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 30th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) (np) 16 17 Mark Sandler ) (np) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) (np) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 Julian Falconer ) (np) Aboriginal Legal 3 Brian Eyolfson ) (np) Services of Toronto 4 Kimberly Murray ) 5 Julian Roy ) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) Chiefs of Ontario 13 Matthew Horner ) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) 19 Erin Tully ) (np) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 SCOTT COLIN HUTCHISON, Resumed 6 Cross-Examination by Mr. Julian Roy 9 7 Re-Examination by Ms. Katherine Hensel 41 8 9 JULIE RAMONA JAI, Sworn 10 Examination-In-Chief by Mr. Derry Millar 45 11 12 13 14 15 16 17 Certificate of Transcript 275 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-640 Curriculum Vitae of Ms. Julie 4 Ramona Jai. 46 5 P-641 Document Number 1003539. "The Steps to 6 Negotiating a Land Claim" from Ontario 7 Native Affairs Secretariat, Feb/'95. 59 8 P-642 Document Number 3001721. Memo to Rita 9 Burak re. Briefing on Aboriginal Issues 10 Aug 10/'95 and Slide Presentation re. 11 Briefing on Aboriginal Affairs for the 12 Premier's office staff, Aug 11/'95. 76 13 P-643 Document Number 1007239. Statement of 14 political relationship; SPR guidelines: 15 Questions and Answers and Appendix 16 SPR tribal councils in Ontario Aug/'92. 97 17 P-644 Julie Jai's Phone Log July 12/'95 to 18 September 12/'95. 100 19 P-645 Document Number 1003504. Julie Jai's 20 handwritten note. July 30/'95 147 21 P-646 Document Number 1003358. E-mail from 22 Julie Jai to distribution groups re. 23 "Possible Emergency -Ipperwash" 24 Aug 01/'95. 160 25
71 LIST OF EXHIBITS (cont'd) 2 Exhibit No. Description Page No. 3 P-647 Document 1003507. Note from Peter 4 Sturdy, MNR to Julie Jai, Aug 5 03/'95 and reference to phone call, 6 Aug 04/'95. 200 7 P-648 Document Number 1004263. Chippewas 8 of Kettle and Stony Point v. Attorney 9 General of Canada et al: Reasons for 10 judgment "Chippewas of Kettle and Stony 11 Point - Litigation involving Federal 12 Government" Aug 18/'95. 211 13 P-649 Document Number 1011769. E-mail from 14 Julie Jai to Yan Lazor, Sept.05/95 15 re: Ipperwash Park Emergency. 269 16 17 18 19 20 21 22 23 24 25
81 --- Upon commencing at 9:02 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 COMMISSIONER SIDNEY LINDEN: Good 7 morning. Good morning, Mr. Roy. Good morning Mr. 8 Hutchison. 9 MR. SCOTT HUTCHISON: Sir. 10 MR. JULIAN ROY: Good morning, Mr. 11 Commissioner. I've advised your counsel, I'm going to be 12 a lot briefer than I'd earlier estimated. 13 COMMISSIONER SIDNEY LINDEN: Oh good. 14 MR. JULIAN ROY: With the benefit of last 15 night, I slashed and burned through a lot of my notes 16 and -- 17 COMMISSIONER SIDNEY LINDEN: I was hoping 18 you wouldn't be repetitive and I'm sure you won't be. 19 MR. JULIAN ROY: I'll try not to be. I 20 hope Mr. -- Mr. Hutchison can forgive me for the fact 21 that I'll be briefer than I'd intended. I'm sure he 22 will. 23 COMMISSIONER SIDNEY LINDEN: I think we 24 can all forgive you. 25 MR. JULIAN ROY: Thank you very much.
91 SCOTT COLIN HUTCHISON, Resumed; 2 3 CROSS-EXAMINATION BY MR. JULIAN ROY: 4 Q: I want to start with some of the -- 5 some of the broad general evidence that you gave about 6 proper communications between the civil service -- civil 7 servants and political staff. 8 Do you remember the evidence -- 9 A: I do, sir. 10 Q: -- the sort of a general evidence you 11 gave on that? 12 A: Yes. 13 14 Q: Okay. The word you described when 15 you were asked about this -- just sort of put your finger 16 on it was -- the word you used was culture. 17 Do you remember that? 18 A: Certain -- the perspective I 19 testified about was from my understanding of the culture 20 and what was considered to be appropriate and 21 inappropriate. And I only say that to distinguish it 22 from any formal protocol that may be documented somewhere 23 else. 24 Q: Yeah. There's no rule book that sets 25 out in detail what is proper and what is improper,
101 correct? 2 A: Frankly, there might be. I'm not 3 aware of one. 4 Q: All right. 5 A: But I -- I don't want to say that one 6 doesn't exist. 7 Q: Okay. But you weren't aware of it. 8 You weren't aware of it now when you gave your evidence, 9 correct? 10 A: No. No. I don't know of one. I've 11 never been shown one. I know though that there was an 12 understanding and an expectation with respect to how 13 those communications happen and the nature of what was 14 considered to be appropriate and inappropriate 15 communication between political staff and people on the 16 official side. 17 Q: Okay. And that understanding or 18 expectation that you've just described is something that 19 you don't walk into the job with, correct? 20 A: True. 21 Q: It's something that you sort of 22 absorb over time, correct? 23 A: You'd absorb it over time and -- and 24 I think that you would be -- to the extent that your 25 employment ever saw you in contact with political staff,
111 your supervisor, your director, your ADM would make sure 2 that you understood what the ground rules were before 3 that kind of contact happened. 4 Q: Yes. In -- in -- for example, in '97 5 and '98, I notice from your -- your CV that you were 6 actually in the office of the Assistant Deputy AG, 7 correct? 8 A: Correct. 9 Q: And you would have been immersed in 10 that issue of that -- what is proper and what is 11 improper. 12 A: Sure, absolutely. 13 Q: All right. But prior to that you 14 wouldn't have been, correct? 15 A: Prior to that I would have been aware 16 that only because I -- I'd had these other cases that had 17 sort of obliged me to have contact -- 18 Q: Sure. 19 A: -- in that form. 20 Q: You -- you described as your core 21 duties, the nuts and bolts of being a lawy -- a criminal 22 prosecutor; is that correct? 23 A: Well, in the Appellate Crown. 24 Q: In the appellate -- in the appellate 25 context.
121 A: Yeah. 2 Q: Yeah. So, the nuts and bolts of your 3 work is doing factums and appearing in court, correct? 4 A: True, though I also had policy 5 responsibilities in that timeframe including leading a 6 group that was developed in the Alternative Measures 7 Program that ultimately got implemented in Ontario. That 8 was a sort of a policy forum that did involve some 9 contact with political staff. 10 Q: And when would that have been? 11 A: If I can -- let me just refresh 12 myself by reference to my resume. I'm going to -- my 13 recollection is it was '90 to '93. 14 Q: Okay. 15 A: Yeah. '90 to '93 I was Chair of a 16 group called the Alternative Measures Working Group that 17 developed the Alternative Measures Program under the old 18 Young Offenders Act that -- that was implemented in 19 Ontario. 20 Q: But, you'd agree with me by virtue of 21 being in the Office of the Assistant Deputy Minister that 22 that would have been you most intense experience? 23 A: Sure. It's -- I mean you -- you 24 learn more and more as time goes on and you -- you 25 confront progressively more subtle issues and figure them
131 -- your way through them. 2 Q: And you have that experience now as 3 you testify, but back in 1995 you hadn't had that 4 experience? 5 A: That's fair. 6 Q: Thank you. And you testify as -- as 7 a lawyer with sixteen (16) years of experience in 8 practice, correct? 9 A: True. 10 Q: And most of it in the Attorney 11 General's Office, correct? 12 A: Correct. 13 Q: And in September 1995 you were a 14 lawyer with only six (6) years in practice, correct? 15 A: Six and a half (6 1/2), but right. 16 Q: All right. I noticed when -- when -- 17 when one (1) of My Friends suggested to you that you were 18 keenly aware of the line you -- you hesitated just a 19 little bit and am I right in saying that that's by virtue 20 of the fact that you're cognizant of you were only a six 21 (6) year lawyer at the time in September '95? 22 A: I mean, I think -- I -- I mean I was 23 very much alive to -- I don't recall, sort of, pausing 24 for the answer. And if the question is did I have any 25 trouble, sort of, figuring out where the line was back in
141 '95 I -- I don't think I had any issue there. To the 2 extent that the kinds of issues that are being talked 3 about here I didn't need the two (2) years in the ADAG's 4 office -- 5 Q: All right. 6 A: -- to sort -- 7 Q: I see. 8 A: -- filter through the -- the -- any 9 of the subtleties that were happening at that meeting. 10 Q: The Interministerial Committee; I 11 want to ask you some questions about that. 12 A: Okay. 13 Q: Now, you didn't have any involvement 14 with that committee prior, or you don't recall any 15 involvement prior -- 16 A: I -- I don't recall -- I don't recall 17 attending a meeting. I may have provided, as I said 18 before, some telephone advice that was relayed to the 19 Committee. I provided -- that -- that may have happened 20 around the time of the August 2nd meeting. 21 I know I provided some kind of telephone 22 advice and the document or the -- the portion of that 23 document that was created on the 5th, but in terms of 24 attending a meeting and participating in the way I did on 25 the -- the 6th and 7th I don't recall any such
151 attendance. 2 Q: Okay. Before we go further you and I 3 are doing a thing where we're talking over one another a 4 little bit. 5 A: I apologize. 6 Q: If you could just let me finish the 7 question. 8 A: Sure. 9 Q: I know -- I know it's obvious to you 10 what my question is going to be, but -- but if you could 11 let me finish it for the purposes of the record. 12 So, given the fact that you don't recall 13 any attendances prior -- formal attendances at this -- 14 these committee meetings prior to September 6th, 1995, 15 you wouldn't have been cognizant of the precise dynamics 16 of the meetings, would you? 17 A: If you mean, sort of, how the -- the 18 personal dynamic, true enough. 19 Q: And I believe your evidence was that 20 you weren't even aware that -- that political staff were 21 present at the committee before you attended on that day? 22 A: I think my evidence was that I -- I 23 hadn't been specifically told that they'd been invited to 24 that particular meeting. I did know that they attended 25 that meeting, like those -- like meetings of that group.
161 I didn't know that they were going to be at that 2 particular one. 3 Q: I beg your pardon? 4 A: I didn't know -- I didn't -- I didn't 5 have a list of invitees before I went. 6 Q: Okay. And when you actually appeared 7 at the meeting you weren't actually aware, specifically, 8 who was political staff and who were civil servants in 9 terms of the entirety of the members of the meeting? 10 A: No, I -- I knew -- I knew certain 11 people were political staff and -- and that would be the 12 -- I think it was the -- the -- the two (2) political 13 staff who I knew from MAG and Deb Hutton who I recognized 14 simply because she had some profile even at that time. 15 I didn't recognize Kathryn Hunt, for 16 example. I know there other people on the list who are 17 probably political staff who even today I don't know. 18 Q: And this wasn't a problem in terms of 19 your involvement in the September 6th meeting because you 20 were being brought in on a very specific point; is that 21 not correct? 22 A: Fair enough. 23 Q: You were being brought in to lay out 24 some -- some sort of boilerplate criminal law advice on 25 the criminal law background to blockades or protests,
171 correct? 2 A: Correct. The -- the nature of the 3 advice is -- was essentially going to be consistent with 4 what I'd included in the passages that I've provided, I 5 think to Ms. Jai, they got rolled into that September 5 6 document. 7 Q: It's pretty boilerplate stuff, right? 8 A: Fair enough. 9 Q: Yeah. And you were cognizant when 10 you were attending the meeting that there were lots of 11 other representatives from the Attorney General's office 12 there, correct? 13 A: I knew Mr. McCabe, Ms. Christie. I 14 knew Andrew MacDonald. Off the top of my head -- I'd 15 have to look at the list of attendees. I knew there were 16 other people there, sure. 17 Q: Yeah. And you understood that they 18 were going to be taking care of their own respective 19 responsibilities and you trusted that, correct? 20 A: Sure. I wasn't going to give advice 21 about injunctions, for example. 22 Q: Now, given that you don't know for 23 sure who's political staff and who isn't, and given that 24 you're attending at, sort of, a continuation of an 25 earlier meeting, you'd agree with me that it wasn't job
181 to act as sort of a referee for discussions between 2 political staff and civil service, was it? 3 A: No. 4 Q: No. That just wasn't your brief, 5 correct? 6 A: Correct. Except to the extent that - 7 - that I was a civil servant. I -- 8 Q: Yes. 9 A: -- I'm the referee for me -- 10 Q: Yes. 11 A: -- but not for everybody else. 12 Q: If somebody said something and asked 13 you -- or directed you to do something inappropriate, 14 that would get your attention, but -- 15 A: Right. 16 Q: -- you weren't being the referee at 17 large for the whole meeting, were you? 18 A: True enough. The only place where 19 that changes is when the question comes up about contact 20 with the police and then it's a legal issue that's 21 engaged, and it's a legal issue that I give advice and 22 we've -- 23 Q: Sure. 24 A: -- sort of gone over that a few 25 times.
191 Q: Sure. 2 A: That's the one place where -- I don't 3 know if that's the kind of refereeing you're talking 4 about but to the extent that anybody in the room, 5 political staff or anybody else wanted to try and phone 6 the police and tell them what to do, that's a place where 7 I step in and give legal advice with respect to the 8 propriety of that. 9 Q: I don't want to till that ground 10 again. Other lawyers have done that with you and I'm 11 sure -- 12 A: Fair enough. 13 Q: -- the Commissioner and yourself will 14 be grateful for that. But, the bottom line is, if it 15 affected you directly in terms of direction you were 16 getting, that was something that you were going to -- 17 A: Sure, if -- if for example, some 18 political staff had said to me, you know, go back and, 19 you know, say 'X'. I would have said, okay. I would 20 have gone back and I would have talked to Murray Segal or 21 Michael Code -- 22 Q: Yes. 23 A: -- about it and would have had them 24 go up through the Deputy and have the Deputy go over and 25 shout at whoever had tried to do that.
201 Q: All right. Now -- 2 A: And that, in my experience, whenever 3 anything like that, sort of, you know, sort of, starts to 4 happen, that's how it gets played out. 5 Q: That's from your perspective how it 6 worked within the Attorney General's office. 7 A: Yes. 8 Q: But you can't speak for all the other 9 ministries -- 10 A: No, no, no, I -- 11 Q: -- that were there? 12 A: Fair enough. 13 Q: We're doing that again where we're 14 talking over one -- 15 A: Sorry. 16 Q: -- another. You can't speak to other 17 ministries, can you? 18 A: No, I cannot. 19 Q: No. Now, you made reference to a 20 side discussion, at least one (1) side discussion that 21 you had during the meeting that you actually made a note 22 of. 23 Do you recall your evidence on that? 24 A: I don't, actually. I think there was 25 one note that I might have said might have been a side
211 discussion but I don't -- I'm happy to have you refer me 2 to it and -- and -- I don't recall the bit of evidence -- 3 Q: All right. 4 A: -- you're talking about. 5 Q: Well, I'm not going to -- I'm not 6 going to pull up the transcript. It'll speak for itself. 7 You -- I think you're right that you said you might have 8 reflected a -- 9 A: Yeah. 10 Q: -- a side discussion. But, the 11 bottom line is, in terms of your evidence as you sit 12 here today, you may have had one or more side discussions 13 with other people at the meeting, while the main meeting 14 was going on, correct? 15 A: True enough, yeah. 16 Q: And during -- 17 A: It was a big meeting. It was a kind 18 of -- the kind of meeting where it wouldn't be unusual 19 for two (2) people to have a little sidebar on something. 20 Q: It would not be unusual? 21 A: Would not be unusual. 22 Q: Okay. And during those little 23 sidebars, perhaps your attention wasn't directed at the 24 main meeting fully? 25 A: Fair enough.
221 Q: Yeah. In the notes that you took of 2 the meeting, they're not verbatim notes of -- 3 A: No, no, they're -- 4 Q: -- what people said? 5 A: -- there's things to -- here that 6 would be just sort of notes you make as you're trying to 7 follow what's going on. Some of them would be notes to 8 myself about things that I want to say later in the 9 meeting. 10 And I mean, maybe I -- they're not 11 intended to be -- they weren't prepared in anticipation 12 of my evidence. 13 Q: I know -- I'm sure a lot of lawyers 14 have had that experience, sir. But, in any event, that's 15 consistent with your evidence that you've just given that 16 you're not a referee for this meeting, correct? 17 A: True. 18 Q: Yeah. 19 A: Quite true. 20 21 (BRIEF PAUSE) 22 23 Q: Now Ron Fox was somebody that was 24 known to you prior to this meeting? 25 A: I'm not sure that he was and it's
231 quite possible that I'd met him before. I hadn't done a 2 lot of work with him if I did know him before this 3 meeting. I'm -- I'm sure I've seen his name around 4 before the meeting. 5 Q: But, in any event you had the 6 impression of Ron Fox from interacting with him and 7 hearing him at the meeting that he was somebody that was 8 a competent person, correct? 9 A: Oh sure. 10 Q: And he was somebody that you would 11 defer to in police operational matters? 12 A: Absolutely. 13 Q: And you even mentioned in your 14 evidence that you would -- that he was somebody that 15 people ought to listen to legal -- operationally and 16 legally, correct? 17 A: I think that he would be -- he would 18 know the kind of legal issues that I was talking about, 19 he would have known them as well. If -- if Ron and I 20 would ever disagree about a legal issue, have to say 21 listen to me. 22 Q: Yeah. In any event from your 23 impression, Ron Fox seemed to understand that line that 24 we've talking about, about proper, improper 25 communication.
241 A: Certainly from the -- from the police 2 perspective I -- I don't know that he necessarily had the 3 same understanding about the relationship between the 4 civil service and political staff. 5 Q: Sure. 6 A: He would certainly have understood it 7 from the perspective of a police officer and the 8 independence of that office. 9 Q: Yeah. And -- and what -- the point 10 that you're making is there is a distinction between the 11 relationship between political staff and the police 12 versus political staff and an ordinary civil servant, 13 correct? 14 A: Absolutely. 15 Q: And Ron Fox -- you had the impression 16 that Ron Fox had a good understanding of the peculiar 17 issue, correct? 18 A: I would have thought so. 19 Q: Yeah. The general evidence that 20 you've given about communications between political staff 21 and civil servants, you were able to give that evidence 22 by virtue of your experience with the Attorney General's 23 Ministry, correct? 24 A: Correct. 25 Q: And you -- you haven't worked for the
251 Solicitor General's Ministry, have you? 2 A: No. 3 Q: Or any other ministry? 4 A: No. 5 Q: So, you're not knowledgeable about 6 the peculiarities of the chain of command within the 7 Solicitor General's office other than generally speaking? 8 A: No. The only exposure I've had is in 9 context of my role as Director for Integrated Justice 10 which was a cross ministry project. It involved some 11 work within the Ministry of the Solicitor General. The 12 culture there seemed to be very similar. I couldn't 13 speak to operationally how any of that was implemented. 14 Q: Because one of the things that you 15 didn't testify about when you were giving your general 16 evidence, was about the role of the commissioner in this 17 chain -- the OPP -- 18 A: Over the role of the? 19 Q: -- the OPP Commissioner in this, sort 20 of, chain of communication that you described? 21 A: Yeah. I don't -- I don't think I 22 spoke to the role of commissioner. 23 Q: Are you knowledgeable about that 24 issue? 25 A: In terms of how the --
261 Q: How the -- 2 A: I'm not sure what -- what issue 3 you're asking about, sorry, sir. 4 Q: How the OPP commissioner fits into 5 that chain of communication that you described in your 6 evidence in-chief? 7 A: I have some knowledge. I don't know 8 that I'd - I'd say that I -- I have any particular 9 expertise in it. 10 Q: All right. Well, you described in 11 terms of how the -- the AG's office works. There'll be 12 somebody like yourself who would report to your director, 13 correct? 14 A: Right. 15 Q: Your director was Murray Segal I 16 guess. 17 A: At the time of Murray Segal, Murray 18 Segal reported to Michael Code who was the ADM at the 19 time. 20 Q: ADM is Assistant Deputy Minister? 21 A: Correct. 22 Q: And then the ADM reports to the 23 Deputy Minister, correct? 24 A: Correct. 25 Q: Now, if we go laterally to the
271 Solicitor General's Ministry, would you understand that 2 there would be the chain of command within the police, 3 correct? 4 A: Correct. 5 Q: And -- 6 A: The problem is that -- I don't mean 7 to interrupt, I'm sorry. 8 Q: Sure. 9 A: But, I think I can kind of jump to 10 the answer -- 11 Q: Sure. Please do. 12 A: The reason I'm having difficulty with 13 the question is that the Commissioner has a mix of 14 responsibilities. Some of them are routine, budgetary 15 operational responsibilities within Sol Gen, other relate 16 to the delivery of policing services. 17 And I expect, although I don't know that 18 the way that reporting structure works is different 19 depending on which kind of issues you're talking about. 20 So, for example, when it comes time to worry about issues 21 of budget, the Commissioner has the status probably 22 equivalent to an assistant deputy minister, sits on the 23 senior management committee and participates in the work 24 of the ministry that way. 25 But, in terms of policing issues I would
281 anticipate that there's some other reporting structure in 2 place. 3 Q: All right. You suspect that that's 4 the fact but you don't know for sure? 5 A: I would expect that to be, yeah. But 6 I don't -- I don't -- again, as I said, I don't hold 7 myself out as having any particular knowledge in this 8 area. 9 Q: That's fine. So, you and I are not 10 going to have a fruitful discussion about that and -- and 11 I'll just keep moving on to another area. All right? 12 A: Good. 13 Q: I want to follow-up on -- on some 14 questions that Mr. Horton had for you towards the end of 15 the day yesterday and that's the issue about the law and 16 order approach. 17 A: The -- I'm sorry? 18 Q: The law and order approach. 19 A: Yes. 20 Q: Now, as I understood your evidence 21 yesterday it was clear to you from the September 6th 22 meeting that the direction that you were getting from the 23 political staff was that the approach was to be more of a 24 law and order approach versus a First Nation issue 25 approach; is that correct?
291 A: Yeah. I mean that language got used 2 more in terms of the -- the discussion about the -- the 3 communications or the messaging, but sure. 4 Q: Sure. But, also in your evidence and 5 -- and I -- I appreciate that distinction about how it 6 can play out in communications and how it can play out in 7 terms of practically, correct? 8 There is -- there is a distinction between 9 those two? 10 A: Sure. 11 Q: Yeah. And one (1) of the things that 12 you said yesterday is that part of -- what I understood 13 from your evidence was that part of this law and order 14 approach was to not have a negotiator involved; is that 15 correct? 16 A: It's -- it's not like it was, sort 17 of, said, okay, and -- and now we're going to have a law 18 and order approach. 19 And on the agenda of not having a law and 20 order -- or having a law and order approach is you go to 21 the negotiator, get the injunction, dah, dah, dah. It 22 was -- if you ask me on reflection was that consistent 23 with this notion of a law and order approach, sure, that 24 -- that's how I would describe it as being, sort of, part 25 of that -- this new tone if you like -- part of the new
301 tone. 2 And we'll put this sort of potentially 3 charged label of law and order on it; was not to have a 4 negotiator, move to have the protestors removed. You 5 know, move expeditiously for an injunction. And that all 6 falls under that rubric of the -- this new tone or 7 approach. 8 Q: And -- and you call it a new tone 9 because it could be contrasted with the tone of the 10 former government? 11 A: Correct. 12 Q: And it's not only a tone, there's 13 also practices -- 14 A: Sure. 15 Q: -- involved in that, correct? 16 A: Correct. 17 Q: And one (1) of the practices is -- is 18 to involve a negotiator, correct? 19 A: Correct. 20 Q: And often the negotiator comes from a 21 First Nations community? 22 A: Sure. I wasn't directly involved in 23 appointing previous negotiators so I don't want to speak 24 to how that practice worked but I know that at least on 25 some occasions that was the case.
311 Q: And a First Nations negotiator, if 2 appointed, can be a useful conduit for the police to 3 communicate with the people who are part of the blockade 4 or protest, correct? 5 A: I wouldn't argue with that. It's 6 sort of a common sense proposition, sure. 7 Q: And -- and it's -- and the 8 communication works both ways. It's a way for the 9 people, the protestors or the people involved in the 10 occupation or blockade to communicate with the police 11 also, correct? 12 A: Any kind of honest broker can do 13 that, sure. It's got to be somebody that both sides, 14 though, are going to have faith in. 15 Q: Yes. And -- and that person can 16 often be a First Nations leader? 17 A: Sure. Again, I -- I don't purport to 18 have any special knowledge with respect to that, but the 19 -- the question you put, it makes sense to me. 20 Q: And we've heard evidence from people 21 who have way more expertise than you or I on that -- 22 A: Sure. 23 Q: -- but I just wanted to canvass -- 24 A: I'm not going to quarrel with them. 25 Q: I'm going to canvass that with you,
321 generally, before I move on to my next point -- 2 A: Okay. 3 Q: -- which is that -- that process of 4 having a negotiator serve as a conduit for discussion 5 between the occupiers and the police; that was your 6 impression of the meeting, that was not the kind of 7 approach that was going to be employed, correct? 8 A: Sure. 9 Q: In that approach that was 10 communicated at the meeting, it was communicated to the 11 AG's ministry, correct, as part of the meeting? 12 A: I'm -- I'm sure Tim went back -- Mr. 13 McCabe went back and -- and reported up through Assistant 14 Deputy Rosenberg and to the Deputy that that had come 15 back. 16 Q: And it was communicated to the 17 Ministry of Natural Resources minister which was also 18 represented there? 19 A: I can't -- I can't say that it was 20 but I wouldn't -- again, I -- I didn't go to their 21 briefing but -- 22 Q: All right. 23 A: -- they probably took the same 24 message back. 25 Q: And the same would go for the
331 Solicitor General? 2 A: Again, I -- I can't say what went 3 back but I imagine it was the same. 4 Q: But, that message was clear to you at 5 the meeting? 6 A: Sure. 7 Q: Now, the conciliatory approach that 8 you and I discussed? 9 A: Hmm hmm. 10 Q: That was the sort of thing that Ron 11 Fox was advocating at the meeting, correct? 12 A: He certainly advocated an approach 13 that was consistent with that. I mean, I think his 14 perspective was based both on sound policing principles 15 and the -- the way that had worked in the past in terms 16 of just getting to the ultimate objective as being the 17 most effective way to get to the ultimate objective. 18 But it was also based on, I think, 19 informed by the same kind of concerns that the 20 conciliatory approach had been informed by. 21 Q: And the message you were receiving 22 was that this -- this notion of having a negotiator 23 involved and engaging in these discussions, that this was 24 inconsistent with the law and order approach or spin that 25 the political staff were interested in pursuing, correct?
341 A: Sorry, could you put the question 2 again? I kind of lost you half way through. 3 Q: It was a terrible question. 4 A: Sorry. 5 Q: I lost myself, in fact. What I'm 6 asking you, is -- is this law and order approach that you 7 were receiving at this meeting, you'd agree with me that 8 this notion of having or the impression you had was -- 9 was -- I'm -- the question's getting worse, so I'll start 10 over a third time. 11 A: Okay. 12 Q: Three (3) strikes and you're out, 13 perhaps. What I'm asking you, is -- was it your 14 understanding that -- that this idea of having a 15 negotiator engaged in communications between the 16 occupiers and the police that this was somehow 17 inconsistent with the law and order approach that the 18 political staff were advocating? 19 A: Yes. And I think that's why the -- 20 why the message was don't have a negotiator because it 21 will be perceived as being -- being the sort of 22 conciliatory approach. 23 Q: Yeah, because if you have a 24 negotiator, it implies that it's a First Nations issue 25 and not a law-and-order issue.
351 A: Yeah. No, and I think that's the -- 2 the old approach was really a -- and I call it the old 3 approach. The approach that had informed the way that 4 things had worked up until that point, was almost a -- a 5 diplomatic approach, whereas this new message was to -- 6 to view it really as a law and order issue. 7 Q: Yeah. And have a negotiator what 8 that implies is that -- that it's somehow a First Nations 9 issue, correct? 10 A: Correct. 11 Q: And there was a real imperative that 12 this not be seen as a First Nations issue, correct? 13 A: That was certainly the message, yeah. 14 15 (BRIEF PAUSE) 16 17 Q: The other thing that having a 18 negotiator -- I'm going to suggest to you that having a 19 negotiator is also inconsistent with this removed 20 protesters ASAP idea, is it not? 21 A: I don't know. I mean, I think it's - 22 - it's -- I can imagine situations where having a 23 negotiator would be the quickest way to get people 24 removed -- 25 Q: Sure.
361 A: -- safely. 2 Q: Safely, yes. 3 A: And -- sorry, again, I apologise. 4 I've lost the question again. 5 Q: That -- that -- 6 A: Oh, sorry, the question of 7 inconsistency between having a negotiator and a law and 8 order approach. 9 Q: It's the inconsistency between a 10 negotiator and removing the occupiers ASAP. 11 A: I'd certainly go along with that, 12 yeah. 13 Q: Yeah. 14 A: I mean, I think the -- the concern 15 that was expressed was, we don't want to get into 16 negotiations because it will simply protract the process. 17 Q: Yes. When you have negotiators going 18 back and forth -- 19 A: Yes. 20 Q: -- it takes some time. 21 A: Sorry, I'm with you, yes, I agree. 22 Q: Takes some patience -- 23 A: Yeah, I understand the question now. 24 Q: -- on the part of both sides, 25 correct?
371 A: Correct. 2 Q: And the ASAP goal was inconsistent 3 with this sort of patient, negotiated approach, correct? 4 A: Correct. 5 Q: Are you starting to agree with me 6 that this was more just spin or communications, it's 7 starting to have an impact on the ground? 8 A: yeah, I don't think I ever said it 9 was just communications. The expression 'law and order' 10 is -- was used in the context of how the messaging was 11 going to work. 12 Q: Yeah. 13 A: And that's -- my only reluctance has 14 been that this notion that's going -- that the approach 15 is just going to be called this law and order approach, 16 because I think it's kind of a charged expression. 17 Q: Sure. 18 A: And that's my only concern with that. 19 Q: But, what's happening when we're 20 getting -- when we're taking out negotiation, we're 21 removing a tool from the tool belt that the OPP have, 22 correct? 23 A: Yeah, I don't know that the 24 negotiations were ever under the control of the OPP, 25 though. The negotiations were conducted by the Province.
