And his replies  27 suggests that because:  28  29 "Mr. Blanshard has resigned the Office of Governor  30 of Vancouver's Island, the Hudson's Bay Company  31 do not consider it necessary to make any remarks  32 on the Extracts referred to, nor indeed do they  33 think it fully within the province of the  34 Governor to inquire into the transactions between  35 the Company and the Natives with respect to the  36 extinction of the Titles of the latter to their  37 lands."  38  39 Then the matter is referred to Mr. Merivale by  40 Blackwood on the 13th of June.  Then there is a long  41 minute addressed to Mr. Hawes', and that's Merivale of  42 June the 16th?  43 A   Correct.  44 Q   Would that minute be contextually relevant to the  45 matters which are before his lordship in this?  46 A   Oh, yes, I think so.  47 Q   Thank you.  I don't believe that minute is in your 17543  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 assembly of documents.  2 A   It was in the documents that I collected relevant to  3 this.  And since much of this correspondence back and  4 forth repeats what has been said in the other  5 correspondence, I think a selection was made of the  6 one or two of the documents which allude to the  7 discussion that was going on.  Again, I would point  8 out that the point of this correspondence is the  9 propriety of the government, once having transferred  10 certain duties to the Hudson's Bay Company, to inquire  11 into how they are being carried out.  And, as I  12 recall, the response of the Crown was that since the  13 governor had been asked to sign the accounts they  14 thought it was proper and appropriate.  15 Q   Yes.  You placed the reply to Pelly in your documents,  16 but I am -- I have your agreement that this is a  17 document which is relevant?  18 A   Certainly.  19 Q   And I'll leave the rest to argument.  But in this  20 context, do you know whether the Hudson's Bay Company  21 ever did recover from the Crown these expenditures?  22 A   The relevance here to my mind is that both the  23 government and the company appeared to take it as read  24 that it was proper to extinguish native title to the  25 land.  As to the financial accounting, I believe it is  26 my impression from having tried to puzzle through the  27 financial records that the company, in fact, recovered  28 from the Crown.  But I would not wish to be held to  29 that, that is my impression.  But I am by no means  30 certain that I puzzled those financial records out  31 properly.  32 Q   Yes.  Well, I am drawing your attention now to what is  33 under tab 21 which is, of course -- I'm sorry.  Yes,  34 tab 21 is the reply from the government to Pelly that  35 I referred to a minute ago of June 26, 1851 in  36 which -- it is what you referred to a few moments ago?  37 A   Yes.  38 MR. GOLDIE:  Now, under tab 22 —  39 THE COURT:  Mr. Goldie, if you are going to another tab, is it  4 0 convenient to adjourn now?  41 MR. GOLDIE:  Yes.  Now, your lordship asked me for an estimate  42 of time.  I expect to be finished tomorrow, but it may  43 very well be depending on Ms. Koenigsberg.  I haven't  44 discussed this with her that we should sit later  45 tomorrow night.  46 THE COURT:  Well, I think that is convenient.  I have to say,  47 and I should have mentioned this earlier that tomorrow 17544  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 is the day of the Annual Vancouver Bar judge's lunch  2 which I have to attend.  I have to adjourn at 12  3 o'clock.  I will have no difficulty being back here by  4 2:00 or within a few moments of 2 o'clock.  But I am  5 happy to stay late to convenience ourselves into a  6 completion mode, if that's possible.  Counsel can let  7 me know during the course of the day how late we  8 should sit tomorrow.  9 I wonder if it wouldn't be more convenient to  10 ask -- if counsel think there is a good risk of this,  11 if we ask to have a fresh reporter at 4 o'clock.  It  12 seems to me to be a burden to ask somebody to do more  13 than two half days of this, and especially when the  14 time for completion is uncertain.  I think if that's  15 possible, Madam Reporter, with our compliments to  16 madam or mister dispatcher that we were quite happy  17 with whoever they send us, but we might be sitting for  18 an extra hour or two hours tomorrow afternoon.  