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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-06-13] British Columbia. Supreme Court Jun 13, 1989

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 1754?  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Vancouver, B.C.  2 13 June 1989  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 13th day of June, 1989.  In the matter  6 of Delgamuukw versus Her Majesty the Queen at bar, my  7 lord.  8 May I remind you you are still under oath.  Thank  9 you.  Would you state your name for the record,  10 please.  11 THE WITNESS:  Barbara Lane.  12 THE REGISTRAR:  Thank you.  13  14 BARBARA LANE, Resumed:  15  16    THE COURT:  Mr. Goldie.  17  18 CROSS-EXAMINATION BY MR. GOLDIE:  (Continued)  19 Q   Thank you, my lord.  At the close of yesterday, Dr.  20 Lane, I was about to refer you to another tab in  21 volume 1 of the cross-examination books in relation to  22 the question of whether the Crown had recognized the  23 payments made by the Hudson's Bay Company or Mr.  24 Douglas on behalf of Hudson's Bay Company in the  25 treaties that he had negotiated.  And I am going to  26 ask you to look at tab 22 of the volume of documents  27 and these are taken from miscellaneous papers relating  28 to Vancouver Island 1848, 1863, a part of a return to  29 Parliament.  And I direct your reference to page 2 in  30 the upper left-hand corner, it is actually the fourth  31 page under.  Do you see that?  32 A   Yes, I do.  33 Q   Have you examined this document before?  34 A   Yes.  If it is from this collection, I have.  35 Q   And you examined it in the context of this case?  36 A   Yes.  37 Q   And it's not in your document collection?  38 A   That's correct.  39 Q   The letter there is from Mr. Colvile, the then  40 Governor of the Hudson's Bay Company, to the then  41 Secretary of State for the colonies, and he states in  42 his letter dated November 24, 1852, that he has the  43 honour to acknowledge the letter of the 2nd of July,  44 and in compliance therewith -- I am at the third  45 paragraph, third line of the first paragraph at the  46 top of the page, my lord:  47 17549  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 "I have to state the following facts as to the  2 transactions of the company in relation to  3 Vancouvers Island from the date of the grant  4 thereof until the 27th April 1852, the date of the  5 latest information receipt upon the several  6 points."  7  8 That span of time, namely from January 13, 1849 to  9 April 27, 1852, would include the period in which the  10 bulk of these treaties were negotiated?  11 A   The first —  12 Q   Nine or eleven?  13 A   No.  Well, either one of those figures.  I'd have to  14 check to be sure.  15 Q   But the bulk of them?  16 A   Yes.  17 Q   Whether it is nine or eleven, that's the bulk of  18 fourteen, is it?  19 A  Well, as it happened at this time.  Of course it was  20 not anticipated that there would only be 14.  21 Q   Well, whatever was anticipated at the time, it is the  22 bulk of those which were negotiated; isn't it?  23 A   It would be all of those that were negotiated up to  24 that date, I presume, that we are talking about.  25 Q   All right, thank you.  Then he goes on to say:  26  27 "There have been sold 1,478 and a half acres of  28 land to 11 persons.  The fur trade branch of the  29 Hudson's Bay Company are in possession under the  30 sanction of Her Majesty's Government of 3,084 acre  31 of land which were occupied by them previous to  32 the date of the boundary treaty."  33  34 That's the Treaty of 1846?  35 A   Yes.  36 Q  37 "They have sold portions of this land to some of  38 their retired servants who have settled themselves  39 upon it."  40  41 And then it talks about:  42  43 "...applications being made by 19 persons for the  44 purchase of land to the extent of 2,355 acres  45 which are in the course of being surveyed so that  46 titles may be granted and the price paid."  47 17550  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 And then he goes on to talk about the Puget Sound  2 Company, and talks about the number of settlers.  And  3 then over the page, he lists expenses incurred for  4 colonization and improvement, amount expended, 1,986  5 pounds four shillings nine pence.  And then down below  6 that there is an enclosure which itemizes the payments  7 applied to the colonization and improvements of  8 Vancouver's Island.  The presence or absence of  9 payments made on account of these treaties would  10 logically occur or be expected here in that table?  11 A   You are referring now just to the table at the end of  12 this document?  13 Q   Yes.  That's the breakdown for the figure of 1,986  14 pounds odd for expenses incurred for colonization and  15 improvement?  16 A   Right.  I would refer you to the previous page for  17 which that is the summary figure and note that the  18 breakdown there is simply land sold and numbers of  19 settlers and monies received for sales of land, monies  20 received in respect of coal and other minerals.  There  21 is no category here for monies paid out to the natives  22 for the land.  23 Q   Well, you are --  24 A   It is only the receipts.  25 Q   Yes.  26 A  And the expenses with respect to that.  27 Q   You are telling me that there is nothing which  28 reflects payments to natives?  29 A   That's correct.  This document does not detail such --  30 Q   But there is a listing of payments in respect of  31 colonization and improvement?  32 A   That's correct, and it has to do with legal expenses  33 and surveying expenses and salaries of several  34 surveyors.  35 Q   Advertising?  36 A  Advertising.  37 Q   Yes.  38 A   Correct.  39 Q   All right, thank you.  Are there any documents known  40 to you shedding any further light on the question of  41 whether the Hudson's Bay Company recovered the expense  42 paid for the -- paid to the natives on the conclusion  43 of these treaties?  44 A   Yes.  I have seen reference to such which is why I  45 said in answer to your question yesterday that I was  46 uncertain on this matter.  I believe a letter or a  47 report, I don't recall which, from Dr. Helmcken, who 17551  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 was the son-in-law of Governor Douglas, or a  2 son-in-law of Govern Douglas, who alleged that the  3 company had recovered funds for the treaty payments,  4 but I have been unable to find it in this kind of  5 record.  6 Q   Yes.  So —  7 A   I haven't made a thorough search you understand but,  8 in looking at this kind of document that you are  9 putting to me here, I have not noticed a separate  10 entry for the costs incurred.  I would not be  11 surprised if such an entry were not registered here in  12 that this was an interim report.  The grant was not  13 due -- it had some years to run.  14 Q   Yes, of course.  15 A  And the anticipation was that there would be further  16 purchases of land from the Indians, and I could well  17 suppose that an absence here might be because that was  18 uncompleted business which would be dealt with  19 elsewhere, I don't know.  20 Q   Well, I will leave that for submissions.  The answer  21 to my question is that you think there is a letter  22 from Dr. Helmcken?  23 A   I believe I have seen a letter or a report, I'm not  24 sure.  25 Q   And you can give me no further particulars?  26 A   I would have to check the paper records to see and  27 then I could.  28 Q   Well, I will come to that a little later.  The first  29 nine of these treaties were negotiated by Douglas  30 before he received the form that they presently have;  31 is that correct?  32 A  Well, I don't remember exactly when he received that  33 form but that may be correct.  34 MR. GOLDIE:  Well, I refer to your volume 2 under tab 28 where  35 you have placed a letter from Barclay to Douglas of  36 August 16, 1850.  37 THE COURT:  Volume 2 tab?  38 MR. GOLDIE:  Tab 28, my lord.  3 9    THE COURT:  Thank you.  40 MR. GOLDIE:  41 Q   You have a typescript at the beginning which extracts  42 certain items and you read the first paragraph, and  43 that paragraph which is number 12 in his letter  44 states, and I quote:  45  46 "You will receive herewith the form of Contract or  47 Deed of Conveyance to be used on future occasions 17552  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 when lands are to be surrendered to the Company by  2 the Native Tribes."  3  4 And then at the last page of the document is the form  5 of the agreement to which Mr. Barclay refers.  Doesn't  6 that tell us that Mr. Douglas was without that form  7 when he negotiated the agreements in April and May of  8 1850?  9 A   It tells us that he was without this form.  10 Q   Yes.  11 A   But there was another form as well, I believe.  12 Q   Well —  13 A  And I am not certain about the timing without checking  14 the records as to the date he would have been in  15 receipt of that.  16 Q   The events which Mr. McKay referred to or recollected  17 took place the day after Mr. Douglas received  18 Barclay's letter of December 1849; isn't that correct?  19 A   I am sorry, would you repeat that?  20 Q   I say the events which Mr. McKay described in respect  21 of the negotiation of the first treaties took place  22 the day after --  23 A   The day after.  24 Q   -- Mr. Douglas received Mr. Barclay's letter of  25 December 1849.  Isn't that what the document that you  26 have provided to the court under tab 98 of volume 3  27 tells us?  28 A   I don't know.  I'd have to see that particular  2 9 document.  30 Q   You can look at that --  31 A   I think you are incorrect in what you're proposing to  32 me.  33 Q   All right.  Well, you can correct me.  34 Would you agree with me that, in the context of  35 these treaties, it would be relevant to consider  36 whether the Hudson's Bay Company was obtaining a  37 release to lands which it was already -- it had  38 already occupied as well as to vacant lands?  39 A   I am sorry, would you repeat that?  40 Q   I say would it be relevant in the context of these  41 treaties to consider whether the Hudson's Bay Company  42 was obtaining a release of lands already occupied by  43 it prior to these treaties, as well as to vacant  44 lands?  Would it be relevant to consider that in the  45 context of these treaties?  46 A   I am not sure.  The treaties simply extinguished  47 native title to the land, whether it was occupied by 17553  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 anybody else or not.  2 Q   Well, is your answer yes or no, it would be relevant  3 to know whether the Hudson's Bay Company was obtaining  4 a release to lands already occupied to it as well as  5 to vacant lands?  6 A   It is not relevant to the question of whether native  7 title was being recognized and extinguished, no.  8 Q   All right.  Because it was obtaining a release to  9 lands which it had occupied prior to 1846; isn't that  10 correct?  11 A   That's quite correct and was so stated in Douglas'  12 initial letter to Barclay saying that it was necessary  13 to make treaties for their lands which we occupied.  14 Q   Yes.  These are the so-called fur trade reserve around  15 Victoria?  16 A   That's correct.  17 Q   Yes.  And in respect to the sale of those lands, the  18 Hudson's Bay Company would get 20 shillings on the  19 dollar instead of 10 percent, 20 shillings on the  20 pound I should say; isn't that --  21 A   I am sorry, I don't recall what those financial  22 arrangements were.  23 Q   Well, I place, under tab 23, an extract from Mr.  24 Rich's history of the Hudson's Bay Company.  Are you  25 familiar with that work?  26 A   Yes, I am.  Which volume are you in, please?  27 Q   Beg your pardon?  2 8 A  Which volume are you in?  29 Q   In my black volume, the one underneath that.  Perhaps  30 if we just put this over here.  31 A   Thank you.  32 Q   By placing that on the bible, I mean, my lord, no  33 disrespect to the bible.  34 Now, Dr. Lane, would you look under tab 23, and I  35 have extracted there from Mr. Rich's work page 757 to  36 758, and to your recollection that sets out the  37 situation that Blanshard found when they arrived in  38 Vancouver Island and discovered that the Hudson's Bay  39 Company was already occupying or had set aside for  40 itself land which was called the fur trade reserve?  I  41 am referring to the first complete paragraph on page  42 757.  43 A   Yes.  Well, this was the matter over which there was  44 great contention between Crown and the company for  4 5 sometime.  46 Q   Yes.  Is that relevant to the context in which these  47 treaties were entered into? 17554  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   I think not.  2 Q   That area which the company had set aside for the  3 Puget Sound company and itself was included in the  4 area which Mr. McKay said had been despoiled by those  5 activities and for which the Indians in the treaties  6 were given some compensation.  I am referring to tab  7 98 of volume 3 of your book, it is the first 98.  8 Perhaps the registrar might put that before you.  9 A   If you are asking me about the area right around  10 Victoria, yes.  11 Q   Yes.  That's the area that Mr. McKay, in the paragraph  12 you read to his lordship, the area which would  13 apparently have been --  14 A  Mr. McKay's letter contains statements of his view of  15 facts, some of which are patently incorrect when  16 compared with Douglas' statements of those same facts.  17 Some of McKay's statements are verifiable by reference  18 to other sources.  19 Q   Yes.  I am not talking about the verification or  20 otherwise.  21 A  Well -- but I am, because you are asking me a question  22 that turns on whether I rely upon Mr. McKay's  23 statement in one regard and I have to say that his  24 statement as to what the payments were for is in  25 direct conflict with Douglas' own statements as to  26 what he was doing when he made those payments.  27 Q   Well, I am grateful to you for telling me that the  28 paragraph which you read to his lordship from the  29 letter is not to be relied upon.  30 A   That's not what I said.  I said part of what he says  31 may be relied upon because it can be verified by other  32 information.  Part of it is in direct conflict with  33 information given by Douglas himself who I think has  34 to be credited as the better source as to what he was  35 intending to do.  36 Q   I am obliged to you.  Whether McKay was right or  37 wrong, the area in respect of which you drew his  38 lordship's attention to under tab 98, and you read to  39 him the following words:  40  41 "You will remember that the Districts for which the  42 Indians received payments in blankets were the  43 main producers of the Kamass root for the whole  44 surrounding country.  The destruction of this  45 plant by cattle and sheep caused a great loss to  46 the Songhees Sanich and Sooke Indians as it was  47 the most important article of trade which they had 17555  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 to offer in dealing with the neighbouring tribes.  2 Hence the expediency of giving them..."  3  4 that's crossed out:  5  6 "...the above named Indians a valuable  7 consideration for the loss which they sustained  8 in the loss of their Kamass trade."  9  10 Now, you read that to his lordship and I am simply  11 asking you if that includes the territory in the  12 so-called fur trade reserve; is that correct?  13 A   I said that it did.  I answered that question already.  14 Q   Yes.  And that statement was read by you as part of  15 the context in respect of these treaties?  16 A   Yes, with respect to the use of that area of land by  17 the native people.  And I have to tell you very  18 clearly here that I have included in these documents  19 some documents which contain material which I do not  20 rely upon because I find it in conflict with other  21 statements.  A given letter may or report may include  22 information and miss information, information which  23 can be substantiated and information which is clearly  24 at odds with other information which it then has to be  25 weighed against.  26 Q   Yes.  It is all part of context?  27 A  What I am saying is that any given document is not  28 necessarily all correct or all incorrect.  29 Q   No.  You referred his lordship to Mr. Barclay's letter  30 to Douglas of the 3rd of September, 1849.  I think it  31 is under tab 21 of your volume 2.  No.  I think it is  32 in the other volume here.  33 A   It is a different one.  34 Q   Yes.  Now, you referred his lordship to that letter  35 which was extracted from the Fort Victoria Letters,  36 and I think you have said, but I want to have your  37 confirmation of this, that it was in that letter that  38 Douglas first learned that the Hudson's Bay Company  39 was in the colonization business?  40 A   I did not say that.  41 Q   I am sorry, well, please correct my understanding.  42 A   Please point me to the place in the transcript where I  43 would have said that.  44 Q   Well, I am referring to what I understood was some  45 oral evidence that you gave?  46 A  Would that not be in the transcript?  47 Q   Certainly it would be in the transcript.  The question 17556  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 I am now asking you is when did Douglas first become  2 aware that the Hudson's Bay Company was in the  3 colonization business?  4 A   That's a different question.  5 Q   Well, I am asking you that question now.  6 A   I would have to refer to papers to get an exact date  7 for you.  I recall seeing a letter from Douglas or  8 some writing from Douglas in which he expressed dismay  9 at the news which had just been received but I don't  10 recall the date.  11 Q   Do you have your working papers with you?  12 A   I have some of them.  13 Q   Yes.  Can you provide me with an answer to that on  14 short notice?  15 A   No, I wouldn't have those papers with me.  16 Q   I see.  17 A   Over in Victoria.  18 MR. GOLDIE:  Now, at tab 198 of volume 3, you were referred to a  19 document, let me put that in front of you, it's 198  20 and I think you have volume 3 in front of you.  Yes.  21 It's the second 98.  22 THE COURT:  I am sorry, which volume?  23 MR. GOLDIE:  24 Q   It is volume 3, my lord.  Now, in your evidence -- do  25 you have that in front of you?  26 A   I believe so.  27 MR. GOLDIE:  Yes.  In your evidence you characterize that  2 8 document -- I am referring to volume 22 9, my lord.  29 MR. RUSH:  At this time perhaps, my lord, the transcript could  30 be placed in front of the witness.  31 MR. GOLDIE:  It will be.  Could the witness have it in front of  32 her, please?  33 THE REGISTRAR:  229.  34 MR. GOLDIE:  35 Q   229, page 16751.  Now, you said this was a review by  36 Mr. Ellice?  37 A   That's —  38 Q   Well, the name Ellice occurs in the preceding page?  39 A   Yes.  40 Q   Line 38?  41 A   Yes.  42 Q   And you say:  43  44 "...he is advising Mr. Labouchere at this point, in  45 1856, retrospectively, reminding him of the fact  46 that the grant of the island to the Hudson Bay  47 Company could not interfere with the rights of the 17557  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 aborigines."  2  3 That statement with respect to the rights of the  4 aborigines you identified as occurring at page 42?  5 A   Yes.  6 Q   And you read certain provisions on that page.  Now,  7 you treated this all one document, did you?  8 A   No.  I noticed that somehow, there is a second last  9 page here, is a separate document.  It is a letter  10 from Grey to Labouchere.  11 Q   Right.  With the exception of that, do you treat it as  12 one document by Mr. Ellice?  13 A   Yes, I believe so.  14 Q   Would it make any difference to the context that you  15 had in mind when you produced this document if it were  16 in fact two separate documents separated by six years?  17 A   No.  Well, excuse me, separated by six years?  18 Q   Yes.  19 A   Yes, it would.  It wouldn't be a retrospective account  20 if the passage that I referred to at page 42 was  21 written in 1850 rather than in 1856.  22 Q   Well, that was the case, wasn't it?  23 A   I have no such knowledge.  24 Q   Well, would you look please at -- starting with the  25 page that you read from?  26 A   Yes.  27 MR. GOLDIE:  It's —  2 8 THE COURT:  42.  29 MR. GOLDIE:  Which is, I think, 42.  Would you continue on until  30 we come to -- well, I'll have to count that.  Twelve  31 pages further on.  32 THE COURT:  From 42.  33 MR. GOLDIE:  34 Q   From 42, yes, my lord.  I can't make out the numbers  35 on my copy, the page numbers, but it is a page in  36 which midway down the page there is a single space  37 item which -- in which there are portions deleted.  38 A   Yes, I have that page.  39 Q   Do you have that?  4 0 A  Mm-hmm.  41 MR. RUSH:  I am not sure that I do.  Perhaps just at the top,  42 what's the first --  43 THE COURT:  "Done since the..."  44 MR. GOLDIE:  45 Q   "Done since the ratification of their charter."  46 A  My page number says 54.  47 THE COURT:  Yes, it looks like that. 1755?  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  2 Q   I don't have any number on mine, but I don't attach  3 any significance to that.  Do you see on that page the  4 sentence beginning with the word, "Sufficient  5 labourers to cultivate this land", about midway down  6 the page?  7 A   Yes.  8 Q  9 " to be exported free of charge, the cost to  10 be paid out of the fund held in trust for the  11 benefit of the colony."  12  13 And then the next paragraph has been considerably  14 redone, but it reads in its present form:  15  16 The Admiralty ordered in February last the  17 Inconstant Frigate to proceed to the ports of San  18 Francisco & Monterey & from thence to visit  19 Vancouvers Island & communicate with the  20 Hudsons Bay Company & afford them any  21 assistance they might require."  22  23 If we were able to fix the date of February last, we  24 would have the date of this document, would we not?  25 A   Oh, I think not because if you will notice there are  26 quotation marks there and the line above, and that  27 portion has been single spaced which I would take to  28 perhaps be an excerpt from something written earlier.  29 Q   Well, I am not referring to the paragraph which ends  30 with the quotation.  As originally typed the next  31 paragraph was double spaced, wasn't it?  32 A   I have no idea.  I have only had access to this copy.  33 Q   Well, I am looking at the same copy.  34 A   Yes.  This is a typescript.  35 Q   Was it not double spaced so it read:  36  37 "The admiralty have despatched a Sloop of War  38 and a Steam Vessel for purposes of the Survey and  39 general Examination to Vancouvers Island..."  40  41 That has been struck out so that it reads:  42  43 "The Admiralty ordered in February last the  44 Inconstant Frigate to proceed to the ports of San  45 Francisco..."  46  47 A  Well, that's one possibility. 17559  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes.  And that Frigate was on the station -- was the  2 only vessel of the Royal Navy on the station in 1849;  3 isn't that correct?  4 A   I would not be able to answer you correct or incorrect  5 without checking.  I have not paid attention to that  6 matter.  7 Q   May I direct your attention to your excerpt from  8 the -- from the Fort Victoria papers.  Excuse me for a  9 minute, my lord.  Yes, under tab 21 of volume 2 is the  10 extract of your book of documents as the extract from  11 the Port Victoria Letters consisting of Barclay's  12 letter to Douglas of 3 September 1849?  13 A   I am sorry, which tab?  14 Q   Tab 21.  15 A   Thank you.  16 MR. RUSH:  Of which volume?  17 MR. GOLDIE:  18 Q   Of volume 2, and at page 54 -- I am sorry, page 38?  19 A   38?  20 Q   Yes.  Douglas says in the first three lines or four or  21 five lines of page 38:  22  23 "Before my arrival here they..."  24  25 that is to say the servants of Captain Grant:  26  27 "...applied to Captain Shepherd of her Majestys  28 Ship Inconstant in the character of distressed  29 British Subjects."  30  31 And then footnote 1:  32  33 John Shepherd had been given command of the  34 frigate Inconstant in December 1847; for a  35 biographical note see... et cetera.  The  36 Inconstant, 36 guns, was the only ship of the  37 royal navy to visit the North West Coast in 1849.  38  39 Doesn't that suggest to you that February last is  40 written in 1850 and refers to February of 1849?  41 A   No.  That's a possibility but it doesn't mean that  42 that's the only year in which the Inconstant visited  43 the coast.  44 Q   If it was the only year in which the Inconstant was on  45 the coast, would you accept the fact that this  46 document was written in 1850?  47 A   No.  You don't seem to hear me.  This document 17560  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GOLDIE:  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  MR. GOLDIE:  Q  consists in a lot of material which is referred to  that was printed elsewhere or written elsewhere.  And  I don't know -- by the way, if you look at other  pages, the quoted material is also double spaced, I  say -- I take your point about this being single  spaced because it was crossed out, but much of the  material contained in this typescript is reproductions  of earlier writings, and it seems to me to be a single  typescript with the date 1856 at the end.  