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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-06-19] British Columbia. Supreme Court Jun 19, 1989

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 17670  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1 Vancouver B.C.  2 June 19, 198 9  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 19th day of June, 1989.  In the matter of Delgamuukw  8 versus Her Majesty the Queen at bar, my lord.  9  10 ROBERT GALOIS, a witness called on  11 behalf of the Plaintiffs, having  12 previously been duly sworn, testified  13 as follows:  14  15 THE REGISTRAR:  May I remind you, sir, you are still under oath.  16 Would you state your name for the record, please?  17 A   Robert Galois.  18 THE REGISTRAR:  Thank you, sir.  19 THE COURT:  Well, where are we, Mr. Adams?  20 MR. ADAMS:  My lord, when we left off in May you anticipated  21 correctly that with a month to play with counsel might  22 be able to think of another question.  Yes.  And I have a very few.  All right.  Thank you.  26  27 EXAMINATION IN CHIEF BY MR. ADAMS, Continued:  28 Q   Dr. Galois, you make reference both in your report and  29 in the documents collected in the exhibit binders to  30 the Special Joint Committee in 1927.  I wonder if you  31 could just in a sentence or two remind us what the  32 Special Joint Committee was and how it came to be?  33 A   It was a committee of the House and the Senate which  34 was established in 1927 following a -- as a result of  35 a petition submitted by the allied tribes.  This  36 followed the, oh, the Orders in Council of 1923 and  37 1924 concerning the implementation of the findings of  38 the McKenna McBride Report, and it was concerning the  39 claims of the allied tribes, I think, in general.  40 It's -- the terms of it are contained within the  41 report.  42 Q   I wonder if the witness could be shown Volume 6 of his  43 document binders.  And I refer in particular to tab  44 355 which is towards the front of the volume.  My  45 lord, I have given to my friends this morning and will  46 hand up copies of a table of contents that goes volume  47 by volume as a finding aid for these volumes.  It's  2 3 THE COURT  2 4 MR. ADAMS  2 5    THE COURT 17671  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  COURT  ADAMS  Q  A  Q  also the plaintiffs' intention to produce a  chronological list of documents of Dr. Galois that  wasn't available this morning, but it will be shortly.  Those are two sets.  They are already separated volume  by volume.  And they can just be inserted in each of  the eight volumes.  And there are no, as far as I  understand, change to the content except the volume  number is added.  Yes.  Now, Dr. Galois, can you just confirm for me, first of  all, that the material at tab 355 contains the report  and evidence of the Special Joint Committee to which  you have referred?  Yes.  And then I want to refer you in particular to a  portion of that committee's report which is at small  Roman numeral VII, and those numbers, my lord, begin  immediately after table of contents and -- well, no.  I am sorry.  The numbering includes the table of  contents.  Yes.  I have a small seven.  Yes.  Starting "British Columbia" at the top.  That's correct.  Yes.  And, Dr. Galois, I want to refer you in particular to  the final paragraph on that page beginning "early in  the proceedings" where it says:  "Early in the proceedings it developed that the  aboriginal title claimed was first presented as a  legal claim against the Crown about 15 years ago."  And my question is this:  Based on your review of the  sources that are cited in your opinion report, is that  or is it not an accurate statement?  MR. WILLMS:  I object, my lord.  Obviously the witness can't  characterize a claim as a legal claim.  He can say  there were other claims.  That's fine.  But whether it  was a legal claim or not this witness can't answer  that.  THE COURT:  Yes.  All right.  MR. ADAMS: Well, my lord, it's not -- the sentence isn't in the  context of evaluating its legality or otherwise. It's  someone's characterization of the claim.  And I --  THE  MR.  THE  MR.  THE  MR.  COURT  ADAMS  COURT  ADAMS  COURT  ADAMS  Q 17672  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  A  THE COURT  MR. ADAMS  Q  A  Q  A  Q  : Well, I don't think we should have an argument about  whether it is or it isn't. I am not going to be bound  by the answer, but on the other hand it's just as easy  to ask him are you aware of earlier claims.  :  Yes.  I have no problem with that.  :  I am sure he is.  Am I to answer?  :  No.  I will ask the question again.  As a matter of  reference to claims of aboriginal title against the  Crown and saying that that was first presented about  15 years ago speaking in 1927 on your review of the  sources cited in your report, is that or is it not an  accurate statement?  No.  I think there were claims advanced prior to 1912.  Certainly.  All right.  Let me ask you to refer first of all to  page -- pages 15 through 17 of your opinion report.  I don't have a copy of that.  And you have already addressed the contents of this  1884 petition in your evidence and I don't propose to  have you repeat that.  But I do draw your attention on  page 16 to the first full paragraph saying:  "The district is not held unitedly by all the  members of the tribe but is portoined out among  the several families and no family has a right to  trespass on another's grounds."  And then further down the same page 13 lines from the  bottom, 14 lines from the bottom:  "Now we bring the matter before you, and  respectfully call upon you to prevent the inroads  of any white men upon the land within the  fore-named district.  In making this claim, we  would appeal to your sense of justice and right.  We would remind you that it is the duty of the  Government to uphold the just claims of all  peaceable and law-abiding persons such as we have  proved ourselves to be.  We hold these lands by  the best of all titles.  We have received them as  the gift of the God of Heaven to our forefathers,  and we believe that we cannot be deprived of them  by anything short of direct injustice." 17673  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Q  And let me ask you to hold that in mind for one moment  and ask you to refer now to tab 196 in Volume 4.  And  this is a document headed "Papers Relating to the  Commission appointed to enquire into the state and  conditions of the Indians of the North-West Coast of  British Columbia" and the heading is dated 1888.  I  wonder if you could explain very briefly what this  document is.  This is a commission that was appointed to enquire  into the various events that had taken place primarily  at Metlakatla but also on the lower Skeena and the  Nass which led up to and culminated in the departure  of the coast Tsimshian from under William Duncan from  Metlakatla and various disturbances surrounding those  events.  All right.  Let me refer you to the second page of the  tab.  These are not numbered, my lord.  We will have  to count in for them and that has it at the very top  Victoria, September 29, 1887, and what appears to be a  letter from Alex E.B. Davie, Attorney General, to J.  P. Planta, P-1-a-n-t-a.  :  Where do I find that?  :  That's the second page of 196, my lord.  In the  upper left-hand corner it will say J. P. Planta.  :  Yes.  And I just want to direct your attention, Dr. Galois,  to a sentence or two in that copy of a letter.  It  refers to meeting the Indians of the Nass River in  Fort Simpson localities:  "for the purpose of hearing the expression of  their views, wishes and complaints if any.  Such  will be the main object and scope of your visit  and you will please be careful - while assuring  the Indians that all they say will be reported to  the proper authorities - not to give undertakings  or make promises, and in particular you will be  careful to discountenance, should it arise, any  claim of Indians title to Provincial lands.  I  need not point out that the Provincial Government  are bound to make, at the request of the Dominion,  suitable reserves for the Indians; and it will be  advisable, should the question of title of land  arise, to constantly point this out, and that the  Terms of Union secure to the Indians their  reserves by the strongest of tenures." 17674  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Q  And then let me ask you to go over one more page.  And  that's a page, my lord, beginning "The Commissioners  were conducted."  :  Yes.  :  And I am in the fourth full paragraph beginning "the  Commissioners had claims."  :  Yes.  "The Commissioners had claims and demands  reiterated before them by the chiefs and others  who addressed them, much more sweeping in  character than was the case at Kincolith."  And then skipping down to the next paragraph:  "The basis of the claims advanced was the  assertion of the 'Indian Title' to the whole  country.  The Commissioners had to combat and deny this by  stating the law on the subject, as required by  their instructions."  And then on the same side of the same page two more  paragraphs down there is, about three-fifths of the  way down the page "At the close of the meeting."  "At the close of the meeting at Naas Harbour an  address purporting to be signed by eleven up-river  chiefs was handed in, as an addition to their  speeches.  The address contains a reiteration of the 'Indian  Title' in reply to the remarks made by the  Commissioners when closing the meeting."  And then going down to four lines from the bottom:  "Thus, as to the determined assertion of the  'Indian Title," your Commissioners found that this  was not shared in by the Kincolith branch of the  Nish-kar Nation, while it was strongly pressed by  the people of Greenville and some of the chiefs  from farther up the river." 17675  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1 And then going over another page, this one beginning  2 "group and on the Skeena" and I would refer you to the  3 third last paragraph on that page beginning "the  4 Indian adherents," where it says:  5  6 "The Indian adherents of the Church Missionary  7 Society, and resident at Kincolith and  8 Metlakatlah, put forward no claim of 'Indian  9 Title' to the lands of the Province.  In all  10 matters they expressed themselves as loyal to the  11 Federal and Provincial Governments, as desiring to  12 come under the Indian Act, and to have among them  13 Indian Agents.  On the other hand, the natives  14 Greenville, on the Naas river, and the Tsimpseans  15 of Port Simpson, stations of the Methodist Church  16 of Canada, strongly urge their claim to ownership  17 in all the country, and speak most determinedly as  18 to what shall be their course of action if their  19 claim be not allowed.  They repudiate the idea of  20 the provisions of the Indian Act being exercised  21 with regard to them, and decline to receive an  22 Indian Agent."  23  24 And then one further page over there is a heading  25 "Indian Title to Land" and under that heading it says:  26  27 "With reference to this question we found Indian  2 8 opinion divided."  29  30 And then skipping one sentence:  31  32 "The Greenville people and some of the chiefs  33 living still farther up the Naas River, and the  34 Tsimpseans of Port Simpson, hold pronounced views  35 upon the question.  They also professed to speak  36 for the Upper Skeena that people.  37  38 The Greenville and Upper Naas people demand that  39 a treaty be made with them with reference to the  40 land in their neighbourhood, outside of the  41 reserves they desire to appropriate.  They mean  42 that they require a sum paid down or annual  43 subsidies, or in lieu of payment they propose that  44 they should be allowed to pick out land outside of  45 the reserves to the extent of 160 acres for each  4 6 individual."  47 17676  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1  2  3  4  5  6  A  7  MR.  ADAMS  8  9  10  11  12  13  14  15  16  17  18  THE  COURT  19  MR.  ADAMS  20  THE  COURT  21  MR.  ADAMS  22  THE  COURT  23  MR.  ADAMS  24  THE  COURT  25  THE  REGIS  26  27  MR.  ADAMS  28  29  THE  COURT  30  MR.  ADAMS  31  32  THE  COURT  33  MR.  ADAMS  34  THE  COURT  35  MR.  ADAMS  36  THE  COURT  37  MR.  ADAMS  38  39  40  THE  COURT  41  MR.  ADAMS  42  THE  COURT  43  MR.  ADAMS  44  45  46  47  And my; question out of all that material is simply  are those examples of the materials that you refer to  when you say that you find in your search of the  sources contradiction of the statement made in the  Special Joint Committee report?  Yes.  Now one final area.  My lord, on last Thursday or  Friday, I believe there was disclosed and delivered to  the plaintiffs material from the Federal defendant  which consists of documents in the same time period  and covering some of the same subjects as Dr. Galois.  And what I seek leave to do is to put those documents  in through him.  I don't have a lot of questions for  him as far as their content.  It may be he can help us  read a couple of them.  And my proposal is that those  be added to the appropriate tabs and I have copies for  all concerned here.  What tabs are they going to go into in your view?  416 and 418.  Oh.  All right.  In the case of 4  Oh.  I am sorry.  Yes, my lord.  Yes.  All right.  -- that would be in Volume 7.  416?  That's —  RAR:  This first document you gave me is going behind  tab 16.  They are marked in the upper right-hand corner where  we are proposing to put them.  This will be 418B.  The one that has the Federal number 12693 in large  numbers would be 418B.  418B is the same as tab 18, Volume 7, is it?  Let me confirm that.  I think that's right.  I am not positive.  Yes, my lord.  That's correct.  All right.  Yes, my lord, there is a  before this morning. What  418A.  Yes.  And 12693 as 418B.  Yes.  And then at 416A I have tendered 12696.  And it's  that one that even in the copy I got was sufficiently  unclear that I suggest we ask the witness to read  through it, omitting the quotations from the Indian  Act.  418 that is already in  I have tendered is 12692 as 17677  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1  THE  COURT  2  MR.  ADAMS  3  THE  COURT  4  MR.  ADAMS  5  6  THE  COURT  7  MR.  ADAMS  8  Q  9  10  11  A  12  Q  13  A  14  15  16  17  Q  18  A  19  20  21  Q  22  23  24  A  25  26  27  Q  28  29  30  31  A  32  Q  33  THE  COURT  34  MR.  ADAMS  35  Q  36  37  A  38  Q  39  A  40  Q  41  A  42  43  44  45  46  47  416A will follow what is now 416?  That's correct.  Yes.  All right.  And in fact, I think it will emerge that it is a  reply to what was already in 416.  :  All right.  Dr. Galois, I wonder if you could look at 416A.  That's a letter that appears to be dated November 23,  1920?  Yes.  And it's signed by whom?  Duncan C. Scott, who at this time was the Deputy  Superintendent General of Indian Affairs.  In other  words, the head of the sort of the permanent civil  service for the Department of Indian Affairs.  And it's addressed to whom?  The Reverend, and I can't read the initials clearly,  but it is the Reverend Shearer who is the General  Secretary of the Social Service Council of Canada.  And if you look at the previous document in the same  tab, 416, from your review of the documents is there a  relationship between 416 and 416A?  Yes.  I take this to be a reply to the letter of  November the 9th and it's signed there by J. G.  Shearer.  It's much clearer.  All right.  Now, I wonder if I could ask you, omitting  the quotation of the relevant section of the Indian  Act, whether you could read through 416A for us,  please?  Where would you like me to start?  Right at the beginning and then you can skip over --  :  Well, the first two paragraphs are easy to read.  All right.  Maybe I can ask you to start in the last  line of the first page.  "As regards to the upper Skeena district."  Comprised?  Surprised.  Comprised?  "Comprised within what is known as the Babine and  upper Skeena Indian Agency, I say -- I may say  that -- "  I can't read the next word. 1767?  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  THE COURT:  MR. ADAMS:  Q  A  "-- no distant date to appoint a new agent."  Then the next part is illegible.  And "who will  exercise" something or other.  Perhaps I could just  add that what is being referred to here is the fact  that R. E. Loring, who had been the only Indian agent  serving in the Babine agency, retired on or was due to  retire on -- at the end of the year 1920.  In other  words, December the 31st.  And Scott is aware of this  and is indicating by way of reply to Shearer that a  new Indian agent will be appointed in the near future.  As events transpired, an interim agent, H. C. Wrinch,  served for a brief period before Edward Hyde was  appointed as the permanent Indian agent.  I am not  quite sure when he arrived, but it was sometime, I  think, in 1921.  Shall I continue reading?  Please.  "Every effort compatible with the circumstances  connected with this troublesome question has been  made by the department to, if not at once  exterminate the practice, at any rate bring about  a reasonably satisfactory condition of affairs.  Experience has shown that as the potlatch is a  custom which has been handed down for generation  and is closely interwoven in the social system of  the Indians of this Province, it cannot possibly  be eradicated by any abrupt application of force  without causing other complications.  The only  successful treatment being a patient in gradual  discouragement of the practice.  The department's  agents are instructed to enforce the law but, in  the first place, to endeavor to prevent any  necessity therefor by closely observing the  movements of their Indians and to check any  inclination to develop the potlatch.  Our agent's  reports show a quite satisfactory condition on the  whole, the practice being now limited to what may  be regarded as a comparatively few bands.  There  is no doubt whatever that with patient and careful  handling the practice in a remarkably short  time will become -- "  'Reasonably."  "Reasonably.  "Reasonably.  Sorry. 17679  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  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  " -- short time will become extinct.  Many of the  younger Indians now profess disapproval of the  practice which of itself is regarded as a hopeful  indication in the direction desired.  While, as I say, the department is carrying  on a steady policy in the direction of eradicating  the custom, I may refer to the fact that this is  being done in the face of objections that are  quite frequently made by prominent citizens of the  Province, some of whom not only advise a  moderation of the law but it's abolition.  You will observe that by the amendment above  mentioned the offence has been made a summary  instead of an indictable one; this has been  brought about with a view to the department's  having greater control -- "  THE COURT:  "Control."  A       " -- by -  THE COURT:  "Cases."  MR. ADAMS:  Q   "Cases."  A  " -- cases being placed in the hands of the Indian  agents.  As regards the suggestion, however, of  some of the Missionaries that the Government  give Indian agents power to act in cases where  white men are living with Indian women unmarried,  I may say that, apart from the question of the  expediency of granting such powers to the Indian  agents, it would no doubt be very difficult to-- "  I can't read the next two words,  " -- in this direction.  The Department is -- "  I can't read the next word,  " — of the efforts — "  Perhaps "conscious."  " -- of the efforts of those who are kind enough  to lend their assistance in dealing with this 17680  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1 troublesome matter, and I shall be glad to give my  2 further — "  3 THE COURT:  No.  "Any further," isn't it?  4 A  5 "I shall be glad to give any further,"  6 yes, "recommendations -- "  7 MR. ADAMS:  8 Q   "Representations"?  9 A   Yes.  10  11 "-- representations my best consideration.  A copy  12 of your letter and of my reply are being sent to  13 our Chief Inspector, Mr. W. E. Ditchburn,  14 Victoria in order that the matter may be kept  15 fully in view.  Yours very truly, Duncan C.  16 Scott."  17  18 Q   All right.  Having in mind that letter and the two  19 documents that now appear as 418A and 418B, if you  2 0 want to take a moment to review those.  21 A   Yes, I would like to, please.  22 Q   Let me ask you a few questions about those documents.  23 First of all, you address in your opinion report and  24 have addressed in your evidence certain opinions with  25 respect to the existence and the function and the  26 persistence of the Feast, correct?  27 A   Yes.  28 Q   Okay.  And you don't list these three documents as  29 sources?  30 A   No, I did not.  31 Q   All right.  And my question is simply having now seen  32 these documents and had an opportunity to review them,  33 do they influence or not your opinions as expressed in  34 your opinion report and your evidence on the subject  35 of the Feast?  36 A  Well, the latter two documents don't refer to the  37 upper Skeena area.  