381 I don't know that it's a tool that the OPP 2 had. 3 Q: All right. Well, we've heard 4 evidence on that, so I'll -- 5 A: Sure, I -- yeah. But I understand 6 that -- that the negotiations they were talking about -- 7 COMMISSIONER SIDNEY LINDEN: Just a 8 minute, Mr. Hutchison. 9 THE WITNESS: Sorry. 10 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 11 Downard...? 12 MR. PETER DOWNARD: I'm just concerned 13 that there's a suggestion being made to the witness that 14 this committee was of the view or the Government was of 15 the view that the OPP were not to negotiate with the 16 occupiers and that's not the evidence. 17 COMMISSIONER SIDNEY LINDEN: That's not 18 the evidence. 19 MR. JULIAN ROY: Well -- 20 COMMISSIONER SIDNEY LINDEN: Well, 21 perhaps you want to be a little more in your question. 22 MR. JULIAN ROY: I'm actually finished my 23 questions. 24 COMMISSIONER SIDNEY LINDEN: Are you? 25 MR. JULIAN ROY: That was my last one.
391 COMMISSIONER SIDNEY LINDEN: Oh, that's 2 fine. Okay. 3 THE WITNESS: Just so I could finish the 4 answer. The negotiator that I understand was -- was not 5 allowed was a negotiator who would go in and talk about 6 ways to resolve the underlying dispute. 7 COMMISSIONER SIDNEY LINDEN: Larger 8 issues. 9 THE WITNESS: Yeah. 10 MR. JULIAN ROY: May I have your 11 indulgence for one moment? 12 COMMISSIONER SIDNEY LINDEN: Yes, of 13 course. 14 MR. JULIAN ROY: I spoke too soon with 15 that being my last question. 16 COMMISSIONER SIDNEY LINDEN: Go ahead. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. JULIAN ROY: 21 Q: Do you have your notes at Tab 2 of 22 your materials? 23 A: I do. 24 Q: If you could go to the September 7th 25 portion.
401 A: I have them. 2 Q: And on page 2 of that? 3 A: Yes. 4 Q: There's a notation, "Rosenberg - 5 still go ahead". Do you see that? 6 A: That's right. 7 Q: And this is a reference to something 8 that -- a meeting that happened on September 7th? 9 A: No that's -- I think that's the last 10 portion of the voicemail from Julie Jai. Do you recall 11 that -- that day starts with the broadcast message from 12 Julie Jai that continued over to the next page? 13 And that -- the last thing I -- I expect 14 from her voicemail was here's the history, here's what's 15 going on, Assistant Deputy Rosenberg says still go ahead. 16 I expect that means still go ahead with the application 17 for the injunction. 18 Looking at it today, that's what I -- I 19 think that is. 20 Q: Okay. So, that -- you don't believe 21 that's part of a meeting that you had? 22 A: No. No. It's still the voicemail 23 because the one thing I do remember is that the blacked 24 out portion that's immediately afterwards is an unrelated 25 voice mail, that was the next message on my machine that
411 day. 2 So, that -- what you're seeing here is the 3 voicemail that continues over to the top of that page. I 4 draw a line, I make note about the next voicemail which 5 has nothing to do with our business today and then the 6 next note is the committee meeting. 7 Q: Okay. Thank you very much, Mr. 8 Hutchison. 9 Those are my questions, Mr. Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Thank you, 11 Mr. Roy. 12 MR. JULIAN ROY: I kept my promise for 13 once. 14 COMMISSIONER SIDNEY LINDEN: You 15 certainly did. 16 Ms. Twohig, do you have any questions? 17 MS. KIM TWOHIG: No, I don't, thank you. 18 COMMISSIONER SIDNEY LINDEN: No 19 questions? 20 Ms. Hensel, is there any re-examination? 21 MS. KATHERINE HENSEL: Yes. Good 22 morning, Commissioner. I just have one further question 23 for Mr. Hutchison. 24 25 RE-EXAMINATION BY MS. KATHERINE HENSEL:
421 Q: Mr. Hutchison, normally we have 2 afford witnesses the opportunity at this point or 3 earlier, to offer to the Commission and the Commissioner 4 any particular ideas or suggestions you have with respect 5 to recommendations that this Commission might make, with 6 respect to the events of September 1995 and the 7 surrounding circumstances. 8 Would you like to take this opportunity to 9 make any suggestions? 10 A: One thing that occurred to me in -- 11 in the course of the questions that were being put 12 yesterday, particularly with respect to the organization 13 in terms of cabinet responsibility for Ontario Native 14 Affairs Secretariat. 15 And one thing that occurred to me is that 16 it would be useful if that secretariat had a free 17 standing minister as opposed to simply another minister 18 in cabinet given responsibility for Native affairs and 19 that ONAS had its own representative at the cabinet 20 table. 21 I know that it's traditionally been a sore 22 point trying to find a ministry to land those 23 responsibilities in that doesn't have some kind of 24 inherent conflict. So that you -- you find yourself, for 25 example, when it's -- when it was at MNR and I still
431 maintain that that was the change made by either the 2 Liberal Government or even an earlier government, not -- 3 not made by the Conservative Government but we can debate 4 that another time. 5 But -- but if you landed in MNR there are 6 all kinds of inherent conflicts that are going to arise 7 for whoever's the minister at MNR. You land it at AG, 8 it's -- it's less contentious but you still have 9 conflicts that arise because the minister necessarily is 10 responsible for litigation that can see him, in affect, 11 having duties as -- as the minister responsible for 12 Native affairs, but also having duties to the province 13 and its litigation. 14 I think there would be some benefit in 15 having a free standing voice at the cabinet table to deal 16 with those issues on behalf of -- of sort of, if you 17 like, the relationship between the Province and natives, 18 but also on behalf of natives to the extent that there's 19 that fiduciary relationship that the province has. 20 Q: All right. Thank you very much, Mr. 21 Hutchison, for -- for you suggestions and for your -- 22 your testimony and assistance here over the last several 23 days. 24 A: Thank you. 25 Q: Thank you.
441 COMMISSIONER SIDNEY LINDEN: Thank you 2 very much, Mr. Hutchison. 3 THE WITNESS: Thank you. 4 5 (WITNESS STANDS DOWN) 6 7 COMMISSIONER SIDNEY LINDEN: Shall we go 8 right into the next witness or should we take a short 9 break? 10 MR. DERRY MILLAR: We need to take a 11 short break because I asked the witness originally to be 12 here for 10:30 and then 9:45, so I'll just -- we need to 13 just set up. So if we could take, perhaps, a -- 14 COMMISSIONER SIDNEY LINDEN: We'll take a 15 short break. 16 MR. DERRY MILLAR: -- a short break? 17 COMMISSIONER SIDNEY LINDEN: Whenever 18 you're ready. 19 MR. DERRY MILLAR: Thank you. 20 THE REGISTRAR: This Inquiry will recess. 21 22 --- Upon recessing at 9:35 a.m. 23 --- Upon resuming at 9:50 a.m. 24 25 THE REGISTRAR: This Inquiry is now
451 resumed, please be seated. 2 MR. DERRY MILLAR: Commissioner, our next 3 witness is Ms. Julie Jai. 4 COMMISSIONER SIDNEY LINDEN: Good 5 morning, Ms. Jai. 6 MS. JULIE JAI: Good morning. 7 THE REGISTRAR: Good morning, Ms. Jai, 8 how are you this morning? Do you prefer to swear on the 9 Bible, affirm, or take an alternate oath? 10 MS. JULIE JAI: I'll swear on the Bible. 11 THE REGISTRAR: Would you give us your 12 name in full, for the record. 13 MS. JULIE JAI: Julie Ramona Jai. 14 15 JULIE RAMONA JAI, Sworn; 16 17 EXAMINATION-IN-CHIEF BY MR. DERRY MILLAR: 18 Q: Ms. Jai, in the book in front of you, 19 if I could take you to Tab 1, please? 20 A: Yes. 21 Q: And is that your curriculum vitae? 22 A: Yes, it is. 23 Q: And could we have that marked as the 24 next Exhibit; it would be Exhibit P-640? 25
461 --- EXHIBIT NO. P-640: Curriculum Vitae of Ms. Julie 2 Ramona Jai. P 641 Document 3 Number 1003539. "The Steps 4 to Negotiating a Land Claim" 5 from Ontario Native Affairs 6 Secretariat, Feb/'95. 7 8 CONTINUED BY MR. DERRY MILLAR: 9 Q: And I understand, Ms. Jai, that you 10 were called to the Bar in Ontario in 1982? 11 A: Yes, that's correct. 12 Q: And you obtained your LLB from 13 Osgoode Hall Law School in 1990 -- 1980? 14 A: 1980, yes. 15 Q: And after you were called to the Bar 16 you joined the Provincial Government? 17 A: Yes. 18 Q: And you served with the Provincial 19 Government in Ontario from 1982 to 1996? 20 A: Yes, that's correct. 21 Q: And during the course of your service 22 with the Provincial Government you held a number of 23 positions? 24 A: Yes. 25 Q: And the one -- the positions,
471 Commissioner, are listed in Exhibit P-640 but I'm going 2 to just ask you about a few of them? 3 A: Sure. 4 Q: From 1990 to 1994 you were the 5 Executive Coordinator Justice Policy Cabinet Office for 6 the province; is that correct? 7 A: Yes, that's true. 8 Q: And could you just tell the 9 Commissioner a little bit about what that position 10 entailed? 11 A: Certainly. That was working in a 12 Cabinet office which is considered kind of a central 13 agency in government and it was a senior policy position 14 coordinating all policy issues that would be going to the 15 -- to Cabinet or to Cabinet committees. 16 So I and a number of senior staff who 17 worked for me would work with the ministries to look at 18 proposals that they wanted to bring to Cabinet, sometimes 19 to help refine the argument or coordinate the activities 20 of different ministries to make sure that when something 21 was before a Cabinet or a Cabinet committee there had 22 been appropriate consultation, research, and analysis. 23 So in some ways it was sort of a quality 24 control function as well as -- as an advice giving 25 function because we also briefed the Premier once a week
481 on all of the major issues in the justice policy 2 portfolio that were coming forward and I was also the 3 Secretary to the Cabinet Committee on Justice as -- as 4 part of that position. 5 Q: As part of that position? So that if 6 a ministry had a justice-related policy that they -- the 7 ministry wished to bring forward to Cabinet then the 8 policy idea would come to your group, be reviewed, you 9 would make sure that the appropriate research had been 10 done before the policy was sent up to cabinet, is that -- 11 A: Right, yeah. I would make sure that 12 it was ready to be presented before ministers and then I 13 would advise both the Premier and the chair of the 14 cabinet committee on justice about, I guess, the views of 15 the staff on the readiness and the recommendations that 16 were being put forward to cabinet. 17 So it did have a certain advice-giving 18 component as well. 19 Q: Okay. And from September 1994 20 through April 1996, I understand you were the acting 21 director legal services Ontario native affairs 22 secretariat? 23 A: Yes, that's correct. 24 Q: And as I understand it, during this 25 period of time, you managed an eight (8) person legal
491 advice -- legal branch? 2 A: Yes. 3 Q: And you, as noted on Exhibit P-640, 4 provided advice on all areas of Aboriginal law including 5 constitutional issues, negotiation of land claims and 6 self government agreements, and instructed litigation 7 counsel on interventions and prosecutions? 8 A: Yes, that's correct. 9 Q: And as well, you negotiated and 10 drafted an agreement for the Aboriginal healing and 11 wellness strategy which transferred over $136 million to 12 Aboriginal communities for holistic health and healing 13 services? 14 A: Yes, that's true. And just to 15 comment on that, that was actually -- it kind of gives -- 16 sheds some light on what my previous job was, because 17 when I was at cabinet office, I was aware that the 18 ministry of health was working on a large healing 19 strategy and there was also healing and wellness strategy 20 coming from two (2) other ministries within government 21 that seemed sort of overlapping or related so I suggested 22 that the ministries work together. 23 And after a certain amount of discussion, 24 they agreed and they -- they came together with one 25 proposal for the Aboriginal healing and wellness
501 strategy. 2 So that was an initiative I'd been 3 involved in really from the policy inception point of 4 view and then when I was over at the native affairs 5 secretariat, I was able to -- in that when -- in that 6 capacity, negotiate the actual agreement with the 7 Aboriginal groups for the transfer of the funds. 8 Q: Okay. And well we'll come back to 9 this as part of your role as director of legal services, 10 were you -- did you start as the acting director and then 11 become the director? 12 A: I was always the acting director. 13 Q: Oh, acting director. And -- 14 A: That was because the director, Yan 15 Lazor was acting as the secretary to the native affairs 16 secretariat, so as long as he still had that as his home 17 position, I could only be acting in that position. 18 So he was not confirmed in his position 19 until, I think, many years later, some time long after I 20 had left. So it was -- it remained an acting position 21 for some time. 22 Q: But you acted as the director? 23 A: Right. 24 Q: And we'll come back to this as well, 25 but you -- as director, you chaired the Interministerial
511 Committee responsible for Aboriginal emergencies? 2 A: Yes. 3 Q: And as well, you were -- conducted 4 some legal education in Aboriginal law? 5 A: Yes. 6 Q: And were a member of the secretariat 7 senior management committee? 8 A: That's correct. 9 Q: And that's the secretariat for native 10 affairs? 11 A: Right, that's the native affairs 12 secretariat or what we sometimes call ONAS. 13 Q: That's right. Okay. Then I 14 understand that from June '96 to March 2002, you were 15 senior counsel and co-ordinator Aboriginal law group 16 Yukon department of justice? 17 A: That's correct. 18 Q: And since April 2002 you've been the 19 director policy and integration Ontario regional office, 20 Department of Justice Canada? 21 A: Yes, that's true. 22 Q: And I also understand as noted on 23 Exhibit P-640, that among other things, many other things 24 that are on your CV, you received an LLM in Aboriginal 25 law from the University of Toronto Faculty of Law in
521 2000? 2 A: Yes. 3 Q: Then if I could take you to 1994 when 4 you became the Director of the Ontario Native Affairs 5 Secretariat, prior to that time had you been involved in 6 Aboriginal issues as a member of -- of the provincial 7 civil service? 8 A: I had had some involvement I would 9 say in a peripheral way because I was the Executive Co- 10 ordinator of Justice Policy at cabinet office. And 11 Aboriginal issues were within the Justice Policy 12 envelope. So issues coming forward from the Ontario 13 Native Affairs Secretariat would come through my office 14 before they went to cabinet. 15 So I did review a number of things like 16 proposed land claim agreements, the Aboriginal Healing 17 and Wellness Strategy, as I mentioned, came forward as 18 two (2) separate initiatives. So that was something that 19 I looked at through my office. 20 I think I had attended also a couple of 21 meetings of the committee on Aboriginal emergencies while 22 I was Executive Co-ordinator Justice Policy. So I had 23 some peripheral dealings with Aboriginal issues before 24 becoming the Director at ONAS. 25 Q: Of ONAS, thank you.
531 (BRIEF PAUSE) 2 3 And as you indicated to us earlier, in 4 1994 you assumed the position of Acting Director at ONAS 5 replacing Mr. Yan Lazor, it's Y-A-N, Lazor L-A-Z-O-R who 6 became the Acting Secretary and Assistant Deputy Minister 7 for ONAS? 8 A: Correct. 9 Q: And the duties are, as we just 10 reviewed, with respect to your CV. But part of that -- 11 the duties of the Ontario Native Affairs Secretariat 12 involved dealing with the lands claims process? 13 A: Yes. 14 Q: And we're not going to get into this 15 in any detail but there are a couple of documents that 16 are in your document brief that relate to the land claims 17 process and I just wanted to take you to them. 18 The first document is a document at Tab 8. 19 It's Inquiry Document 1003539 and this is a memorandum 20 that sets out the steps for negotiating a land claim; is 21 that correct? 22 A: Yes it is. 23 Q: And is that a document that you were 24 familiar with when you were at ONAS? 25 A: Yes. I would have seen this when I
541 was at ONAS. It would have been prepared by the 2 negotiation's Secretariat or the Communications Branch of 3 ONAS. 4 Q: And the -- does it accurately set out 5 the steps? 6 A: Yes. 7 Q: And I note that there are no time 8 frames associated with any of the steps. 9 A: That's true. 10 Q: And why is that? 11 A: I think each situation is different 12 and the process can take varying degrees of time. 13 Q: And with respect to the -- a land 14 claim, can you just by a First Nation, can you just tell 15 us a little bit about the role that the Province of 16 Ontario back in 1994 to -- 17 A: Sure. 18 Q: -- 1995 -- 19 A: Hmm hmm. 20 Q: -- would have played with respect to 21 a land claim. 22 A: Okay. Ontario as a Province is 23 usually involved in land claims because the Province is 24 the owner of the land. So there's -- and the Federal 25 Government is also usually involved in land claims
551 because they have a fiduciary responsibility towards 2 Aboriginal people and because they often were involved in 3 any treaties or promises or undertakings that were made 4 to First Nations people historically. 5 So the steps as set out in this document, 6 it starts with a submission. So some sort of written 7 statement of claim from the First Nation preferably 8 supported by some set of historical or other 9 documentation in which they would say, Okay we think this 10 particular territory is ours and the reasons why we think 11 it's ours are that we, you know, historically occupied it 12 or, you know, we have records showing that we never ceded 13 this land or that the -- if it -- we ceded this parcel of 14 land, but actually you took a much larger parcel of land. 15 Or, you know, just explaining the reasons 16 why they now have a claim for land that they believe 17 should be theirs. 18 So, of course, there's no time frames 19 around that because it's entirely at the initiative of 20 the First Nation as to when to submit their claim and 21 that can obviously take a long time. 22 The second stage is pre-negotiation. So 23 once we receive a written statement of claim or a written 24 claim from a First Nation, we'll look at it and we'll 25 usually advise the federal department of Indian Affairs
561 that we've received it and ask if they've received it, 2 because we know that generally they will have to be 3 involved. 4 And then we do a preliminary analysis of 5 the documents and then try to determine how much 6 historical research we need to do and also what kind of 7 legal or other research is needed to assess the validity 8 of the claim and whether to accept it for negotiation. 9 So, we'll talk to other ministries and any 10 people who might be able to provide relevant information. 11 Within the native affairs secretariat there -- there was, 12 at that time anyways, a group that did historical 13 research. 14 So, they would do historical research on 15 the claim, sometimes with the assistance of outside 16 contractors. And then a legal review would be conducted 17 and that's the part I'm most familiar with, because that 18 would have been done by the legal services branch. 19 So I supervised a number of lawyers who 20 did legal reviews of claims that we had received in the 21 time before I came to ONAS. 22 And that could take -- the legal review 23 itself could take one or two (2) years, just to give you 24 an idea of how involved and long these things are, 25 because they're very complex and the amount of material
571 involved can be massive. 2 So, it's just -- it's a fairly time 3 consuming process. So once the historical and legal 4 review has been done, then we would make a decision 5 internally about whether to accept it for negotiation and 6 that would probably have to be -- well, it would 7 certainly go more senior people within ONAS and it might 8 go to -- actually go to cabinet in terms of getting 9 authority to begin a negotiation. 10 So, that process itself, like going 11 through the internal approvals process and getting a 12 cabinet submission and getting it approved by cabinet 13 could also take many months. 14 And then once it is accepted for 15 negotiation, the province would appoint a negotiator. 16 Hopefully, by that time, the Federal Government would 17 have gone through its own internal processes which are 18 equally long and cumbersome and they would hopefully have 19 appointed a negotiator as well, and then the negotiation 20 process could begin. 21 Once it begins, the first thing that's 22 usually done is to -- agreeing on a sort of framework 23 agreement for the negotiations. 24 So, that's something that just sets out 25 how you're going to do the negotiations, so it's kind of
581 the process. 2 Usually, for example, the Federal 3 Government provides funding to the First Nations so that 4 they can pay for their negotiator and other related 5 costs. 6 So, the costs sharing arrangements would 7 be part of that framework agreement. The sort of 8 frequency of meetings, who could represent each party. 9 So, that would be the framework agreement. 10 Then after that, you get down into the substantive 11 negotiations, so quite a bit of time passes before you 12 actually get to the substantive negotiations. 13 And those negotiations can take quite a 14 long time and some -- often, and I see in this process 15 here, this -- a step which is -- that an agreement in 16 principle is drafted that sets out the overall principles 17 for the agreement. 18 Once that is signed then -- and all the 19 parties sign off on it, then work can begin on developing 20 a more detailed final agreement and implementation plan. 21 So it's quite a -- a long process. 22 Q: Long -- and Commissioner, I'd ask 23 that this document, Inquiry document 1003539, the steps 24 to negotiating a land claim Ontario native affairs 25 secretariat be marked as the next exhibit.
591 It would be P-641. 2 3 --- EXHIBIT NO. P-641: Document Number 1003539. 4 "The Steps to Negotiating a 5 Land Claim" from Ontario 6 Native Affairs Secretariat, 7 Feb/'95. 8 9 COMMISSIONER SIDNEY LINDEN: Okay. 10 11 CONTINUED BY MR. DERRY MILLAR: 12 Q: And as we all know in June of 1995, 13 there was a change in government. 14 But before I go there, when you were first 15 at ONAS in 1994, do you recall who the minister 16 responsible for the Ontario Native Affairs secretariat 17 was? 18 A: I believe it was Bud Wildman 19 (phonetic). 20 Q: And do you recall what the position 21 of Mr. Wildman was? 22 Did he -- was he -- did he told another 23 position as a minister? 24 A: Yes, he was Minister of Natural 25 Resources as well as Minister of Native Affairs, so he
601 had two (2) separate portfolios. 2 Q: And so that, at the time, you say he 3 had two (2) separate portfolios, were there -- did he act 4 as Minister of the Ontario Native -- he was the Minister 5 responsible for Native Affairs, I think that's he's -- 6 A: Yes, that was -- 7 Q: -- his -- was -- 8 A: -- his title. But it didn't mean 9 that the actual two (2) ministries were merged at all. 10 They were two (2) separate entities; the native affairs 11 secretariat which reported to its own deputy minister at 12 that time and then the Ministry of Natural Resources 13 which had its own deputy minister 14 So, it was just the two (2) deputies that 15 would report to the minister. Otherwise -- they were 16 quite separate entities other than the minister being the 17 same person. 18 Q: And that -- so that there were two 19 (2) separate, for want of a better word, bureaucracies 20 for -- 21 A: Yes. 22 Q: -- each ministry. And each ministry 23 had its own deputy minister and they -- they would report 24 in -- to the minister who happened to be the same 25 minister for MNR and ONAS at that period of time?
611 A: That's right. 2 Q: And in -- do you recall or do you 3 know from your time in the Provincial Government, I 4 believe back int e -- when Ian Scott was Attorney General 5 in the Peterson government in the late '80's that Mr. 6 Scott was the minister of the Attorney General. 7 He was the Attorney General as well as the 8 minister responsible for Native Affairs? 9 A: Yes, I believe that's -- that's true. 10 Q: And do you know whether, under Mr. 11 Scott, the -- there were two (2) bureaucracies or was it 12 managed under the ministry of -- 13 A: I don't -- 14 Q: -- the Attorney General? 15 A: I don't know, I didn't work in that 16 field at that time. I was in an unrelated area, working 17 on financial institutions, so... 18 Q: Okay. But, now we know that on June 19 -- in June 1995 a new government was elected and that 20 government was sworn in on June 26th, 1995 and can you 21 tell us what role you played in -- with respect to the 22 new government and briefing individuals for whom you were 23 tasked to brief? 24 A: Yes. Well, soon after the new 25 government came in, the Deputy Minister who -- of native
621 affairs, who had been Grant Wedge (phonetic) was fired so 2 -- that -- within a couple of weeks, and I can't remember 3 the exact timing but there was a change. 4 And we were -- the Ontario native Affairs 5 Secretariat became attached or -- not attached to the 6 ministry of the Attorney General and was no longer under 7 the same minister as it had been before, of Natural 8 Resources. 9 And I -- we -- in this case, I believe we 10 became part of the bureaucracy, as you say, of the 11 Attorney General, so -- 12 Q: So, that -- 13 A: -- within -- within that bureaucratic 14 structure, rather than being separate. 15 Q: So, that one of the things that 16 happened was that the -- Mr. Harnick who was then the 17 Attorney General was also the minister responsible, in 18 1995, for Native Affairs? 19 A: That's correct. 20 Q: And the bureaucracy that the Ontario 21 Native Affairs secretariat which had been separate was 22 then folded in to the Ministry of the Attorney General? 23 A: That's correct because we now had the 24 same Deputy Attorney General who was Larry Taman so that 25 he was the Deputy Attorney General plus the Deputy
631 Ministry responsible for Native Affairs. 2 Q: And so that ONAS no longer had its 3 own Deputy Minister? 4 A: Right. 5 Q: And I take it in government it's 6 important that you have your own Deputy Minister? 7 A: I would just say that these 8 functional -- changes in your functional reporting 9 relationship make a difference, but I mean I think any 10 changes in personnel and changes in organization always 11 have an impact. You can't really generalize about what 12 that impact will be because it depends on the 13 circumstances. 14 Q: Sure. And at Tab 9 there's a 15 document that we've seen before and parts of it have been 16 marked as parts of others exhibits, at least Appendix A. 17 But this is a document dated July 10th, 1995, 1011557 and 18 it's entitled, Briefing Note for the Honourable Charles 19 Harnick, Minister Responsible for Native Affairs. 20 And on page 2, I believe, you will find 21 your initials? 22 A: Yes. 23 Q: And you prepared this document? 24 A: Yes, I did. 25 Q: And why did you prepare this
641 document? 2 A: It would have been part of a briefing 3 for the new minister responsible for native affairs and 4 it probably -- this is obviously an issue that all 5 ministers are interested in so it probably was a revision 6 of an existing note dealing with the same subject matter. 7 Q: And this document, in its entirety, 8 is Exhibit P-303. 9 And, Mr. Registrar, could I just see 10 Exhibit P-303 for a moment? 11 COMMISSIONER SIDNEY LINDEN: For those 12 who aren't aware, Ms. Jai has indicated she has a bad 13 back and may, from time to time, stand up so there's 14 nothing else to read into that. 15 16 CONTINUED BY MR. DERRY MILLAR: 17 Q: And the P-303 refers to certain 18 guidelines that were prepared and went along with the 19 document although this document doesn't have the 20 guidelines. The guidelines are part of Exhibit P-498 and 21 appear as well. 22 23 (BRIEF PAUSE) 24 25 Q: As part of the document at Tab 13.
651 And that Tab 13 -- it's Inquiry Document 1012232 which is 2 Exhibit P-504. And are these the guidelines that went 3 with the memorandum for Mr. Harnick? 4 A: Yes. 5 Q: And when were these guidelines 6 prepare -- prepared -- prepared? 7 A: I believe that the briefing note and 8 the guidelines were existing so that I would have just 9 done maybe a revi -- a minor revision of it before doing 10 the note on July 10th. So, they had been developed over 11 several years and evolved over years of working with 12 Aboriginal emergencies. 13 So, the original document would probably 14 have been prepared by Yan Lazor because he was my 15 predecessor in my position both as Legal Director and as 16 Chair of the Emergencies Committee. 17 Q: And so that the guidelines themselves 18 had been developed prior to you assuming the position as 19 Director of the Legal Services? 20 A: Yes. Yes. 21 Q: As well as the -- as well as the text 22 of the memorandum to Mr. Harnick dated July 10, 1995? 23 A: That's correct. 24 Q: It was a standard briefing? 25 A: It was sort of what -- yeah, an off-
661 the-shelf briefing note that I would have revised some -- 2 I mean, I was familiar with it because I had worked with 3 it even as a member of the Emergencies Committee when I 4 was at cabinet office. 5 Q: And this document, the briefing note 6 that appears at page -- at P-303 and as part of P-504 7 with the guidelines that are at Exhibit P-498, did you 8 discuss these guide -- this briefing note with Mr. 9 Harnick? 10 Or can you -- or simply send it on to him 11 or his staff? 12 A: I believe I discussed them with him 13 at a briefing that I had with him. Although I can't say 14 that I remember for sure. But I know it was sent onto 15 him and I know that I had a briefing with him at which we 16 discussed a number of issues. So I would think this 17 would have been one of the issues. 18 Q: And can you just outline to us who 19 you recall briefing with respect to the responsibilities 20 of ONAS and Aboriginal issues? 21 A: Well I would -- I would have briefed 22 Charles Harnick as the Minister and his staff, which I 23 can't actually remember who it would have been in the 24 room, but probably Dave Moran or, you know, his political 25 staff.
