11 2 3 IPPERWASH PUBLIC INQUIRY 4 5 6 7 ******************** 8 9 10 BEFORE: THE HONOURABLE JUSTICE SIDNEY LINDEN, 11 COMMISSIONER 12 13 14 15 16 Held at: Forest Community Centre 17 Kimball Hall 18 Forest, Ontario 19 20 21 ******************** 22 23 24 August 19th, 2004 25
21 Appearances 2 3 Derry Millar ) Commission Counsel 4 Susan Vella ) 5 Donald Worme, Q.C. ) 6 Katherine Hensel ) 7 8 Murray Klippenstein ) The Estate of Dudley 9 Vilko Zbogar ) (np) George and George Andrew 10 Andrew Okin ) Family Group 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) Residents of 16 Kevin Scullion ) Aazhoodena 17 (Army Camp) 18 19 William Henderson ) Kettle Point & Stony 20 Jonathon George ) Point First Nation 21 22 Walter Myrka ) Government of Ontario 23 Kim Twohig ) (np) 24 Sue Freeborn ) 25
31 APPEARANCES (cont'd) 2 3 Janet Clermont ) Municipality of 4 David Nash ) Lambton Shores 5 6 Peter Downard ) The Honourable Michael 7 Bill Hourigan ) (Np) Harris 8 Jennifer McAleer ) 9 10 Nancy Spies ) (Np) Robert Runciman 11 Alice Mrozek ) (Np) 12 13 Harvey Stosberg ) (Np) Charles Narnick 14 Jacqueline Horvat ) 15 16 Douglas Sulman, Q.C. ) Marcel Beaubien 17 Trevor Hinnegan ) (Np) 18 19 Mark Sandler ) Ontario Provincial 20 Andrea Tuck-Jackson ) (np) Police 21 22 Ian Roland ) Ontario Provincial 23 Karen Jones ) Police Association & 24 K. Deane 25
41 APPEARANCES (cont'd) 2 3 Julian Falconer ) (np) Aboriginal Legal 4 Brian Eyolfson ) Services of Toronto 5 Julian Roy ) 6 7 Al J.C. O'Marra ) Office of the Chief 8 Coroner 9 10 William Horton ) Chiefs of Ontario 11 Matthew Horner ) (Np) 12 Kathleen Lickers ) (Np) 13 14 Mark Frederick ) (np) Christopher Hodgson 15 Craig Mills ) 16 17 David Roebuck ) (Np) Debbie Hutton 18 Anna Perschy ) (Np) 19 20 21 22 23 24 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 JOAN MARGARET HOLMES, Resumed 6 Continued Examination-in-Chief 7 by Ms. Susan Vella 7 8 Cross-Examination by Murray Klippenstein 52 9 Cross-Examination by Peter Rosenthal 93 10 11 12 13 14 15 Certificate of Transcript 193 16 17 18 19 20 21 22 23 24 25
61 LIST OF EXHIBITS 2 Exhibit No. Description Page No. 3 4 P-10 Excerpt from the Royal 5 Commission on Aboriginal 6 People's Final Report from 7 1996, paragraphs 1,013 to 8 1,038. 64 9 P-11 Excerpt of pages from Lisa 10 Phillips Valentine's Thesis 159 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon Commencing at 10:00 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session. The Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER SIDNEY LINDEN: Good 10 morning. 11 MS. SUSAN VELLA: Good morning. 12 13 JOAN MARGARET HOLMES, Resumed: 14 15 THE WITNESS: Good morning. 16 17 CONTINUED EXAMINATION-IN-CHIEF BY MS. SUSAN VELLA: 18 Q: Yesterday, you began your review of 19 the various periods of negotiations which ensued after 20 World War II concerning the possible return of Camp 21 Ipperwash which was formerly the Stony Point Reserve of 22 the Kettle Point and Stony Point Band. 23 I would just like to briefly recap some of 24 the events that you testified to at the end of the day 25 yesterday. I understand that the negotiations, the first
81 round of negotiations, began as early as 1946? 2 A: That's correct. 3 Q: And at that time it was the 4 Department of National Defence which initiated the 5 discussions? 6 A: Yes. 7 Q: And those early negotiations were 8 primarily as between the Department of Indian Affairs and 9 the Department of National Defence? 10 A: That's correct. 11 Q: Now, why wouldn't the Band be 12 involved in direct negotiations with the Department of 13 National Defence in these early -- in this early period? 14 A: Typically, at that period of time, 15 when a First Nation or an Indian Band had any business 16 they always dealt through the Department of Indian 17 Affairs and the Department of Indian Affairs was charged 18 with representing their interests. 19 Q: All right. And I understand that the 20 early discussions carried on until about 1948? 21 A: That's correct. 22 Q: And you took us through the 23 correspondence yesterday that detailed those 24 negotiations. Now, you also testified yesterday that the 25 Department of National Defence terminated the
91 negotiations, because it decided to turn the facility 2 into a cadet camp? 3 A: That's correct. 4 Q: And previously it had been an 5 advanced infantry training centre? 6 A: That's correct. 7 Q: Were there any further negotiations 8 after the 1940s? 9 A: Yes, there was a -- a brief attempt 10 to negotiate in the 19 -- around 1963. The -- at that 11 time the Department of National Defence representatives, 12 stated that they -- that they still needed the camp and 13 that it was not likely that it would be returned in the 14 foreseeable future. So, that -- that ended that round of 15 -- of negotiation or attempt to get the camp back. 16 Q: And again, these negotiations were 17 held as between the Department of Indian Affairs and the 18 Department of National Defence? 19 A: That's correct. 20 Q: It seems that Canada was effectively 21 negotiating against itself, in relation to whether or not 22 Camp Ipperwash would be maintained or returned to the 23 Kettle Point and Stony Point Band. 24 I'm just wondering if you can comment on 25 the political dynamics that -- that would be involved in
101 such a negotiation? 2 A: Well, yes, this was -- this would 3 typically occur if the Department of -- of Indian 4 Affairs, which is a Federal Department, represented by a 5 Federal Minister in Cabinet. 6 If they were dealing on an Indian issue 7 that involved -- fell into the jurisdiction of another 8 Federal Department such as the Department of National 9 Defence, then the Minister of Indian Affairs would be 10 negotiating with the Minister of the other Federal 11 Department, in this case the Department of National 12 Defence. 13 So, those are essentially two (2) Federal 14 Ministers who are both in Cabinet, and are negotiating 15 with each other; the Department of Indian Affairs 16 Minister having his primary responsibility of 17 representing the interests of the Department of Indian 18 Affairs, the Indian Band and the Crown, and the other 19 Minister, in this case Department of National Defence, 20 would be looking after the interests of the Department of 21 National Defence, but also of the Crown. 22 So, it -- certainly on the face of it, it 23 appears that there's some -- some tension between -- 24 between the Ministers, because they're both Ministers of 25 the same government.
111 Q: Thank you, yes. Now, in the third 2 round of negotiations, which you talked about yesterday, 3 they occurred in 1972, when Jean Chretien, the then 4 Minister of Indian Affairs, corresponded with Donald 5 MacDonald and then Edgar Benson (phonetic), who were the 6 respective Ministers of the Department of National 7 Defence. 8 And you took us to some of the 9 correspondence, which revealed the respective positions 10 of these Ministries. We'll recall, for example, that the 11 Department of National Defence terminated those 12 negotiations, ultimately, notwithstanding Mr. Chretien's 13 stated concerns about the -- as he put it, the moral 14 responsibility of Canada, with respect to the former 15 reserve lands and the concerns that there might be civil 16 disobedience on the part of the band or members, in the 17 event that these matters weren't attended to. 18 And you took us through that yesterday? 19 A: That's correct. 20 Q: Now, based on your historical review 21 of the record, up to the 1970s, was there any civil 22 disobedience documented on the part of the band, in 23 relation to the return of the former Stony Point Reserve? 24 A: Not that I'm aware of. 25 Q: And then after the failed 1972
121 negotiations, did the band itself become more directly 2 involved in negotiations with respect to the possible 3 return of Camp Ipperwash? 4 A: Yes, in 1973, the -- the First 5 Nation, in conjunction with the National Indian 6 Brotherhood, started to negotiate directly with the 7 Department of National Defence. 8 Q: All right. And perhaps you can begin 9 your review today with that event and the discussion 10 begins at page 60 of your report. 11 A: Thank you. Okay. In -- as I said, in 12 -- in 1973 you see a couple of pieces of correspondence 13 from Jean Chretien. He's writing to the -- the President 14 of the National Indian Brotherhood and at that time the 15 National Indian Brotherhood was the -- the precursor to 16 the Assembly of First Nations. It was a national 17 association of -- of chiefs. 18 And the National Indian Brotherhood and 19 the First Nation were negotiating directly with the 20 Department of National Defence and we see letters from 21 Chretien in June 1973 and September 1973. And just for - 22 - for information purposes, those are my document numbers 23 four-o-two (402) and four-o-three (403) but they don't 24 appear in the tabs. 25 Basically, Chretien is congratulating
131 George Manual and being very encouraged by the fact that 2 negotiations have, in fact, begun and the Department of 3 Indian Affairs is not active in those negotiations but 4 they do have an aide from the Minister's office who 5 attends the -- the meetings and keeps the -- the Minister 6 of Indian Affairs informed on the -- the progress. 7 Q: All right. And just for the record, 8 those would be Inquiry Document Numbers 4000402 and 9 4000403. 10 A: And the -- the Department of Indian 11 Affairs was very encouraged by the fact that there was 12 negotiations going on and to the extent that in March 13 1974, the Department of Indian Affairs advanced a sum of 14 money, sixty-six thousand dollars ($66,000), to the 15 Chippewas of Kettle Point and Stony Point to give them an 16 opportunity to -- to purchase some acreage next to the 17 reserve, I think it was seventy (70) acres. And that -- 18 that advance -- the sixty-six thousand dollars ($66,000) 19 was an advance against the -- the compensation that the 20 Department believed that they would be getting as a 21 result of the negotiations. 22 At that time, the Department of Indian 23 Affairs would not, or could not -- didn't have the -- the 24 physical ability to give that money to the First Nation 25 in order to buy the land so it was an advance against
141 their -- their expected settlement which would then be 2 repaid and that -- the information related to that is at 3 my Document 404. 4 Q: Inquiry Document 4000424. 5 A: And at that time when that money was 6 advanced they expected -- or Chretien expected that the - 7 - the settlement would -- would be received early the 8 next fiscal year. However, that did not occur. There 9 was no -- no settlement forthcoming at that time. 10 No agreement was reached and it's not 11 until 1980 that we see a proposal for a -- a partial 12 settlement. And by this time, the -- some of the people 13 who were descendants of the -- the Stony Point, the 14 original Point inhabitants -- were becoming disenchanted 15 or -- or wanting to be separate from the official Indian 16 Act Band Council -- the Chippewas of Kettle Point and 17 Stony Point. 18 So, we see in 1980 that there is a 19 proposal that goes before the First Nation and it's my 20 Document 315. It's not in a tab but it's -- it's 21 outlined in -- in the report on page 61 and I'll go 22 through the -- the terms that were in that proposal. 23 Q: That would be Inquiry Document Number 24 4000315. 25 A: And this -- this document was part of
151 an information package that went out to the Band 2 membership to explain what the -- what the terms of the 3 proposal were. And I'm just going to go through them. 4 They're at the top of page 61 and they're 5 numbered 1 to 8. So: 6 "Number 1: All of Camp Ipperwash is 7 included and not just the part taken 8 from us in 1944." 9 This is a direct quote from this 10 informational material. When they're talking about all 11 of Camp Ipperwash, that includes the section of the 12 former Stony Point Reserve that had been surrendered and 13 then was purchased by DND. 14 "Number 2: We will receive 15 approximately two million four hundred 16 and ninety thousand dollars 17 ($2,490,000) representing additional 18 compensation, interest and expenses." 19 And I just want to elaborate a little bit 20 on that. When -- when the negotiations were originally 21 taking place in 1974 with the Indian Brotherhood there 22 was an evaluation, a study, an appraisal study done of 23 the -- the -- the -- to -- to evaluate or to appraise the 24 -- the value of the land that had been taken. 25 And so, part of this -- this money comes
161 from the recommendations of that evaluation report which 2 had come to the conclusion that when the -- when the 3 Kettle Point and Stony Point Band was compensated for the 4 Stony Point Reserve the fifty thousand dollars ($50,000) 5 in 1942 that that fifty thousand dollars ($50,000) was 6 well below market value. 7 So, in number 2 here what we see is this 8 sum of money where it says, "representing additional 9 compensation, interest and expenses"; that additional 10 compensation was based on the findings of that earlier 11 evaluation that gave a value to the land, interest that 12 would have been earned on that. 13 And "expenses"; the expenses in these 14 kinds of settlements, the expenses are usually legal fees 15 and associated fees that people have spent in the course 16 of negotiation. okay. 17 On to number 3 of the proposal: 18 "Mine, minerals and timber rights will 19 be transferred to Indian Affairs now 20 for our benefit." 21 And the -- the thing I wanted to point out 22 to that, those rights, those resource rights being 23 transferred to the Department of Indian Affairs for their 24 use and benefit is not the same as them coming back to 25 reserve status.
171 So, that means that those rights are held 2 and controlled by Indian Affairs but exclusively for the 3 benefit of the First Nation. 4 "Number 4: When not required by 5 Defence parts or all of Camp will be 6 returned to us at no cost." 7 And you note that "when not required" as 8 part of that. 9 "Number 5: No part of the Camp can be 10 sold without Indian Affairs' approval. 11 Number 6: At regular intervals, 12 Defence will consider its -- its need 13 to continue its use of all or part of 14 the camp. 15 Number 7: We will have a designated 16 contact with Defence to see if jobs are 17 available for Band members." 18 And finally: 19 "Number 7 (sic): This proposal deals 20 only with the band's interest. The 21 vote to be held is not a surrender 22 vote. Locatee claims for those who 23 were moved are not being affected." 24 So, that was the -- the draft -- the 25 proposal that came forth in 1980. Apparently there --
181 there was a vote on -- on this agreement in September of 2 1981 and that -- that vote passed 80 percent voted in 3 favour of it. 4 Q: And you're talking about who? Who 5 voted? 6 A: The -- it would be the registered 7 band members of Kettle Point and Stony Point Band. 8 Around this time there's also -- there's 9 not unanimous agreement amongst the First Nation, and 10 I'll -- I'll read you a -- a comment on -- on the 11 situation at the time. And this comment is taken by -- 12 from a thesis written by a woman named Helen Roos. And 13 it appears in the bottom half of the page on page 61. 14 I'll just read from it. 15 According to this author, this is the way 16 she characterizes the situation at this time. She said: 17 "The Stony Point grievance resulted in 18 a deep schism between the two (2) 19 communities." 20 And here by the two (2) communities, she's 21 talking about the people from Kettle Point and the people 22 who formerly resided at Stony Point: 23 "During the 1980s the Stony Point Band 24 organized into the Stony Point Steering 25 Committee, which later became the Stony
191 Point Community Association. The 2 primary organize -- the primary aim of 3 the organization was to educate the 4 public and the Kettle Point community, 5 to the fact that the Stony Point group 6 was separate from the larger community. 7 The secondary issue was to lobby the 8 Government and Indian Affairs, to 9 ensure that the locatees and their 10 descendants be recognized as legal 11 heirs and negotiating body in any 12 return of Camp Ipperwash." 13 And that term locatees, if you can 14 remember from yesterday, a locatee is a person who had a 15 location ticket, a -- a permit given by the First Nation, 16 which allowed them to occupy a particular piece of land 17 on the reserve. And in this case she's referring to the 18 people who had been living at -- at Stony Point before 19 the camp had been appropriated. 20 The -- in -- in 1981, the -- the Crown, 21 the Government passed an Order in Council approving the 22 agreement. And I think I'll -- I'll take you to that, 23 that -- so that you can see the wording that -- that the 24 Crown used, and that is Document 316, and it's at Tab 93. 25 Q: The Inquiry document number 4000316.
201 (BRIEF PAUSE) 2 3 A: Okay. This is Privy Council Order 4 1981-499, and I'm going to read through it. It's not too 5 long, the language is a little bit legalistic, but I 6 think we can follow it. 7 It starts off: 8 "Whereas by Order in Council P.C. 2913, 9 dated April 14, 1942, under the 10 authority of the War Measures Act, it 11 was ordered that part of the lands 12 described in the schedule hereto -- 13 hereto, be appropriated for use of the 14 Department of National Defence, and 15 that compensation -- compensation be 16 paid to the Kettle and Stony Point Band 17 of Indians, for the said lands, not to 18 exceed fifty thousand dollars 19 ($50,000), including costs of removal 20 of Indian families, their buildings and 21 chattels. 22 Whereas by the same Order in 23 Council, it was acknowledged that if 24 subsequent to the termination of the 25 war such part of the lands described in
211 the schedule hereto, was not required 2 by the Department of National Defence, 3 negotiations would then be entered 4 into, to transfer such part back to the 5 Kettle and Stony Point Band of Indians, 6 at a reasonable price to be agreed to 7 by mutual agreement. 8 Whereas the Kettle and Stony Point 9 Band of Indians dispute the continued 10 retention of such part of the lands 11 described in the schedule hereto, by 12 the Department of National Defence. 13 Whereas a further part of the lands 14 described in the schedule hereto, were 15 originally part of the Stony Point 16 Indian Reserve, which had been 17 surrendered and sold to private 18 interests, from whom it was acquired by 19 the Department of National Defence for 20 the -- for military purposes, as a 21 result of Order in Council P.C. 7820, 22 of October 6th, 1944." 23 So, here basically they're -- they're 24 setting out the history, that this land was taken under 25 the War Measures Act, that the -- the First Nation
221 disputes the -- the need for National Defence to continue 2 to hold on to that land and that this Order in Council 3 applies not only to that land that was appropriated from 4 the Stony Point Reserve but also the land that was 5 purchased from the third parties apart from the 6 surrendered tract. 7 So, then it goes on and says: 8 "And whereas the potential of all said 9 lands described in the schedule hereto 10 for agricultural or other commercial 11 development is seriously compromised 12 due to the possible presence of 13 unexploded munitions." 14 So, we see, again, this reference to the 15 concern of -- of the -- the usability of the land because 16 there's all these unexploded munitions because it's been 17 used as an army training camp. 18 Then he goes on to say -- or the Order in 19 Council goes on to read: 20 "Therefore, His Excellency, the 21 Governor General in Council on the 22 recommendation of the Minister of 23 National Defence, the Minister of 24 Indian Affairs and Northern Development 25 and the Treasury Board pursuant to
231 National Defence Vote 5 of the 2 Appropriation Act Number 1, 1980-81 is 3 pleased hereby..." 4 And then it sets out the terms. And 5 there's -- there's basically three (3) of them so I'm 6 going to read through. The first one deals with the -- 7 the money: 8 "(a) To direct that a sum not to 9 exceed two million four hundred and 10 twenty-six thousand five hundred 11 thirty-five dollars and ninety-five 12 cents ($2,426,535.95) as compensation 13 for that part of the lands described in 14 the schedule hereto that were 15 appropriated by the Department of 16 National Defence in 1942 under the 17 authority of Order in Council P.C. 2913 18 of April 14, 1942 and a sum not to 19 exceed a hundred and fifteen thousand, 20 eight hundred and eighty-nine dollars 21 and thirty-five cents ($115,889.35) for 22 band expenses and legal fees to be held 23 by Her Majesty in the Right of Canada 24 for the use and benefit of the Kettle 25 and Stony Point Band of Indians."