They are concerned one with the  38 Kwakiutl people at Alert Bay and the other one seems  39 to be a more general reference to the status of the  40 Province as a whole, but in terms of the persistence  41 of the Feast and the indications of the functions that  42 it fulfills, I don't see anything that would change my  43 opinion.  44 Q   Now, my lord, as a final matter, I believe that at the  45 beginning of Dr. Galois' evidence I asserted that the  4 6 contents of his document binders, and we now have made  47 a few additions to that in the course of his evidence 17681  R. Galois (for Plaintiffs)  In Chief by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  and this morning, were or would become a complete  catalog of his sources as listed in his opinion  report.  And just so that there is no doubt on it as  to that, I wanted to ask him to confirm that for your  lordship.  Dr. Galois, to your knowledge did eight document  binders as supplemented in the course of your evidence  contain or at least list all the sources on which you  relied for your opinion report?  A   To the best of my knowledge I think, yes.  Q   Okay.  And then as a final final matter, my lord, the  opinion report itself has been marked as an exhibit  for identification and I understood your lordship to  say that we might argue at the end of his evidence or  some other time about whether it could or should be  marked as an exhibit proper and I don't want to close  my direct-examination without having asked that it be  marked, even though I am quite prepared to defer the  argument on that question to an appropriate time.  COURT:  All right.  What do you say, Mr. Willms, Mr.  Macaulay?  WILLMS:  Well, the only thing I say, my lord, I just repeat  the objections I made before the evidence was led.  I  don't have anything further to add to the objections  that I have already made.  So I still object to the  admission of the report and the opinions contained in  there.  MACAULAY:  Yes.  So do I, my lord.  COURT:  Well, I think if that's the case, I should leave it  for identification, because we are going to have  argument on these matters at some stage and I will be  glad to deal with this then.  ADAMS:  That completes my examination, my lord.  COURT:  Thank you.  ADAMS:  I should say, my lord, I don't recall whether the  volumes were tendered.  Oh, 1035.  And I should say I  take my friends as tendering the documents as  documents that the witness relied on and there still  is an argument which we intend to raise before the  plaintiffs close their case on the effect of, if I can  call them fact documents that have been marked along  with expert reports.  So I don't want to take the  marking as being an acknowledgement that they are all  admissible for whatever my friend may say.  We still  have to deal with that.  THE COURT:  Have these document books been marked 1035 Roman I  to VIII for identification?  MR.  THE  MR.  THE  MR. 17682  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  REGISTRAR:  No.  They are exhibits proper.  COURT:  They are exhibits?  REGISTRAR:  Yes, they are.  ADAMS:  I think your lordship's comment at the time was  subject to just exceptions.  Yes.  All right.  And in fact, it's still the case that some of the  documents listed are not there because we have yet to  obtain copies.  And my intention is still to improve  the copies and fill in the blanks.  Yes.  All right.  Without adding to the witness' evidence.  Thank you.  Have counsel agreed who will  cross-examine first?  MACAULAY:  Yes, my lord.  Mr. Willms will.  COURT:  Thank you, Mr. Willms.  COURT:  ADAMS:  COURT  ADAMS  COURT  CROSS-EXAMINATION BY MR. WILLMS:  Q   I wonder if the witness' report could be put before  him and Volume 5.  And Dr. Galois, could you please  turn in your report to page 57.  And turn in Volume 5  to tab 259.  Right.  Now, my friend put the middle  paragraph in page 57 of your report to you, your  discussion of the situation concerning the Feast.  Missionary opposition, Loring maintaining the stance  on the reform of the Feast system and then you say in  your report:  "It is clear that the Feast was undergoing a  number of formal changes, but contemporary and  subsequent reports indicate that Loring, on the  latter points, was guilty of wishful thinking."  And then my friend directed you at tab 259 to a letter  which is the second letter at the tab, a letter of  December 31, 1902 -- 1904 and the second page, and  read the penultimate paragraph, and in that paragraph  what was -- what is set out in that paragraph and just  at the page -- the second line down, you see the word  "aside"?  A   It's very difficult to read this.  Q   Well, the second line.  COURT:  In that last full paragraph.  WILLMS:  Q   In the last full paragraph it starts "aside of these."  It's the second line, my lord.  COURT:  Well, I can hardly read it anyway,  THE  MR.  THE  let alone find 17683  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  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  it.  MR. WILLMS:  Q   Sorry.  THE COURT:  MR. WILLMS  THE COURT:  WILLMS  Q  MR.  A   "Aside of the  Q   The third lin  line "aside o  on the very 1  Of tab 59?  Yes.  Oh.  Yes, I  e, it's in the second sentence, the third  f these" in the second to last paragraph  ast page of the tab.  have it.  Thank you.  A  Q  A  A  THE COURT  "Aside of these of whom all are Roman Catholics,  it is well to mention that the Kit-Ksuns all but a  few of the very old embrace the Christian faiths  and beliefs and because of this ascendancy  throughout the district of the Skeena, the  potlatch is put down for good and all as in every  condition evolved regarding the survival of the  fittest."  Now, just what evidence did you see in the historical  record for the holding of a potlatch after 1904?  Well, I guess the best example of that was in 1921  when four Kispiox Indians were arrested for holding a  Feast.  Well, I said potlatch.  Well, I can't remember I mean this -- they were  arrested and charged under Section 149 of the Indian  Act as it was at that time, which is the potlatch  prohibition segments of the Indian Act.  Now, in your report when you refer to the historic  documents, do you assume that the Feast is the same as  a potlatch, or do you assume that they are different  when they are being referred to in the historical  documents?  Well, there is an enormous variety of historical  documents.  One problem with the some segments of the  historical documents, particularly the legal  prohibition, is the ambiguities about the definitions  of what a potlatch is.  I understand, and take it to  be that that is referring broadly speaking to the  Feast system.  And through the course of time as  various amendments were made to that Act the  definition was made more precise.  :  Well, is it fair for me to make a note that you  assume that potlatch equals Feast where those terms 17684  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 appear in the historical documents and vice versa?  2 A   I am not sure I would want to make a complete blanket  3 statement on that.  4 MR. WILLMS:  5 Q   I am showing you a letter of July 21, 1906 from Loring  6 and, my lord, this is -- I believe that this is at tab  7 260, but at tab 260 it's very difficult to read  8 because of the photocopying, and -- but I think it's  9 the very last document at tab 260 and so this -- I  10 just hand this up because it's a little more readable.  11 If you look, Dr. Galois, at the first page of this  12 letter of July 21, 1906, you will see at very bottom  13 paragraph, and this is Loring to Vowell.  And, my  14 lord, I am on the first page of the photocopy that I  15 handed up.  Loring says this:  16  17 "Insofar as the so-called potlatch is  18 concerned,"  19  20 And he's referring to a complaint about a potlatch  21 having taken place,  22  23 "Insofar as the so-called potlatch is concerned,  24 it was merely a memory Feast attended by the old  25 heathens of Kuldoe, Kisgegas and Kitwankool.  26 Really, no objectionable feature is, in my  27 opinion, connected therewith."  28  29 Now, it appears, does it not, that at least in this  30 letter Loring is drawing a distinction between a  31 potlatch and a Feast?  32 A   I don't take that to be the case.  33 Q   Well, if you -- I will read the paragraph before.  He  34 says this:  35  36 "As to the heathen potlatch and dancing, referred  37 to, having made the attendance of children small  38 at that school, I have the honour to state that  39 Mr. Inspector Green was not rightly informed The  40 Indians of Kispiax, whose children make up the  41 attendance were during last winter chiefly in the  42 woods logging."  43  44 And in the very next paragraph he refers to a memory  45 Feast.  He doesn't call it a potlatch.  Isn't he  46 drawing a distinction or did you assume not?  47 A   I would take it to be not.  I take that a memory Feast 17685  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 to be an integral, an essential part of the whole  2 Feast system.  And that the attempts to prohibit the  3 potlatch included such events insofar as they involved  4 the giving of presents and money.  5 MR. WILLMS:   Perhaps that could be 1033-5, my lord.  6 A   I should add that what he is going on here is in part  7 a modification of some of the forms of the Feast  8 system which I describe -- which I mentioned that  9 Loring did in fact describe.  The Feast, as it was  10 carried out in 1920, was certainly not the same as the  11 Feast as it was carried out, say, in the 1880s.  So  12 they were certainly formal adjustments, but in terms  13 of some of the crucial functions of the Feast system,  14 I see this as persisting through the period that I  15 examined in my report.  16 MR. WILLMS:  Could Volume 4 of the witness' documents be put  17 before him?  18 THE REGISTRAR:  This will be marked as part of Exhibit 1033.  19 THE COURT:  Yes.  20  21 (EXHIBIT 1033-5:  Clearer Copy - Loring to Vowell -  22 July 21, 1906, Vol 5, Tab 260)  23  24 MR. WILLMS:  25 Q   And I wonder, Dr. Galois, if you could please turn to  26 tab 207 in Volume 4, and this is a letter from Mr.  27 Loring to Vowell of July 15, 1897, and what I have is  28 a transcript of 207.  I am showing you a typed  29 transcript of that letter.  Now, of course this letter  30 of 1897, the reference is on tab 57 of your report  31 with to communications in 1904 and 1906.  Those were  32 the two or some communication then.  This pre-dated  33 that.  And this is, as I said, a transcript of what is  34 contained at Volume 4, tab 207, and in the second  35 paragraph Loring says this, "in replying to the  36 foregoing," and it's -- well, I should read the whole  37 thing:  38  39 "I have the honour to acknowledge the receipt your  40 Circular & Letter 745 X/2 dated the 8th ultimo,  41 stating that representations have been made to the  42 Department that the Indians had become greatly  43 disaffected owing to the enforcement of the  44 provisions of the Indian Act prohibiting the  45 holding of festivals described as the 'Potlach,'  46 etc., and requesting me to supply full  47 particulars, in duplicate, as concerning my 17686  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Agency.  2 In replying to the foregoing I have the  3 honour to state that in regard to the festival the  4 bands of the Hoquel-get Indians do not observe it,  5 for reasons, no doubt, having been for many years  6 under advices of the Roman Catholic priests."  7  8 Just pausing there.  After 1897, what documents in the  9 historical record are you aware of indicating that the  10 Wet'suwet'en, any Wet'suwet'en people held a potlatch?  11 A   There are a number of destruction, I believe, by  12 Barbeau contained in the potlatch file of the  13 Department of Indian Affairs, RG10, I can't remember  14 the exact number.  But it's a document in 1920, I  15 believe, when Barbeau was beginning fieldwork.  And he  16 visited a number of Feasts.  I can't remember exactly  17 which term that he used.  And he -- one of the  18 particularly intriguing points, at least as far as I  19 was concerned, about his comments on that was that he  20 noted that the R.C.M.P. had been sent to observe this  21 activity, departed at the appropriate time, which I  22 took to mean that they left before they had the chance  23 to observe anything that would be deemed illegal.  24 Q   So -- but you are again equating Feast and potlatch?  25 A   I take that to be what the event that was going on  26 there was a Feast system and that it was illegal under  27 the terms of the Indian Act.  28 Q   Now, carrying on.  29 A  And there are also, as I recall, other Feasts that are  30 recorded in -- for the Wet'suwet'en from the period  31 certainly after 1904.  I can't remember the exact  32 documents.  But certainly it was one, I believe, in  33 1916.  There are accounts of Feasts and money  34 expended, I think, in the local newspapers as a  35 reference to the Grand Trunk Pacific Railway putting  36 on extra carriages to carry some Wet'suwet'en people  37 to Feasts.  And I believe, I am not sure, but if I  38 recall correctly, a Wet'suwet'en chief was arrested  39 following in, I think this is in 1923, because he  40 attended a Feast in the Fraser Lake area.  At this  41 time going to Feasts of your own reserves was a part  42 of the -- was -- was illegal.  43 Q   Just carrying on with Loring's description of the  44 potlatches and Feasts, the paragraph carries on at the  45 bottom paragraph:  46  47 "Each of the bands of Kit-Ksuns divided in respect 17687  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 to holding the Feast.  The old of each band  2 fovour it, whilst the younger of the population  3 are against it.  The real providers for supplies  4 to a potlatch were the latter, hence, the main  5 support gone, the custom is now only lingering to  6 soon meet its end.  The majority of the Indians--"  7  8 I won't read that because that's a guess at what's  9 being said there:  10  11 " -- advice of the new provisions for an  12 enforcement of the Indian Act greatly distracted,  13 pleading they would be deprived of their only  14 diversion, during the long winters, etc, etc.  15 Time and again the Indians assembled here to  16 consessions.  Seeing in the potlatching only one  17 objectionable feature that of wilful destruction  18 of property, I arranged for quietly meeting in  19 Feast under modified forms, and it is pleasant to  20 reflect that the parties interested met us half  21 way by promising the moose skins, blankets and  22 other offerings to the departed in spirit-land,  23 instead being consigned to the flames, to be  24 carefully divided up amongst the poor and aged and  25 that agreement was carried out to the letter.  In  26 fact carried out to a ridiculous extent, in that  27 an old woman was brought down from Kis-piox, and  28 before me, for having thrown a cup-ful of rancid  29 grease onto the fire in order to make it blaze  30 up."  31  32 I am going to suggest again to you that Loring drew  33 distinction in his correspondence between Feasts and  34 potlatches.  35 A  May I finish reading the rest of it?  Well, if one  36 looks at the next paragraph after from where you read,  37 I mean there is a very crucial point there in which  38 Loring is in fact pointing to one of the central  39 functions of the Feast:  40  41 "The origin of the potlatch Feast is only  42 attributable to a desire of being lavish in  43 becoming a man of consequence attending the  44 ceremony in adopting a departed's place and name."  45  46 In other words, that is the central function.  That's  47 what he means by a memory Feast.  And he there 176?  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 describes it as a potlatch.  2 Q   Yes.  But if you read the con -- if you carry on.  3 Well, let's read the rest of the letter.  He talks  4 about the ceremony:  5  6 "The gifts received at this ceremony are  7 considered obligations to be reciprocated, yet  8 those are not able to meet them, are not any the  9 less thought of for that and only pitied for not  10 being likewise grand, and the old of the people  11 generally managed to receive enough at the  12 gathering to last them over the most part of the  13 winter.  14 Should the enforcement of the provisions of  15 the Indian Act under consideration have to be  16 carried out under the in this Agency existing  17 circumstances, I would conscientiously advocate  18 their repeal.  19 The -- "  20  21 And I won't read that.  That's a guess.  22  23 " -- is not known in these parts, but a dance  24 accompanying the dog-eating, formerly practised  25 here, may have been it.  26 Touching on the subject of dog-eating, the  27 most disgusting of all Indian rites, I here may  28 state that nearly eight years ago I forbid the  29 ceremony.  The Indians came and pleaded to allow  30 its performance minus dog.  Not believing in  31 crushing out in a day an old custom, of time  32 immemorial, I consented to the performance in  33 pantomime and imaginary dog and the participants  34 being clothed instead of in a nude state.  35 Two years later, the day of that ceremony  36 was passed over entirely, and today lives only in  37 memory, and to the like relegation, in less than  38 three years hence, the potlatch, or rather what  39 remains of it, will have followed."  40  41 Now, I suggest to you, Dr. Galois, it's clear from  42 Loring's correspondence that he was concerned about  43 destruction of property, dog-eating and the other  44 parts of the potlatch that he refers to in his  45 correspondence, but that he was not opposed and did  46 not try to stomp out things like memory Feasts or as  47 he described on the previous page, "quietly meeting in 17689  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Feast under modified forms," isn't that the case?  2 A  Well, there is no doubt that some of the forms and  3 ceremonies associated with the Feasts were modified to  4 conform with the pressures that were a consequence  5 both of the actions of the missionaries and of the  6 legal system, the banning of the potlatch.  7 Q   You see, if we can just --  8 A   However, as Loring states there, I mean as a central  9 part of the Feast system which he identifies as a  10 potlatch is the whole process of inheriting both name  11 and territory.  And that is the crucial function, the  12 central function, and that is what persists through  13 time.  And the other important point is to see this  14 document as not a single document but as one of a  15 whole succession, a whole -- reflecting a whole  16 historical process which goes on well beyond this time  17 in which even after those objectionable features, as  18 they are described, there are attempts to remove,  19 eradicate potlatches partly in legal terms and partly  20 also I think one has to bear this in mind, the use of  21 the law and what that symbolized and the way that that  22 fitted into the pressure that missionaries brought to  23 bear on both the Gitksan and the Wet'suwet'en.  It was  24 a very important sort of weapon, it seems to me, in  25 their attempts to eradicate the Feast completely,  26 well, after this period.  27 Q   You acknowledge that dog-eating stopped?  28 A   Insofar as I am aware, yes.  29 Q   And destruction of property stopped?  30 A   There may be one or two things that indicate that that  31 wasn't entirely the case.  I believe there is a  32 description of Feast at Kitwanga in 1916 where there  33 may have been some description of property.  There was  34 certainly one of the elements here which is described,  35 the throwing of grease on the fire.  And there was  36 also -- I mean there were also attached with other  37 Feasts what were deemed would be objectionable  38 features which was the -- at least in the missionary  39 reports and I think also an R.C.M.P. report referring  40 to -- I am not sure if Kitwanga or Kitwancool in 1927  41 about the use of alcohol and attendant I think  42 debauchery as it was termed in the missionaries'  43 account of 1916.  44 Q   But, Dr. Galois, if we can return to page 57 of your  45 report where you said:  "Loring, too -- " in the  46 middle of the page:  47 17690  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 "Loring, too, maintained the stance he had  2 developed in the 1890's: he reported on the reform  3 of the Feast system"  4  5 And that I have just read to you,  6  7 "and, on occasion, reported its imminent or actual  8 demise."  9  10 And I am going to suggest to you, Dr. Galois, that he  11 did not report on the demise of the Feast system.  In  12 fact he acknowledged that if it was going to be  13 enforced to cover the Feast, he'd advocate the repeal  14 of the potlatch section.  15 A  Again —  16 Q   That was his position, wasn't it, Dr. Galois?  17 A  Again, we must take this document not as a single  18 document standing alone, but we have to see it in a  19 whole sequence of documents, including a whole series  20 that were written by Loring himself when he refers to  21 this time and time again.  And he is still referring  22 to the imminent demise of the Feast system well after  23 this 1897 letter.  24 Q   But he calls it the potlatch, doesn't he?  25 A   I believe that's the term.  