If you have  some information that says there are two separate  documents here, I'd like to know where the one ends  and the other begins and I would like to see some  direct evidence as to how these are two separate  documents.  Q   Well, I can direct you to one further thing, Dr. Lane,  and that is that the document ends half-way down a  page before the letter of Mr. Ellice?  A  Which page?  Q   It ends with a description of the fort at the end of  the paper?  A  At the end of the paper?  Q   No, not the end of the document that you have filed  but the end of the paper I am suggesting is the single  paper?  A  And where is that, please?  Q   Well, as I said, my -- what page do you find the  excerpt that I referred you to on?  A   I think it was 42.  Q   54?  A   Yes, 54.  Q   Just keep on going please.  A   Yes.  Q   Yes, go on.  Now, you have reached a page.  Can you  tell his lordship if there is a number on your copy?  A   57.  57.  And that ends with a description of a fort.  I am sorry, how does it start?  "These accounts promise well."  Yes, thank you.  This is the partial page you are referring to?  I suggest to you that that is the  Yes, that's right.  end of that paper?  A   Do you have any further basis for that statement?  Q   Well, I don't think it is that important and I will  leave it to my -- if it turns out to be important, I  will leave it to my submissions, but I can tell you 17561  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  A  '  6  7  8  9  Q  10  A  11  12  13  Q  14  i  15  A  16  17  18  19  20  21  Q  22  A  23  24  Q  25  A  26  27  Q  28  A  29  Q  30  31  A  32  Q  33  34  A  35  36  Q  37  A   ]  38  Q  39  40  A  41  42  MR. GOLDIE  43  44  45  46  THE COURT:  47  MR. GOLDIE  and I will provide you with the reference, that the  Inconstant was on the coast of North America once and  once only and that was 1849, and I will provide you  with a reference on that.  Well, if that is correct, and I think now that you  tell me that I may have seen that myself, it would  simply tell me that the passage that mentions the  previous visit of the ship --  Yes.  -- was either written in that year or the -- no later  than January of the subsequent year but it doesn't  tell me that this document was written at that time.  All right, thank you.  Now, I want to go on to another  matter.  Before you go on to another matter, let me complete my  thought there.  That, in itself, I don't find  sufficient evidence.  There may be other evidence that  could be found to indicate whether that passage dates  the entire section that you are referring me to or  not.  Yes.  I agree.  And I would check further if I felt it were an  important matter.  Well, do you feel it is important?  No.  I simply cited this document because it mentioned  again the thought which we had encountered earlier.  Yes.  That the grant could not dispose of native rights.  But if it is in fact a document in 1850, and dated in  the sense that I have suggested to you --  Yes.  -- it would be dated before any of these treaties had  been negotiated?  Yes, it would definitely, and it would simply express  that same thought again.  Yes.  More contemporaneously.  It wouldn't be expressing that same thought in 1856,  would it?  That's right.  It would be expressing it again in  1850.  :  All right, thank you.  Now, could you place volume  2 in front of Dr. Lane, under tab 38 of volume -- tab  39, I am sorry, of volume 2, you placed a draft of  a --  I am sorry, Mr. Goldie?  :  Volume 2 of her papers, my lord. 17562  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  Yes, 39.  2 MR. GOLDIE:  3 Q   Yes, and it's a dispatch of a draft -- apparently of a  4 dispatch of the 1st of February 1858, with a notation,  5 copy to Governor of Canada 4 February.  I am not quite  6 sure what the dates are but I assume it is the 4th of  7 February, 1858?  8 A   That's correct.  9 Q   In the context of the colonial office's thinking at  10 that time, would the events which were taking place  11 before the Select Committee of the House of Commons  12 investigating the Hudson's Bay Company be relevant?  13 A   I don't see any direct relevance --  14 Q   All right.  You were —  15 A   -- for the purpose for which I was inserting this  16 document.  17 Q   Well, you were inserting this document presumably  18 because it indicated some of the thinking of the  19 colonial office?  20 A   I inserted this document because it contained  21 information directly relevant to my search for data  22 regarding native title.  23 Q   I see.  24 A  And it says at the fourth page of the document, this  25 document deals with a rumoured Mormon invasion of  26 British territories for Mormons fleeing Utah.  27 Q   And you read a paragraph from that page?  28 A   It was that section dealing with the rights  29 recognized -- as may be recognized in the native  30 tribes that I was interested in because it seemed to  31 me to give the thinking at that time as to the  32 mainland area, whereas the other data prior to that  33 had dealt with the question of native title on  34 Vancouver Island.  This, as far as I know, is the  35 first statement I could find respecting the opposite  36 mainland in the question of native rights to the soil  37 there.  38 Q   At the same time that this was going on, or  39 immediately prior to this, there had been a Select  40 Committee of the House of Commons that was going into  41 the Hudson's Bay's activities in North America  42 including Vancouver's Island; isn't that so?  43 A   Yes.  44 Q   And you're familiar with that, are you?  45 A   Yes.  46 Q   And under tab 25 of my book of documents, I have  47 provided the original of a letter from a Mr. Corbett 17563  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 to Mr. Labouchere who was then the Secretary of State,  2 and following the pink divider there is a typescript  3 of it.  And on the typescript there are also included  4 the colonial office minutes, and perhaps before I  5 refer you to that, I refer you to tab 26 which is the  6 report from the Select Committee of the Hudson's Bay  7 Company which was printed on July 31 in -- or ordered  8 to be printed July 31 and 11 August, 1857, and the  9 third page in, paragraph 2, the items which -- the  10 circumstances which the committee found important was  11 firstly:  12  13 "The growing desire of our Canadian fellow subjects  14 that the means of extension and regular settlement  15 should be afforded to them over a portion of this  16 territory.  The necessity of providing suitably  17 for the administration for the Vancouver's Island  18 and the present condition of the settlement which  19 has been formed on the Red River."  20  21 And then under item 5:  22  23 "The company exercises rights, land held by charter  24 or Rupert's Land, second, the land held by licence  25 or the Indian territory."  26  27 That was -- became the mainland colony; is that  28 correct?  29 A   You are speaking of the area west of the Rockies?  30 Q   Yes, that's correct.  Rupert's Land would take in the  31 area east of the Rockies, would it?  32 A   Correct.  33 Q   And then Vancouver's Island.  And then the next page,  34 the Committees' view, that is under paragraph 10:  35  36 "That the connection of the Hudson's Bay Company  37 with Vancouver's Island should be terminated.  38 Means should also be provided for the ultimate  39 extension of the colony over any portion of the  40 adjoining continent to the west of the Rocky  41 Mountains on which permanent settlement may be  42 found practical."  43  44 Now, I go back to Mr. Labouchere's letter?  45 A   You mean the letter to Mr. Labouchere?  46 Q   Yes, the letter to Mr. Labouchere, thank you, under  47 tab 25, and he starts out by saying: 17564  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  "As from pressing duties, I was unable to comply  with the request of one of the honourable members  of the House of Commons to be examined a third  time before the Select Committee upon the Hudson's  Bay Company prior to my embarkation for this land  once more."  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  This land apparently being the Red River settlement.  And then -- by the way, are you familiar with this  letter?  A   I probably have seen it at sometime in the past but at  this time I don't recollect it, nor do I recollect who  Mr. Corbett is.  Q   Well, he was a clergyman in the Red River settlement  and the witness before the Select Committee?  A   Thank you.  MR. RUSH:  I take it that my friend is going -- is providing us  with the context here, is he?  MR. GOLDIE:  Well, I'd be happy to provide the whole of the  Select Committee's report, my lord.  I have included  under it --  MR. RUSH:  I was just making a question as to how matters of  evidence get before the court.  THE COURT:  The witness asked him, I think, was the problem.  MR. RUSH:  The witness said she didn't know who Mr. Corbett was.  THE COURT:  Yes.  MR. GOLDIE:  Q   Yes, that's correct, and I will bring up the report of  the Select Committee which has attached to it I think  525 pages of evidence including the evidence of Mr.  Good, or Mr. Corbett, I should say.  At any rate, at page 4 of his letter, and I am  referring to the typescript, if you'd follow me  please, Mr. Corbett speaks at some length about the  Land Question in the Northwest Territories and  suggesting that -- and commenting on the fact that  there were so few treaties with the Indians.  Now,  does that refresh your recollection at all of your  having read this letter?  A   Yes, it does.  He is referring to the land which Lord  Selkirk —  Q   Yes, that's correct.  A  Was -- yes.  Q   And then the minutes of the Colonial Office official  found on the last page of the typescript?  A   Yes. 17565  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And the first minute is that, no previous record could  2 be found of Mr. Corbett's letters to the division, and  3 then Mr. Blackwood's memorandum to Mr. Merrivale:  4 Stanley will remember this writer as one of the  5 witnesses before the Hudson's Bay Select Committee.  6  7 Assuming that it will be proper to acknowledge the  8 receipt of his letters with thanks for His  9 Lordship wishes to send him a copy of the evidence  10 as requested.  11  12 And then Mr. Merrivale's comment:  13  14 This letter alludes to one matter which is new to  15 me nor have I heard it referred to in what I have  16 read of the evidence before the Hudson's Bay  17 Committee.  I mean the claims of Indian tribes  18 over portions of Lord Selkirk's land and generally  19 over the territories comprised in the charter.  20 The Americans have always taken care to extinguish  21 such rights, however vague, we have never adopted  22 any very uniform system about them.  I suppose the  23 HBC have never purchased from such claimants any  24 of their land and I fear idle as such claims  25 really are when applied to vast regions, of which  26 only the smallest portion can ever be used for  27 permanent settlement, that the pending discussions  28 are not unlikely to raise up a crop of them.  29  30 Is there any -- is there any relevance in your opinion  31 to the -- of that to the context of purchasing title  32 from natives in the -- in the Hudson's Bay Company  33 territories or over which they have a licence?  34 A   No, I think not, because the arrangements for  35 Vancouver's Island were entirely different as between  36 the Crown and the Hudson Bay Company than they were  37 for -- either for Rupert's Land or for the Selkirk  38 Colony and therefore I don't consider them to be  39 directly relevant.  40 Q   All right, thank you.  Under tab 40 of your volume 2,  41 if I can go back to that for a minute, you provide a  42 copy from the 1875 Provincial Papers relating to  43 British Columbia of dispatch number 6 from --  44 A   I am sorry.  Sorry, Mr. Goldie, I was switching  45 volumes here.  46 Q   Tab 40 of volume 2.  47 A   40? 17566  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes.  2 A   I will have to ask you to repeat, I didn't hear you.  3 Q   You set out a copy of Lytton's dispatch to Governor  4 Douglas of July 31, 1858, number 6, it starts at the  5 bottom of the page?  6 A   Yes, I have it.  7 Q   And you read to his lordship on the next page  8 paragraph 3; is that correct?  9 A   Starting at the bottom of the --  10 Q   Yes.  11 A   Yes, correct.  12 Q   Now, the context of this is that there was a bill  13 before Parliament creating the colony of British  14 Columbia?  15 A   I believe that's correct if you will allow me a moment  16 to look at this document.  Yes.  17 Q   Thank you.  And you have placed in evidence the formal  18 commission and the royal instructions to Douglas which  19 followed as soon as the act received royal assent?  20 A   Correct.  21 Q   Yes.  Could you turn to that act, the Act of 1858  22 which you have placed in evidence and I think it is in  2 3 your volume 4 -- volume --  24 A   1.  25 Q   1, thank you.  Tab 7, my lord, and under section 2:  26  27 "Her Majesty was empowered with the advice of her  28 Privy Council to authorize and empower such  29 officer as she may from time to time appoint as  30 Governor to make provision for the administration  31 of justice therein and generally to make ordain  32 and establish all such laws, institutions and  33 ordinances as may be necessary for the peace,  34 order, and good government of her Majesty's  35 subj ects."  36  37 And then the proviso that:  38  39 All such orders-in-council and all laws and  40 ordinances so to be made as aforesaid shall be  41 laid before both houses of Parliament as soon as  42 conveniently may be after the making an enactment  43 thereof respectively.  44  45 Those were -- those powers were given without  46 reference to any legislative assembly; is that right?  47 A   The context of this document is the very hurried and 17567  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 un-anticipated need to create a legal arrangement for  2 a colony of British Columbia because of the expected  3 influx of people from south of the border.  4 Q   Yes.  5 A  And the previous letter of July 31, a few days before  6 this August 2 letter, sets out the directions to  7 Douglas that begin at the bottom of page 45 in which I  8 read on a previous occasion and speaks of the  9 anticipated bargains or treaties with the natives for  10 the cession of the lands.  There is no reference to  11 that in the act providing for the government of  12 British Columbia if that was your question to me.  13 Q   No, the question that I put to you was that the  14 context or that the powers --  15 A   Yes.  16 Q   -- granted Douglas without reference to a legislative  17 assembly?  18 A   None had yet been set up.  19 Q   There is none provided for in that act; correct?  20 A   Yes, correct.  21 Q   And those powers then granted to Douglas were to make  22 laws included the power to make laws for the peace,  23 order and good government of the colony?  24 A   Correct.  25 Q   Yes.  And it also provided for papers to be laid  26 before Parliament?  27 A   I believe so.  28 Q   Yes.  And you're familiar with those papers?  29 A   I don't know what papers you are referring to unless  30 you point me to it here.  31 Q   Well, I am just asking you if you are familiar with  32 the papers that were laid before Parliament pursuant  33 to that act?  34 A  Without having something before me, I have difficulty  35 answering the question.  I probably am but I would  36 like to know what it is I am talking about.  37 Q   The powers granted Douglas were commented upon by the  38 home secretary as being unusual, were they not?  39 A  Would you please show me where you are referring to?  40 Q   Yes.  41 A   I misspoke before when I said I'd like to know what I  42 am talking about.  I meant to say I'd like to know  43 what you are talking about.  44 MR. GOLDIE:  Well, I am now referring you to tab 35 of my book  45 of documents, if you could assist, please.  46 THE COURT:  I am sorry, what tab?  47 MR. GOLDIE:  Tab — well, excuse me, my lord, it's — it will be 1756?  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 in the next volume 2, the book of documents.  2 THE COURT:  I don't think we have a volume 2 yet.  3 MR. GOLDIE:  Well, I will remedy that now.  Might a number be  4 reserved for that, my lord?  5 THE REGISTRAR:  1057.  6 THE COURT:  Yes.  7 MR. GOLDIE:  8 Q   Now, if you'd look under tab 35 you will see Papers  9 Relating to the -- a title page Papers Relating to the  10 Relative to the Affairs of British Columbia Part 1.  11 Are you familiar with that?  12 A   Yes, I am.  13 Q   Do you recognize those as a comprising part of the  14 papers laid before Parliament pursuant to the act of  15 1858?  16 A   You mean the pages that you have in this tab?  17 Q   Well, I am referring to the document as a whole of  18 which this is only a part.  19 A   Yes.  That was the general purpose of this collection  20 of documents.  21 Q   I am asking you if you now recognize that these are  22 papers which were laid before parliament pursuant to  23 the act of 1858?  24 A   I know these are papers that were laid before  25 Parliament.  I would have to look at the act to be  26 sure that that was the case, but I have no reason to  27 suppose otherwise.  I simply don't know without  28 verifying it, if you ask me that in that way.  29 Q   I had said to you that -- or I had suggested to you  30 that Douglas' powers were unusual.  Do you recall that  31 question?  32 A   Yes.  33 Q   And that would be an appropriate context in which to  34 consider the affairs of the mainland so far as they  35 are relevant to the matters before the court?  36 A   Yes.  37 Q   And under that tab, I have included a dispatch 16 from  38 Lytton to Douglas of September 2, 1858?  39 A   Yes, I see it.  40 Q   And on the next page, 62, the second to last paragraph  41 where Sir Edward Lytton says, and I quote:  42  43 "These powers are indeed of a very serious and  44 unusual extent but Her Majesty's government fully  45 rely on your moderation and discretion in the use  46 of them..."  47 17569  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 And so on.  2 A   Yes.  3 Q   And that, you agree, is an appropriate context to  4 consider the events of the mainland?  5 A   Certainly.  6 Q   Yes.  You did not include that in your group of  7 documents?  8 A   No, because this has nothing whatever about Indian  9 title, whereas the document that I did provide speaks  10 to it.  11 Q   All right.  Now, if I can leave that for a moment, you  12 provided the court with some materials relating to the  13 establishment of the Hudson's Bay post at Fort  14 Langley, do you recall that?  It is tab 42 of your  15 volume 2.  I believe you described it as the Fort  16 Langley Journal or an extract from the Fort Langley  17 Journal?  18 A   Yes.  19 THE COURT:  I am sorry, Mr. Goldie, I missed the —  20 MR. GOLDIE:  It is 42 of her volume 2.  21 THE COURT:  Thank you.  22 THE WITNESS:  Yes.  I didn't know what document you were  23 referring to by the way you characterized it.  I think  24 I did put in other documents which may relate more  25 directly to the establishment of Fort Langley.  This  26 document is an early journal from Fort Langley.  27 MR. GOLDIE:  28 Q   Well, it begins with the words, Journal of the voyage  29 from Fort Vancouver to Fraser River and of the  30 establishment of Fort Langley?  31 A   Yes.  I placed the cover sheet of the document here in  32 order to identify the document.  The pages which I  33 have inserted deal with matters at Fort Langley.  34 Q   Yes, all right.  The context of the post at Fort  35 Langley is that it became the major post for the cured  36 salmon trade with the Hawaiian Islands?  37 A  Among other places.  38 Q   I beg your pardon?  39 A   It was the major place for cured salmon that was  40 exported to the Hawaiian Islands as well as cured  41 salmon destined for other places.  42 Q   Yes.  But that became its major function.  Was the --  43 was the trading post of the Hudson's Bay used to carry  44 on that trade?  45 A  Well -- and to provide its own brigades and for other  46 purposes.  47 Q   Yes. 17570  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes.  2 MR. GOLDIE:  All right, thank you.  3 THE COURT:  Mr. Goldie, in view of the fact we have to adjourn  4 early, would it be convenient to take the morning  5 adjournment now and divide the morning in half as best  6 we can?  7 MR. GOLDIE:  Yes, thank you.  8 THE REGISTRAR:  Order in court.  Court stands adjourned for a  9 brief recess.  10  11 (PROCEEDINGS ADJOURNED AT 11:07 a.m.)  12  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceedings herein, transcribed to the  17 best of my skill and ability.  18  19  20  21  22  23 TANNIS DEFOE, Official Reporter  24 United Reporting Service Ltd.  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 17571  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  (PROCEEDINGS RESUMED AT 11:20 A. M.)  BARBARA LANE, Resumed:  CROSS-EXAMINATION BY MR. GOLDIE:  (Continued)  MR. GOLDIE:  Thank you, my lord.  Q   Dr. Lane, at tab 44 of your volume two, I believe  volume two is in front of you, you introduced the  Douglas dispatch of the 24th of August, 1860 to which  was attached a long memorandum from Judge Begbie.  There apparently was a dispatch from Douglas the same  day commenting on the Clark proposals, was there not?  A   I am sorry, this is the Begbie response to the Clark  report?  Q   Yes, the context was that a Capt. Clark made certain  proposals to the secretary of state at the Colonial  Office and he had forwarded those proposals to Douglas  for his comments and Douglas had circulated the  proposals to Begbie and to the Commissioner of Lands  and Works?  A  Mr. Moody, yes.  Q   And was forwarding Begbie's comments; is that correct?  A   That's right, this is the transmittal letter from  Douglas forwarding --  Q   Didn't Douglas himself comment?  A   Douglas himself wrote a brief review as well.  Q   Yes.  And do you consider those to be relevant?  A   No, because Mr. Douglas did not touch on any matter  that I was concerned with in this context, which was a  discussion of Indian title.  Q   So this -- if the word Indian title doesn't appear,  you don't regard it as relevant to your consideration  or --  A   That's not what I said.  If there are other words but  they refer to Indian matters that would be subsumed as  Indian title, I certainly do take them into account.  In this instance the Clark report made a special  mention of Indian title and Begbie's response also  referred to Clark's statement about Indian title and  therefore I included the Begbie response, since  Douglas forwarded Begbie's response which dealt with  that matter but Douglas himself did not deal with it,  I felt it was sufficient to insert the only  document -- these are all lengthy reports -- the only  one that dealt with the matter that I was concerned  with. 17572  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  Q  2  A  3  4  Q  5  A  6  Q  7  8  9  10  i  11  12  13  i  14  15  ]  16  i  17  18  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  28  A   ]  29  30  31  32  MR. RUSH:  33  A  34  35  MR. GOLDIE  36  Q  37  1  38  A   '  39  Q  40  i  41  42  A  43  44  Q  45  A  46  1  47  MR. GOLDIE  Where did Clark refer to Indian title?  At the outset of his report, either in the letter of  transmittal or the first page of the report.  Well —  I don't recall exactly at this moment.  I refer you to tab 29 of my volume, volume one, the  black volume.  This again is an extract from further  papers relative to the affairs of British Columbia,  part three, presented to both houses of parliament by  Command of Her Majesty, 1860, and under that I have  the dispatch from the Duke of Newcastle to Governor  Douglas of January 7th, 1860, transmitting a copy of  Capt. Clark's letter, which is enclosure number 19,  which Clark's letter of -- un-dated, but stated to be  Monday, and then a sub enclosure which sets out  Clark's proposals.  Are you -- is it your evidence  that Capt. Clark's proposals were in greater detail  than is set forth in the --  Oh, yes.  And can you provide me with the appropriate reference?  Yes, I could do but not from the top of my head.  Well, I am making a request of you that you do so.  Certainly.  When can you do that?  I would have to go back to Victoria to do that.  Were you not advised, Dr. Lane, to bring your working  papers with you?  Mr. Goldie, I have about 3000 square feet of working  papers and I suggested that perhaps somebody could  find the money to hire some vans to bring it over and  got a smile in return.  That was from me.  I was not able to transport that material and I don't  know where I would put it if I brought it here.  But you were advised that you were to bring with you  drafts of your reports?  Well, I have no drafts of reports to bring.  And what about lists, did you prepare any lists of  documents that you included in your book, in your  books?  I believe those were provided to counsel and to you  through counsel.  I have no lists other than the indices in these books.  