671 Q: And was Dave Moran one of his 2 political staff? 3 A: I believe so. 4 Q: Yes? 5 A: Do you want me to tell you about 6 other briefings with other people? 7 Q: Yes. 8 A: Okay. I also attended a briefing 9 with the Minister of Natural Resources that was led by 10 staff from the Minister of Natural Resources or MNR 11 because they were dealing with some land claim related 12 issues. 13 So I participated in that briefing. And I 14 also participated in -- in a briefing of staff of the 15 Premier's office. 16 Q: And the -- when you say the staff of 17 the Premier's office, can you recall who in the staff of 18 the Premier's office that you briefed? 19 A: Well I can't actually recall who was 20 there but I'm pretty -- I'm pretty sure Deb Hutton was 21 there. There were a number of people there. It -- there 22 had been two (2) -- there would have been one briefing, a 23 general briefing and then there was a request for a 24 follow-up briefing. 25 So it's hard to remember who was at each
681 briefing. But at one briefing Guy Giorno and Deb Hutton 2 were present and they had asked for supplementary 3 material on Aboriginal issues. I think they were kind of 4 surprised at the first briefing to find out that 5 Aboriginal people had constitutionally protected rights 6 and there were certain obligations and constraints on the 7 Provincial Government. 8 So we prepared a more detailed follow-up 9 briefing that set out the legal basis for this. 10 Q: And the -- we'll go to the follow-up 11 document in a moment. But with respect to your -- the 12 briefing of Mr. Harnick and his political staff, did you 13 discuss with them Section 35 of the Constitution? 14 A: Yes. 15 Q: And discuss with them what the role 16 and responsibility of the Provincial Government was with 17 respect to Section 35? 18 A: Yes. 19 Q: And what reaction, if any, did you 20 receive from Mr. Harnick or his staff with respect to the 21 briefing with respect to Section 35? 22 A: I think that Mr. Harnick, as a 23 lawyer, was somewhat sensitive to the Constitutional 24 requirements. So I think -- I mean, he listened and 25 didn't really give a lot of feedback on the Section 35
691 issues. 2 Q: Okay. And what about his staff? Do 3 you recall? 4 A: I can't say that I have a specific 5 recollection of what his staff said. I do -- I -- I have 6 a general recollection of what was said to me at the -- 7 from these three (3) briefings, from some political 8 staff, and I can't identify who said what. 9 But I know particularly when I was at the 10 MNR briefing with the Minister of Natural Resources and 11 also at the -- with the Premier's office staff, that the 12 message that I got back after saying that there are -- 13 that Aboriginal people do have special rights that are 14 protected by Section 35 of the Constitution Act, I was 15 told, Well, we don't care. 16 Our policy is Aboriginal people have the 17 same rights as everybody else. We believe in, you know, 18 equal treatment of all -- of all people and that's our 19 policy. 20 And even after I had reiterated and kind 21 of pointed out that, in fact, you can't take that 22 position legally, that the Government is bound by the 23 constitution and that there are reasons why Aboriginal 24 people do have special rights by virtue of the fact that 25 they were the original occupiers of this land and that
701 that has been recognized in agreements, in the Royal 2 Proclamation, in the Constitution Act. 3 So, in fact, the province did not have the 4 ability to treat Aboriginal people the same way as other 5 people in all instances. 6 I was again met with this sort of, Well, 7 we don't really care about that. Our position is there's 8 no such thing as special rights for Aboriginal people. 9 Q: So that -- is it fair to say from 10 what you've said that Mr. Harnick showed sensitivity to 11 Section 35 as a lawyer? 12 A: I would say that he did, yes. 13 Q: And do you recall anything with 14 respect to Mr. Hodgson, the Minister of Natural 15 Resources? 16 A: He and his staff showed less 17 sensitivity or concern for the legal requirements and the 18 Constitution -- 19 Q: And -- 20 A: And I felt from the briefing that 21 there was a very much of -- of a kind of, We'll show 22 them, sort of attitude of well -- 23 Q: That was from -- with respect to MNR? 24 A: Sorry? 25 Q: That was respect to MNR?
711 A: That was from the MNR, from the 2 minister and his staff, where we were talking about a 3 land claim agreement in an area where there was some 4 concern about, I don't know if it was hunting or 5 harvesting in a particular area, and the -- and there was 6 concern by the First Nations people about hunting in that 7 area. 8 And there just kind of this -- like a 9 response that kind of took me aback. It was kind of 10 like, They haven't seen anything yet or We'll show them 11 kind of -- 12 Q: And -- 13 A: And that was from the minister. 14 Q: That was -- those were -- 15 A: From Minister Hodgson. 16 Q: -- words -- Mr. Hodgson -- 17 A: Yes. 18 Q: -- made those comments? 19 A: Yes. I mean, comments to that 20 effect. I can't swear that those were exact words. 21 Q: Well, it's important that we try to 22 identify, as I appreciate that -- we all appreciate it's 23 ten (10) years ago and it's a long time. But it's 24 important that we try to identify as well as we can what 25 words may have been spoken, for example, by a party to
721 this -- 2 A: Hmm hmm. 3 Q: -- proceeding and Mr. Hodgson is one 4 of the parties to the proceeding. Can you help us with 5 any greater specificity or that's simply what you -- 6 A: Well, it was -- it was something to 7 the effect of, They haven't seen anything yet, or 8 suggesting that the concern about whatever it was, non- 9 native hunting in an area or -- I think -- I think that 10 was the issue, that if they were -- if they were worried 11 now, you know, like, just -- it was going to get worse 12 in terms of non-native hunters getting permission to hunt 13 in that area. 14 Or just the very thing that the Aboriginal 15 people were concerned about was -- was going to happen 16 because this government didn't -- wasn't really concerned 17 about those rights and believed that the non-Aboriginal 18 hunters should have greater rights. 19 Q: And can you recall who was present 20 with Mr. Hodgson at this briefing? Was Mr. Bangs there, 21 I believe he was an executive assistant? 22 A: Yeah, it's likely that he was there, 23 but I can't say for sure whether he was there or not. I 24 know that there was -- that Minister Hodgson had one of 25 his political staff there, but I can't say for sure who
731 it was. 2 Q: And then did you -- with respect to 3 the Premier's staff, you indicated that you had two (2) 4 briefings? 5 A: There were two (2) briefings. I only 6 remember being at one (1) so I -- 7 Q: Okay. And when you say, "there were 8 two (2) briefings," then how -- can you tell us about 9 that? Were you at both briefings or you simply remember 10 one (1)? 11 A: Well, I only remember being at one 12 (1) -- 13 Q: Okay. 14 A: -- and I think it's likely that I was 15 not at the first briefing which was a more general 16 briefing on Aboriginal issues and then after that Guy 17 Giorno and Deb Hutton requested a more detailed briefing 18 that focussed on some of the legal issues and what, you 19 know, ONAS had been saying about the special legal status 20 of Aboriginal people so that's why we prepared the second 21 briefing. 22 Q: And did you, at any time, meet with 23 then-Premier Harris -- 24 A: No. 25 Q: -- to brief him?
741 A: No. 2 Q: And do you know who conducted the 3 first briefing with respect to the Premier's office? 4 A: I believe Yan Lazor was at that 5 briefing. 6 Q: Okay. And -- 7 A: And -- and probably Larry Taman who 8 was the Deputy Attorney General. 9 Q: And at Tab 20 there's a letter dated 10 August 10, 1995 from Larry Taman to Rita Burack -- 11 A: Yes. 12 Q: -- who's described as Secretary of 13 Cabinet and Clerk of the Executive Council? 14 A: Yes. She would be like the Deputy to 15 Cabinet Office, the -- sort of one (1) of the more senior 16 deputy ministers. 17 Q: And as Secretary of Cabinet and Clerk 18 of the Executive Council was she the most senior civil 19 servant in the province? 20 A: Yes. 21 Q: And the Inquiry document number is 22 3001721. 23 COMMISSIONER SIDNEY LINDEN: What's the 24 tab number, please? 25 MR. DERRY MILLAR: Tab 20, sorry.
751 COMMISSIONER SIDNEY LINDEN: Tab 20, 2 right. 3 4 CONTINUED BY MR. DERRY MILLAR: 5 Q: And attached to this document and the 6 -- is a briefing on Aboriginal affairs for Premier's 7 office staff, dated August 11, 1995? 8 A: Yes. 9 Q: And are you familiar with the 10 document dated August 11, 1995? 11 A: Yes, I am. 12 Q: And why are you familiar with that 13 document? 14 A: I'm -- I would have written parts of 15 that document. 16 Q: And this was a briefing prepared by 17 you and by others under your direction? 18 A: By me, others under my direction and 19 other colleagues of mine, for example, people on the 20 negotiations side of -- of the Secretariat. 21 Q: And I note that -- perhaps we could 22 mark this exhibit, it's -- Tab 20 is the next exhibit. 23 It's a letter dated August 10, 1995 and a briefing dated 24 August 11, 1995. It would be Exhibit P-642. 25 THE REGISTRAR: And the document number
761 on that? 2 MR. DERRY MILLAR: It's 3001721. 3 4 --- EXHIBIT NO. p-642: Document Number 3001721. Memo 5 to Rita Burak re. Briefing on 6 Aboriginal Issues Aug 10/'95 7 and Slide Presentation re. 8 Briefing on Aboriginal 9 Affairs for the Premier's 10 office staff, Aug 11/'95 11 12 CONTINUED BY MR. DERRY MILLAR: 13 Q: And I note in Mr. Taman's -- do you 14 recognize the signature on the letter dated August 10, 15 1995? 16 A: Yes. 17 Q: And whose signature is that? 18 A: Larry Taman's. 19 Q: And I note -- did you play any role 20 in preparing this letter? 21 A: Well, possibly Yan. I -- I think 22 more likely Yan drafted it for Larry. He might have -- 23 Yan might have asked for my input, I can't remember. 24 Q: And Yan is Yan Lazor? 25 A: Yan Lazor, yeah.
771 Q: And -- 2 A: He -- he was the secretary so he was 3 the person who I reported to immediately and worked quite 4 closely with. 5 Q: And this refers to, in paragraph 1, 6 to that: 7 "The document -- the attached document 8 will serve as a background to the oral 9 briefing that Guy Giorno, [G-I-O-R-N-O] 10 and Deb Hutton asked for when we last 11 met at -- on the TAA." 12 And with respect to the document and the 13 briefing, you attended the briefing? 14 A: Yes. 15 Q: And can you tell us who else attended 16 beside you? 17 A: This is the followup briefing -- 18 Q: Yes. 19 A: -- which would have been probably on 20 August 11th or shortly thereafter. 21 Q: Yes. 22 A: I think I -- well I -- I attended, I 23 believe Yan would have attended unless he was not 24 available for some reason. And Larry would have attended 25 unless he was not available for some reason. And someone
781 from the negotiation side of ONAS would probably have 2 attended. 3 Q: And what role did you play with 4 respect to the briefing? 5 A: I believe I did the oral briefing on 6 all of the legal issues that are dealt with in this 7 exhibit. 8 Q: And for example, starting at page 10 9 there's a section, "The Law, The Province and Aboriginal 10 Peoples." 11 A: Right, right. 12 Q: And the -- 13 A: Maybe before -- just -- before we get 14 right into that -- 15 Q: Sure. 16 A: -- I just wanted to comment on the 17 covering memo to it because we did try to -- I think at 18 the staff level we were concerned that the new government 19 really didn't know very much about Aboriginal issues and 20 that they'd come in with a certain approach. And it was 21 very important that they be informed about the 22 constitutional obligations of the Province. 23 So just looking at the covering note that 24 Larry sent, you know, the very last line of the second 25 paragraph says:
791 "ONAS is ready to prevent a crisis 2 approach to potential flash points. 3 Ensure consistent messaging inside and 4 outside government and manage 5 expectations in both the Aboriginal and 6 non-Aboriginal communities." 7 So, I think we were feeling a bit nervous 8 that because there was such a major change in policy from 9 the previous government to the Government that came in in 10 1995, that this could cause problems in Aboriginal 11 government relations. 12 So we were quite anxious to try to avoid 13 that or prevent that from happening. 14 Q: And when you say there was quite a 15 change in policy, can you describe briefly the change in 16 policy that you referred to from the previous government 17 to the new government? 18 A: I would say that the previous 19 government was -- had done a lot. It was probably the 20 most of all of the previous governments, it had done the 21 most, for example, to recognize the right of self 22 government of Aboriginal people. They had signed the 23 statement of political relationship. They were involved 24 in a large number of negotiations. 25 So, a -- a number of things had been done
801 which could be viewed as accommodating the interests of 2 Aboriginal people so that -- so to some extent that had 3 raised the expectations of Aboriginal people by having 4 had several years under that government. 5 And then a different government came in 6 with a very clear policy that Aboriginal people do not 7 get any special rights. And so that's kind of, you know, 8 a huge, like 180 degree shift from what the policy of the 9 previous government had been. 10 Q: Okay. 11 A: So we were concerned that this would 12 cause difficulties for us in our work with -- part of our 13 role at ONAS is managing relationships between government 14 and First Nations. 15 Q: Okay. And so others dealt with parts 16 of the briefing. Did you lead the briefing and others 17 then helped or did, as you recall, you did most of the 18 speaking or someone else did? 19 A: I can't really comment on what the 20 proportion of speaking was. I would just say that I did 21 the briefing from probably page 9 to page 19. 22 Q: And that dealt with, at page 9, 23 Ontario and all other provinces are involved in the 24 business of Aboriginal affairs. And then you dealt with 25 the general rule that subject to certain exceptions that
811 you set out, that Aboriginal people are subject to the 2 same laws as Ontarians, generally, and then you outline 3 the exceptions? 4 A: Correct. 5 Q: And can you just highlight the 6 exceptions and -- 7 A: Sure. 8 Q: -- what you may have -- what you did 9 during the briefing? 10 A: Well, I would have talked about the 11 fact that, as a general rule, Aboriginal people are 12 subject to the same laws as Ontarians, generally, and are 13 entitled to the same government benefits and programs. 14 However, Aboriginal people do have special 15 rights by virtue of Section 35 of the Constitution Act, 16 which recognizes Aboriginal rights and treaty rights, and 17 then those Aboriginal rights arise. 18 I mean, really the basis for Section 35 of 19 the Constitution Act is the fact that historically, 20 Aboriginal people have occupied the land and therefore 21 they have -- they have certain rights that have been 22 recognized by Court decisions over the last century. 23 And the other thing is that the 24 Constitution Act 1867, so the original, you know, 25 Constitution Act does have a division of powers in
821 Section 91 and 92. Section 91 sets out federal powers 2 and Section 92 sets out provincial powers. 3 So section -- so there are certain powers 4 in Section 91 that are exclusively federal powers with 5 respect to Indians and lands reserved for Indians. 6 So those are some of the restrictions. So 7 that means that while Ontar -- while Aboriginal people 8 are generally subject to the same laws as other 9 Ontarians, the province cannot interfere with the 10 exercise of Aboriginal or treaty rights unless it can 11 show that it's justified in doing so, based on the test 12 that's set out in 1990 Supreme Court of Canada Decision 13 and the Sparrow Decision. 14 So I would have discussed all of that. 15 Q: Okay. And I note that there's a 16 section at page 15 on the Crown's fiduciary duty to 17 Aboriginal people? 18 A: Yes. 19 Q: And was that covered in the briefing? 20 A: It was -- I think it was covered. 21 However, I would say that at that time, and I don't know 22 if this is the case now, in terms of what the Ontario 23 government policy was, but the -- the overall policy and 24 this was not specific to the Government in place in 1995, 25 but just that, in general, the province was trying to
831 avoid being found to have a fiduciary obligation to 2 Aboriginal people; that the view was that that was a 3 Federal Government responsibility, that the Federal Crown 4 had the fiduciary obligation. 5 The province certainly had other 6 obligations, but not as a fiduciary. 7 But as -- as the landowner, it would have 8 certain obligations. If it had for -- if, for example, 9 it had a -- it had benefited from land that it had 10 acquired that really should have been Indian lands. 11 Q: Okay. And so the fiduciary 12 obligation that it was the Federal Crown's responsibility 13 was the position of a number of provincial governments -- 14 A: Yes. 15 Q: -- and the position existing prior to 16 June of 1995? 17 A: That's correct. 18 Q: Then I note, from pages 17, 18 and 19 19 you deal with Section 35, Section 52 and Section 25 of 20 the Constitution? 21 A: That's right. Yeah, I guess the 22 reference to Section 52 is just to reinforce that the 23 constitution of Canada is the supreme law of Canada so it 24 kind of trumps any other law that any government would 25 try to enact and therefore the Section 35 rights are part
841 of that supreme law of the land. 2 Q: And then you deal specifically with 3 Section 35 and what people know and what people don't 4 know as of that point about the scope of Section 35? 5 A: Right. 6 Q: And then the balance deals with other 7 issues and someone else dealt with that or did you deal 8 with those other issues as well? 9 A: I would have dealt with everything up 10 until page 19 and then the next section is, "How does 11 Ontario organize itself to deal with Aboriginal issues," 12 so that's more kind of, you know, the overall role of the 13 Secretariat. 14 It's possible I dealt with this next 15 section depending on who was there. But if Yan were 16 there, he would have done the section starting on page 20 17 which talks about managing the issues. And it does talk 18 on page 22, you know, it talks about how ONAS is really 19 the focal point for the corporate management of 20 Aboriginal issues. 21 And that we try to have a coherent 22 approach to inter-governmental relations and co- 23 ordination to ensure consistent legal position on all 24 Aboriginal issues. And quick response to crisis 25 situations in Aboriginal communities. And then it
851 mentions the emergency planning for Aboriginal issues 2 committee. 3 Q: Okay. 4 A: And then on the next page where it 5 talks -- it talks about the benefits of strategic 6 management that it's more efficient and that a proactive 7 and collaborative work with Aboriginal peoples is more 8 productive than reactive or confrontational modes. 9 And then it talks about the alternatives 10 to having a cooperative approach, would be litigation or 11 direct action by Aboriginal people or crisis driven short 12 term responses to issues. 13 Q: And then there a number of other -- 14 the briefing goes on and deals with fishing enforcement, 15 forestry, mining and other issues. 16 A: Right. And actually there is another 17 section that I would have done. Maybe I did this whole 18 section as I look at it because, for example, on page 27 19 there's a discussion of the merits of negotiating or 20 litigating land claims. 21 And I, in my section, had written a fairly 22 long paper on negotiating versus litigating and what the 23 pros and cons are. So this, you know, was an area I was 24 quite familiar with and this slide would have been sort 25 of taken from the larger paper that we had written.
861 Q: And Yan Lazor had been the director 2 previous to you. 3 A: Yes. Yes. He was very knowledgeable 4 about all of these issues and certainly all the legal 5 issues. 6 Q: And Yan Lazor is a lawyer as well? 7 A: Yes. 8 Q: Yes? And then there's a section, 9 "Access to Resources?" 10 A: Yes. 11 Q: And there's a reference, on page 32, 12 to the Anishnaabeg Conservation and Fishing Agreement and 13 page 33 the Community Harvesting Conservation Agreements 14 with the Williams Treaties First Nations. 15 Were those agreements discussed? 16 A: I can't actually remember if they 17 were discussed or not. I do know that the Government 18 that came in, that there was -- that these agreements 19 were due to expire in 1996 and the Government indicated 20 they were not going to renew these agreements. 21 So that was an issue that we knew was 22 going to be like another issue that was going to have be 23 managed because obviously the First Nation -- the First 24 Nations would not be happy with that. 25 Q: And at page 34 there's a heading,
871 "Interim Enforcement Policy" -- 2 A: Yes. 3 Q: -- can you tell -- was that dealt 4 with at the briefing? 5 A: I can't remember if it was dealt 6 with. I think it was, but I can't say for sure. I think 7 this was -- this would have been also dealt with at the 8 briefing with the Minister of Natural Resources because 9 this is a very MNR led issue. 10 Q: And can you tell us a little bit -- 11 you can't recall about the briefing but can you tell us 12 what the Interim Enforcement Policy was in the summer of 13 1995? 14 A: Yes. I guess that there was some 15 recognition that there -- that there is an Indian right 16 to hunt and fish for food. And that was recognized by 17 the Supreme Court of Canada in 1990 in the Sparrow 18 Decision. 19 So, as a result, the Aboriginal people 20 could hunt and fish in ways that non-Aboriginal people 21 could not, so without -- you know, without a license, et 22 cetera. 23 But there would still be some regulation 24 that -- government regulation like, for example, if there 25 was unsafe harvesting or if -- or if the resource was
881 being over harvested, because conservation is always the 2 top priority. 3 And that is also set out in the Sparrow 4 case so that there would be certain situations where 5 let's say, for example, an MNR wildlife officer, you 6 know, would still think that maybe he should charge an 7 Indian with fishing, you know, with unsafe equipment or 8 in -- in the wrong season or in the wrong way or 9 whatever. 10 So, there was a policy that you -- that 11 those charges or enforcement would only be laid in 12 certain circumstances where there was a risk to 13 conservation, a risk to public safety or where it really 14 looked like what was going on was commercial harvesting, 15 like harvesting on such a large scale that it couldn't 16 possibly be for someone's personal use or where it was 17 trespassing on private property. 18 So, only in those situations would charges 19 be laid against Aboriginal people. 20 And -- and there was usually a review by, 21 I believe by an MNR lawyer. Like, there would be a 22 discussion rather than just having wildlife officers sort 23 of laying charges so that there was a fair amount of 24 thought given to how charges be laid so that they would 25 not be laid inappropriately against Aboriginal people.
891 So, that's kind of the core of the Interim 2 Enforcement Policy. 3 I -- I have to say I'm not an MNR lawyer 4 so I'm just giving you my understanding of it and 5 probably if -- if you have a witness from MNR who 6 describes what this policy is I would defer to whatever 7 that person would say because they would know in more 8 detail than I would. 9 Q: And this briefing goes on on this 10 page 34: 11 "Current Status -- Southern Ontario 12 Undefined "Traditional" Harvest Areas. 13 Northern Ontario Defined Treaty 14 Obligations." 15 Then a note, a bullet: 16 "Differences between Northern and 17 Southern Ontario create respectively 18 different approaches to enforcement." 19 And can you help us with the -- the 20 southern Ontario and the reference to traditional harvest 21 areas? 22 A: Well, in northern Ontario there were 23 treaties covering large areas so it was relatively clear 24 that those areas would be considered part of that First 25 Nations traditional hunting and fishing territory so that
901 they would have -- potentially have hunting and fishing 2 rights throughout that territory. 3 In southern Ontario there are many more 4 First Nations and less -- a less clear regime of what 5 treaties cover what areas and more overlapping areas and 6 just many more people, a lot more pressure on the 7 resource. 8 So it -- it's just a lot less clear and 9 there, I would say, would be much greater potential for 10 conflict between Aboriginal and non-Aboriginal people 11 fishing and there's some -- there is some lack of clarity 12 around the boundaries and -- and a lot of outstanding 13 land claims in the south. So it -- it just was not as 14 clear what the boundaries were. 15 So, that would be another reason why, in 16 the exercise of a conservation officer's discretion, if 17 he was going to charge somebody, that you would want that 18 person to, you know, check with a lawyer at MNR. 19 Q: Okay. And at Tab -- at page 35 of 20 Exhibit P-642 there's a reference to provincial parks and 21 that there was no Aboriginal hunting in provincial parks 22 except where everyone can harvest pursuant to law or 23 where agreements had been negotiated? 24 A: Right. 25 Q: And the --
911 A: Well there was an agreement with the 2 Algonquins of Golden Lake allowing them to hunt in some 3 part of Algonquin park, I believe. 4 Q: And there's a note: 5 "Prosecution could have a negative 6 impact upon potential land claim 7 litigation." 8 A: Yes. 9 Q: That refers to the agreement with the 10 Algonquins of Golden Lake? 11 A: Yeah, that's an illustration of that 12 issue, of that point. 13 Q: And then the briefing sets out at 14 Appendix A, a number of existing land claims and their 15 status, and at Appendix B the -- a list of the litigation 16 that was outstanding back in the summer of 1995? 17 A: Yes. 18 Q: And can you recall how long this 19 briefing took with Ms. Hutton and Mr. Giorno? 20 A: I would say between an hour and an 21 hour and half, but that's just approximate; I can't say 22 for sure. 23 Q: And what response, if any, did you 24 get from Mr. Giorno and Ms. Hutton to your -- to the 25 briefing?
921 A: Well the response was that the 2 position of the -- this government was that Aboriginal 3 people have no special rights, and that's irrespective of 4 Section 35. 5 Q: Okay. 6 A: That that was their party's position. 7 Q: That was the party's position? 8 A: Hmm hmm. 9 Q: And -- excuse me. 10 11 (BRIEF PAUSE) 12 13 MR. PETER DOWNARD: I'd just ask if Mr. 14 Millar could ask the Witness if she's talking about her 15 characterization of what has been said or what happened 16 at the time, or if she's saying what was to said to her 17 by who. 18 If we could have some more specifics, I 19 would appreciate it. 20 COMMISSIONER SIDNEY LINDEN: Yes, I think 21 it's important at this point to have as much as 22 specificity as we can. 23 MR. DERRY MILLAR: No, no, that's fair. 24 25 CONTINUED BY MR. DERRY MILLAR:
931 Q: Can you give us some more 2 specificity? Did someone say that? 3 A: Someone said to me that, at this 4 briefing, that their position -- the party's position and 5 the Government position was that Aboriginal people do not 6 have special rights. 7 Q: And do you recall who that person 8 was? 9 A: I can't recall. 10 Q: And is there anything else you can 11 recall with respect to the briefing? 12 A: I think that's everything. 13 Q: Can I take you -- turn you back to 14 Tab 10 of the book of documents. 15 COMMISSIONER SIDNEY LINDEN: I know we've 16 had a break this morning, but we've been going more than 17 an hour. It might be a good idea to have another break. 18 The break was really to allow you to set up -- 19 MR. DERRY MILLAR: Sure, I'm -- 20 COMMISSIONER SIDNEY LINDEN: I think 21 it's -- 22 MR. DERRY MILLAR: As you know, I'll just 23 keep going so. 24 COMMISSIONER SIDNEY LINDEN: Yes, I know 25 you will, but I don't think we can just keep going until
941 twelve o'clock -- 2 MR. DERRY MILLAR: Okay, sure. 3 COMMISSIONER SIDNEY LINDEN: -- so we 4 have to have a break at some point. 5 MR. DERRY MILLAR: Then this would be a 6 good time. 7 COMMISSIONER SIDNEY LINDEN: As good a 8 time as any. 9 THE REGISTRAR: This Inquiry will recess 10 for fifteen (15) minutes. 11 12 --- Upon recessing at 10:57 a.m. 13 --- Upon resuming at 11:16 a.m. 14 15 THE REGISTRAR: This Inquiry is now 16 resumed. Please be seated. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. DERRY MILLAR: 21 Q: Okay. If I can take you, please, to 22 Tab 7 and this is Inquiry document 1007239 and it's 23 entitled, "Statement of Political Relationship: SPR 24 guidelines, questions and answers, August 1992." 25 And then at -- towards the back of the
951 document the sixth page from the end there is an appendic 2 (sic), "Statement of Political Relationship Tribal 3 Councils in Ontario," and it appears to be dated -- it is 4 dated August 6th, 1991 and signed by then Premier Bob Rae 5 and Bud Wildman as minister responsible for Native 6 Affairs and also it's signed by a number of 7 representatives of First Nations, fourteen (14) leaders 8 of the First Nations community, various communities. 9 Can you tell us what this document is and 10 what was the statement of political relationship? 11 A: I can tell you about it. I wasn't 12 involved in preparing it or anything. I mean this all 13 happened prior to my coming to the Native Affairs 14 secretariat, but -- 15 Q: When you arrived at -- in the Native 16 Affairs secretariat, the -- the statement of political 17 relationship was in place? 18 A: Yes, and -- 19 Q: And -- 20 A: -- this document had already been 21 created. 22 Q: And can you then tell us what your 23 understanding was when you arrived at your position in 24 1994 as -- 25 A: Yes.
961 Q: -- as director? 2 A: Well, I do recall, even in 1991, this 3 was soon after the previous government had come into 4 power and they very quickly met with First Nations 5 leaders and negotiated this statement of political 6 relationship which is the one (1) page document that you 7 refer to near the end of this rather lengthy document. 8 And the -- probably the most significant 9 thing about this document is that it says that Ontario 10 recognizes that under the Constitution of Canada, First 11 Nations have an inherent right to self government, within 12 the Canadian Constitutional framework. 13 So, it was, I guess, a major change in 14 terms of the Government clearly recognizing that First 15 Nations have a right of self government that flows from 16 their original occupation of the land. 17 And, in addition, I think it was kind of a 18 symbol that the -- I mean, I remember hearing at that 19 time, like around 1991/1992 this reference to kind of 20 government to government dealings, like a recognition by 21 the Ontario government that they would be dealing with 22 First Nation governments and recognizing them. 23 So that was a significant change and then 24 the long document that's attached to it, the statement of 25 political relationship or SPR guidelines, questions and
971 answers from August 1992, is a guide that was prepared by 2 the Native Affairs secretariat for, I think, for the 3 public as well as internally for staff, and all 4 ministries of the Government to set out, you know, what 5 are -- what is this; why did we do this; what are treaty 6 rights; what are Aboriginal rights; what does this mean; 7 you know, how does it affect relationships with third 8 parties; who are First Nations? 9 So it's a whole kind of primer from 10 beginning to end. I mean, it's a fairly long document; 11 it's almost fifty (50) pages. 12 Q: And I would ask that that be marked 13 the next exhibit. It would be P-6 -- 14 THE REGISTRAR: 643. 15 MR. DERRY MILLAR: 643. 16 17 --- EXHIBIT NO. P-643: Document Number 1007239. 18 Statement of political 19 relationship; SPR guidelines: 20 Questions and Answers and 21 Appendix SPR tribal councils 22 in Ontario Aug/'92. 23 24 CONTINUED BY MR. DERRY MILLAR: 25 Q: And this was a document that had been
981 signed by the Government of Mr. Ray in 1991 and what was 2 the status of this document when the new doc -- after the 3 new government was elected in and sworn in on June 26th, 4 1995? 5 A: I think it was unclear what its 6 status was in that one of the kind of issues that the 7 Native Affairs secretariat wanted to bring forward to the 8 new government was whether they would negotiate some new 9 thing or how would they articulate what their 10 relationship was going to be with First Nations. 11 But I think that there was sort of a 12 general assumption that they would probably not be 13 endorsing the statement of political relationship, given 14 the position that their party had taken and the position 15 that they had enunciated once they formed the Government. 16 Q: When you say, "the position that 17 their party had taken," that was the position that the 18 party had taken during the provincial election? 19 A: During the election and then, I 20 think, they were quite consistent with it in terms of 21 once they formed the Government, indicating that 22 Aboriginal people don't have special rights. 23 So, that's sort of diametrically opposed 24 to what's in the statement of political relationship 25 which recognizes that First Nations do have special
991 rights that arise from their occupation of the land. 2 Q: And the position that you indicated 3 that the party had taken during the election, what 4 position was that? 5 A: Well it's what I've just articulated. 6 It's the same as what they said when they're in 7 government that Native people or Aboriginal people do not 8 have any special rights. So -- 9 Q: And during your tenure as Director of 10 Legal Services, Native Affairs Secretariat up to 1996 I 11 guess that was, what if anything happened to the 12 Statement of Political Relationship? 13 A: I'm not aware that anything happened 14 to it. 15 Q: Was there a new statement prepared? 16 A: No. 17 Q: No? 18 A: No there was no new statement. 19 Q: Okay. And at Tab 10 there's a 20 document entitled, "1995 Phone Log," and I believe this 21 is a log kept by you? 22 A: Yes. It's just my personal note. 23 Rather than -- a few years ago prior to this, a colleague 24 of mine suggested that rather than having a whole bunch 25 of pink slips that get lost with phone messages, that it
1001 was more efficient to actually just write in a book 2 whenever you got a message and that way you can mark off 3 whether you had returned the call. 4 And it was also just marked down like the 5 person's phone number or some short notes from the call. 6 So it's just a way of kind of organizing phone messages. 7 Q: And this document is a copy of the -- 8 your phone log for the period July 12th, 1995 to 9 September 12, 1995; is that correct? 10 A: Yes. 11 Q: And I would ask that this be marked 12 the next exhibit. 13 THE REGISTRAR: P-644, Your Honour. 14 15 --- EXHIBIT NO. P-644: Julie Jai's Phone Log July 16 12/'95 to September 12/'95. 17 18 CONTINUED BY MR. DERRY MILLAR: 19 Q: And someone has gone through the log 20 and whited out the references that have nothing to do 21 with the issues before us. Is that your -- 22 A: Right. Yeah. I've gone through and 23 tried to just cross out things that were unrelated. 24 Q: Okay. And the first entry is Tim 25 McCabe re Tom Marshall. Elizabeth Christie returned.