I mean that was the  26 standard term that was used.  I mean that was the  27 legal term under the Indian Act.  I use the Feast term  28 because I mean potlatch was not a term that was used  29 by native peoples there.  I mean its origin, I think,  30 is a chinook term.  31 MR. WILLMS:   My lord —  32 A  And —  33 MR. WILLMS:   — could the transcript be 1033-6.  34  35 (EXHIBIT 1033-6:  Transcript - Loring to Vowell, 15  36 July 1897 - Vol 4, Tab 207)  37  38 MR. WILLMS:  39 Q   And if you could just turn back one page in your  40 report, Dr. Galois, to page 56.  41 THE COURT:  I am sorry, where are you going to now, Mr. Willms?  42 MR. WILLMS:  I am in his report and we are on 57.  I am just  43 asking the witness to turn back one page.  44 THE COURT:  What was the number you referred to, 1033?  45 MR. WILLMS:  1033-6 was the number that I proposed giving to the  46 transcript --  4 7 THE COURT:  Oh. 17691  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 MR. WILLMS:  -- of -- it's the -- because you can't read what's  2 at Volume 4, tab 207.  It's a transcript of what's at  3 Volume 4.  4 THE COURT:  All right.  5 MR. WILLMS:  Tab 207.  6 THE COURT:  Thank you.  7 MR. WILLMS:  The next reference, my lord, was to page 56 of the  8 witness' report.  9 Q   And at the bottom of the page, Dr. Galois, you refer  10 to the Game Act, amendments to the Game Act, and you  11 say it talks about the prohibition on beaver hunting  12 in the last line of page 56, and then at the top of  13 the next page you talk about Indian protests and the  14 prohibition being modified.  And I'm showing you the  15 first report of the Provincial Game and Forest Warden  16 1905.  This was one of the documents and it's referred  17 to in your footnote 48 there that you relied on in  18 alleging that there had been a prohibition on beaver  19 hunting for six years.  20 A   Is there a question?  21 Q   Well, I am just pointing out to you that that, or do  22 you recall -- I mean you recall looking through this?  23 A   I recall looking through this, yes.  24 Q   All right.  25 A  And there was, as I recall, a prohibition on beaver  26 hunting which followed from the Game Act of 1905 and  27 there was a capacity, I believe, in that for that  28 prohibition to be amended or withheld for an  29 unspecified portion of the Province north of some  30 undefined point.  31 Q   Right.  And so if you can turn to page D14 of the Game  32 Warden's Report respecting beaver, there is a  33 discussion of the increase, and I won't read the first  34 couple of lines, a discussion of the beaver increasing  35 in certain parts, but if you go down to the sixth  36 line, the sentence:  "It is, however":  37  38 "It is, however, a fact that what was once a  39 magnificent beaver country is, with the exception  40 of these few places and some parts of the northern  41 country, almost denuded of beaver.  This fact was  42 brought to the attention of the Government last  43 spring, and when the Game Act was amended a clause  44 was inserted protecting beaver for the next six  45 years, but reserving the right for the  46 Lieutenant-Governor in Council to pass an order  47 exempting Indians north of a certain point, and 17692  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 also persons in the habit of dealing with these  2 Indians."  3  4 So the exemption that was ultimately, and the  5 exemption that you referred to on page 57 of your  6 report, the exemption was contemplated at the time of  7 the prohibition?  8 A   Yes.  9 Q   So you don't mean to suggest, do you, that it was only  10 as a result of the protests that the exemption was  11 obtained.  When I read the first sentence on page 57  12 of your report, it seems as if you are suggesting that  13 it was the Indian protests that led to the exemption  14 when in fact the exemption was contemplated when the  15 Act was passed?  16 A  Well, I -- I think that Indian protests, of which  17 there were none from the Gitksan and Wet'suwet'en in  18 1905, were part of the process which culminated in the  19 implementation and the form it was implemented of that  20 segment of the Act.  I believe, too, the Hudson's Bay  21 Company entered the protest.  22 Q   Well, just let's just be clear.  Are you suggesting  23 that it was Indian protests that led to this  24 exemption?  Is that what you're suggesting in your  25 report?  26 A  What I'm suggesting is that Indian protests about the  27 possibility of the ban as the Act made possible, they  28 protested about that and as a result of that the  29 capacity there, which is indicated in that report, was  30 put into play at -- in a such a way that the Indians  31 north of I think the Blackwater River, but I'm not  32 absolutely sure of that, the prohibition was withdrawn  33 for that particular area.  And it was for which is  34 also important that the withdrawal of the prohibition  35 was only for a two year period, not for the six year  36 period.  37 Q   Wasn't it in fact a result of the Hudson's Bay Company  38 approaching the government that the exemption was put  39 in in the first place?  Isn't that the case?  40 A   Sorry, could you repeat that question?  41 Q   Wasn't it the Hudson's Bay Company not the Indians who  42 instigated the exemption in the regulation in the  43 first place?  44 A   I know that there was an objection by the Hudson's Bay  45 Company.  I know also that there were Indian protests  46 entered.  I would presume that both contributed to the  47 exemption that was granted in 1905. 17693  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q   Is Exhibit 962 -- well, my lord, I didn't expect to  2 get to this, but I'll put my copy to the witness and  3 then -- I am showing you a copy of the -- it's the  4 report, the draft report of Dr. Ray, Arthur Ray.  Do  5 you know Dr. Ray?  6 A   Yes, I do.  7 Q   He's the historical geographer?  8 A   Yes, he is, but he works in the history department at  9 U.B.C  But his training and background and his  10 publications are those of a historical geographer.  11 Q   This is Ray 1985.  And on page 86, Dr. Ray says this:  12 I am the at the top of the page.  He says:  13  14 "In 1905 the British Columbia legislature also  15 banned the trapping of beaver for six years for  16 Conservational purposes.  However, the Hudson's  17 Bay Company managed to get an Order in Council to  18 rescind the restriction."  19  20 All right.  Dr. Ray has accurately set out what  21 happened, hasn't he?  22 A   I don't know.  What I can look at, I haven't read the  23 document that he refers to.  The only thing that he  24 does refer to here as far as I can see is a Hudson's  25 Bay Company report of 1905.  26 THE COURT:  What was that reference, please, that's exhibit — ?  27 MR. WILLMS:   That's Exhibit 962, my lord, page 86 and it's  28 right up at the top of the page.  29 Q   Dr. Galois, I suggest to you that Indian protests have  30 nothing to do with the exemption for beaver trapping  31 and that the beaver trapping exemption resulted from  32 Hudson's Bay Company approach to the government and  33 that's why the exemption was put in.  Would you agree  34 with that?  35 A   I would like to look at the documentation to which Dr.  36 Ray refers before making any firm decision on that.  I  37 haven't seen the documentation that he relied upon.  38 As I say, what I have seen is certain protest by  39 Indians from the Stuart Lake area.  My point I guess  40 is the important thing there is the protests  41 themselves.  They are an indication of Indian  42 reaction.  I mean they had no control over the actions  43 of the government per se.  44 MR. WILLMS:  My lord, could the Game Warden Report be 1033-7?  4 5    THE COURT:  Yes.  46  47 17694  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 (EXHIBIT 1033-7:  First Report of the Provincial Game  2 and Forest Warden of the Province of British Columbia  3 1905)  4 MR. WILLMS:  Now, my lord, I am going to turn to another series  5 of documents and I know it's a couple of minutes  6 early.  If it would be appropriate to break now.  7 THE COURT:  All right.  Thank you.  This is 1905.  Yes.  All  8 right.  Thank you.  9  10 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING RECESS)  11  12 I hereby certify the foregoing to be  13 a true and accurate transcript of the  14 proceedings herein to the best of my  15 skill and ability.  16  17  18  19 Laara Yardley, Official Reporter,  20 United Reporting Service Ltd.  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 17695  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29 (PROCEEDINGS RECONVENED AT 11:35 a.m.)  30  31 THE REGISTRAR:  Order in court.  32 THE COURT:  Mr. Willms.  33 MR. WILLMS:  34 Q   Dr. Galois, could you turn to page 15 of your report.  35 And at page 15 through to 17 of your report you've  36 quoted a petition from the Kitwanga chiefs, October  37 10th, 1884?  38 A   Yes.  39 Q   And you obtained that quote from the Return to an  40 Order of the Legislative Assembly, 2nd February, 1885,  41 document I put in front of you?  42 A   Yes.  43 Q   And in fact, the document that you've quoted is on  44 page 284 of the Return, starting -- my lord, these are  45 numbered in alternating right -- upper right and upper  46 left-hand corners.  47 But on page 284 which is the number in the left- 17696  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 hand corner, the petition from the chiefs starts at  2 the bottom and carries over to the next page?  3 A   Yes.  4 Q   And now, my lord, you may want to note, a document --  5 this document is also found at volume 3, tab 105, but  6 parts are cut off so I've replicated it so we can read  7 the whole document.  8 THE COURT:  Yes.  9 MR. WILLMS:  And I would ask that this document be marked  10 1033-8, the Return.  11  12 (EXHIBIT 1033-8 - Return to an Order of the  13 Legislative Assembly dd. February 2, 1885)  14  15 MR. WILLMS:  16 Q   Now you know, Dr. Galois, that the petition of the  17 Kitwanga chiefs was written by Reverend Tomlinson?  18 A   In the sense that it was written down by him, yes.  19 Q   Yes.  And so that if we look -- and you started  20 quoting -- you quoted the petition from page 284, but  21 the immediately preceding piece of correspondence is a  22 letter from Reverend Tomlinson to the Provincial  23 Secretary, October 20th, 1884, and that was the letter  24 enclosing the petition of the chiefs?  25 A   Yes.  26 Q   And just to set the stage of the exchange in  27 correspondence, if you turn back to page 279 of the  28 return, there is a letter on page 279 at the very top  29 of the page dated February 29th, 1984.  3 0    THE COURT:  18 84.  31 MR. WILLMS:  32 Q   Sorry, 1884.  That is the — a letter from the  33 Provincial Secretary to the Reverend Tomlinson, and  34 that went on the 29th of February.  And then if you  35 look to Mr. -- to Reverend Tomlinson's reply which we  36 were just at at page 283, you will see that what  37 Reverend Tomlinson did was he translated the letter  38 from the Provincial Secretary to the Indian chiefs and  39 then he drafted -- he wrote down the petition which he  40 returned.  So that's the exchange of correspondence  41 there?  42 A   Yeah.  43 Q   Correct?  44 Now, when you looked at the petition and Reverend  45 Tomlinson's letter enclosing the petition, you knew  46 that Reverend Tomlinson had not written down exactly  47 word for word what the chiefs had said, correct? 17697  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 A   Yes.  That's -- yes, it is not -- it makes no claim, I  2 take it, anyway, to be a verbatim copy.  3 Q   All right.  And so you don't know how much of the  4 petition was exactly what the chiefs said and how much  5 of the petition was something that Mr. -- that  6 Reverend Tomlinson interpreted for them and wrote down  7 himself?  8 A   One can't be absolutely sure, but one can, I think,  9 make some intelligent inferences in terms of the  10 information that is contained in there.  And I would  11 suspect too that Tomlinson, who at this stage could  12 certainly speak Nishga, and I think he could speak  13 Gitksan, would, I would assume at any rate, have  14 informed the chiefs of what he had in fact  15 communicated.  16 Q   But you will agree with me that what we can agree on  17 is that Reverend Tomlinson wrote this, that it wasn't  18 exactly verbatim what the chiefs told him, and that we  19 don't know which parts are verbatim and which parts  20 aren't?  21 A  Well, I can only repeat my previous statement.  22 THE COURT:  Where does it say that they are not necessarily the  2 3 s ame ?  24 MR. WILLMS:  Well —  25 THE COURT:  Page 283?  26 MR. WILLMS:  The witness agreed with me, my lord, that Reverend  27 Tomlinson says at the top of page 284 when he encloses  28 the petition, he says:  29  30 "As regards the accompanying petition of the  31 Kitwingach Chiefs, I am happy to be able to  32 inform you that the meeting was conducted in  33 the most orderly manner; that there was a  34 complete absence of all violent action or  35 utterance, and though, through my effort to  36 keep as near the original as possible, parts of  37 the petition may seem curt, no disrespect was  38 intended."  39  4 0 THE COURT:  All right.  41 MR. WILLMS:  42 Q   And I'm just trying to establish that there is no  43 way -- or maybe the witness can point to another  44 document -- is there any other document written by  45 Reverend Tomlinson which would set out how much of the  46 petition is verbatim and how much isn't?  47 A  Well, what he says there.  He attempts "to keep as 1769?  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 near the original as possible."  And again, I would  2 reiterate what I said before, given the role and  3 relationship that Tomlinson played, I would assume  4 that he informed the chiefs of what he had  5 communicated in writing, and as I indicated, he was  6 certainly fluent in Nishga at that time and I think,  7 though I can't be absolutely sure, that he was fluent  8 in Gitksan.  One should remember that he had -- he  9 established a mission at Kitselas, seven miles north  10 of Kispiox in 1879, and he had been in charge of that  11 with, I believe, one year out until 1883.  And so he  12 had by 1884, some reasonable experience of Tsimshian  13 speakers and the Gitksan included amongst them.  14 And so that my point there would be -- is that he  15 is not only familiar with the language, but the people  16 and their customs, and I am sure that that would have  17 informed the way that he wrote that down.  And as he  18 indicates in his accompanying letter, he has stuck as  19 near as possible to the original, whilst admitting and  20 trying by way of explanation to point out that no  21 disrespect, as he puts it, was intended.  22 Q   Right.  But you will agree with me that you cannot --  23 when you read the petition that you've quoted there,  24 you must emphasize the sense of the petition rather  25 than the particular language used, because the  26 language may be Reverend Tomlinson's?  27 A  Well, I really can't add to what I've previously said.  28 I mean it is not a verbatim translation.  Tomlinson  29 states that.  He states that he has stuck as closely  30 as possible to the original, and I would think in  31 terms of the substance of the information that it  32 conveys, it would reflect the views of the chiefs at  33 Kitwanga.  34 Q   Now —  35 A   I have no reason to believe anything to the contrary.  36 Q   All right.  Turning -- just keeping with 1033-8,  37 because you refer to it off and on throughout the  38 report -- if I can just take you to a couple more  39 places where you refer to it.  40 Page 36 of your report, you quote again from the  41 Return, in the middle of the page.  And if we can just  42 line up -- in the middle of the page when you are  43 talking about:  44  45 "Indian concern over access to land and  46 resources.  This was made clear at a meeting of  47 the chiefs of the Gitksan tribes.  One chief 17699  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 summed up the sentiments of all the chiefs when  2 he stated, according to Reverend Tomlinson,  3 that the 'exclusive right we claim to hunt,  4 fish, and gather fruit in any particular place  5 is a hereditary right enjoyed by us before the  6 white man came among us'."  7  8 A   Yes.  9 Q   And that, if you look on page 277 of 1033-8, you are  10 quoting there from the very bottom of the page,  11 correct?  12 A   Yes.  13 Q   And ending at "exception".  14 Now, you see that over onto the next page, and  15 this is carrying on with the quote, the third line  16 down, the chief that Tomlinson is quoting from and you  17 quoted from also said this:  18  19 "Some years ago the white men sent the  20 Missionaries among us; a change came, and  21 though we have not yet adopted Christianity, we  22 ceased our quarrelling and fighting.  Look at  23 this knife (produces a double-bladed dagger)"  24  25 THE COURT:  I'm sorry, Mr. Willms, I don't know where you are  26 reading from.  27 MR. WILLMS:  My lord, I'm on 1033-8 on the very first page.  At  28 the bottom of the exhibit was the -- at the very  29 bottom, a quote from the Indian chief:  "The exclusive  30 right we claim to hunt --"  31 THE COURT:  Yes.  Okay.  32 MR. WILLMS:  Now that is in Dr. Galois' report, that line.  33 THE COURT:  Okay.  34 MR. WILLMS:  And he quotes that in the middle of the -- of page  35 36 on his report.  3 6 THE COURT:  Yes.  37 MR. WILLMS:  And now I am just carrying on on the next page with  38 what else the chief actually said.  The witness in his  39 report summarized, but I am just going to -- it's on  40 page 278, my lord, it's the very next page at 1033-8,  41 up at the top of the page, third line down:  "Some  42 years ago --"  43 THE COURT:  Yes.  Okay.  44 MR. WILLMS:  45 Q  46 "-- the white men sent the Missionaries among  47 us; a change came, and though we have not yet 17700  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 adopted Christianity, we ceased our quarrelling  2 and fighting.  Look at this knife (produces a  3 double-bladed dagger), it is rusty; you  4 remember the time it was bright, when hardly a  5 season passed without bloodshed.  For many  6 years this knife has lain hidden away, and I  7 never thought to see it again.  Now the white  8 men, because they think we will not resist,  9 want to rob us.  They have disinterred this  10 knife, and hundreds more like it.  Do I think  11 we can cope with the white man?  No.  We are  12 but as a twig compared to a tree.  They have  13 the men, the guns, the power to annihilate us,  14 but it is better so than that we should live to  15 be beggers.  We will not live and see ourselves  16 and our children robbed.  We can and we will  17 die."  18  19 Now that was -- you said in your report -- I took  20 it as a summary of what the rest of the chief was  21 saying, but in your report you say:  22  23 "If the government was unwilling to guarantee  24 such rights, the chief claimed, his people  25 would neither accept reserves nor allow an  26 Indian agent to reside among them."  27  28 Well in addition to that, he said that there  29 would be bloodshed too, didn't he?  That's exactly  30 what Reverend Tomlinson quoted, correct?  31 A   He holds that out as a possibility, yes.  32 Q   Yes.  And in your review of the historical record, how  33 many deaths of Indians did you see in the historical  34 record respecting the reserve issue in this area?  35 A   How many Indians did I see -- recall being killed as a  36 result of?  37 Q   Of the reserve issue?  38 A   Of the reserve issue?  39 MR. ADAMS:  Well, my lord, I am not sure I understand that  40 question.  How would one know whether a death was as a  41 result of the reserve issue?  42 MR. WILLMS:  43 Q   Well, I suppose from carefully analysing all the  44 historical documents.  Unless -- if the witness can't  45 answer it I'll take that answer, my lord.  If he  46 doesn't know, he doesn't know.  47 A   Could you clarify for me what you mean by "the reserve 17701  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 issue"?  2 Q   Well, "If the government was unwilling to guarantee  3 such rights," I am reading from your report, page 36,  4 that -- that is the rights "to hunt, fish, and gather  5 fruit in any particular place," as you've quoted on  6 your report, I'll call that the reserve issue just to  7 summarize it, okay.  The right to hunt, fish and  8 gather fruit in any particular place, let's call that  9 the reserve issue.  That means off the reserve not on  10 the reserve.  So, how many deaths of Indians did you  11 note in the historical record resulting -- or arising  12 out of this reserve issue?  13 A  Well then, I have to address the question of the  14 reserve issue at this point in time, which is first of  15 all, that there weren't any on the Upper Skeena, there  16 was no --  17 Q   Okay.  I tried to equate reserve, I'll just use the  18 language that you use.  In respect of the exclusive  19 right that the Indians claimed to hunt, fish, and  20 gather fruit, how many deaths did you note in the  21 historical record of Indians in respect of that issue,  22 that right?  