No, I certainly provided it several times, lists of  documents. My understanding was --  :  Well, I would ask for production, my lord, of any 17573  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 documents in my friend's hands which meet the  2 description of the letter to him of April 3rd, 1989.  3 MR. RUSH:  They have been provided.  And so have the document  4 lists.  What my friend asked for was a listing of  5 every document that was in the possession of Dr. Lane  6 and Dr. Lane advised what it would take in order to do  7 that and unfortunately there was no way of financing  8 it.  So she got another smile.  9 MR. GOLDIE:  Well, we were given a cumulative document list but  10 that does not meet the request made in the letter of  11 April 3rd and we didn't get a reply to that letter  12 explaining what my friend has now stated.  13 Q   At any rate, you are going to be able to give me the  14 reference for the full Clark proposals?  15 A   I believe I should be able to find that but I do not  16 myself have a list of all the documents in my  17 possession.  18 Q   That's not what I am speaking about.  I am speaking  19 about the reference to Capt. Clark's proposals.  20 A   I understood your question, and I think my answer was  21 responsive.  22 Q   Under tab 29 of that same book you will find in the  23 back a captain -- or Governor Douglas's comments, do  24 you see that?  25 A   No, I am sorry, where are you?  26 Q   It's under the pink divider in tab 29.  27 A   Yes, I have it now.  28 Q   And Governor Douglas states that he "has the honour of  29 submitting a report upon the scheme of Capt. Clark,  30 Royal Engineers, for the disposal of land in British  31 Columbia forwarded to me with Your Grace's dispatch  32 number three the 7th of January last."  33 A   Yes.  34 Q   And he goes on to discuss it, and he discusses it  35 section by section, does he not?  36 A   Yes, but all he is discussing here are the proposals  37 for the disposal of land and comparing them with the  38 matters already arranged for in British Columbia or in  39 Vancouver Island, I am not sure, I would have to  40 refresh my memory here, but he is comparing them with  41 the scheme of things as he has already envisaged  42 appropriate for British Columbia and comparing them  43 with the suggestions that Mr. Clark was making based  44 on his experience in Australia, and suggesting that  45 they either were already in place or weren't  46 appropriate, the Clark suggestions, as the case may  47 be. 17574  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   They are relevant to the context of Govenor Douglas's  2 views on land in 1860, aren't they?  3 A   But they are not relevant to the issue of native title  4 which was addressed directly in the Begbie and Clark  5 parcel of this correspondence, and that's why I only  6 addressed those.  7 Q   All right.  Thank you.  8 Now, turning back to your book number two, your tab  9 49, you have your typescript of a newspaper article in  10 the British Colonist of March 20, 1862.  In the  11 context of that address to the Assembly, are you  12 familiar with any document which indicates whether a  13 treaty was entered into or compensation paid beyond  14 the establishment of a reserve to the natives of the  15 Malahat District?  16 A   I wish I could answer that question for you.  There  17 are allusions to arrangements having been concluded  18 but I have not been able to find papers directly  19 concerning that matter.  But I have seen, in the  20 records I have reviewed, words that suggest the  21 compensation in fact may have been paid but I can't  22 find a record of it.  Or haven't been able to.  I must  23 say I haven't searched exhaustively.  24 Q   So the answer to my question then is no, you have not  25 been able to find a document which is a treaty or  26 which indicates that compensation was paid?  27 A  Well, part of Douglas's speech which is before us here  28 in this page says that he deemed it "expedient in the  29 Malahat District to enter into arrangements with the  30 natives for the satisfaction of their claims on the  31 lands upon terms agreeable to them and advantageous to  32 the colony" and I don't know what those arrangements  33 were, because I have not been able to find information  34 which directly informs me of that.  35 Q   The arrangements that he proposes he describes,  36 doesn't he?  37 A   I don't think so.  38 Q   Well, that's a matter --  39 A   He says an essential part of it.  40 Q   That's a matter of argument.  Thank you.  41 Now at tab 50 and 51 and 52, you have some other  42 extracts of newspaper articles?  43 A   Yes.  Well, these newspaper articles, as you  44 characterize them, purport to be the account of what  45 transpired at the sitting of the legislative body  46 here.  The journals of the legislative bodies don't  47 contain full reports of the discussions.  The 17575  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 newspaper was, in a sense, the only Hansard we had of  2 the day.  3 Q   You rely upon these newspaper articles to indicate the  4 nature of the House, of the business conducted?  5 A   I rely upon them to this extent, they are the only  6 contemporaneous account that we have in some instances  7 of what the discussions were about.  8 Q   Yes, I am not being critical of you, Dr. Lane.  9 A   I am trying to be very clear as to the reliance I  10 place upon them.  11 Q   When I say newspaper articles, I am simply describing  12 the source that they come from.  13 A  Well, to my mind there is a distinction between a  14 newspaper article and something which purports to be a  15 report of the minutes of a meeting.  16 Q   Whatever it is --  17 A  An article may include editorial comment.  This is  18 meant to be a handwritten account of what was said  19 without editorial comment.  20 Q   However you characterize it, have you found any, in  21 these extracts or any other reports, of estimates  22 which provided funds for the extinction of claims in  23 the Malahat District as referred to by Governor  24 Douglas in his speech to the Assembly under tab 49?  25 A   I am sorry, is this a different question from the one  26 you asked me before?  27 Q   I don't think I asked you a question.  We got off on  28 to the nature of the newspaper articles.  The question  2 9 I am putting to you now was whether you found, in  30 these articles or any other extracts, an indication  31 that the estimates of the House provided for  32 compensation to be paid to the natives of the Malahat  33 District as referred to by Governor Douglas in his  34 speech to the Assembly, March 20, 1862?  35 A   I can't give you a clear answer to that, other than to  36 say that, yes, there are other estimates for  37 extinguishing native title in Vancouver Island.  They  38 don't specify which districts but rather are meant to  39 be all-encompassing.  So I don't know whether they  40 relate to the Malahat or not.  41 Q   I will come to those, but my understanding is that all  42 you have referred to relate to the Cowichan?  43 A   No.  44 Q   And I am talking about the documents that you have  45 placed before his lordship relating to what you  46 consider to be the extinguishment of native title on  47 Vancouver Island, is there any one of those -- 17576  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A   I don't know exactly which documents have been  2 included in these volumes.  I certainly had listed the  3 documents that I am referring to that line out expense  4 to be paid by the government to extinguish native  5 title in the lists which I have provided.  6 Q   The selection of documents may not have been made by  7 you, but you were referred to them and you now place  8 them before his lordship, and we will come to them,  9 and I am going to ask you is there any one of them  10 that refers to any other issue than the Cowichan, if  11 you would bear that in mind, please.  12 A   Hm-hmm.  13 Q   And in the transcript, in Volume 229 at page 16770,  14 and you are referring here about the discussion of the  15 estimates in tab 51, and you say in line 39:  16  17  18 "These selections are taken out of a large body of  19 written materials dealing with the question of  20 extinguishing Indian title on Vancouver Island  21 and I have merely selected examples to show  22 different things."  23  24  25 Q   Would you provide me with a list of the written  26 materials to which you refer?  27 A  Well, as I say, they should have been included in the  28 lists that were sent to you.  29 Q   Well, I am not sure what you mean by should have, are  30 you familiar with those --  31 A   I don't know what went to you.  I know what I provided  32 to counsel and I can only speak about what I know.  33 Q   Would you inform yourself then by looking at what Mr.  34 Rush sent to me and tell me if there is anything that  35 is not on that list to which you have referred in the  36 answer, written materials from which you made  37 selections; do you follow me?  38 A   I am not sure.  39 Q   All right.  I will try it again.  I want you to inform  40 yourself of what Mr. Rush sent to me, are you with me  41 so far?  42 A   Yes.  43 Q   And when you go through that, would you please tell me  44 if there is anything not included in that which would  45 fall under the description "a large body of written  46 materials dealing with the question of extinguishing  47 Indian title on Vancouver Island"? 17577  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Certainly.  2 Q   Thank you.  Now, going back to your volume two, under  3 tab 56, you have another extract from a newspaper and  4 I take it that this is not a report of any  5 governmental transaction, am I right in that?  6 A   No, I believe this is either a letter to the editor or  7 an editorial.  I would have to check to be sure.  8 Q   Reference is made, and I am at the first page --  9 MR. RUSH:  What tab are you at?  10 MR. GOLDIE:  Tab 56, under the heading "Local Misrule".  11 Q   Reference is made about the 10th line to the "History  12 of the Chemainus District."  To what native tribes or  13 Indians, native tribes, is that a reference to?  14 A  Well, I would presume that the Chemainus Indians,  15 however it may encompass others as well.  16 Q   Does it inclusive the Cowichan Indians?  17 A   I would have to look at the reference to be certain  18 how widespread the inclusion was.  19 Q   All right.  Now in the same transcript at page 16774,  20 you were asked at line 43:  21  22 "Q   Okay.  I would just ask Dr. Lane if the  23 legislative Houses in the colony considered the  24 question of Indian title in the Cowichan Valley  25 on a subsequent occasion to that?  26 A   Yes, they did."  27  28  2 9 And you then responded by referring to the document  30 under tab 59, which is a handwritten document, which  31 is the speaker's communication with the governor of  32 the 9th of February, 1864.  33 A   Yes.  34 Q   The Colony of Vancouver's Island was still a separate  35 colony at that time, was it?  36 A   That's correct.  37 MR. GOLDIE:  My lord, I am, subject to my friend's objections, I  38 am going to hand up to your lordship a little table  39 which just as a matter of convenience is intended to  40 indicate the -- primarily the -- who was governor when  41 and some of the events which are relevant.  I am not  42 suggesting that this be filed as an exhibit or  43 anything, it comes under the heading of assistance,  44 and -- but I will ask the witness this:  45 Q   Does it conform to your recollection that Governor  46 Kennedy became governor of the mainland in 1863, but  47 didn't assume office until March of 1864? 1757?  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A   I don't hold those dates in my head but that sounds  right to me.  Q   And Governor Seymour was the -- I said the mainland  colony, I should have said the Vancouver Island  colony.  Yes.  And Governor Seymour was his counterpart on --  On the mainland.  -- on the mainland?  Right.  All right.  Now, the Cowichan Indian controversy was  one that Helmcken referred to in his letter to McKay,  if you recall that?  You mean the one much later?  Yes, the one --  The one in the 1880s?  Yes, some 30-odd years after the event.  Correct.  And that's under volume three in tab 98.  And McKay's  response to the question that Helmcken put to him  was -- is found in the last paragraph of his letter?  I beg your pardon, what tab are you at?  Do you have volume three there, tab 98?  Tab 98?  The first 98?  Well, it's the — it's the first 9?  to the end of that --  Are you referring me to Mr. -- Dr.  Helmcken raised a question, didn't  Yes.  An all I am asking you to confirm is that it is to his  question that McKay responded in his letter, and I am  looking at your typescript of the letter under the  blue separator, and I quote:  "The Cowichans did not  suffer in any way by the settlement of whites in their  country and there never has been any reason which they  should have had any payments made in respect to their  country."  All I am asking you to do is confirm that that is  what is found in the typescript is in the handwritten  copy?  A   In the handwritten copy?  Q   Well, the original, the photograph of the original.  A   This is my -- you're referring now to McKay's letter  and not Helmcken's letter?  Q   I am referring to McKay's letter, yes.  A   This is my typescript.  Q   Yes, I understand that.  I just wanted your  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  3.  And we go right  Helmcken's letter?  he? 17579  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 confirmation that that is an accurate typescript of  2 what McKay's letter states?  3 A  Well, I will check it again.  4 THE COURT:  We haven't found your document, Mr. Goldie.  5 MR. GOLDIE:  It's 98 of her volume three, my lord.  6 THE COURT:  You mentioned the blue separator.  7 MR. GOLDIE:  You have to go right to the end of the tab, there  8 are a lot of documents -- not a lot of documents,  9 there are a number of documents in the tab.  10 THE COURT:  99?  11 MR. GOLDIE:  No, it's 98 and the last document is Helmcken's  12 letter.  13 THE COURT:  I think perhaps I have an orange or buff-coloured  14 separator, that's put me off the scent here.  Yes,  15 this is the -- he was the only governor of the colony  16 at the time?  17 MR. GOLDIE:  Yes.  Well, no, he — not at that point, my lord.  18 He had a couple of rivals.  19 Q   I would ask you to confirm that that was, to the best  20 of your ability, an accurate transcription of what he  21 said in his letter.  And perhaps his letter can be  22 easily enough read.  23 A   The answer to your question is, yes, this is my  24 transcription made to the best of my ability to be an  25 accurate copy.  26 Q   All right.  Thank you.  Now, going back to volume two,  27 please, of your letter, of your documents, that is Mr.  28 Pemberton's report of 1864 and that too refers to the  29 Cowichan?  30 A   I am sorry, the tab, please?  31 Q   Tab 61.  32 THE COURT:  What do you say this is again?  33 MR. GOLDIE:  I say this document also relates to the Cowichan  34 Indian controversy.  35 A   Yes.  36 Q   And you read to his lordship on page 2 the paragraph  37 under the heading "Government Reserves"?  38 A   Yes.  39 Q   And that, the context of that is the issue as to the  40 size of those reserves?  41 A   No, the issue is how to raise revenue in order to pay  42 the Indians for their land and extinguish Indian title  43 and the suggestion is made one way of doing that is to  44 cut down the size of the reserves and sell that land  45 to white people and use those funds in order to  46 extinguish the native title.  47 Q   That would be a reduction in an established reserve? 17580  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  8  9  10  11  12  13  14  15  16  17  18  A  19  20  21  22  23  24  25  26  Q  27  28  A  29  30  31  32  33  Q  34  35  MR.  RUSH:  36  MR.  GOLDI  37  Q  38  A  39  40  MR.  GOLDI  41  42  THE  COURT  43  44  A  45  THE  COURT  46  A  47  THE  COURT  That's what's being suggested.  Well, that's what you have described, isn't it?  I am simply describing what this document says.  All right.  Thank you.  I think the document speaks for itself.  I would agree.  Now, you were referred to tab 67, which was a  letter to the Attorney-General or a letter from the  Attorney-General, I am not quite sure, can you recall?  You read a paragraph on the right hand column:  "I think Sir James Douglas, just before leaving  the colony in his speech opening the first  council, declared that the policy of the  government was to allow Indians to pre-empt".  And the date of that is, again for me, please?  This says -- the note on here says 25 February, '66.  But this is a minute on a letter or a memo, it says at  the top here, "refer to the Attorney-General", and I  am trying to recall, I think this may have been Mr.  Crease's comment on -- the question that was at issue  was are Indians legally able to pre-empt land in  British Columbia, and my recollection is that this was  Crease's legal opinion about that matter.  Well, the Indians had pre-empted land prior to that  date, had they not?  I don't recall whether such pre-emptions had been  finalized.  There certainly was application to  pre-empt land.  I would have to refer to the record to  see if any pre-emption had in fact been completed as  of that date.  Well, the issue was raised as early as 1862, was it  not?  What issue?  r:  The question of Indians pre-empting land.  Again, you would have to refresh my memory by showing  me what you are referring to.  £:  All right.  Would you put this second volume in  front of the witness?  :  Before you do that, I don't have a note of the date  of this document, it looks like February 25?  Yes.  :  '86?  No, I believe that's a '66.  :  Was Mr. Crease the Attorney-General at that time? 17581  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Again, I think so but I would like to check it.  2 THE COURT:  We don't know who referred it to him if he was  3 Attorney-General?  4 A   I think it may have been Mr. Trutch at the Lands and  5 Works Department.  But, again, I would want to check  6 the document to be sure.  7 THE COURT:  All right.  8 MR. GOLDIE:  9 Q   Under tab 32 of the second book, you will find an  10 extract from the British Columbia print papers  11 connected with the Indian land question, 1850 to 1875,  12 and there is a Col. Moody's letter?  13 A   Yes.  14 Q   To the colonial secretary.  15 A   Yes.  16 Q   And was he, to your knowledge, authorized to proceed  17 with the pre-emption?  18 A   I don't like to trust my memory on that.  Snat  19 Stroutan was the chief of the Squamish at that time  20 and I believe the problem was that he was trying to  21 use pre-emption as a means or purchase -- excuse me,  22 this is not pre-emption but purchase -- lands for his  23 people because no reserve had been set for them where  24 they wanted to be.  And this, as I recall, raised the  25 question of whether they were going to allow Indians  26 to purchase land.  27 Q   All right.  Thank you.  At the transcript, 230, page  28 16784, you were referred to an extract from papers  29 relating -- I don't think the witness needs that  30 because I am going to refer to the document.  31 Under your tab 64 in volume two, could you look at  32 that please?  You have set out Mr. Nind's letter to  33 the colonial secretary, that is to say, the provincial  34 colonial secretary, in his letter of 17th July, 1865,  35 and you read at the top of page 30 of the extract, a  36 paragraph relating to the settlement of claims.  37 This -- the context of his letter was the size of  38 certain Indian reserves laid out in the vicinity of  39 Kamloops?  40 A   No, it's in part dealing with what has been reserved  41 but the thrust of the communication has to do with the  42 fact that the Indians claim an extensive area of land  43 and are jealous of their possessory rights and are not  44 likely to permit settlers to challenge them with  45 impunity, and this is not, of course, not referring to  46 the reserve land but to the larger claim of title.  47 Q   That's the reading you have put into it? 17582  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  A   That's how I read it.  Q   May I suggest that the context of that letter is found  at pages 31 to 34, that is to say, the following pages  of the extract that you have provided his lordship,  and if you would like to see what those pages state,  you can find them under tab 33 of the gray document  book.  And I needn't trouble you further with that.  Well, my lord, I think she should be troubled further  with that.  THE COURT:  I would be glad to be troubled with it at 2 o'clock.  MR. GOLDIE:  That's what I thought.  THE COURT:  Thank you.  (Proceedings adjourned for lunch)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter 17583  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5  6 BARBARA LANE, Resumed:  7  8 MR. GOLDIE:  Thank you, my lord.  9 Dr. Lane, you asked me for the reference with  10 respect to the presence of the Inconstant in the  11 British Columbia waters in 1849, and my reference is  12 to Gough's book, The Royal Navy and the North West  13 Coast of North America 1810, 1914, Appendix F, which  14 sets out the name of each ship, the date it was built,  15 and the date it was on the station, and that is also  16 the reference to be found in the footnote to the  17 letters from Fort Victoria which I referred you to  18 earlier.  The other reference to which you asked me to  19 provide you with details is the reference to the  20 Reverend Corbett's evidence before the Select  21 Committee of the House of Commons and the Hudson's Bay  22 Company and, my lord, the index to the report begins  23 at page 471, and at 487 are set out the nature of the  24 appearances of the Reverend Griffith Owen Corbett, an  25 analysis of his evidence on his first examination and  26 on the second examination, and that continues through  27 to page 488.  Those are the references.  I will be  28 tendering at an appropriate time, my lord, the  29 complete report but I won't bother your lordship with  30 it now.  31 Now, Dr. Lane, we were at your tab 64 of volume 2  32 which consists of pages 29 and 30 of the B.C. print of  33 Papers Relating to the Indian Land Question of 1875.  34 THE COURT:  I am sorry, the tab number again?  35 MR. GOLDIE:  Tab 64, my lord.  36 MR. RUSH:  I have it at 62.  37 MR. GOLDIE:  No, it's 64 of volume 2.  3 8 THE COURT:  Yes.  39  40 CROSS-EXAMINATION BY MR. GOLDIE:  (Continued)  41 Q   This is Mr. Nind's letter of the 17th of July, 1865,  42 and the witness read part of it on page 30 and I had  43 suggested to Dr. Lane that the context of this related  44 to the ascertainment of the boundaries of Indian  45 reserves in the vicinity of Kamloops.  And I was about  46 to direct your attention to the following pages,  47 namely 31, 32, 32 -- 33 and 34, of Papers Relating 17584  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  which I will do in a minute but, in the meantime, I  direct your attention to Mr. Trutch's letter which  follows on page 30, where he says in the first  paragraph:  "I have the honour to state that the settlement of  the boundaries of Indian reserves is in my opinion  a question of very material present and  prospective importance."  A   Excuse me.  THE COURT:  And he says —  THE COURT:  Mr. Goldie.  I'm sorry, Mr. Goldie.  MR. GOLDIE:  Q   I am sorry, my lord.  A  Where are you?  MR. GOLDIE:  I am at your tab 64 volume 2.  THE COURT:  I think you have volume 2 there.  MR. GOLDIE:  Q   Yes, volume 2 tab 64.  A  Where are you reading from?  Q   I am reading on the -- from the next page.  A   I don't have a next page in that tab.  Q   I have a note that you read from page 30.  A   You are on page 30?  THE COURT:  I have underlining on it.  THE WITNESS:  Yes, where on page 30?  MR. GOLDIE:  Q  A  Q  A  Q  A  A  Q  Right at the top, the conclusion of Mr. Nind's letter?  Thank you.  You started reading with the words, "I believe the  only method of settling this matter satisfactorily..."  Thank you.  And I am suggesting to you that he is talking in --  the context of his letter is in determining the  ascertainment of the boundaries of the reserves?  Well, Mr. Goldie, there may be some other context  which could shed a different light on this, but the  text of this letter as I read it is discussing not  Indian reserves but Indian claims to land over a very  large territory, and the only meaning I can draw from  this letter is that the reverent is Indian title to  land which has not yet been delineated as a reserve.  Yes.  I take it the answer to my question is no, you  disagree with the characterization I put on it?  You are entirely correct.  Now, would you look at tab 33, please, of my volume 2 17585  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 which is the grey book, and firstly let me ask you if  2 you have read the correspondence which is continued on  3 pages 31 to 34 between the Chief Commissioner of Lands  4 and Works to the Colonial Secretary, the Colonial  5 Secretary to the Chief Commissioner, instructions to  6 Mr. Moberley, Mr. Nind to Mr. Moberley, and so on?  7 A   Yes, I have.  8 Q   Yes.  And is it still your opinion that the context of  9 Mr. Nind's letter is anything other than the  10 ascertainment of the reserves in the Kamloops area and  11 the possible reduction of those reserves?  