They  19 might want to send a fresh face.  Anyone will do.  20 MR. GOLDIE:  My lord, the other matter is my understanding is  21 that with the completion of Dr. Lane's evidence we  22 will then be adjourning until the Monday of the week  23 following to complete the cross-examination of Dr.  24 Galois, but after that we would appreciate some  25 enlightenment.  2 6 THE COURT:  Are we not going to complete Dr. Galois next Monday  27 following?  28 MR. GOLDIE:  He starts on the Monday following a week today.  2 9 THE COURT:  Yes.  30 MR. GOLDIE:  Yes.  31 THE COURT:  Yes, that's what I understood.  I don't know if we  32 have an estimate of how long we will require for Dr.  33 Galois.  Do counsel have any idea?  34 MR. GOLDIE:  I hadn't anticipated from my discussion with Mr.  35 Willms that it will be beyond the week.  36 THE COURT:  Well, I had that the week of June the 26th all I had  37 was Dr. Rigsby by commission or disposition in  38 Australia question mark, and nothing until July 4th,  39 5th, 6th which would be housekeeping.  40 MR. GOLDIE:  Well, I think my friend Mr. Rush can correct me on  41 this, but my understanding is that there is further  42 evidence of a genealogical character to be given in  43 respect to the Wet'suwet'en.  44 THE COURT:  Is that in the week of June 26th?  45 MR. RUSH:  We hadn't scheduled the week of June 26th because of  46 the financial straits of the plaintiff.  47 THE COURT:  Are you able to do that now? 17545  Discussion re scheduling  1 MR. RUSH:  No, we are not able to do that.  2 THE COURT:  I keep hearing very consistent reports which I was  3 hoping were true.  Well, is it your plan, Mr. Rush,  4 that we wouldn't be sitting on the week of June the  5 26th?  6 MR. RUSH:  We had no plan for the week of June 26th, my lord, at  7 this point.  My understanding was that next week  8 Mr. -- the cross-examination of Dr. Galois would not  9 take more than three days.  10 THE COURT:  Yes.  11 MR. RUSH:  In fact, there had been a proposal that I made that  12 some matters considered by Mr. Willms to be  13 outstanding matters should be dealt with on the  14 Wednesday of that week.  15 THE COURT:  Yes.  16 MR. RUSH:  I haven't heard back from him one way or the other  17 about that.  I had assumed that that was going to  18 happen.  19 THE COURT:  Yes.  20 MR. RUSH:  And pending events as they turn this week, my lord,  21 we will be in a better position, I suppose, as the  22 week rolls on to advise you about further scheduling.  23 THE COURT:  Yes.  Well, I would hate to think that we would let  24 a week go by if there is something that needs to be  25 done.  26 MR. GOLDIE:  Well, I think it was Mr. Willms who suggested that  27 two matters be cleaned up next week, so he is  28 certainly on board for that.  2 9 THE COURT:  Well, would he communicate with Mr. Rush and make  30 sure they are both thinking the same direction.  31 MR. GOLDIE:  Yes.  I will do that, my lord.  The other thing is  32 that I had suggested that we use the week of the 26th  33 to clean up some outstanding matters not requiring the  34 presence of a witness.  But I take it from what my  35 friend says that he is not prepared to sit that week  36 under the present circumstances.  37 THE COURT:  Well, I think we should try and do our best to clean  38 up whatever has to be cleaned up.  I think the time  39 has come that we have to utilize whatever time is  40 available.  And if it can't be done, it can't be done.  41 But I would sure want to know why we are not  42 proceeding if there is things to be done.  43 MR. GOLDIE:  Well, I entirely agree.  It has a very important  44 bearing on the commencement of the defendant's case.  45 THE COURT:  Mr. Rush, do you see any reason why your friend  46 shouldn't plan on opening their defence on the 3rd or  47 4th of July. 17546  Discussion re scheduling  1  MR.  GOLDIE  2  3  4  THE  COURT:  5  6  7  8  9  10  11  12  13  MR.  GOLDIE  14  15  16  17  THE  COURT:  18  MR.  GOLDIE  19  20  THE  COURT:  21  22  MR.  GOLDIE  23  THE  COURT:  24  25  MR.  RUSH:  26  27  28  29  30  31  32  THE  COURT:  33  34  35  36  MR.  