23 A  Well, I have to place that in some sort of context,  24 which certainly in the period before -- well before --  25 I guess 1897 anyway, there was no real attempt to  26 interfere with those particular rights.  In other  27 words:  28 "The right to hunt, fish, and gather fruit in  29 any particular place is a hereditary right  30 enjoyed by us before the white man came among  31 us."  32  33 It really was only with the beginnings of white  34 settlement on any scale in the area, which begins --  35 well, I think I dated it in 1898 -- it's in that  36 period when those rights are curtailed.  And of course  37 as part of that process, the whole sort of balance of  38 power, if one will, between Indians and whites, and  39 the coercive power of the whites -- and there had been  40 a number of demonstrations of this after the 1884  41 incident there, I am thinking particularly of the 1888  42 uprising as it's termed.  43 So that the situation had changed after 1898.  44 And I do not recall from that time on, that there were  45 any deaths amongst the Indians as a result of those  46 restrictions.  47 Q   Just on the interference prior to that date, I mean 17702  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 you know that in 1871, Dewdney selected and surveyed  2 the townsite of Hazelton?  3 A   Yes.  4 Q   And you know that he at the same time reserved land  5 for a tribe called the Gitanmaax?  6 A   Yes.  But I don't know that anything happened to that.  7 I am not sure that it ever entered into the -- it  8 became an official reserve.  Because as I recall, and  9 I — I think O'Reilly allotted — O'Reilly allotted  10 the first reserves in the area.  I am unclear as to  11 the status of what happened to Dewdney's designation  12 of an area at the junction of the Skeena and the  13 Bulkley rivers as an Indian reserve.  14 Q   I am showing you two pages of a draft of your report  15 that we had produced to us.  And first of all, these  16 are just two pages, but you recognize this as an  17 extract from one of your draft reports?  18 A   Yes.  Which one and when it was written, I have  19 absolutely no idea.  20 Q   All right.  Well you talk about Hazelton and Dewdney  21 in the middle of the page, and then say this:  22  23 "The results of Dewdney's labours at the forks  24 of the Skeena are neatly encapsulated in Map  25 XX.  This, together with some of his  26 correspondence, is worthy of careful  27 examination.  The following features of Map are  28 significant:  29 1. The townsite and town lots, located at  30 the end of the new trail to Babine.  31 2. The Indian Reserve including Kitenmaik  32 [Getanmax] Village.  33 3. Indian Trails.  34 4. Pre-emptions, Mitchell & Farron, Hankin.  35 5. The location of Hankin's 'old' store."  36  37 So that you know that in 1871, that Dewdney had  38 surveyed Hazelton, laid out an Indian reserve,  39 surveyed some pre-emptions at Hazelton?  40 A   Yes.  But my point was, again, I'm not quite sure what  41 the status of that Indian reserve was.  It seems to  42 me, as I recall the record, that when O'Reilly came  43 along in 1891 to begin the establishment of reserves,  44 he makes no reference to this prior visit by Dewdney.  45 And I seem to recall some other document which said  46 these pre-emptions -- I think it's -- I think it's a  47 letter by the Reverend Field who is a Church 17703  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Missionary Society missionary at Hazelton, that  2 something had happened to these pre-emptions on that  3 reserve and that they hadn't carried through.  I'm  4 sorry I'm vague about that, but I'm sure that there  5 was some other information that I came across  6 subsequent to writing this.  7 The other point that I would make in terms of the  8 issue, of course, is when O'Reilly did visit in 1891,  9 he did specifically exclude any restriction on the  10 access of Indians to resources outside of the  11 reserves.  In other words, what he said quite clearly,  12 and this is in file 126-A of RG10, that the people --  13 the Gitksan were free to continue having access to  14 their fisheries, to their hunting grounds and to their  15 berry patches as before.  And I think he said that on  16 a number of occasions at different places.  17 Q   All right.  Well I'm just trying to get -- I thought  18 you said a few moments ago that prior to the late  19 1800's, I don't know, I can't remember whether it was  20 1897 or 1898, there wasn't any interference with this  21 exclusive right -- claim to hunt, fish and gather  22 fruit.  And I'm suggesting to you that when Dewdney  23 went in and laid out the townsite of Hazelton and laid  24 out the reserve and laid out some pre-emptions, that  25 that must have interfered with that?  26 A  Well, what I've been trying to suggest is that this  27 was something which existed on paper rather than had  28 any great significance as far as I can determine, on  29 the ground.  And I can really only repeat what  30 O'Reilly said in 1891, and from the variety of other  31 documents that I've been able to look at, there seems  32 to be many -- there seems to be very little in the way  33 of any restriction, as I think I said in my report.  34 The words there were "a certain amount of alienation  35 of land" primarily, I think, in terms of -- or the  36 mining legislation is applied at Lome Creek, and it  37 is significant that conflict and problems did arise  38 directly out of that development.  And what that did,  39 of course, was to restrict the access of the Gitksan  40 to gain resources, in particular, by scaring them  41 away.  42 MR. WILLMS:  1033-9 my lord?  4 3    THE COURT:  Yes.  44  45 (EXHIBIT 1033-9 - Two Pages from Draft Report of Dr.  46 Galois)  47 17704  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 MR. WILLMS:  2 Q   I would like to turn back -- I'm still on 1033-8.  I  3 wanted to refer to one more item, and it's an item, if  4 you turn in page -- pages 37 to 38 of your report.  5 You quote from a letter to the Provincial Secretary of  6 September 7th, 1884, and you are quoting from the  7 document that's on pages 279 -- at page 279 of Exhibit  8 1033-8, correct?  That's where you -- from that  9 extract that I handed you, if you look at page 279,  10 that is the document that you are quoting from?  11 A   Yes.  12 Q   Okay.  Now, you'll see if you turn over to page 282,  13 there is a reply at the bottom of the page -- that  14 starts at the bottom of the page from the Provincial  15 Secretary, and this you will recognize as the reply to  16 the letter of Geddem-Cal-Doe?  17 A   Yes.  18 Q   Yes.  And you will see in the last paragraph on page  19 282, in the reply of the Provincial Secretary -- and  20 the reply, my lord, is dated October 13th, 1884 -- he  21 says this in the third paragraph at the bottom of page  22 282:  23  24 "It would, perhaps, have been better if Youmans  25 had acted in accordance with the Indian custom;  26 but you must understand that your law was not  27 binding on him.  It is by the Queen's law that  28 all the people, Indians and whites alike, are  29 now governed, and those who disobey that law  30 must be punished, no matter what they may have  31 been accustomed to before."  32  33 Now, did you note any reply from Geddem-Cal-Doe  34 to this letter from the Provincial Secretary?  35 A   Just like to continue reading, if I may.  36 THE COURT:  What was the date of Mr. Dewdney's survey, please?  37 MR. WILLMS:  1871, my lord.  3 8 THE COURT:  Thank you.  39 THE WITNESS:  Was?  40 MR. WILLMS:  41 Q   Was there -- did you note in the historical record any  42 reply to this letter from the Provincial Secretary?  43 A   I should point out that the letter -- original letter  44 was written by -- written down by Reverend D. Jennings  45 who was a missionary who, I believe, was stationed at  46 Port Essington at that point.  So that no,  47 Geddem-Cal-Doe did not write a letter but he would 17705  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 have required somebody who would have been capable of  2 writing a letter at that point.  3 Q   Right.  But as far as the historical record goes, the  4 letter from the Provincial Secretary ends this part of  5 the historical record?  6 A  Well, I don't think it ends the historical record, no.  7 I mean --  8 Q   This part?  9 A   There is a series of whole incidents which follow on  10 from this, including the death of Haatq and the  11 responses to that and also to the actions of some of  12 the Gitksan people after the removal of Haatq from  13 Gitanmaax by Sergeant Roycraft, Constable -- his name  14 I can't remember -- and A.C. Elliott.  So it doesn't  15 end the historical record as such.  Equally there is  16 no further written communication by Geddem-Cal-Doe in  17 response to the letter from the -- is it the  18 Provincial Secretary?  19 Q   The Provincial Secretary.  20 A   Yes.  21 Q   On page 38 of your report, after you quote this  22 letter, you say that:  23  24 "This statement makes two points abundantly  25 clear:  First the nature of Gitksan law  26 concerning personal responsibility and  27 compensation, together with penalties for non-  28 compliance."  29  30 Then the second thing that you say is:  31  32 "Second, the assumption that Youmans should  33 have acted in accordance with these Gitksan  34 laws."  35  3 6 A   Um-hmm.  37 Q   Now, you will agree with me that the assumption that  38 Youmans should have acted in accordance with the  39 Gitksan laws was because he had a Gitksan wife; is  40 that right?  41 A   That is not entirely clear.  He had a Gitksan wife,  42 that may have been a contributory factor.  I should  43 add, it does seem to be the construction he has put on  44 it by the Provincial Secretary in his reply to that  45 letter.  46 Q   I'm showing you a page from an earlier draft of your  47 report where you quote at the top -- and the top of 17706  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 the page ends off quoting from the letter that is at  2 pages 37 to 38 of your report.  And then -- and then  3 you say something which is -- which foreshadows what  4 is in your report, but contains some information which  5 isn't in your report.  You say this in the middle of  6 the page:  7  8 "Geddem-Cal-doe's statement makes two points  9 with particular clarity.  It reveals the  10 Gitksan 'law' concerning the native  11 responsibility for the accidental injury or  12 death of others, and the need for appropriate  13 compensation.  Equally obvious is the  14 assumption that Youmans should act in  15 accordance with this law."  16  17 And then you say this:  18  19 "Geddem-Cal-doe omitted one piece of  20 information which contributed to this  21 assumption:  Youmans had married into Indian  22 society.  Unfortunately little is known about  23 Mrs. Youmans, although she did continue to  24 reside on the upper Skeena in the following  25 years."  26  27 Now, can you explain why you didn't put that in  28 your report?  29 A  Well, I think it's in part for reasons of compression  30 as much as anything.  This is intended to be a summary  31 report and so I was not going into all of the details.  32 I mean that covers all of the events that I described  33 there.  34 Q   Wouldn't you agree that it's pretty important when you  35 are dealing with the assumption to note that Youmans  36 had an Indian wife?  37 A   It is pertinent, yes.  How significant it is I am  38 unsure, as I think that statement there indicates --  39 MR. WILLMS:  My lord, could the extract be 1033-10?  40 THE COURT:  Yes.  Is it ten?  41 MR. WILLMS:  Should be dash ten.  I put — I've marked a nine.  42 THE COURT:  All right.  Yes.  43 MR. WILLMS:  And my lord, just to let you know where I am, I  44 think dash eight -- I think I am finished with dash  45 eight now and it --  4 6 THE COURT:  All right.  47 MR. WILLMS:  -- and it can be filed in the appropriate place. 17707  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2 (EXHIBIT 1033-10 - Page from Draft Report of Galois)  3  4 MR. WILLMS:  5 Q   And the next point, Dr. Galois, I would ask you to  6 turn in your report to page 18, and I am showing you a  7 document dated October 18th, 1888.  The first document  8 is a letter from the Lieutenant Governor to the  9 Secretary of State, Ottawa, Canada, and this is a  10 copy -- it's transmitting a copy of the report of a  11 Committee of the Executive Council respecting what  12 you've called, I think in your report from time to  13 time, the Skeena River uprising?  14 A   Yes.  15 Q   Yes.  And this is a document that you refer to in your  16 report?  17 A   Yes.  This is one version of it.  There are several  18 versions.  19 Q   Okay.  20 A   That at least as a historical record, including one  21 that was published in the newspaper.  22 Q   Okay.  Well, this one isn't in a newspaper, it appears  23 to have Privy Council Canada on the front page and  24 some stamps from Department of Indian Affairs?  25 A   Yes.  There is -- there is a file, an RG10 file which  26 contains a version of it.  There is also another  27 version in Victoria --  2 8 Q   All right.  29 A   -- in the Provincial Archives.  30 MR. WILLMS:  1033-11, my lord?  31 THE COURT:  Yes.  32  33 (EXHIBIT 1033-11 - Report Re: Skeena River Uprising)  34  35 MR. WILLMS:  36 Q   And this -- in respect of -- just to explain the  37 background for this: this is in respect of the journey  38 of Fitzstubbs and Roycraft to Hazelton, and the  39 meeting that they had in Hazelton, August 8th, 1888,  40 with various Indian chiefs in Hazelton.  That's an  41 important part of this document, correct?  42 A  Well, Roycraft had gone up with a number of B.C.  43 Specials as part of the Skeena River expedition which  44 also included the militia who did not advance beyond  45 Port Essington.  46 Q   Right.  The militia stayed back at Port Essington,  47 some constables went up, they called the Indian chiefs 1770?  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 to Hazelton, and there was a meeting on August 8th,  2 1888, correct?  3 A   Yes.  There was a certain amount of military display,  4 shall we say, by the constables, drilling and target  5 practice, which was clearly designed to have an impact  6 upon the Indian peoples of the area.  7 THE COURT:  How many went up the river?  8 THE WITNESS:  I am not sure, your honour.  I think it was maybe  9 a dozen all told.  There were -- I can't recall the  10 precise -- the number of that.  It may be included in  11 the document, I am not sure.  12 MR. WILLMS:  13 Q   Now —  14 A   There also had been a previous party of provincial  15 police who had gone up about six weeks earlier which  16 there had been -- there were five constables in that  17 party together with the -- with Indian Agent Todd of  18 the Northwest Coast Agency, who I believe didn't go  19 any further than Kitwanga and Kitsegukla before  20 returning down to Port Simpson.  21 Q   Now my lord, and Dr. Galois, if you could turn -- the  22 first part of this document is a copy of the report of  23 the committee, and the pages aren't numbered, but I  24 think if you count in from the back you will see the  25 page with Captain Fitzstubbs and Roycraft at the very  26 top, which describes the meeting of the 8th.  27 THE COURT:  What are the first words on the page?  28 MR. WILLMS:  Captain Fitzstubbs, S.M. and Mr. Roycraft,  29 Superintendent.  30 THE COURT:  Yes, thank you.  31 MR. WILLMS:  32 Q   All right.  Do you have that?  There, that's the page.  33 The previous page you will note, my lord, ends with  34 the clerk of the Executive Council, Robson, signing  35 off on his report, and then he includes the minutes.  36 Now, if you look at the top of the page you will  37 see that:  38  39 "Captain Fitzstubbs and Mr. Roycraft,  40 Superintendent of Provincial Police, summoned  41 the chiefs of the different tribes on the Upper  42 Skeena River to a public meeting in order that  43 they might have all matters between themselves  44 and the Government explained to them, and also  45 an order that any grievances which they might  46 have against either the Government or private  47 individuals be enquired into and settled." 17709  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2 And you will note, I won't read it, but the  3 meeting was on August 8th, 1888, there were 13 chiefs  4 representing five different tribes.  5 This was a very important event, was it not, in  6 the history of the Skeena in the 19th century, late  7 19th century?  8 A   Yes, it was.  I would just add something again about  9 the context of this.  That it followed upon the  10 shooting of a Kitwancool Indian, Kamalmuk, by one of  11 the first party of provincial constables who went up.  12 And this caused considerable unrest, discontent  13 amongst the Gitksan, particularly amongst the people  14 of Kitwancool.  And one point to notice here is that  15 there are no chiefs from Kitwancool at this meeting.  16 Q   Did you know there are no chiefs from Kitwancool in  17 this action?  18 A   This action?  19 Q   Yes?  2 0 A   I am not quite sure what you mean.  21 Q   Now —  22 A   I am sorry, I am not clear what you are talking about.  23 Q   Well, I didn't know whether you knew who the  24 plaintiffs in this action were.  Did you not know that  25 there are no chiefs from Kitwancool who are plaintiffs  26 in this action?  27 A   Quite honestly, I am not sure.  What I was talking  28 about was the Gitksan as a whole of which I included  29 the Kitwancool as --  30 Q   All right.  31 A   -- a part of the Gitksan.  32 Q   Right?  33 A  And in terms of this particular document and the  34 events that we are discussing and the meeting that  35 took place at Hazelton in 1888 in particular, it seems  36 to me it is significant in that there were no  37 Kitwancool chiefs present at this meeting.  And there  38 is a variety of other historical documentation that  39 follows on from later dates, for example, when Vowell  40 visited Kitwancool in 1898, which points to the  41 significance of that mission.  42 Q   Now, I would ask if you would just turn through a few  43 pages here to the -- and it's the concluding words  44 before the Indians -- the Indian chief spoke.  My  45 lord, it's —  46 THE COURT:  Well, I've got a page here where it says "Morelahan,  47 Head Chief of the —" 17710  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 MR. WILLMS:  2 Q   Right.  It's immediately above -- it's eight pages  3 along and it's just before the first head chief  4 speaks.  And this is Roycraft, Superintendent of  5 Provincial Police talking, and he says this, right  6 about the three-hole punch mark, my lord:  7  8 "Before I finish speaking I must ask you to  9 remember that before you came under the British  10 law one tribe was always in danger of being  11 massacred by some other tribe and that there  12 was continual warfare between all the tribes:  13 slaves were taken: but now you all live in  14 peace and quietness because of the Queen's  15 care.  I shall go away soon but Captain  16 Fitzstubbs will remain here with two or three  17 officers to administer justice."  18  19 Now, when you read this -- and I won't read all  20 of what Fitzstubbs and Roycraft said, but it was  21 crystal clear from what they said, that they were  22 making it clear that it was Her Majesty's law and only  23 Her Majesty's law which applied to these chiefs.  24 That's fair, isn't it?  That's what Roycraft —  25 A  Well, it's quite a long statement and I would like to  26 read that through before I agreed to that.  I mean we  27 are talking about -- I don't know how many pages here,  28 and it's some time since I looked at this document.  29 If you would like me to read that through --  30 Q   Well, please do.  Please do.  31 A   From Captain Fitzstubbs?  32 Q   From Captain Fitzstubbs.  And so you have the question  33 in mind, it's my suggestion that both Roycraft and  34 Fitzstubbs are making it crystal clear here that it's  35 Her Majesty's law and Her Majesty's law alone that  36 applies to these Indian chiefs that they are speaking  37 to.  38 A   Roycraft as well?  39 Q   I suggested that they were both making it clear  4 0 THE COURT:  Well, Mr. Willms.  Maybe we should adjourn and let  41 Dr. Galois read the rest of it at his leisure?  42 THE WITNESS:  I just finished reading it.  43 THE COURT:  Oh, all right.  44 MR. WILLMS:  Maybe we could get the answer to the question  45 before we break, my lord.  4 6 THE COURT:  Yes, all right.  47 MR. WILLMS: 17711  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  Q  2  3  4  5  A  6  7  8  9  10  Q  11  12  A  13  14  Q  15  16  17  18  19  A  20  21  22  Q  23  24  25  26  27  A  28  29  30  31  32  33  34  35  36  37  38  39  40  Q  41  A  42  Q  43  44  45  46  THE COURT  47  THE REGIS1  My suggestion was, Dr. Galois, that both Fitzstubbs  and Roycraft were making it clear to the chiefs  assembled before them that it was Her Majesty's law  and Her Majesty's law alone that applied to them?  Well, I think we have to see this in the context of  all of those events of 1888.  What we have here is a  mixture of claims in that direction by Roycraft and  Fitzstubbs and also a good deal in the way of threats  and coercive aspects that -- alongside that.  