241 Just a comment on that: So, they -- they 2 lay out the money, the two (2) parts of money, part of it 3 is for expenses, part of it is compensation. And that 4 money is to be held by Canada for the use and -- and 5 benefit of the Kettle and Stony Point Band of Indians; 6 that means put in their trust fund. Now: 7 "(b) To transfer, pursuant to Section 8 35 of the Public Works Act, the 9 management charge and direction of the 10 mines and minerals, whether precious, 11 base, solid, liquid or gaseous in, on 12 or under all the lands described in the 13 schedule hereto and all surface sand 14 and gravel and timber upon all the said 15 lands from the Minister of National 16 Defence to the Minister of Indian 17 Affairs and Northern Development for 18 the use and benefit of the Kettle and 19 Stony Point Band of Indians subject to 20 an agreement satisfactory to the 21 Minister of National Defence respecting 22 the exploration for and exploitation of 23 the said mines, minerals, sand, gravel 24 and timber." 25 So, again, we see that these resources are
251 to be transferred to the Minister of Indian Affairs for 2 the use and benefit. And this is subject -- this -- I 3 believe by reading it and actually someone with legal 4 training would be better at interpreting this than I am, 5 but I -- I believe it reads that the use and benefit -- 6 the use of it -- it's either the use of it or the 7 transfer of it is subject to the agreement of the -- the 8 Minister of National Defence regarding any exploration or 9 exploitation. 10 So, I -- the way that I read that, and I 11 stand to be corrected from a legal scholar, but the way 12 that I read that is that the -- the resources are to be 13 transferred to the Minister of Indian Affairs for the 14 exclusive use and benefit of the First Nation. 15 But the actual exploitation or use of 16 those resources is subject to agreement by the Department 17 of National Defence. So, it's not really falling 18 completely within control of the First Nation, the sense 19 of that, as I understand it. 20 And (c), the final part of this Order in 21 Council says: 22 "To direct, pursuant to Section 35 of 23 the Public Works Act, that upon all the 24 said lands described in the schedule 25 hereto or any part or parts thereof
261 being no longer required for military 2 purposes, the management, charge and 3 direction of the surface thereof shall 4 then be transferred to the Minister of 5 Indian Affairs and Northern 6 Development, and then the lands shall 7 be set apart for the use and benefit of 8 the Kettle and Stony Point Band of 9 Indians, as of further addition to 10 their said reserve. The whole, without 11 any commitment by the Crown, to 12 decontaminate the lands or guarantee 13 that entry upon the lands can be made 14 without risk." 15 So, we see in that paragraph, as I 16 understand it, that the -- the land -- the surface of the 17 land is to be transferred to the Department of Indian 18 Affairs, in order that they can then transfer it to 19 reserve status. 20 There is, however, no undertaking on the 21 part of the Crown to decontaminate the lands or to -- to 22 declare that the lands are safe because of -- if you 23 recall that paragraph in the preamble about munitions 24 being on the land. 25 Whenever -- just for general information
271 purposes, whenever land is to be made -- whenever land is 2 transferred from one (1) part of the Crown, with the 3 intention of it becoming Indian reserve land, it always 4 goes to the Department of Indian Affairs first, and then 5 the Department of Indian Affairs sets it aside as reserve 6 land. 7 So, in this period of time it's a two (2) 8 -- it's a two (2) step process. 9 And of course that transfer again, is 10 subject to the condition that it's no longer needed for 11 military purposes. So, the agreement is not putting the 12 transfer in place, it's saying when the military no 13 longer needs this land, this is what will happen, it will 14 be transferred to Indian Affairs, all or part of the land 15 that's not needed, and then Indian Affairs can set it 16 aside as -- as reserve land, in the meaning of the Indian 17 Act. 18 Q: And just for clarification then, the 19 land covered by this Band -- by this Order in Council, 20 included not only the former Stony Point Reserve that was 21 appropriated in 1942, but also the beach front property, 22 which was formerly part of the Stony Point Reserve, prior 23 to the 1928 surrender, and excluded the Ipperwash 24 Provincial Park, and excluded the northeastern corner of 25 the beach front property, which you showed us on the
281 slide yesterday? 2 A: Yes, that's -- that's correct. Would 3 you like me to show it on the slide again, so it's clear, 4 because I know that it becomes a little bit confusing, or 5 are we -- are we clear with the concept? Yes? 6 Q: I think that's fine, thank you. 7 A: Yeah. So, it's all -- it ends up 8 being all of the Stony Point Reserve -- the original 9 Stony Point Reserve, with the exception of the -- the one 10 (1) corner that is the Provincial Park, and that tiny 11 parcel that is still in private hands. 12 Q: Thank you. 13 14 (BRIEF PAUSE) 15 16 A: Okay. So the next -- the next event 17 of -- of great significance is that by 1985 -- so, this 18 is 1981, when this Order in Council was passed, which 19 gave the Crown the right to expend that money and enter 20 into the agreement. The -- the agreement is actually put 21 in place in 1984. So, there's a four (4) year period in 22 -- sorry, 1985. So, there's a four (4) year period 23 between that Order in Council and the agreement. 24 And I'll just take you -- we can just have 25 a -- a quick look at the agreement in -- in 1985, and
291 that's Document 405, which appears at Tab 108. 2 Q: Inquiry Document Number 4000405. 3 4 (BRIEF PAUSE) 5 6 A: The -- the document is very long. 7 I'm not going to read it all because it's 8 -- it's long to read but I think the thing that I -- that 9 I would like to point out about it is, you'll see at the 10 very top of the page there it says, 11 "This is an agreement made the 14th day 12 of March, 1985 between Her Majesty the 13 Queen and the right of Canada 14 represented herein by the Minister of 15 National Defence and Kettle and Stony 16 Point Band Council herein referred to 17 as BC..." 18 which stands for Band Council. 19 And basically this agreement -- first of 20 all, it cites the Order in Council that I just went 21 through and then it goes on with outlining those -- those 22 clauses or those conditions that were described in that - 23 - in that 1981 Order in Council. It's a little bit more 24 -- it's a little bit more complicated. 25 It has provisions in there for how the --
301 how the right of access will be controlled and how the 2 base commander will liaison with the members of the First 3 Nation or with the members of the band council in order 4 to allow access onto Stony Point. And it talks a little 5 bit more in detail about possible use for hunting and 6 fishing, about access and use of roads. 7 And one (1) of the -- one (1) of the 8 clauses in that agreement, which is on the third page and 9 is number twelve (12), refers to the issue of the -- the 10 burial ground, the cemetery which we spoke of the other 11 day and it reads: 12 "The burial yard is and will remain out 13 of bounds to any and all military 14 personnel." 15 So, that was part of this agreement that 16 the -- the cemetery would -- would be out of bounds as a 17 -- as a measure to protect it and at the next tab, which 18 is Tab 109, is document -- my Document 406. 19 Q: Inquiry Document Number 4000406. 20 A: And that's the -- the copy of the Band 21 Council resolution giving the -- and it's dated the 11th 22 of April, 1985 and it reads that: 23 "The Chippewas of Kettle and Stony 24 Point Band Council hereby accept the 25 Camp Ipperwash proposal, dated March
311 14, 1985 and that Chief Charles K. 2 Shawkence is hereby authorized to sign 3 the agreement on behalf of the 4 Council." 5 And you'll just note for interest sake 6 that that -- that band council resolution is -- it's on a 7 form. There's now forms for band council resolutions 8 which are different than the ones we've been looking at 9 previously when they were a handwritten minute of 10 council. 11 A: Okay. 12 Q: So, we see that after this -- the -- 13 the agreement has been reached and signed but the reserve 14 is not returned. There's no return of land at this time. 15 Q: Does the agreement specify a fixed 16 date for the return of the reserve land? 17 A: No, it doesn't specify a fixed date. 18 What it says is that every four (4) years they're going 19 to revisit the question of whether or not the military 20 still requires the land and if it can be returned. 21 Q: Thank you. 22 A: In -- in 1991, we know from newspaper 23 reports that the Department of National Defence declined 24 again to return the reserve and there's statements from 25 the Commander of the Canadian Forces Base in London in
321 which he says that they still -- they still require the 2 camp to stay in military hands and they will not return 3 it. 4 Q: Just -- just prior to that event, was 5 there any recognition by any parliamentary committee 6 concerning the issue of returning the former Stony Point 7 Reserve to the aboriginal people? 8 A: Yes, there was -- I think it's 1990 -- 9 yes there was a parliamentary standing committee on 10 aboriginal affairs, which is -- a standing committee is a 11 -- is a committee of Parliament, that examines various 12 issues in a particular field, and there -- and there is 13 one (1) in -- on aboriginal affairs, a parliamentary 14 standing committee, that -- that looks at various issues 15 that are current in -- in aboriginal affairs. 16 And they -- they've heard submissions on 17 this issue, and according to Helen Roos, who wrote a 18 thesis on it, she -- and I'll read a quotation from her 19 quote: 20 "The Government [And then it's an 21 inserted word] must rectify a serious 22 injustice done to the Stony Point First 23 Nation, by returning the land at Stony 24 Point to its original inhabitants and 25 their descendants from who the land was
331 seized." 2 However, as I said in -- by 1991, it -- it 3 still had not been returned. 4 Q: And then in summary, since about 5 1946, there have been periods of negotiations surrounding 6 the return of the former Stony Point Reserve, resulting 7 in an Order in Council in 1981 and then an agreement in 8 1985. 9 But to date, based on your review of the 10 historical record, there has not been a return of that 11 land via the land reserve process? 12 A: That's correct. So, I'm just going 13 to go on to the next slide. 14 This is just to -- to give a little 15 overview that during this time period when the -- when 16 the -- the people are anxious to have the Stony Point 17 Reserve returned, and the Stony Point Reserve is not 18 being returned, the -- the community is going through the 19 various official and established processes, for trying to 20 have their grievances addressed. 21 So, all through the 1990s, what we -- what 22 we see is a number -- a number of efforts being made, and 23 the things that I have up on the slide are the two (2) 24 things that I talked about earlier, when we talked about 25 those original surrenders at Kettle Point, and at Stony
341 Point in 1920 and 1928 -- or 1927 and 1928, excuse me. 2 The -- the Chippewas of Kettle Point and 3 Stony Point had gone through the specific claims process, 4 trying to have those addressed. And in the case of the - 5 - the surrender of the Kettle Point Reserve, that -- that 6 issue had also gone to Court and had been taken to -- for 7 deliberation in front of the Indian Specific Claims 8 Commission. 9 So, we see that those -- those actions 10 being taken by the community. Also they -- they -- there 11 were a number of Court challenges brought and actually in 12 the report there's just a little chart of those. 13 I'm not sure that it's actually -- that 14 it's complete, but there are a number of Court cases that 15 were brought in -- related to Camp Ipperwash. 16 So, the point of that slide is just to -- 17 to repeat the fact that -- that there are -- are several 18 attempts through these established bodies, the Specific 19 Claims Commission, and Specific Claims grievance process, 20 and through the court process, to have some of the 21 grievances addressed. 22 Q: And just for the record, a list of 23 some of those claims is provided at page 67 of your 24 report? 25 A: That's correct, yeah. And I think
351 that that -- that list is current to, like, 1996. 2 So, I'm going to go on to -- to my -- my 3 next and final slide. Here we're talking about the -- 4 the mid-1990s, the early to mid-1990s, and this is the 5 last, sort of, substantive section of -- of my report and 6 it starts on page 62. 7 And one of the things that you'll notice 8 with it is that almost all this information that's in 9 this section of the report is taken from media accounts 10 of events. The -- I took that approach for a number of 11 reasons. 12 One, it's -- it's a modern period and a -- 13 and a -- one way as -- when we study history that we 14 study a modern period, is by looking at what is -- what 15 is written in the press. 16 And although when we look at press 17 accounts we have to be very cautious because whereas a 18 lot of factual information such as dates are -- are 19 almost always correct or they're usually correct, they -- 20 press accounts are often very interpretive. 21 There's -- they're not always strictly 22 neutral or objective. So, when you're reading press 23 accounts that -- that one has to be cautious in that 24 sense with the language that they use. 25 And sometimes when an issue is very
361 technical or very legalistic, with all due respect to the 2 press, the -- it's not always absolutely accurate or not 3 as precise as somebody working in that field would like. 4 But still, it is a very useful source of 5 information. And I understand that the Commission will 6 be hearing from a number of witnesses who were alive and 7 present at this time. 8 So, the purpose of this last section of my 9 report is really to bring us up to date into the modern - 10 - into the modern period. So, as I had said at the -- 11 the end of the last section on -- on the negotiation, by 12 1991 the -- the military had issued statements that they 13 were still using the -- the camp and that they would not 14 be returning it. 15 It was right around this time where, to my 16 knowledge, there was the -- the first really active 17 protest at Camp Ipperwash in July 1990. There were 18 people who had formerly lived at Stony Point or were the 19 -- the descendants of people from Stony Point who -- who 20 were going to stage a stand off at the -- at the Camp as 21 soon as the -- the cadets had -- had left. 22 Q: And just for clarification, they -- 23 you say -- when you say, "the descendants of Stony 24 Point," you're referring to the descendants of those who 25 were formerly resident at the Stony Point Reserve?
371 A: Yeah, and who had been moved to -- 2 whose -- had been moved or their parents or grandparents 3 had been moved to Kettle Point. In -- in May of 1993 a 4 group of people who identify themselves as the Stony 5 Point First Nation occupied the Camp. 6 They -- they informed the Toronto Star 7 that they were serving notice to the military officials 8 in London that they were taking possession of it and that 9 they were giving the military an eviction notice. 10 And also around this time period in the 11 press what you see is reports of internal divisions 12 between -- in the community between the Kettle and Stony 13 Point community members with some people supporting the 14 direct action and -- and others not supporting it. 15 In -- in August of '93 there was an 16 incident where someone had apparently shot at a Canadian 17 Forces helicopter, and the Ontario Provincial Police 18 reacted by restricting access to the base. However, that 19 -- that seemed to -- the tensions around that seemed to 20 dissipate and the people continued to -- to occupy the -- 21 to occupy the camp in -- 22 Q: Just -- just for clarification -- 23 A: Yeah. 24 Q: -- while this group of individuals 25 were occupying the camp grounds, were -- was there any
381 military presence on the grounds? 2 A: No. Well during some periods there 3 were, but not during other periods and the -- the 4 military spokesman had indicated that -- I think he 5 called it a gentlemen's agreement, where the -- each 6 party sort of stayed out of -- they stayed out of each 7 other's way. That -- that the military -- the military 8 personnel stayed in one (1) part of the camp and the 9 protestors, the people who'd moved into the camp, stayed 10 in another part of camp, and they had kind of -- he 11 called it a gentlemen's agreement. 12 And they were -- seemed to be co-existing 13 for -- for most of this period in a fairly peaceful way, 14 with, I think the one (1) exception to that is the -- the 15 incident in August '93, when -- when the helicopter was 16 shot -- was shot at. 17 In -- in 1994, the Minister of National 18 Defence, David Collenette, stated that they no longer 19 needed Ipperwash Park as a -- as a camp, but it was -- it 20 was still not being -- being returned. And it was at 21 that point, this is in -- in '95, when the -- the chief 22 and council from -- from Kettle and Stony Point 23 instructed their lawyers to file the statement of claim 24 with the Federal Court. They had become quite frustrated 25 with negotiating without any -- any positive results.
391 And -- but the -- the tensions within the 2 community continued with the differences of opinion on 3 what kinds of actions should be taken to -- to get the 4 camp back. 5 In July '95, the Globe and Mail reported - 6 - they quoted an OPP Officer who was describing the 7 situation, and this is where the OPP Officer at this time 8 says: 9 "We've seemed to come up with a 10 gentlemen's agreement, where the 11 natives are staying away from the built 12 up area of the camp, and the military 13 is staying away from the -- the native 14 area, and they keep -- if we keep doing 15 that, everything will -- will live 16 peacefully." 17 In July, the end of July -- July 29th, in 18 '75 -- 19 Q: Sorry, not -- in 1995? 20 A: Oh, sorry, what did I -- I'm time 21 traveling here, sorry. 1995. 22 The -- the last of the military personnel 23 were due to evacuate Camp Ipperwash, but there was a -- 24 an outbreak of -- of violence and -- which was described 25 in the newspaper. The -- the military then withdrew at
401 that time, which they -- they characterized that as being 2 a -- a matter of safety for their personnel. So, they -- 3 so they withdrew at that outbreak. 4 And the chief of Kettle and Stony Point 5 Band opposed the action of the protestors, and so we see 6 it's another -- that increased the sort of the tensions 7 in the community. 8 And there are newspaper reports around 9 that time that -- that discussed this disagreement or 10 difference of approaches between the -- the Kettle and 11 Stony Point Band Council and the -- the people who are -- 12 or some of the people who are occupying the camp at that 13 time. 14 And then in -- in September, after the -- 15 at the end of the Labour Day weekend, September 4, 1995, 16 some of the protestors moved into the Ipperwash Park, and 17 that led to the -- the OPP on the night of September 6th, 18 they -- they marked on the protestors, and that's when 19 Dudley George was shot. 20 Q: All right, thank you. So, in -- in 21 conclusion then, with respect to the -- the 20th century 22 history that you've provided to us, if I might just 23 review it. 24 In 1919 -- 1919, the Kettle Point and 25 Stony Point Band is created by Indian Affairs, effecting
411 a separation from the Sarnia Band? 2 A: That's correct. 3 Q: In 1927, part of the beachfront of 4 Kettle Point Reserve is surrendered for sale by the 5 Crown, to a developer? 6 A: That's correct. 7 Q: 1928 the entire beachfront of the 8 Stony Point Reserve is surrendered for sale by the Crown, 9 to a developer? 10 A: That's correct. 11 Q: 1936 the Province of Ontario 12 purchases a lot from the surrendered Stony Point 13 beachfront property and establishes the Ipperwash 14 Provincial Park? 15 A: That's correct. 16 Q: In 1937, the chief and band council 17 of the Kettle Point and Stony Point Band, together with 18 the Department of Indian Affairs, notifies the Province 19 and Park Officials, that there is a burial ground at the 20 Ipperwash Provincial Park, and request to protect that? 21 A: That's correct. 22 Q: 1942, the Department of National 23 Defence appropriates the remaining reserve of the Stony 24 Point Reserve, for military purposes and establishes Camp 25 Ipperwash?
421 A: That's right. 2 Q: And then beginning in 1946, or 3 thereabouts, there are many failed negotiations and 4 attempts at the return of Camp Ipperwash to the Kettle 5 Point and Stony Point Band, which results in an agreement 6 in 1985? 7 A: That's right. 8 Q: Then on May 18th, 1993 or 9 thereabouts, a group of former residents of the Stony 10 Point Reserve and some descendants of those residents, 11 self identified as the Stony Point First Nation, occupy a 12 portion of the Camp Ipperwash grounds? 13 A: That's right. 14 Q: On July 29th, 1995, the military 15 leaves Camp Ipperwash and these individuals occupy the 16 entire Camp Ipperwash facility? 17 A: That's right. 18 Q: September the 4th, 1995, the 19 occupation of the Ipperwash Provincial Park begins? 20 A: Yes. 21 Q: And on the evening of September the 22 6th, 1995, the Ontario Provincial Police march on the 23 protestors at the park, ending in the shooting death of 24 Anthony O'Brien Dudley George? 25 A: Yes.
431 Q: Thank you. 2 MS. SUSAN VELLA: Commissioner, that 3 concludes the examination of the expert. Perhaps we 4 should proceed with the cross-examination. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much. Okay, just as we did when Professor Johnston 7 completed her evidence in-chief, I'd like to get a sense 8 of who thinks they might be cross-examining this witness, 9 and an idea of an estimate of how long they think they 10 might take, just so we can schedule and figure where we 11 go from here. 12 So, the first question is, if you think 13 you will cross-examine this witness, would you please 14 indicate so? 15 Yes? Well, perhaps I just want to get a 16 sense. One (1), two (2), three (3), four (4), five (5), 17 six (6), seven (7), eight (8). Let me just try to get a 18 sense of this, okay. 19 We're going to -- obviously when we have 20 seventeen (17) parties, we have to have some kind of 21 order, some kind of way to proceed. What we -- and you 22 can discuss this at the counsel meeting that you're going 23 to have for the future. 24 But what we've tried to do is to put the 25 parties into groupings, and we would like to proceed with
441 the cross-examination according to those groupings. 2 Now, obviously, the order of cross- 3 examination will be -- can be determined depending on the 4 witness. So, it doesn't have to be the same with respect 5 to each witness. And the order inside the group can 6 change as the group decides among itself. 7 But, at this time, the first group that 8 will cross-examine will be the group of parties that have 9 an aboriginal interest. Now, obviously we've lumped them 10 and if there's any -- somebody does not agree with the 11 grouping they should indicate so now. 12 The first grouping of the aboriginal -- 13 aboriginal parties include the Dudley George Estate, the 14 Aazhoodena and George Family Group, the residents of 15 Aazhoodena, the Chippewa and Kettle -- the Chippewa of 16 Kettle and Stony Point First Nations, the Chiefs of 17 Ontario and aboriginal legal services; that's the first 18 group. 19 Now, of that group, I just want to get a 20 sense of that group; Mr. Klippenstein on behalf of Dudley 21 George has indicated he wants to cross-examine, Mr. 22 Rosenthal on behalf of the Aazhoodena and George Family 23 and Mr. Ross, the Chippewas of Kettle and Stoney Point, 24 Mr. Henderson and the Chiefs of Ontario, Mr. Horton and 25 the Aboriginal Legal Services, Mr. Eyolfson. So,
451 everybody in that group wishes to cross-examine. 2 The B group, the next group I've indicated 3 is the Province of Ontario. And you've -- you wish to? 4 Can't hear you. All right. You'll have to -- all right. 5 You have to come up to the mike. 6 MR. DERRY MILLAR: Yeah, it would be 7 helpful, just for the purposes of the record, these 8 microphones, actually we're not going to have these 9 microphones coming in September because, for the purpose 10 of the record, it's better if everyone comes to the mike. 11 I know it slows things down but it would 12 be preferable if everyone could come to the podium 13 please. 14 COMMISSIONER SIDNEY LINDEN: But you 15 indicated that you intend to cross? That's fine. Okay. 16 Now, the next grouping would be the police 17 or law enforcement group with the Ontario Provincial 18 Police and Mr. Sandler. 19 MR. MARK SANDLER: At present, it is not 20 my inclination to cross-examine subject to what might be 21 developed over cross-examinating. 22 COMMISSIONER SIDNEY LINDEN: The Ontario 23 Provincial Police Association...? 24 MS. KAREN JONES: Same as -- 25 COMMISSIONER SIDNEY LINDEN: All right.
461 And then the next group that I have are the former 2 Ministers and officials of government which include The 3 Honourable Michael Harris. Is there any intentions -- 4 MR. PETER DOWNWARD: Yes, Mr. 5 Commissioner. 6 COMMISSIONER SIDNEY LINDEN: Yes, okay. 7 And Mr. Harnick..? Some aren't here so I don't think 8 anybody's here on behalf of Mr. Runciman. 9 I don't think anybody's here on behalf of 10 Ms. Hutton, Mr Hodgson. 11 Mr. Beaubien...? 12 MR. DOUGLAS SULMAN: Yes, Mr. 13 Commissioner. 14 COMMISSIONER SIDNEY LINDEN: All right. 15 And finally I have, in the final grouping of parties, the 16 Municipality of Lambton Shores...? 17 MS. JANET CALMONT: No questions. 18 COMMISSIONER SIDNEY LINDEN: And the 19 Chief Coroner...? 20 MR. AL O'MARA: No intentions to cross- 21 examine. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 Now, it would be -- it would be helpful, and obviously I 24 understand no one can ever predict with accuracy how long 25 a cross-examination is going to take, but just for the
471 purposes of scheduling and seeing if we can complete it 2 today. If we can we'll try to. 3 If we can't, then we will continue when we 4 reconvene. So, I would appreciate if you would give me 5 some indication of how long you expect. Those who have 6 indicated an intention to cross-examine, give me some 7 indication of how long you think you might be. 8 Mr. Klippenstein...? 9 MR. MURRAY KLIPPENSTEIN: Yes, 10 Commissioner, I would expect to be between one (1) and 11 two (2) hours. And I know that's not a very helpful 12 range but -- 13 COMMISSIONER SIDNEY LINDEN: That's 14 helpful. That's more -- that's closer to one (1) or two 15 (2) days but one (1) or two (2) hours is fine. 16 MR. MURRAY KLIPPENSTEIN: And we take 17 what you said about possible further discussions 18 pertaining to the order of cross-examination and, for 19 example, we may suggest that the aboriginal interests 20 actually are interests and other direct interests and 21 those that have an indirect or public -- public interest 22 nature application but that can be discussed later if -- 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 Mr. Rosenthal, any indication of how long you might be? 25 MR. PETER ROSENTHAL: Again, a rough
481 guess and it might depend upon what Mr. Klippenstein does 2 to some extent, but I would think two (2) to three (3) 3 hours. 4 COMMISSIONER SIDNEY LINDEN: Mr. Ross...? 5 MR. ANTHONY ROSS: Not being paid by the 6 word, maximum half an hour. 7 COMMISSIONER SIDNEY LINDEN: Mr. 8 Henderson...? 9 MR. WILLIAM HENDERSON: Commissioner, I 10 don't think that -- that our questions would go more than 11 half an hour. I would -- I would have hoped not to be 12 asking any at all. 13 With respect to the order and without -- 14 without prejudice to Mr. Klippenstein's suggestion that 15 some of the public interest groups might want to go last, 16 the First Nation was not previously aware of the Province 17 of Ontario's interest in its history we might like to go 18 after Ontario. 19 COMMISSIONER SIDNEY LINDEN: Well, as I 20 say, and depending on the witness, and the evidence 21 that's being led, the order will shift. 22 MR. WILLIAM HENDERSON: Thank you, sir. 23 COMMISSIONER SIDNEY LINDEN: The next 24 parties indicated an intention to cross-examine is the 25 Chiefs of Ontario. Mr. Horton...?
491 MR. WILLIAM HORTON: Commissioner, I 2 don't anticipate being more than ten (10) or fifteen (15) 3 minutes, and perhaps not at all, depending on what others 4 ask -- uncover. 5 COMMISSIONER SIDNEY LINDEN: I do remind 6 all parties, that I'm going to try my best to keep from - 7 - to not to allow overlap and duplication of the same -- 8 the same questions. So, obviously some of your estimates 9 may shorten or lengthen, depending on what others do. 10 Mr. Eyolfson...? 11 MR. BRIAN EYOLFSON: Perhaps fifteen (15) 12 or twenty (20) minutes, depending on the other questions 13 that are asked, I may not have any questions at all. 14 COMMISSIONER SIDNEY LINDEN: Thank you 15 very much. Mr. Myrka...? 16 MR. WALTER MYRKA: Sir, I -- 17 COMMISSIONER SIDNEY LINDEN: I 18 unfortunately I can't hear you unless you're at the mike. 19 MR. WALTER MYRKA: I anticipate twenty 20 (20) minutes to half an hour at most. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 This is very helpful, and I thank you all very much for 23 making this effort. The Ontario Provincial pol -- 24 MS. SUSAN VELLA: Commissioner, Marcel 25 Beaubien's lawyer, I believe, is going to cross-examine,
501 and Mr. Harris' lawyer as well, perhaps. 2 COMMISSIONER SIDNEY LINDEN: Okay. On 3 behalf of Mr. Harris? 4 MR. PETER DOWNWARD: Yes, Commissioner, I 5 would estimate about an hour, that's subject to being 6 abridged by what goes before me. 7 COMMISSIONER SIDNEY LINDEN: I think the 8 next -- on behalf of -- I'm sorry, would you -- 9 MR. DOUGLAS SULMAN: For Mr. Beaubien -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. DOUGLAS SULMAN: -- my name is 12 Sulman. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. DOUGLAS SULMAN: Being mindful of the 15 admonition not to be duplicative, it may be half an hour 16 and it may be less, dependent on Mr. Downward's cross- 17 examination. 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 Who else has indicated an intention to cross-examine, 20 could you please come forward and give me some rough 21 estimate? Is that it? 22 Okay. Well we're -- that's very helpful, 23 I appreciate that very much, and obviously you're not 24 going to be held to it, but I hope that you'll try your 25 best to stay within the times you've indicated.