1011 There's a check mark. Do you have any recollection of 2 what that was about? 3 A: I don't know. 4 Q: And can you tell us just so that we 5 all understand how -- using the first line as an example, 6 how one would read Exhibit 6 -- P-644? 7 A: Sure. I mean the -- the -- it's in 8 columns so it starts out with the date. Actually where 9 it says -- on the top it says, "Date and Year." But 10 actually I put under that just the month and the day 11 because it's -- 12 Q: Yes. 13 A: -- quite clear what the year is. So 14 I just put the date. So that was July 12th. And then 15 under "Name" I would list the name of the person who had 16 called and then sometimes put in a little re. line if I 17 knew what they'd called about. 18 Their phone number and then there's a 19 short column for RET means returned. That would indicate 20 whether I had returned the phone call or not if I'd 21 checked it off. 22 And if I had just written LM, that means 23 left message. 24 Q: And in this case, the first entry is 25 Tim McCabe, then under re Tom Marshall then phone number,
1021 a Liz Christie. 2 A: Yeah. I -- I mean I guess you can 3 run over the lines in terms the columns aren't -- 4 Q: No, no, I -- 5 A: -- perfect boxes. 6 Q: -- appreciate that but I'm just -- 7 A: So that Tim had called me about 8 something relating to Tom Marshall and Elizabeth 9 Christie. So some -- so probably something involving the 10 Crown Law Office Civil because those are those two (2) 11 lawyers in Crown Law Office Civil who I sometimes talk to 12 about let's say Aboriginal litigation or legal actions. 13 So I can't remember what that was but -- 14 and I didn't take a very extensive note at that time. 15 Q: And Tim McCabe was a lawyer in Crown 16 Law Office Civil? 17 A: He was a lawyer at 720-Bay at BHE's 18 (phonetic). I can't remember if he was in Crown Law 19 Office Civil -- probably. 20 Q: We know for sure that Tom Marshall 21 was in Crown Law Office Civil. 22 A: Yes. Yes and Elizabeth Christie. 23 Q: And Elizabeth Christie. 24 A: Tim -- Tim devoted his entire career 25 while he was there to actually working on Aboriginal
1031 issues. So he was kind of in a class by himself as being 2 the person who was the specialist, probably in civil -- 3 in the civil litigation section. 4 But I can't for say for sure, but working 5 on Aboriginal issues. 6 Q: Okay. 7 A: He was almost like an ONAS employee 8 except not with our office. 9 Q: And the next page of Exhibit P-644, 10 July 13, 1995 there's a note, it would appear to be a 11 sticky note? 12 A: Yeah, that would have been like one 13 of those yellow stickies that I would have just, you 14 know, I guess, not following the practice or maybe not 15 having the phone log right there, just had scribbled some 16 notes on a yellow sticky which I then stuck on my phone 17 log so that it would be there and this was just a note 18 about -- from a call I had from the Koyuga (phonetic) OPP 19 about a possible blockade near London. 20 Q: And the information that you had been 21 provided, I take it, by an OPP officer -- 22 A: Yes. 23 Q: -- was that the concern was related 24 to the slowness of their land claim? 25 A: Yes.
1041 Q: That's what you had been told? 2 A: Yes, that's what I wrote down from 3 that phone call. 4 Q: And then there's a note, Dave McLean 5 again, Koyuga OPP. Was this a second call? Are you -- 6 A: I can't tell if it was a second call 7 or not or -- that -- or that he had given me other 8 numbers to contact. But from some -- one of these 9 subsequent calls, perhaps from the Staff Sergeant Dankert 10 (phonetic), because I've a little arrow there -- 11 Q: Yes. 12 A: My note is that they are just 13 preparing contingency plans in case something happens, 14 but they don't expect anything to happen. 15 And then I had made a note of two (2) 16 other people's names, both Jeff McCombe and Michael Brady 17 (phonetic) who were both lawyers with the ministry of 18 transportation, who I would call because road blockades 19 always affect the Ministry of Transportation. 20 Q: So, this is an example of when there 21 was a potential problem -- 22 A: Right. 23 Q: -- how you at ONAS were apprised and 24 kept abreast of what was going -- 25 A: Right.
1051 Q: -- on? Then I note that there is 2 a... 3 A: Do you want me to -- 4 Q: I -- 5 A: Oh, sorry. 6 Q: Excuse me, yes? 7 A: No, you go ahead. 8 Q: No -- 9 A: Well, I was just going to say, do you 10 want me to just quickly take you -- 11 Q: Sure. 12 A: -- through the next few just to give 13 you -- I mean we don't have to go through -- 14 Q: No, no -- 15 A: -- it all -- 16 Q: I think it would be helpful. 17 A: -- in detail but like on the next 18 page, on July 17th there's a note from Michelle Healie 19 who's with Crown Law Office Constitutional about some 20 note we did on the Adams case which was a case that was 21 going to the Supreme Court of Canada and it's says, "re. 22 withdrawal -- withdrawal," so that would be potentially 23 about withdrawing our factum or our position and do we 24 agree. 25 Then there's another note from Tim which
1061 would be Tim McCabe about setting up a meeting with 2 Andrew MacDonald -- 3 Q: And Andrew McDonald was a -- 4 A: He was the Aboriginal issues 5 coordinator at the ministry of the Attorney General. 6 Q: And was Andrew a lawyer? 7 A: Yes. 8 Q: Thank you. 9 A: And then Bill Taylor (phonetic) 10 calling me about a negotiation that I was involved in 11 with Cat Lake (phonetic) and just setting up when that 12 is. 13 And then moving over the page, July 21st, 14 there's a call from Scott Patrick of the OPP and just a 15 note that he was going to be Ron Fox's substitute or 16 alternate on the blockades committee. 17 And then some -- something from Ann 18 McChesney who was a lawyer with Solicitor General, 19 something from Shelley Spiegel who was at cabinet office, 20 and then another note from Shelley Spiegel saying: 21 "Deb Hutton, Premier's office. 22 Critical issues. Will be speaking to 23 Premier re. how to handle." 24 Q: Okay. Perhaps before we go to that 25 note, Scott Patrick, did you know Scott Patrick prior to
1071 July 21st? 2 A: I -- 3 Q: Had you met him? 4 A: I don't know if I had met him or not, 5 I can't remember. I probably talked to him on the phone. 6 Q: And did you know whether or not he 7 was an Ontario Provincial Police officer? 8 A: Oh, yes, yes. He was an OPP officer. 9 Q: And was he, at the time, seconded to 10 the Solicitor General's department? 11 A: I don't know; that's a good question. 12 I don't know the answer. 13 Q: And Shelley Spiegal, who's referred 14 to on July 24th, Shelley Spiegal was, again, can you 15 describe what her position was in the summer of '95? 16 A: Yes, she was -- well, she is by 17 training a lawyer. She was working at cabinet office in 18 the -- I believe still in the justice policy area. 19 Q: Okay. And then the note on July 20 24th, Shelly, Deb Hutton, that you just read to us -- 21 A: Hmm hmm. 22 Q: -- do you recall anything about this 23 call and what it related to? 24 A: I -- I can only recall what is on -- 25 what I can recall by reading the notation in the phone
1081 long that, I mean, Shelly would have called to say that 2 Deb Hutton from -- that she had been in contact with Deb 3 Hutton from the Premier's office who would be speaking to 4 the Premier about to handle critical issues and -- 5 relating to Aboriginal issues. 6 Q: Okay. Then Barry Jones -- there's a 7 name Barry Jones. 8 A: He's -- 9 Q: Barry Jones is -- 10 A: Yeah, he was the Legal Director at 11 the Ministry of Natural Resources. 12 Q: Okay. And then another note, Scott 13 Patrick? 14 A: Yeah. And that just says, "Date is 15 wrong". I don't know if that was some date I -- we had 16 on -- on something. I don't know. And then also on the 17 same day a note from Jeff McCombe the Legal Director at 18 Transportation. It says: 19 "The road that accesses the lake is a 20 municipal road." 21 And then he just gives me his fax number 22 and home phone number so presumably this is relating to 23 the earlier -- you know, some -- some potential road 24 blockage, maybe the one that the July 13th yellow sticky 25 was about or maybe some other one.
1091 Q: And -- 2 A: As you'll see -- we'll go through 3 this quickly but you'll see that there are a lot of 4 potential emergencies that were bubbling at the time just 5 based on the phone log. 6 Q: And perhaps we go on, Commissioner, I 7 would ask that the Registrar in the exhibit copy of P-644 8 blackout the phone number for Mr. -- home phone number 9 for Mr. McCombe on the fifth page. We've been trying to, 10 we haven't been entirely successful to get rid of home 11 phone numbers but we're still working on it. 12 And when was -- Mr. McCombe -- it's at the 13 very top of the page, Mr. Registrar. 14 15 Q: Then there's a note from Barb Taylor. 16 Who was Barb Taylor? It says, SG-43368 under July 24th? 17 A: All I know is that she was with the 18 Solicitor General. I actually can't really remember who 19 she was. 20 Q: Okay. 21 A: Just some official with SG. 22 Q: And then so that as we look through 23 on July 26th -- 5th -- there's a call Scott Patrick, 24 Shelly Spiegel, Barb Taylor. Then it said, "Debriefed 25 her".
1101 Do you have any recollection of what that 2 refers to? 3 A: No, I don't know what I debriefed her 4 on. 5 Q: And -- but from you said earlier over 6 the summer of 1995 there were a number of issues -- 7 A: Yes. 8 Q: -- that were -- 9 A: Yeah. Hmm hmm. 10 Q: -- that were happening? 11 A: Yes, there were a number of potential 12 emergencies because -- I mean we'll just go through -- do 13 you want me to take you quickly -- 14 Q: Sure. Sure. 15 A: -- through the next? The next day 16 Jeff McCombe from Transportation called me about some 17 problem there. Then Scott Patrick from SG called me 18 about MKA which was some other potential emergency. 19 Q: Do you know what MKA means? 20 A: I can't actually remember what that 21 acronym is. Barb Taylor said she would check with the 22 OPP and get back to me around noon. I guess I was 23 seeking some information. 24 Don Chaisson who was a lawyer, I believe 25 with Crown Office -- Office Civil but he might have been
1111 somewhere else at that time because he did move around so 2 I can't remember. But he called me also about the MKA. 3 Mary Tobin who was an articling student at 4 AG Policy called me about some conflict of interest. I - 5 - I believe she's an Aboriginal person and maybe she had 6 a conflict with one (1) of these issues. 7 Peter Warring from MNR called me about 8 some other possible problem with Whitefish River and then 9 this other Group NOTO; that's an acronym but I don't 10 recall what it is but they're concerned re. The 11 McCutcheon road access and the status of the road. So 12 that sounds like it's a potential road blockade issue. 13 Then Scott Patrick called me to say that 14 there was not going to be any MKA activity in Toronto or 15 not. Shelly Spiegel called me to say they -- they don't 16 know if the Premier saw our briefing note or not. 17 They're now recommending a letter go out confirming the 18 offer is off the table." 19 So, that might have been about one of the 20 land claim agreements where the new government was 21 withdrawing an offer that had been on the table in a 22 negotiation. 23 Q: Okay. 24 A: Then another -- so Bill Taylor called 25 me about Cat Lake again. Then the next day, the 28th,
1121 Judy Dobbs from the Minister's office called me about a 2 possible blockade in Thunder Bay. 3 Q: Do you know -- do you recall which 4 minister? 5 A: I don't -- no, I actually don't 6 recall her at all. I only had this very fleeting 7 interaction with her. 8 Then Scott Patrick called. Jeff McCombe 9 called, Michael Brady called, another lawyer. He's -- 10 Bill Taylor called about Cat Lake. Sheila McDermott -- 11 this would be something -- some sort of briefing or other 12 issue ,I think. It's hard to tell from my note. 13 COMMISSIONER SIDNEY LINDEN: Unless 14 there's something specific you want to draw your 15 attention to I think we get the idea. 16 17 CONTINUED BY MR. DERRY MILLAR: 18 Q: No, that's fair enough. We're coming 19 to -- 20 A: Okay. So, let's just jump over to 21 the next page, July 31st: 22 "Ron Fox said he would call me later 23 re. Ipperwash". 24 July 31st was a Monday so he called me 25 then Eileen called me. I don't know why.
1131 Q: Now Eileen Hipfner -- 2 A: Eileen Hipfner who was a lawyer in 3 the Ontario Native Affairs Secretariat Legal Branch. 4 Q: Okay. Then what we'll do is perhaps 5 we'll just stop for the moment on July 31st and take you 6 to a different topic. 7 As part of the -- as the Director of Legal 8 Services for ONAS, you were chair of the Interministerial 9 Committee on Aboriginal Emergencies? 10 A: Right. 11 Q: And we looked at, briefly, the 12 guidelines that appear in a number of places but the -- 13 Exhibit P-504 at Tab 13, Exhibit -- Inquiry Document 14 1012232 has a convenient set of the guidelines and 15 perhaps you could tell us what the role of the committee 16 was and prior to July 31st as chair of the committee how 17 many times the committee had met since you took over? 18 A: Okay. I don't recall if the 19 committee had met at all prior to the meeting on August 20 the 2nd since I became Legal Director of the Native 21 Affairs Secretariat. It's possible it had -- and just to 22 sort of go over generally the procedures. 23 Q: Yes. 24 A: But I don't recall any sort of 25 significant meetings of the committee until the one on
1141 August the 2nd. 2 Q: And had you attended any meetings -- 3 A: I had attended meetings of the 4 committee when I had been at cabinet office as a member 5 of the committee but not as the chair of the committee 6 dealing with other emergencies, like one that I remember 7 was this road blockade that was called the Beardmore 8 blockade. 9 Q: And so you -- when you were at the 10 cabinet office, one of your responsibilities was to 11 attend as a representative of the cabinet office at the 12 Interministerial Committee. 13 A: That's correct. 14 Q: And as we'll see Shelly Spiegal 15 attended in the summer of 1995 as a representative of the 16 cabinet office. 17 Was she playing the same role you had 18 played before? 19 A: Yes. 20 Q: Okay. 21 A: Okay. So, the role of the committee 22 is basically as set out in that briefing note of July 23 10th, 1995. It is to coordinate and gather information 24 as quickly as possible and ensure that information comes 25 in and goes out.
1151 And the committee basically assesses and 2 processes that information and then makes a 3 recommendation as -- usually as to some process to put in 4 place to either avoid a, you know, a -- some sort of 5 direct action or to resolve it. So, if there's a road 6 blockade or an occupation, we would try to come up with a 7 recommendation for some means of ending the occupation or 8 the road blockade. 9 And that would usually be by finding out 10 what the concerns were that had led to the occupation or 11 road blockage and then coming up with a recommended 12 process for dealing with those concerns. 13 Q: And when you say a, "recommended 14 process for dealing with the concerns", what do you mean 15 by process? 16 A: I guess the -- the -- the committee's 17 work, I guess, is premised on an assumption that the 18 reasons why people take direct action is because they -- 19 there is some underlying concern or frustration that they 20 have, and that they want a means of resolving that or -- 21 or being heard. 22 So, one of the first things we try to do 23 is come up with some suggestion as to how they can have 24 that grievance be heard or discussed without having to 25 block a road or occupy a park in order to do that.
1161 So, one of the means would be to, you 2 know, sort of gather some information and then maybe send 3 somebody to meet with the protesters and ask them, you 4 know, well, why are you here, what are your concerns? 5 And then, you know, if they say, well, our 6 concern is, you know, 'X' or 'Y' and then sort of say, 7 well, okay what if we appoint a -- somebody to meet with 8 you and we have a separate process for discussing 'X' and 9 'Y'. 10 And we show that we -- we'll commit to, 11 you know, being very serious about talking about this 12 with you, and that we will do this as soon as you put 13 down the barriers or, you know, end the road blockade or 14 whatever the action is that they are being taken -- that 15 they're taking. 16 So, it's really a pro -- a way of finding 17 another process other than this process of blockading or 18 occupying places which is really kind of, you know, 19 inconvenient for everybody because it's not fun to be on 20 a blockade or -- and it doesn't really solve the 21 underlying problem. 22 So, I guess our view, traditionally, has 23 been that these things happen because people are 24 frustrated that they haven't had an opportunity to be 25 heard, that they haven't had a -- a channel or process
1171 for discussing their concerns and therefore one way of 2 resolving them is by providing that opportunity in 3 another forum. 4 Q: Okay. And I note in the appendices 5 that appendix to the guidelines which -- and I'm 6 referring to Exhibit P-503, Inquiry document 1012232, 7 that the committee was to be composed, and I'm referring 8 to paragraph 7 of the appendix, a number of 9 representatives from a number of different ministries? 10 A: Yes. 11 Q: And in 19 -- in the summer of 1995, 12 those were the ministries that were represented as 13 permanent members? 14 A: More or less. I mean, I don't know 15 if there was someone there from the Ministry of Consumer 16 and Commercial Relations. And, in fact, it says in 17 brackets -- 18 Q: For gaming issues. 19 A: -- "For Gaming Issues". 20 Q: So, that -- and there's a reference: 21 "Ministry of the Solicitor General 22 including Ontario Provincial Police", 23 And what does that refer -- what was that 24 reference to back in the summer of 1995? 25 A: I think that that was based on the --
1181 the view that we would be getting -- critical information 2 would be coming to us from the OPP on the ground in some 3 situations, so that there were situations where we would 4 actually have somebody patched in by phone who was, like 5 the OPP person on the ground who would be telling us what 6 the situation was or what he had heard about, you know, 7 why the protesters were there. 8 Q: And prior to August the 1st, 1995 had 9 you been involved in a Interministerial Committee meeting 10 that involved an OPP officer being patched in? 11 A: I think so. 12 Q: And if I could take you to the top of 13 page 2, paragraph 9 sets out, as you've indicated 14 generally, the goal was to determine a short-term 15 strategy in response to demands that will result in an 16 end to the stoppage or the protest? 17 A: Yes. 18 Q: And then it goes on: 19 "The Committee will also ensure the 20 commitments made by the onsite 21 negotiators are kept." 22 And what does that refer to? 23 A: Well, if we had sent somebody to the 24 site, let's say, for example, an ONAS employee to meet 25 with the protestors to find out what their underlying
1191 concerns were and then that person that sort of -- let's 2 say that ONAS onsite negotiator said, Okay, well I commit 3 that we will meet, you know, starting next Friday every, 4 you know, once a month to talk about your -- your 5 allegation that you actually own this land that the 6 highway is on. 7 So this comment refers to the fact that we 8 would ensure that that commitment would be met. 9 Q: Okay. And then the committee -- and 10 it goes on in paragraph 9 to say the next step will be to 11 develop a long-term strategy to deal with the issue? 12 A: Yes. 13 Q: And paragraphs 10 and 11 indicate at 14 paragraph 10 the objectives as you've outlined them 15 generally. Paragraph 11 indicates the discretionary 16 powers that the Committee had according to these 17 guidelines and among those powers was the power to: 18 "c) Make decisions on third-party 19 intervention." 20 What did that refer to back in the summer 21 of 1995? 22 A: I actually don't know what was meant 23 by that bullet point. 24 Q: And the next bullet point, 11(d) 25 Appoint a facilitator/negotiator?
1201 A: Right. 2 Q: That's what you've just told us 3 about? 4 A: Yes, that would be sending somebody 5 on the ground whether that would be like a government -- 6 like a public servant or maybe just some third party who 7 we would hire, like let's say, a law professor or 8 somebody who we feel would get along well and be well- 9 respected by the protestors sending them to the site of 10 the protest to try to develop this sort of process 11 solution to end the -- the blockade or protest. 12 Q: And 11(f) Second Ontario public 13 services -- servants on an emergency basis? 14 A: Yes, that would be, for example, if 15 we decided that the best person to go and talk to the 16 protestors was somebody from, let's say, the Ministry of 17 Intergovernmental Affairs or, you know, some ministry 18 that doesn't normally have to really do much work in this 19 area that we would be able to say, okay, you're going to 20 be seconded, you know, full-time to work on this issue, 21 to go talk to the protestors and work out a solution. 22 Q: Okay. A process solution? 23 A: Yes, a process solution. 24 Q: And paragraph 11(g) Recommend that 25 legal action be taken?
1211 A: Yes. 2 Q: That was part of the powers that you 3 had was to recommend legal action in the appropriate 4 circumstances? 5 A: Yes. 6 Q: And back in 1995, in the summer of 7 1995 what types of legal action was encompassed by 11(g) 8 if you can recall? 9 A: Do you mean specifically -- 10 Q: Yes. 11 A: -- with respect to the Ipperwash -- 12 Q: No, no. Just generally. Before we 13 get to the issue of Ipperwash -- 14 A: Okay. 15 Q: -- what was your understanding 16 generally of the types of legal action that could be 17 recommended by the Committee? 18 A: I think generally the main legal 19 option would be seeking a court -- a civil injunction -- 20 Q: Okay. 21 A: -- to -- and the -- whatever the 22 thing was, the occupation or the road blockade but, yeah, 23 the -- I mean there would be other options under various 24 provincial statutes depending on what the exact nature of 25 the --
1221 Q: Of the -- 2 A: --- protest was. So if it was a park 3 you could go under the Provincial Parks Act or, you know, 4 if it was a public building that was being occupied there 5 would be other legislation that might provide legal 6 remedies. 7 Q: The legal -- the legal action would 8 depend -- would be fact specific -- 9 A: Yes. 10 Q: -- depending on the facts and the 11 options that might be available with respect to legal 12 action? 13 A: Correct. 14 Q: Depending on the facts. Then 15 paragraph 12 provides that: 16 "While the Committee will be able to 17 authorize the Ontario Government to 18 enter into negotiations it is 19 understood that the Committee can only 20 agree to processes which may lead to 21 the removal of the blockade. Any 22 proposed solution must be brought back 23 to the appropriate policy makers for a 24 decision if it is substantive or sets 25 new policy."
1231 And that paragraph is a limitation on the 2 power of the committee, is it not ? 3 A: Right. I mean that the committee 4 would not have the power to sort of send a negotiator to 5 the site and -- and sign an agreement that yes, we're 6 transferring this land to you. 7 They would -- that would be a substantive 8 solution. The committee would only have the authority to 9 really recommend processes like, okay, we -- you've told 10 us that you feel that this land is yours. 11 And we will sign an agreement saying we 12 will enter into negotiations with you about, you know, 13 what to do about the fact that you think that this land 14 is yours and there's currently a road over it. 15 Q: And that -- and that process would 16 engage the other processes within government. For 17 example, the land claims' process if appropriate to deal 18 with the issue? 19 A: Yes. 20 Q: So that the committee could -- the 21 committee's job was to solve the immediate problem and 22 create a process to -- to help do that? 23 A: Well, to solve the immediate problem 24 and create a process to deal with the long term problem 25 or the underlying substantive issue that had caused the
1241 protest. 2 Q: But as paragraph 12 indicates, if 3 there was any substantive issue or any change in policy 4 it had to be brought back for the approval of the 5 appropriate policy people. 6 A: Yes. 7 Q: Including, in the appropriate case, 8 the minister or cabinet? 9 A: Yes. 10 Q: Then paragraph 13 provides -- 11 provided back in 1995 the committee, it indicates: 12 "The committee has authority to appoint 13 and instruct a local or Toronto based 14 provincial public servant as a fact 15 finder/negotiator to attend any 16 blockade site. The ministry will be 17 asked to facilitate obtaining 18 individuals as required." 19 And up at the top of page 3, paragraph 14: 20 "It is preferred that the negotiators 21 be local ministry representatives." 22 And the person I take it, as noted in 23 paragraph 13 is a -- was a -- to be a fact finder as well 24 as a negotiator? 25 A: Right. And I think that the word
1251 "negotiator" is often kind of modified in this document. 2 Like it's -- sometimes we've seen facilitator/negotiator 3 or fact-finder/negotiator. Just to kind of make it clear 4 that these are -- sometimes the word "negotiator" would 5 lead one to believe that the person had the ability to 6 negotiate substantive rights. 7 Where is this is really a very narrow use 8 of the word "negotiator." As it says in paragraph 15 9 that: 10 "The negotiators can discuss the 11 establishment or the use of processes 12 to address the concerns or grievances." 13 But they can listen, but they do not have 14 the mandate to negotiate substantive issues, grievances 15 or concerns while the blockade is in effect. 16 Q: So that paragraph 15 which set out 17 their powers is -- is simply trying to encapsulate what 18 you've said, their job was to talk about process but not 19 deal with the substantive issue? 20 A: Right. 21 Q: And the committee in paragraph 16 was 22 to work toward, as it says: 23 "Efforts will be directed away from 24 agreeing to send cabinet ministers or 25 the premier to the site to negotiate
1261 matters directly." 2 That was part of the mandate that cabinet 3 ministers or the premier would not go to the 4 negotiations. 5 A: Yes. I think it was just felt that, 6 based on experience, it was better not to have this dealt 7 with at a political level but to be -- have experienced 8 public servants do the negotiation. 9 Q: And at paragraph 17: 10 "The activities and actions of the OPP 11 are subject to their own operational 12 guidelines." 13 A: Right. 14 Q: And what did you understand that 15 paragraph to mean back in the summer of 1995? 16 A: Just that the OPP were independent 17 and would be governed by their own operating guidelines. 18 Not by the committee. 19 Q: And what did that mean to you? 20 A: Well we did not have the power to 21 direct OPP operations or even to suggest that they do 22 certain things. 23 Q: So that you couldn't direct the OPP 24 on operational matters; that was up to the OPP? 25 A: Correct.
1271 Q: And then there's a section on 2 communications and paragraph 18 deals with the 3 communications regarding policing and public safety 4 matters at any site will be the responsibility of the 5 OPP. 6 And I take it from that, that the OPP 7 would deal with the matter locally, the communications, 8 and the committee wouldn't do that. Is that -- have I -- 9 A: Yes. 10 Q: -- captured that correctly? 11 A: Yes. 12 Q: Now paragraph 23 and -- paragraph 23 13 and 24 deal with in the event of a major -- paragraph 23, 14 "In the event of a major occurrence or 15 where decision's required are 16 substantive set new policy or require 17 corporate advice and direction, the 18 chair will ask the minister responsible 19 for Native Affairs to make a 20 recommendation to cabinet." 21 A: Yes. 22 Q: So that if your committee made a 23 recommendation that was going to be substantive, set new 24 policy or require corporate advice and direction, then 25 you, as the chair, would take it to the minister?
1281 A: Right. It was -- just even the way 2 this is set out, it's clear that that would be on only 3 very rare occasions because the goal was to not have 4 substantive discussions, so it would be very unusual and 5 that you would have to go to cabinet for something that 6 was related to negotiating the end of a protest. 7 Q: And then paragraph 24: 8 "Any decisions requiring civil legal 9 action, e.g., an application for an 10 injunction may be directed to the 11 minister responsible for Native Affairs 12 and the Attorney General for 13 consideration and recommendation to 14 cabinet." 15 A: Yes. 16 Q: And so that is it fair to say that if 17 I may paraphrase, as of the summer of 1995 and 18 previously, that the policy that was in place was that if 19 the committee recommended as an option legal action being 20 taken, it would recommend that to the two (2) ministers, 21 the minister responsible for native affairs and the 22 Attorney General and those ministers would make the 23 decision or make the decision with cabinet, if necessary? 24 A: Yes, that's what it says in these 25 guidelines.