Well, do you agree with my proposition or do you not  agree with my proposition?  There is certainly -- well, there is a claim,  certainly, by Fitzstubbs in terms of the law, yes.  Yes.  There is nothing in there that says "Indian law  applies to you and continues to apply to you," is  there?  Neither Roycraft nor Fitzstubbs says that?  All they talk about is Her Majesty's law, the Queen's  law?  Well, they talk about more than that.  I can't recall  any statement that says that Indian law would  continue.  And in fact, each of the chiefs -- or almost each of  the chiefs after this assertion was made to them,  accepted that from that point on it would be the  Queen's law that would apply and that they would even  help to enforce it?  Well again, I can't recall all of the answers and I  would need to sit down and read that through to be  sure on that point.  There was a good deal of sort of  formality, shall we say, in terms of the Gitksan  responses.  And I think to a certain extent the  various sort of aspects of coercion and threats to  shoot people down like rabbits and all the various  drill and display that had gone on, certainly had some  impact on what the chiefs said in response to that.  And again, one has to see this in the -- on the  ongoing sort of context of events and not a single  document, in terms of the actions of chiefs in the  period after this.  For example --  Well just --  -- referencing there to --  Dr. Galois, we will go through the chiefs after lunch.  I want to finish off with my question about what the  chiefs did, but perhaps after lunch would be the best  time to do that, my lord.  :  All right.  fRAR:  Order in court.  Court stands adjourned until 17712  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 two o'clock.  2  3 (PROCEEDINGS ADJOURNED AT 12:30 p.m.)  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein transcribed to the  8 best of my skill and ability.  9  10  11  12    13 Toni Kerekes,  14 O.R., R.P.R.  15 United Reporting Service Ltd.  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 17713  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE COURT:  Mr. Willms.  4 MR. WILLMS:  5 Q   My lord, I was in Exhibit 1033-11 just at the end of  6 Roycraft's statement and starting off with the chiefs.  7 And the first chief who spoke is Morelahan,  8 M-o-r-e-l-a-h-a-n.  It's at the bottom of the page  9 right after Roycraft is finished and he says:  10  11 "Great Chiefs.  I thank you for your kind  12 words.  Some of them are severe but they  13 are well meant.  I thank you also for  14 giving me still greater power to preserve  15 peace and good order in my tribe.  16 This is all I have to say."  17  18 Then the next chief, who is described as the second  19 chief of the Kitzeghakla tribe, said:  20  21 "Great Chiefs.  I am pleased to hear what  22 you have said.  As my Chief just now  23 mentioned, some part of what you said was  24 severe but it is for our good.  We are a  25 poor ignorant race, and not until you  26 explained it to us did we have a proper  27 idea of what the law really is.  Soon we  28 will have a great Feast in our village and  29 we will tell our young men all the good and  30 kind words you have said to us."  31  32 Down to the next, it quotes from Spawr, S-p-a-w-r, 2nd  33 Chief of the Kitanmax band, and he said respecting  34 what Roycraft and Fitzstubbs said to him, if you turn  35 over to the next page, third line down:  36  37 "I am but the second Chief, but our Head  38 Chief cannot do anything without my  39 consent.  For some years past, there has  40 been a notice affixed to the hut of the  41 Head Chief to the effect that the Chief  42 would settle all disputes arising between  43 the pale faces and ourselves but the Chief  44 has disgraced that notice, he has held -- "  45  46 Looks like "no meetings."  47 MR. ADAMS:  Secret. 17714  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 MR. WILLMS:  2 Q  3 " -- has held secret meetings behind it and  4 I wish the notice to be taken down and  5 burned as it is no longer pure.  I have  6 finished."  7  8 Then the next chief, Luluth, the Chief of the  9 Kitwangar tribe:  10  11 "I am pleased that you have spoken severely  12 to us, because it shows that there is no  13 hypocrisy lurking in your hearts.  Your God  14 has been good to us, and we will therefore  15 endeavour to obey his laws, which are your  16 laws.  You tell us that the law will  17 protect us and I am pleased that you have  18 told us all this.  I have spoken."  19  20 The next chief, the Head Chief of the Haekilgit tribe,  21 says:  22  23 "I am also pleased that you both have  24 spoken so strongly about the law.  Before,  25 we did not really understand what the law  26 is but now we have been enlightened."  27  28 The next chief, who is it says Kitzbox, I suppose  29 that's the Kispiox tribe, Wassamlaha,  30 W-a-s-s-a-m-1-a-h-a, he says:  31  32 "My people are not here.  I am their only  33 representative present, but I shall tell  34 them what you have said and I trust that  35 when you come to see us again you will find  36 us greatly improved in every way."  37  38 Again, another chief of the Kitwangar tribe is quoted,  39 and at the bottom of the page, if you go up five lines  40 from the bottom he says this, Dr. Galois:  41  42 "I am very pleased to have been able to  43 come to hear you speak and your words will  44 be poured into the ears of every man, woman  45 and child on this River.  For my own part I  46 shall continue being a friend of the white  47 man.  I shall value every word you have 17715  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 spoken and I pledge my word as a Chief that  2 at the risk of my own life, I shall  3 suppress evil deeds."  4  5 The next chief who's from Kitwangar as well,  6 Liggenthla:  7  8 "You have indeed spoken wise words this  9 day, and I have paid great attention.  You  10 have explained the law to us and it is for  11 us to see that the law is not broke.  I  12 have authority in my tribe and I shall see  13 that in my village your law will be  14 respected."  15  16 And then just carrying on, each -- the next chief,  17 Guthumuldoe, says that he has learned a good lesson.  18 The final chief, Nisconolah, N-i-s-c-o-n-o-l-a-h, of  19 the Kitwangar tribe says that he's a friend of the  20 Chief and:  21  22 "will say for him that he will not allow  23 such rebellious acts and words to be spoken  24 in his village."  25  26 Now, it's clear from the chiefs' statements, is it  27 not, Dr. Galois, that a number of them said that they  28 didn't understand the law until Roycraft and  29 Fitzstubbs came and now they did and that they  30 accepted it.  That's what they said, isn't it?  31 A   Yes.  But again, I think we have to place this in a  32 historical context of events that both led up and that  33 followed this meeting at -- at Gitanmaax in 1888.  34 What I mean by this, for example, is the subsequent  35 attempt by Fitzstubbs at the Village of Kitwanga to  36 put into effect the prohibition of the Feast and in  37 that he was singularly unsuccessful.  And he also made  38 attempts following on from the events that are  39 mentioned here in terms of the -- of some of the  40 chiefs being in a sense, well, I am not sure if it's  41 in this or related document, he talks about them being  42 constables, giving them a badge and whilst they seem  43 to be some kind of acceptance in some of the  44 statements here, the reality was that when Fitzstubbs  45 tried to put this into effect with one or two  46 exceptions that that was rejected, that the chiefs  47 refused to accept the badge as it was called. 17716  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q   Well, I am not talking about the badge here, Dr.  2 Galois.  I'm talking about the Fitzstubbs and Roycraft  3 statement that the Queen's law applied and each chief,  4 it appears when you read this, maybe I am not reading  5 it properly, I am not a historical geographer, but it  6 looks like they all agree and accept the law as it's  7 set out to them?  8 A  Well, the badge was an important sort of vehicle  9 within which that what Fitzstubbs was proposing was to  10 be put into effect.  And again, I think one has to  11 remember the context of this meeting and the degree of  12 coercion and the displays of force that had preceded  13 it.  It's quite clear that I don't think that the  14 Gitksan wanted confrontations.  And as I argue in my  15 report, I think this is the culmination, this -- this  16 Skeena uprising and this meeting mark the culmination  17 of a sequence of actions and that subsequently when  18 one gets -- the establishment of the Babine Indian  19 agency, this sort of the whole -- the context of  20 Gitksan protest activity is changed, and that the  21 Gitksan for a period at any rate use Loring, in part  22 anyway, as a vehicle for expressing their concerns,  23 their objections to various -- well, a variety of  24 different circumstances and events.  25 Q   Just keeping this Roycraft/Fitzstubbs minutes in front  26 of you, could you turn to page 42 of your report and  27 at page 42 of your report, Dr. Galois, in the first  28 full paragraph at page 42 you say:  29  30 "Between them, Roycraft and Fitzstubbs took  31 a number of measures to promote respect for  32 law and order among the Gitksan and  33 Wet'suwet'en."  34  35 And then you say this:  36  37 "The high point of this process was a  38 meeting held at Hazelton and attended by  39 chiefs from five of the Gitksan and  40 Wet'suwet'en villages."  41  42 Now, that's this meeting that I've just taken you  43 through, isn't it?  44 A   Yes.  45 Q   Yes.  Then you say this:  46  47 "The white officials explained the reason 17717  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 for their presence and made some general  2 demands concerning the future behaviour of  3 the Indians."  4  5 Now, the general demands that they made were to abide  6 by the Queen's law, correct?  Is that what you mean by  7 general demands made by Roycraft and Fitzstubbs?  8 A   I am just trying -- that's part of the situation and I  9 think too in terms of, well, avoiding confrontations,  10 of generally maintain -- trying to put an end to the  11 sort of series of confrontations that had gone on in  12 the preceding years.  13 Q   You then go on to say:  14  15 "For their part — "  16  17 This is on page 42 of your report:  18  19  20 "For their part, the chiefs responded to these  21 statements and gave voice to a number of  22 grievances."  23  24 Now, what you mean by that is for their part the  25 chiefs generally agreed with what Fitzstubbs and  26 Roycraft had put to them, isn't that what you really  27 mean there?  Not that they just responded?  28 A  At that point in time they responded.  29 Q   Affirmatively?  30 A   Broadly in agreement, yes, with the -- with the  31 statements by Fitzstubbs.  32 Q   You say they gave voice to a number of grievances.  33 Would you mind pointing out in the statements of the  34 chiefs the number of grievances that they responded  35 with here?  36 A  Well, there is certainly a couple by Beni.  37 Q   That's right at the end?  38 A   Uh-huh.  39 Q   You mean the part that you read in your evidence in  40 chief, if you just carry on from where I read to you,  41 four pages in from the back.  42 A  43  44 "Great Chiefs, you have lectured our Chief  45 strongly and may be he deserves it.  There has  46 been trouble and I shall explain the cause of  47 the discontent lurking in our hearts.  Mr. 1771?  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Hankin was first white man I ever saw and he  2 was respected and liked by us.  Mr. Yeomans and  3 Mr. Sampierre we also liked.  During their  4 lifetime all went well.  Now they are dead and  5 our troubles have begun.  Nowadays if one of us  6 goes to a white man to ask his advice about  7 anything we are kicked out of his house  8 because we are but dirty Indians, as he calls  9 us in contempt.  We retaliate, of course, and  10 the result is that they take pen and paper and  11 write down to the Government to send up armed  12 men to punish us wicked savages.  I am glad to  13 have heard what you have spoken and I shall  14 endeavor to live a law-abiding life, but to  15 preserve peace the Government must also make  16 the white man observe the laws.  I am not  17 speaking of all white men.  I mean especially  18 the Hudson's Bay Company.  If we want a higher  19 price for our skins than they want to give us  20 they strike us, and why blame us for  21 retaliation?  I am glad that Captain Fitzstubbs  22 has promised to protect us against the  2 3 company."  24  25 Q   So the grievance was that if you are going to enforce  26 the law against us you should enforce it against the  27 whites too, that was the grievance that they aired at  28 the meeting, right?  Isn't that the sum and substance  29 of what Beni says there?  30 A  Well, they are talking about certain grievances that  31 have arisen and that they should be dealt with in the  32 same way, I suppose, yes.  33 Q   Yes, yes.  Fair is fair.  If you want us to abide by  34 the Queen's law, which we say we will, we want you to  35 enforce it against the whites too.  That's the  36 complaint, isn't it?  37 A  Well, the complaint is in part about the behavior that  38 and the treatment that the Indians have received from  39 whites and specifically from the Hudson's Bay Company  40 And their clerk and their operations in Hazelton.  41 Q   Now, you end the paragraph on page 42 by quoting from  42 a letter from Roycraft.  You quote the words "'most  43 salutary effect' of the expedition," and I would like  44 you to turn to that document now.  It's in Volume 4.  45 THE COURT:  What was that reference you just mentioned to this  46 document?  Where is it?  The salutory what?  47 MR. WILLMS:  I am just turning to it now, my lord. 17719  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  THE  COURT:  2  MR.  WILLMS  3  4  5  6  THE  COURT:  7  THE  COURT:  8  MR.  WILLMS  9  THE  COURT:  10  MR.  WILLMS  11  THE  COURT:  12  MR.  WILLMS  13  Q  14  15  A  16  Q  17  THE  COURT:  18  MR.  WILLMS  19  20  THE  COURT:  21  MR.  WILLMS  22  THE  COURT:  23  MR.  WILLMS  24  Q  25  26  27  28  29  30  31  32  33  A  34  Q  35  36  37  38  39  40  41  42  43  44  MR.  ADAMS:  45  46  47  MR.  WILLMS  Oh, all right.  :  It's in Volume 4 and the document 1033-11 can be  put to one side.  I have finished with that one, my  lord.  The one I just read I think I marked it already  as 1033-11.  Yes.  Volume 4.  :  Volume 4, tab 18 8.  Yes.  What tab, please?  :  188 my lord.  Thank you.  And this is a letter of August 14, 1888 from Roycraft  to the Attorney General, Dr. Galois?  Yes.  And you have quoted the words "most -- "  I am sorry, I have lost you.  What tab number?  :  188.  It would be the first one that's got an 88 on  it in the volume.  I don't know if there two or not.  Yes.  Thank you.  :   And it should be, my lord, August 14, 1888.  Yes.  And you have quoted on the second page, if you go down  the three-hole punch in the middle of the page:  "There is no doubt that this expedition has and  will have a most salutary effect upon the  Indians in that District."  That's where you took those words on page 42 of your  report?  Yes.  All right.  And then you'll see that Roycraft  continues:  "My opinion is that no further trouble will  arise between the whites and themselves.  They  seem now perfectly to understand our power.  They have promised to keep the law and their  Chiefs will bring all offenders to justice."  Now --  Well, my lord, perhaps my friend can complete the  paragraph because the witness has already referred to  this in the same context. 17720  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2 "I intend having a number of Indian police  3 badges made which will be send to Captain  4 Fitzstubbs for distribution by him to the  5 Indian constables."  6  7 Now, just focusing -- is that okay now?  Do you want  8 me to read some more?  9 MR. ADAMS:  That's fine.  10 MR. WILLMS:  11 Q   "They seem now to perfectly understand our power."  12 That's a pretty apt description of what transcribed at  13 the meeting of August 8, 1888 when you read the  14 chiefs?  In other words, that's accurate, isn't it?  15 A  Well, again, I don't think it's just the meeting that  16 they are referring to.  I think they are talking about  17 the surrounding circumstances.  18 Q   No.  But I'm suggesting to you that when Roycraft says  19 that, that that's an accurate description of the  20 meeting of August 8, 1888, that at the conclusion of  21 the meeting the chiefs now seem -- now perfectly to  22 understand our power.  That is the power of the  23 government?  24 A  Well, again, one has to put that into context of what  25 happened afterwards.  26 Q   Well, let's just pause for a moment and instead of  27 contextualizing, will you agree that from Fitzstubbs'  28 point of view and Roycraft's point of view, when you  29 read what transpired on August 8, 1888 that's an  30 accurate summary of what transpired on August 8, 1888?  31 A   That -- of his interpretation of that, yes.  32 Q   Yes.  And continuing on:  33  34 "They have promised to keep the law and their  35 Chiefs will bring all offenders to justice."  36  37 Once again, that's an accurate summary by Roycraft of  38 the meeting of August 8, 1888?  39 A   I am just trying to recall about the role of the  40 chiefs and what they did exactly say.  41 Q   Well, I am not asking you to contextualize here.  I am  42 just asking you --  43 A   I am trying to recall what the chiefs did say about  44 bringing people to justice.  That's the question that  45 I had.  I don't know if you can remind me of the  4 6 relevant section.  I don't have the document.  47 Q   Well, for example, Liggenthla, Second Chief of the 17721  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Kitwangar, says:  2  3 "I have authority in my tribe and I shall see  4 that in my village your law will be respected."  5  6 A   Yes.  There are a number of statements like that and  7 that again in terms of Roycraft's interpretation of  8 that, it is there in the letter.  Quite what the  9 Gitksan made of that is a somewhat different question.  10 Q   That's right.  And what you've tried to do in going  11 back and looking at these documents is you've tried to  12 contextualize all of them from the Gitksan point of  13 view, is that correct?  14 A   Not entirely.  I've certainly tried to contextualize  15 them.  I have tried to elicit insofar as I could what  16 the Gitksan perspective would be.  But that's not all  17 that I've done.  I mean I talk there about Roycraft's  18 perspective, and what it is that he expressed his  19 satisfaction and then his perception that it had a  20 most salutary effect.  The point of the context is  21 that Roycraft's perceptions and what transpired didn't  22 coincide completely by any means.  23 Q   Do you recall after 1888 how many more gun boats were  24 sent up in respect of the Gitksan on the Skeena?  Any  25 of those --  26 A  Well, there were no gun boats sent to the Gitksan.  27 The gun boat was sent to Port Essington and a police  28 expedition was then sent up from there.  29 Q   How many more gun boats were sent to Port Essington  30 with police expedition sent up from there after this?  31 A  Well, I mean the transportation system changed.  They  32 didn't rely upon the British Navy after that.  But  33 there was at least one other occasion when a police --  34 no.  There were more than one -- one occasion.  I  35 can't recall the exact number.  But there were a  36 number, at least two, possibly more, occasions when  37 police were sent to Gitksan territory.  38 Q   Yes.  39 A   In terms of various disturbances that occurred.  There  40 was the Kispiox raid of 1909.  There were a number of  41 occasions in the Kitwancool valley as I recall.  42 Q   All right.  43 A  And there were also a number of occasions when --  44 Q   Just -- sorry, but can you answer my question.  Were  45 there any more gun boats?  46 A   Gun boats?  47 Q   Sent up to Port Essington? 17722  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 A  Well, I -- I didn't inquire into whether gun boats  2 were sent to Port Essington any more.  I know of none  3 that were sent.  But in terms of the crucial point for  4 the Gitksan, which was not that a gun boat was sent to  5 Port Essington, but that a police, body of police that  6 were sent up into Gitksan territory, then there was a  7 replication of those events on at least two other  8 occasions as far as I can recall.  And there were at  9 least two other occasions when Loring I think in 1908  10 requested that a body of Northwest Mounted Police be  11 sent and I think he repeated that request again in  12 1909.  13 Q   And in fact there are police up there today, aren't  14 there?  15 A   But what we're talking -- what I'm talking about is  16 groups that were sent up especially because -- that  17 weren't resident in that area, but that were sent up  18 specially because of events that had transpired within  19 the area.  