12 A   If I may take a moment to review these letters, I  13 haven't reviewed them recently.  14 Q   Would you agree with me firstly that these letters all  15 relate to Mr. Nind's letter?  16 A   Until I look -- I haven't looked at these for  17 sometime.  Until I really look at them, I am not  18 prepared to answer your question.  19 Q   Did you select the letter from Mr. Nind to the  20 colonial secretary which is 17th of July, 1865, under  21 tab 64 of your volume 2 for inclusion in your --  22 A   Yes, I certainly did.  23 Q   Did you do so without regard to the letters that I  24 have referred you to that follow in this collection of  2 5 documents?  26 A   No.  I did so at the time having reviewed all of  27 these --  28 Q   Yes.  29 A   -- at that time.  30 Q   And take it from -- I am sorry?  31 A  At that time.  32 Q   Yes.  And I take it from the fact that you do not  33 include them under tab 64 that you considered at that  34 time that they were not relevant to the context of Mr.  35 Nind's letter.  Isn't that a fair conclusion?  36 A   No, it is not a fair conclusion.  Obviously if they  37 are follow-up letters, they relate to Mr. Nind's  38 letter.  They may not relate to the matter that I was  39 pursuing on.  40 Q   Yes.  And is it not a fair conclusion that it was your  41 conclusion at the time that those follow-up letters  42 didn't relate to the matter that interested you?  43 A   I think that is probably correct but I would want to  44 look at the letters again to be certain as to why I  45 didn't include them.  46 Q   All right.  Well, you can do so, please feel free, but  47 I will ask you to do that at a later time.  Now, I 17586  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  A  4  Q  5  6  ]  7  8  9  10  A  11  12  13  14  Q  15  16  17  A  18  Q  19  20  21  22  A  23  Q  24  25  26  27  A  28  Q  29  30  31  32  33  34  A  35  Q  36  A  37  Q  38  A  39  MR. GOLDIE  40  41  42  43  THE COURT:  44  MR. GOLDIE  45  Q  46  47  want to go on to your tab 69 of volume 2 if I may  relieve you of this.  Thank you.  Now, the context of that document, which is a report  of proceedings of the legislative council on the  mainland or Victoria.  This would be after the colony  was joined.  But my question is:  Is the context of  that an agitation on the part of some to reduce Indian  reserves?  Yes.  This was a period in which Mr. Robson, who  represented the lower Fraser area, was attempting to  have the reserves along the arm of the Fraser reduced  in size.  Right, thank you.  And at tab 73, you have another  extract from the B.C. print of the Papers Relating to  Indian Land Question?  Yes.  At the letter from the chief commissioner to the  colonial secretary of the 30th of December, 1869, and  I believe you read paragraph 2; is that correct,  paragraph 2 of the letter under tab 73?  I may have read it, I don't recall.  I see.  Well, that's the note I have.  In any event,  that document is part of the long history of the  Songhees Indian Reserve in the city of Victoria; is it  not?  That's correct.  Now, another chapter in that particular sequence of  events was a court case after union with Canada in  which contractors for the Dominion government were  restrained from erecting immigration sheds, and if  that's too cryptic a suggestion to you, I am going to  refer you to --  No, I recall the --  Volume -- our volume 2 under tab 36.  I recall the incident that you are referring to.  Yes.  I recall reading about it.  :  Now, I have included under that a photocopy of  Begbie's bench book and the particular case goes on at  some length and your lordship will see at page 128,  the number is on the upper left-hand corner.  Yes.  A newspaper report of the particular case and it goes  on for another page, and then under the pink divider  is a transcript of the -- of Judge Begbie's bench book 17587  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 and perhaps if you turn to that, Dr. Lane.  Do you  2 see -- are you on that first page of that typescript?  3 A   Yes, I am.  4 Q   It reads:  5  6 Chief Komiack Caskane & 3 others v Findlay &  7 McLellan.  Mr. Mills Injon as to Indian Reserve.  8 Plaintiffs are Indians of the tribe 'Swehkwung' of  9 Songish Nation.  Yellow book on Indian affairs."  10  11 Would you agree with me that the yellow book on Indian  12 affairs is the document known as Papers Connected with  13 the Indian Land Question 1850 to 1875, or are you  14 familiar with its -- the colour of its original cover?  15 A   I am not familiar with the colour of its original  16 cover.  I have seen references to the yellow book, I  17 have not been certain as to the reverent.  18 Q   All right.  Well, let me go on a step further.  19  20 Defendant's contractors, something unregistered,  21 purpose not Indian purposes.  Fee is in  22 provincial government to be handed to Dominion  23 Government in trust for Indians.  If that trust  24 fails, resulting trust is for province.  Land is  25 known as Indian village site.  26  27 3450?  28 A   I am sorry, where are you?  29 Q   I am reading on the typescript.  30 A   Yes.  Oh, I see.  31 Q   I am endeavouring to flesh out the abbreviations which  32 otherwise might be beyond my capability to pronounce.  33 So when Judge Begbie puts I-n-d-n-V-double-1-s-i-t-e,  34 I am translating that as Indian village site.  3450  35  36 Shnawnuck, father of present Shnawnuck & 29 others  37 signed conveyance.  Yellow book, page 6 to  38 Hudson's Bay Company in consideration that village  39 and enclosed fields to be kept for Indians  40 forever.  41  42 Now, I find on page 6 of the document Papers Connected  43 with Indian Land Question, the conveyance which I  44 suggest to you is described by his lordship and the  45 extract that he put in the -- in his bench book?  46 A   This is the -- a reasonable presumption, I think,  47 although I must say that I never knew this was the 175?  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 yellow book that was referred to.  2 Q   Well, I am going to suggest to you that this --  3 A  Whether it is or not, it is clearly the same treaty  4 that's being referred to so it doesn't matter what  5 colour the cover was.  6 Q   Then he goes on to say:  7  8 Benson and McKay witnesses 1850 Indians there  9 ever since.  10  11 Now, I will come back to this a little later on but  12 the newspaper report which is appended and is in  13 the -- is in his bench book now, isn't it?  14 A   I have no idea.  15 Q   You have not had occasion to examine the bench book  16 yourself?  17 A   I have but not recently.  18 Q   I see.  Well, do you have any recollection of whether  19 the Indian reserve case newspaper report on page 128  20 was either clipped to or at one time may have been  21 part of what the judge kept in his bench book?  22 A   I think I have already answered your question.  I  23 don't have a clear recollection.  24 Q   No, all right.  That's fine.  I will come back to that  25 in a few minutes.  26 Now, we have placed or you have placed Mr.  27 Sebright Green's letter in evidence and there is also  28 the dispatch of the governor and I have placed those  29 under tab 37 of my book and I won't make any further  30 reference to that.  And I have also placed under tab  31 38 the letter from the -- from Lord Granville to Mr.  32 Chesson, the secretary, and the acknowledgement of  33 that.  Now, I want to refer to some of your evidence  34 in volume 230 of the -- do you have volume 230?  It is  35 page 16799.  Do you have that before you?  3 6 A   I do.  37 Q   Lines 28 to 30, you say:  38  39 "I would look then to Douglas' reports on his  40 treaties to London in which he says what it was he  41 did and what he spent that money for."  42  43 I would like you to identify for me Douglas' letters  44 to London, firstly the colonial office, and I think  45 you told me yesterday that there are some thousands of  4 6 documents that you have examined from time to time and  47 it may be that you cannot find any of Douglas to the 17589  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 colonial office reporting on the treaties, and to use  2 your language, in which he says, "...what it was he  3 did and what he spent that money for".  Do you follow  4 me?  5 A  Mr. Goldie, I am reading the paragraph you have  6 directed my attention to in the transcript and I refer  7 in that paragraph to Douglas' reports on his treaties  8 to London, I do not say to the colonial office.  He  9 was writing to the Hudson's Bay office in London.  10 Q   If that's what your answer is, that it is writing to  11 the Hudson's Bay Company, you would agree with me then  12 that he did not write anything to the colonial office  13 that matches the description of what you have stated  14 here?  15 A   I never said that he wrote to the colonial office.  I  16 said in that same paragraph that Mr. Blanshard wrote  17 to the colonial office.  18 Q   All right then.  19 A  Mr. Douglas reported to Hudson Bay Company.  20 Q   Yes.  That's what my understanding was also.  So if  21 London is the head office of the Hudson's Bay Company,  22 can you identify for me the letters in which you  23 reported on, if they are in your collection, in which  24 he reported on what he did and what he spent the money  25 for?  26 A   Yes.  I believe they are in the collection and I will  27 attempt to figure out which tab that's at.  28 Q   All right, thank you.  And then at line 39 on the same  29 page of the transcript, you say, and I quote:  30  31 "And then I would look at the whole series of  32 documents that we have been reviewing, I believe  33 yesterday, as to the need for government to take  34 action to expend money to extinguish Indian claims  35 in London which occurred, as I recall, in the  36 contemporaneous accounts of the discussions in the  37 House of Assembly and the address of Governor  38 Douglas to the assembly in which he alerts them to  39 the need to expend money to extinguish Indian  40 land claims in Cowichan Valley and elsewhere."  41  42 I would like you to identify any document which makes  43 reference to the extinguishment of Indian claims on  44 Vancouver Island other than to the Cowichan Valley?  45 A   I believe that's the same question you put to me  46 earlier today.  47 Q   I think it may be. 17590  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes.  2 Q   One answer may satisfy two questions.  Page 16801, you  3 say at line 44 — 39, line 39:  4  5 "I made a diligent effort to search the documentary  6 records which would have been available at that  7 time and is still extent..."  8  9 I take it you mean extant?  10 A   I believe I might have said extant.  11 Q  12 "...and available to us to discover if there were  13 any written records to which Governor Musgrave  14 referred that I might be able to refer myself."  15  16 Tell me please what personal search you made for such  17 documentary records or written records?  18 A   I am just trying to confirm that we are talking about  19 the same matter, and this was, if I am clear here on  20 what we are talking about --  21  22 A   -- it is records that would substantiate the veracity  23 of Mr. Trutch's rendition of the history.  24 Q   No.  I think you are referring to Governor Musgrave  25  26  27  28 A   But Mr. -- if I remember what this is about, and I  29 will have to read it for a moment, I think it refers  30 to the cover letter which Governor Musgrave sent when  31 he forwarded Mr. Trutch's report.  32 Q   That's correct.  33 A   In which he said that he vouched for the veracity of  34 the information.  Here it is.  Yes, it is just above  35 on that page.  36 Q  37 "From other sources of information, I have every  38 reason to believe Mr. Trutch's statement to be  39 correct."  40  41 A   Yes, and since in fact Mr. Trutch's statement appears  42 to me to be in flagrant conflict on a number of points  43 with the records that I had reviewed, I made a special  44 effort to discover if there were any other records  45 that might have been relied upon by Mr. Musgrave to  46 cause him to make this kind of statement.  47 Q   And I am asking you to tell me what records you looked  Q  Yes.  A  —   it  of  Mr.  Q  No.      I  here?  A  Yes.  Q  Yes.  A  But  Mr 17591  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 at?  2 A   I searched the records of the Lands Department, for  3 one thing, which would have been government records  4 available to Mr. Musgrave if he had gone to them,  5 records which are still preserved to us in the  6 Provincial Archives in Victoria.  I made a thorough  7 search of those records.  I looked at other records  8 kept at the Provincial Archives, such as official  9 correspondence for that period of time that would have  10 related to these matters hoping to find something  11 there.  I looked at the private letters and  12 correspondence of some of the people who would have  13 been knowledgeable about -- in perhaps writing about  14 these matters --  15 Q   Who would be?  16 A   -- to see if there was something else.  Mr. Trutch.  17 Q   Yes.  18 A  Mr. -- blocking the name there.  Mr. Begbie's  19 correspondence.  20 Q   Yes.  21 A   Sorry, I have a name I am trying to surface and it  22 won't come.  Briefly those people in official  23 positions in the government who would have been  24 knowledgeable about the matter or were present when  25 the discussions were going on that appeared to be in  26 conflict with Mr. Trutch's statements, such as the  27 other people at the -- in the legislature; for  28 example, Mr. Helmcken -- Dr. Helmcken, excuse me.  And  29 I find that Dr. Helmcken, for example, was a speaker  30 of the House throughout this entire period.  He is the  31 one that sent the petition to Governor Douglas for  32 forwarding to England asking for financial assistance  33 in extinguishing the Indian title.  34 Q   That's 1861?  35 A   Yes, and he of course later in the '80s denies that  36 the legislature ever discussed such a thing or would  37 have voted money for such a thing and so on and so  38 forth, but that's entirely in conflict with the  39 earlier record of the meetings at which he was present  40 and even the petition for funds which he signed.  41 Q   Well, did you look in Governor Musgrave's papers?  42 A   I don't recall at this moment how thoroughly I went  43 into Governor Musgrave's papers.  He was of course not  44 on the scene during the relevant period so that I  45 looked for papers of people who were present.  46 Q   Well, the governor says, "From other sources of  47 information I have reason to believe..." 17592  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes.  2 Q   That's not confined to documentary sources, is it?  3 A   No.  Of course he could have had conversations with  4 people.  5 Q   Would it not have been prudent to look for Governor  6 Musgrave's papers if you are questioning the veracity  7 of his statement?  8 A   I was not questioning the veracity of his statement, I  9 was questioning what his sources might have been.  10 Q   Yes.  Well —  11 A   It certainly would have been ideal if I could have  12 looked at every piece of paper that might possibly be  13 relevant.  14 Q   Where are -- well, did you make any effort?  15 A   I made a diligent effort to cover a great deal of  16 paper.  17 Q   Well, did you make any effort to locate Governor  18 Musgrave's papers?  19 A  As I say, at the present time, I don't have a  20 recollection of locating Musgrave's papers.  21 Q   How about Trutch's?  22 A   They would have been the last I would have looked at  23 because I was looking for people who would be  24 knowledgeable.  Yes, I looked at Mr. Trutch's papers.  25 Q   Where are they?  26 A   Some of them are over at the University of British  27 Columbia, some are -- some are at the Provincial  28 Archives, and there are doubtless others in other  29 depositories as well.  Having -- not having unlimited  30 funds, I was not able to travel to every depository  31 that I might have liked to search.  32 Q   I am not being critical of you?  33 A   I don't take it as criticism, I am simply trying to  34 explain the limits that were placed on me.  I  35 diligently searched, I think, those records which I  36 thought could be productive which were available to  37 me.  38 Q   Yes.  Did you take into account the context of  39 Governor Musgrave's location and condition at the time  40 this dispatch was written, namely, the 29th of  41 January, 1870?  42 A  Well, I don't trust my memory without rechecking, but  43 I believe he probably was still confined to his  44 bedroom in his own home at that time.  45 Q   Yes, because of a broken leg?  46 A   Yes.  47 Q   Would it not have been easy to determine who his 17593  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 visitors were?  2 A   I did a certain amount of checking of that sort, yes.  3 Q   Can you tell his lordship who they were?  4 A   I think his brother-in-law, Mr. Trutch, visited.  5 Q   And?  6 A  And various other people from the government on  7 government business.  8 Q   Including Dr. Helmcken?  9 A   I don't have a clear recollection but that wouldn't  10 surprise me.  11 Q   All right.  Now —  12 A   Dr. Helmcken of course was not the doctor in  13 attendance.  14 Q   I didn't suggest he was?  15 A   I didn't say you suggested that.  I was simply  16 clarifying that he would not have been visiting on  17 medical business but, rather, on government business.  18 Q   Thank you.  Now, tab 76, you enclose the  19 instructions -- this is tab 76 of your volume 2, those  20 were instructions given by Governor Musgrave to Mr.  21 Trutch of 9th of May, 1870?  22 A   Yes.  23 Q   And the context of that was that negotiations were to  24 take place in Ottawa relating to the terms of union?  25 A   Yes.  26 Q   And in respect of which Musgrave had received  27 instructions in the form of Lord Granville's dispatch  28 of the 14th of August, 1969?  29 A   Correct.  30 MR. RUSH:  1869.  31 MR. GOLDIE:  32 Q   1869, yes, thank you.  You do not include those  33 instructions?  34 A   That's correct.  35 Q   You don't regard them relevant?  36 A   I do regard them as relevant but since, in this minute  37 for Mr. Trutch, Musgrave gave the essence of his  38 instructions with respect to Indian matters.  I didn't  39 burden the record with duplicative material.  40 Q   But it was on Lord Granville's instructions that there  41 were two matters that were reserved to the governor,  42 one was Indians, and the other was pensions for the  43 colonial servants; is that right?  44 A   I think you are certainly correct with respect to  45 Indians, probably also with respect to pensions, but  46 my interest was largely with Indian matters rather  47 than with pensions. 17594  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   But it is about those two things that we find Governor  2 Musgrave instructing Mr. Trutch, isn't that correct,  3 in the dispatch of the 14th of August, 1869 -- I am  4 sorry in the dispatch -- in the instructions of the  5 9th of May, 1870, under your tab 76?  6 A   That may well be.  I recall a voluminous paper record  7 of correspondence to and from various members of the  8 government who were mightily concerned about their  9 pensions and what would happen to them when British  10 Columbia joined confederation.  11 Q   Yes.  Now, have you found any record of Governor  12 Musgrave's communications with the B.C. Delegation  13 during the negotiations in Ottawa in June of 1870?  14 A   I may well have done, I don't have a clear  15 recollection at this time.  16 Q   Well, if they touched on Indian matters, they would be  17 relevant in the context of the terms of union,  18 wouldn't they?  19 A   Yes, they would.  20 Q   Well, can you tell us whether they did?  21 A   I don't recall specifically a communication from Mr.  22 Musgrave, although, if you present me with such, I may  23 well recognize it.  24 Q   Well, I asked you if you found any document or any  25 record of communications with the B.C. Delegation  26 during the negotiations in June of 1870, and my  27 recollection of your answer is that you may have?  28 A   Correct.  29 Q   Well, what is your recollection?  30 A   Just what I told you, I may well have done and I don't  31 recall a specific communication at this point.  32 Q   I see, all right.  Well now, you told me or you told  33 his lordship that when, if my note is correct, that  34 you had looked at the context of the terms of union  35 about a year prior to the date they were finalized?  36 A  Well, for the -- Governor Musgrave was sent out to  37 wind up affairs to be the governor until such time as  38 B.C. joined confederation which was anticipated  39 certainly during the previous year if not for a longer  40 period of time, and I devoted attention to that year  41 and the various discussions that went on because the  42 paucity of material relating to Indians at the time of  43 the terms of union is a little puzzling, and granted  44 that there were many other concerns of much higher  45 priority, I was hoping that I would find more material  46 directed to the question of Indians in B.C.  47 Q   Can you give me please the year that you had in mind 17595  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 that you just referred to?  Is it the year ending with  2 1st of July, 1870, or the year the Imperial -- the  3 year before the Imperial order-in-council was approved  4 in May of 1871?  I just want to get to the context of  5 the year that you are referring to?  6 A   I looked at the calendar year 1870 in an effort to  7 find any information that had been overlooked.  8 Q   The calendar year 1870, thank you.  9 A   Yes, plus obviously into 1871 as well, and I may say  10 before and after that.  But certainly I directed  11 particular attention to 1870 hoping to find materials  12 that would assist.  13 Q   Yes.  And you say you started earlier and finished  14 later?  15 A   Yes.  16 Q   Can't you give my some assistance in the starting date  17 and the finishing date?  18 A   No, I can't.  19 Q   Well, did you start with Lord Granville's dispatch to  20 Musgrave in the 14th of August, 1869?  21 A   No, I didn't start there.  I started before there.  22 Q   All right.  Well, can't you help me any further with  23 how far back you went?  That's all I am asking you to  24 do.  25 A   I attempted, as I believe I said at the outset, to  26 cover a very long period of time looking for material  27 relating to policy with respect to Indian title, and  28 that began I suppose, if I recollect, with Cook's  29 voyage in the -- or the instructions to Cook in 1776,  30 and carried on to about 1920.  31 Q   Dr. Lane, you may have misunderstood my question.  32 A   Yes.  33 Q   We are talking about the terms of union and you  34 identified a period of about a year --  35 A   That's right.  36 Q   -- in which you looked for materials relating to the  37 terms of union?  38 A   That's correct.  39 Q   And I then said, did you start with Musgrave's -- I am  40 sorry, Granville's dispatch of the 14th of August with  41 instructions?  42 A   That's correct.  43 Q   And that's the 14th of August, 1869, and you said no,  44 I went earlier.  Now, we are still talking about the  45 terms of union?  46 A  Well, I considered this as part of the ongoing history  47 of attempting to find out what was being said by 17596  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 government about Indian title.  2 Q   All right.  3 A  And that's why perhaps we are having this lengthy  4 discussion.  I focused particularly for the 12 months  5 or so prior to the actual finalization of the terms of  6 the union because there was considerable discussion  7 about what terms British Columbia would accept for at  8 least that length of time.  I can't give you a  9 specific date at which I could say here I was only  10 looking for terms of union --  11 Q   I want to be sure that I fully understand the  12 reference that you made to a year with respect to the  13 terms of union.  Am I to take it then that in the  14 context of your assignment here you have considered  15 only two documents, Musgrave's instructions to Trutch  16 of 9 May 1870, and the terms of union themselves as  17 relevant to that assignment?  18 A   No.  19 Q   I see.  Well, tell me what others are relevant to your  20 assignment?  21 A   I believe I said the other day that I had examined the  22 newspaper reports of the day, the debates in Victoria,  23 the debates in Ottawa, the correspondence of some of  24 the people who contributed to those debates in order  25 to ascertain whether I could find any more  26 information.  27 Q   And all those I take it would be found in the list of  2 8 documents which you supplied Mr. Rush?  29 A   No, because if I looked in materials and found nothing  30 relevant, I didn't list them.  31 Q   I see, all right.  So anything that you found relevant  32 would be listed.  Have we got that?  33 A   That was the intent.  34 Q   All right.  35 A   Unless it was duplicative.  I didn't list every last  36 source if it was simply duplicative of points that  37 were readily available in the documents that I listed.  38 Q   Did you search for Governor Musgrave's secret and  39 confidential dispatches?  