1291 Q: And what happened in real life? 2 A: Well, actually I -- I mean, as I 3 said, these guidelines were in existence for some time. 4 They've been with -- they were there before I got there. 5 So I would actually be surprised, given my 6 previous work at cabinet office, that a decision to seek 7 an injunction would be something that would have to go to 8 cabinet. 9 Q: So even though the guidelines said 10 that it may require consideration and recommendation to 11 cabinet, it was your experience, prior to July 1995, that 12 such a recommendation would not go to cabinet? 13 A: Yeah, it would be normally made by 14 the Attorney General, the minister. 15 Q: And if there were -- and with input 16 from the minister of -- the minister responsible for 17 Native Affairs? 18 A: Yes. 19 Q: And did that happen -- do you recall 20 any instances when Mr. Wildman was minister responsible 21 for Native Affairs and I think the Attorney General at 22 the time was Marion Boyd. 23 Were you involved in any situations where 24 the ministers were two (2) separate ministers? 25 A: There were -- there was obviously
1301 periods of time where there were two (2) separate 2 ministers, but I can't recall that any civil injunctions 3 were required -- 4 Q: Okay. 5 A: -- during that time. 6 Q: But it was your understanding that 7 the decisions would be made normally, notwithstanding the 8 guidelines, by the Attorney -- the Ministry -- the 9 Attorney General? 10 A: Well, with advice from -- 11 Q: But -- 12 A: -- the native affairs secretariat. 13 So it would involve both -- both ministers would be 14 involved. 15 Q: Now we've heard a number of different 16 names, these -- for the committee. I guess from time to 17 time it was called the Interministerial Emergencies 18 Committee, the Blockade Committee, I think there's a 19 reference to the Interministerial Officials Committee. 20 They were all the same committee? 21 A: Yes, they were. And I see even in 22 the heading of this appendix it says, Guidelines for 23 Responding to Aboriginal Emergencies (Blockades). 24 So, there's this kind of association of 25 Aboriginal emergencies with blockades because that was
1311 the most common emergency up until that time had been 2 road -- road blockades. 3 Q: Now, you indicated that your -- the 4 committee would act when there was an emergency -- a 5 blockade or some other emergency. Is it fair to say that 6 the committee was a reactive committee instead of -- and 7 not a proactive committee? 8 A: Yes, it was reactive. 9 Q: And so when a problem arose the 10 committee would swing into action in accordance with the 11 guidelines? 12 A: Right. Right. The proactive work 13 would be done by other parts or, I mean, by -- for 14 example the work that the Native Affairs Secretariat was 15 suggesting in terms of establishing relationships with 16 First Nations or, you know, being proactive in terms of 17 having negotiations around issues that -- where there 18 were known disputes. 19 So there was a whole range of things that 20 could be done on a proactive basis but this committee 21 really only came into effect when there was some sort of 22 emergency that we had to react to. 23 Q: Okay. And from what you've said that 24 one (1) of the -- the committee recognized that often the 25 protestors or people conducting the blockade really
1321 wanted a forum for people to listen to? 2 A: Yes. 3 Q: Okay. 4 A: Actually could I just take you to -- 5 Q: Sure. 6 A: -- the notes and, I mean, this is at 7 Tab 9. It's the same briefing note but I -- this Tab 9 8 has both the July 10th and the September 6th versions of 9 the -- this briefing note on the procedures for dealing 10 with Aboriginal emergencies. 11 And I just looked at these two (2) notes 12 to see what changes I had made between July 10th and 13 September 6th. 14 Q: And if you could just hold on for a 15 moment my copy does not have both and I'll just -- I know 16 that it's in here at a different tab if could you just 17 bear with me for a moment. 18 A: Sure. 19 20 (BRIEF PAUSE) 21 22 Q: The Inquiry Document number -- the 23 September 6th briefing note is Inquiry Document 1010501 24 for the purposes of My Friends. 25 And I believe, Commissioner, that we
1331 marked 10 -- a copy of this during Mr. Hutchison if you 2 could just bear with me while I... 3 A: Yeah, I have the exhibit numbers for 4 both these documents, would that help? 5 Q: Sure. 6 A: Okay. The July 10th one is P-303. 7 Q: Yes? 8 A: And the September 6th one is P-498. 9 Q: Okay. Yes, now what are the 10 differences? 11 A: Well, very little. It's only on page 12 2 and the original one on July -- from July 10th in the 13 large bullet point under, "Background." Towards the end 14 of that paragraph it says: 15 "Often a blockade can be averted if the 16 First Nation is given another forum for 17 discussing its concerns with the 18 province." 19 And that's the issue that I -- I was just 20 talking about that really you need to find a process or a 21 forum for discussing the issues. 22 And then on the September 6th version of 23 the note it just says: 24 "Sometimes a blockade can be averted if 25 a First Nation is given another forum
1341 for discussing its concerns with the 2 province." 3 So I just know that that change I guess, 4 perhaps after the -- the Ipperwash experience I thought 5 that it was too optimistic to say often, and then the 6 other change in that note is also on page 2 in the very 7 last major bullet point. 8 In the July version it just has as the 9 opening sentence, it says: 10 "The principles guiding the response to 11 emergencies are..." 12 And then it lists those things. 13 "The prevention of violence, property 14 damage or personal injury. A timely 15 lifting of the blockade through 16 negotiations and finally a review of 17 the Aboriginal grievances and issues 18 and the establishment of processes to 19 address them. 20 However, no substantive negotiation is 21 to occur until after the blockade is 22 lifted." 23 All of that is the same in the September 24 6th version, except that the opening line is slightly 25 different. It has a -- sort of a few words added. It
1351 says: 2 "Provincial actions in emergency 3 situations will be guided by OPP 4 procedures and by the following 5 principles." 6 So what's new is the reference to being 7 guided by OPP procedures. 8 Q: And why did you make that change to 9 this document on September 6th, 1995? 10 A: I think that we -- just having had 11 that experience with Ipperwash, we wanted to emphasise 12 that the OPP had their own procedures and were 13 independent and, as I said, I changed often to sometimes, 14 because, I guess, we were less optimistic about how 15 easily we could avert blockades. 16 Q: Now the date on this Exhibit P-498, 17 Inquiry document 1010501 is September 6th, 1995. 18 A: Right. 19 Q: And was this document prepared on 20 September 6th, 1995 or revised on September 6th, 1995? 21 A: Yes, it was revised on September 6th. 22 Q: And was it revised prior to the 23 events of the evening of September 6th, 1995? 24 A: Yes. 25 Q: Yes?
1361 A: Yes. 2 Q: And was it revised before or after 3 the Interministerial Committee meeting that took place in 4 the morning of September 6th, 1995? 5 A: I can't say for sure when. 6 Q: Okay. 7 A: What -- at what time during the day, 8 but it was on September the 6th. 9 Q: Perhaps, Commissioner, that would be 10 an appropriate time to break for lunch? 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 We'll break now for lunch. 13 THE REGISTRAR: This Inquiry stands 14 adjourned until 1:30. 15 16 --- Upon recessing at 12:11 p.m. 17 --- Upon resuming at 1:30 p.m. 18 19 THE REGISTRAR: This Inquiry is now 20 resumed. Please be seated. 21 MR. DERRY MILLAR: Good afternoon, 22 Commissioner. What we're going to do this afternoon is 23 take two (2) shorter breaks. One break after an hour and 24 the second at -- at the second hour. And it makes it 25 easier.
1371 I have -- I know what it's like to have a 2 bad back and so it's -- it would be easier for Ms. Jai if 3 we did that. So, we'll break at 2:30 for a short break 4 and then after that. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 7 CONTINUED BY MR. DERRY MILLAR: 8 Q: Now, before lunch we were talking 9 about the Interministerial meeting and I had asked you 10 about the -- your experience with the committee prior to 11 the -- you coming the director in 1994. 12 Do you recall that? 13 And you had said that you -- when you were 14 in the Cabinet Office had attended at least -- I think 15 you said one (1) meeting of the Interministerial 16 Committee meeting -- committee? 17 A: At least one (1). Maybe a couple of 18 meetings. 19 Q: Okay. And one of the issues you 20 dealt with was the Beardmore situation? 21 A: Yes. 22 Q: And the Beardmore situation related 23 to a power project, the High Falls power project? 24 A: I can't remember the details. 25 Q: Okay. And do you recall anything
1381 without referring to documents about the Beardmore 2 situation? 3 A: Well, I believe that it was a road 4 blockade and that it was one that -- I believe Yan Lazor 5 was involved in mediating some resolution to it. 6 Q: As I understand it, there was a 7 mediator appointed and the -- there were discussions and 8 then the blockade was removed. Something then happened 9 that the blockade was then put back in place and an 10 injunction was obtained. 11 Do you recall that? 12 A: That sounds right. I can't say 100 13 percent. It was a long time ago -- 14 Q: No and -- 15 A: -- and at that time I wasn't 16 responsible for it and that's a big difference. I was 17 just a member of the committee who was -- 18 Q: No, no. I appreciate that. 19 A: -- observing so I wouldn't have 20 focussed on the details as much. 21 Q: And prior to June 1995 did political 22 staff attend the Interministerial Committee Meetings from 23 time to time? 24 A: Yes, I believe they did. 25 Q: And so that prior to the new
1391 government taking office on June 26th, 1995, political 2 staff would attend along with civil servants? 3 A: Yes. 4 Q: And when did you, if you can recall, 5 first meet then-Inspector Ron Fox in relation to your 6 duties at ONAS? 7 A: I probably would have met him around 8 the time that I became Legal Director or possibly 9 slightly before that if he had been at one (1) of these 10 meetings. 11 Q: Well, he had -- I think he was 12 appointed liaison in February of '95. 13 A: Okay. So, it would have been -- 14 Q: This would have been after that. 15 A: Yeah. Hmm hmm. 16 Q: And can you tell us, as Chair, what 17 relationship generally you had with Mr. Fox prior to the 18 end of July? 19 How did it work with Ron Fox? 20 A: We had a fairly close relationship 21 professionally because he knew that his job was to 22 contact me about any potential Aboriginal emergency that 23 could affect the Ontario government. So, he called me 24 frequently with just intelligence that he had received 25 from a whole variety of sources about potential threats
1401 to -- or, to blockade roads or disrupt certain 2 facilities. 3 Q: And what was your relationship with 4 Ron Fox, your working relationship? 5 A: It was good. 6 Q: And -- 7 A: I trusted information that I received 8 from him as being accurate. 9 Q: And how would you describe Ron Fox 10 with respect to Aboriginal issues? 11 A: He seemed quite sensitive to 12 Aboriginal issues and quite -- seemed to have quite a bit 13 of background in the area, so relatively knowledgeable 14 for somebody coming from the OPP. 15 Q: And with respect to the -- I take it 16 from that last remark you didn't expect that from an OPP 17 officer? 18 A: Oh, well, I shouldn't -- I shouldn't 19 say that because that sounds like I'm criticizing the OPP 20 which is not true at all, because I also had a good -- 21 fairly high regard for the OPP. 22 I guess that he -- he was unusually well 23 informed for someone from any -- whatever position they 24 would have -- would have held or whatever background. 25 You know, he had far more experience about -- and
1411 knowledge of Aboriginal issues and rights than the 2 average government employee. 3 Q: So, he -- whether he was a civil 4 servant who served in the Ontario Provincial Police or a 5 civil servant in another ministry, he had more 6 information -- he had more knowledge than, as you put it, 7 the average civil servant? 8 A: Yes. 9 Q: And the -- now, did you ever discuss 10 with Inspector Fox, as he then, was the delineation 11 between operational issues and the information he could 12 provide you? 13 Did you discuss that topic? 14 A: It -- it came up a number of times, 15 not necessarily where we would have a specific discussion 16 but where he would say something like, you know, Well, 17 those are operational details I can't discuss with you. 18 Or, you know, like some comment would be 19 made in passing that made it clear to me that, you know, 20 he had a bit of an awkward job because he was the person, 21 sort of, the intermediary between the OPP and government. 22 And he knew very well that the OPP had to be independent 23 of government and yet he was the conduit of information. 24 So, he had to make those judgment calls 25 about how much information to pass onto me and how much
1421 information that I gave him to pass onto the OPP. 2 So, managing that -- that relationship and 3 while trying to maintain the independence of the OPP was 4 one (1) of the things that was part of his job and which, 5 you know, was really one (1) of the main challenges I 6 think for him. 7 Q: Okay. And so he was -- he would from 8 time to time, tell you that he couldn't tell you things 9 because they were operational? 10 A: Yeah. And I would make it clear that 11 I wasn't interested in knowing about operational details 12 of what the police were doing; that that was for the 13 police and I didn't need to know or want to know. 14 Q: And in July of 1995, can you tell me 15 from your experience, how the committee operated; did it 16 work together well, did it work together dysfunctionally 17 or how was it -- how would you describe -- 18 A: Well, when you -- 19 Q: -- how the committee worked? 20 A: When you say in July of 1995, do you 21 mean at the meeting that we had in -- 22 Q: No, before the meetings of -- 23 A: Okay. Because I think that the 24 meeting of August 2nd was the -- probably the first 25 meeting that we had of the committee when I -- under my
1431 chair. 2 So it -- prior to that, that would have 3 been in -- well, like 1994 or in other years, the 4 committee worked quite collegially together and I -- 5 there was not really any sort of conflict between the 6 political staff and the public servants. 7 I would say that the political staff were 8 there really just to hear what was happening and to be 9 able to quickly go back and update their ministers, not 10 really to kind of give direction. 11 So I wasn't aware of any sort of major 12 conflicts in -- among people within the committee at the 13 meetings that I attended, prior to the one that I chaired 14 on August 2nd, 1995. 15 Q: Okay. So that the -- the meeting on 16 -- of August 2nd, 1995 was your first meeting as chair? 17 A: I believe so. 18 Q: And prior to July 31st, 1995 or your 19 first contact with someone in relation to Ipperwash and 20 we'll go to that, but -- 21 A: Hmm hmm. 22 Q: -- prior to the end of the month, did 23 you have any knowledge of the Ipperwash situation at the 24 Army Camp? 25
1441 (BRIEF PAUSE) 2 3 A: I can't recall if I did or not. 4 Q: Okay. And on -- we've provided you 5 with a copy of Inquiry Document 1003504 and it's a note, 6 it's a loose note that Ms. Hensel -- 1003504. 7 A: Yes, I have that. 8 Q: And that is your hand -- is that in 9 your handwriting? 10 A: Yes, it is. 11 Q: And can you tell us what this note 12 relates to? 13 A: Yes, it's a -- it's a note of a phone 14 call that I must have received from Scott Patrick and I 15 see that the note is dated July 30th, 1995 but I suspect 16 that it should have been dated July 31st, because July 17 30th was a Sunday. 18 So whereas Monday would have been July 19 31st, so I think I probably just made a mistake in the 20 date at the top of the note. 21 Anyway, so I would have receive -- this 22 would have been notes from a phone call from Scott 23 Patrick and it says: 24 "Native group has stormed the gate at 25 Camp Ipperwash. Chief Superintendent
1451 Chris Coles is on his way to the site 2 to find out who they are, what they 3 want and to prevent the Military from 4 doing something crazy." 5 And then in brackets it says: 6 "But had a positive training session 7 recently." 8 Which I think means, just to explain, 9 expand on that cryptic note that -- that there had been 10 some sort of training session with the Military about 11 Aboriginal policing issues or something. 12 And then I just had some further notes, 13 should I contact someone at INAC, that's Federal Indian 14 and Northern Affairs. 15 And then the comment that the beach at 16 Ipperwash Provincial Park is packed, like, with people. 17 And then I said I would contact MNR because MNR is the 18 owner of the Provincial Park. 19 Q: And there's a note: 20 "Left LM Barry Jones, Peter Allen" 21 A: Yes, I left a message for Barry Jones 22 and Peter Allen who were both with MNR. 23 Q: And then there's a note struck out: 24 "LM (left message) for Michelle"? 25 A: Right, because, I guess, I left a
1461 message for Michelle but then I actually spoke to her. 2 Q: And who is -- who was, in 1995, 3 Michelle? 4 A: I -- I -- it must be Michelle Fordyce 5 who was working at ONAS. I actually don't have a 6 recollection of this phone call or -- or conversation 7 with Michelle. So I'm only going based on what it says 8 on this note. 9 But Michelle was an ADM at the Native 10 Affairs Secretariat. 11 Q: Yes. 12 A: And so this would be my notes from a 13 conversation with her in which she says: 14 "Feels that the Military will contact 15 INAC. We should ask the OPP to make 16 sure that the Military police contact 17 INAC. 18 Do the OPP even have jurisdiction? 19 They should establish this. Can it 20 have any impact on the Park?" 21 Q: And these were comments that Michelle 22 and I can't remember her last name, I missed it. 23 A: Oh. Michelle Fordyce. 24 Q: Fordyce? 25 A: F-O-R-D-Y-C-E.
1471 Q: Fordyce -- Ms. Fordyce was making? 2 A: Yes. 3 Q: And did you make any comments to her? 4 A: It's possible but I -- when I take 5 notes I usually only take notes of what the other person 6 says. It's hard to take notes of what you say yourself 7 while you're talking. 8 Q: Okay. And with respect to the note, 9 the conversation with Scott Patrick: 10 "Should I contact someone at INAC?" 11 Was that something that Scott Patrick said 12 or was that a note to yourself? 13 A: I think that was a note to myself. 14 Q: And perhaps we could mark that 15 Document 1003504 as the next exhibit. 16 THE REGISTRAR: P-645, Your Honour. 17 18 --- EXHIBIT NO. P-645: Document Number 1003504. 19 Julie Jai's handwritten note. 20 July 30/'95. 21 22 CONTINUED BY MR. DERRY MILLAR. 23 Q: And I take you back to Exhibit 6 -- 24 P-644, it's Tab 10 which I believe you have in front of 25 you.
1481 A: Yes. 2 Q: On July 31st at approx -- at -- 3 there's a note: "Ron Fox will call me later re Ipperwash. 4 Left, then LM." 5 A: Yes. 6 Q: You received a message from Ron Fox? 7 A: Yes. And that would have been quite 8 early in the morning because my next message after that 9 was to Eileen Hipfner -- from Eileen Hipfner and that 10 was at 8:45. So it would have been an early message that 11 I would have received from Ron the morning of July 31st. 12 Q: And then there's a note: "Tony 13 Bushinsky filling in for Peter Allen. Return." 14 A: Yes. He returned a message that I 15 left for Peter Allen. 16 Q: And so Peter Allen wasn't there? 17 A: Apparently not on July 31st. 18 Q: Okay. And then do you recall 19 speaking to Ron Fox on July 31st? 20 A: I imagine that I did speak to Ron Fox 21 on July 31st. But I can't remember. 22 Q: And I don't think we have a July 31st 23 note. We do have a note of August the 1st at Tab 12. 24 It's Inquiry Document 30001085, Exhibit P-500. 25 And that is your handwriting?
1491 A: Yes, it is. 2 Q: And does this significant -- does 3 this note -- is this a note of a telephone call or a 4 meeting with Ron Fox? 5 A: Probably a telephone call. 6 Q: And I note on August the 1st, in 7 Exhibit P-644 at -- under August the 1st, there's Ron Fox 8 and it appears to be LM and then a second entry on the 9 page for August the 1st. 10 A: Yes. 11 Q: Ron Fox and then there's something 12 beside it, "call from," do you see that at the bottom? 13 A: I can't -- I don't know what -- oh. 14 I actually think that that -- it says Gull Bay. 15 Q: Oh, okay. 16 A: See that -- I mean there are several 17 other potential emergencies happening so I mean I had 18 just, on July 31st, received a call from Michael Brady at 19 Transportation about a potential blockade by Gull Bay and 20 that was -- so the first message from Ron was about Gull 21 Bay and then turning over the page it's clear that I did 22 speak to Ron twice that day, at least, about Ipperwash. 23 Q: Because on the top of the next page 24 under August 1st there's Ron Fox, Ipperwash; Barry Jones, 25 Ipperwash; Ron Fox, Ipperwash; and the call that's at Tab
1501 12, can you tell us what you recall of that discussion, 2 generally, if anything, or with the use of your notes? 3 Can you recall -- do you have any independent 4 recollection of the call? 5 A: No, it's just -- it would just be 6 based on reading those notes. 7 Q: And can you tell us with the aid of 8 the notes, Exhibit P-500 -- 9 A: Hmm hmm. Yes. 10 Q: -- what the call was about? 11 A: Yeah. Ron was briefing me about the 12 potential risk of the occupation at the Army Base 13 spreading to Ipperwash Provincial Park and then so the 14 first thing he mentions is that John Carson is the person 15 on the ground in charge and that Ron thinks that he's 16 very good. 17 Then he talks about the water pressure 18 issue because since the Army Base had been taken over and 19 the phone lines had been cut, that the phone lines 20 actually controlled the water pressure at the Park so 21 that that was just sort of an issue but that the 22 engineers from the Department of National Defence were 23 manually operating the pumps and they would come and 24 there would be a way of installing some separate pump 25 that would not be dependent on the phone lines within a
1511 couple of weeks. 2 And then John says that he doubts that the 3 First Nation intended the water to be affected. 4 Q: And that "John" being John -- 5 referring to John Carson? 6 A: John Carson. 7 Q: And just stopping there for a moment. 8 The issue of the water was worked out fairly quickly, was 9 it not? 10 A: I believe so, yeah. 11 Q: And the -- with the -- with the 12 occupiers at the Army Camp? 13 A: I can't -- I can't recall how it was 14 resolved but it was resolved. 15 Q: Okay. 16 A: And just that all of this information 17 Ron was giving me I -- he mostly got from John Carson. 18 Q: Okay. 19 A: So that's -- that's clear from the 20 notes. So then the second point is the sacred site. 21 "The Kettle Point First Nation people 22 regularly go there and that campers 23 last night overheard First Nations 24 people saying, "Pretty soon you'll be 25 paying us for the use of the Park.""
1521 And then it says: 2 "John has heard this before." 3 So John Carson has heard these types of 4 comments before. And then the note is, it says: 5 "It's possible that the First Nation 6 feels that this is a logical next step. 7 "This" meaning occu -- I see assume 8 occupation of the Park. 9 Okay, this is hard to read but it says: 10 "The Park is at the west edge of the 11 Base. It is -- it is contiguous." 12 Like the beach and the Army Base are 13 contiguous, there's no real boundary. 14 "Carson is dealing with Mr. Peter 15 Sturdy from MNR." 16 Then it continues on the next page. 17 Q: Can you -- 18 A: Do you want me to continue to go 19 through? 20 Q: Sure. 21 A: Okay. And then the information from 22 Ron is that it is only a dissident group that is doing 23 this. "Doing this," meaning occupying the Army Base, not 24 the Band or the First Nation; that the Band does not plan 25 to take over Ipperwash Park.
1531 And then I have a little note really to 2 myself: 3 "Check re. whether their land claim 4 covers Ipperwash Park." 5 So, whether there are any outstanding land 6 claims for the Park. 7 "Camp Ipperwash is fenced and signed. 8 There are warning signs." 9 So you couldn't get into the actual 10 ranges, like on the -- in Camp Ipperwash the Army Base 11 although you could walk along the beach in front of the 12 Base. 13 "The OPP is monitoring the situation 14 closely and probably has people at the 15 Park as 'campers.'" 16 So, in other words some undercover OPP 17 officers disguised as campers. 18 Q: This is something that Ron Fox told 19 you? 20 A: Well, he must have -- 21 Q: Okay. 22 A: -- because I wouldn't have gotten the 23 information otherwise and written it down. 24 As I said I -- usually I'm not interested 25 in and don't pay attention to sort of operational
1541 activities of the OPP. 2 Q: Sure. 3 A: So -- but he must have just told me 4 this and I was writing these notes down. So the -- and 5 then he says that the fact that this dissident group 6 succeeded in getting the Army Base has given them 7 confidence. 8 Then he describes a car accident that 9 killed two (2) people on the Ipperwash beach road, a 10 single vehicle accident that seems unrelated, but the 11 people in the car were from the group occupying the Army 12 Base, but that it seems to be an unrelated incident. 13 And then on the third page, it says 14 there's a meeting of the Stoney Point First Nation on 15 this tonight regarding the progress in the land claim 16 dispute and also that the band does not sanction the 17 takeover, and that would be of the Army Base. 18 Q: And did you understand what the land 19 claim dispute was about, that -- 20 A: No. 21 Q: -- we referred to? 22 A: No. 23 Q: Were you aware that -- did you have 24 any understanding on August the 1st when you had this 25 call with Ron Fox of the history of the Army Camp --
1551 A: No. 2 Q: -- and the First Nation? 3 A: No. 4 Q: Did you subsequently learn of the 5 history of the Army Camp? 6 A: Yes. We gathered some research 7 together because -- we pulled some stuff together because 8 we called a meeting on August 2nd of the emergencies 9 committee and had some background material prepared for 10 that meeting, including some of the history around the 11 Army Base and the park. 12 Q: Okay. And at the next page of 13 Exhibit P-500 there's a note, Barry Jones and, again, 14 dated August 1, 1995 and -- 15 A: Yes. 16 Q: That's your note as well? 17 A: Yeah, that would be a note from a 18 phone call with Barry Jones who was the legal director at 19 the Ministry of Natural Resources and in it, it says: 20 "Peter Sturdy [who was an MNR person on 21 the ground, like locally, near the 22 Park] that he's not so optimistic about 23 the water pressure. The Minister [that 24 would be MNR's minister] is concerned 25 that there's a safety risk to campers
1561 and if there is the camp --" 2 Oh, it says, "camp" but it should mean 3 Park -- 4 "--that the Park should be closed. 5 Peter Sturdy also thought that there 6 were reinforcements coming." 7 That would mean more people to support the 8 occupiers of the Army Base. And then there's this 9 comment which is very surprising coming from Barry Jones 10 that there are four (4) undercover OPP in the Park, plus 11 a SWAT team nearby. 12 Q: And why do you say it was very 13 surprising coming from Peter Jones? 14 A: Oh, from Barry Jones? 15 Q: From Barry Jones. 16 A: Well, I guess Barry is quoting from - 17 - is telling me stuff that Peter Sturdy told him, so I 18 guess Peter would know this because he was the MNR person 19 on the ground and he might have gotten this information 20 directly from the OPP. 21 It is just a level of detail about police 22 operations that I normally wouldn't have that 23 information. 24 Q: And you were surprised that Barry 25 Jones had that information?
1571 A: Well, just in retrospect, looking at 2 it, it does seem surprising. 3 Q: Okay. Then -- 4 A: And then -- 5 Q: -- it goes on? 6 A: Yeah, and then it says that there is 7 a new EA, like executive assistant, to the minister of 8 Natural Resources named Jeff Bangs and that he would like 9 to come to the Interministerial emergencies meeting that 10 we're going to hold the next day. 11 Q: And then there's a note, 12 "MNR SG OPP." 13 A: Oh. 14 Q: On the Barry -- it's on this -- at 15 the bottom of the -- 16 A: Yes. 17 Q: -- August 1st note with Barry Jones. 18 A: Yeah, I guess it's just sort of a 19 note about some of the involved -- the most involved 20 parties. 21 Q: Okay. And then if I could take you 22 to Tab 17, there's an e-mail that's Exhibit P-414, 23 Inquiry document 1000935. This is an e-mail from Ron Fox 24 to Anthony Parkin, the superintendent at the west region 25 of the OPP and Mr. Fox reports on August the 2nd at 7:37
1581 in the third paragraph from the bottom of the first e- 2 mail: 3 "Julie Jai tells me that MNR are 4 concerned about both issues." 5 That being the water supply and the 6 occupation of the Park. He identifies as two (2) issues 7 above. 8 "In my view 'To a greater degree than 9 is probably warranted.' 10 As a result a meeting of the Aboriginal 11 issues committee will be convened today 12 August 2, 1995 at 3:30 p.m. at ONAS 13 offices. I'm a member and will attend 14 to 'guide' the discussions in this 15 area. If you or John are available by 16 telephone at this time, it may be of 17 assistance should any points arise and 18 the discussion that 'may' need further 19 explanation and interpretation." 20 Now, do you recall discussing MNR's 21 position with Ron Fox on August the 1st? 22 I note that there's another phone call 23 with Ron Fox in Exhibit P-644 after your call with Ron 24 Jones -- Barry Jones. 25 A: With Barry Jones, yes. So, I believe
1591 I did call or Ron called me, but in any event we spoke to 2 each other after I'd talked to Barry Jones. And that I 3 debriefed Ron on the information that I got from -- from 4 MNR. 5 Q: And did you make a comment to him 6 that MNR were concerned to a greater degree than is 7 probably warranted or was that a comment that he was 8 making himself? 9 A: I actually think that's a comment he 10 was making himself. 11 Q: Okay. That's not something you said 12 to him? 13 A: I doubt that I would have said that 14 to him. But it does -- it does appear that MNR was quite 15 concerned about these issues. And that Ron and I 16 probably shared a view that they were perhaps overly 17 concerned. 18 Q: And a decision was then made by you 19 to convene the committee? 20 A: Yes. 21 Q: And in order to convene the 22 committee, did you require the approval of anyone else or 23 it was simply something that you made the decision? 24 A: I would make the decision and convene 25 the meeting.
1601 Q: And if I could take you to Tab 11. 2 It's Inquiry Document 1003358 and this appears to be an 3 e-mail sent by you, Ms. Jai, to a number of people. 4 A: Yes. 5 Q: And can you assist us who it was sent 6 to? There's -- 7 A: Yes it would have been -- it says 8 Exec. Group so that would be the executive group, so the 9 senior management within ONAS. So that would include Yan 10 Lazor and Michelle Fordyce and probably the Director of 11 Communications and, you know, maybe one or two other 12 senior officials. 13 And then Tone CA is probably Tone Careless 14 (phonetic) who was working at ONAS and Pro Dan (phonetic) 15 I think is Anna Prodanou. 16 Q: Okay. And this was -- you're 17 alerting to the group to the possibility of an emergency 18 at Ipperwash? 19 A: Yes. 20 Q: Perhaps we could have that marked the 21 next exhibit please. It would be P-6 -- 22 THE REGISTRAR: P-646. 23 MR. DERRY MILLAR: 646. 24 25 --- EXHIBIT NO. P-646: Document Number 1003358. E-
1611 mail from Julie Jai to 2 distribution groups re. 3 "Possible Emergency - 4 Ipperwash" Aug 01/'95. 5 6 CONTINUED BY MR. DERRY MILLAR: 7 Q: And you note that -- you're advising 8 that there's going to be a meeting at 3:30 on August the 9 2nd. You note, as well, that MNR is worried because of 10 rumours that the dissident group will take over Ipperwash 11 Park? 12 A: Yes. 13 Q: And that was based on the information 14 you obtained from Mr. Jones and Mr. Fox? 15 A: Yes. 16 Q: And you raised the issue of the 17 water? 18 A: Yes. 19 Q: And then you note: 20 "I have briefed Janina Korol, K-O-R-O-L 21 as well as David Moran who was in her 22 office when I called. David will 23 contact the Premier's office to advise 24 him of the situation although we do not 25 feel that it is necessary for them to
1621 attend the meeting." 2 And can you tell us what that refers to? 3 First of all who is Janina -- or was Janina Korol? 4 A: I believe she was the director of 5 communications at ONAS. 6 Q: Yes. 7 A: And Dave Moran was the Minister's EA. 8 So that would have been Minister Harnick's executive 9 assistant. 10 Q: And did you discuss with Ms. Korol 11 and Mr. Moran contacting the Premier's office? How did 12 that come up? 13 A: I don't recall that discussion, so I 14 can only be guided by what is in this note; that David 15 said that he would contact the Premier's office to advise 16 them of the situation, although, and I say although, we 17 do not feel that it is necessary for them to attend the 18 meeting. 19 So, I am assuming that that would be -- I 20 didn't feel it was necessary and Janina and others didn't 21 feel it was necessary for the Premier's office to attend. 22 Q: Okay. And then, "Janina will advise 23 the deputy's office", that's Mr. Taman's office? 24 A: Right. 25 Q: And then you list the expected
1631 attendees? 2 A: Yes. 3 Q: And you expect that at the time 4 Nathalie Nepton who was an articling student, as I 5 understand it? 6 A: Yes, she was articling for me. 7 Q: And -- at ONAS? 8 A: Yes. 9 Q: Then Ms. Korol, Mr. Moran, Mr. Jones, 10 Mr. Allen, Mr. Bangs, Mr. Fox and the OPP by telephone. 11 At that point, you expected someone to participate? 12 A: Yes. 13 Q: And Elizabeth Christie from MAG and 14 there's a question mark. And do you recall today why you 15 had a question mark? 16 A: It's possible we hadn't contacted her 17 yet, so we couldn't confirm whether she was coming and I 18 cc'd this to John Van West (phonetic); that's what that 19 note at the bottom is. 20 And John Van West did historical research 21 for the Native Affairs secretariat, so he would have 22 prepared some of the background material on the First 23 Nation and the history of Ipperwash Park. 24 Q: Okay. And at Tab 13? 25
1641 (BRIEF PAUSE) 2 3 A: Yes. 4 Q: There's a fax dated August 2, 1995. 5 It's Inquiry Document 1012232; it's been marked as 6 Exhibit P-504 and this is a fax from you to Lisa... 7 A: Gonzalves. 8 Q: ...Gonsalves at the cabinet office. 9 A: Right, and to Peter Sturdy and Ron 10 Baldwin at MNR. 11 Q: And it's attaching the material for 12 the meeting on August the 2nd? 13 A: Right. Now, I assume that some of 14 this would have been material that I would have 15 distributed to the committee, but because they were -- 16 Ron and Peter were connected by phone, they wouldn't have 17 gotten it, so I must have faxed it to them right after 18 the meeting. 19 Q: I see, because the fax is dated at 20 17:46. 21 A: Right. 22 Q: And the -- and is this a -- a 23 duplicate of what you distributed to the committee on 24 August the 2nd? 25 A: I believe so.