511 I think this would be a good time to 2 adjourn for the morning break, and we'll start with the 3 cross-examination, and get as far as we can today. Thank 4 you very much. 5 THE REGISTRAR: All rise please. This 6 Inquiry will recess for fifteen (15) minutes. 7 8 --- Upon recessing at 11:05 a.m. 9 --- Upon resuming at 11:27 a.m. 10 11 THE REGISTRAR: This Inquiry is now 12 resumed. 13 COMMISSIONER SIDNEY LINDEN: Okay. 14 Yes...? 15 MS. SUSAN VELLA: Mr. Commissioner, I 16 just would like to inform the counsel who will be cross- 17 examining, that if you wish to refer the expert to a 18 document, an Inquiry Document number from the historical 19 documents, please advise us as you go to that document, 20 and we will be ensuring that that document is printed to 21 the screen, but we'll need the Inquiry document number in 22 advance. Thank you. 23 COMMISSIONER SIDNEY LINDEN: Mr. 24 Klippenstein...? 25 MR. MURRAY KLIPPENSTEIN: Thank you,
521 Commissioner. 2 3 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 4 Q: Good morning, Ms. Holmes. 5 A: Good morning. 6 Q: I and my co-counsel represent the 7 estate of Dudley George and the five (5) brothers and 8 sisters of Dudley George, and a number of them are here 9 today. 10 I'd like to begin our questioning by 11 touching on the Treaty of 1829 for a little bit. And you 12 dealt with that in your report, and I will refer to your 13 report once or twice. 14 To -- to state the obvious, I guess, would 15 be the Treaty of 1829 between the Crown and the Chippewa 16 nation verified several what it called reserves, that 17 were parcels of land that were not ceded or surrendered 18 to the Crown in the treaty. 19 This -- is that right so far? 20 A: It's -- the treaty was 1827. It's 21 Treaty Number 29 but it's 1827. 22 Q: Good. I will continue to confuse that 23 throughout so, correct me or not as you wish. Did I get 24 the rest of it right? 25 A: That's correct.
531 Q: Thank you. And for my purposes, I 2 just want to trace one (1) of those reserves, and I don't 3 think this is at all controversial at this point, but one 4 (1) of those reserves, obviously was the Stony Point 5 Reserve, sometimes going by different names, correct? 6 A: That's correct. 7 Q: And part of that reserve, which is the 8 northwest corner of the Stony Point Reserve, were the 9 lands that later became Ipperwash Provincial Park; is 10 that right? 11 A: That's correct. 12 Q: And to state what I think is obvious, 13 the -- the Ipperwash Provincial Park lands were lands 14 that were allocated or reserved to natives by the Treaty 15 of 1827. 16 A: That's correct. 17 Q: To go back to what the treaty said 18 about such reserve lands, I'd like you to refer to your 19 report at page 17. That's at Tab 3, Commissioner. And 20 in the second paragraph on that page 17, you summarize 21 parts of the Treaty of 1827 and the third sentence -- or 22 rather fourth sentence says the described locations 23 were, quote: 24 "expressly reserved to the said nation 25 of Indians and their posterity at all
541 times hereafter for their own exclusive 2 use and enjoyment" Close quote. 3 And that's a quote from the treaty, 4 correct? 5 A: That's correct. 6 Q: And if I just focus on the words, 7 "their prosperity at all times hereafter"; that seems to 8 me a fairly uncontroversial way to suggest that in that 9 treaty, the Crown is committing that the lands that are 10 reserved would, in fact, be native lands in perpetuity. 11 Is that -- is that a fair meaning of that 12 treaty term? 13 A: I believe so. 14 Q: And those lands that are referred to 15 in that way include what later became the Ipperwash 16 Provincial Park lands; is that correct? 17 A: That's correct. 18 Q: The reserved lands that were referred 19 to in the treaty were only a small portion of the lands 20 that were inhabited and owned, if you will, and governed, 21 if you will, by the Chippewa nation previous to the 22 treaty. 23 And your report, on page 16 -- sorry, it's 24 also on page 17, states in the third paragraph that the 25 Chippewas, by the treaty, ceded over two million
551 (2,000,000) acres of land to the Crown and you say, 2 quote: 3 "They retained less than 1 percent for 4 their own exclusive use and 5 occupation." Close quote. 6 A: That's correct. 7 Q: And so, as part of the bargain, if you 8 will, the Chippewas shared with the Crown, or turned over 9 to the Crown, about 99 percent of their traditional 10 territory, and retained 1 percent; is that right? 11 A: That's correct. 12 Q: And as we -- as we've seen, in return 13 for the 99 percent, the Crown seems to have agreed that 14 the 1 percent would remain Native land, in perpetuity. 15 Is that a fair reading of what we've just gone through? 16 A: Yes, it's set aside as a reserve, and 17 the reserves are -- it's specified in the Treaty that 18 they're reserved to the Nation of Indians and their 19 posterity, yes. 20 Q: In your reports and your discussion, 21 you drew our attention to something else that was going 22 on in the treaty process. And you drew our attention to 23 the fact that the treaty has a term which allows the 24 treaty payments to decrease if the population of the 25 Chippewa Nation decreases in the future; is that right?
561 A: If it decreases by more than half, or 2 by at least half, yes. 3 Q: Right. And you noted that there was 4 not an equivalent mirror image term, that said if the 5 population of the Chippewa Nation increases, then the 6 payments would increase as well. So, it was a one (1) 7 way ratchet? 8 A: That's correct. 9 Q: And you mentioned in your discussion, 10 a bit of background about why that term adhered, which I 11 found very interesting. I wanted to just refer you to 12 that discussion in the transcript. 13 And I'll just read one (1) or two (2) 14 sentence -- sentences. I don't think it's necessary to 15 turn up the transcript. This is what you mentioned on 16 Tuesday, and on page 80 of the transcript, in reference 17 to that provision of the Treaty, which allowed payments 18 to decrease, but made no reference to payments 19 increasing. And you said at page 80, line 4: 20 "So, there's only a provision for 21 decreasing the annuity but not for 22 increasing it. And I think that the 23 reason for that is because at this time 24 period, 1827, the attitude of the 25 British Crown was that the -- the
571 Indian population, the aboriginal 2 people were going to disappear. They - 3 - they believed that the aboriginal 4 people could not sustain the onslaught 5 of the white settlers, and that they 6 would -- that they would disappear. 7 So, when they made their Treaty, 8 they're making it in such a way that if 9 in fact the people do die off, that 10 they won't owe -- they won't owe as 11 much money as the population 12 decreases." 13 Now, do you recall pointing that out to 14 us? 15 A: Yes, I do. 16 Q: I wonder if you could elaborate at 17 all on this idea that the Crown, at that time, appeared 18 to have the attitude that the aboriginal population were 19 going to disappear. 20 Can you tell us anything more about that? 21 A: Certainly. Around that time period, 22 the -- the aboriginal population in -- in what was 23 British North America at that time, and in the -- in this 24 area of Upper Canada, was in fact, the population had 25 been decreasing for quite some time, because of disease
581 and displacement of -- of population, because of changes 2 in lifestyle the population in fact had been dropping. 3 And the Crown was aware of that, the British Indian 4 Department would be aware of that -- that trend. 5 And the attitude of the Department and of 6 missionaries, was that the -- the Indian people would 7 slowly die away as a people. 8 And the approach of the British Indian 9 Department and of missionaries who had a certain amount 10 of influence in Indian policy and in interacting with -- 11 with Native people at that time, they believed that the 12 people could be isolated in isolated communities away 13 from settlement and that they would -- they would slowly 14 die out; that was the thinking at the time. 15 Q: In your original comments you, I 16 think, you talked about the onslaught of the white 17 settlers being linked with the -- the expected 18 disappearance of aboriginal people and then you mentioned 19 just now, displacement of population so is part of the 20 scenario that they foresaw at that time that as settlers 21 came in, First Nations people will be displaced? 22 A: That's correct. 23 Q: And you mentioned that the 24 expectation was that people -- the First Nations people 25 would be isolated and then they would slowly die out, and
591 you used the word "slowly"; is it fair to understand your 2 description as meaning that people believed it would take 3 place over quite a long period of time? 4 A: I can't really be sure what kind of 5 time frame that they had in mind. But they certainly 6 believed that -- that the Indian groups wouldn't -- 7 wouldn't survive. 8 Q: And so, when we see the treaty terms 9 that refer to land being guaranteed to the First Nations 10 people in perpetuity, there seems to have been something 11 else going on behind the words about the expectation of 12 the Crown party to the treaty over the longer term 13 future; is that fair? 14 A: I think that -- that when they 15 actually made that treaty, when they negotiated it over 16 the -- the long term, the nine (9) years, I don't see any 17 discussion or indication of that in partic -- they don't, 18 in the documentation that I see, they don't really 19 address that directly in terms of this treaty. 20 But the general trend at that time period 21 and shortly after that time period is reserves that had 22 been set aside, and here I'm speaking very generally of 23 what happened in Upper Canada, reserves that were set 24 aside in that early 19th Century period were very often, 25 parts of them, were surrendered away, that the Crown took
601 surrenders of them or amalgamated people on reserves. 2 So, the -- the amount of reserved land -- 3 of land that had been reserved also decreased. 4 Q: When I asked you whether there was 5 something going on behind the scenes in the treaty terms, 6 I didn't mean being discussed behind the scenes, but in a 7 sense there was this expectation on the Crown party, it 8 would appear from what you say, that although the treaty 9 guaranteed the land in perpetuity, the Crown party 10 thought that it might not exist as Indian land in 11 perpetuity, in fact? 12 A: Okay. Well, the point I'm trying to 13 make and maybe I'm not making it clearly, is that up to 14 1827 when that land was set aside and the treaty made, I 15 don't see a lot of discussion in records pertaining to 16 this treaty specifically or in general about reserve -- 17 the reserve land being decreased. 18 However, in the -- in the subsequent 19 period, starting around 1836 which is nine (9) years 20 later, that's when you observe, in general, in the Crown 21 the more conscious policy or a more conscious view that 22 people are being sent to more isolated areas where they 23 expect that they will -- I think it was Lieutenant 24 Governor Bondhead that -- that said, where they will live 25 out their last days and die away.
611 So, it's a little bit after the Treaty 2 period that we're involved with. 3 Q: I'd like to pursue that topic a 4 little bit more, namely the question about the belief in 5 that time period that -- that Native people would 6 disappear. And -- and in order to do that, I'd like to 7 draw your attention to some comments on that topic, made 8 by a previous commission of inquiry. And I have in mind 9 the Royal Commission on Aboriginal Peoples, which 10 released its final report in 1996. 11 MR. MURRAY KLIPPENSTEIN: And, 12 Commissioner, I have duplicated a number of pages from 13 that Royal Commission Report, and provided copies earlier 14 to -- to Ms. Vella, and so hopefully Ms. Holmes has had a 15 chance to look at it. 16 And I've made copies available to other 17 counsel, and I propose to -- once I've asked Ms. Holmes a 18 few questions about it, possibly make it an exhibit. And 19 I wonder if -- we'll provide a copy to you, Commissioner. 20 And I have a few extra copies. 21 We've also tried to arrange to have the 22 excerpts projected onto the screen for ease of reference, 23 if -- if in fact that works. 24 And this -- and so before I ask that it be 25 made an exhibit, I would perhaps suspect, Ms. Holmes,
621 that you have some familiarity at least with the Royal 2 Commission, on Aboriginal Peoples? 3 THE WITNESS: Yes, I do. 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: I won't ask if you're one (1) of the 7 few people in Canada who've read the full four thousand 8 (4,000) pages, but -- 9 A: Thank you. 10 Q: Nor, will I say that I've read all 11 the pages. But is it -- is it correct, as is my 12 understanding, that that Royal Commission considered many 13 issues related to the First Nation subject matters for 14 something like a period of five (5) years; is that about 15 right? 16 A: I believe that's correct, yes. 17 Q: And that's a very wide consult -- 18 consultations across the country? 19 A: Yes. 20 Q: And there were a number of 21 Commissioners, including Madam Justice Bertha Wilson, of 22 the Supreme Court of Canada, was one (1) of the 23 Commissioners, as I recall; does that sound familiar to 24 you? 25 A: It's probably correct, but I -- I
631 couldn't swear to it. 2 Q: Okay. But it sounds possible to you 3 in your recollection. And if I suggested to you that the 4 Co-Chairs of the Commission were Georges Erasmus, a 5 former National Chief of the Assembly of First Nations or 6 its equivalent, and that the -- the other co-chair was 7 Justice Renee Dussault of the Quebec Court of Appeal; 8 does that sound familiar to you? 9 A: I believe that's correct. 10 Q: Would you agree that the Royal 11 Commission on Aboriginal People's Reports or -- or RCAP, 12 as I'll refer to it, are generally recognized as speaking 13 with a great deal of authority on issues related to 14 aboriginal people? 15 A: I -- I believe that the RCAP Report 16 has had input from a number of different people, and I 17 think depending on who you are, people have -- hold 18 different opinions of how authoritative it is. But 19 there's certainly a great deal of -- of information in 20 their reports. 21 Q: Would you agree that although not 22 everyone unanimously agrees with everything in the 23 report, that it is considered as -- as one (1) of the 24 important authorities on these issues in Canada? 25 A: Yes, I think it's viewed as -- as
641 capturing the significant opinion that's current at -- at 2 the time it was published, yes. 3 MR. MURRAY KLIPPENSTEIN: Commissioner, I 4 would request that this excerpt be made an exhibit. 5 And -- 6 COMMISSIONER SIDNEY LINDEN: What number 7 are we up to? Number 10...? 8 MR. MURRAY KLIPPENSTEIN: Post exhibit is 9 an excerpt from the Royal Commission on Aboriginal 10 People's Final Report from 1996, paragraphs 1,013 to 11 1,038, from the CD-Rom. 12 I believe that's Exhibit P-10. 13 COMMISSIONER SIDNEY LINDEN: Exhibit P- 14 10. Thank you. 15 16 --- EXHIBIT NO. P-10: Excerpt from the Royal Commission 17 on Aboriginal People's Final 18 Report from 1996, paragraphs 1,013 19 to 1,038. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: Ms. Holmes, I'd like to take you to 23 parts of this exhibit. And I'd like to follow up the 24 idea that you mentioned that the Crown, around the time 25 of the 1827 Treaty, believed that the aboriginal people
651 would likely disappear and see whether we find more 2 appearances of that idea or similar ideas subsequently. 3 And, first of all, I'd like to refer you 4 in Exhibit P-10, which is the excerpt from RCAP, to the 5 first part of the excerpt under the heading, "Extending 6 Measures of Control and Assimilation". And I'm 7 interested in the reference to Sir John A. Macdonald, the 8 first Prime Minister of Canada, that appears in the 9 second paragraph. 10 And just for context, I'll read the whole 11 two (2) paragraphs and ask you about Sir John A. The 12 excerpt says, quote: 13 "The nation of Canada was born on the 14 1st July, 1867 within a Federal 15 political structure, a modern trans- 16 continental society is to be fashioned 17 and, as Empire became nation, a new 18 beginning was to be made. Work on the 19 Confederation project had begun as 20 early as 1858 and as the tempo 21 quickened between 1864 and 1866 the 22 Fathers met in Charlottetown, Quebec 23 and London. At those meetings, in the 24 editorial papers of the Colonial Press 25 and even on the hustings, the details
661 of the Federation and the Pan-Colonial 2 consensus were hammered out. At no 3 time, however, were First Nations 4 included in the discussion nor were 5 they consulted about their concerns, 6 neither was their future position in 7 the Confederation given any public 8 acknowledgment or discussion. 9 Nevertheless, the broad outlines of a 10 new constitutional relationship, at 11 least with the First Nations, were 12 determined unilaterally. The first 13 Prime Minister, Sir John A. Macdonald, 14 soon informed parliament that it would 15 Canada's goal to, quote, 'to do away 16 with the tribal system and assimilate 17 the Indian people in all respects with 18 the inhabitants of the Dominion'" End 19 of quote." 20 First of all, can you accept, based on 21 this reference in RCAP in the last sentence there that 22 Prime Minister Macdonald made the statements attributed 23 to him? 24 A: The quotation here is taken from, 25 "Malcolm Montgomery, the Six Nation Indians and the
671 Macdonald Franchise" an article from Ontario history. I 2 haven't actually read that article. 3 The quotation to do away with the tribal 4 system and assimilate Indian people, that -- that does 5 sound familiar to me in -- in relation to a statement 6 that Macdonald would make but I haven't actually reviewed 7 that article. 8 Q: Are you -- are you prepared to accept 9 that Sir John A. made that statement for today's 10 purposes? 11 A: Yes, because I'm sure I've seen it 12 before. 13 Q: I thought you'd probably had seen 14 something like that before. Would you agree that when 15 Prime Minister Macdonald was talking about 16 "assimilating the Indian people in all 17 respects with the inhabitants of the 18 Dominion," 19 there's a similarity to the views you 20 pointed out earlier in that they're both talking about 21 Indians disappearing? 22 A: Well, I think in the earlier period 23 when the Crown officials talked about Indians 24 disappearing, they really were talking about them dying 25 out as individuals. When -- in the -- in the -- that
681 early Confederation period that is being referred to in 2 this article, when -- when the Crown talked about 3 assimilation and used that term "assimilation" really 4 what they were talking about is that the Indian people 5 would become like white people. 6 That, for example, in this statement he 7 says "to do away with the tribal system" that they would 8 no longer follow a traditional way of life in any 9 respect, be it government structure or lifestyle, that 10 they would be like white people. So, it's -- it's 11 changing the essence of -- of who they were as a people 12 which is a -- is a slightly different -- slightly 13 different thing. 14 Q: I've seen references to education and 15 intermarriage and things like that. Is that more along 16 the lines of -- of what he was talking about, do you 17 think? 18 A: When he talks about assimilation? 19 Q: Yeah. 20 A: Here I think Macdonald was 21 particularly focussed on getting rid of a tribal -- what 22 they called a tribal system, which was a system of -- of 23 government, of holding land in common -- that -- that 24 type of thing. That's -- that was his particular focus 25 around that time.
691 Q: You mentioned that the -- the concept 2 was that Indians would become like white people and would 3 change their essence, I think were the terms you used, 4 and so when Macdonald -- Prime Minister Macdonald -- 5 says, 6 "assimilate the Indian people in all 7 respects with the inhabitants of the 8 Dominion," 9 is it fair to say that he and -- and 10 people like him had the view that Indians would disappear 11 within the greater population? 12 A: As a distinct body, yes. 13 Q: Would you agree with me that the 14 statement of the Prime Minister is different from what 15 you mentioned in an earlier period where there seemed to 16 be a sense that aboriginal people would literally die 17 off. 18 In that, the statement of the Prime 19 Minister isn't so much saying that it's inevitable, but 20 is also saying that such assimilation or disappearance of 21 Indians is desirable and is something to be actively 22 pursued. 23 A: That was their attitude, yes. 24 Q: And does it also follow logically that 25 if the views of Prime Minister Macdonald and similar
701 authorities was that aboriginal people should assimilate 2 and merge to the point of disappearance, that there 3 wouldn't be any Indian lands as such at some point in the 4 future because all such Indian lands would be absorbed 5 into the general economy of Canada as well? Is that a 6 fair part of the -- of the way of thinking? 7 A: Generally, it was a little bit more 8 complicated than that. The aim, and here again I'm -- 9 I'm speaking very generally of the trend at -- in that 10 late 19th century period, that the -- the attitude of the 11 Crown was that it was desirable that the Indian people be 12 assimilated into the population. 13 That's why they introduced the concept of 14 enfranchisement where individuals would give up -- 15 voluntarily give up their Indian status and with them, if 16 an -- if an Indian gave up their -- their Indian status 17 they would be entitled to take a piece of reserve land 18 which would, in effect, continue to shrink the size of 19 the reserve as -- as people became enfranchised. 20 The -- the Crown was very anxious to 21 pursue that policy. However, at the same time, what 22 you'll see is that they recognize that one (1), they had 23 a legal obligation to protect lands that were not given 24 up and that the Crown soon became aware of the fact that 25 all of their efforts to encourage people to enfranchise -
711 - to give up their Indian status -- were not successful 2 and -- from their point of view, not successful -- that - 3 - that people were not enfranchising, they were not 4 giving up their Indian status. 5 And, as a result of that, they -- they 6 realized that they still retained that obligation to 7 protect reserve land, to -- their legal obligation to 8 protect reserve land. And also they -- they continued 9 their efforts to encourage people to enfranchise or to 10 assimilate with such programs as education and that -- 11 that type of thing. 12 Q: And you mentioned that at least in 13 some circumstances, when an Indian would enfranchise, 14 they could take a piece of the reserve land with them? 15 A: That's correct, that's part of the 16 legislation related to that. 17 Q: So the -- there was an explicit 18 linkage or recognition that the -- as the number of 19 Indians shrank, the amount of Indian land would shrink as 20 well? 21 A: That was the expectation, yes. 22 Q: And that would have been part of the 23 -- what they saw as desirable? 24 A: I would say in general, yes. 25 Q: I'd like to try and see a little bit
721 later in time, whether there's still some of that idea in 2 the -- in the context, and if I could ask you to turn to 3 the end of the RCAP excerpt, which is Exhibit P-10. 4 And again, I'll read the entire paragraph, 5 although I'm interested in for now, what Duncan Campbell 6 Scott said, quote: 7 "For the authors of this colonial 8 system, the separate paths were to run 9 to a single destination. Their 10 national vision was the same for all 11 Aboriginal people, whether men, women 12 or children, status or non-status, 13 Indian and Metis or Inuit. As their 14 home lands were engulfed by the ever 15 expanding Canadian Nation, all 16 Aboriginal persons would be expected to 17 abandon their cherished life ways to 18 become civilized, and thus, to lose 19 themselves and their culture among the 20 mass of Canadians. This was an 21 unchanging Federal determination. The 22 long serving Deputy Superintendent 23 General of Indian Affairs, Duncan 24 Campbell Scott, assured Parliament in 25 1920, that our object is to continue
731 until there is not a single Indian in 2 Canada that has not been absorbed into 3 the body politic, and there is no 4 Indian question." 5 Now first, can you accept, based on this 6 reference in RCAP, that Duncan Campbell Scott made that 7 statement? 8 A: This -- the quotation is from the 9 quotation of -- Duncan Campbell Scott's statement is from 10 a publication by John Leslie and John Maguire, The 11 Historical Development of the Indian Act. And I am 12 familiar with that publication. 13 I -- I believe that it's -- that it's a 14 correct quotation, but of course, you know, I can't say 15 that absolutely. It certainly sounds familiar, and it 16 would be -- it would be in keeping with the general 17 attitude that Scott exhibited through his time period as 18 the Superintendent General. 19 Q: I have -- I would imagine from your 20 historical -- research, that you have some familiarity 21 with Duncan Campbell Scott? 22 A: Yes, I do. 23 Q: Is it fair to say that for more than 24 twenty (20) years, he was the dominant Federal official 25 overseeing and implementing Indian policy in Canada, is
741 that fair? 2 A: Yes, he was. And actually I could 3 tell you the dates if I looked at one (1) of my little 4 aids here. 5 Duncan Campbell Scott, before he became 6 the Superintendent General, is the -- the highest ranking 7 officer in Indian Affairs. And the -- the highest 8 ranking non-politician, right. So, he would be like the 9 equivalent of a -- a Deputy Minister, so he's not a 10 Minister, he's not a member of Cabinet. 11 But Scott was the Deputy Superintendent 12 General of Indian Affairs from October 1913 to March 13 1932. So, yes, I think that's about twenty (20) years. 14 And he was -- prior to that, he was the accountant with 15 the Department, he was the head accountant. So, he had 16 service prior to being the -- the Deputy Superintendent. 17 Q: And so he was, is it fair to say, 18 extremely influential in the Indian policy over several 19 decades? 20 A: Yes, he was. 21 Q: And he, as you seem to suggest, also 22 shared the attitude that we were looking at, that it was 23 both desirable and something to be actively pursued for 24 Aboriginal peoples to assimilate and merge into the 25 Canadian population, and disappear, is that fair?