RUSH:  37  THE  COURT:  38  MR.  RUSH:  39  MR.  GOLDIE  40  41  42  43  i  44  45  THE  COURT:  46  MR.  GOLDIE  47  i  :  Well, before my friend answers that, I do not want  to open my defence before the plaintiff's case is  closed.  Well, that's the usual routine.  But once in a while  there are minor adjustments if there is something of a  technical nature or a detail to be looked after that  arrangements can be made to do that after the defence  opens.  Perhaps counsel aren't comfortable talking  about this right now, but I am expecting the defence  to open their case on the 4th of July.  I would be  glad to know, whenever counsel want to talk about,  this what their reaction to that is.  :  Well, I may be missing a very important point here.  If my friend is unable to proceed with his case  because of the unfortunate circumstances under which  he finds himself --  Yes.  :  -- I have assumed that he is unable to be present  when the defendant's case is opened.  Well, I would think that is so.  I am assuming that  is not going to be a problem.  :  Well, I would like to have him here.  Oh, I don't think we will be proceeding in his  absence.  I hope that he will be here.  Well, my lord, the financial straits of the  plaintiffs have not been resolved, despite what we  know as promises to the contrary.  And at this point,  as we have said all the way along, that after the  evidence of Dr. Galois we are not in a position to  schedule the plaintiff's case.  We are hoping that  these things will change, but it is not changing.  Well, if it helps any, Mr. Rush, you can convey my  comments to whoever you are talking about and say that  I will expect you to proceed unless you bring an  application to adjourn the trial.  Yes.  I appreciate that, my lord --  Yes.  And I have thought of doing so several times.  :  I would like to add something so that the record is  complete on this point.  In our assessment of where  this matter stood, it seemed to us that if all went  well and we had Dr. Rigsby dealt with, if we had the  Wet'suwet'en genealogical witness dealt with that our  first witness would be called on the 10th of July.  Yes.  :  And we have scheduled the witness for that time.  We have got a couple more stacked up behind on that 17547  Discussion re scheduling  1 basis.  I am going to continue the scheduling for the  2 10th of July, my lord, in the hope and expectation  3 that all will be resolved.  But it will be  4 increasingly difficult for me to start making changes  5 in the timetable over people whom I have no real  6 control.  7 THE COURT:  Well, Mr. Willms told us that four days or is it  8 three days?  The first week of July will be taken up  9 if we are at that stage with housekeeping -- what  10 matters he called housekeeping, that is the 4th to the  11 7th.  12 MR. GOLDIE:  Those three or four days are what I call the  13 accordion and take up the slack if it occurs.  And  14 some of those things which he calls housekeeping are  15 necessary to complete before the defendant opens its  16 case.  17 THE COURT:  Yes.  18 MR. GOLDIE:  So there is some accomodation there, but as time  19 goes by it becomes increasingly difficult to work that  20 accomodation in any suitable fashion.  21 THE COURT:  Well, I think that counsel have led me to believe  22 that we are going to finish the plaintiff's case this  23 month, and that we are going to open the defence on  24 the 4th of July in the four days or whatever time it  25 takes to finish housekeeping matters, and start  26 calling witnesses on the 10th.  That's what I have  27 taken from the various statements of counsel, that's  28 the basis I have made all my plans.  And if that isn't  29 going to be the way it is, I will expect counsel to  30 let me know as soon as they can.  Thank you.  31 THE REGISTRAR:  Order in court.  Court stands adjourned until 10  32 o'clock tomorrow.  33 (PROCEEDINGS ADJOURNED AT 4:13)  34  35  36 I hereby certify the foregoing to  37 be a true and accurate transcript  38 of the proceedings herein to the  39 best of my skill and ability.  40  41  42    43 LISA FRANKO, OFFICIAL REPORTER  44 UNITED REPORTING SERVICE LTD.  45  46  47


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