1651 (BRIEF PAUSE) 2 3 Q: And I note that item number -- page 2 4 of Exhibit P-504, item number 2 was the midge -- 5 emergency committee procedures, item number 3 was 6 background on the Kettle and Stony Point First Nation, 4 7 was an update from Solicitor General and 5 the MNR 8 concerns and 6, options. 9 That was an agenda you prepared for the 10 meeting? 11 A: Yes. 12 Q: And then, if I could take you back to 13 Exhibit P-644. 14 A: What tab is that at? 15 Q: That's, excuse me, Tab 10. It's 16 your -- 17 A: Oh, the phone log? 18 Q: -- phone log. 19 A: Yes. 20 Q: And to August the 1st. 21 A: Yes. 22 Q: And there's a note under August the 23 2nd: "Eliz. Christie will come."" 24 A: Right. 25 Q: I take it that's --
1661 A: That's Elizabeth Christie, so that's 2 why we hadn't confirmed it the day before, because I 3 wasn't able to speak to her until the morning of August 4 the 2nd. 5 Q: And then you received a call from 6 Shelly Spiegel. 7 A: Right, at cabinet office, and 8 indicating that Brett Laschinger who reports to Deb 9 Hutton in the Premier's office will be coming to the 10 meeting. 11 Q: Okay. 12 A: And then there's also a note, Claude 13 Galipeau, who I believe is somebody who works with Shelly 14 at -- worked with Shelly at Cabinet Office. So, just a 15 reference to him and I -- I'm not sure if that was that 16 he would possibly be coming instead of Shelly. 17 And then there's a call from Dave Moran in 18 the Minister's Office. 19 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 20 Downard...? 21 MR. PETER DOWNARD: Briefly, sir, it 22 appears to me that to a great extent the Witness is 23 either reading notes or reconstructing events on the 24 basis of the document she is reading now. 25 It would be helpful if it could be made
1671 clear whether she has independent recollection of any of 2 these particular matters she's speaking to as distinct 3 from simply reading the notes and reconstructing what she 4 believes happened which she's stated quite fairly on the 5 basis of the document she's reading. 6 COMMISSIONER SIDNEY LINDEN: I think Mr. 7 Millar's tried to do that but perhaps you could be a 8 little more vigilant in distinguishing what she's reading 9 and what she remembers. 10 11 CONTINUED BY MR. DERRY MILLAR: 12 Q: With respect to the note -- Exhibit 13 P-644, with respect to Shelly, do you have any 14 independent recollection today of your telephone call 15 with Shelly Spiegel? 16 A: No. 17 Q: And -- so that what you've just told 18 us is based on what you've read in your note -- 19 A: Right. 20 Q: -- and extrapolating from that? 21 A: Right. 22 Q: Now, I'll take you to Tab 15. This 23 is Exhibit P-505 Inquiry Document 3001086, and this 24 appears to be a note that you made in relation to Ron 25 Fox?
1681 A: Yes. 2 Q: And these -- I take it these are your 3 notes? 4 A: Yes, they are. 5 Q: And if I could -- if you could hold 6 Tab 15 and go back to Tab 10 the phone log, Exhibit P- 7 644? 8 A: Yes. 9 Q: On August the 2nd there's a note: 10 "Jonathan Batty is company -- coming." 11 And then. "Ron". And then it -- I can't 12 read what's next to it, it appears to be a time? 13 A: Yeah, I don't actually know. I can't 14 read anymore than you can. 15 Q: Okay. 16 A: Jonathan Batty was from 17 Intergovernmental Affairs. 18 Q: And so do you have any recollection 19 of a discussion with Mr. Batty? 20 A: Oh. No, just that he was coming. I 21 think this Ron would have been -- maybe there was another 22 phone call from Ron and that it's possible that I then 23 moved to actually write it. I could tell that he was 24 going to tell me more than I would want to put on the 25 phone log and so I just moved to a piece of paper.
1691 Q: And the piece of paper at Tab 15, do 2 you have any recollection of the telephone call with Ron 3 Fox on August the 2nd, 1995 that's set out in Exhibit P- 4 505 at Tab 15? 5 A: I -- I don't have an independent 6 recollection. Because I had so many phone calls with Ron 7 it's impossible to remember that on August 2nd I had this 8 specific phone call with Ron. 9 Q: That's -- that's fair enough. The 10 point that -- and it's a fair point that was being made 11 was so that we can distinguish between what you do 12 remember -- 13 A: Hmm hmm. 14 Q: -- and what you remember -- what 15 you're telling us simply based on -- on your notes. 16 A: Right. 17 Q: And it's my understanding that this 18 telephone conversation took place before the 19 Interministerial Meeting on the afternoon of August the 20 2nd? 21 A: Yes. 22 Q: Is that your recollection? 23 A: I -- I believe that's the case and 24 that's just from looking at what it says right in the 25 note itself where Ron says that he doesn't want them.
1701 And -- and then there's a little note, the OPP, to be on 2 the conference call and that would be referring to at the 3 Interministerial Committee Meeting. 4 So, that suggests that this occurred 5 before the Committee Meeting. 6 Q: So, perhaps with the use of your 7 notes at 8 -- that's been marked Exhibit P-505, you could tell us 9 about the call as set out in the note? 10 A: Yes. Well Ron Fox was calling me 11 with some additional information he had from talking to 12 Tony Parker who was with the OPP. 13 Q: Parkin? 14 A: Parker or Parkin, yeah. And 15 indicating that they had met with Glenn George was the 16 spokesperson for the occupiers who call themselves the 17 Stoney Pointers, that the road where the fatal accident 18 had occurred had been blocked off by MNR. It was 19 unblocked by First Nation people and will be blocked off 20 again. 21 And I think this would be Ron saying that 22 he doesn't want them, i.e. the OPP to be on the 23 conference call. And then he mentions that there was a 24 meeting of the Band last night. And the next point is 25 they now allege that there is a burial ground in the
1711 Park. 2 Also the Kettle Point which we know later 3 -- from later notes is a sacred site. And then the Band 4 -- there was an open meeting on the Reserve. The 5 invitation was extended to the occupiers but they didn't 6 come. The Band said we've entered into negotiations with 7 the Federal Government. 8 The occupiers should not be there. They 9 want to talk to them. I assume that's the occupiers 10 regarding their concerns. 11 A BCR, which is a Band Council Resolution 12 was passed, to get everyone off the base. So the 13 resolution would be something to the effect that the 14 people, that the Band felt that the people on the Army 15 Base should leave. 16 And then it says, Ovide Mercredi has 17 offered to mediate this. He's come out with a middle of 18 the road view. Bob Antone who is an Oneida has been 19 involved. 20 Q: And did you know on August the 2nd, 21 1995 who Bob Antone was? 22 A: I maybe had heard his name in passing. 23 I didn't really know who he was. 24 Q: And the numb -- the note at the 25 bottom, P3499, Julie Jai, that's a production number?
1721 That was put on subsequent to your making the note? 2 A: Right. I didn't put that there. 3 Q: What, if anything, did you do with 4 respect to the statement, "They now allege there is a 5 burial ground in the Park" at this point? 6 A: I didn't do anything. We were about 7 to go into the meeting where we would be discussing all 8 of the issues. 9 Q: Okay. And then at Tab 14, it's 10 Inquiry Document 1011695, it's been marked as Exhibit P- 11 507. These are your notes? 12 A: Yes, they are. 13 Q: And they're your notes of the 14 meeting? 15 A: Yes. 16 Q: And the -- can you tell us what your 17 practice was as the chair with respect to making notes? 18 A: Well, I guess I at that time in 19 general was a very voluminous note taker. So, I always 20 took notes of everything including telephone calls as -- 21 as obvious to the Commission. I would have appointed 22 Nathalie to be the official note taker for the meeting. 23 But, I still like to have my own notes 24 because I find that that's what helps me remember exactly 25 what happens. Everyone has their own perceptions of
1731 things and it's sort of -- notes are usually only 2 meaningful to the note writer and they -- they help you. 3 I -- I've had a lot of experience with 4 minutes in general because my job prior to coming to the 5 Native Affairs Secretariat was at cabinet office where 6 among other things, I was the cabinet secretary for the 7 Cabinet Committee on Justice and sometimes for Policy and 8 Priorities Committee of Cabinet. 9 So, the importance of accurate notes of 10 records of decision and -- and notes was something that I 11 was very sensitive to. 12 Q: And you had had involvement in 13 drafting the official minutes of meetings? 14 A: Well, yes, I used to do the official 15 minutes for Cabinet Committee meetings that -- that 16 really formed the record of government decisions. 17 Q: Okay. 18 A: That would be the authority for doing 19 some, you know, taking a major change in policy or 20 drafting legislation or, you know, any major thing that 21 the Government would do. 22 Q: And the -- at -- do you an 23 independent recollection of the August the 2nd meeting? 24 A: Only the vaguest recollection of it. 25 Q: And when you say, "only the vaguest
1741 recollection," can you tell us what that recollection is 2 and then we will refer you to your notes. 3 And I can -- you can appreciate that only 4 lawyers ask these kinds of questions but -- 5 A: Right. 6 Q: -- ten (10) years later. 7 A: Right. Well, I -- I believe that it 8 was the first meeting that I called because of a real 9 anticipated emergency as the Chair of the Emergencies 10 Committee Meeting. 11 So, for that reason I mean I just kind of 12 -- the -- the novelty of doing it, it would have kind of 13 stuck in my mind. And because it wasn't something that I 14 was used to doing or had sort of, you know, familiarity 15 with in terms of, you know, having done this all the time 16 or kind of having a -- and then the way the committee 17 operated, although there are those operating guidelines 18 it does leave a lot of discretion to the Chair, you know, 19 as to even when to call the meeting and who -- who to 20 invite to the meeting. 21 So, there were -- I think that I was sort 22 of thinking about those issues a little bit because it 23 was relatively new for me to be calling such a meeting. 24 Q: Okay. And the -- can you tell us 25 firstly -- if I could take you to Tab 16 there's a copy
1751 of Inquiry Document 1012231 and behind it there should be 2 a copy of 1011682. 3 Do you have both those copies? 4 A: Yes. 5 Q: Commissioner, 1012231 was marked as 6 Exhibit P-506 and I would ask that we replace 1012231 7 with 1011682 because the first document was not redacted. 8 There are a number of telephone -- home telephone 9 numbers. And the second document 1011682 has been 10 redacted and we would simply for the record like to 11 substitute 1011682 for 1012231 or alternatively -- 12 COMMISSIONER SIDNEY LINDEN: Other than 13 that the documents are the same? 14 MR. DERRY MILLAR: They're the same. 15 Alternatively, we could simply white out the home 16 telephone numbers on Exhibit P-506. But for the benefit 17 of My Friends I think that it would be better to 18 substitute them. 19 COMMISSIONER SIDNEY LINDEN: I think 20 that's a better alternative. So, 1011682 -- 21 MR. DERRY MILLAR: Will replace -- 22 COMMISSIONER SIDNEY LINDEN: -- now 23 becomes Exhibit P-506? 24 MR. DERRY MILLAR: It becomes Exhibit P- 25 506.
1761 2 CONTINUED BY MR. DERRY MILLAR: 3 Q: And the Exhibit P-506 are the minutes 4 of the meeting, notes of the meeting on August the 2nd, 5 1995? 6 A: Correct. 7 Q: And did you or Nathalie Nepton 8 prepare these meeting notes? 9 A: Nathalie would have prepared them and 10 then I would have reviewed them before they went out. 11 So, I probably would have made some changes to them and 12 then they would have gone out. 13 Q: And the -- in the normal course 14 because Exhibit P-506 is a -- actually the fax shows that 15 it was sent on August the 4th, 1995. 16 Do you see that at the top? 17 A: Yes, I do. 18 Q: And the -- does that accord with your 19 recollection that you sent these notes out to the people 20 who were at the meeting on August the 4th. Was -- 21 A: I don't remember when I sent them but 22 it normally would be reasonably soon after the meeting. 23 Q: And can you tell us, using your 24 notes, Exhibit P-507 at Exhibit -- at Tab 14, to assist 25 you, what happened at the meeting on August the 2nd?
1771 Firstly, do you recall, were the 2 individuals at the meeting introduced? 3 A: Yes, I'm sure that we would have -- 4 everybody around the table would have been asked to 5 introduce themselves. 6 Q: And -- 7 A: And indicate where they were from or 8 who they were representing at the meeting. 9 Q: And do you recall how Ron Fox 10 introduced himself? 11 A: I can't remember what he said other 12 than -- I mean, I think he would have said that he was 13 the liaison office -- the native liaison officer. 14 Q: But, can you remember? It's 15 important that you tell us -- 16 A: Yeah, I can't remember what he said. 17 Q: Okay. 18 A: I do note in the minutes, it says 19 that -- next to him it just says SGC which is Solicitor 20 General. 21 Q: And the -- I note on Exhibit P-506 22 that the cover sheet from your office says "Ron Fox, 23 OPP". 24 A: Yes. 25 Q: And did you -- and in the meeting
1781 notes, is "Ron Fox, SGC". 2 A: Right. Well, I would have reviewed 3 the meeting notes in detail. The cover sheet, I wouldn't 4 have reviewed; my secretary would have prepared that and 5 I wouldn't have checked it. 6 Q: You wouldn't have -- 7 A: I assumed that -- 8 Q: You wouldn't have -- 9 A: -- she would -- had the fax numbers 10 and names of the people correctly. 11 Q: So, can you tell us a little bit, or 12 tell us with the use of your notes or the minutes, 13 Exhibits P-506 or P-507 what happened at the meeting? 14 A: Yes. Well, we circulated some 15 background material about the Kettle Point and the Stony 16 Point First Nation and I see that in the actual minutes 17 of that, that Nathalie has sort of excerpted that in 18 quite a bit of detail about what happened. 19 I don't believe that we went through that 20 verbally in that much detail in the meeting, but we did 21 circulate a note that had all of that information in it 22 and, sort of, talked about it. And then we did -- we had 23 an update from the Solicitor General which would have 24 been from Ron Fox. 25 And he talked about the fact that on July
1791 the 29th, some members from the Stoney Point group drove 2 a bus through the Military Base's gate and basically 3 started the occupation. 4 Q: Okay. And I note that on your 5 handwritten notes at Tab 14, Exhibit P-507, there's -- it 6 says, "emergency committee meeting fifteen (15)..." 7 A: Fifteen hundred (1500) 8 Q: "... hundred - two thousand (2,000) 9 people can be in Park." 10 A: Right. 11 Q: "Peter Sturdy has been dealing with 12 John Carson - OPP". 13 A: Right. 14 Q: Then: "Ron Fox background re. 15 takeover of Military Base". 16 A: Right. 17 Q: And July 29th, 1995 and that's the 18 material that appears at page 3 of Exhibit P-506? 19 A: Yes, that's on page 3 of the formal 20 minutes. 21 Q: Of the meeting notes? 22 A: Yes. 23 Q: And...? 24 A: And that's -- and Ron Fox also refers 25 to the Kettle Point as a sacred site in his -- in his
1801 sort of overview of the background. 2 Q: Yes. And then it appears Ron Fox 3 reported last night on his conversation with Tom 4 Bressette or -- or what happened with respect to -- 5 A: Yes. 6 Q: -- Chief Tom Bressette. 7 A: Hmm hmm. So, and he's basically 8 repeating stuff that he had told me in our conversation 9 that I had referred to earlier this afternoon that -- 10 about the community meeting that the Band Chief had had 11 and had tried to have the Stoney Pointers come to, but 12 they -- none of them came. And then the Band Council 13 resolution. 14 Q: And then there's a note 2 district 15 emergency response teams stationed nearby plus the TRU 16 team? 17 A: Yes, so that would also have been 18 from Ron. 19 Q: And Forest/Grand Bend OPP 20 detachments? 21 A: Yes. 22 Q: Then -- 23 A: And -- and also the fact that there 24 would be people -- there were people monitoring the Park. 25 Q: And was that from Ron?
1811 A: Yes, all of this is from Ron and he 2 also said that there were about fifty (50) to seventy- 3 five (75) people currently occupying Camp Ipperwash and 4 that no weapons were being overtly shown. 5 Q: Okay. And then there's a note, Peter 6 S. What does that refer to? 7 A: So that's Peter Sturdy from MNR. So 8 he's giving his update on things that were -- that they 9 know about from the MNR perspective. So again, there's 10 this focus on this water issue. 11 So, he talks about a meeting between Park 12 staff and the engineers from National Defence and the 13 possible interim measure of installing a system that 14 would go directly from the pumphouse to the Park that 15 could be done -- it says, could not be done until next 16 week. And that -- currently that the Military staff are 17 going to the pumphouse to manually pump the water. 18 So he goes on in some detail about the 19 water. 20 Q: And then at the bottom of page -- 21 about halfway down page 2 there's another entry, Peter 22 Sturdy. 23 A: Right. 24 Q: Does that again refer to Peter Sturdy 25 and what he said?
1821 A: Yes. Yes. So then he -- he says 2 that dissident group members have been saying things 3 like, Soon you'll be paying us for the Park or, You can 4 tell your friends at the Park that they're next. In 5 other words that next, in terms of the Park, is going to 6 be occupied after -- next, after the Army Base. 7 Q: And then there's a note to army 8 commander? 9 A: Yeah. In other words that somebody 10 was overheard saying to the army -- somebody at the Army 11 Base, some person from National Defence that, You can 12 tell your friends at the Park that they're next meaning 13 to be occupied; that the Park will be occupied next. 14 Q: And then? 15 A: Then it says, Glenn George and Rose 16 Manning spoke with -- and this should say John Carson. 17 My notes say Dave Carson but that's because I have a 18 lawyer in my branch named Dave Carson but it was really 19 John Carson. 20 So they spoke with Dave Carson -- 21 Q: You meant John Carson? 22 A: Sorry. 23 "John, I'm doing it now." 24 And then just some further updates that 25 there is a road separating the Park from the Military
1831 Base. The gate has been locked. MNR asked if they could 2 have keys in case there was an emergency. They told John 3 Carson that they're interested in taking over Matheson 4 Drive and in taking over the Park. 5 So, "they," would be Glenn George and Rose 6 Manning. 7 Q: Rose Manning or -- yes. 8 A: And Glenn George. 9 Q: Okay. Thank you. Perhaps, 10 Commissioner, it's an hour. We could take a short break? 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 We'll take a short break now. 13 THE REGISTRAR: This Inquiry will recess. 14 15 --- Upon recessing at 2:31 p.m. 16 --- Upon resuming at 2:42 p.m. 17 18 THE REGISTRAR: This Inquiry is now 19 resumed. Please be seated. 20 21 CONTINUED BY MR. DERRY MILLAR: 22 Q: If I could take you to page -- the 23 top of page 3, Peter Allen -- now, Peter Allen attended 24 the meeting by telephone. Is that...or was it... 25 A: No. I believe he was there in
1841 person. 2 Q: It was Sturdy -- 3 A: And it was Peter Sturdy who was on 4 the phone. 5 Q: Okay. Thank you. 6 A: They were both with MNR. 7 Q: And Peter Allen was... 8 A: I believe he was the Deputy 9 Minister's Executive Assistant. 10 Q: And the Deputy Minister at the time 11 was Ron Vrancourt? 12 A: Ron Vrancourt. 13 Q: And at the top of page 3 he reported 14 on a confrontation on the beach between someone from the 15 Stoney Point Group and an individual? 16 A: Yes. It's -- do you want me to read 17 what it says? 18 Q: Sure. 19 A: It says: 20 "A couple of weeks ago there was a 21 confrontation on the beach between the 22 Stoney Point group and an individual 23 who was dragged with his vehicle and 24 run over?" 25 I've put a question mark there.
1851 Q: And why did you put a question mark? 2 Because -- 3 A: Well because it seemed hard to 4 believe that this had actually happened. That somebody 5 had been -- something as serious as somebody being run 6 over had happened without me finding out about it or the 7 OPP or Ron Fox finding out about it and informing me. 8 Q: And Ron Fox told you about someone 9 being run over by a car on the beach in July? 10 A: Well there was an accident on the 11 road. 12 Q: But on the beach? Did -- had Ron Fox 13 told you? You were questioning with your question mark 14 whether -- 15 A: Whether this really happened. 16 Q: "Happened." And you hadn't heard 17 anything about this from Ron Fox? 18 A: Right. Right. And it just seemed 19 odd that MNR would -- that something so serious could 20 happen without the police or myself being advised of it 21 and it just sort of coming up casually in this meeting. 22 Q: Okay. Then Peter Sturdy came in 23 again? 24 A: Yes. Just reiterating that they need 25 to feel that the campers in the Park are not at risk.
1861 And what obligations does the Government have to those 2 campers. 3 And then Peter Sturdy who was out in the 4 region says, "People coming into the -- well this 5 actually should say "Park" it says "Camp." 6 "People coming into the Park are warned 7 and advised of the local sensitivities. 8 In other words, of the occupation of 9 the Army Base and not to go on the base 10 or on the beachfront property in front 11 of the base." 12 Q: Yes? 13 A: And that: 14 "Security staff at the Camp are trying 15 to ensure that people do not go into 16 the DND property." 17 Q: And the Camp there again should be 18 Park? 19 A: I'm not sure. 20 Q: Okay. 21 A: Because it could be that these are 22 security staff at the perimeter of the Army Base itself. 23 Like this -- when you read this it's just -- that there's 24 security staff somewhere who are trying to ensure that 25 people from the Park don't go onto the DND property which
1871 is the Camp. 2 Q: Yes. 3 A: And then the incident a few weeks ago 4 and maybe he's referring to the one that Peter Allen 5 talked about with this person being dragged on the beach. 6 Q: Yes. 7 A: That that incident was caused by a 8 camper from Michigan who insisted in going onto the Army 9 Base. And that there also signs posted. 10 And then Peter Allen says: 11 "Well we can warn them but the Crown is 12 still liable if something happens. 13 Some campers are confrontationalist. 14 There is a fence on the beach. 15 How real is the risk? We need a risk 16 assessment. Is the risk manageable? 17 Shall we close the Park?" 18 So you sense just even from the -- those 19 comments that he's a little concerned. He's quite 20 concerned. 21 Q: So these -- the comments about the 22 risk, the risk assessment were from Peter Allen? 23 A: Yes. 24 Q: Okay. 25 A: And then Ron, I believe, is trying to
1881 reassure him. 2 Q: And that's Ron -- refers to Ron Fox. 3 A: Ron Fox. So he says: 4 "There are risks in many parks. For 5 example, falling off cliffs, bears, 6 fights with other campers, motorcycle 7 gangs at parks. 8 It seems illogical that they would 9 invade the Park. More likely that they 10 would block the road." 11 Q: And that was Ron Fox -- 12 A: Yeah that was Ron Fox. 13 Q: -- comment at the time? 14 A: Hmm hmm. 15 Q: Yes? 16 A: Then Ron Baldwin who is also from 17 MNR -- 18 Q: And he was on the telephone. 19 A: -- he was on the phone. And he said 20 that: 21 "They lived through this two (2) years 22 ago all summer with the sort of risk or 23 possibility that the Park would be 24 occupied. 25 And that frequent communication is
1891 important as the situation changes 2 quickly. There is an evacuation plan. 3 Barricades have been put in place to 4 prevent campers from going onto the 5 Army Base. 6 Chief Bressette and the Band are 7 supportive of government [I think is 8 what that means] and view the 9 occupation as illegal. If we close the 10 Park Chief Bressette would be upset. 11 It would be recognized in the validity 12 of the dissident group." 13 And then he says again: 14 "This situation also existed last 15 summer." 16 So, in other words, there was this risk 17 last summer and the summer before. 18 Q: Okay. 19 A: And then Peter Sturdy says he feels: 20 "That there is greater risk this year. 21 The fact that they locked up Matheson 22 Drive and that they made comments last 23 night. And then on Matheson Drive 24 feels that they could use similar 25 tactic as for the Army Base to take
1901 over the Park. Just have a large group 2 of people enter the Park and what would 3 we do then?" 4 And then Ron Fox says that: 5 "Two years ago the dissident group did 6 occupy the Park in a ceremonial way and 7 eventually just left and that they did 8 not evacuate the Park at that time. 9 Their activities were non-threatening, 10 that he would be more concerned if the 11 group was being supported by the 12 Mohawks of Akwesasne." 13 And Tom Bressette, that would be the Chief 14 Bressette, chief of the First Nation, 15 "Has been trying to discourage other 16 groups from supporting the dissidents." 17 Then Jonathan Batty from Intergovernmental 18 Affairs says: 19 "Is there a risk of an altercation 20 between the dissidents and the band?" 21 Ron Fox says: 22 "Yes, it is possible. Or they [and I 23 think he means the First Nation] could 24 seek an injunction." 25 So that, for -- rather than there being
1911 some sort of physical altercation, the First Nation, 2 which has already expressed its disapproval of the 3 occupation through a Band council resolution, maybe it 4 could take some sort of legal action, although it would 5 be --it's unclear what the legal basis for that would be. 6 I -- Andrew and that must be Andrew 7 McDonald who is -- he was the Aboriginal issues co- 8 ordinator at Attorney General, but he used to work for 9 MNR. He was on secondment from MNR and he did go back to 10 MNR, so he's very familiar with MNR issues. 11 Q: And he was -- is Andrew McDonald a 12 lawyer, too? 13 A: Yes, he was also a lawyer. 14 Q: Is everybody a lawyer involved? 15 A: No, not everybody. So, but Andrew 16 talks about that Matheson Drive provides access between 17 the edge of the Park and the base down to Lake Huron and 18 to the maintenance area of the Park. 19 "The keys are now with MNR at Ipperwash 20 Park. MNR, in the past, has locked 21 this gate at night. This was the road 22 that the accident occurred on, so now 23 they've locked the gate." 24 That's the accident with the fatalities, 25 the car -- the single car accident. Then Peter Allen
1921 said: 2 "Is there corporate agreement, like a 3 consensus within government, that the 4 Solicitor General should take any 5 necessary actions required to stop the 6 dissident group." 7 And then the -- my comment is that there's 8 a support for an appropriate response depending on the 9 situation. 10 Q: Now, how do you know that's your 11 comment and not Peter Allen's comment? 12 A: Because I know that Peter Allen would 13 not -- wouldn't have said that, that -- 14 Q: Right. 15 A: -- this was a more moderate view. 16 This was my attempt to try to show support for his 17 obvious concern, but also try to bring the group to a 18 consensus around something that I thought was reasonable 19 and not overreacting. 20 Q: Okay. 21 A: And so then I sort of summarized what 22 I think is our agreement, that: 23 "We will keep in close communication; 24 that we will trust John Carson, the OPP 25 person on site who knows the situation
1931 well and has a good handle on the 2 situation. 3 The OPP is in place and can take 4 appropriate action. If an occupation 5 occurs, our committee will meet again. 6 We all agree that safety will be the 7 foremost, that the risk will be 8 assessed by those on the ground, which 9 is both the OPP and MNR, and they can 10 take whatever action they feel is 11 necessary. And again, our committee 12 will meet again if there is an 13 incident." 14 In other words, if the Park is occupied. 15 Q: And the -- Exhibit P-506 has -- 16 covers most of the actual meeting notes. Excuse me, most 17 of those items, but are expanded upon and some additional 18 items under next step, for example? 19 A: Yes. Yes, it's more detailed, 20 because I -- obviously, I couldn't keep notes of 21 everything that was happening while also talking and 22 charing the meeting. So this would be based on, you 23 know, some -- Nathalie's notes and I think that there are 24 a number of other people from ONAS who were at the 25 meeting, so we would have -- and would also have been
1941 based on my recollection of the event, because the 2 meeting had just happened. 3 Q: So, do you recall that -- that Ms. 4 Nepton made a draft set of notes and you reviewed them 5 and revised them and sent them out? Do you have a 6 recollection of doing that? 7 A: In this particular case, I can only 8 say that I know that that's what would have happened. 9 Q: Okay. But you don't have any 10 specific -- 11 A: But I can't say that I have a direct 12 recollection of it. 13 Q: And so Exhibit P-506 Tab 16, the 14 meeting notes were sent out to everyone and what happened 15 next that you can recall? 16 A: Well, I think we would -- we were 17 just sort of monitoring the situation and that nothing 18 actually happened in the next couple of weeks. 19 Q: Okay. And were -- did anyone raise 20 with you or give you some advice as to what had happened 21 in 1993 with respect to the Park? 22 There's a -- a note in your notes about -- 23 from Ron Fox talking about two (2) years ago dealing with 24 the Park in a ceremonial way. 25 Did anyone explain to you what actually
1951 happened in 1993 that you can recall? 2 A: I think Ron did tell me that the -- 3 some people from the same group went and occupied the -- 4 the Park and had some sort of ceremony at the sacred site 5 and then just left, like of their own volition. 6 And I -- I remember wondering if there 7 were any -- if we had, like, an Emergency Committee 8 meeting about it or anything and I don't believe that 9 there was anything. I think that I would have looked 10 back to see if there something, like, in the file about 11 that incident and that there really wasn't anything. 12 So, I just was basing it on what Ron told 13 me had happened. 14 Q: And did anyone tell you that a letter 15 had been written back in 1993 with respect to the Park 16 and the ownership of the Park to Maynard T. George, the 17 individual who led the group in 1993? 18 A: No, no one told me that. 19 Q: And I note that there was no 20 reference in the meeting or at least in your notes to the 21 burial ground? 22 A: Right. 23 Q: And was there any discussion about 24 the burial ground? 25 A: I can't remember if there was or not
1961 but I would have expected Ron to raise it if -- if anyone 2 because he was the one that had first given me that 3 information about it. So I don't know if it's in anyone 4 else's notes about it. It wasn't in mine and it wasn't 5 in the final minutes. 6 So, I don't know if he just raised it in 7 passing and no on followed up or if he forgot to mention 8 it. 9 Q: And did you do anything with respect 10 to the potential burial ground in the Park after August 11 the 2nd? 12 A: No, I did not. 13 Q: Excuse me for one (1) moment, 14 Commissioner. 15 16 (BRIEF PAUSE) 17 18 Q: I'd like you to go to Inquiry 19 Document 1003507 which is a separate piece of paper that 20 should be on your right-hand side, Ms. Jai. 21 A: Okay. This is dated August 3rd. 22 Q: August 3rd. And is this a note that 23 you received? 24 A: Yes. 25 Q: And that's from --
1971 A: It's from Peter Sturdy from MNR in 2 the region. 3 Q: And that's referring to -- reporting 4 on what was being handed out to the campers? 5 A: Right. 6 Q: And then there's a note as well, 7 August 4, 1995, Peter Sturdy. What's that refer to? 8 A: So that would be a tele -- notes of a 9 telephone call I had with Peter Sturdy. 10 Q: Okay. Then what -- do you recall 11 anything about the telephone call? 12 A: No. Other than what's on my notes 13 here. 14 Q: And the note appears to say: 15 "The cultural site is the Stoney Point. 16 A collection point for arrowheads et 17 cetera." 18 A: Right. And -- 19 Q: And that's with respect to the sacred 20 site? 21 A: Right. 22 Q: And then: 23 "Rumours of a burial site in Park but 24 not confirmed." 25 And then the next line:
1981 "There is a burial site on the Military 2 Base for sure." 3 A: Yes. 4 Q: And the -- at the meeting of August 5 the 2nd was there any discussion about the ownership of 6 the Park, the title to the Park, that you can recall? 7 A: Yes. We talked about the ownership 8 and the whole sort of title chain of the Park and the 9 fact that it had been sold to private landowners who -- 10 private landowner who then sold it to the Province. 11 So from our perspective, we felt that our 12 title to the Park was good and we had also checked, you 13 know, various -- to see if there were any outstanding 14 land claims. 15 Q: And there was a note, Exhibit P-506, 16 Inquiry Document 1011682 at page 2. 17 A: Sorry, what tab are you on? 18 Q: I'm at Tab 16. 19 A: Okay. And what page of? 20 Q: Page 2 of the actual meeting notes. 21 A: Hmm hmm. 22 Q: And there's a reference at the 23 bottom. 24 "Kettle and Stoney Point First Nation 25 has filed two (2) land claims and has a
1991 lawsuit against the Federal Government, 2 the Township of Bosanquet and over two 3 hundred (200) private landowners but do 4 not appear to have a claim outstanding 5 for the land which Ipperwash Provincial 6 Park is on." 7 A: Right. And then it says -- 8 Q: "Provincial Park." 9 A: "The Provincial Park was purchased 10 from private landowners in 1938." 11 So we had reviewed that -- that sort of 12 title issue. Just back to that note from Peter Sturdy on 13 August 4th, that was the one that -- I don't have -- that 14 was Document Number 1003507. 15 Q: Yes. 16 A: I also have a note in my phone log 17 that he initially left a message for me and that I did 18 then actually talk to him. Because -- and then it says 19 that the message was: 20 "Kettle Point" 21 And then it says: 22 "Stony Point is the cultural site. No 23 Native groups have come in this year to 24 occupy that site or to do any 25 ceremonies at that site."