4 0 A   No.  41 Q   Were you aware that there were such?  42 A   I can't recall that I was specifically aware of that,  43 but I wouldn't be surprised if there were such.  I  44 certainly went through what Musgrave material I found  45 in the Provincial Archives in Victoria.  I may have  46 missed something, that's quite possible.  47 Q   All right.  Well, let's move on please.  At tab 81 of 17597  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 volume 2, you were directed to that tab by my friend.  2 A   I am sorry, which tab are you?  3 Q   81 of your volume 2.  4 A   Thank you.  5 Q   And at page 16804 of volume 230 of the transcript,  6 you -- the question was put to you that you had  7 indicated you had reviewed certain documents.  I am  8 looking at line 16.  9 A  What page are you?  10 Q   I am at 16804.  The question was put to you:  11  12 "Just before I take you to this tab..."  13  14 And he's -- Mr. Rush has referred you to Mr. Trutch's  15 letter of the 13th of January, 1870, you said -- he  16 put it to you:  17  18 " indicated that you had reviewed certain  19 documents in the course of assessing or evaluating  20 that letter.  I would ask you in terms of the  21 documents that you reviewed in respect of Mr.  22 Trutch's letter Mr. Macdonald, did you look at  23 similar documents?"  24  25 Would you provide me with a list of documents that you  26 reviewed for the purpose of evaluating the letter at  27 tab 81?  28 A   This is the letter at page 183 of that correspondence.  29 Is that what you are referring to?  30 Q   Yes, you read from page 185?  31 A   Sorry?  32 Q   But it's from that letter.  33 A   Oh, okay, it is the same letter.  34 Q   Yes.  Perhaps it would be helpful if I pointed out  35 that at page 16803, after the part in the transcript  36 which is the reading from that letter.  The question  37 was put to you:  38  39 "Q  Did you evaluate this correspondence between  40 Trutch and Macdonald at that date in light of  41 the record which you have examined?"  42  43 And you say you employed methodology, and you assessed  44 it in terms -- and I am now referring to 16804:  45  46 "I would ask you in terms of the documents that  47 you reviewed in respect of Mr. Trutch's letter 1759?  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 to Mr. Macdonald, did you look at similar  2 documents?"  3  4 And similar documents to which.  5  6 "Q  Similar documents -- my use of the word  7 'similar' was similar documents in reference to  8 your review of the record in relation to the  9 letter of the January 13, 1870?"  10  11 So, as I understand it, you were being asked, did you  12 conduct a review of Mr. Trutch's letter to Sir John A.  13 Macdonald that you read from, and your answer was yes,  14 and I am asking you to provide me with a list of the  15 documents that you reviewed in the course of that  16 evaluation.  Can you do that?  17 A   Sure.  18 Q   Thank you.  Now, at tab 85, you have set out a  19 Dominion order-in-council of the 16th of June, 1873?  20 A   Tab 85?  21 Q   Yes.  Am I to understand that was that  22 order-in-council that you referred to as setting up a  23 board of Indian commissioners for the Northwest  24 Territories, boards of Indian commissioners for the  25 Northwest Territories and Manitoba and British  26 Columbia?  27 A   I believe so.  28 Q   Yes.  Would you agree with me that the evaluation -- I  29 am sorry, not the evaluation but the context of that  30 order-in-council and of the creation of that board  31 would include the fact that no members -- there were  32 no commissions issued to the members of the board?  33 A   To which board?  There are two boards here.  34 Q   All of the boards that are created in that  35 order-in-council?  36 A   The language at page 3 sets out that if this policy is  37 approved, he, the Secretary of State suggests that for  38 the Northwest Territories and Manitoba, a board of  39 commissioners be established consisting of the  40 Lieutenant Governor, the chief officer of the Dominion  41 Land Granting Department at Winnipeg and an executive  42 officer to be styled the Indian agent.  And then it  43 goes on speaking about the negotiation and treaties to  44 be dealt with.  And then continues at page 3:  45  46 "The Secretary of State recommends that a board  47 with similar powers should be..." 17599  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 Q   I think you read that --  3 A  4 "...should be constituted in British Columbia."  5  6 Q   -- Dr. Lane.  7 A   In point of fact, commissioners were appointed and the  8 boards established.  9 Q   My question was:  There were no commissions issued  10 instructing them; isn't that so?  11 A  Within the document at hand, no.  12 Q   Now —  13 A   The instructions and the boards were set up and the  14 British Columbia one did not function; although the  15 other did, it didn't function because of the  16 difficulties created by Mr. Trutch who was then a  17 member of it, being the Lieutenant Governor of British  18 Columbia.  19 Q   Before I get to that, the part that you read said with  20 respect to the British Columbia board stated it would  21 consist of a Lieutenant Governor and two subordinate  22 commissioners, one of them a Protestant and the other  23 a Roman Catholic.  The Protestant nominee was Dr.  24 Powell, who was the Indian commissioner, that is to  25 say, the federally appointed Indian commissioner in  26 British Columbia; is that not correct?  27 A   That is correct.  28 Q   And then Mr. Lenihan was subsequently appointed as the  29 Catholic nominee?  30 A   Correct.  31 Q   Yes.  Now, the context would also include, would it  32 not, Dr. Powell's request for advice about -- as to  33 the policy to be followed in British Columbia as in  34 his capacity as a member of this board?  35 A   I am sorry, your question was?  36 Q   Would it not include --  37 A  Would what not include?  38 Q   The context —  39 A   Yes.  40 Q   -- of this board?  The request on the part of Dr.  41 Powell for instructions as to the policy he should  42 pursue in British Columbia, wouldn't that be a  43 relevant consideration?  44 A  All communications from all members of this board  45 relative to their work as commissioners on the board  46 would be relevant.  I have not included all of the  47 communications that went back and forth between these 17600  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 appointees.  2 Q   Well, if the instructions were given by an  3 order-in-council, that would be particularly relevant,  4 wouldn't it?  5 A   I would think so, yes.  6 MR. GOLDIE:  Yes.  Would you look at the grey book, please, and  7 this -- I have here, my lord, an order-in-council  8 dated the 19th of May, 1874.  9 THE COURT:  What tab?  10 MR. GOLDIE:  11 Q   Tab 40 of the grey book.  On -- I am reading from page  12 1:  13  14 "On a recommendation dated 4th of April, 1874, from  15 The Honourable the Minister of the Interior  16 stating that the Indian Commissioner for British  17 Columbia desires to be instructed before leaving  18 for this Province as to the policy which the  19 Government proposes to pursue towards the Indians  20 in British Columbia particularly in the matter of  21 presents.  22 That it is assumed that the Government does not  23 contemplate giving the Indians of British Columbia  24 any compensation for their lands as has been done  25 with the Indians of the North West, and he the  26 Minister submits that in view of the general  27 discontent now prevailing amongst the former, it  28 would be advisable to spend a small sum annually,  29 in the distribution amongst them of useful  30 presents."  31  32 That's a relevant document, isn't it, to a  33 consideration of the matters to which you have  34 directed your attention?  35 A   Yes, it certainly is.  36 Q   Thank you.  You did not include it?  37 A   No.  38 Q   Were you aware of it?  39 A   I did not a have a copy of this, no.  40 Q   Well, I appreciate you do not -- you may not have a  41 copy of it, my question was were you aware of it?  42 A   No, I was not.  43 Q   This is the first time you have seen it?  44 A   That's right.  45 Q   Thank you.  I direct you to the last page, and you see  46 there approved 19 May 74, and the signature is that of  47 Lord Dufferin? 17601  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes.  2 Q   And then in His Lordship's writing, can you make  3 out --  4 A   Sorry, can you tell me what that signature is above  5 it, do you know?  6 Q   I think that would be the Minister of the Interior in  7 Mackenzie's cabinet.  Sir John A. Macdonald's  8 administration fell in November of 1873, did it not,  9 and was succeeded by that of Alexander Mackenzie?  10 Well, I don't want to be accused by my friend of  11 giving evidence.  Would you confirm for me, please,  12 that Mackenzie's administration came to an end?  13 Mackenzie -- Sir John A. Macdonald's administration  14 first came to an end in November 1873 when Mackenzie  15 succeeded him?  16 A  Again, Mr. Goldie, I don't hold all those dates in my  17 head.  I cannot agree with you without seeing  18 something to verify the date with.  19 Q   Would you agree with me that Macdonald's  20 administration fell over the Great Pacific scandal  21 involving the Canadian Pacific Railway?  22 A   I think I can agree to that.  23 Q   Good, thank you.  Now, could we go to the last page of  24 this order-in-council?  25 A   Yes.  Trying to read it but I have a poor copy here.  26 Q   Does his lordship not ask the question:  27  28 "Why is a different system followed in B.C. with  29 regard to compensation to Indians from that in the  30 Northwest Territories?  D."  31  32 A   I can't read my copy but if that's what you make of  33 yours, I am going to accept that.  34 THE COURT:  Can you see -- what do you say it says?  35 MR. GOLDIE:  36 "Why is a different system followed in B.C. with  37 regard to compensation to Indians from that in the  38 N.W. Territories?"  39  40 And D is, I think, the Governor-General's initial.  41 THE COURT:  From that in the Northwest Territories?  42 MR. GOLDIE:  43 Q   Yes.  If there was a change of administration, it  44 would be particularly relevant to determine any  45 documentation that affected the instructions to be  46 given to a board set up on Sir John A. Macdonald's  47 administration and continued into Sir Alexander 17602  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Mackenzie's administration, would it not?  2 A   Oh, I agree.  3 MR. GOLDIE:  Would you look, please, at tab 41?  4 THE COURT:  Could we take the afternoon adjournment, Mr. Goldie?  5 MR. GOLDIE:  Yes, my lord, thank you.  6 THE REGISTRAR:  Order in court.  Court stands adjourned for a  7 short recess.  8  9 (PROCEEDINGS ADJOURNED AT 3:04 p.m.)  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein, transcribed to the  14 best of my skill and ability.  15  16  17  18  19  20 TANNIS DEFOE, Official Reporter  21 United Reporting Service Ltd.  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 17603  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 3:15 P.M.)  2  3 THE COURT:  Mr. Goldie?  4 MR. GOLDIE:  Thank you, my lord.  5 Q   Dr. Lane, I was about to direct your attention to a  6 document under tab 41.  7 A   Yes.  8 Q   The origin of which is RG-10, volume 1604, file —  9 THE COURT:  I am sorry, not your 41?  10 MR. GOLDIE:  Yes, it is my 41.  11 THE COURT:  That's the one we have been talking about.  12 MR. GOLDIE:  I think we were at tab 4, the order-in-council.  13 Tab 41 is a document found in a file located in the  14 Public Archives of Canada, RG-10, volume 3604, file  15 2685, and it appears to be a draft of a memorandum  16 addressed to a Mr. Richardson, Department of the  17 Minister of Justice, dated February 21st, 1874.  And  18 there is a typescript following the pink binder.  19 It is a draft because it has a number of  20 interlineations and I should tell you that I am  21 instructed that the Department of Justice file for  22 this period is not in the Public Archives of Canada or  23 at least when the search was made and, therefore, I  24 cannot advise you whether there is an original in the  25 Department of Justice file.  Be that as it may, the  26 writer of this -- and I will come to who that was in a  27 minute -- states: "Sir:  I have looked over the draft  28 commission of the Indian Commissioners of Manitoba and  29 the Northwest which you handed to me this morning, and  30 I would respectfully suggest that in preparing the  31 commission for the Indian Commissioners for British  32 Columbia..." and then there are words struck out,  33 which are signified by brackets in the typescript,  34 "...the provisions might be modified..."  is in the  35 margin " might be modified in the following  36 particulars.  First, in the draft commissions..."  and  37 the word draft is struck out, "...for M. and N. W...."  38 and I take that to mean Manitoba and the Northwest,  39 "...the Lieutenant-Governor of the Northwest and his  40 brother commissioners have co-ordinate powers and are  41 placed exactly on the same footing.  It seems to me  42 that this is not desirable and that the governor  43 should not be placed in a position to have himself  44 out-voted and his views on questions of policy  45 overruled by his brothers.."  struck out,  46 "...associate commissioners."  47 And then there appears to be words struck out, "I 17604  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 would therefore suggest that a right of veto be  2 reserved to and what is left is the governor should, I  3 think, have a right of veto in all matters coming  4 under the jurisdiction of the board."  5 MR. RUSH:  Consideration.  6 MR. GOLDIE:  Thank you.  "Consideration of the board.  Secondly,  7 in the draft commission..."  the draft struck out,  8 "...for M. and N. W., the commissioners are given  9 power to negotiate treaties with the Indians for the  10 cession of their lands as the rights of the Indians to  11 the lands of British Columbia have never been  12 recognized by the local government I do not see that  13 this provision is necessary.  The commissioners indeed  14 may be required to locate the reserves and deal with  15 them..."  then there are words struck out, "and I  16 think it's otherwise..."  and the words are struck out  17 "...and deal with the local Indians but after the  18 local government has ceded the lands required for such  19 purposes to the Dominion government under the articles  20 of the treaty..." then there is a scratch out, "  21 may be proper to state that I am not aware that  22 Governor Trutch has ever signified his willingness to  23 act as a member of the proposed board."  24 And the initials, I am instructed, are D. L.  If  25 that's the case, that would be David Laird, the  26 Minister of the Interior, would it not?  27 A   It might well be, although I have seen other  28 correspondence relating to these same matters that  29 don't quite jibe with this, so I would assume this is  30 David Laird but I have a problem with the non-  31 congruence of the correspondence.  32 Q   I suggested to you that the commissions for these  33 boards were never issued, I may have been incorrect in  34 that suggestion, but I am correct, am I not, that  35 there never were commissions issued for the British  36 Columbia board?  37 A   I don't know that that's correct, Mr. Goldie.  What  38 happened was that the members of the board were  39 appointed and there was at least one and I think more  40 than one letter from Mr. Trutch asking where his  41 commission was, that he hadn't received it.  And he  42 was given at least a letter reply to the effect that  43 one was being prepared, that somebody had been out of  44 town and gotten delayed or some such matter, and that  45 came, I think, from Mr. Laird, but I could be wrong in  46 my recollection.  47 Q   All right.  Well, I take it that you agreed with me, 17605  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 however, that anything, that any documentation that is  2 available is appropriate to the context of this board?  3 A  Well, again, my answer has to be the same.  Anything  4 related is, of course, part of the context.  What I  5 have endeavoured to do is to isolate those pieces out  6 of a larger body of data that set forth specific  7 policy.  Obviously, if there was a document saying  8 this board will have the power to make treaties, I  9 would select that.  If there was another document that  10 I was aware of which altered that, I would consider  11 that to be equally relevant and put it in.  Now the  12 document that you pointed to me just before the break  13 appears, although I haven't had time to check it or  14 study it, to be such a document, which I was not aware  15 of, I would have considered it relevant and put it in.  16 I assure you in my effort to find relevant material I  17 have included material on both sides of the issue.  18 Q   And I take it you weren't aware of this draft  19 memorandum?  20 A   This draft memorandum that we are looking at under tab  21 41 I have not seen before, although I have seen some  22 correspondence with respect to the same matter.  23 THE COURT:  Mr. Goldie, Mr. Laird was Minister of the Interior  24 of Canada or British Columbia?  25 MR. GOLDIE:  Canada, in the Mackenzie administration, my lord.  26 We are going to come to a document of his that was put  27 in by Dr. Lane.  28 Q   And finally, in respect to the context of this  29 particular board, the order-in-council setting it up  30 was rescinded in 1875?  31 A   That's correct.  32 Q   And under tab 42, the order-in-council which set  33 that -- which abolished the board, to whatever extent  34 it was ever created, and the reasons for it are set  35 out there.  And that is an appropriate document in  36 respect of context, is it not?  37 A   Yes.  And I believe that the copy of the order-  38 in-council which I included had a notation of the  39 cancellation on it.  40 Q   Right.  Now, at your tab 78 in your volume two, you  41 have an extract from the British Columbia Papers  42 relating -- which consists of the order-in-council of  43 the 4th of November, 1874 -- that's the Dominion  44 order-in-council, my lord.  45 THE COURT:  What tab?  46 MR. GOLDIE:  Tab 78 of her volume two.  47 THE COURT:  All right.  I thought that's what you said.  Thank 17606  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  you.  MR. GOLDIE:  Q   And there is a memorandum dated November 2nd, 1874,  which is an addendum to that, signed by David Laird,  Minister of the Interior and, Dr. Lane, you read from  page 152 of the papers relating a paragraph about  two-thirds of the way down the page.  And I think, my lord, that is reproduced at page  16808 of volume 230.  And perhaps if the witness could  have that, please.  Now, Dr. Lane, you read out and the extract that  you read is found at lines 11 to 19 on that page, and  my question is:  did you subject that statement of Mr.  Laird's to the same sort of procedures that you  followed with respect to the statements of Trutch and  Musgrave that you have described to the court?  Yes, I have tried to use the same methodology in  assessing the statements of all of the writers whose  documents I have examined.  Yes.  If they had anything to say that was germane to my  research.  You apparently considered this to be germane?  Yes.  Yes.  And can you provide me with a list of the  documents that you referred to as part of that  process?  They are the same documents that we have been talking  about.  I am getting a little bit concerned, Mr. Goldie, I  seem to -- I don't have paper and pencil with me here  and I assume someone else is making a record of this,  but I have a growing feeling that I am being asked to  go and do a great deal of recovery of documents, and I  am wondering how long this will go on and where it  will end?  A  Q  A  Q  A  Q  A  Q  MR. RUSH:  THE COURT:  MR. GOLDIE  Q  A  Q  So am I.  So am I,  So am I  my lord.  do it?  am asking  A  Q  We will provide you with a list.  Will you provide me with the wherewithal to  I am not asking you to recover documents, I  you to give me a list of the documents that you refer  to.  Yes, this takes time, you understand.  Well, I am simply exploring the evidence that you have 17607  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 given, and you have stated that you have subjected  2 certain statements to processes.  3 A   Yes, and if you had a particular problem that you  4 could point me to I might be able to narrow the search  5 of documents or the list of documents that I have  6 referred to.  7 Q   I have already referred --  8 A   But I have sort of an open-ended request, you said  9 this, tell me everything you looked at, rather than  10 pointing me to a particular difficulty that may exist.  11 Q   At pages 16798 to line 47 —  12 A   16 --  13 Q   798, line 47, to page 16799, line 12, you describe a  14 process to which you subjected the statements of Mr.  15 Trutch and Mr. Musgrave, and I asked you if you had  16 subjected the statement of Mr. Laird to the same  17 process and your answer was yes.  18 A   Correct, that's correct.  19 Q   And I now want to know, and I have asked you before, I  2 0 now want to know the documents that you looked at to  21 conduct that process.  Now there is nothing open-ended  22 about it, it is simply asking you to give me the  23 detail to what you referred to in your evidence.  24 A   If you think that's not open-ended, I don't think you  25 understand scholarly research.  26 Q   Well, you have made statements and either you refuse  27 to do it or you do it.  28 A   I would be happy to do it if it were within a  29 reasonable bound.  I am beginning to wonder whether  30 this is going to be a reasonable bound.  31 Q   Well, unless his lordship directs otherwise, I suggest  32 to you that you endeavour to provide me with a detail  33 of what you described and what you obviously  34 considered to be an important process, and if you find  35 that that is impossible, you can advise Mr. Rush.  36 MR. RUSH:  Well, my friend is defining the task impossibly, as  37 far as I can do it, and I think the witness's concern  38 is a legitimate one.  And I think my friend should be  39 required to draw some parameters around his question.  40 And that, I think, is what the witness is saying, this  41 is the third such request, without saying at all  42 whether or not there are particular concerns addressed  43 by my friend or whether or not there is a document  44 that he and his researchers have been able to  45 determine, which suggests something other than the  46 witness's answers.  In effect, without subjecting or  47 presenting other documents or other suggestions to the 1760?  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 witness, my friend is saying go out and do some more  2 research or come back with the lists of documents that  3 you have looked at.  I say, number one, for what  4 purpose, my lord?  Assuming there is a purpose.  The  5 second point I would make as well, there should be  6 some parameters drawn around the task.  I think Dr.  7 Lane has indicated in some situations what the nature  8 of the task would be.  But I can -- I will advise the  9 court, and I will take -- I take strong objection to  10 the witness, as has happened with some of our other  11 witnesses, to go about tasks after the cross-  12 examination is complete.  And I think that's not  13 correct.  I think that's not what the form of cross-  14 examination should be and there should be some  15 definition to it.  16 THE COURT:  Well, when one embarks upon a history of this kind,  17 the subject matter is so vast that it may not be  18 possible to test it without imposing unduly upon the  19 witness.  We are always reluctant to impose upon  20 witnesses but I am not in a position at this moment to  21 say whether this attains that level or that  22 qualification or not.  It seems to me that if the  23 witness can do it, it should be done.  24 I think that I have written some insignificant  25 little judgments about the obligations of witnesses to  26 go back and do something.  I think there is authority  27 that an engineer can't be sent away to do a bunch of  28 calculations.  And I think that there is some  29 jurisprudence on the subject but I am not sure it  30 applies to a case as vast as this, and to Mr. Goldie I  31 say that I think the requests have to be reasonably  32 manageable; and to Mr. Rush I say that when a witness  33 embarks upon this kind of a project that I think there  34 has to be some recognition that everything won't be  35 taken at face value and has to be tested.  I think the  36 best I can do, unless somebody wants to mount a legal  37 argument based upon the authorities I have mentioned,  38 which as I have already said I am not sure they are  39 applicable to a case like this, then I will hear them.  40 But failing that I think the witness will have to go  41 this far, and that is make some investigation into  42 what is required in order to comply with the request  43 and then I think counsel have to come back with some  44 specific submissions as to the scope of the problem  45 that the witness is encountering.  46 I don't think I should take the witness's  47 understandable reaction right now that this is asking 17609  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  too much.  