So the fact that there are resident police  20 there at the moment, I am not quite sure how that  21 equates to the situation that arose at Kispiox and  22 Hazelton in 1908 and 1909.  Various different events  23 that transpired in the Kitwancool valley from 1910  24 onwards, there was a special group of Mounties that I  25 know were sent in 1927 when a group of Kitwancool were  26 arrested for blocking access to the valley.  27 Q   Could you turn --  28 A  Which is not very different from what happen to  29 Kispiox in 1909.  30 Q   Could you turn to page 31 of your report.  And on page  31 31 you deal in the last paragraph with -- and I am  32 right about the three-hole punch:  33  34 "For their part, the Gitksan and Wet'suwet'en  35 appear both to have welcomed the arrival small  36 numbers of whites and to have endeavored to  37 control the terms of their entry.  The  38 difficulties encountered by the COT  39 construction parties at Kispiox and Hagwilgate  40 point towards such conclusions.  At both  41 locations the COT officials chose to negotiate  42 for the right to use a river-crossing.  A  43 resort to force, on the white side, was  44 considered, but, as Elwyn noted 'if the  45 natives.... become hostile to the COT company,  46 it would be necessary either to exterminate the  47 former or abandon the line.'  He regarded 17723  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 neither option as 'a pleasant alternative.'"  2  3 Now, just starting with that quote, you took that  4 quote from a letter from Elwyn to the Colonial  5 Secretary dated September 4, 1866?  I am showing you a  6 copy of that.  7 A   Yes.  8 MR. WILLMS:   Yes.  1033-12, my lord.  9  10 (EXHIBIT 1033-12:  Letter dated 4 Sept. 1866 to  11 Colonial Secretary from Elwyn)  12  13 THE COURT:  This will be number — ?  14 MR. WILLMS:  Hopefully -12.  15 THE REGISTRAR:  Yes.  16 MR. WILLMS:  17 Q   Now, Elwyn is saying to the Colonial Secretary and  18 this is on -- Elwyn is travelling with the COT  19 construction party up towards Hagwilget, correct, and  20 he also describes in this correspondence events at  21 Hagwilget?  22 A   To the best of my recollection that's the approximate  23 context.  I can't recall the detailed contents of the  24 letter without reading it.  25 Q   Well, let's -- if you go to the second page by the  26 hole punch, there is a sentence that starts:  27  28 "At the last named place on the Watsonquah."  29  30 Are you with me?  31 A   Yes.  32 Q  33  34 "At the last named place on the Watsonquah five  35 miles above its junction with the Skeena, there  36 is a large village with probably at the time of  37 our visit a hundred inhabitants."  38  39 Now, that's Hagwilget, you recognize that as  40 Hagwilget?  41 A   I take that to be Hagwilget, yes.  42 Q  43  44 "I was agreeably surprised in finding them most  45 friendly for I had been informed that they  46 strongly disapproved of the whites coming  47 through the country." 17724  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2 And then he talks about the Indians at Metlakatla and  3 Fort Simpson and then carries on:  4  5 "The Simpseans naturally fear that they will  6 now lose this monopoly"  7  8 The monopoly on the trading,  9  10 "and they are endeavoring in every way in their  11 power to prejudice the 'stick Indians' against  12 the Company - saying that 'the wire will kill  13 Indians,' etc. etc."  14  15 Now, just pausing there, you know by the wire he's  16 referring to the telegraph wire?  17 A   Yes.  18 Q   So what he's saying here is that the Tsimshians of the  19 coast who think that they are going to lose their  20 trading with the stick Indians have been telling the  21 stick Indians that the wire will kill them, correct?  22 A   That's what he's reporting, yes.  23 Q   He then goes on to say this:  24  25 "I am happy to state that so far these  26 representations have only temporarily  27 influenced the natives in this vicinity and our  28 presence has been apparently sufficient to --"  29  30 A   "Undeceive."  31 Q   I can't --.  Yeah.  I couldn't figure that one out.  32 Well to -- I can't read that.  If anybody can help me  33 with that.  I can't read it.  34 MR. ADAMS:  The witness suggest "undeceive."  35 MR. WILLMS:  36 Q   "To undeceive them."  Thank you.  37  38 "The Telegraph Company is most kind and liberal  39 in treatment of the Indians near whose villages  40 the line passes and in the main camp, visited  41 during the past ten days by great numbers of  42 Indians, there has not as yet been the  43 slightest approach to a dispute much less a  44 quarrel."  45  46 Now, just pausing there, there really isn't anything  47 in this correspondence, and you can read on, that 17725  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 talks about difficulties of the COT at Hagwilget.  It  2 looks like they are being met most favourably?  3 A   The next paragraph reads:  4  5 "Some time before our arrival Mr. Butler very  6 foolishly lost his temper with an Indian at  7 Rocher de Bouille and knocked him down; the  8 tribe thus excited and angry at the time have  9 now I believe forgiven the wrong for such it  10                     was."  11  12 Q   Right.  Okay.  13 A   I take that to be at Hagwilget.  14 Q   Oh, I see.  But don't you take anything from the fact  15 that the wrong was forgiven?  16 A  Well, I mean you asked me, as I recall, I can't recall  17 the question, if there had been any conflict or  18 confrontation or some such word.  I am not quite -- I  19 don't remember the word that you used.  20 Q   Now —  21 A   It seems to me that that's precisely what he's  22 described there.  23 Q   And you say, and if I can just take you to the  24 portion -- if you turn, it's to the third page from  25 the back.  It's the part you quote.  26 A   The pages are numbered actually.  27 Q   Oh.  6/8.  Yes.  That paragraph started in the middle  28 of the page:  29  30 "I have entered more fully into this Indian  31 question than perhaps in your opinion it  32 deserves, but I am most anxious on the subject  33 for should the natives either now or hereafter  34 become hostile to the Company, it would be  35 necessary either to exterminate the former or  36 or abandon the line; neither, I think you will  37 agree with -- "  38  39 A   That's the section that I've quoted there, I believe.  40 Q   "You will agree with us being -- "  41 A   "Me."  42 Q   " -- me, being a pleasant alternative."  Now, you say  43 a resort to force on the white side was considered.  44 Is that it?  Is that what you say is a consideration  45 of a resort to force?  46 A   No.  I'm citing Morison's account of the attempt to  47 use the bridge at Hagwil -- Hagwilget.  What happened, 17726  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 as I recall, is that the COT wished to take their  2 supplies across the Bulkley, the Watsonquah, at or  3 near the Village of Hagwilget, and they considered the  4 existing bridge inadequate for that purpose and so  5 they wished to build an alternative bridge and the  6 Indians, as far as I can recall, objected to this  7 process and there was some kind of compromise that was  8 worked out by which the bridge was -- by which the  9 bridge was strengthened.  10 Q   I am showing you --  11 A   There were also --  12 Q   Is this the Morison you are referring to, 1919?  13 A   Yes.  14 Q   All right.  Well —  15 A   It's only part of the document.  16 Q   Yes.  It's just the part that refers to Hagwilget and  17 to Kispiox.  If you go to the fifth page in which has  18 a number 23 in the middle of the top and you see the  19 handwriting, "Alone at Mission Pt. Skeena and Bulkley  20 Rivers, '66"?  21 A   Yes.  22 Q   And this is a description of what Morison observed in  23 1866 and this is at the confluence of the Skeena and  24 the Bulkley Rivers?  25 A   Uh-huh.  26 Q   Correct?  27 A   Yes.  28 Q   All right.  Now, just skipping down to the sixth  29 line -- sixth line down, Morison says this:  30  31 "I rose early and went down to the river for my  32 usual cold bath and ate breakfast with a good  33 appetite, then down came about a hundred  34 Hagwilgaits to look at the White Boy; they were  35 a fierce looking crowd, not a pair of trousers  36 amongst them, their faces painted red and black  37 and each carrying a Hudson's Bay Flint-lock  38 Musket and long knife, but their looks belied  39 them, they were a quiet lot; I sat on a stump  40 smiling like a Cheshire Cat, whatever sort of  41 an animal that is, and they staring at me, of  42 course we could not converse not knowing a word  43 of each others language; then a bright idea  44 struck me, I noticed an old man who seemed to  45 be their chief, I rose, approached him cap in  46 hand, made a most polite bow, held out my hand  47 to him and we shook hands most cordially.  I 17727  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  A  16  Q  17  A  18  19  20  Q  21  A  22  23  Q  24  A  25  Q  26  A  27  28  29  30  31  32  33  34  35  Q  36  37  38  THE COURT  39  A  40  THE COURT  41  42  43  A  44  45  THE COURT  46  A  47  then took a large United States army kettle, of  which we had several, put a quantity of rice in  it, filled it with water, and put it on my  campfire to boil.  I then poured a couple  pannikins of molasses in and stirred it with a  long stick, distributed tin plates and iron  spoons amongst them and they enjoyed what to  them was a luxurious feast.  They were my  friends forever afterwards, their fierceness  was all on the surface, such is diplomacy!"  Certainly Morison at this point anyway notices the  same thing that Elwyn notices, which is friendliness,  not hostility?  That's not the section that I am referring to.  I know.  I am just --  In terms of those comments.  I have not said that  the -- that the Gitksan and Wet'suwet'en didn't -- I  forget exactly how I put it.  Well, what you have said --  The Gitksan and Wet'suwet'en appear both to have  welcomed the arrival of small numbers of whites.  And endeavored to control the terms of their entry.  Yes.  Okay.  Well, maybe we can --  So there isn't sort of -- I mean in their reasons to  explain that part of that is in terms of the trading  routes and the modification of the trading routes that  the entry of the whites seemed to indicate.  I mean  the Gitksan and the Wet'suwet'en had been -- by 1866  had some years of experience of obtaining European  goods and they had used those for some time and they  were, I mean, the coaches incorporated a significant  dimension of trading in their activities.  Let's go to the part about the bridge that you  referred to I think in terms of resort to force.  Page  25.  :  What —  I didn't say resort.  :  What should I understand by this expression that not  a pair of trousers among them?  They still weren't  naked in 1866, were they?  Well, I take that to mean is that they haven't adopted  European style of dress at that point in time.  :  They would be wearing what?  Well, partly -- probably some -- they haven't adopted  trousers.  They have -- may have adopted some other 1772?  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 aspect of European dress.  I believe there may be some  2 references to coats in there.  So it would be some  3 kind of a mixture I would assume.  I can't recall all  4 of that —  5 THE COURT:  All right.  6 A   -- with clarity.  But that sort of thing was -- is not  7 uncommon, as I understand it, in terms of -- of Indian  8 groups who have some experience in trading with  9 directly or indirectly with Europeans.  10 MR. WILLMS:  11 Q   If you turn to page 25 you'll see in the margin it  12 says:  "Crossing Bulkley canyon," and the paragraph  13 begins:  14  15 "The line was now, by the help of the material  16 transported by us, brought to the bank of the  17 Bulkley River — "  18  19 A   I am sorry, I am not quite clear where you are.  20 Q   25.  21 A   25.  22 Q   Sorry.  23  24 "The line was now, by the help of the material  25 transported by us, brought to the bank of the  26 Bulkley River and now the crossing of the  27 Bulkley had to be made for all men and  2 8 material, one hundred and five white men, two  29 hundred pack animals, numerous China cooks, all  30 the baggage, a band of beef cattle and numerous  31 Indians; they did not dare swim the cattle  32 across the canyon, so Steve Decker the foreman  33 ordered up his bridge gang, first class men at  34 their work, to build a bridge across the  35 Bulkley.  Here another difficulty arose, the  36 Indians strongly objected to this procedure as  37 one of their wise men had informed them that if  38 the 'Whites' built a bridge across the river no  39 more salmon would run up it.  And as the  40 Company did not want to collide with Natives in  41 any way, a great palaver was held and the  42 Indians consented to allow Steve Decker to  43 repair their own bridge and make it practicable  44 for the passage of animals.  Now all the hides  45 of the cattle killed on the way from Quesnel  46 had been turned into rawhide rope, with this  47 Steve lashed the bridge strongly, laid a new 17729  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 floor on it and the passage was made safely by  2 all; although I think that humans and animals  3 were glad when they were over and a great load  4 was removed from Steve Decker's mind."  5  6 Now, where is the resort to force in respect of  7 crossing the Bulkley River?  8 A  Well, I didn't say.  I said it was considered as I  9 have it there.  I mean I don't think -- sure if  10 it's -- I would want to look at the information on the  11 Kispiox.  There was too an incident at Kitselas as  12 well.  13 Q   All right.  Well, where is the control of the terms of  14 entry here?  15 A  Well, I mean the Indians strongly objected to this  16 procedure.  17 Q   Because they thought it would stop the fish run,  18 because their wise men had told them that?  19 A   Yeah.  20 Q   What's that got to do with entry?  21 A  Well, I mean what they are saying is -- is we object  22 to you going across the river and threatening our  23 resources.  So what they -- there is a negotiation  24 process that goes on which comes to some sort of a  25 solution.  I mean what my point is there that the  26 whites aren't able to simply march in and ignore the  27 native people and do as they wish.  That what they  28 encounter is a society which operates on its own  29 cultural basis and that some form of accommodation  30 goes on which in this case is peaceful and allows the  31 in this case the COT to continue with their  32 activities.  33 Q   You will agree that what the Indians were concerned  34 about was being told by their wise men that another  35 bridge across the river built by the whites would cut  36 down on the salmon?  That's what happened?  37 A  What they were concerned with is, I mean salmon are  38 the major part of their subsistence, so this was very  39 important.  And what they -- one has to remember the  40 sort of different views of access to resources and the  41 different perception of resource within Gitksan  42 culture, and that what one has got is two coaches  43 which are in a sense mutually -- which do not  44 understand each other very clearly.  And what the  45 Wet'suwet'en in this case I guess are putting forward  46 is something which is clearly of importance to them  47 concerning their understandings of maintaining access 17730  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 to a vital resource.  2 Q   Okay.  Can you turn to page 27.  You mentioned Kispiox  3 and you thought this might be where the resort to  4 force was?  5 A  Well, no.  I have not said a resort to force.  I said  6 a consideration.  7 Q   Oh.  Okay.  8 THE COURT:  Page?  9 MR. WILLMS:  10 Q   Page 27.  It's a number 27 at the top.  It's the last  11 page of the extract, my lord.  I'm still at page 31 of  12 the report, but of exhibit --  13 THE COURT:  Yes.  Thank you.  14 MR. WILLMS:  Oh, perhaps I should mark this too while I'm —  15 THE COURT:  1033-13.  16 MR. WILLMS:  1033-13.  17  18 (EXHIBIT 1033-13:  Reminiscences - Charles Morison)  19  20 MR. WILLMS:  21 Q   And it's the last page of this and here Morison --  22 I am reading from the first full paragraph on the  23 page, my lord:  24  25 "The work went on swimmingly from the Bulkley  26 River to the Skeena opposite the large and  27 flourishing village of Kispiox.  This was and  28 still is the largest village on the Skeena with  29 the most numerous population, at that time I  30 should imagine they numbered some seven or  31 eight hundred souls.  Now amongst these people  32 was a very learned Doctor or Medicine man, and  33 he thinking very rightly that the advent of the  34 white men amongst his people would destroy his  35 power over them told them that if the telegraph  36 wire crossed the Skeena no more salmon would  37 ascend that river and that all birds and  38 animals crossing under or over the wire would  39 instantly die; the people of Kispiox becoming  4 0 alarmed sent word to Mr. Conway that they would  41 shoot the first whiteman that crossed the river  42 who was connected in any way with the  43 telegraph.  Here was a serious hindrance."  44  45 Now, just pausing there.  Once again, as with  46 Hagwilget, the concern was not, as you call it,  47 controlling the terms of entry.  The concern was a 17731  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 statement in this case as Morison described it by a  2 Medicine man that if something crossed the river the  3 salmon would stop going up the river.  That was the  4 concern, wasn't it?  5 A  Well, I'd be only repeating what I said on the  6 previous one.  That what the Kispiox people in this  7 case are concerned with is the conditions by which the  8 Telegraph Company crossed the river adjacent to their  9 village and the threat that they took that to have in  10 terms of their vital resource which was the salmon  11 run.  12 Q   And then he carries on:  13  14 "Mr. Conway ordered all work to be stopped and  15 ordered every man armed.  Luckily we had an  16 adequate supply in case of necessity; the white  17 men were ambushed along the Skeena bank  18 opposite Kispiox.  Then Conway came down to  19 Mission Point for a council of war.  He decided  20 to send Paymaster Burridge and another man up  21 to Kispiox in a small canoe to parley with the  22 Indians.  I cut up a lot of pig-tail tobacco  23 into short lengths and put it in a rice mat; we  24 then proceeded to Kispiox.  Burridge managed to  25 explain to the Indians that our work would be a  26 source of revenue to them (always touch a man  27 in his pocket) and that if the Chiefs would  28 come forward he had a present of tobacco (like  29 gold dust to them) for them, instantly every  30 man nearly was a chief.  The tobacco was  31 emptied, a general hand-shaking ensued.  We  32 returned home, put the arms away and the men  33 returned to work without the Indians ever  34 knowing that a man was under arms.  The Kispiox  35 Indians turned on their wise man and chased him  36 out of their village - another fall from grace.  37 The work went on quietly and the line was  38 completed to forty miles north of Kispiox, an  39 operator McCutcheon by name accompanied the  40 work with his portable battery."  41  42 And it talks about the wire from New York.  Now, when  43 you review Morison and Elwyn, which I put to you  44 earlier, first of all putting Kispiox to one side for  45 a moment, the reception was friendly, correct?  46 A   By and large, and I don't think one can simply put  47 Kispiox on one side. 17732  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q   Well, I am going to pin it up in a minute.  2 A   Because that's not way I have put it in my report.  3 No, no.  I think it is of some importanance.  I have  4 not said that the basic reception among the Gitksan  5 and Wet'suwet'en was unfriendly.  I think there are  6 very sound reasons for saying that the -- in the basic  7 reception was -- I mean they welcomed by and large the  8 arrival of the Telegraph Company.  9 Q   Second, at both Hagwilget and at Kispiox, the Indian  10 fear of whites coming was superstition, correct?  Was  11 a fear --  12 A   That's not —  13 Q   -- of crossing the --  14 A   That's not the way that I would understand it, no.  I  15 mean what we're talking about is a view of the world.  16 Now, I don't regard -- the Gitksan or Wet'suwet'en  17 view of the world is not my view of the world, but I  18 would not describe it simply as superstitious.  19 Q   Well, the Kispiox Indians apparently ran their wise  20 men out of town.  Wouldn't you call that -- a response  21 to that a superstition?  22 A  Well, one has to remember about this that these are --  23 I mean there are two points about this in terms of the  24 Indian reaction.  This is something that was written  25 down 50 years after the event, and it's by somebody  26 who says that he has no knowledge of the language of  27 the people, the Indian people of that area.  So there  28 is a good deal of interpretation, it seems to me,  29 going on by Morison in terms of the actions of the  30 Indian people, and I think one has to view that with  31 some degree of caution.  