2001 Q: And when you're referring -- that 2 note is under August the 4th and Exhibit P-644? 3 A: Yes, exactly. 4 Q: And so he left you the note that 5 appears that you've just read out and then you called him 6 back? 7 A: Yes. 8 Q: And made the note on 1003507? 9 A: Yes. 10 Q: Perhaps we can mark that page the 11 next exhibit. 12 THE REGISTRAR: P-647, Your Honour. 13 14 --- EXHIBIT NO. P-647: Document 1003507. Note from 15 Peter Sturdy, MNR to Julie 16 Jai, Aug 03/'95 and reference 17 to phone call, Aug 04/'95. 18 19 CONTINUED BY MR. DERRY MILLAR: 20 Q: Then -- 21 A: Just while I'm -- because I'm looking 22 myself at the phone log, that there were a number of 23 other potential emergencies. Like just looking at the 24 phone calls that there were things that we thought might 25 be happening. Like one was at Cape Croaker.
2011 There was also concern about Temagami. 2 So, you know, just that there are a couple of things kind 3 of bubbling besides the Ipperwash. 4 Q: And one can see that by simply 5 looking at the references beside the various names -- 6 A: Yes. 7 Q: -- throughout? 8 A: Hmm hmm. 9 10 (BRIEF PAUSE) 11 12 Q: And then you told us earlier about 13 your -- the briefing that's referred to in Exhibit P-642 14 at Tab 20 and -- 15 A: Yes. 16 Q: Shortly after that briefing I 17 understand you went away for a vacation in 1995, in 18 August? 19 A: Well, yeah, I was on vacation -- 20 well, my -- from August 21st until Labour Day. 21 Q: Okay. And at this point in time, 22 after your August 2nd meeting, what was the committee's 23 view with respect to the potential for a take over of the 24 Ipperwash Provincial Park? 25 A: I think that -- well, it's hard to
2021 say what the overall committee's view was but the -- I 2 mean, because people varied in terms of their views on 3 the committee. 4 I think MNR was really concerned and as 5 the landowner you can see why they would be concerned, 6 and they're concerned about risks to the public. 7 I think Ron Fox and I were less concerned, 8 especially because we knew that there had been the 9 ceremonial occupations of the Park in the two (2) 10 previous years. And I know that Ron told me. And I 11 don't know if this is on any note or anything that we 12 have here. 13 But that there was, you know, in one of 14 those two (2) previous years an actual occupation, sort 15 of, of the Park right after Labour Day when the Park 16 closes, because the Park normally would close for the 17 season on Labour Day and so that after Labour Day some 18 people went into the Park. 19 So, that that had happened before without 20 any major incident. So, this is something that Ron and I 21 both knew so I think our view was that there could well 22 be an occupation of the Park, but that we felt that the 23 risk to the public was low because the park would be 24 closed at that point. 25 Q: So, you were -- you were
2031 contemplating a occupation after the closing of the Park? 2 A: Yes. 3 Q: If there was an occupation? 4 A: Right. 5 Q: And... 6 7 (BRIEF PAUSE) 8 9 Q: And the -- whose decision was it not 10 to do anything with respect to the allegation of a burial 11 ground being in the park itself? 12 A: I don't think there was a conscious 13 decision to not do anything about it. I think it was 14 just one of many things that we had heard rumours about 15 and it -- you know, that it was decided at that point we 16 didn't even know if the Park was going to be occupied. 17 We didn't know what the alleged basis for 18 the claim of the Park was and that the decision was just 19 to not really do anything, just to monitor the situation 20 until the Park was actually occupied. 21 As I said, it didn't even -- that -- this 22 seemed like a fairly low risk situation to us, even if 23 the Park was occupied and there were several other 24 emergencies brewing at the time that seemed potentially 25 more serious.
2041 And we did not, as a matter of practice, 2 do research into sort of every possible claim that a 3 First Nation group could be asserting. 4 Even after the Park was occupied and we 5 had that meeting of the Interministerial Committee on 6 September 5th, and at that time it was clear that they 7 were saying that the occupation -- that one (1) of the 8 reasons for the occupation was that there was a burial 9 ground there. 10 I did ask Dave Carson to do some research 11 at that point in time into, you know, what our 12 obligations were around Aboriginal burial grounds but 13 given that the role of the committee was not to deal with 14 substantive -- resolution of substantive issues it was 15 only to advise on process that it wouldn't really have 16 been the committee's role to research, you know, is there 17 a burial ground or not. 18 Or, you know for example, they could also 19 have been saying they had a land claim or that they had 20 unextinguished Aboriginal -- Aboriginal title or that it 21 was a -- a treaty that had not been properly interpreted. 22 Any of those things would be substantive 23 issues that would be beyond the scope of the committee to 24 really research and rule on one (1) way or the other. 25 All we could do as a committee would be to try to find
2051 out what the concerns were and then recommend a forum or 2 a process for actually having a substantive discussion of 3 those concerns. 4 Q: Thank you. That explains -- helps 5 explain why nothing was done with respect to the burial 6 ground at this time. Because when the issue arose it 7 seemed to me that it perhaps would have been something to 8 have done was to determine whether or not there was any 9 information with respect to a burial ground. 10 But in your -- the Committee's -- that 11 wasn't part of the Committee's mandate at the time? 12 A: That wasn't part of the Committee's 13 mandate and I guess it -- another reason for not doing it 14 is that it would not really have made any difference. I 15 mean Ron and I also -- I remember a phone call with Ron 16 in which he talked about this potential burial ground and 17 I think I said to him, Well, do you think there is a 18 burial ground there and he said, Well, these people have 19 been living in this area for centuries, what do you 20 think? 21 And so his comment to me was, not there 22 were, probably human remains as there were throughout all 23 of the areas of southern Ontario where there had been 24 intensive Aboriginal occupation for many, many centuries. 25 So, I think our assumption was that
2061 probably there was some sort of burial ground there but 2 whether there -- if there was, that still would not give 3 the First Nation group the right to occupy the Park. 4 So, in -- in some ways it wasn't -- it 5 wouldn't have meant that the occupation was legal so it 6 wouldn't have changed things. And it certainly wouldn't 7 have changed things if we had -- if we'd gone to our 8 ministers briefing them on the situation and said, Well, 9 they've taken over Ipperwash Provincial Park but there's 10 a burial ground there or they say that there's a burial 11 ground and -- and we think that that's true, it would not 12 have changed the situation. 13 It would not have changed the -- the 14 direction that we had gotten from -- that we -- that we 15 got from our political masters. 16 Q: But, you didn't make that and how can 17 you make that statement that because that -- that it 18 wouldn't have changed anything because of your 19 recommendation or what the role of the Committee was? 20 A: I guess it wouldn't have changed 21 anything because even -- under any government that -- 22 like, the fact that there is a burial ground there would 23 not have created a legal right for occupying the Park. 24 It would have created, perhaps, an explanation or an 25 understanding of why the people -- people might have
2071 occupied the Park. 2 But it -- it would not have been a factor 3 in, sort of, the Government deciding to hand over the 4 Park or say, It's okay, you know, we're not going to do 5 anything, just, you know, keep occupying the Park. 6 The -- the Government would still have 7 wanted to go in, had a negotiator, just sort of say: 8 What are the concerns that you have? What 9 are the reasons that you have to -- for occupying the 10 Park? Are you -- is it that you're concerned that 11 there's a burial ground and that it's not being 12 adequately protected? If so, how would you like us to 13 protect it? Can we talk about what steps should be taken 14 so that we can go forward and make sure that these sacred 15 remains are protected? 16 So, it was, I guess, all the -- anything 17 that we could have done would have only been to appoint 18 somebody to talk about those issues not to actually 19 resolve the substantive issues. 20 Q: I -- I understand. And in your view, 21 any of the Governments that you served under would have 22 taken the same view? 23 A: Yes. 24 Q: And at P-506, again it's Tab 16, the 25 minute -- the meeting notes. The meeting notes have
2081 attached to them a -- and we've substituted in -- by 2 substituting 1011682 -- 3 A: Hmm hmm. 4 Q: -- for P -- the other document we've 5 taken out the telephone numbers, et cetera. But, it's 6 simply -- it lists the people who were on the committee 7 and who attended either in person or through their 8 designate on August the 2nd; is that correct? 9 A: Yes. 10 Q: And you collected that for contact 11 purposes in the event that the committee had to meet 12 again? 13 A: Yes. 14 Q: Now, at Tab 21 there's Inquiry 15 Document 1004263 and it's a note -- appears to be a note 16 involving the Chippewa of Kettle and Stony Point 17 litigation involving the Federal Government? 18 A: Yes. 19 Q: And did -- were you familiar with 20 this note, back in 1995? 21 A: I'm sure someone would have brought 22 it to my attention then. I think this would have come 23 from a conversation that one of the lawyers in the legal 24 branch would have had with Charlotte Bell. 25 Q: And --
2091 A: It was not me. 2 Q: It wasn't you? 3 A: It was not me, but somebody had that 4 conversation and made this note. 5 Q: And did you see the note back in 6 1995? 7 A: Yes, I believe so. 8 Q: And the note reports on the 9 litigation that's identified on the second page of 10 1004263? 11 A: Yes. 12 Q: And the reasons for judgment of 13 Justice Killeen are noted as released August 18, 1995? 14 A: Right. 15 Q: And the note simply indicates what 16 Charlotte Bell at the Department of Justice advised your 17 ONAS as to what had happened? 18 A: Yes. 19 Q: And being that the claim with respect 20 to the individual property owners was dismissed, the 21 balance of the action involving the breach of the Federal 22 Government of this fiduciary duty would continue and 23 there's a note: 24 "There are several lawsuits involving 25 Camp Ipperwash. The main action is a
2101 claim by the First Nation for the 2 return of the land expropriated by the 3 Federal Government in 1942 and the 4 beach front. It does not involve the 5 land on which Ipperwash Provincial Park 6 is located." 7 And that's in capitals. 8 "There are another three (3) actions; 9 two (2) were launched by dissident 10 factions and one (1) is an application 11 for an injunction." 12 And then there's a note about 13 negotiations. 14 And was it brought to your attention that 15 there was no claim -- none of these lawsuits involved the 16 Park? 17 A: Yes, I'm sure I was aware of that 18 even prior to this judgment that we were not involved in 19 this litigation, because I would have known if we had 20 been a party. 21 Q: To this particular litigation? 22 A: Right. 23 Q: And what -- were -- and you knew that 24 you were not -- the province wasn't a party to any 25 litigation with respect to the Park?
2111 A: Right. 2 Q: Perhaps we could park -- mark this 3 note at Tab 21 as the next exhibit? 4 THE REGISTRAR: P-648, Your Honour. 5 6 --- EXHIBIT NO. P-648: Document Number 1004263. 7 Chippewas of Kettle and Stony 8 Point v. Attorney General of 9 Canada et al: Reasons for 10 judgment "Chippewas of Kettle 11 and Stony Point - Litigation 12 involving Federal Government" 13 Aug 18/'95. 14 15 CONTINUED BY MR. DERRY MILLAR: 16 Q: And I note in paragraph 1 that the 17 item with respect to the property owners which involved 18 the validity of the 1927 surrender and a Crown patent was 19 being appealed in para -- the first paragraph? 20 A: Yes. 21 Q: And were you aware of that back in 22 1995? 23 A: I can't -- I don't remember. 24 Q: Now, if we could move on. When did 25 you become aware that the Park had become occupied by the
2121 representative -- people from the First Nation? 2 A: It's -- I guess Monday, September 4th 3 was Labour Day in 1995. 4 Q: Yes. 5 A: And I would have come into work on 6 Tuesday, September the 5th. It's possible that I would 7 have gotten a call at home, like, earlier in the morning 8 from Ron Fox before coming into work. 9 But, I can't -- I can't recall if I did or 10 not. Certainly, I knew by the time I got into work the 11 morning of Tuesday, September the 5th. Whether I had 12 been called a few hours before that or not I can't say 13 for sure. 14 Q: And did you -- or did you see any of 15 it on the -- on the news media? 16 Do you recall seeing any reports? 17 A: No, I didn't see anything in the 18 news. 19 Q: And I note in Exhibit 644 at Tab 10, 20 your phone log, that the first entry on September 5th is 21 from Barry Jones re. Ipperwash. 22 A: Yes. 23 Q: And do you recall what discussion you 24 had with Mr. Jones with respect to Ipperwash on that 25 morning?
2131 A: No. I don't recall. 2 Q: And what did you do as a result of -- 3 A: The information? 4 Q: -- being advised that the Park had 5 been occupied? 6 A: I called -- I convened a meeting of 7 the Interministerial Emergencies Committee, which is what 8 we had agreed at the last meeting we would do if the Park 9 in fact was occupied. 10 Q: And before I go to that -- that, if I 11 could -- and I'm sorry to this, but I'm going to take you 12 back to Tab 10, your phone log. 13 A: Yes. 14 Q: On September 5th you spoke to Mr. 15 McCombe and Mr. McCombe was again from? 16 A: Transportation. 17 Q: And do you recall why he -- you were 18 talking to him? 19 A: I think just because the Park was 20 occupied and because there might be road issues, related 21 road issues of concern to Transportation. 22 Q: And then there's an entry, "Glenn 23 Brennan..." 24 A: Yes. 25 Q: "... INAC Tor."
2141 A: INAC Toronto. He was in the Toronto 2 office of Indian and Northern Affairs Canada. 3 Q: And why did he call you or you call 4 him, I guess, twice on September the 5th. 5 A: Yes. Well I believe it was because 6 of the occupation of Ipperwash Provincial Park and the 7 fact that the Army Base was already being occupied which 8 was a Federal issue. And so we wanted to, you know, 9 liaise with the Federal Government and share in 10 information with them. 11 Q: And do you have any specific 12 recollection of your conversation with Glenn Brennan? 13 A: No. I don't. 14 Q: And I don't think we found the note 15 of any conversation with him. 16 A: No. I -- I'm sure I spoke with Ron 17 Fox, as well, on September the 5th even though it's not 18 indicated on this phone log. And that is I -- perhaps 19 because I had such detailed conversations with him that 20 I, like, had, you know, wrote on another piece of paper 21 and had a whole note about it. 22 It's also possible that Ron called me at 23 home in the morning, as I said, that Tuesday morning 24 before I even got into work, to tell me that there was an 25 occupation of the Park, because I know I spoke to him
2151 that day. 2 Q: And if I could take you to Tab 31. 3 A: Yes. 4 Q: Those are your -- those are hand -- 5 your handwritten notes. It's Exhibit P-536, Inquiry 6 Document 1012579. And the 8th page in are your notes for 7 September the 5th? 8 A: Yes. 9 Q: And are they notes you took with 10 respect to the meeting on September the 5th? 11 A: Yes, they were my notes from the 12 Interministerial Committee Meeting. 13 Q: And at Tab 22 there's a fax cover 14 sheet of September the 5th, 1995 at 18:58 with meeting 15 notes for the September 5th, 1995 meeting. And are those 16 the final meeting notes for that meeting? 17 A: Yes, they are. 18 Q: And the meeting notes, Exhibit 459, 19 or part of 459 and 509, Inquiry Document 1012288, list 20 the attendees at the meeting? 21 A: Yes. 22 Q: And you acted as Chair? 23 A: Yes. 24 Q: Mr. -- Dave Carson was a lawyer at 25 ONAS?
2161 A: Yes, he was one (1) of the senior 2 lawyers at ONAS. 3 Q: And Janina Korol was -- 4 A: She was the Communications Director. 5 Q: Nathalie Nepton was the articling 6 student at ONAS? 7 A: Yes. 8 Q: And she was the secretary, or 9 detailed to take notes? 10 A: Yes, she was. 11 Q: Dan Newman? 12 A: Yes, Dan Newman was, I believe, had 13 some political affiliation with ONAS. 14 Q: I believe that, if I might assist, 15 Dan Newman was an MPP -- 16 A: Okay. 17 Q: -- and parliamentary secretary, I 18 believe, to the Minister of -- responsible for Native 19 Affairs. 20 A: Yes, yes. 21 Q: Does that help refresh you? 22 A: Yes, that helps refresh my memory. 23 Q: Elizabeth Christie? 24 A: She was with the Crown Law Office 25 Civil at Attorney General. Kathryn Hunt was the
2171 political advisor to the Solicitor General. 2 Q: And had you met Ms. Hunt before 3 September the 5th? 4 A: I don't believe so. 5 Q: Deb Hutton? 6 A: Yes, she was the Premier's executive 7 assistant. 8 Q: And you had met her before September 9 5th? 10 A: Yes. 11 Q: Peter Allen, we've heard about. He 12 was from MNR and the -- you believe the Executive 13 Assistant to the Deputy Minister? 14 A: Yes. Yes, he was. 15 Q: And Peter Allen being a Deputy -- 16 Executive Assistant to the Deputy Minister, would he be 17 classified as political staff or -- 18 A: No. 19 Q: -- a civil servant? 20 A: He would be part of the civil 21 service. 22 Q: Okay. 23 A: As -- as would the Deputy Minister. 24 Q: Yes. 25 A: Although the Deputy's role is kind of
2181 a bit of an interface between the civil service and the 2 political realm since they report directly to the 3 Minister who is a politician. 4 Q: Okay. And Lieth Hunter? 5 A: She was a lawyer with MNR. 6 Q: Cheryl Mounsey, M-O-U-N-S-E-Y? 7 A: Yes, she was with Intergovernmental 8 Affairs and just a civil servant, like an 9 Intergovernmental Affairs officer. 10 Q: Eileen Hipfner was a lawyer at ONAS? 11 A: Yes. 12 Q: David Moran we've heard about before 13 was the Executive Assistant to Mr. Harnick? 14 A: Yes. 15 Q: Chris Buhheiar, B-U-H-H-E-I-A-R? 16 A: Yes, I actually can't remember what 17 his role was. 18 Q: But he appears to have been from 19 ONAS? 20 A: Yes. 21 Q: And Mr. Wallace Pigeon? 22 A: Yes, he was a civil servant from 23 ONAS. 24 Q: And was he a lawyer? 25 A: No, he was not.
2191 Q: And Andrew Macdonald, Aboriginal 2 Issues Coordinator from MAG? 3 A: Yeah, he wasn't a lawyer. 4 Q: Ron Fox. It says, SGC? 5 A: Right. 6 Q: That refers to Solicitor General 7 Correctional Services? 8 A: Yes. 9 Q: Shelly Spiegel from the Cabinet 10 Office? 11 A: Yes. 12 Q: Jeff Bangs? 13 A: He was the -- one of the political 14 staff for the Minister of Natural Resources. 15 Q: And Barry Jones we've heard of. 16 A: Yeah, he was the Legal Director at 17 Natural Resources. 18 Q: And on the phone there was Peter 19 Sturdy who we've heard about, Ron Baldwin from MNR, and 20 Dan Elliot from the MNR? 21 A: Yes. 22 Q: Do you know who Dan Elliot was? 23 A: No. 24 25 (BRIEF PAUSE)
2201 Q: And do you have any recollection of 2 this meeting of September the 5th, 1995 independent of 3 your meeting notes, the meeting notes, the typed version 4 or your handwritten notes? 5 A: Yes. 6 Q: And can you tell us what your 7 recollection of the meeting is before we turn to your 8 meeting notes and handwritten notes? 9 A: Well, just -- the only -- what I 10 remember was that it was sort of a tense meeting and I 11 guess because the occupation had -- of the Park had 12 occurred, so we were dealing with a real, not just an 13 anticipated emergency, you know, there was some tension. 14 We -- we had already known from the 15 previous meeting that MNR was quite concerned about a 16 number of issues with respect to the Park and at this 17 meeting there were -- more people came to this meeting 18 than the last meeting, I guess because it was an actual 19 emergency not a -- an anticipated one. 20 So, there were a lot of people, you know, 21 around the table or on the phone. It was a fairly large 22 meeting with a number of people who have had -- who had 23 very little experience dealing with Aboriginal issues or 24 Aboriginal emergencies. 25 And I did feel that there was sort of con
2211 -- some conflict at the meeting as well as tension; that 2 there were sort of differing views expressed by the 3 participants of the meeting. 4 And that that -- I had to somehow manage 5 that because normally the committee works by consensus. 6 It's not like we sort of take a vote at the end and, you 7 know, all those in favour of doing this option A, go with 8 option A. 9 So I had to try to bring the meeting 10 around to consensus and that that was sort of 11 challenging. 12 Q: That was part of -- part of your role 13 as the Chair -- 14 A: Yes. 15 Q: -- to arrive at -- try to arrive at a 16 consensus? 17 A: Yes. 18 Q: And ultimately, did you arrive at a 19 consensus? 20 A: I believe so. 21 Q: Okay. And when you say there were 22 conflict between the individuals at the meeting, by that 23 do you mean differences of opinion? 24 A: Yes. 25 Q: And differences of opinion at
2221 meetings happen -- reasonable people can differ, isn't 2 that -- 3 A: Yes. 4 Q: -- fair? 5 A: Yes. 6 Q: And there was different opinions 7 expressed at this meeting? 8 A: Yes. I think what was more -- made 9 the situation more challenging was that there was a sense 10 of urgency because the Park was being occupied and then I 11 think that some of the people at the meeting felt that we 12 had to move very quickly, and so they kind of increased 13 the sense of urgency by suggesting that we should be 14 doing more and doing it faster. 15 Q: Okay. And do you remember -- can you 16 recall anything else without the aid of your notes or the 17 meeting notes about the meeting before we turn to those 18 notes? 19 A: Well I do remember that Deb Hutton 20 was one of the people who was extremely frustrated at the 21 kind of relaxed, slow approach that we were proceeding 22 with at the meeting. 23 MS. ANNA PERSCHY: Commissioner, I just 24 have a concern that in dealing with people's feelings or 25 what was in their mind that we proceed very carefully in
2231 this -- in this area. 2 Obviously, this witness can speak to her 3 own feelings and she can speak to what she saw and heard, 4 but we do have to be sensitive to the fact that we cannot 5 read other people's minds nor their feelings. 6 COMMISSIONER SIDNEY LINDEN: Well, the 7 question was her general impression of the meeting. 8 9 CONTINUED BY MR. DERRY MILLAR: 10 Q: It was, but why -- why -- on what do 11 you base the statement that you just made with respect to 12 Ms. Hutton? 13 A: Because of comments that she made at 14 the meeting as well as even her body language and kind of 15 the forceful way in which she made the statements that 16 she made. 17 Q: Okay. And that -- and it was based 18 on that, that you made this -- 19 A: Yes. 20 Q: -- statement? Okay. And anything 21 else you can remember before we turn to these notes? 22 A: I think I've covered everything. 23 Q: Okay. And at the meeting with the -- 24 as you've indicated, a larger number of people. Did 25 people introduce themselves?
2241 A: Yes. 2 Q: And do you recall how Ron Fox -- 3 A: I don't recall how he introduced 4 himself. 5 Q: And can you tell us with respect to 6 what happened at the meeting, what -- what would be 7 easiest to -- or more beneficial to refer to, Ms. Jai, 8 your handwritten notes, that are here at Tab 31, Exhibit 9 P-536, or the meeting notes? 10 A: I think we could start with Tab 31, 11 my handwritten notes. 12 Q: Okay. And -- 13 COMMISSIONER SIDNEY LINDEN: Again, would 14 you make it clear when you recall something as opposed to 15 when you're simply reading your notes? 16 If you don't recall it, just say so, so -- 17 THE WITNESS: Okay. I -- I'll try -- 18 it's difficult to do that because -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 THE WITNESS: -- when I'm reading my 21 notes, it is my memory being refreshed -- 22 COMMISSIONER SIDNEY LINDEN: Well, that-- 23 THE WITNESS: -- by my notes. 24 COMMISSIONER SIDNEY LINDEN: If that's 25 happening, you can say that.
2251 THE WITNESS: Okay. 2 COMMISSIONER SIDNEY LINDEN: That's 3 significant, yes. 4 5 CONTINUED BY MR. DERRY MILLAR: 6 Q: Yeah. What we're trying -- what the 7 Commissioner is -- what we're trying to do is -- the 8 purpose of the notes, of course, are to refresh your 9 memory. But if it does refresh your memory beyond what's 10 in the notes, if you could just simply tell us that, Ms. 11 Jai, that would be helpful. 12 A: I'll try. 13 Q: And I note that the first entry in 14 these notes, September 5th, is Glen Brennan; I forgot 15 about that. September 5th? 16 A: Yes. 17 Q: And was this note taken before the 18 meeting or were you reporting on this at the meeting? 19 A: I believe that I was reporting on 20 this at the meeting because we were starting with a 21 little bit of information sharing. 22 Q: Okay. And can you recall, with the 23 assistance of the note, what you related about Mr. 24 Brennan? 25 A: On this I can only go from what is in
2261 my note. 2 Q: Yes. 3 A: So I have no recollection other than 4 what it says in the notes, that Glen Brennan from the 5 Federal Government said that he spoke to the DND people 6 who are monitoring Camp Ipperwash and he gave some 7 contact numbers of people who the Solicitor General or 8 the OPP should contact, and that from the Federal 9 perspective there were no claims filed as far as they 10 knew with respect to the Park. 11 Q: And beside Glen Brennan there's a 12 note: "Interprovincial Affairs?" 13 A: No, Intergovernmental Affairs. 14 Q: Oh, Intergovernmental Affairs. And 15 so he was with the Intergovernmental Affairs, Division of 16 INAC? 17 A: Yes. 18 Q: And he provided you with the name of 19 Laurie Ransom (phonetic)? 20 A: Yes. 21 Q: And there is a -- under the telephone 22 number there's some writing? 23 A: Federal/Provincial Relations Officer. 24 Q: And she worked with Mr. Brennan, or? 25 A: Yes.