It may be, but I don't think I should  respond to the first reaction.  I think that it should  be considered, it should be collected and if it is  unreasonable or is thought to be unreasonable, then I  think I should hear from counsel and attempt to make a  ruling.  MR. RUSH: Well, my lord, I think we would have been served to  this end if my friend had given me the courtesy of a  reply --  THE COURT:  I don't think we should get into courtesy.  There  may be courtesies going the wrong way in all sorts of  cases.  MR. RUSH:  There may well be, my lord, but I think this is  directly on point, and it's a letter I addressed to my  friend of May 15th, in which I asked that I be  provided with a chronological --  THE COURT:  Mr. Rush, I really don't think I want to, with  respect, get into it.  I am sure that if we start  pointing fingers it may be that we won't be able to  tell which one is the kettle and which is the pot.  And I do not subscribe to the theory of only  penalizing the one who is caught retaliating.  I don't  want to get into that.  I think we ought to do the  best we can to solve this problem and if it turns out  to be too much, it won't have to be done.  But I am  going to have to be persuaded that it's too much.  I  don't think anyone is in a position to say whether it  is or isn't.  Each one has to be considered in the  light of the other requests, and I am told there are  now three, I haven't kept track of them, if that's  what it is, maybe one of them wouldn't be too much if  it was the only one.  But if there is three, there may  be more, I think we should consider the question in  light of all of them.  MR. RUSH:  A request had been made of a grouping of defendants'  documents.  THE COURT:  That was a sizeable request that was made, that  would have been --  MR. RUSH: Which was ignored, and which would have assisted in  terms of --  THE COURT: But it would have been a monumental task. I ruled  on that one myself.  MR. RUSH:  My lord, a grouping of the defendants' documents  around the evidence of one witness, this witness.  THE COURT:  I am not sure, I remember when I dealt with it that  I thought it was a request that would have been very  difficult to perform and which may have been wasted. 17610  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Maybe it wouldn't in this particular case --  2 MR. RUSH:  In my submission, my lord, all that was being --  3 what's being asked for now is, in effect, of the  4 witness, what I was asking for the defence to do to  5 assist in determining what the parameters were for the  6 kind of evidence that needed to be brought forward.  7 Now, as the witness has said several times, if we  8 had -- if we hadn't winnowed, which was thought to be  9 in the interests of everyone in the room, there would  10 be a line of document books across the front of us and  11 no one wanted that.  12 Now, in my submission there had to be ways of  13 defining parameters and in my view what would have  14 been of great assistance to us all would have been  15 some grouping, attempt to group what were the relevant  16 parameters of these documents.  17 MR. GOLDIE:  Well, I think —  18 THE COURT:  I am sure that might have been helpful and I am sure  19 there are all sorts of things that might have been  20 done but the saddest words I have ever seen are those  21 that say what might have been.  22 MR. GOLDIE:  I think we are talking about two different things.  23 THE COURT:  Let's not talk about it now.  24 MR. GOLDIE:  I was going to assist the witness by referring her  25 to page 16797, and your lordship's statement:  "The  26 witness can be asked for a list of references to  27 documents which I can consider in assessing the  28 correctness or otherwise of what Mr. Trutch has  29 written."  That's all I am asking.  And that's -- that  30 list of documents is what supports the witness's  31 evaluation of what Mr. Trutch and Governor Musgrave  32 has said.  33 Q   Now, let me go on to your tab 82, in which you set out  34 a portion of Governor Dufferin's, Lord Dufferin's  35 dispatch to the Earl of Carnarvon, number 294 of  36 December 4, 1874.  And you read parts of that.  That  37 was a dispatch and the enclosures of which the context  38 of it was the dispute between Canada and British  39 Columbia over the size of reserves to be alloted, not  40 heretofore alloted, that is to say, in 1874, is that a  41 fair summary?  42 A   That was certainly part of the ongoing dispute, yes.  43 Q   Would not the context of that order-in-council require  44 at least some consideration of the confidential print,  45 which is referred to by Lord Carnarvon in his minutes  46 under your tab 83?  You have had printed here, under  47 tab 83, a typescript of the minutes on Lord Dufferin's 17611  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 dispatch, and you read the part from the first page  2 which started with these words:  "These papers  3 disclose a most terrible state of affairs" do you  4 recall that?  5 A   Hm-hmm, yes, I do.  6 Q   And that is addressed to Mr. Malkin and I suggest to  7 you that it is Mr. Malkin and not Mr. Merrivale who  8 has the words "print as suggested" at the bottom of  9 the next page.  W. K. M. is Mr. Malkin, is it not?  I  10 am not holding you responsible for this typescript, I  11 am just asking you to --  12 A   No, this is not my typescript, this is what was  13 provided by the Public Archives Canada, as I recall.  14 Q   Right.  But I am suggesting to you that it was -- it  15 is Mr. Malkin who is the W. K. M., but if you are not  16 aware of that let's go on to the next one.  17 At the end of that typescript, there is Lord  18 Carnarvon's minute of the 28th of December:  "This  19 looks like a difficult question to settle but one must  20 wait for the B. C. reply.  The printing should be  21 proceeded with at once but of course confidentially.  22 I should wish to have a print as soon as it is in  2 3 type."  24 Now if you turn back to my gray book, volume two,  25 under tab 43, I am suggesting we find the confidential  26 print of Lord Dufferin's dispatch number 294 and all  27 of the enclosures; would you agree with that?  28 I should add one thing, Dr. Lane, so I don't  29 mislead you, in addition to the enclosures, the  30 dispatch 294, there are enclosures or, I am sorry,  31 attachments which are later in date and they go down  32 to February of 1875?  33 A   Yes.  34 Q   But down on page 44, that is to say, document signed  35 by the Archbishop of British Columbia, are the  36 enclosures referred to in the governor-general's  37 memorandum, that is to say, L, Roman Catholic Bishop  38 of British Columbia, Honourable W. R. Scott, secretary  39 of state, 24th of July, 1874.  Down to that page 44 we  40 have got all of the enclosures for the governor-  41 general's memorandum?  42 A  Where were you reading from when you said governor-  43 general's memorandum?  44 Q   All right.  Will you look, please, at the page -- it's  45 seven, I believe or five in the upper right hand  46 corner, faintly, opposite the words "Indian Subjects  47 in British Columbia."  Do you have a schedule of 17612  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 documents accompanied --  2 A   Yes, I do.  3 Q   And it starts off: "A order-in-council 4th of  4 November, 1874"?  5 A   Yes.  6 Q   And goes down to L, "Roman Catholic Bishop of British  7 Columbia"?  8 A   Yes.  9 Q   And I am suggesting to you that that document is the  10 one that's concluded on page 44 of the confidential  11 print.  12 A   Yes, it seems to be.  13 Q   Yes.  And this then is the document which would be  14 before the authorities in the colonial office as a  15 result of the Earl of Carnarvon saying "I want a  16 confidential print of this dispatch"?  17 A   It appears to be.  18 Q   Now, in your evidence at page -- transcript 230, page  19 16814, you quote from Lord Dufferin's private letter  20 to Lord Carnarvon a section which begins with the  21 words, "I don't think I have written to you privately  22 on the subject of the long British Columbia Indian  23 dispatch I had to send to you."  And that is December  24 21st, 1874, and that too is found in the confidential  25 print, is it not?  And I am referring you to -- I am  26 sorry, I will leave that.  I want to go directly to  27 his further private correspondence.  28 You -- his lordship, the governor-general states:  29 -- well, I will come back to that.  30 The upshot of this, if I have the context  31 correctly, was that there was an agreement between  32 British Columbia and Canada that the Indian Reserve  33 Commission be set up?  34 A   That's correct.  35 Q   Yes.  And the context of that would be provided by the  36 requisite orders-in-council and the commission to the  37 members of the commission and their instructions?  38 A  Among other things, yes.  39 Q   Yes.  I am not going to bother putting those in, I  4 0 just want your agreement that that would be so.  And  41 the commissioners were MacKinley on behalf of British  42 Columbia?  43 A   Correct.  44 Q   Anderson on behalf of the Dominion?  45 A   Correct.  46 Q   And Mr. Sproat who was the joint appointee?  47 A   Right. 17613  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And Mr. Powell is still the Indian Commissioner, that  2 is to say, the official of the Dominion government  3 resident in British Columbia?  4 A   That's correct.  5 Q   All right.  Now, you referred to Lord Dufferin's  6 speech at tab 90, and I don't think you need bother  7 with that, would you agree with me that the context of  8 that speech was the failure of the Canadian government  9 or the alleged failure of the Canadian government  10 under the Mackenzie administration to keep to the  11 terms of union with respect to the railway?  12 A   Could you give me the date of the speech?  I don't  13 have that tab in front of me.  14 Q   The tab is your volume 90.  15 A   No, the volume number?  16 Q   It would be three.  And the speech itself is -- begins  17 on page 455,  18 THE COURT:  Sorry, Mr. Goldie, did you say volume three?  19 MR. GOLDIE:  Volume three of her documents.  2 0    THE COURT:  Tab 90?  21 MR. GOLDIE:  Tab, the first 90.  22 A   Yes.  23 Q   And this is in --  24 A   This is the speech in Victoria.  25 Q   Right.  26 A   Yes.  27 Q   And my suggestion to you was that the context of his  28 speech was the concern felt in British Columbia over  29 the alleged failure of the Mackenzie administration to  30 keep to the terms of union with respect to the Pacific  31 Railway?  32 A   That's correct.  Dufferin was sent out to try to  33 smooth feelings between the people in British Columbia  34 who were disgruntled over this matter and the Dominion  35 government, and that's why it's all the more  36 remarkable that sent on that kind of a mission he  37 closed that speech with a long discussion of Indian  38 matters in British Columbia.  39 Q   It would be appropriate, in consideration of the  40 context, if he received no such instructions, that is  41 to say, to placate people in British Columbia?  42 A   I beg your pardon?  43 Q   I say it would be appropriate if in this -- in  44 determining the context in which that speech is to be  45 placed, if he didn't receive any such instructions?  4 6    THE COURT:  You mean if he didn't have any when he made the  47 speech? 17614  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GOLDIE:  Q  A  THE  THE  THE  THE  MR.  THE  MR.  If he didn't have any such instructions?  When you say such instructions, you mean instructions  to —  Q   To placate the people of British Columbia.  A   Oh, if you mean in those words, I don't know.  I would  look at the whole context of what he was sent out to  do.  Q   Well, firstly, let me refer you to another  confidential print.  COURT:  Mr. Goldie, before you do that, could I ask, did you  agree that the reason for the natives in British  Columbia being restless was failure of the federal  government to do something about the CPR railway?  A   No, no, I am sorry.  Did I mis-speak?  COURT:  I doubt it but I am just -- I shouldn't have used  that term.  A   The people in B.C. —  COURT:  The people in B. C. were upset about the failure of  the government to comply with the terms of union?  A   That's right.  COURT:  That wasn't in relation to the building of the  railroad?  GOLDIE:  Yes.  A   Yes.  COURT:  It was?  A   Yes.  GOLDIE:  Q  and I put the word in  THE  MR.  In fact, there had been one,  quotation marks, "arbitration" by the Earl of  Carnarvon with respect to the failure to observe the  terms of union by the Canadian government?  A   Regarding the railway.  Q   Regarding the railway?  A   Yes.  Q   The so-called Carnarvon terms?  COURT:  Regarding the construction of the railway?  GOLDIE:  Regarding the construction of the railway.  Q   Now, I was going to refer you to tab 44 of my gray  book, which is a confidential print of the Colonial  Office, Lord Dufferin's report of his visit to British  Columbia.  And this is, as it states, a confidential  print of the Colonial Office for the use of the  Colonial Office and the first document is Lord  Dufferin's draft report and the second paragraph  starts with the words:  "Your lordship is aware that  my journey to that province had nothing of a 17615  B. Lane (For Plaintiffs)  Cross-exam by Mr. Goldie  1 diplomatic character."  2 Isn't that an indication that he had no  3 instructions?  4 A   I don't know.  5 Q   Well, you -- I refer you to your evidence at volume  6 230, page 16820 —  7 A   I am sorry, the page number?  8 Q   16820.  9 A   Thank you.  Yes?  10 Q   And you say at line ten:  "There were grave questions  11 and dis-satisfaction as between the British Columbia  12 government and the Dominion government over the  13 failure of the Dominion government to live up to some  14 of the promises made to British Columbia made at the  15 time of union, and the governor-general had come out  16 on a mission of diplomacy in order to reassure the  17 people, of British Columbia", et cetera.  His lordship  18 denies that he was on a diplomatic mission, isn't that  19 correct?  20 A   Your last statement is correct.  You asked me earlier  21 whether that showed that he had no instructions and I  22 don't know that it shows that.  23 Q   I see.  All right.  But -- by the way, are you  24 familiar with this confidential print?  25 A   I am not sure whether I have seen this one or not.  I  26 would have to read it, which I haven't done yet.  But  27 I don't think I have seen it.  Although I could be  28 wrong, if I check it carefully.  29 THE COURT:  What do you think, Mr. Goldie, it's 4 o'clock, do  30 you want to carry on for a while?  31 MR. GOLDIE:  I would like to, my lord.  I have a little while to  32 go but I am going to finish by about 4:30.  33 THE COURT:  All right.  34  35 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  36  37  38 I hereby certify the foregoing to be  39 a true and accurate transcript of the  40 proceedings herein to the best of my  41 skill and ability.  42  43  44  45 Wilf Roy  46 Official Reporter  47 17616  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  THE COURT  4  MR. GOLDI  5  6  7  8  9  10  11  12  13  14  15  16  A  17  Q  18  A  19  Q  20  21  22  23  24  25  26  27  28  A  29  Q  30  A  31  32  Q  33  A  34  Q  35  A  36  37  Q  38  A  39  Q  40  A  41  Q  42  A  43  Q  44  45  46  47  (PROCEEDINGS RESUMED PURSUANT TO SHORT RECESS)  :  Mr. Goldie.  E:  Thank you, my lord.  I have one other reference  that I wish to draw your attention to, the  confidential print of Lord Dufferin's report under tab  44 of my gray book, and that is at page 20.  And just  below the resolution which is set forth in that page  Lord Dufferin says:  "On returning to Victoria, I  again had the pleasure of seeing a great number of  those gentlemen...", et cetera.  And then in the next  full paragraph about half way down that there is a  sentence begins with the words:  "I was charged with  no special message either from your Lordship or from  my ministers."  Do you see that?  Not yet.  About half way down?  Yes.  I have it, right.  And then following that he describes the speech that  he gave, and then following that at page 25 is a draft  of a proposed minute from the governor general to the  privy council.  Both his report and the proposed  minute are identified as drafts.  And is that not an  indication of the constitutional difficulty Lord  Dufferin got into with his advisors about the speech  that he made and the report that he proposed to give  to Lord Carnarvon?  I'm sorry.  I'm trying to read this.  By all means.  I'm sorry.  Yes.  And you were directing my attention to something  further here?  Yes.  And was that not the forerunner of a --  I'm sorry.  I didn't get the second --  Was that not the forerunner --  There was two things.  I was reading the first thing  you asked me to look at.  Which were the first you were reading, please?  At page 20, 21.  That's part of Lord Carnarvon's report, is it not?  Yes, that's correct.  And then?  And then I didn't hear what you mentioned.  At page 25 there is a draft proposed minute -- I'm not  going to ask you to read that -- from the governor  general to his privy council, because that will be  explained when I get on to the next tab, which is  under 45.  You can come back to this if you wish.  It 17617  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 may assist.  2 A   I thought you had asked me a question depending on my  3 reason of this.  4 Q   I'm going to give you a little greater background.  5 A  All right.  6 Q   And under tab 45 there is a book of  7 "Dufferin-Carnarvon Correspondence 1874-1878", and  8 from that are taken the extracts which are set out  9 here, page 406 to page 410, which is from the appendix  10 dealing with the "Memorandum by Mackenzie on  11 Conferences with Lord Dufferin, 16 and 18 November,  12 1876".  Now, Mackenzie was the Prime Minister of  13 Canada at the time?  14 A   Yes.  15 Q   And he sets out a memorandum of a meeting he had with  16 Lord Dufferin as a result and at which was discussed  17 the matter of the relations between Canada and its  18 so-called obligations to British Columbia in respect  19 of the railway?  20 A   Yes, I recall this.  21 Q   Yes.  Now, I'm going to address your attention to page  22 409.  23 A   Yes.  24 Q   And at line three Mr. Mackenzie reports he -- that is  25 to say and I can advise you that's Lord Dufferin.  26 A   Yes.  27 Q  28 He then commenced a general and excited  29 discussion of what was involved in his  30 writing of such a paper.  Mr. Blake replied,  31 pointing out what we had done when he left  32 for Columbia, when it was quite understood  33 that he should not, and could not, have any  34 mission from the Dominion government, or any  35 ambassadorial function even as an Imperial  36 officer which might conflict with Vice Regal  37 duties here, and that his visit therefore  38 was strictly a progress as Governor."  39  40 Now, I suggest to you that the context of Lord  41 Dufferin's presence in British Columbia is a matter to  42 be taken into consideration with respect to his  43 speech.  Would you agree with that?  44 A   I'm sorry.  Could you repeat the question?  45 Q   I say, the matter of Lord Dufferin's instructions and  46 the character in which he appeared in British Columbia  47 in 1876 is part of the context in which his speech 1761?  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 should be set for the purposes of your assignment  2 here?  3 A   Yes.  4 Q   Thank you.  Now, under tab 45 -- 46, I beg your  5 pardon, I have set out Mr. David Mills' letter to  6 Powell, Mills by this time being the Minister of the  7 Interior.  And I believe that you -- you put that  8 under your tab 92 and 93 of your Volume 3.  In any  9 event, the transcript references to this particular  10 letter, and you regard that as contextually important,  11 I take it, because that's what you say at 16827, lines  12 35 to 40.  You refer to the copy retained in Ottawa  13 from which the clerk made a fair copy.  "This is the  14 only copy we have been able to discover."  This would  15 appear to be a copy which was received by -- by  16 Powell, or at least addressed to Powell, and you refer  17 to a certain part of it beginning -- and it's recorded  18 at page 16828.  Now, you recall the context of that  19 letter?  20 A   I believe so, yes.  21 Q   Yes.  Would you agree with me that it would be  22 important in the context of that letter to consider  23 Sproat's response -- Powell's response to that?  24 A  Well, depending what the purpose is.  My purpose here  25 in including this was to provide evidence of what Mr.  26 Mills was saying.  27 Q   Yes.  All right.  Well, let me go on to tab 47.  28 A   Yes.  29 Q   And that is Mills letter to Sproat, which I believe  30 you placed a copy under your tab 93, and which you  31 suggested might not -- the original might not be  32 available.  In any event, again, Mills is writing to  33 Sproat who was --  34 A   I don't have my -- I'm sorry.  Where in the transcript  35 are you?  36 Q   Let us just look at tab 47.  37 A   I may have said it wasn't available to me.  38 Q   All right.  Tab 47 is Mr. Mills' letter to Mr. Sproat?  39 A   Yes.  40 Q   And he, again, is talking about the critical measures  41 of the Indian situation in British Columbia?  42 A   Yes.  43 Q   And I go back to my question, but this time it is in  44 relation to Sproat's response, because Sproat was the  45 joint appointee on the board of the Indian Reserve  46 Commission?  47 A   Correct. 17619  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And under tab 48 I have placed Sproat's response, and  2 he states at the bottom of page -- the first page:  3  4 In forwarding these copies to the Government  5 of the Province I made no comments beyond  6 stating what I believe to be your view,  7 namely, that I was not expected to consider  8 your letter for the present as an amended  9 instruction in the sense of obliging the  10 Commissioners to change the principles of  11 acting and procedure in the work in which  12 they had in hand."  13  14 A  M'hm.  15 Q   You would agree that's contextually significant?  16 A   I don't recall what it was he was referring to here.  17 Q   Well, he's referring to Mr. Mills' letter.  18 A   Yes, which is a lengthy letter, and I would have to  19 check and see what it was that he was specifically  20 referring to.  My recollection of the 3 August 1877  21 letter which is at tab 47 was that it dealt with Mr.  22 Mills' assessment that the difficulties with -- the  23 discontent of the British Columbia Indians, which they  24 had understood might result at an outbreak in any  25 moment, had to do with the failure to negotiate  26 treaties to extinguish the Indian title which occurs  27 in the body of the letter, and that's my recollection  28 of the subject matter.  I would have to look at this  29 letter to see what Mr. Sproat was referring to when he  30 said he didn't regard it as an amendment of previous  31 instructions.  32 Q   Well, at page 16825 of volume 230 of the transcript  33 are the excerpts from the letter that you put into the  34 record.  35 A   Yes.  36 Q   And they all appear to talk about title.  37 A   Yes.  38 Q   And Mr. Sproat is saying I do not understand you to  39 change my instructions which did not include a  40 negotiation of treaties.  41 A  Which is why I would want to read this letter to see  42 what it is he's referring to.  43 Q   All right.  Also of contextual significance, would it  44 not be, the letter from the Province of British  45 Columbia in response to the receipt from Mr. Mills of  46 his letter?  47 A  Well, again, I would have to know what the response 17620  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 was dealing with to tell you whether I consider it to  2 be important contextually.  My purpose in inserting  3 these documents was because they gave a clear  4 expression from the Dominion side of the controversy  5 as to what was causing the tension in 18 -- in the  6 summer of 18 7 7.  7 Q   And wouldn't you agree that it is of equal contextual  8 inportance to know what the province said?  9 A   I think that the province's position was quite clear.  10 I have documents here which show that position.  11 Q   Yes.  Documents you have not included?  12 A   Documents that are included in the --  13 Q   No.  Excuse me.  You have not included the province's  14 response to Mr. Mills' letter?  15 A   To this letter?  No, I don't believe that Mr. Mills  16 wrote to the province.  17 Q   But Mr. Sproat sent Mr. Mills' letter on to the  18 province?  19 A   That's right.  20 Q   And the province responded to Mr. Sproat with respect  21 to that letter?  22 A   That's perhaps correct.  23 Q   And that's under tab --  24 A   I don't know whether I've seen that letter or not.  25 Q   That's under tab 49.  26 A   Let me see.  27 Q   It's typescript under -- following the pink.  28 A   Thank you.  Elliott.  Well, this is the province's  29 response to Sproat.  30 Q   Well, it's the province's response to Sproat who sent  31 on to the province --  32 A   I misheard you.  Perhaps I thought you said the  33 province's response to Mr. Mills.  