751 A: Yes, that -- that, and just to -- to 2 be clear about his quotation here, when he says not a 3 single Indian in Canada, he doesn't mean that they should 4 be deceased. He means Indian in the meaning of the 5 Indian Act, the person with that particular status. Yes, 6 that was certainly the -- one (1) of the main objectives 7 of the Indian Department at that time. 8 Q: And again, it follows, I'm -- I'm 9 thinking, that if there were to be no Indians in the 10 future, as such, there also wouldn't be any Indian lands, 11 as such, anymore. And that would have been part of his 12 attitude and part of something he thought of as 13 desirable, is that fair? 14 A: Yeah, well if you look at Indian Act 15 legislation in place at that time. If an Indian Band, in 16 the meaning of the Indian Act, ceased to exist, then 17 their -- the reserve land that was held for them, would 18 revert to the Crown. That's my general understanding of 19 that legislation. 20 Q: And Duncan Campbell Scott was the 21 Superintendent General of Indian Affairs in the '20s, and 22 indeed at the time when the Ipperwash Park lands were 23 surrendered in 1928, is that fair? 24 A: Yeah, it's the Deputy Superintendent 25 General --
761 Q: Sorry. 2 A: -- the Superintendent General was the 3 Minister, okay. 4 Q: Right, the Superintendent was a 5 political position? 6 A: That's correct. 7 Q: Yes. But Duncan Campbell Scott was 8 the Deputy Superintendent General, at the time of -- in 9 the 1928 surrender of the lands that became Ipperwash 10 Provincial Park, is that fair? 11 A: That's correct. 12 Q: And I believe I even seen Duncan 13 Campbell Scott's involvement in some of the correspondent 14 in that particular file, do you remember -- 15 A: There -- there is some correspondence 16 from him, yes. 17 Q: So he was -- he had some personal 18 involvement in the 1928 surrender? 19 A: The -- the -- again, I'm speaking 20 generally, the general procedure would be that when there 21 was a surrender of reserve land, the Deputy 22 Superintendent General, would be aware of it. He would 23 be -- he would give authority to seek the -- he would 24 give the authority to the Indian Agent to seek the 25 surrender, and he would be -- it would usually be him
771 that would draft up the Order in Council, that -- for the 2 Minister that would accept a land surrender. 3 So, yes, he would have that -- that degree 4 of involvement. He would not be involved in the field or 5 on the ground. 6 Q: I'd like to then turn back to the 7 RCAP excerpts and turn to the first page on paper, which 8 I believe is the third page on the screen. Rather 9 perhaps, I'll start on the second page on the screen. 10 And I won't read the whole excerpt, but 11 will read the quote from Alexander Morris, who as I 12 understand it, was very involved in a number of Treaties 13 with First Nations people in Western Canada, is that 14 fair? 15 A: Yes, he was. 16 Q: Yeah. He says: 17 "Let us have Christianity and 18 civilization among the Indian tribes, 19 let us have a wise and paternal 20 government, doing its utmost to help 21 and elevate the Indian population, who 22 have been cast upon our care. And 23 Canada will be enabled to feel that in 24 the true patriotic spirit our country 25 has done its duty to the red men."
781 And then continuing: 2 "Parliament was moved to action, though 3 rarely consulting aboriginal 4 communities, it translated that duty 5 into federal legislation, such as the 6 Indian Act and periodic amendments to 7 it. It crafted educational systems, 8 social policies and economic 9 development plans designed to 10 extinguish Aboriginal rights and 11 assimilate Aboriginal people..." 12 And I'd like to pause there. I understand 13 from your CV and past work, Ms. Holmes, you've done a 14 fair bit of work on the history of the Federal Indian 15 Act; is that fair? 16 A: That's correct. 17 Q: If I could just focus on the sentence 18 that says "it", I guess being Federal legislation such as 19 the Indian Act -- sorry, "it" being Parliament: 20 "... crafted educational systems, 21 social policies and economic 22 development plans designed to 23 extinguish Aboriginal rights and 24 assimilate Aboriginal people." 25 Would you accept that statement by the
791 Royal Commission, by and large, as a reasonable, general 2 summary of Federal Indian legislation over the period 3 from approximately Confederation to approximately 1951? 4 Which date I choose just because that was a major 5 amendment to the Indian Act. 6 A: Right. I think that this statement 7 that appeared in the RCAP report, and I'm not sure who 8 the author of this is, I think this statement it -- it 9 reflects one (1) aspect of Indian Act legislation and 10 amendments. 11 But, in fairness, it doesn't reflect other 12 aspects of the legislation which, at the same time, 13 included provisions such as the kinds of safeguards or 14 requirements in order to take surrenders of Indian land 15 and -- and the types of provisions that were in the 16 Indian Act that protected lands against trespass and 17 things like that. 18 So I think that the author here is giving 19 their interpretation or their opinion on the impact of 20 the Federal legislation or the purpose I think, because 21 it says it's -- 22 Q: "Designed". 23 A: Designed; yeah, which makes it -- 24 "Translated that duty into Federal 25 legislation that crafted these things."
801 That -- so I think that while -- while 2 it's fair to say that some of these agendas underlay some 3 aspects of Indian legislation; at the same time the Crown 4 did recognize it's legal obligations and those were also 5 written into the Act. So, -- 6 Q: Is it fair to say that there was -- 7 A: You know this is -- this is what this 8 author has chosen to -- to write about which, of course, 9 is an interpretation so -- 10 Q: It's -- it's my understanding that 11 the Royal Commission Report was signed by the 12 Commissioners, all of the Commissioners, do you happen to 13 know one (1) way or the other on that? 14 A: Well, the reports were accepted by 15 the Commission, tabled by the Commission, yes, that's 16 true. 17 Q: Right, right. 18 A: I -- I don't -- I don't think that, 19 you know, if you're -- if you're -- if you're writing 20 history and giving interpretations of many, many things 21 that happened in the past, not everything is covered. 22 And my, as I said at the beginning, my 23 comment on the -- the Royal Commission Report is that -- 24 and although I haven't read the entire thing back to 25 front, but I've read many parts of it several times, and
811 I find that it's, you know, there -- there are many parts 2 of it where -- where different authors or scholars are -- 3 are presenting particular views and I don't think that I 4 would agree with every interpretation. 5 And I'm sure that the Commissioners never 6 -- well, I can't speak for them, but I'm just saying that 7 -- that this is -- this is one (1) particular statement, 8 and I think that it has truth and validity in it. 9 However, I don't think that it says everything about the 10 legislation -- 11 Q: Right. 12 A: -- at that period. 13 Q: As I understand your answer, you seem 14 to be hinting at something of a duality in the 15 legislation. Part of it is what is referred to here, 16 namely systems and policies and plans, designed to 17 extinguish Aboriginal rights and assimilate Aboriginal 18 people. 19 But at the same time, as I understand your 20 suggestion, there are other parts of the Act designed to 21 protect? 22 A: Yes, and I think, you know, again 23 speaking very generally, and very generally of the 24 conduct of Indian Affairs which -- which includes 25 legislation related to Indians and Indian lands, is that
821 historically there was always this kind of duality, where 2 there was a legal responsibility and obligation on the 3 part of the Crown, which is reflected in its legislation, 4 and is reflected in some of its actions. 5 And at the same time, there is also an 6 agenda, a long term agenda, which is to -- at different 7 historical periods it switches. But it's a -- it's an 8 agenda that has to do with what the legislators and 9 socially -- social policy gurus of the time, believe is 10 the best for the Indian people and for Canada. So there 11 is always that other kind of underlying agenda. 12 Q: And that agenda, to put it bluntly 13 but accurately, is the disappearance of Indians? 14 A: At this time period that we're 15 talking about right here, the -- that late 19th Century 16 period, yes, I think that they were quite -- and up into 17 the 1920s, when we -- you read the quotation from Scott, 18 the authorities were very vocal and unapologetic about 19 what they thought was best for the Indian people, and 20 that was for them to be assimilated into the larger 21 Canadian society. 22 Q: And so again at the time of the '20s, 23 the decade when the -- and then the decades previous to 24 the surrender of 1928, the senior levels of government 25 were very vocal and unapologetic that the assimilation
831 and disappearance of Indians was desirable and something 2 to be facilitated, while at the same time, having certain 3 protective measures in place -- 4 A: Yes. 5 Q: -- is that fair? 6 A: And -- and again, I would like to 7 stress that when we're talking about disappearance, 8 they're talking about the disappearance of that 9 particular legal status. 10 Q: Right. 11 A: That's -- that's the way that they 12 used the term Indian. 13 Q: Right. 14 A: That's how it's -- 15 Q: But with that qualifier, my summary 16 is not -- not inaccurate, is that fair? 17 A: I'd say that it's very fair. 18 Q: Yeah. If I can continue with the 19 next page on the screen. 20 Actually I think it's still the previous 21 screen. Sorry, yes, I'll just read the next paragraph, 22 it begins, "The process". And on paper it's on page 2, 23 the first full paragraph, quote: 24 "The process began with a blueprint of 25 Confederation. The British North
841 America Act of 1867. It provided in 2 Section 91, that the exclusive 3 legislative authority of the Parliament 4 of Canada, extends to all matters 5 within the classes of subjects next 6 hereinafter enumerated, among which was 7 Section 24, Indians and Lands Reserved 8 for the Indians. 9 Subsequently the ethos of that 10 legislative responsibility was revealed 11 in the Enfranchisement Act of 1869. 12 Rooted firmly in the Imperial past, the 13 Act was conditioned by the Indian 14 Department's resolute insistence on 15 enfranchisement. It brought forward 16 the enfranchisement provisions of the 17 Act of 1857 and added in the -- service 18 of what was then adopted as the -- the 19 fundamental principle of Federal 20 policy, the goal of assimilation." 21 And my question pertains to the last 22 phrase or the last sentence. Would you accept it as 23 accurate and as an accurate characterization by the Royal 24 Commission that one (1) of the fundamental principles of 25 Federal policy was the goal of assimilation?
851 (BRIEF PAUSE) 2 3 A: Again, I find -- I find the sentence 4 that's underlined is a little bit -- it's a little bit 5 over-stated perhaps in the -- in the context of 6 everything else that was happening historically. 7 And I guess what I would say about it is 8 the Crown introduced these Enfranchisement Acts, it was 9 first introduced, as they say here, in -- in 1857. It 10 was -- there was an -- actually the Enfranchisement Act 11 1869, I'm not positive about that -- that date. 12 But the -- the -- 13 Q: I sense something's -- 14 A: Let me -- just let me -- 15 Q: Sorry. 16 A: Let me put it this way, the Crown 17 passed legislation -- Enfranchisement Act legislation and 18 without going and looking at my things, I'm not -- I'm 19 not sure about the dates because I have a terrible memory 20 for those things. 21 But the Enfranchisement Act was designed 22 to encourage Indians to give up their Indian Status. 23 It's one (1) piece of many pieces of Indian legislation 24 that the --the Crown, at that time, tried to promote 25 enfranchisement, the goal being to assimilate people --
861 Indian people into the -- the greater society -- Canadian 2 society. 3 However, again, I think that it also has 4 to be balanced off with what the other legislation is. 5 It was one (1) option. It was discussed -- no, I 6 shouldn't say it was discussed with First Nations, but 7 there were many First Nations that reacted to that 8 Enfranchisement Act and were clear that they -- that they 9 were not in favour of it. 10 And it was -- it was never -- it was never 11 taken advantage of. There were -- there were few people 12 who followed through on the enfranchisement option. So, 13 certainly it was one (1) part of their -- one (1) part of 14 their -- their approach to managing Indian affairs. But 15 it -- it isn't the whole story. 16 Q: It isn't the whole story, but it's 17 fair to say, as -- as -- as you termed it before, that it 18 was part of -- 19 A: Of -- it was one (1) of their goals, 20 yes. 21 Q: -- a long term -- a long term agenda 22 that had, as a fundamental core, the concept of -- of 23 assimilation and disappearance as distinct Indian people; 24 is that fair? 25 A: That's correct. Yes.
871 Q: Okay. 2 3 (BRIEF PAUSE) 4 5 Q: Let me ask a little bit about 6 surrender votes -- 7 A: Okay. 8 Q: -- and I want to ask about them in 9 the context of what we've just discussed. And by 10 "surrender votes" for purposes of this discussion, I'm 11 talking about the procedure in the Indian Act for First 12 Nations communities releasing lands that had been 13 guaranteed to them in perpetuity by treaty. 14 And as I understood your earlier 15 testimony, that was pretty much what you -- that was 16 pretty much how you used the terminology as well, is that 17 fair? 18 A: I believe so, yes. 19 Q: Yeah. And as background, is it fair 20 to say that in the period -- and I'll just use somewhat 21 arbitrarily, the year of 1876, because that was the first 22 major comprehensive consolidation of Federal Indian 23 legislation; am I right so far? 24 A: That's correct. 25 Q: From that period to -- I'll use the
881 1942 date as the date of the appropriation or 2 expropriation of most of Stony Point Reserve, just as 3 another convenient bookmark. 4 Between those dates the Indian Agent had a 5 very large role in the community votes that were part of 6 the surrender process, is that fair? 7 A: Well, the Indian Agent's role at that 8 -- where it's a pretty broad time period, but the Indian 9 Agent's role in relation to a surrender vote, would be 10 that the Indian Agent would receive instructions from 11 headquarters to seek a vote, to call a meeting, which had 12 to be done in a particular way, specified in the 13 legislation. 14 He would put the proposition before the 15 community, he would conduct the vote itself, keep a -- a 16 poll book, a list of -- of who could vote, keep track of 17 the people voting, how people voted. And he would report 18 the results to Indian Affairs, to headquarters. 19 And he would usually also have a role in 20 making out the actual surrender document. Very often 21 they -- they were sent to the Indian Agent with his 22 instructions, and the surrender document would be mostly 23 complete, would be typed and then he would add in some 24 specific terms of the surrender. 25 And then the Indian Agent's role would be
891 to go with, depending on the time period, the Chief and 2 some of the leading men and sign an affidavit in front of 3 a judge, that the surrender had been done according to 4 particular procedures, as laid out in the Indian Act. 5 Q: Is it -- is it fair to say the Indian 6 Act -- the Indian Agent, together with his superiors, 7 would by and large choose the timing of the community 8 vote on the surrender? 9 A: Okay, speaking generally again, 10 normally they would suggest a time that they thought 11 would be appropriate. Sometimes it would be in 12 consultation with the people as to an appropriate time, 13 sometimes not. 14 Q: And is it fair to say that an Indian 15 Agent would by and large organize the actual community 16 vote. The location of it and the details of it. 17 And we saw mention in one (1) of the 18 documents that you were referring to in relation to the 19 1942 surrender, for example, that the Indian Agent 20 received instructions from his superiors to organize the 21 transportation to make sure that it -- I forget the exact 22 wording, but that people who supported the vote would 23 show up. 24 Have I got roughly right, the reference 25 that you had in your --
901 A: Well the -- the actual reference to - 2 - to that was to encourage a favourable vote. 3 Q: Right. 4 A: So it's hard to say exactly what that 5 meant. But normally the Indian Agent, and again I'm 6 speaking generally here, normally the Indian Agent would 7 -- would call the vote at a particular place. 8 In most communities they would already 9 have some kind of a community hall or a -- an office that 10 they used as a Band office. Sometimes they used a 11 church. I've seen where votes have been held in a 12 church, some kind of a public meeting where business 13 would be done. 14 The Indian Agent would call people to show 15 up at a particular time for the vote, yes. 16 Q: And is it fair to say that the Indian 17 Agent would largely dominate meetings of Chief and 18 Council of the community when possible surrenders were 19 discussed before the community vote because the Indian 20 Act, in fact, gave the Indian Agents very, very 21 substantial powers in relation to all meetings of Chief 22 and Council; is that fair? 23 A: Work that's been done on the role of 24 the Indian Agent in controlling Band affairs and, again, 25 here I speak very generally because we're looking at a
911 wide time period, the Indian Agent generally had a lot of 2 influence in communities. 3 But the Chiefs and Council were not 4 without influence. It would depend a great deal on the 5 community and the time period, the degree to which the 6 community had -- had involvement with the Department of 7 Indian Affairs or the degree to which they were still 8 very independent of the Department. 9 Q: Is it fair to say that in these 10 surrender votes, it would be the Indian Agent who would 11 largely determine what information community members had 12 available to them about the proposed surrender? 13 A: Yes, particularly in the -- in the 14 earlier period, the late 19th Century, the early 20th 15 Century. The Indian Agent would be the person who would 16 explain to the community what the proposed terms of the 17 surrender were. 18 And he would be the person who would 19 interpret to the community what their -- what their 20 options were. When we get into the mid 20th Century, 21 depending on what communities you're talking about, that 22 changes and we -- we see situations where, and again I'm 23 speaking very generally here, we -- we see situations 24 where communities engaged outside people to -- to assist 25 them.
921 Q: Well, if I can take that question and 2 turn our attention to the 1928 surrender of the lands 3 that eventually became Ipperwash Provincial Park. Have 4 you seen any records or evidence that in that 1928 5 surrender there was any outside advisor retained by the 6 Chief and Council or the community other than the Indian 7 Agent with respect to the 1928 surrender? 8 A: I'm not aware of any. 9 Q: Have you come across any record or 10 evidence in relation to the 1928 surrender that the 11 Indian Agent ever discussed with the Chief and Council or 12 with the community any advantages of continuing to hold 13 on to their treaty lands for the long term? 14 A: I haven't seen anything to that 15 effect. 16 Q: Have you, in relation to the 1928 17 surrender, come across any record or evidence that the 18 Indian Agent discussed with the Chief and Council or the 19 First Nation community at large the possible future value 20 of the Stony Point shore lands as a resort or a beach or 21 a park or cottages? 22 A: I'm not aware of any. 23 Q: Have you come across any record or -- 24 evidence in relation to the 1928 surrender that the 25 Indian Agent put to the Chief and Council or to the
931 community any possible positive options for the future 2 regarding the Stony Point shore lands other than 3 surrender and sale? 4 A: No. 5 MR. MURRAY KLIPPENSTEIN: Okay. Those 6 are all my questions. Thank you very much, Ms. Holmes. 7 Thank you, Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Thank you, 9 very much. Mr. Rosenthal...? 10 You stayed right within your estimated 11 time line, Mr. Klippenstein. Right in it, thank you very 12 much. 13 14 (BRIEF PAUSE) 15 16 MR. PETER ROSENTHAL: Your indulgence, Mr. 17 Commissioner, I'm speaking to your Counsel. 18 19 (BRIEF PAUSE) 20 21 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 22 Q: Good afternoon, barely. 23 A: Good afternoon. 24 Q: I'm representing a group of close 25 relatives, cousins and brother of Dudley George, who are
941 appearing at this Inquiry under the name, Aazhoodena and 2 George Family Group. 3 I'd like to ask you very briefly about the 4 annuities that you've told us about. Of course people 5 mainly -- mainly talk about the land, when they talk 6 about the Treaty of 1827. But there were annuities 7 promised, and -- and the way you described them, those 8 annuities were a non-trivial amount of money, though it 9 sounds trivial today. 10 When you translate it into what it could 11 buy in 1827, you told us it was two (2) months salary of 12 a reasonably employed Indian Agent, for example, right? 13 A: Yes, I think that was of the -- I 14 compared it with the salary of the Indian Interpreter. 15 Yes, it was -- it was -- it was a reasonable amount of 16 money, yes. 17 Q: Yes. And I believe you told us that 18 it was your understanding that with respect to the people 19 of this area, Kettle Point and Stony Point, that sum was 20 capitalized at some point? 21 A: That's correct. 22 Q: And interest paid, was your 23 understanding? 24 A: That's correct. 25 Q: And is it your understanding that
951 interest is still being paid then? 2 A: No, actually I believe in those -- 3 those pre-Confederation Treaties in Upper Canada, that 4 they're no longer being distributed to the individuals. 5 However, I haven't really examined the 6 situation with relative to Kettle Point and -- and Stony 7 Point, so I can't say definitively, but it -- it would be 8 -- if I was to make an educated guess based on other 9 communities with pre-Confederation Treaties, I would say 10 that -- that individuals today are not receiving the so- 11 called Treaty money payment 12 Q: Would you agree that the only 13 reasonable interpretation of the annuity would be an 14 inflation proof annuity, there was no concept by the 15 First Nations people who signed that Treaty in 1827, that 16 that amount might be worth noting in 2004, right? 17 A: Can you just explain inflation proof 18 again? I'm sorry, I just momentarily lost my 19 concentration I apologize. 20 Q: Sorry, it was perhaps not -- not 21 optimally phrased, sorry. Would you agree with the 22 following, that First Nations people signing that Treaty, 23 would have expected that the value of the annuity would 24 have been the same as far as what it would purchase, for 25 their great grandchildren, as it was for them?
961 A: Well, it's -- it's difficult for me 2 to speculate what would be in the minds of the people who 3 signed the Treaty in 1827. However, what I would say is 4 that I don't see any evidence that indicates that people 5 thought that sum of money was going to -- or the value of 6 that sum of money was going to change in any way. 7 Q: Yes, it's not conceivable that the 8 First Nations people would have anticipated the rate of 9 inflation that's taken place, to make that valueless 10 today, is it? 11 A: Well, I -- I mean that -- I mean it's 12 hard for anybody in 1827 to anticipate the -- the effect 13 of inflation, and I don't know if that was even a concept 14 at the time. 15 So, I -- basically the only way I can 16 really answer that question is saying that I don't see 17 any evidence that speaks to that concept, that the value 18 of the money is going to change and -- and decrease. 19 Q: Yes. And isn't it therefore fair to 20 say that the only reasonable interpretation of that 21 treaty is that two (2) months' salary, approximately, is 22 what is owed annually to each of those persons? 23 A: Well, I think -- 24 Q: -- in perpetuity? 25 A: I think as -- as somebody's lawyer
971 one could make that argument if one cared to. As -- as a 2 historian, I don't know that that's really my area of 3 expertise. 4 Q: Okay. Now, you discussed the 5 surrenders, both at Kettle Point in 1927 and at Stony 6 Point in 1928? 7 A: That's correct. 8 Q: Now, what was the real price per acre 9 at Kettle Point in 1927? You'll recall it was finally 10 reported as eighty-five dollars ($85) an acre, but you 11 recall the earlier document that indicated it was agreed 12 to be a hundred dollars ($100) an acre but fifteen 13 dollars ($15) paid up front to get them to vote for it, 14 in effect; right? 15 A: Well, the -- the amount of money that 16 was paid by the purchaser to the Department of Indian 17 Affairs and then went into the Band fund was eighty-five 18 dollars ($85) an acre. However, there was money 19 distributed prior to that to individuals and the 20 discussion when the treaty -- or the surrender was being 21 discussed, there's a suggestion or there's statements 22 that the purchaser was going to give fifteen dollars 23 ($15) per person as a -- an up-front payment, if you 24 will. Q: Yes. 25 A: Then the -- the documentation shows
981 that people who went to vote were given a five dollar 2 ($5) bill and -- and that is captured by statements made 3 by a number of people. I am unsure from the level of 4 research that I did on that for this report, exactly how 5 much money -- how much of that fifteen dollars ($15) was 6 actually distributed and the -- whatever sum was actually 7 distributed, it wasn't per acre. 8 It was -- it was supposed to be fifteen 9 dollars ($15) and, you know, five dollar ($5) bills were 10 given out to some people. So I'm not really sure exactly 11 how much money -- money was distributed, whose hands it 12 went into. 13 So the -- the -- the surrender price that 14 went into the Band Fund that became money owned by the 15 Band was the eighty-five dollars ($85) an acre. So it -- 16 it's a little bit imprecise exactly how much money the 17 purchaser -- how much he put out in order to attain that 18 land. 19 Q: Yes, the first offer was a hundred 20 dollars ($100) per acre -- 21 A: That's correct. 22 Q: -- and then they paid eighty-five 23 dollars ($85) per acre and some other monies to 24 individuals in some way that we don't know for sure; 25 right?