32 Q   The third thing is that in respect of your use of the  33 words resort to force on the white side was  34 considered, you will agree that from Morison and Elwyn  35 anyway, the resort to force was only considered after  36 the Kispiox Indians had said that they would shoot the  37 first white man they saw, not before that, correct?  38 A   Yes.  There is a confrontation that had developed and  39 not very different from the situation at Kitselas as  40 well.  41 Q   Well, I am just -- you're just dealing with Kispiox  42 and Hagwilget on page 31 of your report.  So you don't  43 say Kitsegukla here and you deal with Kitselas in  44 another area.  But the resort to force was responsive,  45 the consideration of that?  46 A   The threat of force on the part of the Kispiox was in  47 terms of dealing with something that they regarded as 17733  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 a threat.  And that was one of the -- that was the way  2 that they responded.  By and large it was unusual in  3 terms of the general reception of the COT people in  4 that area.  5 Q   Now, after reviewing those extracts from Morison and  6 that extract from Elwyn, is it still your view that  7 the Gitksan and Wet'suwet'en endeavored to control the  8 terms of the entry of the COT party?  9 A   Insofar as I've described it in terms of seeking some  10 sort of agreement and accommodation with the COT on  11 certain grounds, yes.  I don't think -- I mean the COT  12 could not just proceed as it wished.  It had to  13 accommodate itself to the concerns of both the  14 Wet'suwet'en at Hagwilget and with the Gitksan people  15 at Kispiox.  And that involved significantly the  16 giving of certain sorts of presents which was one way  17 of registering some sort of agreement, as I understand  18 it, within those coaches.  19 Q   Can you turn in your report to page 51, please.  And  20 you have there referred to in the middle of the page  21 O'Reilly meeting at New Kitsegukla.  And I am showing  22 you notes of the New Kitsegukla meeting September 30,  23 1891.  The quote -- your quote is from O'Reilly from  24 this document in the middle of the page:  25  26 "'It is not necessary that the berrying or  27 hunting grounds shall be reserved."  28  29 If you turn to the third page in, I'll just help you  30 out here.  If you turn to the third page in you'll  31 see -- it's not my third page.  If you turn back one  32 page.  33 A   That's my second page.  34 Q   Oh.  Okay.  I meant the third page including the cover  35 page.  But the page that has the word "of country" in  36 the upper left-hand corner.  37 A   Yes.  38 Q   And you've quoted the second line down:  39  40 "'It is not necessary that the berrying or  41 hunting grounds shall be reserved."  42  43 And that's where your quote comes from?  44 A   Yes.  45 Q   And what this document describes is an exchange  46 between the Commissioner O'Reilly and an Indian Chief  47 who is described as Numticks, N-u-m-t-i-c-k-s. 17734  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 A   No.  I take it that it is an account of O'Reilly's  2 meeting with a number of the people at New Kitsegukla  3 concerning the allotment of reserves.  4 Q   Well, if you -- on the page where there is the  5 reference to the berrying and hunting grounds, you  6 will agree that you are quoting from the Commissioner  7 speaking at top of the page, that's O'Reilly?  8 A   That -- sorry, I am not finding the pages here.  This  9 is page three?  10 Q   The third page in, yeah.  11 A   Yes.  Well, if you look at the first page of it, it  12 says, "pop 12 or 14 pop of whole band 83."  So I took  13 that to mean that there were that number of people in  14 attendance.  15 Q   At the meeting --  16 A  At this meeting of which Numticks speaks.  I guess  17 he's the only other -- he's the only new Kitsegukla  18 person to speak.  19 Q   All right.  I took it from this that he was a chief.  20 Did you not take it from that?  21 A   I can't recall, and one has to be a little bit careful  22 in terms of that, I think, because one of the points  23 that emerges from these documents is that a number of  24 chiefs were in fact absent when O'Reilly went through.  25 Q   See, just -- if you go to the bottom of the third page  26 where it's got this Numticks, that's the third page in  27 again, the third page of the document that I handed to  28 you, just below the quote where you quoted from, it  29 has Numticks in the margin?  30 A   Yes.  31 Q   And he says:  32  33 "I am very pleased you have come to define the  34 reserve."  35  36 I took that as being a statement by Numticks, the  37 Chief.  38 A  As I say, I am not sure that he is in fact the Chief.  39 I take it to be an approximation of what Numticks  40 said.  I'm not sure who took these minutes.  I suspect  41 it was probably Ashdown Green who was the surveyor who  42 accompanied O'Reilly on this particular trip.  43 Q   Mrs. Loring was the interpreter?  First page?  44 A   She was at some of them.  I don't know if she was at  45 this one.  Is that what it says?  Yes.  46 Q   Numticks then goes on after saying he is pleased that  47 he has come to define the reserve: 17735  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "We are loyal and uphold both goods and the  Queen's law."  A   Yes.  Q   Well, maybe if you turn to the very last page of the  extract which contains an exchange between Numticks at  the top and then the Commissioner and then Numticks  again at very last page, Numticks says:  "I have been authorized to speak for both the  old and the new Kitsegukla -- "  THE COURT:  MR. WILLMS:  THE COURT:  MR. WILLMS:  Q  THE COURT:  MR. WILLMS:  Q  Sorry.  Where is that?  On the very last page, my lord.  Yes.  Yes.  "I have been authorized to speak for both the  old -- "  " -- and the new Kitsegukla villages,  chiefs empower me."  Five  A  And then he names the chiefs names and then says:  "Mr. Pearce was present and witnessed the  agreement and the request for me to speak for  them.  We ask from a stream two miles above  here to nine miles below."  So didn't you take from this that Numticks was the  person authorized by the new and the old Kitsegukla  villages to speak on their behalf?  He's speaking, yes.  I am just not -- as I recall it  doesn't say whether he is the chief or not.  But as  that indicates, he is -- he claims to be speaking for  them.  Yes.  And then the Commissioner says:  "I cannot see the necessity of making such a  large reserve, you cannot use it.  It is 17736  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 necessary you should have timber and that I  2 will give you and your village and agricultural  3 land, but it is not necessary to give you seven  4 miles of fishing ground, that cannot be used by  5 anyone else."  6  7 And then it looks like Numticks replied:  8  9 "We should like the flat on the opposite side  10 of the river.  Our gardens are there and my  11 house.  And then I should like my salmon stream  12 two miles above here."  13  14 Now, that was what happened at that meeting and that  15 was the resolution of at least this discourse, is that  16 correct?  17 A  Well, no, I don't take it to be the resolution of it.  18 There is a request there which is rejected for it and  19 then it seems to me there is an additional request and  20 there is no reply to that.  I mean the point is that  21 there is a substantial -- request for a substantial  22 chunk of territory there, which is rejected by  23 O'Reilly, and in that sense it's not that different  24 from the requests that were put forward at Kitwanga  25 and Kispiox.  26 Q   But the quote that you're talking about about fishing,  27 for example, on page 51 of your report, that fishing  28 as Commissioner O'Reilly describes it in these -- in  29 these notes is standing on a rock, as he says, a stick  30 and a hook into the river and that's what he says  31 there is no problem with, isn't it?  Not seven miles  32 of fishing ground.  33 A  Well, but surely we are concerned -- I mean there are  34 two things here.  One is a statement by O'Reilly when  35 he is saying that look, you will not be confined to  36 your reserves, which is a significant statement in  37 itself in that it reversed the sort of statements that  38 O'Reilly had made in 1882 amongst the coast Tsimshian  39 when he established reserves there and those  40 statements contributed significantly to the unrest in  41 that area among the Nishga and also amongst the  42 Gitksan at Kitwanga.  So there is an interesting  43 reversal there and then there is a statement by  44 Numticks in which he's making a claim for a chunk of  45 territory.  Now, I would assume that very likely that  46 is a good chunk of the traditional territory  47 pertaining to the Village of Kitsegukla in the same 17737  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 way that statements were made at, for example,  2 Kitwanga and at Kispiox requesting large areas of  3 land.  O'Reilly rejected those claims in both those  4 places.  And the final point I suppose about  5 O'Reilly's time here is that he spent very little time  6 at New Kitsegukla, less than a day as far as I recall.  7 And so that he was less than thorough, it would seem  8 to me, in enquiring into the situation there.  9 Q   You don't take the last statement from Numticks as  10 being an acceptance of the Commissioner telling him  11 that he's not going to get seven miles along the river  12 and then he says okay, well, I'd like a flat on the  13 opposite side anyway.  Our gardens are there and my  14 home and I'd like a salmon stream two miles above  15 here, you don't take that as being a reduction in the  16 demands?  17 A   One can't be categorical about that, but it could --  18 it seems equally consistent to view that as a  19 statement of either his own or an additional  20 statement.  I mean the minutes aren't -- don't  21 indicate, as far as I can see, that he accepts the  22 statement by O'Reilly.  I mean other than that it is  23 made by O'Reilly.  I mean the statement is there.  24 MR. WILLMS:   Could this be 1033-14.  25  26 (EXHIBIT 1033-14:  New Kitsegukla meeting dated Sept.  27 30, 1891)  28  29 THE COURT:  Yes.  All right.  Should we take the afternoon  30 adjournment?  31 MR. ADAMS:  Yes, my lord.  32 THE COURT:  I don't know if counsel are instructed in the  33 matter, but I'd like to have an indication from  34 counsel as soon as possible about plans for next week  35 and I'd be happy to talk about it later today or  36 tomorrow as counsel prefer, but I have to make some  37 plans, and I am assuming we are going to be engaged in  38 this trial, but if we are not for any reason I'd like  39 to know that and also why not.  But I'll be glad to  40 speak to counsel about it whenever it's convenient.  41  42 (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON RECESS)  43  44  45  46  47 1773?  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 I hereby certify the foregoing to be  2 a true and accurate transcript of the  3 proceedings herein to the best of my  4 skill and ability.  5  6  7  8 Laara Yardley, Official Reporter,  9 United Reporting Service Ltd.  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 17739  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RECONVENED AT 3:20 p.m.)  THE REGISTRAR  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Order in  Mr. Willms.  My lord, just  the break about  Yes.  And the plain  the appropriate  address you on  THE COURT:  Yes, that's f  MR. WILLMS:  Q   Dr. Galois, cou  please.  You --  you talk about  1903 in the Bui  court.  before we start, you asked me before  when we might talk about next week.  tiffs are having some trouble getting  heads together, and perhaps we can  that first thing tomorrow morning,  ine.  Thank you.  Id you turn to page 53 of your report,  on page 53 at the bottom of the page,  the results of competition in 19 -- by  kley Valley, noting that:  THE  MR.  THE  MR.  THE  MR.  THE  THE  MR.  "...the choicest parts of the valley had been  'taken up' by white settlers, Loring discounted  a report that there was anything untoward in  the Wet'suwet'en response to this situation.  He noted that the Wet'suwet'en had given up the  land, on his orders, 'without raising a  question'.  Before the end of 1904, however, it  became clear that Loring had been overly  sanguine.  He had occasion to make a trip to  the Round Lake and Moricetown areas, partly in  connection with a few of the Wet'suwet'en  'giving annoyance to some settlers'.  And I'm showing you a copy of correspondence dated  September 30th, 1904, from Loring to Vowell.  A   Can't read that.  Q   Well, you can read the part on the second page that I  want.  I just want to confirm -- I just want to get  the time sequence straight.  You go to the second page  which is readable, in the middle paragraph.  COURT:  That's not readable.  WILLMS:  The second page?  WITNESS:  It's not readable on my copy.  WILLMS:  "Subsequent of reports"?  COURT:  That line is readable but the next line isn't.  WILLMS:  My lord, I'm just going to confirm that this -- I  can read it but maybe -- well --  COURT:  Well, your eyesight must be remarkable.  WITNESS:  I can't read my copy.  WILLMS: 17740  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q  2 "Subsequent of reports regarding a few Indians  3 giving annoyance to some settlers of the  4 Bulkley Valley in connection with a stretch of  5 meadowland, I left here on the 23rd instant for  6 this side of Round Lake."  7  8 And that's -- I can read that but -- but in any  9 event, you can see, "giving annoyance to some  10 settlers".  That's where you picked this quote up,  11 isn't it?  I just say that because in footnote 42,  12 this was the only document in footnote 42 that I could  13 find those words?  14 A   Yes, I think that that is correct.  15 Q   All right.  And now following that -- so that's -- can  16 we mark the September 30th document, my lord as --  17 THE COURT:  What page is this "giving annoyance" at?  18 MR. WILLMS:  In the report, my lord?  19 THE COURT:  Yes?  20 MR. WILLMS:  Page 54 at the top of the page.  The last sentence  21 in that paragraph from the top of the page is quoted  22 "giving annoyance to some settlers".  2 3 THE COURT:  Oh yes.  24 MR. WILLMS:  Part about —  2 5 COURT:  All right.  26 MR. WILLMS:  -- Loring being "overly sanguine".  And if this can  27 be 1033-15.  28 THE COURT:  Well, I think we will have to extract an assurance  29 from Mr. Willms that he can provide us with a legible  30 copy.  31 THE REGISTRAR:  1033-15.  32  33 (EXHIBIT 1033-15 - Extract from B.C. Babine Agency,  34 Letter from Mr. Loring to Mr. Vowell dd. September 30,  35 1904)  36  37 MR. WILLMS:  38 Q   I'm showing you a letter that is readable -- mine is,  39 and I think all of them are -- from Loring to Vowell,  40 October 30th, 1904, and he starts off by saying:  41  42 "I have the honour to state herewith that  43 from the 1st up to the 15th instant, I was  44 absent from this office, and busy among the  45 Hokwelgets regarding a few of their numbers in  46 behaviour towards white settlers."  47 17741  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 And then he talks about laying out reserves at  2 Moricetown.  And do you recall this document?  This is  3 the document where he talks about laying out the  4 reserves that you refer to in your report, page 54?  5 He had to make a trip to Round Lake and Moricetown in  6 connection with the Wet'suwet'en giving some annoyance  7 to some settlers?  8 A   Partly in connection with.  9 Q   Well, on the last page of the letter which is number  10 two, there is the drawing in between, but Loring --  11 Loring says, from the top of the page:  12  13 "In justice to the Indians of the Bulkley  14 valley be it said that they-with perhaps the  15 exception of an occasional one or two-gives no  16 cause for complaint.  But, as the Indian Agent  17 of the district, I regret that my duty as such  18 compels me to state that many cases of wanton  19 aggressiveness against Indians might be  20 instanced.  It is not the bona fide settler,  21 but the endless --"  22  23 Either "endless" or" useless"  24  25 "-- rover who displays a talent to make capital  26 out of everything and puts his own arbitrary  27 construction of what suits him in striking a  28 mean between the Indian and him, the latter is  29 generally the offender.  In the most cases  30 random assertions are made with the context of  31 the matter sedulously avoided.  However, on the  32 whole, the instances of cause for complaint are  33 remarkably few."  34  35 Now -- and this is after the extract that you  36 quoted in your report, "giving annoyance to some  37 settlers".  I suggest that when you read all of the  38 documents, Dr. Galois, that Loring was not overly  39 sanguine, that there weren't problems -- many problems  40 at all?  41 A  Again, you have to place these in the context, not  42 just of those two documents, but a whole series of  43 documents beginning at this point and going through  44 certainly into the 1920s, which deal with the whole  45 issue of the Wet'suwet'en in the Bulkley Valley being  46 essentially dispossessed of -- of fishing sites and  47 trapping sites.  There is a variety of other letters 17742  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 by Loring, including one or two in retrospect, where  2 he looks back on the process and he talks about -- oh,  3 him solving -- not reporting a whole series of  4 complaints because he managed to settle them by  5 compromise, et cetera.  And he also talks about the --  6 the failure of surveyors to include Wet'suwet'en  7 campsites and other facilities within land when they  8 were surveying them for pre-emption for war script or  9 for purchase.  And then one thinks too of the various  10 different presentations by the Wet'suwet'en to  11 commissions and commissioners that passed through --  12 that visited the Upper Skeena, Stewart Valley in 1909,  13 McDougal in 1910, and also the McKenna-McBride  14 Commission in 1915.  15 Now, the processes that they refer to --  16 Q   Dr. Galois, can we go back to 1904?  17 A   I was just --  18 Q   Your report says 1904 —  19 A   I was just about to try and do that, but --  20 Q   Well, I don't know whether you are going forward or  21 backward or where in time.  I just want to make sure  22 you are in 1904 where you were in your report.  Is  23 that where you are?  24 A  What I'm trying to point out is that these processes  25 began at that point and continued through.  Some of  26 the references that Loring makes later on throw a  27 certain amount of doubt about the statements that he  28 made in those reports.  29 Q   Well, let's just go to before the end of 1904, Dr.  30 Galois.  31 A   The other point --  32 Q   Dr. Galois, let's go back to 1904, because you say in  33 your report -- and I'm reading from your report,  34 "Before the end of 1904."  So please try to limit  35 yourself to what you said in your report, and tell me  36 what other documents before the end of 1904 -- and not  37 1905 and not 1921, not 1917, but 1904 — what  38 documents before the end of 1904 show that Loring had  39 become overly sanguine?  40 A  What I'm referring to is the statements that Loring  41 made subsequently is one that comes to mind, and it  42 deals with this period because he refers to the  43 impact, I recall, of the South African war script  44 which began, I think, in 1901.  45 Q   All right.  What document?  46 A   It's one of the letters.  It's cited in my report but  47 I couldn't give you the exact reference.  It's a 17743  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 letter from him about 1919.  There is also a letter by  2 the Reverend Godfrey which is from the same period and  3 refers to the same process.  4 Now, the other point that I would make is that  5 the -- by this stage, whites have begun to settle and  6 this is the initiation of that -- of a process,  7 really, for the first time beginning around 1900,  8 1898, where there is fairly direct competition between  9 the Wet'suwet'en and white settlers for the first  10 time.  So that the process, it seems to me, has begun  11 by 1904, and continues on.  12 Q   That's not what you said in your report though, is it?  13 I mean you say, "Before the end of 1904"?  14 A   Yes.  15 Q   Not 1919, when he writes in 1919, not the Boer War.  16 You say, "Before the end of 1904, however, it became  17 clear that Loring had been overly sanguine."  18 Now, what document do you know of in 1904 or  19 before the end of 1904 that supports that?  20 A  Well, the documents that I've cited there, and I've  21 again -- and I again refer in my report that the  22 process was beginning and that insofar as there was no  23 difficulties arising, I don't think that was the case  24 already by 1904.  25 MR. WILLMS:  Can this be 1033-16, my lord?  2 6 THE COURT:  Yes.  27  28 (EXHIBIT 1033-16 - Three-Page Letter from Mr. Loring  29 to Mr. Vowell dd. October 30, 1904)  30  31 MR. WILLMS:  32 Q   Now, at the bottom of page 54 you quote again from  33 Loring.  You say:  34  35 "In the Bulkley Valley, as Loring regretted  36 his 'painful duty' in driving the Wet'suwet'en  37 from their land."  38  39 And showing you a letter, March 16th, 1906, from  40 Loring to Vowell, and the "painful duty" quote, you  41 picked that out of the first line of the third  42 paragraph; is that correct?  