34 Q   The province's response to Mr. Mills' letter.  35 A   Yes, I believe I have seen this.  36 Q   All right.  You agree with me then it is of some  37 contextual significance?  38 A   Not in determining the position of Mr. Mills.  39 Q   Well, of course, not.  But in determining the  40 province's position?  41 A   Yes.  I don't think it presents any new information  42 that hasn't already been canvassed.  43 Q   Well, there's a reference to title.  44 A   Yes.  And, as I say, I don't believe there's anything  45 new or different here.  46 Q   Yes.  Now, Mr. Mills didn't respond to that letter,  47 did he? 17621  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 A   It wasn't sent to him, as far as I know.  2 Q   Well, under tab 50 is Mr. Mills' letter to the  3 lieutenant governor of British Columbia, Mr. Richards?  4 A   This is Mr. Mills' letter?  5 Q   Yes.  6 A   Oh, wait a minute.  Maybe I do remember this.  Just a  7 second here.  8 Q   I'm not suggesting that this is Mr. Mills' response --  9 A   No.  10 Q   — To Mr. Elliott.  11 A   I understand.  Give me a moment to see what this is.  12 Yes, this is another subject matter.  13 Q   Well —  14 A   Yes, I recall this now.  15 Q   Yes.  And in paragraph 4 Mr. Mills is saying to the  16 lieutenant governor of British Columbia that Mr.  17 Sproat has told him that if he operated as a single  18 commissioner he could complete the work of the Indian  19 Reserve Commission in a way -- in a way as to give  20 entire satisfaction to both governments and also to  21 the Indians and white settlers?  22 A   Yes, I recall that statement.  23 Q   Yes.  And at paragraph 7:  24  25 "It occurs to me that should you not see any  26 objection to such a course, it might be well  27 that you should bring Mr. Sproat's views  28 under the notice of your advisors as a  29 proposition emanating from yourself and not  30 as made at my suggestion."  31  32 That confirms Mr. Sproat's reading of Mr. Mills'  33 letter that no changes were to be made in the  34 instructions of the commission, does it not?  35 A   I beg your pardon?  36 Q   Doesn't that confirm Mr. Sproat's reading of Mr.  37 Mills' letter about title that no change was to be  38 made in the way in which the commission was going  39 about its business?  40 A  Well, I think this letter written in December --  41 you're asking me whether this confirms the letter that  42 was written by Mr. Sproat in August, was it?  43 Q   Yes.  Well, perhaps I need not press you on that, Dr.  44 Lane.  Let's see if we can get on a little more  45 quickly.  At tab a hundred of your Volume 3 you  46 reproduce a letter from a Reverend Tomlinson.  47 A  What tab? 17622  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   At tab 100 of your Volume 3.  2 A   Thank you.  Yes, I have it.  3 Q   Now, in the second -- there are two letters under that  4 tab, as I understand it, and -- maybe there is just  5 the -- well, there's one following it in tab 101 of  6 November the 12th of 1884.  The first one is November  7 20th, 1884, and then in the second one on page one  8 under tab 101 Mr. Tomlinson refers to:  9  10 "The Government has appointed a commission  11 to inquire into and report upon the matters  12 referred to in the petition."  13  14 And that is matters of Metlakatla, is it not?  15 A   Yes.  16 Q   And that is the Davie-Ball Commission?  17 A   I beg your pardon?  18 Q   That is the so-called Davie, D-A-V-I-E - Ball  19 Commission that was appointed solely by the province  20 to look into matters at Metlakatla?  21 A  Well, there were several such enquiries into the  22 affairs at Metlakatla, and I frankly don't recall  23 whether the one mentioned here is the one that you're  24 recalling with Davie-Ball.  25 Q   Yes.  I refer you to my gray book under tab 51, which  26 is the Report of the Commissioners consisting of Mr.  27 Davie, Mr. Ball and Mr. Elliott.  2 8 A  Ah.  29 Q   And those gentlemen conducted this enquiry into the  30 Metlakatla matter?  31 A   That's right.  Now that you've given me the third name  32 I'm sure we are talking about the same thing.  33 Q   All right.  And Mr. Tomlinson gave evidence at that  34 commission, and I refer you to page Roman 64.  The  35 context of Mr. Tomlinson's appearance in your evidence  36 would include the fact that he was a supporter of Mr.  37 Duncan?  38 A   The context?  39 Q   The context.  40 A   If you're asking me whether he was the answer is yes.  41 Q   Yes.  And he appeared at this commission appearing --  42 representing two Skeena River people from Kitmangar?  43 A  Where are you, please?  44 Q   Well, I'm at page 65, and then I go on to page -- the  45 precise reference to the Kitmangar Indians is on page  4 6 Roman 69.  47 A   I see.  But you had directed me to Roman 64. 17623  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  Yes.  That's the first reference to Mr. Tomlinson.  I see.  Where is that?  Well, I think it may be over in 65 about a quarter of  the way down the page.  Mr. Tomlinson was asked if Mr.  Duncan would attend, and then Mr. Tomlinson later on  in the page states that he wrote certain letters, and  then at 69 he says he's appearing for -- for -- right  at the bottom of the page:  "I have been requested by  two of the Kitmangar Indians", et cetera.  Yes, I see it.  Yes.  Now, the whole -- in his evidence he denied that  the Indian Act applied to the Indians of Metlakatla?  Where are you, please?  At 72, Roman 72, Mr. Davie was questioning him.  Excuse me.  I'm not sure I have --  You have Roman 72?  Yes, I do.  Yes.  And where are you?  And about ten lines down from the top Mr. Davie is  interrogating Mr. Tomlinson.  Yes.  It says:  "I think you told us you were a missionary  here.  Do you take any part in teaching the  Indians otherwise, in the schools generally?  You teach the Indians..."  And so on.  Yes.  "Q   Have you ever told these Indians that  the Indian Act is the law of the land and is  in force, and rejecting it is rejecting the  law?  A   No.  Q   Have you discussed with them the  propriety of telling Mr. McKay that they  did not want the Act and would not have  it?  A   I was not present at any of the  meetings."  And so on.  And he's eventually -- he eventually  calls in support of his viewin s Lord Dufferin's  speech? 17624  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Where are you?  2 Q   Page 73 about eight lines from the bottom of the page.  3  4 "MR. TOMLINSON:  I would like to be heard  5 about my stating that the Indian Act was  6 not in force.  I find I am not alone in  7 that belief..."  8  9 A   I'm sorry.  I'm not with you.  10 THE COURT:  Very bottom.  11 MR. RUSH:  Very bottom of page 73.  12 A   Oh, the other page.  I'm sorry.  Yes.  13 MR. GOLDIE:  14 Q  15 "I would like to be heard about my stating  16 that the Indian Act was not in force.  I  17 find I am not alone in that belief, because  18 Lord Dufferin is of the same opinion.  Here  19 is a speech of his, in which he says"  20  21 And Mr. Davie says:  "Let me see it."  Now -- and  22 Mr. Duncan —  23 A   Excuse me.  I'm not quite with you yet.  24 Q   All right.  25 A   Yes.  I'm sorry.  Go ahead.  26 Q   And the context of this, Mr. Tomlinson's interventions  27 on behalf of the Indian people, arose out of his --  28 his acceptance of Mr. Duncan's beliefs at the time of  29 the Metlakatla troubles?  30 A  Again, Mr. Goldie, I'm going to have to ask you what  31 beliefs you're referring to.  32 Q   Well, let me refer you to Roman 78.  This is the  33 evidence of a man by the name of Clough who's giving  34 evidence of what Mr. Duncan said to him at the time of  35 Mr. Clough's visiting him at Metlakatla, and that he  36 had been stopped by some of the Indians there and that  37 he -- he was a surveyor.  And then midway down that  38 first paragraph he -- Mr. Duncan then changed the  39 conversation and commenced to speak about the Indian  40 rights to the land.  41 A   Excuse me.  42 Q   About midway down the sentence.  43 A   The first paragraph?  44 Q   Yeah, first paragraph.  45 A   Yes.  46 Q  47 "He then changed the conversation, and 17625  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 commenced to speak about the Indians' right  2 of the land.  He said it was not between the  3 Bishop and Mr. Duncan, but a question of  4 principle.  That the land belonged to the  5 Indians; they had their title from time  6 immemorial, and that was the best that could  7 be shewn.  That the Government had not any  8 basis for any law in the matter, and there  9 were only three ways of acquiring land - by  10 purchase, or by conquest, or they could that  11 or they could steal it.  That the Government  12 had not bought it; they had not taken it by  13 conquest; then how did they get it?  And  14 that when they came to enquire into the  15 matter they would find it a very difficult  16 question to settle, and that he had legal  17 advice on the subject."  18  19 That sums up Mr. Duncan's views, doesn't it?  At  20 that time, I mean.  21 A   This expresses what Mr. Clough reported to be Mr.  22 Duncan's views on this matter at this time.  23 Q   Yes.  24 A   But your question to me was something about Mr.  25 Tomlinson and Duncan's beliefs, and I -- I would  26 really like to answer your question if you could  27 phrase it in such a way that we are being specific and  28 I know what I'm agreeing or not agreeing with.  29 Q   Would you —  30 A   If you're asking me -- you seem to be talking about  31 several things at once.  Whether the Indian Act was  32 operative or whether Mr. Tomlinson had told the  33 Indians whether it was operative or not operative.  34 Then we jump here to Mr. Duncan's views on Indian  35 title as reported by Mr. Clough, and you're asking me  36 whether Mr. Tomlinson agreed with Mr. Duncan's views.  37 And I think I'm being asked about two different  38 things, and I'm confused, frankly.  39 Q   All right.  If you are that's my fault.  What I read  40 to you, I suggest, is a summation of Mr. Duncan's  41 views?  42 A   This is a summation of Mr. Clough's report of Mr.  43 Duncan's views, yes.  44 Q   Yes.  From your knowledge isn't that a summation of  45 Mr. Duncan's views?  46 A   I think that Mr. Duncan held these views that are  47 being enunciated here at this particular time. 17626  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes.  2 A  And that this is further evidence relating to the  3 comments I made the other day in my testimony that the  4 controversy here was not primarily a dispute within --  5 among church men, but rather a dispute over the  6 question of Indian title in that area, and the  7 question of the jurisdiction of the Indians at the  8 time when the Indian Act was being attempted to be  9 made operative there.  10 Q   Well, the dispute between Mr. Duncan and the bishop  11 focused on a two acre parcel of land said to have been  12 reserved to the Church Missionary Society by Sir James  13 Douglas; isn't that correct?  14 A   That's in part correct.  That was not the entire  15 dispute between the bishop and Mr. Duncan, by any  16 means.  17 Q   No.  The dispute arose out of Mr. Duncan's desire to  18 be free of the supervision of the bishop, to put it on  19 one side?  20 A  Well, that's certainly one part of it.  21 Q   Yes.  All right.  Now, the only point I'm asking you  22 to agree with me now is that Mr. Tomlinson was a  23 supporter of Mr. Duncan's views at this time?  24 A  Well, again, you're too broad here when you say Mr.  25 Duncan's views, because Mr. Tomlinson agreed with some  26 of Mr. Duncan's views, and I believe he did not hold  27 with others of them.  And I cannot answer the question  2 8 in the affirmative in the way you've given it to me.  29 Q   He agreed with Mr. Duncan's views on the question of  30 Indian title?  31 A   Oh, I believe so.  32 Q   Yes.  Thank you.  Now, in your tab 98 you referred to  33 Mr. Justice Begbie's bench book in the Nash and Tait  34 injunction application.  Do you remember that?  35 A   I do.  36 Q   And the first day's proceedings were omitted from what  37 you have under tab 98, and I have included them in tab  38 52.  And there is a typescript of the first day's  39 proceedings under the pink folder.  40 A   Yes.  41 Q   Now, I made an interjection at the time you were  42 giving evidence and I said my recollection was that  43 the injunction proceeding had gone off on a procedural  44 point.  I was wrong on that.  I had in mind the fact  45 that he had stood the application over on the first  46 day, and that is clear from this:  47 17627  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 "Information at the relation of the Charles  2 B. Nash affidavit, Reverend Charles B.  3 Nash..."  4  5 I'm reading from the typescript.  6  7 "Letter 30 May 1864:  to Duncan Government  8 reserve, five miles on each side Mission  9 Point and five miles back to the coast line.  10 Missionary Society to have two acres held in  11 trust for them.  Duncan not now Society  12 man."  13  14 Now, that's a reference to the fact that he had --  15 he and the Church Missionary Society had parted  16 company; isn't that right?  17 A   That is probably correct.  It's certainly what Mr.  18 Begbie has written here.  I'm not sure that the  19 previous information is accurate.  20 Q   Well, he's simply summarizing the affidavit that's  21 before him, isn't he?  22 A   Yes.  And I'm saying that I'm not sure that the  23 information it contains is correct.  24 Q   Yes.  And he says:  "This trespass greatly  25 inconveniences Bishop Ridley and Mrs. Ridley."  Then  26 reference to some dimensions.  "Bishop Caledonia  27 represents Church Missionary Society."  That's a  28 reference --  29 A   Yes.  30 Q  31 "Defendants are all Indians.  No means.  Do  32 nothing but by advice and sanction of  33 Duncan.  Mr. Drake asked for injunction  34 against permitting the continuance of the  35 trespass.  Steamer Barbara Boscowitz returns  36 immediately."  37  38 A   Excuse me.  Excuse me just a moment.  I would like  39 some clarification.  40 Q   Yes.  41 A  When you were reading through there you weren't  42 suggesting that all of that was from the affidavit,  43 the summary of affidavit?  44 Q   No.  No.  I'm reading -- I'm reading what is in the  45 bench book at this time.  46 A   Yes.  But since you had characterized the earlier  47 words that you were reading as being a summary of the 1762?  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 affidavit I wanted to make sure where you thought that  2 left off and where we are now back to Mr. Begbie's  3 comments.  4 Q   I would think that when Mr. Justice Begbie starts  5 writing "Mr. Drake asks for an injunction" we can  6 safely assume he was finished with the affidavit.  7 A  And perhaps earlier.  8 Q   I don't know.  9 A   I just wanted to clarify that.  10 Q   M'hm.  And then "cur", C-U-R.  That refers to the  11 judge himself, or is that your understanding?  12 A   I don't know what it refers to.  13 Q   At any rate he writes down:  14  15 "Mr. Duncan is reported to be in Victoria.  16 Why not serve him with notice of your  17 application.  Answer.  He is not defendant's  18 agent but their guide philosopher."  19  20 Et cetera.  Then there's a note with respect to --  21 and then we have in the next page a typescript of the  22 material you have in your material at tab 98?  23 A   That's right.  There was a place in the bench book, I  24 believe, where another matter intervened between  25 these, and I looked at the first page and saw nothing  26 there that was relevant to Begbie's views about title  27 so I didn't bother to put in this page or the  28 intervening page.  29 Q   I see.  All right.  Well, Mr. Drake renewed his  30 application, and Senator Macdonald and Mr. Duncan were  31 present but offered no observations.  Senator  32 MacDonald was a supporter of the views of Mr. Duncan;  33 is that not correct?  34 A   Senator MacDonald was a senator of -- was of the  35 Senate of Canada, and he was a supporter of the views  36 of Mr. Duncan that you referred to earlier.  37 Q   Yes.  All right.  Now, the context of this is that it  38 is a continuation of the same dispute that caused the  39 1884 commission, that is to say the dispute?  40 A   The dispute over Indian title, yes.  41 Q   Well, the dispute over who was entitled to a two and a  42 half acre parcel?  43 A  Well, the dispute over that two and a half acre parcel  44 is a dispute about Indian title.  It's the only land  45 at Metlakatla over which an adverse claim was being  46 made, that is adverse to the interests of the Indians,  47 and so it was made the focal point or the test case, 17629  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 if you will, for the title issue.  2 Q   Well, the title issue --  3 A   The question was whether the -- as I understand it  4 from my reading of the documents, the question was  5 whether the -- whether Douglas had made that  6 reservation in trust for the church working on behalf  7 of the Indians.  In other words, for Indian purposes  8 or whether it was a church reserve in the way in which  9 churches were sometimes given reserves of land.  And I  10 think the record shows that the Indians thought that  11 the rights to that land had been given to the church  12 because they were there for Indian purposes to serve  13 the Indians, and when the bishop came and tried to  14 claim it for the Church Missionary Society adverse to  15 the claims of the Indians the title issue erupted over  16 that land.  17 Q   Well, perhaps I need not trouble you any further, but  18 you would agree with me because you have placed Judge  19 Begbie's minutes in evidence that this is contextually  20 significant?  21 A   No.  I felt it was important to put Judge Begbie's  22 words in which he denied the existence of Indian title  23 into the records, because I had earlier placed in the  24 record his statement in 1860, I believe it was, which  25 was directly opposite of the statement he made in  26 1886, and I thought in interests of a complete record  27 if the man says one thing at one time and another  28 thing at another time it is not proper scholarship to  29 choose one of those statements and ignore the other,  30 so I put them both in the record.  31 Q   It's your belief that they are inconsistent?  32 A  As I read them they appear to be entirely inconsistent  33 in that in 1860 Judge Begbie said Indian title is by  34 no means extinguished and must be soon, and in  35 speaking of British Columbia, and mainland British  36 Columbia.  And in 1886 if you read his comments in his  37 bench book he denies that Indian title has ever been  38 recognized with respect to people such as these, and  39 he characterizes them in some fashion, I forget now,  40 wandering nomads, or whatever, which was particularly  41 inappropriate with respect to the large settled  42 village at Metlakatla, which had the largest church on  43 the northwest coast at that time, the largest settled  44 population and the largest Christian Indian settlement  45 anywhere on the coast.  46 Q   I shall have the pleasure of dealing with that  47 argument in argument. 17630  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 Now, in your transcript at page 16837 you were  2 asked who Cridge was, and you said he was a resident  3 of Victoria since 1854.  Is it not contextually  4 significant to recognize that he was a supporter of  5 Mr. Duncan in his fight with the bishop?  6 A   You characterize him so.  I would characterize him as  7 someone who held the same views, and agreed with Mr.  8 Duncan and many others with respect to the title  9 issue.  10 Q   I have placed under tab 53 an extract from Jean  11 Usher's book on William Duncan of Metlakatla.  Are you  12 familiar with that book?  13 A   I certainly am.  14 Q   And would you agree with me that Mr. Cridge has been  15 characterized as a supporter of Mr. Duncan, and  16 likewise, Mr. Duncan supported Cridge in his dispute  17 with the Church of England?  18 A   That's entirely true, but it doesn't in any way affect  19 the comment that I made earlier, one can support  20 another individual on two matters as well as one.  All  21 I'm saying is that whatever the church disputes were  22 Bishop Cridge was vehement in his views about Indian  23 title.  And those are the ones with which I am  24 concerned.  Whether he also supported Mr. Duncan in  25 other matters, whether he had disputes with the church  26 in other matters is not relevant to the question of  27 what his views were with respect to the title issue.  28 I may say that if my recollection is correct Mr.  29 Begbie, I believe, was a member of Bishop Cridge's  30 congegration and yet they held different views on the  31 title matter in 1886.  The two are not necessarily  32 joined irrevocably.  33 Q   They are sufficiently joined to be contextually  34 significant?  35 A   I think not.  36 Q   All I want you to say is yes or no.  37 A   I think not.  I think not.  38 Q   You think not.  Thank you.  39 A   Because there are people who held opposite views on  40 one of the issues and were together on the other one.  41 Q   All right.  If I can get along.  In the South African  42 War volume of documents you omitted a form which was  43 to be completed by the applicant for Crown grant.  Do  44 you recall that?  45 A  Well, I omitted a number of forms that are required to  46 be filled out by someone getting a Crown grant.  47 Q   Would you look under tab 56, please? 17631  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 A   In which volume?  2 Q   In the gray volume.  3 A   In the gray book?  4 Q   Yes.  5 A   Yes.  Yes.  6 Q   Now, that is a form to be completed by the applicant,  7 and it requires him to state as a declaration that he  8 has staked off and marked such land in such accordance  9 with the instructions issued by the Lands and Works  10 Department, and that the land in question was not an  11 Indian settlement or any portion thereof.  You did not  12 consider that to be of any contextual significance?  13 A   Oh, of the greatest significance.  14 Q   All right.  15 A  And this is simply a form which was printed here for  16 those people using South African War scrip, a similar  17 form, and assurance was needed for people who took up  18 lands under pre-emption, because under the Land Act of  19 the time, which I think is in evidence as an exhibit,  20 Indian settlements are excluded as places that can be  21 taken up by a pre-emption purchase.  22 A   Yes.  Scrip or any other means.  23 Q   I just wanted to have your agreement that this is  24 contextually significant in construing the South  25 African War Land Grant Act?  26 A   Yes.  It's alluded to in one of the documents I placed  27 in evidence, one of the letters from Father Godfrey  28 where he points out that the people who signed these  29 declarations perjured themselves by signing off on  30 them when in fact the lands that were staked were  31 Indian settlements.  32 Q   That was his opinion?  33 A  And it is bourne out by evidence --  34 Q   Yes.  35 A   -- Which I have examined.  36 Q   Right.  And which you have -- apparently you have  37 included, have you not?  38 A   No, because I was not concerned with whether people  39 were perjuring themselves, but merely trying to  40 describe the forms by which -- the means by which the  41 places were taken out.  42 Q   All right.  43 A   If I had digressed to go into the number of abuses  44 where the provisions of the law were not followed I  45 would have given you three volumes the size of the one  46 that you got on the South African War Land Grants.  47 Q   In your tab 28 in volume 4 -- do you have that? 17632  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 A   I do.  2 Q   You make reference to, and you read from that document  3 a reference to a Mr. H.W. Heal's affidavit?  4 A   Yes.  5 Q   And I take it that that is one of the people referred  6 to in the document under your tab 36 who signed a  7 petition?  8 A   Yes.  Mr. Heal -- Mr. H. Heal is one of the men who  9 went around staking land all through the Bulkley  10 Valley and neighbouring regions for people who had  11 collected scrip, and staked the land and signed a  12 number of affidavits claiming that those were not  13 Indian settlements.  14 Q   How many of the signatories of -- how many Crown  15 grants were issued under the South African War Land  16 Grant Act to the signatories of that petition under  17 tab 36?  18 A   Tab 36?  19 Q   Yes.  20 A  Well, John Gray was one of the people who had South  21 African scrip.  Whether he took a Crown grant under  22 the scrip I would have to check the records to be sure  23 of.  He -- he also staked land for a number of people  24 who got Crown lands using the scrip.  He sold his own  25 scrip, as I recall, but I think he then acquired other  26 scrip that he used either to sell to other people or  27 get a Crown grant with.  But I wouldn't trust my  2 8 memory without checking the record.  29 Q   Yes.  I couldn't find in the documents that you placed  30 before us --  31 A   Yes.  32 Q   -- Any such record as you've now referred to.  33 A   I have such records, and I believe that they should  34 show up at tab 7 or 8 in part.  35 Q   That's what I examined.  Now, you made --  36 A   If you'll allow me I'd like to check.  