991 A: I -- I would say that that's a 2 correct summary. 3 Q: And then when Commission Counsel was 4 examining you yesterday, I believe, she talked about the 5 contrast between that payment and the payment only a year 6 later with respect to the surrender of the Stony Point 7 beach front of only thirty-five dollars ($35) an acre? 8 A: That's correct. 9 Q: Significantly less? 10 A: Yes, that does sound like a lot less. 11 It's less than half. 12 Q: And then we know that only a few 13 years later in 1936 the portion that was -- that became 14 Ipperwash Park was sold to the Province for ten thousand 15 dollars ($10,000); correct? 16 A: That's correct. 17 Q: And it's approximately -- the whole 18 parcel that was bought in 1928 is approximately three and 19 a half times the amount that was the park? 20 A: I believe the acreage of the 21 surrendered tract was three hundred and seventy-seven 22 (377) acres -- 23 Q: Right. 24 A: -- and the portion that was purchased 25 for Ipperwash Park, I believe it's a hundred and nine
1001 (109) acres but I would -- I would have to check that. 2 Q: Yes, that's what you -- 3 A: I think it's a hundred and nine. 4 Q: -- testified the other day. Yes. 5 A: Yeah, so it's just -- yeah, it's -- 6 Q: Three and a half (3 «) times, 7 approximately? 8 A: Approximately, yes. 9 Q: Now, 1936 was the depression? 10 A: That's correct. 11 Q: Prices were low? 12 A: I'm not sure what land prices were, 13 but prices were generally low, yes. 14 Q: 1928, was before the depression, 15 before the crash of 1929? 16 A: That's correct. 17 Q: It seems that the people who bought 18 this park made a tremendous profit, especially given the 19 depression, isn't that right? The people who bought the 20 land and then sold it for the park? 21 A: Yes, it -- because they -- yes, I 22 would say that it appears that they made a considerable 23 profit. 24 Q: This was an incredible rip-off, in 25 any sense, right?
1011 A: Well, you know, in a Court of law I 2 don't use colloquial terms like rip-off, but I would say 3 that the person who bought that land and then sold it, 4 made a considerable profit, yes. 5 Q: And the Indian Agent, instead of 6 protecting the people from unscrupulous dealers, as was 7 his responsibility, aided and abetted that sale, is that 8 correct? 9 A: The -- the Indian Agent encouraged 10 the original surrender in -- of the -- of the land. I -- 11 I'm not aware that the Indian Agent had any role in -- in 12 the resale of the land, or that the Indian Agent had any 13 awareness that the land was going to be resold in short 14 time. 15 Q: Well, I wasn't suggesting that, but 16 the Indian Agent should have had some awareness, should 17 he not, that thirty-five dollars ($35) an acre, 18 especially given the Kettle Point sale a year earlier was 19 by any standard, a very, very low price for a beautiful 20 beach? 21 A: I think the Indian Agent was aware of 22 the previous sale at eighty-five dollars ($85) an acre, 23 thirty-five dollars ($35) an acre is certainly less. I - 24 - I don't recall seeing any discussion of -- of the 25 relative value of that price.
1021 What the Indian Agent should have known or 2 should have been aware of, I find that hard to judge, 3 because I don't -- I don't really know enough about that 4 Indian Agent, and I would -- I wouldn't want to make a 5 judgment on what he should have or should not have known. 6 I just look at the bare fact of -- of what was paid. 7 Q: Do you have easily available on your 8 computer, your slides? 9 A: Yes, the slides that I had up. 10 Q: The -- 11 A: Yeah, yeah. 12 Q: -- slides that you had up? Could you 13 please project slide 21. 14 15 (BRIEF PAUSE) 16 17 A: Yeah, there it is. That's the one (1) 18 you're thinking of? 19 Q: I can't see it yet. 20 A: Oh, the technical person is going to 21 have to switch the computers, I think. 22 Q: Yeah, assistance is coming, thank 23 you. 24 25 (BRIEF PAUSE)
1031 Q: Yes, now I can see it, and that is 2 the one (1) I had in mind, thank you. 3 A: Okay. 4 5 (BRIEF PAUSE) 6 7 Q: Now, when I first looked at that, I 8 must say I was rather confused by it, because you have 9 the -- on the right hand side you tell us the acreage, 10 and on the left hand side the population, and then 11 there's the big bars. 12 But at the bottom you explained that the 13 acreage is only the blue line, right? 14 A: That's correct. 15 Q: So, what you mean to tell us -- and 16 the line connecting the two (2) purple squares, is not 17 meant to reflect the gradual decline in acreage is it? 18 A: No, it's not. 19 Q: So, with respect to the acreage part 20 of this graph, all you want to convey to us by it, 21 correct me if I'm wrong, is that in 1839 there were 22 approximately five thousand (5,000) acres, from the two 23 (2) reserves, Kettle Point and Stony Point together, 24 whereas in 1944 there were approximately twenty-five 25 hundred (2,500) acres, from the one (1) remaining
1041 reserve, Kettle Point? 2 A: Yeah, and actually I can give you the 3 proper acreages there. It's -- in 1939, the acreage of 4 the Kettle Point Reserve and the Stony Point Reserve 5 combined, was five thousand and ninety-six (5,096) acres. 6 Q: Excuse me, I believe you might have 7 misspoke and said 1939 -- 8 A: Oh. 9 Q: -- you meant 1839, if you -- 10 A: 18 -- 1827, now we're all -- 11 Q: Yes. 12 A: -- mixing up our dates. So, 1827 the 13 date of the Treaty, when the reserve is set aside, it's 14 five thousand and ninety-six (5,096) acres, and that's 15 the -- the blue square that you see way up in the corner 16 by itself. 17 And then after the -- the final taking of 18 -- of the Stony Point Reserve, all the acreage that the - 19 - that the First Nation is left with is two thousand 20 three hundred and sixty-three (2,363) acres, so it's less 21 than half the acreage. 22 Q: Yes. And as your graph illustrates, 23 it's the opposite of what you told us was envisioned in 24 1827, if the population grew -- was bigger, maybe we'd 25 get a bigger tract of land, it's a significantly bigger
1051 population on a significantly smaller piece of land? 2 A: That's correct. 3 Q: Now, with respect to the change in 4 population, illustrated by the -- the purple bars there. 5 In 1839 you have approximately thirty (30) people or so? 6 A: I think it's twenty-seven (27), yes. 7 Q: Twenty-seven (27). And then a quite 8 significant jump by 1845 to over a hundred (100), that 9 would be I gather when the Potawatomi came from the 10 United States, during that interval, is that correct? 11 A: I believe that part of that is the 12 influx of Potawatomi, and part of it is also because 13 there's just a better census. That early census is -- so 14 it's -- it's two (2) factors, I believe, the -- the 15 better census and the influx of the Potawatomi. 16 Q: Okay. But then I couldn't understand 17 and perhaps you can assist me, as to how there was such a 18 population increase from 1939 to 1944, a period of five 19 (5) years, it looks like a quite a sharp increase in 20 population, and I wasn't aware of any influx during that 21 period? 22 A: Yeah, I -- I myself was curious about 23 that. Those figures, they -- the 1935 figure, which is 24 actually two hundred and eight (208) people, that -- 25 Q: 1939, you mean?
1061 A: Did I do it again? 2 Q: You said '35, I believe -- 3 A: I'm sorry. The 1939 figure is from a 4 Department of Indian Affairs census. 5 Q: Right. 6 A: And it's two hundred and eight (208) 7 people. And then the next figure, the 1944 figure, is 8 again from the Department of Indian Affairs census, and 9 it's three hundred and seventy-one (371) people. 10 I am not absolutely sure. I suspect and I 11 certainly stand to be corrected on this, but I suspect 12 that that increase in population is because in the early 13 1940s, there was -- perhaps around 1941, there was a -- 14 either -- either through a Band Council Resolution, or 15 through some other kind of a mechanism, that there were 16 people who had resided at Kettle Point and Stony Point, 17 who were officially accepted into the Band from the 18 Indian Affairs point of view, so Indian Affairs started 19 counting those people as Band members, and they had not 20 counted them before. 21 I'm not -- I'm not sure about that fact, 22 it's something that I read in -- in a report that was 23 done by Victor Gullwich (phonetic), and I'm probably not 24 pronouncing his name properly. He talks about people 25 being finally accepted into the Band.
1071 So that may be -- that -- might be what we 2 see reflected in those census numbers, but I'm not sure, 3 and I would have to -- to verify that I would have to 4 look at Indian Affairs membership records, because these 5 are official Indian Affairs numbers. 6 Q: These numbers come from Indian 7 Affairs? 8 A: That's correct. So it would -- it 9 would reflect what Indian Affairs considers to be the 10 registered Indian population, members of that Band. 11 Q: And they would be only persons that 12 Indian Affairs considered have status as members of that 13 Band, is that what you're saying? 14 A: That -- that's correct. 15 Q: I see. So there may have been -- one 16 would assume that in general there were more people 17 living there who did not have full status? 18 A: But that's the usual situation on 19 every Canadian reserve; that there are people residing 20 who are not recognized as Status Indians by the 21 Department. 22 Q: Now, 1942 is in between 1939 and 23 1944 -- 24 A: That's correct. 25 Q: -- as I understand it, and that was
1081 when Stony Point Reserve was seized by the Federal 2 Government. Now, I'm interested in the numbers of people 3 who were dislocated by that seizure. 4 In your report, you have your report in 5 front of you and I don't have my copy of it, so excuse me 6 while I get my copy. Now, in your report, at page 49 of 7 your report, you speak about the number of dislocated 8 families as follows; if you look on page 49 the end of 9 the second paragraph says: 10 "There were fifty-eight (58) location 11 tickets covering the Stony Point 12 Reserve lands." 13 But then in the next paragraph, the second 14 sentence from the end of the next paragraph, you, in 15 talking about Indian Agent McCracken, you say: 16 "He was also told that the surrender 17 and sale was a golden opportunity to 18 remove white owners of the Kettle Point 19 Reserve to make room some of the 20 fourteen (14) families from Stony." 21 So there it's suggested that there were 22 fourteen (14) families who were to be relocated from the 23 Stony Point Reserve to the Kettle Point. However, if you 24 look at page 52 of your report the last paragraph on that 25 page beginning "despite the concerns...", the second
1091 sentence of that paragraph says: 2 "Sixteen (16) families resident at 3 Stony Point were -- considered entitled 4 to moving expenses." 5 Now, if there were only fourteen (14) 6 families it's not likely sixteen (16) would have been 7 entitled to moving expenses. One would think the other 8 way around, perhaps some of the ones there were not 9 entitled to moving expenses. 10 But -- and then if we look at a document 11 and I'm going to ask, Mr. Commissioner, if we can perhaps 12 break for lunch before that because I haven't arranged 13 for -- located the documents, but I'll just appraise you, 14 Ms. Holmes, as to where I'm going so you might consider 15 the matter if you have time, in addition to your lunch. 16 If you look at the document it's 4000298, 17 it lists those who were given payments to help with their 18 relocating and as I calculate, although it's hard to 19 count for sure, but I count, like, twenty (20) people, I 20 think. 21 So, I would like your best assistance, if 22 possible, as to the number of people who were forcibly 23 relocated during this seizure and I hope that doesn't 24 interfere with your lunch, that request. Thank you. 25 COMMISSIONER SIDNEY LINDEN: This is a
1101 good time to adjourn for lunch? 2 MR. PETER ROSENTHAL: Is that okay, Mr. 3 Commissioner? 4 COMMISSIONER SIDNEY LINDEN: That's fair 5 enough, Mr. Rosenthal. It's now almost one o'clock. 6 This would be a good time to adjourn for lunch. We'll 7 reconvene at 2:15; is that all right. 8 MR. PETER ROSENTHAL: Thank you. 9 COMMISSIONER SIDNEY LINDEN: Thank you 10 very much. 11 THE REGISTRAR: This Inquiry stands 12 adjourned until 2:15. 13 14 --- Upon recessing at 12:58 p.m. 15 --- Upon resuming at 2:15 p.m. 16 17 THE REGISTRAR: This Inquiry is now resumed. 18 COMMISSIONER SIDNEY LINDEN: You've still got 19 the floor, Mr. Rosenthal. 20 MR. PETER ROSENTHAL: Thank you, Mr. 21 Commissioner. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: Good afternoon, properly now. And I'm 25 sorry, I know you did spend much of your lunch sitting there
1111 reviewing the matters I asked you to. 2 And can you now then assist us as to who was 3 dislocated during this seizure in 1942? 4 A: Okay, well the -- the documents that you 5 -- or the pages of the report that you drew my attention 6 to -- 7 Q: That's Document 4000298. And that's a 8 five (5) page document, the last three (3) pages of that 9 document have a table of persons, and it indicates next to 10 their names, what land they had and what was required to move 11 them, right? 12 A: That's correct. 13 Q: Okay, so it's on the screen now, and it's 14 also document 4000298. And this appears to list perhaps 15 twenty-two (22) different houses or something; is that a fair 16 count? It's hard to know exactly. 17 A: Well, it's -- I counted them over the 18 lunch period, and you're right, it is difficult, because some 19 of the names are repeated and -- 20 Q: Right. 21 A: -- so I made a tally and I thought that 22 there were twenty-four (24) individual names on that list. 23 And in the -- the letter that accompanies that, which you 24 drew my attention to as being quoted in the -- the report, 25 the -- the inspector, the Indian Affairs Inspector is saying
1121 that there's going to be savings accounts for twenty-two (22) 2 people, but we see twenty-four (24) people listed here. 3 And so, I went through that, it's a little bit 4 of a mystery, and as you recall, as you pointed out before, 5 in earlier correspondence they talked about there being 6 sixteen (16) families displaced, and in earlier 7 correspondence to that they said fourteen (14) families. So, 8 it's gone fourteen (14) families, sixteen (16) families and 9 then on this list we see twenty-four (24) different 10 individuals, by my count, are listed. 11 However, in some of those, the comments in the 12 right hand column is -- I'm not sure, does it show there? 13 No. It -- it -- because it's a legal sized page that goes -- 14 that's sideways, does it -- yeah. 15 In this right hand column is a description of 16 what -- what they're going to do. And on some of them it 17 says, no re-establishment required. Some of them they 18 describe how they're going to move the house and -- and then 19 on a few of them they say that their moving and repairs will 20 be at their own expense. 21 So, the information isn't exactly clear, to my 22 reading. So, I was trying to figure out how twenty-four (24) 23 people became twenty-two (22) people. 24 Q: Well, families not -- 25 A: Families, yes. They -- they talk about
1131 them -- they're just -- the name of the head of the families, 2 most of them are men and some of them are women. So, they 3 would be the heads of the family, but you're right, they 4 would represent the entire family. 5 So, I -- I'm -- my reading of this document 6 is, although there's twenty-four (24) family heads listed, 7 and he talk -- the agent talks about there being accounts set 8 up for twenty-two (22) people, that there's some people that 9 are not getting any assistance through this -- this 10 relocation scheme. 11 Q: So, my understanding, I don't know if you 12 have a similar, or any understanding, that -- of the 13 question, but my understanding that some of these lots 14 undoubtedly had more than one (1) family living in them, or 15 some of the abodes, evidently had more than one (1) family 16 living in them. 17 Is that your understanding, or -- 18 A: It -- that does appear to be the case. 19 And I take that from another document, in which the Indian 20 Agent is -- is asking guidance from headquarters, and he's 21 talking about people who are not considered a head of family 22 and they are living with friends or relatives. 23 And they -- the Indian agent asks the question 24 about those people: What kind of assistance, if any, they 25 are going to have? So that leads me to believe that on Stony
1141 Point there are people living who are not being listed as 2 heads of families but they're residing with relatives and 3 some situations like that. 4 Q: Is there any list or is there any way of 5 obtaining a list of all those people who were living on Stony 6 Point Reserve at the time they were forcibly evicted from 7 that reserve? 8 A: I can't recall seeing a list that lists 9 all the individuals because, let's see, these lists that we 10 have show heads of families and some of them are noted as 11 being not entitled. 12 I gave the example before, a Mrs. MacKinnon 13 who they considered a white woman. There are people who we 14 know from other documentation are residing with somebody 15 else. 16 So, I'm not -- I'm not confident that I've 17 seen list that lists every individual. However, what I would 18 add to that is I didn't specifically go looking for such a 19 list, so it's a -- it's a hard question for me to answer 20 definitively. 21 Q: You mentioned before that the censuses' 22 -- is that the plural of census -- that you were referring to 23 were from the Department of Indian Affairs? 24 A: That's correct. 25 Q: Would they have had a census of the
1151 people living on the Stony Point Reserve in 1942? 2 A: They would have a -- a census count which 3 would be numbers but not necessarily names -- 4 Q: I see. 5 A: -- of all the people -- no, excuse me. 6 They would have the names of all the people who were residing 7 -- no, they would have the names of all of the people who 8 were considered to be recognized band members of the Kettle 9 Point and Stony Point Band. 10 They would not necessarily have a list of all 11 the people who were actually residing on the reserve. When 12 they did -- when they did the appraisal, they listed the 13 heads of families but I can't... 14 Q: If somebody, who was not an expert, like 15 me, wanted to try to obtain as much information about that as 16 possible what -- one asks the Department of Indian Affairs to 17 give a list of the Band members in 1942 who were resident on 18 each of the reserves? 19 A: If -- if it wasn't barred by access to 20 information, you could get from the Department of Indian 21 Affairs, a list of recognized Band members of the Kettle 22 Point and Stony Point Band. 23 Department of Indian Affairs records from that 24 period don't necessarily list every person who is residing on 25 the reserve. They would have lists of location tickets which
1161 is people who hold location tickets on the reserve but, at 2 that period, the mid-20th Century, the location ticket system 3 was not really very well monitored so, it wouldn't 4 necessarily be up to date. Plus, the location ticket lists 5 do not reflect everybody who's living there. 6 So, I know -- I'm -- I'm having -- it's hard 7 to answer that question because although there are several 8 sources of information, -- 9 Q: Yes. 10 A: -- it's difficult to find a comprehensive 11 list that would reflect all of the individual people or all 12 the adult people even that were living on a reserve at a 13 particular time. 14 MR. PETER ROSENTHAL: Mr. Millar, could you 15 move it to the other side of the screen, to move back from 16 what you did before so we see the left-hand side? Thank you. 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: If you notice, the name Dan Bressette 20 occurs twice -- 21 A: That's correct. 22 Q: -- in about line 5 and -- well, I could 23 have given an easier example; at the top John Elijah also 24 occurs twice. 25 In both those cases they each have two (2)
1171 different lots, as you see, from the column immediately to 2 the right of their names, and they each have two (2) 3 different location tickets, as you see from the column to the 4 left of their names; is that correct? 5 A: That's correct. 6 Q: So, that -- that meant that each of those 7 persons had titles, one might say, in the -- in the location 8 ticket sense, to two (2) different parcels of Stony Point 9 Reserve? 10 A: That's correct. 11 Q: Now, on the other hand, if you look a 12 little bit further down on that page, Ms. Lucy -- Mrs. Lucy 13 Cloud, it says, she had half of lot 2,C and that was forty 14 (40) acres, according to the table. But if you look on the 15 left hand column, she didn't have any ticket for that. 16 A: That's correct. 17 Q: And in fact, if you look up a little bit 18 above that, Dan Bressette appears to have a ticket for a half 19 of lot 2, C. I -- I can't tell if it's the same half as Ms. 20 Lucy Cloud had or not? 21 A: No, actually, Mrs. Lucy Cloud, hers is 22 the west half of Lot 2, Concession C. 23 Q: Oh, okay. 24 A: And Dan Bressette, his is the east half 25 of Lot 2, Concession C. So, they're next door to each other.
1181 Q: Absolutely, yes, thank you. I -- I 2 missed that. So -- so, that -- but then that shows Ms. Lucy 3 Cloud had some sort of title, it was recognized in the 4 expropriation, to a lot of forty (40) acres, but she didn't 5 have a ticket. So, what was -- what was her title to that? 6 A: Okay, well there -- there's two (2) 7 different factors that could be involved here. One (1) is 8 people lived in places but had never been issued with a 9 location ticket, for any number of reasons. I -- I don't 10 know the reason why she doesn't have one (1). 11 The other factor is, as I was mentioning, the 12 whole management of the location ticket system was very 13 haphazard. And I recall, I can't remember what document it 14 was, but I recall when I was reading these documents, that 15 one of the problems that they had sorting out everything was 16 that the -- the register, if you want to call it that, of 17 location tickets, was in disarray. 18 And any -- any reserve that I've worked on in 19 Ontario, around this period of time, their loca -- their 20 location ticket register -- registry systems are always quite 21 imperfect. 22 So, I'm not sure why she didn't have a 23 location ticket, but that would not be uncommon. 24 Q: And it wouldn't be determinative of her 25 right to the land?
1191 A: It -- not necessarily, but it could 2 indicate that for some reason the chief and council had never 3 given her a location ticket, because they either -- they 4 didn't want to raise the issue of whether or not she had a 5 right to live there. 6 And one (1) of the ways that people dealt with 7 those kinds of situations, if people perhaps weren't Band 8 members, is they just wouldn't -- they wouldn't go there, the 9 person would live in a spot and the whole issue of the 10 location ticket would just be avoided. 11 So, I -- you know, there -- as I say, there 12 could be many, many reasons why she didn't have a location 13 ticket. I can't really speculate on -- on this particular 14 case. 15 Q: Now we can see the entire document on our 16 screen, you don't realize that Ms. Holmes, but you can read 17 your copy. 18 So, now if we look next to Ms. Lucy Cloud all 19 the way on the right, we see that they -- the Department of 20 Indian Affairs, or whoever was doing this, the Department of 21 National Defence, maybe, recognized Ms. Lucy Cloud, even 22 without her location ticket, as someone who was to be moved 23 with the people -- the same as the people with the location 24 ticket, right? 25 A: That's correct.
1201 Q: And treated the same way. Now, if we 2 could go to the next page please; the second line on this 3 page is Robert George? 4 A: Correct. 5 Q: Now, you told us something about Robert 6 George in your testimony, I believe yesterday or perhaps the 7 day before, if you recall, as the person who was 8 characterized by some Indian agents as being too insistent 9 about the grave site situations, right? 10 A: That's correct. 11 Q: Now, I don't know if you're aware, and I 12 would put it to you we will have evidence, that Robert George 13 had a number of children; one of his children was Reginald 14 George who was Dudley George's father. I'm just informing 15 you that we -- we expect evidence of this. 16 A: Okay. 17 Q: Another of his children was Daniel George 18 Senior. And Daniel George Senior is the father of many of my 19 clients and he is also the man who was buried in what was 20 then Ipperwash Camp in 1990 after a period of some fifty (50) 21 years when there were no such burials of First Nations 22 people. 23 A: Yes, I recall that. 24 Q: You knew that he was the name of the 25 person who was buried?
1211 A: Yes, I've seen that in records. 2 Q: And I understand that there will also be 3 evidence that he was the father of Bruce George who is the 4 person right on top of him in this table. But I also 5 anticipate there being evidence that he had some children who 6 died much younger than the aforementioned ones and they were 7 buried in that very grave that he was so concerned about. 8 Now, with that information and what you know 9 about people's concerns in general and First Nations people's 10 concerns in particular for their grave sites, explain why he 11 had that particular interest that was ridiculed, I would 12 suggest, by the Indian agents? 13 A: I would say that that -- that helped to 14 explain that. Yes, certainly. 15 Q: Now, on page 50 of your report, 16 approximately in the middle of the page, you're discussing 17 the surrender vote in 1942 and it was a negative vote about 18 surrendering -- surrendering what was later seized. 19 And you quote from the Inspector of Indian 20 Agencies and Reserves and you describe him -- you say that: 21 "He laid the blame for the refusal on the 22 influence of a few white neighbours and on 23 negative addresses by the chief and 24 councillors. In conclusion he stated ..." 25 And you quote then:
1221 "The various reasons given, both in private 2 interviews and at the meeting, hardly seem 3 adequate for not surrendering for the 4 military purpose. These reasons cover, we 5 have our land so long as the sun shines and 6 the grass grows. It is our heritage and we 7 must retain it. In the last surrender we 8 did not get enough money." 9 I would put it to you that it's shocking that 10 the Inspector of Indian Agencies and Reserves characterized 11 those reasons as hardly adequate; would you agree? 12 A: I would agree that in making that 13 statement the Inspector shows a complete lack of 14 understanding of the -- the feelings and the sentiment and 15 the attachment that people had to their history and to their 16 land, yes. 17 Q: And would you agree that he also shows a 18 complete lack of understanding of the commitment made in 1827 19 to those people? 20 A: Yes. I think that -- that it was typical 21 for officials at that time to not be particularly cognisant 22 or aware of the commitments made at the time of Treaty; they 23 were divorced from that history. 24 Q: Now, you referred to the masters thesis 25 of Helen Roos, several times in the course of your testimony.