43 A   Yeah.  44 MR. WILLMS:  All right.  My lord, could this be 1033-17?  4 5 THE COURT:  Yes.  46 MR. WILLMS:  Now just reading what comes before and after that  47 particular sentence -- 17744  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 THE COURT:  Sorry, what page is that on?  2 MR. WILLMS:  The very first page of the letter, my lord.  3 THE COURT:  Yes.  4 MR. WILLMS:  5 Q   Third paragraph down, but I'm just going to start at  6 the beginning:  7  8 "I have the honour to acknowledge herewith  9 the receipt of your letter 269-8 dated the 9th  10 ultimo., and noted its advice to send a special  11 report, when on special service, as mentioned  12 therein.  In respect the stating that I did not  13 appear to have visited Ootsa Lake, per se, I  14 must refer to my monthly report for September  15 last, page 2, third-last paragraph.  16 "Excepting matters pertaining to Chislatta  17 Lake, Messrs. Scribner and Colley were sadly  18 imposed upon, as any stranger is likely to  19 become on the exparte statement of an Indian.  20 I nevertheless admire the motive with which  21 they were impelled in their action.  22 "I found it a most painful duty to drive  23 off land, in the Bulkley valley, Indians with  24 cabins, corrals and gardens on ground supposed  25 to have been held for hundreds of years by  26 hereditary right.  The cabins on Ootsa Lake  27 were only lately erected by the two (2)  28 Indians, of whom one is Adilak [A-D-I-L-A-K],  29 (self-styled) Skin-Tyhee [S-K-I-N-T-Y-H-E-E],  30 expatriated himself for his quarrelsome  31 propensities; and the other, Nahone  32 [N-A-H-O-N-E] (half Kitsun) who merely hunts in  33 the mountains above Ootsa Lake and has a house  34 at Rocher Deboule and another at Moricetown."  35  36 Now just pausing there, it's clear that when he  37 is talking about Bulkley valley, he includes Ootsa  38 Lake and Cheslatta Lake, doesn't he?  39 A   No, I don't say that at all.  40 Q   Oh, well let's carry on:  41  42 "Furthermore, I learned from two gentlemen,  43 coming from there, (Ootsa Lake) that the  44 localities referred to had been staked by  45 settlers.  I cannot get myself to understand  46 why Adilak should claim miles around Ootsa  47 Lake, whereas his fellow tribesmen, of the 17745  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Bulkley Valley, have to content themselves with  2 narrow strips of land, unless it were to obtain  3 plenty of latitude wherein to exercise an  4 exceedingly ugly temper."  5  6 And then he talks about Nahone again, and talks  7 about other areas, Cheslatta Lake, Ootsa Lake.  Isn't  8 this whole letter about Cheslatta and Ootsa?  9 A  Well, it seems to me quite clear:  10  11 "I found it a most painful duty to drive off  12 land, in the Bulkley valley, Indians with  13 cabins, corrals and gardens on ground supposed  14 to have been held for hundreds of years by  15 hereditary right."  16  17 I can only interpret that as referring to the Bulkley  18 Valley.  19 Q   No.  But when you read the whole letter, when you  20 contextualize the whole letter, don't you see that the  21 letter is talking mostly about Cheslatta Lake, Ootsa  22 Lake as one large area, Bulkley Valley?  23 A  What's the question?  24 Q   Well, it's all one large area, he lumps it all into  2 5 the same?  26 A   I don't take that.  One has to remember the context  27 within which this letter is written, of course, which  28 is that Loring had been criticized for not visiting  29 the southern lakes district.  And one has to remember  30 that at this time, the Babine Agency extended south of  31 Francois Lake and included parts of what later became  32 the Stewart Lake Agency.  And so that he is here  33 responding about a visit, in part, that he made to  34 that area.  35 Q   The only people by name --  36 A   But as far as I can see, that particular reference  37 there is -- refers to the Bulkley Valley.  38 Q   He refers to somebody who is -- he says is Skin-Tyhee,  39 and someone else who is -- who is half Gitksan, and --  40 but I don't see Wet'suwet'en in here.  You say in your  41 report that he -- "Loring regretted his 'painful duty'  42 in driving the Wet'suwet'en from their land."  Sir,  43 where do you get Wet'suwet'en in this?  44 A   From the inhabitants of the Bulkley Valley, who were  45 Wet'suwet'en.  The only Indian there that is  46 identified, as far as I can see, in terms of non-  47 Wet'suwet'en, is Nahone who is half Gitksan, and it 17746  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 states that he "has a house at Rocher DeBoule," which  2 of course is Hagwilget, and another at Moricetown.  So  3 I would certainly conclude that he has a residence  4 amongst the Wet'suwet'en.  5 And the other two, Skin-Tyhee, I'm not sure, but  6 "Tyhee" is a name that is used amongst some of the  7 Wet'suwet'en who complained in 1909 to the  8 Stewart-Vowell Commission.  "Tyhee" is a term that is  9 used meaning chief, and it's there in the minutes of  10 that meeting.  So in the absence of any other  11 evidence, I would suspect that Adilak probably is also  12 a Wet'suwet'en.  13 Q   When you see Bulkley Valley you just assume that it's  14 Wet'suwet'en; is that correct?  15 A   Given the context of where -- what I understand the  16 Bulkley Valley to mean and what I understand of  17 Wet'suwet'en territories and the settlement process  18 that was going on at this time, yes, I think it's a  19 reasonable assumption to refer to the fact that  20 Indians are being driven off land in the Bulkley  21 Valley, Indians with cabins, corrals and gardens, that  22 that is referring, indeed, to the Wet'suwet'en.  And  23 particularly in the light also of later evidence, most  24 notably again the minutes of the Stewart and Vowell  25 Commission in 1909, where there is a list of 29, I  26 think, Wet'suwet'en who -- who enter specific  27 grievances about similar sorts of occurrences.  28 Q   Some of those were Cheslatta, weren't they?  29 A   I don't recall Cheslatta amongst them.  30 MR. WILLMS:  Well, we'll get to that later.  1033-17, my lord.  31 THE COURT:  All right.  32  33 (EXHIBIT 1033-17 - Letter from Mr. Loring to Mr.  34 Vowell dd. March 16, 1906)  35  36 MR. WILLMS:  37 Q   Now, at the top of page 56 of your report, you refer  38 to a "significant protest action: at Kitwancool in  39 1898," about allotting reserves, and you quote from a  40 document from the Kitwancool Indians about six lines  41 down:  42  43 "They wrote to say that 'we do not want you to  4 4 come here'"  45  46 Do you see that?  47 A   Yes. 17747  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q   The reason why they didn't want them to come was  2 because they were still upset about the Kitwancool Jim  3 affair; isn't that a fair statement?  4 A   I think that's part of the context.  I am not sure  5 that it is the entire context.  6 Q   Yes.  In fact, the reserve issue was a minor part of  7 that and the Kitwancool Jim protest was the major part  8 of that?  9 A  Well, it was in part the fact -- the terms of what I  10 understand the people of Kitwancool and the relations  11 of Kamalmuk saw in terms of the responsibility for the  12 death of Kamalmuk, and their perceptions of the fact  13 that the issue had never really been settled.  So that  14 what we are talking about, in part, is a white  15 official going into that area.  16 I should also point out that there had been a  17 number of complaints previously in terms of -- a  18 number of protests about the process of establishing  19 reserves, and that continued in the Kitwancool Valley  20 through until the end of the period that I examined in  21 1927.  22 Q   Could volume 4 be put before the witness, please.  23 Sorry, do you have it?  24 A   Yes, I do.  25 Q   Volume 4 and the very last tab, tab 250.  26 Okay.  And this -- these are the letters written  27 at the request of the chiefs of Kitwancool and they  28 say this to Mr. Vowell:  29  30 "We the Chiefs of Kitwancool do not want  31 you to come to Kitwancool to make a Reserve for  32 us, because we continually remember the death  33 of our Chief Jim, who was killed by the white  34 man who was sent by the government to kill him;  35 therefore we do not want you to come here.  You  36 the Government said to me Weka [W-E-K-A]  37 whatever we say to you, do it.  This I have  38 done now I want you to have mercy upon me, not  39 to come and reserve our land."  40  41 A   Yes.  42 Q   Now, it's Kitwancool Jim and not the land that they  43 are concerned about?  44 A  Well, it seems to me that it's both.  I mean they are  45 concerned with the Indian Reserve Commissioner, which  46 is Vowell, and his proposed journey up there, and it  47 says, you know, "do not come and reserve our land." 17748  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  And as I recall -- sorry.  Dr. Galois, I am showing you a summary of opinion  evidence, History of the Upper Skeena, 1850 to 1927,  copyright 1987.  This contains your opinions in 1987?  This was a draft that I did in 1987, yes.  Well, you knew that this was going to be the document  delivered to the defendants as a summary of your  opinion evidence, didn't you?  It wasn't a draft, you  knew it was going to be sent as a summary of your  opinion  9  Yes.  Yes, I'm sorry, you are correct.  It's hard to  recall.  It's some time since I wrote this, and yeah,  it's my understanding that it was to be submitted as a  summary of my opinion.  MR. WILLMS:  Now, my lord, I am -- I am going to go through this  but I would like to mark this for identification so  that it maintains the same status as the opinion  report, if the opinion report is ultimately marked,  but I don't want to foreclose my arguments that the  opinion report is inadmissible by marking this.  So I  suggest that this be marked 1033-18 for  identification.  THE COURT:  And if the opinion report is admitted then this is  as well.  MR. WILLMS:  Yes.  THE COURT:  All right.  MR. WILLMS:  Now, can you —  MR. ADAMS:  My lord, just a moment.  There may be some  particularizing of the purposes for which this goes  in.  If it's going to be put to the witness and used  in reference to it, surely at least to that extent  it's in as an exhibit proper.  I don't object to my  friend marking it if he wishes to.  THE COURT:  Are you saying, Mr. Adams, that your friend, as was  the position in the famous Protopappas case, where if  he cross-examines, he elects to -- or at least he  risks the evidence going in?  MR. ADAMS:  My objection isn't even that sophisticated yet, my  lord.  What I'm remembering is that reference to a  similar issue in Dr. Lane's testimony, and all I have  seen is a brief reference to it as I flew through the  transcript.  I would like at least an opportunity to  review that and anything that came of that before I  have to take a final position on that.  MR. WILLMS:  Well, my lord, Dr. Lane -- there was no report, no  opinion report marked for Dr. Lane, and I don't know  what happened there, but surely that would be 17749  R. Galois (for Plaintiffs)  Submission by Mr. Willms  1 different.  2 THE COURT:  I can't recall.  3 MR. WILLMS:  But my lord, the difficulty here is this:  I  4 have -- I have got a report hanging out there for  5 identification which I still object to.  I don't want  6 to render it admissible yet.  If it ultimately is  7 admissible and I haven't cross-examined on some of the  8 opinions that may have changed, I am going to be  9 prejudiced by that.  And so I don't want to take --  10 this cross-examination as to the opinion of the  11 witness, my lord, will be as inadmissible as the  12 opinion itself if your lordship should so find.  13 THE COURT:  Well, you remember the circumstances of the  14 Protopappas case?  15 MR. WILLMS:  Perhaps your lordship could remind me.  16 THE COURT:  Well, Senator Farris moved for nonsuit in a jury  17 trial, and as there was multiple parties, the learned  18 trial judge reserved the motion until all the evidence  19 was heard.  Senator Farris then, with his usual  20 vigour, cross-examined the witness, and it was then  21 held that having put in evidence himself, he had given  22 up his right to claim for a nonsuit, that he himself  23 had called evidence.  24 MR. WILLMS:  Well, if I can —  25 THE COURT:  It seems to me that what your position, Mr. Willms,  26 certainly is, is that if you cross-examine and you do  27 so sufficiently to make some parts of this exhibit  28 admissible -- and I would think that at least the  29 parts that you cross-examine on would become  30 admissible -- your objection to the report must to  31 that extent at least be compromised.  32 MR. WILLMS:  Well let's — my lord, if I can put it this way:  33 If -- if at the present time the cross-examination is  34 limited to opinions, all right, so that it's limited  35 to opinions that are given in the draft -- in the  36 document that's been marked for identification, and it  37 is -- the cross-examination is aimed at testing those  38 opinions, as this cross-examination has been to date.  39 Because it has to be that, in my submission, I can't  40 render what is inadmissible, admissible, unless I do  41 something to qualify the witness beyond -- you will  42 recall my argument was first of all that this isn't a  43 proper area for opinion evidence anyway, and whether  44 further documents are put in or not isn't going to  45 change that, in my submission.  And secondly, I said  46 that it was beyond the witness' qualifications.  Now  47 this isn't going to change his qualifications, in my 17750  R. Galois (for Plaintiffs)  Submission by Mr. Willms  1 submission, either.  2 To the extent that any of my cross-examination, my  3 lord, goes directly to the issues that I argued, then  4 what happened to Senator Farris may well be the case.  5 In that case he wanted to move for a nonsuit, he then  6 led evidence which were then fatal to his motion for a  7 nonsuit.  But in this case, in my submission --  8 THE COURT:  It wasn't the fact that the evidence he adduced  9 affected the result, it was the simple fact that he  10 had called evidence.  He chose to move rather than to  11 call evidence.  You can adduce evidence in cross-  12 examination same as you can in chief, and he had  13 adduced evidence, therefore, he was no longer in  14 position to stand on the evidence that existed at the  15 time of his motion.  16 And I am not sure that it's a true analogy, but  17 it's the same sort of thing.  You, by your conduct at  18 trial, you take a step that may make your previous  19 position untenable, and it seems to me the thing to do  20 to solve the problem is rule on the admissibility of  21 the document, which is what probably you should always  22 do in the first instant anyway.  Sometimes it's  23 convenient to use the sidedoor for a little while.  24 MR. WILLMS:  My lord, I hesitate to suggest that your lordship  25 should make a ruling if your lordship is still  26 considering the matter.  But of course, I --  27 THE COURT:  I've thought of little else since the time.  28 MR. WILLMS:  I have the difficult position of having objected  2 9 and now having this sword hanging over my head which  30 is this report for identification, and the real risk,  31 if your lordship should decide to admit it into  32 evidence, that the cross-examination will not be done  33 that should be done.  And it's my suggestion that,  34 just as my friend suggested, that you should hear all  35 of the opinion evidence in chief subject to the  36 objection, that all of my cross-examination should be  37 heard subject to the objection as well, if your  38 lordship is inclined to reserve further on the  39 admissibility of the report.  I can't see how that  40 prejudices my friend in the least.  41 THE COURT:  Well, I must either stop and give the matter more  42 thought and rule, or I must allow you to proceed and  43 take your chances.  I am disposed to the latter, Mr.  44 Willms, but I will rule if you think that it would be  45 unfair not to do so.  46 MR. WILLMS:  Well I think, my lord, the difficulty that I have  47 at this point, my lord, is simply this:  We have heard 17751  R. Galois (for Plaintiffs)  Submission by Mr. Willms  1 the evidence of the witness, opinion evidence, subject  2 to my objection, and I have embarked on a cross-  3 examination on the assumption -- and my friend has not  4 risen yet at all when I have cross-examined and tested  5 opinions.  That by doing so, I am rendering admissible  6 what he agreed we should reserve for later to argue.  7 And it's my submission, my lord, that my friend can't  8 have it both ways.  It's not me that is in the  9 difficult position, it's him.  And if he wants this  10 matter reserved for later, if he would like your  11 lordship to reserve on it further, that the  12 cross-examination that I may do on it must be without  13 prejudice to that issue because it's a request from my  14 friend.  15 THE COURT:  Well, the only reason that I have deferred ruling is  16 because I have been led to believe that the plaintiffs  17 wish to make a substantial submission on historical  18 evidence generally.  And I am happy to have the  19 assistance that will be furnished to me by such a  20 procedure.  But I think that I have to say to you, Mr.  21 Willms, that I think that what you face here is a risk  22 which might arise -- I wouldn't go so far to say it  23 does, but which might arise not by reason of anything  24 that I say or do or your friend says or does at this  25 point, but by operation of law.  I am not sure that  26 your conduct results that I have warned you about, and  27 no doubt which you are understandably apprehensive,  28 will necessarily come to pass.  But I think there is a  29 risk.  30 I think it's fair to say that my present view is  31 that Dr. Galois' collection of documents is in because  32 it has been selected by him in his capacity as a  33 person qualified to speak with authority on this  34 question.  But my present view is that when you are  35 dealing with this kind of thing, that while it is  36 useful to have an expert collect the documents  37 together, chronologically arranged or otherwise, it is  38 still a matter for the judge to determine what they  39 mean.  And I am tending, as I expressed previously  40 with other witnesses, to the view  that when one is  41 dealing with a wide sweep of history that -- which is  42 documented, that that is the court's function, to put  43 whatever construction should be placed upon those  44 documents and not the expert who collected them for  45 the assistance of the court.  46 But I have deferred making that ruling because of  47 the issue that has been mentioned before.  But counsel 17752  R. Galois (for Plaintiffs)  Submission by Mr. Willms  1 want to correct me on that preliminary view, and it  2 may be that the Zundel case I mentioned before may be  3 of some support to them in that case, although I am  4 not at the moment persuaded that it is necessarily  5 decided correctly.  But beyond that I don't think I  6 can be of any help to you.  I think you must either  7 take your chance on whatever the law dictates as a  8 consequence or you must defer your -- not defer, you  9 must restrain your enthusiasm to cross-examine the  10 witness.  11 I'll leave that to you to decide, but it is four  12 o'clock and perhaps you should have overnight to  13 consider it, unless counsel tell me that we are  14 running seriously behind time and that we ought to sit  15 late.  What do counsel say in that regard?  16 MR. WILLMS:  Well, my lord, I can say that first of all I at the  17 present time will withdraw the opinion draft --  18 opinion summary.  19 THE COURT:  All right.  I'll give it back to you.  I've made a  20 brief note on it.  I merely noted on it "Galois in  21 1987.  He knew it would be sent as a summary of his  22 opinion."  That's all I've said on it.  I've put a  23 number on it.  24 MR. WILLMS:  And my lord, I can say that I am moving slower than  25 I had planned and that I would probably go into  26 Wednesday with my cross-examination.  27 THE COURT:  All right.  Any idea how long you will be, Mr.  28 Macaulay?  29 MR. MACAULAY:  My lord, about a day I would think.  Perhaps a  30 little less.  31 THE COURT:  Well, we are well within permissible time.  32 MR. MACAULAY:  Yes.  33 THE COURT:  All right.  I don't think — unless counsel submit  34 otherwise -- there is any need to sit longer this  35 afternoon than regular hours.  All right.  Ten o'clock  36 tomorrow morning.  37 THE REGISTRAR:  Order in court.  Court stands adjourned until  38 10:00 a.m. tommorow morning.  39  40 (PROCEEDINGS ADJOURNED AT 4:00 p.m.)  41  42  43  44  45  46  47 17753  R. Galois (for Plaintiffs)  Submission by Mr. Willms  1  2  3  4  5  6  7 I hereby certify the foregoing to be  8 a true and accurate transcript of the  9 proceedings herein transcribed to the  10 best of my skill and ability.  11  12  13    14 Toni Kerekes,  15 O.R., R.P.R.  16 United Reporting Service Ltd.  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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