37 Q   You can do that if you wish, but I don't require you  38 to do it.  39 A  Well, I would like to do it, because I feel quite  40 certain it should be here.  41 Q   All right.  If you wish.  42 A   I don't like to leave it as it is, because --  43 Q   No.  I'm giving you all the opportunity you want.  44 A   I'll go to the short one first.   If you will look at  45 page three under tab 7 you will see that Mr. Gray was  46 the original scriptee, the original receiver of South  47 African War Land scrip, folio 73, and that scrip was 17633  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 purchased from Mr. Gray by Burdick and Pound, who were  2 among the largest dealers -- wholesalers of scrip in  3 the area.  4 Q   Mr. Gray did not have a Crown grant that emanated from  5 the South African War Land scrip?  6 A   Excuse me.  I said that I knew he was an original  7 scriptee, that I thought he had gotten rid of his own  8 scrip, but then acquired other scrip which he either  9 took a Crown grant with or sold again.  10 Q   All right.  Well, my question --  11 A   Now, I'm simply pointing out that he was in fact a  12 scriptee.  He dealt with Burdick and Pound.  And I  13 will now look for the second part of the statement  14 that I made.  15 Q   Are you saying that Gray was a veteran?  16 A   I believe he was.  17 Q   Yes.  All right.  Go on.  18 A   In general the people who got scrip were veterans.  19 Q   Yes.  20 A   In some other cases other people were allowed to have  21 scrip who had not actually gone to South Africa and  22 were not veterans themselves.  And I can't be certain  23 without checking the records as to his status in  24 receiving the scrip.  Originally it was only people  25 who had served in South Africa.  Several of the  26 amendments expanded the eligible receivers of scrip.  27 Well, evidently I'll have to look in the larger tab to  28 find Mr. Gray again.  29 MR. RUSH:  It might be an entry that appears on page 19, folio  30 73.  That could be one.  31 A   No.  That's another piece of scrip that was issued to  32 Mr. Gray, but he was not the one who took the Crown  33 grant in that instance.  Again, the act had been  34 amended to allow some people to get double scrip.  35 Well, I don't see it running through quickly,  36 although I have a clear recollection, I believe, of  37 Mr. Gray also taking a Crown grant with scrip, or  38 selling the scrip to someone else.  I'm not exactly  39 positive.  However, it doesn't matter.  I don't  40 believe that my testimony was that the people who  41 signed that petition were necessarily scrip grantees  42 using scrip.  43 MR. GOLDIE:  44 Q   No.  I just wanted to understand that so far as we  45 could make out not one of them obtained their Crown  46 grants through --  47 A   Excuse me. 17634  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Through the South African War Land Grant scrip?  2 A   I'm sorry.  What tab is that petition, please?  3 Q   It's tab 36.  4 A   Thank you.  5 Q   And to put it in context for you I have placed under  6 tab 57 of my collection an extract from Dr. Large's  7 book the River of Destiny.  8 A   I'm sorry.  What tab are you on?  9 Q   Tab 57.  And —  10 A   Excuse me.  Before you go on to that if you would like  11 me to finish the names on the petition.  I know that  12 Mr. McPhee was one of the people that was staking land  13 which the agent reported to be Indian settlements in  14 the, I think, Burns Lake area.  And there's a bit of  15 correspondence about the problems there.  I think Mr.  16 McPhee also used South African War Land scrip himself.  17 I will have to check that as well.  18 Q   All we can do, Dr. Lane, is go by the material you've  19 placed in front of us.  I'm unable to find --  20 A  Well, I'm able to find what you are unable to find.  21 Q   Yes.  And I have placed under tab 57 an extract from  22 Dr. Large's well-known book --  23 A   Excuse me.  24 Q   -- In which he refers to some of these people, and one  25 in particular as having been a settler in 1894?  26 A   57?  27 Q   Yes.  You're familiar with Dr. Large's book?  28 A   Oh, yes.  29 Q   Yes.  30 A   You mean the popular book by the doctor?  31 Q   Well, a popular book by a person who grew up and  32 practiced medicine in the area.  33 A   That's right.  Not a trained historian.  34 Q   He's a member of historical societies, I believe.  35 A   I said not a trained historian.  36 Q   Nor are you, are you?  37 A   I won't answer that, sir.  38 Q   All right.  Let's go back to Dr. Large.  39 A   Yes.  40 Q   He speaks of the -- the list of settlers in Hazelton  41 in 1894.  Gabriel LeCroix is one of them.  And he's  42 one of the signatories to the petition, is he not?  43 A   That's correct.  44 Q   He speaks —  45 A   He was the first settler, I believe, in the Bulkley  46 Valley.  47 Q   He speaks of Fred G. Heal, who was one of the first to 17635  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 settle, but the town was staked by John Dorsey in  2 1904?  Dorsey is not a signatory, but Heal is, as I  3 understand?  4 A   You mean signatory to the petition?  5 Q   At any rate, your evidence, Dr. Lane, is that you're  6 not suggesting that the people on this petition were  7 people who obtained their title through the South  8 African War Land Grant?  9 A   I don't believe I made such a statement.  And what I  10 would say is several of them were busy staking land  11 for people who were using scrip.  These were local --  12 Q   Yes.  13 A   Let me try to make this clear.  These were local  14 people who were on the scene, and they acted for  15 absentee people who had never come to the valley, but  16 had collected scrip.  17 Q   Are you referring to everybody in the petition?  18 A   Of course not.  I said several of those people.  19 Q   Yes.  You've given your evidence on that.  20 A   I said they staked land.  John Gray, who was the man  21 who surveyed the piece of land at the north end of  22 Tyee Lake that was eventually purchased is the only  23 such -- the exception to the rule.  The only such  24 purchase that I'm aware of at that time is the  25 purchase by Jean Baptist of that small piece of  26 land --  27 Q   Yes.  28 A   -- At the north end of Tyee Lake.  And he paid John  29 Gray to survey the land.  30 Q   Now, at page 16916 of volume 231 you referred to Dr.  31 Wrinch as a medical doctor missionary with the  32 Methodist Church.  And there is, I believe, still a  33 hospital named for him in Hazelton.  I have placed, as  34 I say, under tab 57 part of Dr. Large's book.  At  35 pages 60 to 61 he makes reference to Dr. Wrinch who in  36 fact founded the first hospital; is that not correct?  37 A   That's correct.  38 Q   Yes.  Thank you.  39 A   Dr. Large, by the way, in his book in the chapter that  40 deals with the Bulkley Valley makes reference to the  41 fact that there was mass land speculation in the early  42 days --  43 Q   Yes.  44 A   — In the valley.  45 Q   Yes.  And he quotes from a document that you placed in  46 evidence this morning.  47 Now, at tab 231 -- I'm sorry, volume 231, page 17636  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 16294, line five.  I'm sorry.  2 MR. RUSH:  16924.  3 MR. GOLDIE:  It must be 924.  4 Q   Now, at page 16923 there's a discussion of provincial  5 orders-in-council, and his lordship said at line 40:  6  7 "THE COURT:   All right.  But this  8 reversionary right, was the Provincial  9 Government was claiming --  10 A   That's right.  11 THE COURT:   — the lands back, if what, if  12 it wasn't used?  13 A   If the Federal Government got a release  14 from the Indians for a part of the land  15 that was reserved to them in order to  16 sell that land to raise revenue for  17 Indians or to lease it for such a  18 person -- for such a purpose.  The  19 orders-in-council of the Provincial  2 0 Government stated that the moment the  21 Indian release was received the land  22 reverted totally to the Province, as I  23 understand it.  2 4 THE COURT:   All right.  Thank you.  And  25 that started in 1907?  2 6 A   Yes."  27  28 Did you understand his lordship's question to mean  29 the claim of the province to the reversionary right  30 started or was first asserted in 1907?  31 A   No.  I understood him to be asking me the date of the  32 order-in-council that was under discussion.  33 Q   I see.  Because the province made a claim to the  34 reversionary right long, long before that?  35 A   I believe this was the first order-in-council.  36 Q   Well, I said the province laid claim to the  37 reversionary interest long before that?  38 A  Was that a question or a statement?  39 Q   Yes, I am asking you --  40 A   Sorry.  41 Q   -- Did, to your knowledge, the province laid claim to  42 the reversionary right long before 1907?  If you  43 don't —  44 A   I know that the province laid absolute claim to the  45 land.  I'm not certain at what date the reversionary  46 interest matter was raised to the Dominion government.  47 Q   Well, what I — 17637  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Certainly the order-in-council that was passed in 1907  2 was, to my knowledge, the first order-in-council  3 providing for such.  4 Q   Well, I'm going to suggest to you that if the  5 province's claim was made known to the Dominion by  6 1875 --  7 A  Well, if you can show me a document that states that  8 I'll be happy to look at it.  9 Q   All right.  Could we look at tab 36 in my gray book,  10 which is Judge Begbie's bench book with respect to the  11 case in 1885 dealing with the Songish Indian reserve.  12 Do you have tab 36?  13 A   I do.  14 Q   And if I may —  15 A   Oh, I don't.  16 Q   -- Refer you to the typescript:  17  18 "Order C 5 November 1875 cited in yellow  19 book.  If Indian reserve..."  20  21 I take that to be divided.  22  23 "Portion taken away is to revert to  24 Province."  25  26 Do you see that?  2 7 A   I do.  28 Q   Now, I suggested to you earlier that the reference to  29 the yellow book was to the -- to the paper printed by  30 the province?  31 A   Yes.  32 Q   And I'm going to refer you to page 163 of that  33 document.  Now, I had it here a minute ago.  Excuse  34 me, my lord.  While we're looking for that I direct  35 your attention to the next part of Judge Begbie's  36 order.  37  38 "Interim order until Saturday 11:00 a.m..  39 Mr. Fell for defendants asked for security  40 for costs.  Refused.  Semble.  If land  41 required for Indians it is a breach of trust  42 to take it away.  If not required for  43 Indians it belongs to the Provincial  44 Government under the order-in-council 1875."  45  46 Now, I'm referring you to the document papers  47 connected with the Indian land question, and I refer 1763?  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 to page 163, and there is the report -- I'm sorry.  2 Yes.  But I'll start with page 161, which is the  3 report of the Minister of the Interior of the day,  4 namely October 5th, 1875, which is adopted by the --  5 by the federal order-in-council referred to in the  6 preceding page.  And at page 163, item 5:  7  8 "That each reserve shall be held in trust  9 for the use and benefit of the nation of  10 Indians to which it has been allotted, and  11 in the event of any material increase or  12 decrease thereafter of the number of a  13 nation occupying a reserve such reserve  14 shall be enlarged or diminished, as the case  15 may be, so that it shall bear a fair  16 proportion of the members of the nation  17 occupying it.  The extra land for any  18 reserve shall be allotted from Crown lands,  19 and any land taken off a reserve shall  20 revert to the province."  21  22 Now, would you not agree with me that that is a  23 recognition, not that it has any material bearing on  24 this case, of the reversionary right before 1907?  25 A   This is a memorandum setting out the suggestions of  26 Mr. Walkum and the suggestions of Mr. Duncan --  27 Q   Right.  28 A   -- With respect to what is being proposed.  29 Q   And that's the genesis of the Indian Reserve  30 Commission, isn't it?  31 A   The Indian Reserve Commission was established because  32 of the differences between the two governments.  And  33 the commission was supposed to deal with setting out  34 reserves, but you're asking me whether the  35 propositions that were being put forward here were not  36 proof, as I understood your question, that the  37 province had asserted reversionary rights?  38 Q   Yes.  39 A  And I suggest to you that this is a different matter.  40 These are propositions being put forward by the -- by  41 Mr. Duncan and by Mr. Walkum that are, I would say, of  42 a different weight than an order-in-council passed by  43 the government such as the one that was done in 1907.  44 I'm not saying that the idea first arose in 1907.  I  45 said as far as I knew that was the first  46 order-in-council which the Provincial Government  47 passed declaring that that was the case of any lands 17639  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  Q  5  6  A  '  7  8  9  10  11  12  13  14  15  1  16  17  18  19  20  21  22  23  24  25  26  27  Q  28  A  29  30  31  32  Q  33  A   ]  34  Q  35  36  37  A  38  Q  39  40  A  41  Q  42  43  44  THE COURT:  45  A  46  MR. GOLDIE  47  Q  not -- not being used by the Indians could not be sold  or leased and that they would revert to the province.  I think there's a difference between these two items.  That memorandum is adopted by the order-in-council,  was it not?  What was adopted by the order-in-council was that the  reserve commission, if I recall it correctly, should  be set up to deal with these matters, and that two  things would happen.  If it was necessary to expand  the reserves they would be expanded.  If it was  necessary to reduce them for the reasons asserted they  would be reduced.  What happened in the intervening  period, as I recall the documentary record, was that  there was a resistance on the part of the Provincial  Government to allow the reserves to be expanded.  And  there was a dispute ongoing between the two levels of  government about this matter, or about whether further  reserves would be made, as I recall the situation, and  I'd have to check to get the exact dates.  The  province was refusing to confirm the reserves that the  commission was setting out, and as a result the Indian  superintendent, the Dominion representative in the  province, said that he couldn't proceed further with  respect to making reserves since the province was  resisting finalizing any of the arrangements that were  being made.  Certainly.  Therefore I still feel that these two statements,  certainly the idea was floated, but the  order-in-council in 1875 and the one in 1907 are not  of the same weight, in my mind.  Going back to Judge Begbie's bench book --  M'hm.  -- Under tab 36.  Would you turn to the page that has  at the top right-hand corner the word -- the figures  127.  Yes, I have it.  And down at the bottom is the paragraph beginning with  the words "Behind the parties to this action".  I beg your pardon?  About two-thirds of the way down the page, 127, the  paragraph beginning with the words "Behind the parties  to this action".  Indented.  It's indented.  Oh, I see it now.  Yes.  Thank you. 17640  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  A  5  Q  6  7  8  9  10  11  12  13  14  A  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  24  25  A  26  Q  27  MR. RUSH:  28  MR. GOLDIE  29  30  Q  31  32  33  34  35  A  36  Q  37  38  A  39  Q  40  A  41  42  1  43  Q  44  A  45  MR. GOLDIE  46  THE COURT:  47  "It is easy to perceive more important  antagonists, the Dominion and the Province."  Yes.  "The Dominion is, I'm told, occupying very  much the position of trustees for the  plaintiffs, and certainly the employers of  the defendants, the Province, claiming the  reversion of all Indian reserved lands so  soon as they cease to be reserved for Indian  use. "  Yes.  That's Judge Begbie's characterization of the position  of the parties?  That's correct.  Yes.  He's talking about the reversionary interest  there, isn't he?  Yes.  Thank you.  Now, I have one other question.  You put  into evidence now Mr. Newcombe's letter to Sir Wilfred  Laurier written on the train on his way to London.  I  think it's in the --  I think he could only take the train to Quebec.  Quebec.  You're right.  It's a memorandum as well.  :  It may be a memorandum.  I'm open to correction at  this time.  Would it not be important to acknowledge that the form  of agreement under PC751, which was the agreement to  be entered into with the Indians upon determination of  their title by the Exchequer Court -- do you have the  context of my question?  Yes.  I know PC751 that you're referring to.  Yes.  And there's a form of agreement that you filed  with it?  Yes.  Do you know who drafted that agreement?  I don't recall.  If I knew -- I guess my answer is  this, I don't know whether I knew, and if I did I  don't recall now.  I see.  Well, was Mr. McKenna involved in it?  I've just answered your question.  :  I see.  All right.  Thank you.  Now, my lord --  What do you think, Mr. Goldie, are you going to  press on? 17641  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. RUSH:  No.  I'm — I just have one thing.  This is — I'm —  2 my questions are finished.  I have -- oh, my lord, I  3 tender on the same basis as my friend Mr. Rush has  4 tendered his books of documents the two books of  5 documents that I have referred Dr. Lane to.  It's  6 Exhibits 1056 with tab numbers and 1057 with tab  7 numbers.  8 THE COURT:  Well, it would have to be, as you said, on the same  9 basis as Mr. Rush's collection.  10 MR. GOLDIE:  Yes,  11 THE COURT:  All right.  There being no contrary voices heard —  12 MR. RUSH:  I have nothing further to add than the discussion of  13 yesterday.  14 THE COURT:  Those numbers which we've reserved may be assigned  15 to those two books.  16 THE REGISTRAR:  Yes, my lord.  17  18 (EXHIBIT 1056:  Cross-exam documents Dr. Lane - Vol.1)  19  20 (EXHIBIT 1057:  Cross-exam documents Dr. Lane - Vol.2)  21  22 MR. GOLDIE:  Now, I have been -- I have obtained the cumulative  23 document list that my friend sent to me in response to  24 my request that we be advised of the documents upon  25 which Dr. Lane relies, and I propose -- and I don't  26 know whether she can identify these.  27 MR. RUSH:  There are two lists already in evidence.  One is  2 8 found at tab 2 of volume 1, and the other is found at  29 tab 3 of volume 1.  That's Exhibit 1038.  30 THE COURT:  These are different — this is a different  31 collection, is it?  32 MR. RUSH:  I don't know if it is or it isn't, my lord.  I simply  33 draw this to your lordship's attention that these two  34 lists -- these are chronological lists as opposed to  35 index lists of documents, and I do know that not every  36 document that has appeared in the document books  37 appeared in that list.  I believe I'm right on that.  38 MR. GOLDIE:  I can confirm that.  All I wanted Dr. Lane to do  39 was to confirm that her list is at tab 2 and 3, but  40 there may be additional ones.  41 MR. RUSH:  There are two lists at tab 2, my lord.  42 THE COURT:  Yes.  43 MR. GOLDIE:  Yes.  All right.  44 Q   Now, in that case, Dr. Lane, I'm showing you what my  45 friend has referred to --  46 THE COURT:  Where are you, Mr. Goldie?  47 MR. GOLDIE:  This is tab 2 of Dr. Lane's volume 1. 17642  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Are those the documents that constitute your selection  2 for the purposes of your assignment?  3 A  Well, these are lists that I have prepared at various  4 times of documents on which I was relying either for  5 the truth of the matters contained in them or not, as  6 the case may be, or in some cases a document in which  7 some things I felt were reliable and others were not.  8 Q   I just want to see if this is your selection.  9 A   That's correct.  10 Q   All right.  Thank you.  And then we have the selection  11 in --  12 A   There are several such lists, however.  13 THE COURT:  There are two in tab 2?  14 A   Two at tab 2, another one at tab 3.  15 MR. GOLDIE:  16 Q   Right.  17 A   Yes, these are my lists.  18 Q   Right.  And then the documents which are actually in  19 the Exhibit books 1038, 1039, 1040 and 1041.  2 0    THE COURT:  Yes.  21 MR. GOLDIE:  22 Q   Those constitute the selection of documents made by  23 counsel for the purposes of the case?  24 A   Not entirely.  In some cases I suggested that there  25 was duplicative material that needn't be --  26 Q   Oh, yes, indeed.  I'm not suggesting that there isn't.  27 In fact a number of documents --  28 A   I believe these are a culling from those lists plus  29 some additional items which were not listed  30 originally.  31 Q   Yes, that's correct.  32 A   Yes.  33 Q   So that represents primarily Mr. Rush's selection as  34 counsel of the case of the documents relevant to your  35 testimony?  36 A  Well, he consulted with me on a number of the  37 decisions.  38 Q   Yes.  39 A   If not all.  I don't know.  40 Q   M'hm.  All right.  Now, the outstanding matters that I  41 asked you to look at first was the list of treaties  42 made by Great Britain with native peoples in what is  43 now Canada.  44 A   Yes.  45 Q   And, secondly, whether you can lay your lands on  46 Captain Clark's proposals in greater detail.  47 A  My recollection is that I have the second -- I should 17643  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 be able to do both of those with -- those I do not  2 find burdensome.  It was the more open ended requests  3 that if they cannot be more focused I frankly find  4 onerous and unduly burdensome.  5 Q   All right.  And then I wanted to know what Douglas'  6 reports on treaties to London were?  7 A   Yes.  That I can do.  8 Q   Yes.  9 A   Those are focused matters where I don't have a  10 problem.  11 Q   Yes.  And then I wanted to know in reference to your  12 evidence the documents on need for extinguishment  13 other than those with regard to the Cowichan?  14 A  Again, I can supply that.  15 Q   Yes.  Then I wanted to know the documents that you  16 referred to in respect of the process you described  17 you went through in connection with Mr. Trutch's  18 statement, or his letter of the 13th of January 1870,  19 and of Governor Musgrave's covering dispatch.  And in  20 order to assist you, if I could, I'm looking for the  21 reference I made earlier in the day, my lord, to the  22 exchange that -- that -- the objection I raised, and  23 the witness was asked to state what she had done in  24 evaluating, if I remember her word correctly, Mr.  25 Trutch's letter.  My lord, I'm sorry, I can't lay my  26 hands on that, and perhaps if I provide that to the  27 court tomorrow morning.  28 THE COURT:  Certainly.  29 MR. GOLDIE:  Yes.  It's — Ms. Sigurdson has given it to me.  At  30 transcript volume 230, page 16797, the witness was  31 asked, "have you evaluated this memorandum?  Answer  32 yes."  And there was an objection taken to that.  And  33 I said "That's a matter of argument."  And your  34 lordship said:  35  36 "I think what the witness can be asked is  37 for a list of references to documents which  38 I can consider in assessing the correctness  39 or otherwise of what Mr. Trutch has  40 written."  41  42 And that's what I'm asking for, my lord.  That's  43 with respect to Trutch.  And the 13th of January 1870,  44 Musgrave's covering memorandum.  And I believe I had  45 one other.  Oh, Laird's memorandum about -- Laird's  46 statement that the witness read that Canada could not  47 possibly have known the state of affairs in British 17644  B. Lane (for the Plaintiffs)  Cross-exam by Mr. Goldie  1 Columbia at the time of the union.  It's those three  2 documents, my lord.  3 THE COURT:  Well, I don't think that I can at this time assess  4 the difficulty of those requests, and I think I'll  5 leave the matter as I attempted to pronounce earlier  6 on this question earlier this afternoon.  7 MR. GOLDIE:  That concludes my cross-examination.  8 THE COURT:  Ms. Koenigsberg, you can finish tomorrow to allow  9 your friend a chance to re-examine tomorrow, can you?  10 MS. KOENIGSBERG:  I believe, my lord, Mr. Rush told me he had a  11 lengthy re-examination.  I have a short  12 cross-examination, which I would be happy to proceed  13 with for approximately ten minutes in the morning, or  14 if the witness is up to it, and we all are up to it I  15 can do it now.  16 THE COURT:  I think madam reporter has been going for a full  17 hour and a half now since the last adjournment, and we  18 are going to be resuming tomorrow, and we've got  19 almost -- are you saying your cross-examination will  20 be about ten minutes?  21 MS. KOENIGSBERG:  With luck, yes.  Quite brief.  22 THE COURT:  I think we'll start at ten o'clock tomorrow morning  23 then.  24 THE REGISTRAR:  Order in court.  Court stands adjourned to ten  25 o'clock tomorrow morning.  26  27        (PROCEEDINGS ADJOURNED TO JUNE 14, 1989 AT 10:00 a.m.)  28  29 I hereby certify the foregoing to be  30 a true and accurate transcript of the  31 proceedings herein to the best of my  32 skill and ability.  33  34  35  36 Peri McHale, Official Reporter  37 UNITED REPORTING SERVICE LTD.  38  39  40  41  42  43  44  45  46  47


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