1231 I should request that Mr. Millar put that up on the screen, 2 it's document 400509. 3 And I'm going to be referring to just certain 4 portions of that document, you'll be glad to know, because 5 it's a hundred (100) and some pages, and I -- I've excerpted 6 those portions in a hard copy, which might facilitate your 7 looking at them, and might facilitate the Commissioner's 8 looking at them, and I have a couple of others if anybody 9 else wants one (1), but I don't have enough for everybody. 10 A: I have my own hard copy, thank you. 11 Q: Okay. But this has just the pages I'm 12 going to refer, it might be easier for you to just flip 13 along, but and I have some more -- it's completely up to you. 14 You can read whichever you like. 15 A: Actually if -- if you just give me the 16 page numbers I can turn to them. 17 Q: Sure, I will as we go, yeah. 18 19 (BRIEF PAUSE) 20 21 MR. PETER ROSENTHAL: Anybody wants one? 22 I'll collect from you later. 23 24 (BRIEF PAUSE) 25
1241 MR. PETER ROSENTHAL: I didn't realize 2 there'd be such a market on these things. 3 COMMISSIONER SIDNEY LINDEN: You should have 4 charged more for them. 5 MR. PETER ROSENTHAL: Well, I'm already 6 charging a hundred dollars ($100) a piece, I think that's 7 enough, but in any event... 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: This is the master's thesis of Helen Roos 11 and the Department of Anthropology at the University of 12 Western Ontario, and you referred to it several times in the 13 course of your testimony, and it's also referred to in your 14 report. 15 I wanted to refer to some other portions of 16 it, and the first portion I should like to refer to is at 17 page 61. 18 A: Actually I think it's the Department of 19 History. 20 Q: Oh -- 21 A: Not Anthropology. 22 Q: -- okay. 23 A: It's on her cover page; Helen Roos, 24 Department of History, University of Western Ontario. 25 Q: You're absolutely right, thank you.
1251 A: Excuse me, could you repeat the page 2 number? 3 Q: 61. And the paragraph I should like to 4 read and ask your comment on, let's see if you agree with Ms. 5 Roos. 6 As you indicated in your testimony earlier, 7 this -- this thesis is a study of the expropriation of the 8 Stony Point Reserve in 1942, right? 9 A: That's correct. 10 Q: And it's, perhaps, the most substantial 11 study of that expropriation that's available, concentrating 12 on that? 13 A: I think that there -- that there is 14 another one (1), another -- I can't recall right now if it's 15 a masters thesis or a PhD thesis, but there is another thesis 16 on -- on the expropriation or the appropriation of the camp, 17 by a gentleman named -- I think it's Ledenbauer (phonetic) or 18 -- but it -- but it is a thesis that her -- her thesis is one 19 (1) that concentrates on that appropriation, yes. 20 Q: Yes. And there's some other documents 21 that deal with that expropriation to some extent, but this is 22 a thorough study on just the one (1) expropriation; is that 23 right? 24 A: It's -- it's a study that focusses on 25 that appropriation, yes.
1261 Q: Yes. And then I should like to turn then 2 to page 61 of that study, and put the following paragraph to 3 you: 4 "In the defence of the military, local 5 Indian agents and senior officials in 6 Indian Affairs, fail to scrutinize the 7 details of the report and purchase price. 8 Throughout the early period, Indian Affairs 9 disregarded both the letter of the 10 procedural requirements, as well as the 11 spirit of their profession. Clearly the 12 military and Indian Affairs seriously 13 betrayed the residents of Stony Point. The 14 community was excluded from the process, 15 when the military withheld plans to 16 purchase the land or establish their camp. 17 In addition, Brigadier General Macdonald 18 left the band out of any negotiations 19 regarding the sale or purchase price. 20 However, the brunt of historical judgment 21 rests with Indian Affairs, and the 22 mismanagement of the Stony Point surrender 23 and sale. 24 While the Indian agent strongly supported 25 the sale of the outset, his motivations
1271 were not based on the war effort, rather 2 Indian Affairs saw an easy opportunity to 3 dispose of administrative and financial 4 burden." 5 Now, I just -- and, with that paragraph, I 6 believe, in your report, you also elude to the statement from 7 a -- an Indian agent, about how this would ease their 8 financial problem and their administrative problem in dealing 9 with the two separate Reserves, right? 10 A: The -- the Indian agent certainly did 11 make that statement. I could go back to it in the report, 12 but as I recall it, they characterized that as a -- as a 13 golden opportunity to move the people at Stony Point who they 14 call, I think, a few straggling Indians, -- 15 Q: Yes. 16 A: -- and join them with the main body, 17 which is the -- the people at Kettle Point, and that that 18 would make savings both to the Indian Fund and to the 19 parliamentary appropriations that were spent on those two (2) 20 Reserves. 21 Q: Yes. So, that would support, would it 22 not, the last sentence of this paragraph: 23 "Indian Affairs saw an easy opportunity to 24 dispose of administrative and financial 25 burden."
1281 Is that -- that's a fair accusation by Ms. 2 Roos, is it? 3 A: I -- I think -- I think that -- I think 4 that if one wanted to -- to make that statement, which is an 5 interpretive statement, that they could support it with 6 the -- the correspondence that we just referred to, the 7 golden opportunity. 8 Q: Yes, but I'm asking you if you would 9 support that, as an expert on these matters? 10 A: I think -- I think that Indian Affairs in 11 general, welcomed opportunities to consolidate communities 12 into larger reserves, or a fewer small reserves and larger 13 Reserves; so that that would be a general tendency on their 14 part. 15 I think probably in this case, in the case of 16 the Appropriation, that Ipperwash, the stronger motivation 17 for Indian Affairs, would be their motivation to cooperate 18 with another Ministry of the Crown at a time when -- when 19 fighting the war was -- was the -- was the major motivation. 20 I would think that if you -- if you looked at 21 -- if you look at the Department of Indian Affairs history in 22 general, the -- the Department is usually quite -- quite 23 ready and willing to cooperate with the -- the imperatives of 24 other Federal Ministries. 25 Q: At the expense of the people, they were
1291 responsible for protecting, the First Nations people; isn't 2 that so? 3 A: I think that there's cases where you can 4 say that, yes. 5 Q: And this is such a case, isn't that? 6 7 (BRIEF PAUSE) 8 9 Q: Why do you have a problem saying 'yes' to 10 that? 11 A: Why do I have a problem -- after reading 12 all the documentation that I've -- that I've consulted 13 regarding this, what I would -- my -- my opinion on it would 14 be that the Department of Indian Affairs could have done a 15 better job at getting better compensation for the people. 16 I don't think, at the time, given the -- the 17 period of history, that they would have been successful in 18 going head to head in a battle with the Department of 19 National Defence overtaking a piece of land. 20 And, I base that opinion, not only on the 21 documents that I read in this particular case, but in other 22 instances where I've looked at, where the Department of 23 Indian Affairs has been matched against another Federal 24 Department when another Federal department wanted to take 25 land that was Indian land.
1301 So, I think that they could probably have done 2 a better job of getting better compensation. I don't think, 3 realistically at that time period, that they would have won 4 in a direct battle with the Department of National Defence in 5 stopping the expropriation. 6 I'm not saying that that's right or wrong. 7 I'm saying I think that that was the reality of the political 8 situation at the time. 9 Q: Are you willing to say it was wrong? 10 A: Well, "wrong" is a subjective opinion. 11 There has -- 12 Q: But you're an expert, you're entitled to 13 give your opinion? 14 A: Yes, but that -- that's a moral opinion. 15 And I don't feel that it's really appropriate for me to give 16 an opinion on a -- on a matter of morals. I think that the 17 -- the mandate of the Department of Indian Affairs was to -- 18 to be the -- the trustee of the Indian people. 19 And it was their job to look after them and 20 their lands. And I think that they could have done a better 21 job at getting them a better deal, so to speak. 22 Q: To your knowledge, were there any other 23 lands in Canada expropriated under the War Measures Act 24 during the course of the Second World War? 25 A: I -- I can't think of any other examples
1311 of -- I'm sorry, did you say "any land" or Indian -- 2 Q: Any land owned by anybody in Canada, 3 private cottages, for example, in the Muskokas, they were all 4 seized, I guess, were they? 5 A: I don't know of the War Measures Act 6 being used to take land anywhere in Canada. But I've never 7 made a study of it so my opinion, quite frankly, isn't worth 8 a lot on that. I just -- I'm not aware of any. 9 Q: And in particular though, you did note in 10 your historical overview that there were some private 11 cottages that were bought by the Department of National 12 Defence during this period rather than being seized under the 13 War Measures Act, correct? 14 A: That's correct. 15 Q: Negotiated and bought in the ordinary way 16 that people buy and sell land? 17 A: Yes, that's correct. 18 Q: And was your study sufficient that it 19 would have been revealed if there were any other beaches 20 nearby or any other lands nearby that were -- any other lands 21 nearby that were seized under the War Measures Act in this 22 area? 23 A: In this particular area, I think that if 24 there had been any land taken under the War Measures Act, I 25 would have come across a reference to it and I did not. But,
1321 as I say, I didn't go looking for that information. So, you 2 know, it's -- I could be proven wrong. 3 Q: Now, I'd like to turn to page 94 of Ms. 4 Roos' thesis and I'll be looking at the bottom of the page 5 please; the last complete paragraph on the page. It reads as 6 follows: 7 "The loss of the reserve was profound for 8 the Stony Point Band. The locatees lost 9 their sense of personal and community 10 identity when they left Stony Point. For 11 some, removal was the equivalent of going 12 to a foreign land. Individuals were 13 stripped of their connection to a land base 14 which had provided their daily livelihood 15 and spirituality. On a broader level, the 16 land gave the larger community a sense of 17 continuity with the past and a traditional 18 homeland." 19 Do you agree with that characterization by Ms. 20 Roos? 21 A: Well, this is her opinion on -- after 22 looking at the -- the materials she looked at and speaking 23 with the people she spoke with. When I look at the documents 24 that I dealt with in my report, it's clear from the documents 25 around the time of the land being expropriated that people
1331 were extremely distressed at being displaced. 2 The things that they talk about are their 3 attachment to the land, their sense of history, the 4 importance that as elders, we heard in some of the petitions 5 from -- from particularly one (1) -- one (1) person, one (1) 6 elder, the responsibility to look after that land, to -- to 7 guard that land. That it was their -- their sacred heritage. 8 So, we see from those documents that, yes, 9 people indeed were extremely distressed. And we see from the 10 Indian agent, that he could -- he could sense, even the 11 Indian Agent who we've already established was possibly not 12 one (1) of the most sensitive people, he could sense that it 13 was very difficult for the people who went from Stony Point 14 to live at Kettle Point, that -- that they felt dislocated, 15 and perhaps not totally welcomed. I think he referred to 16 them as being called refugees. 17 So, based on the documents in my study, I 18 would say, yes, it was extremely distressing for the people 19 that had to move, they felt very dislocated. You know, she 20 -- the -- the writer of this thesis has -- has expressed it 21 in her own way, in -- in her interpretation. That would be 22 my interpretation. 23 Q: I would suggest that what you said is 24 quite consistent with this -- 25 A: Pardon me?
1341 Q: I would suggest that what you said is 2 quite consistent with this paragraph; would you agree? 3 A: I -- I think that it has many 4 consistencies. I would express it in a different way and -- 5 and based on a different body of knowledge. 6 COMMISSIONER SIDNEY LINDEN: Move on. 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Okay, turning to the next page of the 10 thesis, page 95 at the top thereof. 11 12 (BRIEF PAUSE) 13 14 Q: The paragraph reads as follows: 15 "Cultural anthropologist, Lisa Phillips 16 Valentine, argued that among the Ojibwa 17 peoples, identity is intrinsically 18 associated with the land. Unlike other 19 Native cultures such as the Iroquois, 20 Valentine contended that among the Ojibwa, 21 quote "The concept of nation is framed in 22 terms of a land base, in terms of 23 traditional, regional or areal affiliations 24 and in terms of land usage." End quote 25 Identity, as a, quote "Stony Pointer" for
1351 example, was more important than being 2 called Ojibwa or Chippewa, which were 3 linguistic classifications. Identity among 4 the Stony Point was linked to the economic, 5 social and spiritual connections, that stem 6 from the land." 7 Okay. Now, we'd ask your opinion of that 8 view? 9 A: Okay, well first of all, Lisa Phillips 10 Valentine is a cultural anthropologist, who is well 11 respected. And so, the -- is it a quotation from her? Yeah. 12 Her quotation, the concept of nation is framed in terms of a 13 land base, in terms of traditional, regional or areal 14 affiliations, and in terms of land usage. 15 I'm -- I'm assuming that that is a correct 16 quotation from -- from Valentine, although, you know, I don't 17 know that, because I haven't verified that. 18 So, I -- I would say that that -- that's 19 accurate. I would think that Valentine would also include 20 some other aspects of -- of nation. 21 Q: You told -- 22 A: She -- no, sorry -- 23 Q: Sorry, I don't want to interrupt you if 24 you -- 25 A: I'm just -- the thing I'm being a little
1361 bit wary of is she's talking about the concept of nation, 2 from Valentine, and I'm not sure from the quote taken from 3 Valentine, what -- what scope she's talking about in the term 4 of nation. That's why I'm being a little bit hesitant about 5 it, because it's like one (1) -- one (1) line from the work 6 of an anthropologist, which is probably a much more 7 detailed... 8 And actually, if you don't mind me, I just -- 9 I just want to look at where -- where that footnote is from. 10 The -- it's from an article called, "Performing Native 11 Identities Through English Discourse". 12 So, it's -- why I'm being cautious is it's 13 just hard for me to -- to comment on exactly what Valentine 14 was talking about just from that one (1) -- one (1) letter 15 from her larger article which, if I've ever read it, it was a 16 long time ago and I certainly -- I can't -- I can't recall 17 it. 18 But what I would go on to say about that is 19 she -- the author, who's a history student, has taken that 20 quote from an anthropologist and then extrapolated that and 21 said, the identity of a Stony Pointer was more important than 22 call it -- being called Ojibwe and Chippewa. 23 You know, I -- I can't really comment on that 24 because this is -- this is her interpretation of how the so- 25 called Stony Pointer -- how they -- how they identify
1371 themselves or what their identity -- what in their identity 2 is important to them. 3 And it's very hard for me to say that because 4 I -- I haven't studied that. I haven't done a -- I haven't 5 gone amongst the people characterized as Stony Pointers and 6 conducted a study of how do you identify yourselves. 7 So, you know, I would find that -- that 8 difficult to comment on. 9 Q: Now, you told us that, in fact, your 10 information about, at least, the post-'80s period was based 11 on newspaper articles almost exclusively; is that correct? 12 A: On that little -- that last section in 13 the -- in the -- 14 Q: Especially -- 15 A: In that -- 16 Q: -- that was referring to the last 17 section -- 18 A: The very last section in my report -- 19 Q: -- 1991, yeah? 20 A: -- yes, that's correct. And if you look 21 in the -- that's all footnoted. You'll see that those are 22 all media articles, yes. 23 Q: Now, in general, this is a Master's 24 Thesis in the Department of History, as you told us, it's not 25 anthropology but history, and you told us that it was your
1381 understanding that it was based, possibly, on personal 2 interviews of people, right? 3 A: Her -- her -- 4 Q: Her thesis? 5 A: No. Her thesis is -- is based on a -- on 6 a variety of things. It's based, in part, on historical 7 documentation, quite a bit of historical documentation and 8 it's also based on work that -- that she did, information 9 that she gathered from -- from living individuals. 10 Q: That's what I thought I had said. 11 A: Hmm hmm. I may have said that. 12 Q: And you would agree it's appropriate to 13 integrate historical documents with oral history that one 14 gets from living individuals especially in dealing with First 15 Nations' history? 16 A: Absolutely. 17 Q: And wouldn't you, in general then, think 18 that a thesis of this type should be certainly with no 19 offence to the people over there, more reliable, in general, 20 than newspapers? 21 A: Well, no, it depends on the person who's 22 writing a thesis. A thesis isn't -- a thesis isn't always 23 well done and this is no reflection on this particular 24 thesis; I'm not commenting on that. 25 But in answer to your question, a thesis is
1391 not always authoritative. Many thesis, and this one I would 2 -- I would include in this following category or this 3 following comment, is there is a tremendous amount of 4 interpretation. 5 And so, what I'm saying is this paragraph that 6 she's written, this is her interpretation. And I'm not 7 saying that it's right or I'm not saying that it's wrong. 8 What I'm saying is, it's very difficult for me to comment on 9 it because I haven't -- I haven't examined this question in 10 particular. 11 So, what I can comment on is that when you -- 12 when you look at some of the historical documents and when, 13 for example, you've pointed out I used articles from 14 newspapers, there are people that are making statements to 15 the press about how they identify themselves. 16 So, that's a source of information but it's 17 not a full methodologically, sound study. So, because I 18 haven't done that, what I'm saying is it's very difficult for 19 me to say whether this is exactly right or wrong. 20 I mean, this is what -- this is what she says 21 -- she says that this is the way that people identify 22 themselves and she makes that connection between that comment 23 and one line that she's taken from an anthropologist's 24 article. 25 So, with those -- those two (2) sentences,
1401 it's hard for me to take those two (2) sentences, put them 2 together and -- and really give an opinion on it. 3 Q: Well, you told us that the documents of 4 this type that you included, I believe, if I understood your 5 testimony, were those that you considered authoritative and 6 reliable, right? 7 A: Which -- I'm sorry, which documents? 8 Q: That you included this document in the 9 documents you put before this Commission, did you not? 10 A: I did. 11 Q: And surely that's because you considered 12 it to be a reasonably authoritative and well written 13 document? 14 A: Not always. 15 Q: Not always? 16 A: No. 17 Q: In this case, you consider -- you didn't 18 consider it reasonable and authoritative? 19 A: No. Let me be clear on this -- 20 COMMISSIONER SIDNEY LINDEN: Mr. Rosenthal, I 21 don't want to interrupt you. I don't want to interrupt you, 22 Mr. Rosenthal, but certainly in a huge document, there would 23 be some things that she would agree with-- 24 MR. PETER ROSENTHAL: Absolutely. 25 COMMISSIONER SIDNEY LINDEN: -- and some
1411 things she wouldn't. 2 MR. PETER ROSENTHAL: Yes. 3 COMMISSIONER SIDNEY LINDEN: And so to -- 4 you're getting there, are you? 5 MR. PETER ROSENTHAL: I am. 6 COMMISSIONER SIDNEY LINDEN: Okay. 7 MR. PETER ROSENTHAL: But you did interrupt 8 me, even though you didn't want to, but -- 9 COMMISSIONER SIDNEY LINDEN: Yes, I did. 10 MR. PETER ROSENTHAL: -- okay. 11 COMMISSIONER SIDNEY LINDEN: I'm trying not 12 to, Mr. Rosenthal, but -- 13 MR. PETER ROSENTHAL: Thank you. 14 COMMISSIONER SIDNEY LINDEN: -- you know, I 15 hope you would move on. Go ahead. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: Later on that same page... 19 20 (BRIEF PAUSE) 21 22 MR. PETER ROSENTHAL: I'm sorry -- I'm sorry, 23 were you about to speak? 24 MS. SUSAN VELLA: I just don't know if the -- 25 if the expert had finished her response.
1421 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 2 didn't mean to interrupt you in the middle of your sentence, 3 carry on. 4 THE WITNESS: Okay, thank you. I'd like to 5 be clear about the documents that I've included in my report. 6 The bulk of my documents are historical documents from 7 archival sources, that are put forward to give the general 8 overview of the history. 9 There are also included in my documents, other 10 documents such as this thesis, such as some other secondary 11 sources, which I have included, because they address certain 12 aspects of the history that are relevant, such as this 13 thesis, because as you pointed out, it talks specifically 14 about the -- the appropriation. 15 I've also included media articles. All of 16 those things, I'm not saying that I absolutely agree with all 17 of them, I'm saying all of them tell us something about the 18 history. 19 And in a thesis such as this one (1), there is 20 much interesting information in her thesis, facts in her 21 thesis. I don't always under -- I don't always agree with 22 her interpretation of everything. It doesn't mean that I 23 disregard the thesis, it just means that I -- I look at it, I 24 want to be aware of it, I want to see if there's value in it 25 that I can use, it doesn't mean that I agree with every
1431 interpretation. 2 And there would be -- it's a -- it's just like 3 within the historical documents, I don't agree with 4 everything the Indian Agent says, but it's a historical 5 document, it tells us something about the time period. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Certainly. And does it tell us something 9 of interest further down on the page, if we could? In that 10 respect, sorry, you can stop there, please. Thank you. 11 The -- the last paragraph and the first 12 sentence thereof: 13 "Subsis -- subsistence farming was the main 14 source of food for the entire Stony Point 15 community." 16 And then it goes on to discuss each family 17 used of the land for its own purposes and so on and it 18 continues that discussion. 19 Had you been aware of that fact, or opinion, 20 that subsistence farming was the main source of food for the 21 entire Stony Point community? 22 A: I -- what I am aware of from the 23 documents, was that people had gardens and they relied very 24 heavily on their gardens, or their small farms. And I know 25 at the time of the appropriation, that the Indian agent had
1441 told them, because it was the spring when these events took 2 place, the Indian agent told them not to plant, and people 3 were very concerned, because they relied on the food from 4 their gardens, to feed themselves. 5 And because they -- they didn't plant that 6 year, and they were displaced in -- as they moved to Kettle 7 Point, they were in a situation where they didn't have the 8 food that they would normally have. 9 So, to that extent, I'm aware of that, yes. 10 Q: I won't ask you if that's consistent or 11 not with that sentence, I'll just go -- 12 A: Well -- 13 Q: -- no, no, I'll just go on. I'm sorry. 14 It was -- I'm sorry, I don't mean to cut you off, but -- 15 A: Yes. No. 16 Q: -- I'll go to page 99 then. About the 17 middle of the page there is a -- a discussion of Robert 18 George's concerns about the cemetery. I won't read that. I 19 mentioned that earlier. 20 But then there is the author's conclusion. At 21 the end of that quoted portion: 22 "The desecration and vandalism of the 23 cemetery was a serious act of disrespect to 24 the band which caused a profound sense of 25 loss within the Stony Point community."
1451 Again, would you, in your own words, comment 2 on that aspect of it? 3 A: I think that that would be a very 4 accurate characterization, yes. 5 Q: And then it continues, the thesis of Ms. 6 Roos continues -- if you could raise it a little bit please, 7 thank you -- the last paragraph on the page and it's close to 8 the next page: 9 "Examples of such insensitivity and 10 disrespect towards the band and its 11 traditions were scattered throughout the 12 documentary sources on the appropriation 13 and relocation. The actions and decisions 14 of Indian Affairs officials encouraged 15 intra-band conflict and division directly 16 after relocation ..." 17 Oh, I'm sorry, I'm continuing on the next 18 page. You're getting very good at this. Thank you. 19 "McCracken called the locatees immigrants 20 or D.P.'s, parenthesis (displaced persons) 21 shattering the ability of the locatees to 22 integrate effectively within the Kettle 23 Point community. McCracken contributed to 24 feed on the fear among Kettle Pointers 25 there would be little land left for their
1461 children after the locatees settled. The 2 younger locatees recall McCracken provoking 3 fights, saying to the locatees, you don't 4 belong here. McCracken also supported 5 Kettle Pointers calling the Stony Pointers 6 refugees. However, the most serious action 7 was McCracken's removal of band membership 8 of some locatees which stripped them of any 9 status entitlements. His efforts served to 10 reduce the number of Stony Pointers 11 settling on Kettle Point. The various 12 tactics were effective. Many locatees 13 simply left the reserve feeling unwelcome." 14 And I should like to ask you several things 15 about that if I may. First off, Mr. McCracken was the Indian 16 agent at the time; is that correct? 17 A: he was. 18 Q: And then I'd -- I'd ask your comment? 19 A: Well, some -- some of the comments here 20 she's made she's footnoted to interviews which I have no 21 knowledge of. I know McCracken referred to people who were 22 going to Kettle Point being called refugees by the people at 23 Kettle Point. 24 I don't -- I've never seen him use the term 25 "immigrants" or "D.P.'s" so I don't -- I don't know that and
1471 I actually, I think that that -- that is from a -- an 2 interview. Yeah, it's from an interview from August 1997. 3 So, I'm -- I'm not aware of that. The only 4 thing that -- the only thing that I can really say about this 5 is -- and I -- I don't -- I don't know what she's referring 6 to here when she talks about removing band membership from 7 some locatees; I'm -- I don't know what that is. I haven't 8 seen anything on that. 9 That, again, is from a -- from an interview. 10 There's one thing here she referenced to a document -- well, 11 her statement in the middle where she says: 12 "McCracken also supported Kettle Pointers 13 calling the Stony Pointers refugees." 14 And that's -- that document that -- that I'm 15 aware of, I don't think that that's an accurate 16 interpretation of that document actually, because I think 17 what he's saying that he's not supporting them calling them 18 that, he's saying that that's what they're being called which 19 is a significant difference. 20 And the rest of the information in those two 21 (2) paragraphs, as I said, she footnotes them to interviews 22 that she did and -- and I have no knowledge of those 23 interviews, so I can't -- I can't really comment on that. 24 Q: Okay. If we could then please turn to 25 page 122 of this thesis.
1481 We are, Mr. Commissioner, getting towards the 2 end of the extracts of these Thesis. 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: Beginning, well, if you look above the, 6 just above the quote, the -- the single spaced quote, sorry, 7 it says: 8 "Robert George stated poignantly that the 9 Kettle Point Counsel presented an image of 10 cooperation between the two communities, 11 which was false. George argued..." 12 And then they say, quotation: 13 "Neither has worked hand in hand and 14 feelings of ill contempt were as strong 15 today as they were when the sixteen (16) 16 family Stony Point Band was relocated to 17 Kettle Point in 1942." 18 I may be stopping there first. You noted in 19 your report, also, that there are some feelings, even today, 20 in the year 2004, of division caused by, apparently, the 1942 21 forced relocation, right? 22 A: Yes, I did point that out. 23 Q: And then, this document continues: 24 "The band presented a compelling case 25 before the Standing Committee on Aboriginal
1491 Affairs in 1991." 2 And, in fact, you quoted, I believe, this part 3 of Ms. Roos thesis in your testimony earlier today. 4 A: That's correct. 5 Q: Would you agree with her characterization 6 in the sentence right after the one I started to read: 7 "The standing committee overwhelmingly 8 supported the Stony Point Band, 9 recommending that the Government recognize 10 Stony Point outside of the Kettle Point 11 Community." 12 And then there's the quote from the Standing 13 Committee. 14 A: My only difficulty with this is I haven't 15 actually looked at those standing committee meetings, so the 16 statement that the -- the quote is -- is, I am assuming, is 17 an accurate quote from the Standing Committee. 18 But the -- the line before, 19 "the Standing Committee overwhelm -- 20 overwhelmingly supported the Stoney Band, 21 recommending that the Government recognize 22 Stony Point outside of the Kettle Point 23 political community." 24 I'm not -- I'm not sure about her 25 interpretation of that because I haven't actually read that
1501 1991 Standing Committee minutes, so I -- I can't really 2 comment on whether or not she's characterized that properly. 3 Q: Why? 4 A: Or if I would agree with her 5 interpretation of it. 6 Q: And the -- the single spaced quote is the 7 -- you took from this thesis to put into your report? 8 A: That's correct; I did. 9 Q: And you didn't check it against the 10 Standing Committee reference? 11 A: That's right; I did not. 12 Q: If we look at the last paragraph that 13 begins on this page: 14 "The issue of identity was important with 15 respect to ownership, legitimacy, authority 16 and legal claim to land. Identity was 17 determined in several ways, including..." 18 If we could go to the next page. Thank you. 19 "spiritual and economic connections 20 stemming from the land, as well as 21 community continuity on a land base. See 22 Chapter 4. 23 However, political institutions and 24 administrative record keeping can also 25 determine a level of community identity.
1511 As a review, the historical documents 2 reveal a strong euro-centric perception of 3 community was attributed to the Stony Point 4 and Kettle Point communities, based on 5 political and administrative information." 6 Now, I recall something similar in your 7 evidence, is that correct, as far as the administrative 8 convenience and the -- the European view as opposed to the 9 First Nation's view? 10 A: Yeah. What -- what I was saying in the 11 evidence that I gave, was that the official and legal 12 definition or, yeah, definition of the band, the Kettle Point 13 and Stony Point Band, was based on the -- the rules or the -- 14 the parameters as set out in the Indian Act. 15 So -- and I've -- and from my reading of her 16 paragraph, I believe that this is -- what she's trying to say 17 is that, based on political and administrative information, I 18 think what she's saying is if you look at historical records, 19 and -- and current records, you find that the Kettle Point 20 and Stony Point Band is always referred to in its sense of -- 21 of an Indian Act Band, which is what -- I think what she's 22 saying by political -- 23 Q: Right. 24 A: -- and administrative information. 25 So, if we seek for example, a membership list,
1521 that's the membership list that we get, is -- is what is 2 compiled by the Department of Indian Affairs, that's the 3 administrative and political information. I believe that's 4 what she's saying in this last line. 5 Q: Thank you. If -- if we could look please 6 at the bottom -- towards the very bottom of that page, about 7 three (3) lines from the bottom: 8 "Administratively, Stony Pointers were 9 listed on separate annuity pay and band 10 membership lists." 11 I -- I had asked you about that before, and 12 you -- you weren't sure about that. But... 13 A: I -- I have -- I have never examined the 14 annuity pay lists for -- 15 Q: Right. 16 A: -- Kettle and Stony Point. And here the 17 annuity pay lists and -- and the annuity -- and the band 18 membership lists are two (2) different kinds of lists. And I 19 don't -- and I'm not sure -- I haven't examined them, and I 20 don't know how they've been kept. 21 Q: Okay. If we could continue towards the 22 -- the last sentence beginning on that page and then 23 continuing to the next page: 24 "Land on the reserve was allocated 25 specifically to Stony Point residents,
1531 through location tickets, and a separate 2 school and Church existed on Stony Point." 3 So, I'm going to stop there. That -- that is 4 a factually true statement; is that not correct? There were 5 location tickets for Stony Point, as we saw, and there was a 6 separate school and a separate Church on Stony Point? 7 A: Well, the -- the statement, 8 "land on the reserve was allocated 9 specifically to Stony Point residents 10 through location tickets." 11 Some people who lived on the Stony Point 12 Reserve held land under location tickets, and some people did 13 not. 14 Q: Right. 15 A: So, the statement is a little bit -- well 16 it wouldn't -- it's not as precise as -- as I would like to 17 see it, but, yes, that's true. 18 The school -- a school and church; I remember 19 there being one (1) public building, and I think it was a 20 school. I -- I -- actually I'm not sure about the Church, I 21 don't know. 22 Q: Should be in the -- 23 A: I think in that -- 24 Q: -- you're not sure there was a church and 25 a school?
1541 A: Pardon me? 2 Q: You're not sure there was a Church or 3 school? 4 A: I -- I remember in the appraisal report, 5 seeing the mention of I believe it's a school house. I don't 6 remember the church. I'm -- I'm not saying though it was or 7 it wasn't, I'm just saying that I don't -- I don't recall, 8 because I wasn't specifically looking for it. 9 If you would like me to look at that appraisal 10 report again, I could, to see if it's both there or -- 11 Q: Sorry, is that something you can do very 12 quickly, you mean, or -- 13 A: Well, I could, pretty quickly. 14 Q: I -- I don't want to -- sorry, take the 15 time. If it's much time, but if it's quick? 16 A: No, I'm not -- you know, I'm not trying 17 to be contrary, it's just -- 18 Q: No, no. 19 A: -- you know, it's hard for me to agree to 20 something when I can't remember. 21 Actually, it might take me a bit of time to 22 find it. 23 Perhaps when we break next -- 24 Q: Well, absolutely. We'll leave -- 25 A: -- I can look and....
1551 Q: -- then. Thank you. And then she 2 continues: 3 "Even on a political level, Stony Point 4 elected its own Band Chiefs and Councillors 5 for the school house community, which was 6 maintained up until removal in 1942." 7 Do you have any information about that? 8 A: I believe under the Indian Act election 9 system, they would have -- have elected one (1) chief for the 10 Kettle and Stony Point Band. 11 Q: And what about councillors representing 12 the separate reserves? 13 A: Normally councillors -- and I -- and I 14 have not examined the -- the election files for this -- this 15 community, but normally councillors were elected on kind of a 16 district or a regional basis. 17 So, even when you have a -- if you have one 18 (1) single large reserve, people will be elected from 19 different portions of the reserve, so it would be a normal 20 practice for there to be Councillors that came specifically 21 from Stony Point residents, and Councillors that came 22 specifically from Kettle Point residents. 23 Normally under an -- under the Indian Act, 24 every Band member, regardless of their residence, would vote. 25 But as I say, I have not looked at the election files for
1561 this community, so I can't -- I can't really comment on that. 2 Q: Okay. And then the last part of this 3 thesis I'm going to refer you to is the next paragraph, which 4 is related to what we've looked at before: 5 "Indian Affairs considered the two (2) 6 communities conjoined for two (2) reasons. 7 First, members of the two (2) communities 8 intermarried and participated in many 9 social activities. Second, the 10 administration of one (1) monthly Council, 11 rather than two (2), was easier for the 12 Department. The Indian Agents long 13 considered dual administrative expense as a 14 burden, but they existed because the two 15 (2) Bands were separate and distinct." 16 Would you comment on that? 17 A: Actually I totally disagree with 18 everything in that paragraph. 19 Q: Disagree with everything in the 20 paragraph, okay. 21 A: Well, maybe everything. In as we saw in 22 the -- in the documents I presented, Indian Affairs 23 considered the two (2) communities to be one (1) Band, 24 because of the 1919 agreement, under which the Kettle and 25 Stony Point people separated from the Sarnia portion of that
1571 larger Band that was created at the time of the Treaty. 2 And that is the reason why Indian Affairs 3 considered them one (1) Band, it was as a result of that 1919 4 agreement, which we talked about, it seems like a month ago, 5 but I think it was yesterday, or the day before. No, it was 6 the first day, it was Tuesday, at the end of the day. 7 If you recall, there was -- Indian Affairs had 8 always considered all of the people who signed the Huron 9 Tract Treaty, to be one (1) large Band, and that included the 10 people at Walpole, Sarnia, Kettle and Stony Point, Walpole 11 Island broke away from that Band by the 1860s, on a formal 12 basis. 13 And then in 1919 after many years, Sarnia 14 split from Kettle and Stony Point, and they were created as 15 two (2) Indian Act Bands, one (1) of them being Sarnia, the 16 other Band being Kettle and Stony Point. 17 So that -- that in -- that is the Indian 18 Affairs first reason for considering them one (1) Band, and 19 the -- I'm sorry, but I really don't understand the second 20 sentence. 21 Q: You don't understand members of the -- 22 A: Well, she says -- the first reason she 23 gives for -- she says: 24 "Indian Affairs considers the two (2) 25 communities conjoined for two (2) reasons,
1581 first, members of the two (2) communities 2 intermarried and participate in social 3 activities." 4 Inter -- participating in social activities, 5 in the mind of Indian Affairs has never been a criteria for 6 considering people a Band. 7 Intermarriage, sometimes, yes. But not -- but 8 that's not the reason in this case. The reason flows from a 9 legal agreement in 1919. 10 Then she says: 11 "Second, the administration of one (1) 12 monthly Council, rather than two (2), was 13 easier for the Department." 14 I just -- I just don't know what to say about 15 that sentence, because I don't really understand what it's 16 based on. 17 Q: Okay, well might I suggest to you it 18 might be related to the straggling -- straggling Indians 19 quote from earlier? 20 A: No, I don't think so. Well -- and 21 actually it's immaterial, because the reason that the 22 Department considers them one (1) Band, is from the 1919 23 agreement. 24 Q: Okay, well we'll -- we'll look at that -- 25 A: And I'm not sure, you know, she doesn't
1591 give an authority for that, so I'm not sure what she bases 2 that opinion on. 3 Q: Okay, thank you. I'm done examining that 4 thesis. 5 A: Okay, thank you. 6 Q: At least through you. 7 8 (BRIEF PAUSE) 9 10 MR. PETER ROSENTHAL: My Friend, Commission 11 Counsel, has suggested that the excerpted pages that I was 12 reading from, should be made an exhibit for the ease of the 13 record, and I'm happy to do so. And I have a copy that I -- 14 COMMISSIONER SIDNEY LINDEN: And what number 15 is it? 16 MR. PETER ROSENTHAL: -- can enter if I 17 can -- 18 COMMISSIONER SIDNEY LINDEN: P-11? 19 THE REGISTRAR: P-11, Your Honour. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 Thank you very much. 22 23 --- EXHIBIT NO. P-11: Excerpt of pages from Lisa 24 Phillips Valentine's Thesis. 25
1601 CONTINUED BY MR. PETER ROSENTHAL: 2 Q: Now, I'd like to look at page 23 of your 3 report if we could. Page 23 is headed by you "The Seeds of 4 Discontent" and the first sentence is: 5 "The 1827 Treaty extinguished Indian title 6 over a wide swathe of southwestern Ontario 7 and established the Kettle Point, Stony 8 Point, and Sarnia Reserves." 9 And then I'd like to turn to the next 10 paragraph where you write: 11 "The other major divisive influence was 12 created by Indian Department administration 13 of the communities as a single Band. While 14 the Indian Superintendent who dealt with 15 the Chippewa as they negotiated the Huron 16 Tract Treaty clearly treated them as 17 separate and distinct groups associated 18 with particular geographical locations, 19 less then two (2) decades later they were 20 being administered by the Indian Department 21 as a single regional Band." 22 Now, you agree with yourself, I presume? 23 A: I hope so. 24 Q: And, I don't agree with myself most of 25 the time, but I know you are more consistent than I. Now,
1611 they were separate and distinct groups that's why they'd made 2 these different reserves; right, because they were attached 3 to different parts of the land? 4 And Kettle and Stony Point were pretty close 5 to each other but they weren't contiguous and that was a 6 problem that Indian Affairs treated them as one (1) group but 7 really they were separate, related sometimes, but separate 8 groups; right? You agree with that; don't you? 9 A: There -- there were separate groups 10 certainly because when you look at the entire Huron Tract 11 territory, it's a very large territory and pre-Indian 12 Affairs, no traditional Band would have all of that 13 territory. 14 They would be using separate territories and 15 the Indian Agent who -- or the Indian Superintendent who 16 first dealt with them, Askin -- John Askin, he called them 17 the Chippewa Nation and identified them as -- as covering, as 18 a nation, that entire area. 19 And he -- he knew that they wanted particular 20 separate areas. And you'll notice that in that very first 21 council meeting that they had in 1818, one (1) of the things 22 when they talked about reserves that they were going to have 23 is they -- they -- the Chiefs insisted that they should be a 24 reserve for a chief who wasn't present and that it would be 25 on the Thames because they knew that that was his territory.
1621 So Askin, at the time, recognized that in the 2 whole Chippewa nation that covered that large tract of land 3 people were -- resorted to different areas as their -- sort 4 of, their -- their central or their prime area. 5 Q: Yes. And in the fourth paragraph under 6 that heading of "The Seeds of Discontent", the first sentence 7 reads: 8 "The treatment of these people as a large 9 single Band was a source of dispute and 10 contention for almost a century." 11 And I would propose to you that you should 12 say, almost two (2) centuries because, as you've noted, it 13 still is a problem here in the year 2004 because of the 14 various historical facts. 15 A: Well, when I wrote that, I -- I thought 16 about that and the reason that I said "for a century" was 17 because the initial -- the dispute of the Kettle and Stony 18 Point people wanting to be separate from Sarnia, we first see 19 that starting in around the 1880s. 20 And the -- they -- they are joined together, 21 so to speak, by their association with Sarnia from the time 22 of Treaty and they don't separate until 1919. And I looked 23 at that, it's not quite a century but it's almost a century, 24 of being treated as one (1) unit from 1827 to 1919. 25 And then at 1919, in that agreement, they
1631 specifically asked to be created as Stony Point and one (1) 2 point -- Stony Point and Kettle Point as one (1) band. So 3 from that historical documentation I'm taking the conclusion 4 that in 1919 those people were happy to be together as one 5 (1) band, separated from Sarnia. 6 And that in the -- from 1919 after they're 7 separated into one (1) band, I don't see signs of that 8 distress between the community until -- until really the time 9 of the expropriation, that's when it comes to the floor, 10 based on the material that I've had at hand to look at. 11 So that's why I used the century, being the 12 1827 to 1919. 13 Q: I'm going to suggest two (2) centuries 14 but I understand it might be appropriate to take a break 15 before I do that. 16 COMMISSIONER SIDNEY LINDEN: It's a good 17 point for you? 18 MR. PETER ROSENTHAL: I'm happy to -- I'm in 19 your hands, sir. 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 MR. PETER ROSENTHAL: It was suggested by 22 Commission Counsel. 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 MR. PETER ROSENTHAL: I don't know what time 25 it is.
1641 COMMISSIONER SIDNEY LINDEN: Well, this is a 2 good time. The witness needs a break. It's almost twenty- 3 five to. What if we break until a quarter to 4:00; is that 4 all right. 5 MR. PETER ROSENTHAL: Thank you. 6 COMMISSIONER SIDNEY LINDEN: Quarter to 4:00. 7 THE REGISTRAR: This Inquiry will recess for 8 ten (10) minutes. 9 10 --- Upon recessing at 3:33 p.m. 11 --- Upon resuming at 3:46 p.m. 12 13 THE REGISTRAR: This Inquiry is now resumed. 14 COMMISSIONER SIDNEY LINDEN: Carry on, Mr. 15 Rosenthal. 16 MR. PETER ROSENTHAL: Thank you, Mr. 17 Commissioner. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: Good afternoon, again. 21 A: Good afternoon. I just -- I looked up 22 that document and, indeed, there was a schoolhouse and a 23 church. 24 Q: There was a schoolhouse and a church, 25 yes, thank you. So, Ms. Roos is correct to that extent, at
1651 least? 2 A: Yes. 3 Q: This question of band, you tell us in 4 your glossary in your report that there are, at least, two 5 (2) different definitions of "band" currently in use and you 6 emphasize the "currently" suggesting that, I presume, it's 7 been used in other ways at other times and places perhaps? 8 Now, there is a definition in the Indian Act, 9 of course? 10 A: That's correct. 11 Q: And that definition gives us several 12 alternatives; right, as to what a band -- a -- you can be a 13 band by any of three (3) things, one (1) of which is: 14 "A body of Indians for whose use and 15 benefit in common lands, the legal title to 16 which is vested in Her Majesty, have been 17 set apart before, on, or after September 18 4th, 1951" 19 Or something like that; right? That's 20 correct? That's the first definition in the Indian Act? 21 A: Are you reading directly from the Indian 22 Act or -- 23 Q: I believe I am. I'm reading from my 24 transcription of it on my piece of paper here but you do know 25 the definition of "band" in the Indian Act; do you?
1661 A: Yeah, but it does -- I think it -- it 2 changes a little bit from act to act so -- 3 Q: Yes. But isn't, in whatever exact 4 language, the first definition is a body of Indians who have 5 been given legal title to land which is vested in Her 6 Majesty? 7 A: Does it say legal title in the Indian 8 Act? 9 Q: I'm sorry, I didn't -- I -- 10 A: I kind of doubt that. 11 Q: -- I didn't prepare, I assumed you would 12 know, I'm sorry. 13 A: Well -- 14 COMMISSIONER SIDNEY LINDEN: Have you got a 15 copy of the Act? 16 THE WITNESS: I don't -- I don't know the 17 exact wording in the Indian Act. I don't have it in my head 18 all the time. 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: Well, I -- I -- 22 A: My understanding of the general 23 principle -- 24 Q: Yes. 25 A: -- is that according to the Indian Act, a
1671 band is described and -- as a -- a body or a group of 2 Indians, and the term "Indian" of course being used in the 3 way that it's used in the Indian Act, for whom lands have 4 been set aside, and -- and/or for -- who have trust monies 5 held by the Crown for their use. 6 My understanding -- 7 Q: Yes. 8 A: -- is, and I would really have to look at 9 the Indian Act to look at the proper definition, but from a - 10 - a very general definition. 11 Q: Yes, I -- I do have one (1), I 12 transcribed this as -- and the part that I was reading is 13 consistent with the first thing you said, a group for whom 14 land has been set aside. And the alternative is a group for 15 whom monies are held in common. 16 And then also, the Governor General can 17 declare a group to be a band, according to the Indian Act, is 18 my understanding, now -- 19 A: Yeah, I think -- I think under -- under 20 the more modern Indian Acts, that's been introduced, that the 21 -- the Department can, in the sense, create a band, and then 22 if that's approved by the Governor General. 23 Q: Now, you gave the two (2) alternatives, 24 and the first one (1) being the group for which there's land. 25 In that sense, could not it be considered that at the time of
1681 1827, each of these separate groups, the group at Kettle 2 Point, the group at Sarnia, the group at Stony Point, in 3 particular, were, according to at least our modern 4 definition, Indian Act bands? 5 A: Well, when the Huron Tract Treaty was 6 made in 1827 there was no Indian Act. 7 Q: Yes. 8 A: And to my knowledge, there was no 9 anticipation of an Indian Act at that time. The reserves 10 were set aside for the people who signed onto that treaty and 11 their descendants. 12 And the Governor General declared, I believe 13 it was the document I read from 1843, that all of the people 14 who signed that 1827 Treaty and their descendants, were all 15 equally entitled to all of those reserves, that they all had 16 an equal interest in those reserves, and so at the time of 17 treaty there was no legislation defining a band. 18 And the first authoritative statement that I 19 find on who has an interest in those bands, came from the 20 Governor around -- I can't remember now, it's 1841, '42, '43, 21 in that time period, and that was his determination. 22 So that -- that was the view of the Crown at 23 that time. And the -- when the Indian legislation came into 24 place, and I think that the Indian Act of 1876 is the first 25 Indian Act that actually defines a band. And I think it
1691 defines it on those same two (2) pieces of criteria, that 2 they have land in common set aside for them, or they have 3 money in common, held for them by the Crown. 4 At that time, it's the opinion of the 5 Department, that they are one (1) big band with Sarnia, 6 Kettle and Stony Point, and they have an equal and undivided 7 interest in those three (3) reserves, the Sarnia Reserve, the 8 Kettle Point, and the Stony Point Reserve. 9 Q: Yes. 10 A: So, in terms of that legal definition 11 that you're talking about, that -- that's the definition that 12 applied at that time, according -- 13 Q: Certainly -- 14 A: -- according to the -- to the legislation 15 or the authorities that were in place at that time. 16 Q: Certainly accordingly to their 17 interpretation it was one (1) band consisting of the three 18 reserves; right? 19 A: According, yeah, according to the -- 20 Q: The Crown's interpretation -- 21 A: -- according to the legislation and how 22 they interpreted the Legislation and the intent and meaning 23 of the Treaty. 24 Q: Now, you may recall, I know you were 25 present when I was cross-examining Professor Darlene Johnson
1701 and got into some of these issues. And you may recall that 2 there was a document pertaining to the division from Sarnia, 3 that at one (1) point I -- I had put to Professor Johnson, 4 just from the beginning of it is what I was interested in, 5 but then she wanted the entire thing typed and transcribed. 6 And it was typed and transcribed, and then 7 after a lunch break she read it in its entirety. You were 8 here for that; right? 9 A: I was. 10 Q: And that was talking about the 11 separation. And you recall that throughout that document, it 12 kept on saying the three (3) bands: Sarnia, Kettle Point, 13 and Stony Point. 14 A: Probably -- 15 Q: Well -- 16 A: -- I can't -- I can vaguely remember the 17 discussion, but I don't have that document in front of me, 18 so... 19 Q: Yes. Well, that document was -- I wasn't 20 going to suggest it be turned up, I don't think we have the 21 printed version on now. But it was 4000069 and the -- the 22 record will show, as she read it in, that it constantly talks 23 about three (3) bands. 24 A: Mmm hmm. 25 Q: Although, she maintained her position
1711 that from an ownership point of view, it was one (1) Band. 2 A: Because the Department of Indian Affairs 3 had declared and treated them as having a common, undivided 4 interest. 5 Q: Yes. But, as how the First Nations 6 people would have understood their rights, isn't it fair to 7 say that living at those separate locations, in 1827, 1832, 8 and so on, the First Nations people would have regarded 9 themselves as being independent as bands had been, 10 traditionally, before contact at the different reserves; 11 isn.t that correct? 12 A: It's -- it's difficult for me to make a 13 judgment or make a statement on how people considered 14 themselves at various periods of time. What I can say is 15 that, you know, I have to go back and -- and rely on 16 evidence. 17 And for example, in -- in 1845, the -- the 18 Missionary talks about Quaikegwan's band and Wapagus' band at 19 Sable and another band who, or another group, who's chief he 20 doesn't name, at Kettle Point, another group of twenty-seven 21 (27) people. 22 Q: Yes. 23 A: So, you know, did -- how did -- how did 24 those people consider themselves? You know, it's very 25 difficult to say that -- that the use of the term like band,
1721 is a very problematic use. We've been talking about the 2 legal definition and the way in which Indian Affairs used 3 that term, and the way in which they treated the concept of 4 band, and the implication of the concept of band. 5 To talk about it from the First Nations' point 6 of view, first of all, those perspectives change over time 7 and the only things that I can really speak to is what I see 8 in the documentation when people are addressing that. 9 And what I see that's very, very apparent in 10 this documentation, is the people at Kettle Point and Stony 11 Point considered them separate -- considered themselves 12 separate from Sarnia, because they lived so far away, because 13 they didn't like what was happening at Sarnia, and so they 14 considered themselves separate. 15 So I know, for example, from reading 16 documentation, that -- that even though Indian Affairs said 17 that those three (3) groups were all, or those three (3) 18 reserves, the people on those three (3) reserves, were all 19 one (1) band, the people on Kettle and Stony Point did not 20 consider themselves particularly closely aligned or joined 21 with the people at Sarnia. 22 And when they -- when they signed their 23 agreement, in the agreement they specifically said they 24 wanted to make themselves one (1) band. 25 So when I'm looking at documentation, I know
1731 in 1919, they certainly, from what is in that agreement, 2 would suggest that they believed themselves, or they wanted 3 to be constituted as one (1) band. 4 What they thought otherwise in that period, I 5 -- I don't really have any good evidence to base an opinion 6 on. 7 Q: Well, I'm going to point to -- point to 8 some evidence in your report or your slide, but in -- but 9 dealing with the Sarnia separation, it took them many years 10 to get the Department of Indian Affairs to recognize their 11 separation from Sarnia, right? 12 A: About forty (40) years, that's -- that's 13 quite -- 14 Q: About forty (40) years? 15 A: -- a long time I would say, yes. 16 Q: That's quite a long time. So you could 17 see why maybe they decided, we better unite together, to try 18 to get out of this Sarnia mess, and even uniting together, it 19 took them many, many, many years and a couple generations, 20 right? 21 A: Well, I mean that -- that's a supposition 22 you're making. I -- I have no reason to -- to agree or 23 disagree with that. I have no opinion on that. That's a -- 24 that's an argument, that's an opinion. 25 Q: Okay, it is an argument, a reasonable one
1741 (1) isn't it? 2 A: I don't know, it depends -- 3 Q: Okay. 4 A: -- what you call reasonable. 5 Q: Let's look at your slide number 9, if we 6 may. 7 8 (BRIEF PAUSE) 9 10 THE WITNESS: Can -- 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: Yes, thanks. Your slide number 9 is 14 entitled, "Early Administration Continued". And you wrote to 15 the left of that. This is Chippewas in 1845, it says further 16 on down. And you wrote to the left of that: 17 "While they were treated as a single Band, 18 they lived at different locations and 19 recognized individual chiefs and headmen." 20 Correct? 21 A: That's correct. 22 Q: And that was a correct statement you 23 wrote, was it? 24 A: I believe so. 25 Q: And the different locations that are
1751 mentioned, are Sarnia, and then two (2) Sable bands, and then 2 Kettle Point, and Walpole Island, correct? 3 A: That's correct. 4 Q: And the populations at that time that you 5 indicate, are twenty-seven (27) -- I want to look at just a 6 few of them. Twenty-seven (27) at Kettle Point, and then two 7 (2) different populations under two (2) different chiefs at 8 Stony Point or Sable, right? 9 A: That's correct. 10 Q: So it seems at that time that of course 11 Sarnia was the biggest reserve, as we know, about the -- 12 well, in population. But it seems that many more people were 13 living at Sable or Stony Point, than at Kettle Point in 1845? 14 A: That's correct. 15 Q: And so when you write: 16 "While they were treated as a single band." 17 You mean by Indian Affairs? 18 A: That's correct. 19 Q: Not by themselves? 20 A: That's correct. 21 Q: 22 "And they lived at different locations, and 23 recognized individual chiefs and headmen." 24 Would that not suggest they lived as separate 25 bands?
1761 A: They -- in this time period, which is 2 1845, this -- this data comes -- the numbers come from the 3 missionary, Mr. Chase, if you -- if you remember that. And 4 that's who he identifies. So, these people -- the Wapagas' 5 band at Sable is thirty-five (35) -- is it thirty-five (35) 6 people, and Quakegwun's at Sable is forty-nine (49). 7 And so it -- you know, it suggests that the 8 people at that time, because this is way before Indian Act 9 legislation, before the -- before the election system, before 10 people started electing Chiefs and Council, and that -- that 11 these people are like Wapagas and Quakegwun, they're -- 12 they're traditional -- traditional leaders, traditional 13 chiefs, and they're probably heads of extended families. And 14 that would be the traditional way that people would have 15 lived at that time. 16 You see in the case of Sable, that there's, 17 according to this missionary at least, which there's -- 18 there's two (2) groups living there on that reserve, which 19 would be not -- not unusual, that -- that different groups 20 would be living at the same place. So I think -- I think at 21 this time what it probably reflects a fairly traditional way 22 of living, and a traditional way of recognizing leadership, 23 yes. 24 Q: Yes. All right, now there's a -- a 25 document, I should like to turn to, it's 4000086, and this
1771 document arose in the cross of my -- cross-examination of 2 Professor Johnston. 3 This is the typed version, and one (1) 4 question that arose was whether you had had this version 5 typed, because this was a document that you had provided 6 apparently, to Volume VIII. 7 A: I'm -- I'm sorry, it's just going to take 8 me a little while to find it, what's the -- it's -- it's 9 number 86? 10 Q: Yes. 11 A: Okay, just -- and is the date of that 12 November 18, 1894, is that the document? 13 Q: Yes, it is. 14 A: Okay, it's just sometimes my numbers are 15 different, so -- 16 Q: Yes. 17 A: If you wait one (1) second I'm going to 18 locate it, it'll just take me -- 19 Q: I have a hard copy of that document if 20 you like, but also it's on the screen behind you as well, and 21 I can give you a copy here if you'd like to -- 22 A: Oh, I have a copy, I'll just -- I'll just 23 pull it out. 24 Q: Okay. 25
1781 (BRIEF PAUSE) 2 3 A: Yeah, okay, thank you. 4 Q: So -- 5 A: I don't mean to be suspicious, I just 6 want to make sure -- 7 Q: -- one (1) question arose -- 8 A: -- I'm on the right document here. 9 Q: Was it your office that made this 10 transcript? 11 A: It was. 12 Q: It was. Yes. 13 A: Yeah. 14 Q: And there is also -- and we'll turn it up 15 in a moment, if necessary, the -- you've included also the 16 original written copy, or a copy of the original written 17 copy. 18 Now, one (1) thing I would draw your attention 19 to on this question of different Chiefs and so on, this is 20 1894. It says on the third line there of the body of the 21 text: 22 "Two (2) the Council --" 23 Presumably it should be two (2) of the 24 Council. 25 "-- Chief Johnston of Stony Point and Lewis
1791 Cloud, chief at Kettle Point, both say they 2 never drew up such a resolution." 3 And they are two (2) of the Council. I have 4 put this to Professor Johnston, as evidence of separate 5 chiefs at the two (2) locations. Would you agree that 6 suggests there were chiefs at the two (2) locations? 7 A: Sorry, can you just give me a second to 8 read it -- 9 Q: Sure. 10 A: -- because I'm having a hard time to read 11 the document and listen to you at the same time. 12 Q: Certainly. Sure. 13 A: Thank you. 14 15 (BRIEF PAUSE) 16 17 A: Okay, I'm ready. Sorry, can you -- 18 Q: Ready? 19 A: -- could you repeat your question again 20 now? 21 Q: Well, my -- my first question was did you 22 transcribe this? And your answer to that was yes. 23 Then my second question was would you agree 24 that this suggests that there were, in 1894, different 25 chiefs, one (1) at the location of Stony Point Reserve and
1801 one (1) at the location of Kettle Point Reserve? 2 A: No, in -- in 1894 they were still members 3 of the Sarnia band Council, and what they call two (2) chiefs 4 are two (2) -- are two (2) councillors under Indian Act 5 legislation, these people would have been elected under the 6 Indian Act system. 7 And they would be -- I mean, the people may 8 well have -- have -- may well have thought of them as their 9 chiefs, their -- their head people, in terms of the official 10 band council. They would be what would be called Sub-Chiefs 11 or councillors. 12 Q: So, with respect to the Indian Act, or 13 whatever it was called in 1894 -- 14 A: It was -- it was the Indian Act in 1894. 15 Q: It was the Indian Act? 16 A: Yes. 17 Q: You're saying there couldn't have been 18 two (2) chiefs for the one (1) band, that included Sarnia, 19 Stony Point, and Kettle Point? 20 A: There would be a head chief or a chief 21 and councillors, and -- and they called them by different 22 names, at those -- at that point -- 23 Q: Yeah. 24 A: -- but there would have been a leading 25 chief, a head chief -- or a head chief, and then from the --
1811 from Stony Point and from Kettle Point there would have been 2 sub-chiefs or councillors, and then there would have been 3 additional councillors also, from the Sarnia Reserve. 4 Now, it's -- it's very often in First Nation 5 communities, and I'm speaking very generally here, people 6 didn't use that kind of terminology, councillors, and they 7 just called people chiefs, or they called them headmen, or 8 they called them whatever they called them in their own 9 language. 10 Q: Yes. 11 A: So -- 12 Q: They called them whatever they used to 13 call chiefs. They didn't know that the Indian Act had 14 changed it. 15 A: Yeah, the -- 16 Q: Right? 17 A: -- the -- oh, I think people were aware 18 of the Indian Act system by this time, because they went and 19 they voted. But how they conceptualized that might be a -- 20 might be a different thing. 21 Q: Well, can we not extrapolate from this 22 document that it's very likely that on November 18, 1894, 23 there was a person named Johnson at Stony Point, who was 24 regarded by the people at Stony Point as their chief, in 25 their language, and there was a person named Cloud at Kettle
1821 Point, who was regarded by the people at Kettle Point as 2 their chief? 3 A: That's quite probable, and those people 4 would have been voted for by the people in both of the 5 communities. 6 Q: Okay. So, then there was a question that 7 arose in my examination of Professor Johnston, and I 8 undertook on the record to clarify it with you, and I must 9 therefore do so. 10 Namely, towards the bottom of this, the last 11 sentence of the text: 12 "I enclose you a document signed by twenty- 13 three (23) of the members of these bands, 14 the Stony Point and Kettle Point -- 15 illegible -- their representation." 16 And Professor Johnston, you may recall, said 17 she's not sure it says bands, maybe it says band. Of course 18 the issue was -- is was this one (1) or two (2) bands. And 19 then she looked at the written text and said she couldn't 20 even see if it said band, it just said a "B". 21 So you're the transcriber, but I would put it 22 to you that although it's hard to read in the written text, 23 "these" is quite clear in the written text, and this is not 24 written by a person unfamiliar with English, it's written by 25 an English speaker, and he wouldn't say these Band, so
1831 undoubtedly your transcription is correct, by putting an "S" 2 on there? 3 Would you agree with me? 4 A: That's probably correct. I think it 5 probably is bands, although it's very difficult to read that 6 word. 7 Q: But the -- the these is compelling 8 evidence that it's bands, is it not? 9 A: Yes, it would be grammatically correct. 10 Q: And that's why you transcribed it as 11 bands, thank you. 12 A: And I -- I would just on that point, 13 further say that this is written by this lawyer, Moncrieff, 14 and if he calls them band or bands, I, from a historical 15 perspective, I would not put a tremendous amount of -- of 16 weight on that, because, again, we're into this area of the 17 word band being an extremely problematic word. 18 And even, you'll find in Indian Affairs 19 correspondence, where the Deputy Superintendent General is 20 talking about how these people are a band under the Indian 21 Act, even he will use bands in some place. 22 People use this terminology very, very 23 loosely, so it's very hard to -- it's -- what I'm saying is 24 it's not methodologically sound to pick out words here and 25 there in historical documents and say that they prove a
1841 point. You have to look at them in their totality. 2 So, because whether or not, you know, the 3 lawyer said, these bands or band, is not -- 4 Q: It's not compelling -- 5 A: -- I -- I would -- I would say that it's 6 not hugely significant, it's -- it's how he might understand 7 the issue, but it's not hugely significant, I would -- I 8 would say that. 9 Q: Yes. It -- it just suggests that he 10 thought of them as two (2) bands. Maybe he was totally 11 wrong. 12 A: Yes, it -- it's clearly when he wrote the 13 letter, he conceived it as -- as two (2) bands, yes. 14 Q: Now, I should like to turn, if I may, to 15 another document, it's four thousand oh six four (4000064), 16 and this is a document of some seven (7) pages or something. 17 I just want to look at the very beginning of it, the first 18 page. 19 And just to make a similar point to the 20 previous document, not with the bands, but with the two (2) 21 chiefs, this is dated in 1885... Can I have a hard copy, if 22 that would facilitate matters? 23 So, I just want to draw your attention to the 24 sentence on our screen, it's towards the bottom, that reads: 25 "The Petition of John Johnson, Chief of the
1851 Sable Indians, and Adam Shawanoo, Chief of 2 the Kettle Point Indians, and other Indians 3 of the same bands..." 4 So, would you agree that this suggests that 5 they were different people who were regarded by some people, 6 perhaps the people living there probably, as chiefs of the 7 Sable Indians, in other words, the Stony Point Indians on the 8 Stony Point Reserve, and of the Kettle Point Indians? 9 A: I think that that -- that in this 10 petition that that's how -- how they think of themselves, 11 yes, -- 12 Q: Yes. 13 A: -- and that's why they write it that way. 14 Q: Exactly. Thank you. 15 Now, you may recall my cross-examining 16 Professor Johnston on this question this -- sorry? 17 A: Can -- can I just have one (1) further 18 moment? 19 Q: Certainly. 20 A: I just -- I just wanna have a quick run 21 though the document before we leave it, if you don't mind. 22 23 (BRIEF PAUSE) 24 25 A: Yeah. Well, the -- the other thing that I
1861 -- I didn't wanna leave this document before we finished with 2 it, because the very last thing of this petition, and as you 3 pointed out, they characterized themselves as the chief of -- 4 chief of the Sable Indians and the chief of the Kettle Point 5 Indians. 6 When they end their petition, the very last 7 section of their petition reads: 8 "This petitioner, therefore, prays that the 9 Kettle Point and Aux Sable Reserves be 10 separated from the Sarnia Reserve and that 11 they may have control as one (1) band of 12 all monies to which they are, from time to 13 time, entitled to from the Crown and their 14 share of any monies now held by the Crown 15 in trust for them." 16 So -- and then there's -- and then there's all 17 the signatures that follow after that. So I think it -- it 18 -- that -- that document, again, it -- it goes to that whole 19 issue of how it's -- it's a -- an elusive concept, shall we 20 say. 21 And that's why when I'm doing historical 22 research and I -- I -- looking at this kind of an issue and 23 if I had been doing research in which I was looking 24 specifically at the question of whether or not this was one 25 (1) band or two (2) bands. I -- which I did not do, I would
1871 look very carefully at the totality of a document such as 2 this so that I could see how people characterized themselves, 3 what they want to do. 4 And -- and this document I would put a 5 particular amount of weight on because it's a document in 6 which the people in -- what is this, the date, sorry, it's 7 1885, in 1885 where the people make a particular, very direct 8 statement of -- of who they want to be at that time. 9 In 1885 this is -- this is the statement that 10 they make. And therefore, I would listen closely to their 11 voice on this issue because they are directly addressing this 12 issue. 13 Q: Yes. And I would suggest to you and the 14 statement that they clearly make is that for Indian Act 15 purposes we want to be one (1) band. They may have control 16 as one (1) band of all monies is what they request. But they 17 do not say, one (1) of the chiefs is going to resign and 18 we're going to become one (1) band in the traditional sense; 19 isn't that fair? 20 A: They -- they -- the issues that they 21 address are the issues of land, I believe. It's money, for 22 sure; okay? Yeah, their money -- they want their money to be 23 joint and they don't -- they don't address anything about 24 elections or chieftainship or their -- their political 25 structure.
1881 Although, and this would be strictly 2 speculation, that by 1885 I'm -- it would be hard to say what 3 they understood or how much information they had on what the 4 electoral requirements would be if they were created as one 5 (1) band because they -- they clearly understand that if they 6 are a band they would have control over their own money. 7 They understand that much of the Indian Act 8 system. What they would understand in terms of the 9 implication of being one (1) band for their electoral system, 10 I can't comment on that because I don't see anything where 11 they directly address that issue. 12 Q: Yeah, so you just suggested that they 13 wanted their monies to be joined. In fact, wasn't it that 14 they wanted their monies which were joined in one (1) big 15 pool with Sarnia to be separated from Sarnia monies; that's 16 what it means, correct? 17 A: Well, actually, what they say and I have 18 to look specifically at their words, they say: 19 "This petitioner ..." 20 And actually, it's not "this petitioner" it's: 21 "your petitioners therefore pray that the 22 Kettle Point and Sable Reserves be 23 separated from the Sarnia Reserve ..." 24 Q: Yes. 25 A: So there's the separation.
1891 "... and that they may have control as one 2 (1) band of all monies to which they are 3 from time to time entitled to from the 4 Crown and their share of any monies now 5 held in -- by the Crown in trust for them." 6 Q: Yes. 7 A: So they want control as one (10 band. 8 Q: Yes. 9 A: And to be one (1) band, as we've been 10 discussing at length, to be one (1) band means to have 11 control of your own money, it means to have control of your 12 reserve. And it also has implications in terms of the 13 electoral system which is in place at that time. 14 And all I'm saying about this is that you 15 suggested to me that they didn't say that one (1) chief would 16 resign and I'm saying, no, they don't because they don't -- 17 they don't address the issue of -- of election. 18 Q: Perhaps I didn't make myself clear. I 19 was suggesting to you it's not proper to say it was a joining 20 of their monies, since their monies were already joined in a 21 bigger pot with Sarnia. 22 It's not as if they were separate bands and 23 said, let's join our monies, they were part of a three (3) 24 group, shall we say, structure, that was considered one (1) 25 band with all the money joined, and they wanted their part
1901 taken away, isn't that fair? 2 A: Yes, to -- 3 Q: Okay. 4 A: -- to control their money. 5 Q: Thank you. 6 A: As a separate entity. 7 MR. PETER ROSENTHAL: Now, I'm in your hands, 8 Mr. Commissioner, I estimate I have about a half an hour to 9 go. So, I'm about to start another slide, which I could 10 maybe deal with -- 11 COMMISSIONER SIDNEY LINDEN: I'd like to try 12 to complete you if that's possible. 13 MR. PETER ROSENTHAL: I'm sorry? 14 COMMISSIONER SIDNEY LINDEN: If we could 15 finish with your examination today, I think that would be -- 16 MR. PETER ROSENTHAL: I think that would be 17 difficult, but I think I can get through another slide or so, 18 if you want. 19 COMMISSIONER SIDNEY LINDEN: Well, if you're 20 not going to complete it, then I think we're better off to 21 adjourn at a reasonable hour -- 22 MR. PETER ROSENTHAL: Yes. 23 COMMISSIONER SIDNEY LINDEN: -- and come back 24 and complete it on another day. 25 MR. PETER ROSENTHAL: Thank you, I'm in your
1911 hands. 2 COMMISSIONER SIDNEY LINDEN: Is that what you 3 would prefer? 4 MR. PETER ROSENTHAL: That's -- that's 5 certainly fine, I'm in your hands, thank you. 6 COMMISSIONER SIDNEY LINDEN: All right, 7 that's fine. It's twenty-five (25) after. Is this a good 8 point to adjourn then? 9 MR. PETER ROSENTHAL: I just -- 10 COMMISSIONER SIDNEY LINDEN: I don't want to 11 rush you, I mean you -- 12 MR. PETER ROSENTHAL: No, no. 13 COMMISSIONER SIDNEY LINDEN: -- can finish 14 your -- 15 MR. PETER ROSENTHAL: Thank you. I'm not -- 16 COMMISSIONER SIDNEY LINDEN: -- examination. 17 MR. PETER ROSENTHAL: -- going to finish 18 today, I'm happy to go on for five (5) or ten (10) more 19 minutes, if you -- I'm in your hands. 20 COMMISSIONER SIDNEY LINDEN: If we go on for 21 five (5) or ten (10) more minutes and we have to come back 22 anyway, and this is as good a time as any -- 23 MR. PETER ROSENTHAL: Thank you. 24 COMMISSIONER SIDNEY LINDEN: -- to adjourn 25 and come back and complete your examination when we return in
1921 September. 2 MR. PETER ROSENTHAL: Thank you, Mr. 3 Commissioner. 4 COMMISSIONER SIDNEY LINDEN: Thank you. Are 5 you okay, Ms. Holmes? 6 THE WITNESS: Certainly. 7 COMMISSIONER SIDNEY LINDEN: Yes, you've -- 8 again, you've had a long day, a long three (3) days, and I 9 think that's enough for now. So, unless anybody has any 10 objections or comments or -- no, everybody's agreed. 11 We will adjourn now, and reconvene, I think 12 it's September the 8th? 13 MR. DERRY MILLAR: Yes. 14 COMMISSIONER SIDNEY LINDEN: September the 15 8th. We'll reconvene here in this hall on I think it's 16 Wednesday -- 17 MR. DERRY MILLAR: Yes, it's September the 8th 18 at 10:30. 19 COMMISSIONER SIDNEY LINDEN: 10:30, that's a 20 Wednesday, is it? 21 MR. DERRY MILLAR: Yes. It's a Wednesday. 22 It's Wednesday September the 8th and -- 23 COMMISSIONER SIDNEY LINDEN: And we're -- 24 MR. DERRY MILLAR: -- we're sitting Wednesday, 25 Thursday and Friday that week.
1931 COMMISSIONER SIDNEY LINDEN: And Friday of 2 that week? 3 MR. DERRY MILLAR: Yes. 4 COMMISSIONER SIDNEY LINDEN: All right, until 5 Wednesday, September the 8th at 10:30. 6 MR. DERRY MILLAR: Yes. 7 COMMISSIONER SIDNEY LINDEN: This Hearing is 8 now adjourned. 9 MR. DERRY MILLAR: Thank you. 10 COMMISSIONER SIDNEY LINDEN: Thank you very 11 much. 12 13 (WITNESS RETIRES) 14 15 THE REGISTRAR: This Public Inquiry is 16 adjourned until Wednesday, September the 8th at 10:30 a.m. 17 18 --- Upon adjourning at 4:25 p.m. 19 20 Certified Correct, 21 22 23 ____________________ 24 Wendy Warnock, Ms. 25