2271 Q: And Mr. Westland (phonetic) whose 2 name is given? 3 A: Yes. 4 Q: He is from DND? 5 A: Yes. 6 Q: And then there's a note: "Jeff 7 McCombe," and a telephone number? 8 A: Yes. 9 Q: What does that refer to? 10 A: I actually have no idea why I wrote 11 his telephone number down there. 12 Q: Okay. He was in attendance? 13 A: Yes. It's -- 14 Q: Actually, he wasn't in attendance at 15 the meeting that day. 16 A: Oh, okay. Do -- do you think we 17 could have a five (5) minute break now? 18 Q: Sure. Sure. 19 COMMISSIONER SIDNEY LINDEN: Sure. 20 MR. DERRY MILLAR: We were going to take 21 it shortly but -- 22 COMMISSIONER SIDNEY LINDEN: Take a 23 break. 24 MR. DERRY MILLAR: -- that's fine. This 25 would be great.
2281 THE WITNESS: Thanks. 2 COMMISSIONER SIDNEY LINDEN: Well -- 3 THE REGISTRAR: This Inquiry will recess. 4 5 --- Upon recessing at 3:37 p.m. 6 --- Upon resuming at 3:48 p.m. 7 8 THE REGISTRAR: This Inquiry is now 9 resumed. Please be seated. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 Now, if you're up to it, Ms. Jai, we'll go for 12 approximately another hour. 13 THE WITNESS: Okay. 14 COMMISSIONER SIDNEY LINDEN: We usually 15 adjourn at 4:30 -- 16 THE WITNESS: Yeah. That's -- that's 17 fine. 18 COMMISSIONER SIDNEY LINDEN: -- but if 19 you're up to it, we'll go a little longer. But whenever 20 you think you've had enough for today, you just tell us-- 21 THE WITNESS: Okay. 22 COMMISSIONER SIDNEY LINDEN: -- and we'll 23 stop. 24 THE WITNESS: Thanks. 25
2291 CONTINUED BY MR. DERRY MILLAR: 2 Q: Okay. The note: "Jeff McCombe?" 3 A: Yes. I think that that must be from 4 a phone call that I had with him. And I just looked back 5 at my phone log and I had had phone conversations with 6 both Glen Brennan and Jeff McCombe that morning of 7 September the 5th. 8 So, I'm not sure if I'm reporting on those 9 phone calls at the meeting or if I've just made notes and 10 have continued on the same page with the notes from the 11 Interministerial Committee Meeting. 12 Q: And can you just tell us a little bit 13 about the note with respect to Jeff McCombe? 14 A: Right. Well, he's from 15 Transportation, he's the Legal Director so he, of 16 course, is concerned about anything involving highways 17 and so he says that Highway 21 comes very close to the 18 Kettle Point Reserve and the Military Base which is Camp 19 Ipperwash or the Army Base; also fronts on Highway 21. 20 He's not aware of any claim and that would be by 21 Aboriginal groups to the highway. 22 Then there's the road into the Park which 23 is a township road and then 28 -- number 28 and number 6 24 are county roads and that the -- the road at the western 25 boundary of Camp Ipperwash is probably a township road.
2301 So he's just of kind of looking at the 2 whole history of the roads in the area with, I think, a 3 view to, you know, is there any Aboriginal claim to any 4 of these roads? And I guess the other thing would be 5 what are the risks of if -- if -- what are the 6 consequences or implications if one (1) of these roads 7 ends up being blockaded? 8 Q: And your best recollection today is 9 that was as a result of the phone call in -- 10 A: Yes. 11 Q: -- recorded in your log would be 12 6:44? 13 A: Right. 14 Q: And then Dan Elliott -- is that the 15 beginning of the notes with respect to the meeting? 16 A: Yes, probably. 17 Q: I note that there's no telephone 18 calls on August the 4th -- I mean, excuse me, on 19 September the 4th. 20 A: Or the 5th. 21 Q: Or the 5th with Dan Elliot? 22 A: Right. Right. Now I think this is 23 at the meeting that he is saying that there's no previous 24 archeological evidence of a burial ground; that there is 25 some new evidence recently but it has not been evaluated.
2311 Q: And do you have any recollection 2 today what new evidence... 3 A: No, I have -- I have no recollection 4 of this comment at all. 5 Q: Okay. And then what happened 6 according to your notes? 7 A: Well then Ron gave a briefing on what 8 had happened, that at about 7:30 the previous evening 9 thirty-five (35) to forty (40) people came into the Park 10 with camping gear and that the OPP have a command post 11 set up in Forest, that there's also a media centre there 12 and that they have some sort of perimeter around the Park 13 and that someone is attempting to serve a written notice 14 to the occupiers that they're trespassing. 15 Q: Yes? 16 A: And then Peter Sturdy from MNR goes 17 on to say that the residents, and I think that's like the 18 occupants of the Park, refuse to accept service of the 19 notice and no one seemed to be in charge of that 20 occupying group. 21 And then I've made -- I've made little 22 notes to myself at the top of page 2: 23 What do they want? What communication 24 have we had with them? Are they the 25 same people as on Camp Ipperwash?
2321 So those would just be my own little notes 2 of things that I wanted to remember to find out about or 3 ask. 4 Q: And did Ron Fox give you any 5 indication or the meeting any indication about the makeup 6 of the thirty-five (35) to forty (40) people, whether 7 that they were all men, whether they were all women, 8 whether they were all children or some combination? 9 A: Well, I would have to rely on my 10 notes or the meeting notes as I -- I mean I know that we 11 now know that it was a mixed group of men, women, and 12 children and I don't know if we knew that then. Yes, we 13 must have because if you look at the actual meeting notes 14 of September 5th, the official notes, that's at... 15 Q: Page 2, item number 2. The first 16 item is -- the first bullet point says, Composed of... 17 A: Yes. 18 "A group of Stoney Pointers composed of 19 about thirty (30) to forty (40) men, 20 women, and children, entered and 21 established a camp in the Park." 22 So, that's -- that's at Document 1012288, 23 the meeting notes. 24 Q: Which is part of Exhibit 459 and 509, 25 yes? And then back to your handwritten notes?
2331 A: Yeah. 2 Q: So those were questions that, at the 3 top of page 2, in Exhibit P-536, you asked yourself some 4 -- jotted down some questions? 5 A: Yes. 6 Q: And did you get answers to those 7 questions? 8 A: Well, not entirely, because we just - 9 - we didn't know the answers to the -- 10 Q: Okay. 11 A: I mean the main question is, you 12 know, what do they want and I guess also what 13 communication have we had with them. I don't think -- I 14 mean, I found out what communication we had, but it was 15 extremely limited and we still didn't know what they 16 wanted after the meeting. 17 Q: And the question, are they the same 18 people as on camp Ipperwash? 19 A: I think that's what people thought, 20 but I -- I don't know whether we knew that in the sense 21 of actually, you know, knowing that for sure, but that 22 was the impression that people had. 23 Q: Then at the top of page 2 there's -- 24 can you tell from your note who's providing the 25 information at the top of page 2?
2341 A: Well, I think that would be Peter 2 Sturdy, because he's talking about stuff that's happening 3 that -- information that would only be available from 4 people on the ground. 5 Q: Yes. 6 A: And he says that the vehicle -- there 7 was a vehicle blocking the gate to the road at 7:30 p.m. 8 and that the MNR staff were told to leave. 9 And that OPP issued a news release at 2:00 10 a.m. indicating that they were monitoring the situation. 11 As of 10:00 a.m. there was no clear leader of the group 12 identified. The Park had been officially closed by the 13 Superintendent of the Parks -- Parks -- under the Parks 14 Act. 15 Q: Has been officially closed? 16 A: Has been so, in fact, and it had 17 been, I think, prior to the occupation. So because of 18 that, because it had been officially closed, it's closed 19 to everyone so anyone entering the Park is trespassing 20 under the Parks Act. 21 Then the comment -- 22 Q: So that if I might, if the Park is 23 closed, and this Park closed every year on Labour Day -- 24 A: Yes. 25 Q: -- and the position, at least as
2351 noted by Mr. Sturdy, was that once it's closed anyone 2 entering is trespassing? 3 A: Yes. 4 Q: And we've heard about day -- day 5 users of the Park, other evidence that after the Park was 6 closed in previous years people would go in -- into the 7 Park as day users, just go visit the Park. 8 So I take it that if they were -- do you 9 know if the Park was closed, how those people would be 10 viewed by MNR? 11 A: I can't -- I mean, they would have 12 technically be trespassing. I have no idea what MNR 13 would do about that. 14 Q: Okay. But this was at least the 15 indication that Mr. Sturdy made to the meeting. Whoops, 16 don't answer that yet. 17 18 (BRIEF PAUSE) 19 20 Q: In fairness, you don't know what the 21 legal status of people who are coming in as day users? 22 A: No. 23 Q: Okay. And were you -- were you aware 24 of the -- do you know the name Kobayashi, Les Kobayashi? 25 A: Yes.
2361 Q: And do you know who he was back in 2 '95? 3 A: I believe he was the Park 4 Superintendent. 5 Q: Okay. If we can carry on with your 6 notes, there's a note, 7 "No indication that they are armed." 8 A: Yes. 9 Q: And who told the committee that? 10 A: It would be either Ron Fox or Peter 11 Sturdy, but I can't tell from my notes. 12 Q: Okay. And -- 13 A: But all of this information would be 14 coming in either from, like, the OPP on the ground or MNR 15 on the ground, so this was information being relayed to 16 us by people who were, you know, close to the actual 17 Park. 18 Q: Okay. They think it is a subgroup of 19 those occupying Camp Ipperwash? 20 A: Right. 21 Q: And your notes then go on -- 22 A: Yeah, it says there -- there have 23 been no communications so far from the occupiers. Some 24 media have spoken to them but the media is not in the 25 Park as far he knows and then there's a chalkboard on
2371 which it's written number 43, in other words, IR Number 2 43, which would be Indian Reserve Number 43 and that's 3 the former number of the Indian Reserve of the Stoney 4 Point Band before they were amalgamated. 5 Q: And how do -- where did that 6 information come from? 7 A: Which part of that information, that 8 it was written on the chalkboard? 9 Q: And that -- no, the former -- that it 10 was the former number of the reserve? 11 A: Well, it -- it would have come from 12 whoever was speaking, either Ron or Peter or it may be 13 that it's just something that I knew and that somebody in 14 the room said, Oh, you know, IR 43, that's the former 15 number of the Indian Reserve. 16 Q: And then there's a heading, 17 "Options." What's that about? 18 A: Well, that's trying to set out what 19 some of the options that we have are. So I'm -- I'm 20 trying at this point to sort of focus the discussion. 21 Like we've kind of gathered information and now we're at 22 the next point which is looking at what the options that 23 we can recommend are. 24 Q: And was this option number 1 and an 25 injunction --
2381 A: Yes. 2 Q: -- was -- was that something you 3 raised with the group as Chair or how did it come up? 4 A: I think that it was reported -- that 5 someone raised it, not me, but I -- I can't say who and 6 that Marcel Beaubien, who was the local MPP, had -- had 7 already asked when will an -- when will an injunction be 8 issued? 9 Q: Okay. 10 A: And that we also knew that the 11 township of Bosanquet was seeking -- seeking an 12 injunction for Matheson Drive which was, I think, this 13 road that had been blocked and that's the northeast 14 boundary between the Park and the Base and this is -- it 15 goes on to say: 16 "This is the only road so far being 17 blocked. It is gated and trees have 18 been filled -- felled [sorry] to block 19 it. 20 Q: And then on page 3 it goes on... 21 A: To say, "trespass." So that would be 22 another option would be a trespass that you could lay 23 charges. So it says can still be charged as long as a 24 reasonable effort to serve has been made. 25 So that means as long as there's
2391 reasonable attempts to serve the occupiers with some 2 notice that they are trespassing and they haven't left, 3 then a possible option would be to charge them with 4 trespassing. 5 Q: And is that under the Trespass to 6 Property Act? 7 A: It -- it could be. We'd -- I mean I 8 -- I'd prefer to have that discussion when we're talking 9 about the -- 10 Q: Okay. 11 A: -- detailed legal options because 12 what we decided after this meeting was that rather than 13 just have this general discussion of options we needed to 14 have a legal subgroup do more focussed work -- 15 Q: Okay. 16 A: -- on what the legal options and the 17 statutory authority for various actions would be. 18 Q: And can you tell us the source of the 19 information with respect to Marcel Beaubien and the 20 township of Bosanquet? 21 A: I suspect it was Peter Sturdy but I 22 don't know. I can't say for sure. 23 Q: Okay. Then there's a note on page 3, 24 Peter Allen and does that refer to comments made by Peter 25 Allen?
2401 A: Yes, indicating that he had spoken 2 with his deputy minister. 3 Q: They spoke with their deputy 4 minister; who's, "they?" 5 A: MNR staff -- 6 Q: Okay. 7 A: -- spoke -- including Peter -- spoke 8 with their deputy minister and that no attempt has been 9 made so far to speak to them, that's that occupier, and 10 find out what they want. And then Peter says, They're 11 just occupying an empty Park, we shouldn't take overly 12 precipitous action. 13 Peter Allen is somebody who is a long-time 14 civil servant and he was -- had been the EA to the Deputy 15 Minister of Natural Resources for many, many years. So 16 he's a very experienced person. 17 Q: Yes? 18 A: So he was one (1) of the more 19 moderate people from MNR in terms of the views that he 20 expressed. 21 Q: Okay. Current concerns, was that 22 Peter -- Peter Allen or someone else? 23 A: I -- I don't know but just the 24 concerns were that the physical -- the physical plant of 25 the Park itself, you know, something going wrong with it
2411 that the fact that Park staff have been denied access. 2 And then this is a bit cryptic but what it 3 -- the next line, it really is saying is that the 4 Aboriginal occupiers probably want the Government to take 5 action. 6 And then the DM, which is Ron Vrancourt, 7 so that's the DM at MNR, would like us to have an 8 injunction ready to go but not to proceed precipitously, 9 so that would mean prepare the papers, look into, you 10 know, how to get an inju -- how soon we could get an 11 injunction on, but not proceed too precipitously, and 12 that there's no great inconvenience. 13 So this must still be Peter Allen talking, 14 because nobody else at that meeting would be able to 15 speak for the deputy minister Ron Van Court. 16 So this would be still Peter talking. And 17 then Peter says, well, that there's no great 18 inconvenience, and then says: 19 "Can we make a successful injunction 20 application if there's no real 21 urgency?" 22 And then Jeff Bangs speaks and he's the EA 23 to the minister of natural Resources and he says that he: 24 "Discussed it with the minister that 25 morning, that if we get an injunction
2421 we'll be expected to enforce it, this 2 will escalate things and could lead to 3 a confrontation." 4 And then -- it says Peter and I can't tell 5 if this is Peter Allen or Peter Sturdy, I'm sorry. So 6 some Peter, one of the two (2) Peters from MNR says: 7 "There's always the possibility that 8 Mohawk warriors will move in." 9 And then someone asks: 10 "What is the OPP's sense of the group. 11 We need more intelligence on this, also 12 on the weapons issue like whether they 13 have weapons or not." 14 And then the question is: 15 "What is the level of tolerance of the 16 Government?" 17 Q: And who -- 18 A: I don't know who said that. 19 Q: Okay. 20 A: Then there's a comment that there's 21 the link with the Serpent Mounds issue in terms of 22 perception. Okay, then this must be Deb Hutton speaking: 23 "The Premier asked why this committee 24 didn't meet to discuss Serpent Mounds; 25 how was the decision made?"
2431 Q: And the -- before we go on can you 2 tell us what Serpent Mounds was? 3 Serpent Mounds, perhaps I can refresh your 4 memory, deals with a Provincial Park near -- in the 5 Peterborough area, I believe, that was partially owned by 6 a First Nation and there was an issue with respect to -- 7 A: Oh, whether it was a lease, was 8 that... 9 Q: I believe there was a lease, yes. 10 A: Yeah. 11 Q: Does that help? 12 A: All I can remember is that there was 13 this sort of -- 14 Q: Okay. 15 A: -- conflict around the Park and 16 whether -- whether the province would be able to continue 17 operating it or that there was some conflict with a First 18 Nation. I don't remember the details. 19 Q: And why do you say when on the note, 20 Prem, P-R-E-M, I take it -- 21 A: Hmm hmm. 22 Q: -- you're referring to Premier. 23 A: Yes. 24 Q: Why do you say that was Ms. Hutton? 25 A: Oh, well no one else at that meeting
2441 would be able to speak for the Premier. 2 Q: Okay. 3 A: Or to make comments saying that the 4 Premier said something or didn't. 5 So then the next comment is: 6 "The Premier is hawkish on this issue. 7 Feels that we're being tested on this 8 issue." 9 And that's from Deb Hutton. 10 Q: And... 11 A: And then Jeff Bangs says: 12 "We haven't dealt with the SPR yet." 13 That's the statement of political 14 relationship that we spoke about earlier today. In other 15 words, that the new government, you know, well, in fact 16 he goes on to say that: 17 "So we don't have the larger framework," 18 That the new government doesn't really 19 have a framework for how it's going to deal with 20 Aboriginal people. 21 Q: So this was -- Jeff is Jeff Bangs, 22 he's the EA -- 23 A: Yes, he's the EA -- 24 Q: -- to -- 25 A: To the Minister of Natural Resources.
2451 Q: And what did you take from this 2 comment? 3 A: It was a fairly neutral comment, but 4 one that indicated that there was a bit of a -- a bit of 5 unclarity at the political level as to what the framework 6 for dealing with Aboriginal issues should be; that Geoff 7 recognized that they hadn't thought it through yet. 8 Q: Okay. Then there's the note "Ron 9 Baldwin?" 10 A: Yes, from MNR. So he says that: 11 "There's no public safety issue in the 12 Park itself, but that there are 13 cottages and homes nearby, so it's not 14 isolated; that also we need to consider 15 our relationship with the Kettle Point 16 band." 17 Which, of course, we know had passed this 18 Band Council resolution, you know, opposing the Army Base 19 occupation, so. 20 "That there was a contingency plan on 21 the ground with OPP negotiators [I 22 guess] available." 23 Then he says: 24 "Each hour that passes will increase 25 the concern of Tom Bressette."
2461 And this -- this is actually -- I was 2 writing very quickly, so this should say: 3 "And Bosanquet Township." 4 It actually says "FN" but I'm sure that it 5 -- it was intended to mean Bosanquet, the township. 6 Q: And in the line above that there's an 7 arrow pointing up -- 8 A: Yeah. That means increase. 9 Q: -- which means that you can increase. 10 Yes...? 11 A: "If we obtain an injunction, must we 12 immediately serve it or can we wait?" 13 So that's a question and that's sort of in 14 line with the previous comment by Peter Allen that their 15 Deputy Minister had said, Well we don't want to be overly 16 precipitous, Can we get an injunction but not, you know, 17 just kind of sit on it and see how things go so that 18 we're ready with the injunction. 19 And then there's the comment again that 20 Tom Bressette does not support the occupation, that he 21 supports the OPP and that he supports MNR. 22 Q: And who -- do you know -- can -- from 23 your notes, can you tell us who made that statement about 24 Chief Bressette? 25 A: No, I can't. It's probably Ron
2471 Baldwin (phonetic) but I can't say for sure. I think 2 that there would be other witnesses who may have more 3 detailed notes, simply because they weren't also chairing 4 the meeting and would be -- have been more in a position 5 to note some of the things that I haven't noted. 6 Q: No. I appreciate that but I'm -- I 7 want to ask you what you know -- 8 A: Sure. 9 Q: -- and what you can remember -- 10 A: Hmm hmm. 11 Q: -- based on your notes. 12 A: Yes. Yeah. 13 Q: Then at the top of the page, at page 14 5? 15 A: Yeah. It says: 16 "They have the names of some of the 17 occupiers and that some of the 18 occupiers came directly from Camp 19 Ipperwash." 20 Obviously, they -- if they don't know the 21 total composition of the group, they can't know for sure 22 where -- that they all came from Camp Ipperwash. 23 And then it says: 24 "There are people from other parts of 25 the province at Camp Ipperwash. [Then]
2481 Safety -- public safety is still a 2 possible concern since the Park can't 3 be secured. As -- as time passes, it 4 becomes harder to remove them." 5 And then this is sort of a comment that 6 the Township had put out a tender, like a request for 7 proposals, that had actually been won by the First 8 Nation, but the Township was considering not honouring 9 it. 10 Q: And do you recall, from your notes or 11 recall, who made these comments; were these still Ron 12 Baldwin or someone else? 13 A: I'm not sure. 14 Q: Okay. Then there's a note: 15 "Elizabeth -- 16 A: Yes. 17 Q: -- Christie?" 18 A: So, this is Elizabeth who would -- 19 would be speaking at this point, and she's outlining some 20 of the legal options. 21 Q: Yes. 22 A: So she says that there's mischief 23 charges under the Criminal Code and then charges that 24 could be laid under the Trespass to Property Act, the 25 Public Lands Act, the Provincial Parks Act. But even
2491 though you could charge them, that wouldn't mean that you 2 -- necessarily that you could easily get them off the 3 land. 4 And then there's the option of an 5 injunction. So for an injunction she said that you can 6 apply on a non-urgent basis, which would mean it would be 7 heard in a couple of weeks. You'd have to show 8 irreparable harm. The irreparable harm would be that it 9 is in the public interest to maintain public lands. 10 And then enforcement, once you've had the 11 injunction, you -- that -- well, once an injunction 12 exists, the occupiers would be obliged to comply. If 13 they didn't leave we would have to take civil or criminal 14 contempt proceedings. 15 And then the next page, the top of page 6, 16 and I don't know who made this comment but it says: 17 "If there is a Native burial site in 18 the Park, we should uphold our 19 obligations." 20 In other words, deal with it under the 21 Cemeteries Act. Then the comment that: 22 "It is time consuming and expensive to 23 determine if it is a burial site." 24 And then a note that: 25 "CCR [which is Consumer and Commercial
2501 Relations] and Citizenship and Culture 2 should be consulted regarding the 3 Heritage Act and the Cemeteries Act to 4 determine what would be required to us 5 if there -- what would be required of 6 us if there is a burial site there." 7 Q: And do you know who made those 8 comments; was that Elizabeth Christie? 9 A: It's possible it's Elizabeth or that 10 it's another of -- like, a lawyer from ONAS. 11 Q: Okay. 12 A: So I -- one (1) of the two (2). 13 Q: And you subsequently asked Mr. 14 Carson, as I think you said, to look into the Cemeteries 15 Act? 16 A: Yes. Yes. 17 Q: We'll come back to that. 18 A: Hmm hmm. 19 Q: Then what happened? 20 A: Then we talk about would we succeed 21 if -- if we applied for an injunction. And then the -- 22 the view was, and I think this was Elizabeth: 23 "Yes. Especially with the recent 24 Bosanquet decision." 25 And that's the decision that we looked at
2511 earlier, of Killeen. 2 Q: With respect to the surrender? 3 A: Right. 4 "But probably we would not 5 succeed at getting an urgent, ex parte 6 injunction." 7 In other words, an injunction that would - 8 - we would apply for without giving notice to the other 9 party, on an urgent basis. 10 Q: And did she -- the speaker, if it was 11 Elizabeth Christie, give any other information that you 12 can recall today about an ex parte injunction? 13 A: Well, I then met with Elizabeth and-- 14 Q: After? 15 A: Afterwards and we had detailed 16 discussions about these types -- 17 Q: Okay. 18 A: -- of injunctions. So I mean, I 19 know, we -- 20 Q: We'll come to that. 21 A: I know a lot about it, but I think 22 that that was probably from the subsequent meeting -- 23 Q: Sure. 24 A: -- not from this meeting. 25 Q: Well, we'll go to that afterwards.
2521 Then the next entry: 2 "We could hold discussions with them, 3 not negotiations." 4 A: Yes. 5 Q: And who said that and what does that 6 refer to? 7 A: That would be discussions with the 8 occupiers. 9 Q: Yes. 10 A: Not negotiations. It's unclear who 11 said this. I can't remember. And, in fact, the note is 12 a bit cryptic so it's hard -- it's hard for me to 13 interpret, because it could be viewed as being simply 14 what is in the guidelines for the mandate of the 15 committee that you don't have substantive negotiations, 16 you only have negotiations to find a process for 17 resolving the discussion, or it could have been a more 18 meaningful comment indicating -- that was a bit more 19 directive saying that we should not have negotiations 20 with them, only discussions. 21 So, I'm afraid I can't give you any 22 guidance as to which interpretation is accurate. 23 Then there's a comment about Criminal Code 24 charges that: 25 "The forum is not as amenable for
2531 dealing with -- with these as these are 2 complex issues." 3 And that's a comment that, going under the 4 Criminal Code would make it, in some ways, more difficult 5 to resolve the underlying issues that criminal charges do 6 not, you know, when you're in criminal court it's not a 7 very good place to talk about, you know, Aboriginal 8 rights or title. 9 Just very interestingly, on this that was 10 a very recent Supreme Court of Canada decision in the 11 case of Bernard and Marshall, in which the minority made 12 that exact comment that criminal charges -- that that's 13 not a good forum for dealing with issues of Aboriginal 14 title, because these are complex issues. 15 Q: And someone made that point at the 16 meeting -- 17 A: Yes. 18 Q: -- that very point that criminal 19 charges are not good because they're very complex issues? 20 A: Yes. You can't deal with complex 21 issues very well in the context of a criminal proceeding. 22 Q: And you can't recall who said that? 23 A: No. Although it -- I -- I think it 24 would have been either Elizabeth Christie or Andrew 25 MacDonald.
2541 Q: Okay. Then there's a question asked: 2 "Can OPP try to prevent others from 3 going in?" 4 Is that correct? 5 A: Right. And then that would have been 6 someone from MNR, I think. And then the answer was that 7 they've set up a perimeter but there is still water 8 access, et cetera. 9 Q: And do you know -- can you recall who 10 made that comment? 11 A: I don't recall who said -- made that 12 comment, but what that means about the water access is 13 that, of course, the beach front is, you know, an access 14 point and very difficult to kind of, you know, put a huge 15 fence of a -- or patrol that perimeter. 16 Then there's a comment about the Gustafson 17 Lake situation in BC, some situation in Quebec on the 18 weekend and Serpent Mounds, like the fact that there are 19 sort of other Aboriginal hot spots and conflicts and then 20 the question of where do we want to position Ipperwash. 21 So that to me is kind of a political 22 comment. I don't know who made it, but it sounds like 23 something that somebody who had that sort of big, 24 political picture would sort of look at positioning. 25 Q: And do you recall who raised
2551 Gustafson Lake -- 2 A: No. 3 Q: -- situation as sort of -- 4 A: I don't recall who made -- like the - 5 - I think that those -- that was all one person, but I 6 don't know who that was. 7 And then at the top of page 7 there's a 8 comment that many Ipperwash residents have already 9 called; that if we don't act the municipality may and it 10 says that they are militant. 11 And I think "they" is the municipality, 12 that the municipality is very concerned because of safety 13 issues for their own residents. 14 Q: And at the top of page 7 there's an 15 arrow, "clippings." 16 A: Yeah -- 17 Q: Do you know what -- 18 A: I think that's just a little note to 19 myself to make sure that we get all of the clippings 20 relating to this -- to this incident. 21 Q: Okay. 22 A: Then the next comment is: 23 "OPP are to be the 'negotiators'." 24 And I think that is again in quotes to 25 indicate that negotiator doesn't have the full sense of
2561 negotiating any sort of substantive thing but simply 2 facilitating a process solution to end the occupation. 3 Q: So, that... 4 A: I think that's what I mean by 5 'negotiators'. 6 Q: They were to be the fact finder 7 facilitator under the -- the guidelines? 8 A: Right. 9 Q: Okay. But that we don't want to give 10 any legitimacy to their claims and then later on on the - 11 - it just goes on to say we need to talk to them. You 12 know, what are they there? What do they want? We need 13 to gather intelligence. Who should do this? And then it 14 says, "Not ONAS", implies some legitimacy. 15 Q: Now, was this discussed or is this a 16 note to yourself? 17 A: This was -- this was a discussion 18 that would have occurred. So -- and I don't know who 19 said this but we were just sort of brainstorming, you 20 know, who and then there's "MNR" question mark, "OPP" 21 question mark, but the, "Not ONAS," implies some 22 legitimacy as obviously somebody in the room is 23 expressing the view that it shouldn't be someone from 24 ONAS, because of the concern that that would give the 25 claim that whatever their claims were more legitimacy
2571 than if, for example, it was the OPP who went in as a 2 sort of fact finder. 3 Q: Or someone else? 4 A: Or someone else, yeah. 5 Q: And do you know -- do you recall who 6 the source of the comment, "but don't want to give legit 7 to -- legitimacy to any of their claims?" 8 A: No, I don't recall who said that. 9 Q: Then there's "MNR" question mark, 10 "OPP" question mark? 11 A: Yeah, so we're sort of canvassing 12 these people and then we talk about MNR as having good 13 relationships with the First Nation, but what is their 14 relationship with the Stoney Pointers who are the 15 dissident group that we believe is occupying the Park? 16 Q: And there's a question mark there and 17 that's what that refers to? 18 A: Right. Exactly. 19 Q: Okay. 20 A: And then Ron Fox says, Well, we 21 should rely on the OPP to gather intelligence, that we 22 can do fact finding in conjunction with MNR, that John 23 Carson is the incident commander and has a good 24 relationship with everyone. 25 So that's all Ron speaking and -- and then
2581 it says: 2 "Two (2) years ago the Stoney Pointers 3 were informed of the Province's 4 position re. title to the Park and we 5 invited them to make a claim if they 6 had a valid claim. They never produced 7 anything." 8 So, that must be in relation to the fact 9 that they did occupy the Park two (2) years ago. And, 10 you know, at that time we told them well, we think we own 11 the Park and -- 12 Q: "We" being the province? 13 A: Yeah. 14 Q: Yes. 15 A: And do you recall who said -- made 16 this point at the meeting? 17 A: No, no. I'm sorry I can't recall. 18 Q: Would it be -- okay. 19 A: So, then there's a comment: 20 "We will seek an injunction. We will 21 charge them with trespass or mischief. 22 We will gather information." 23 I don't think that's, sort of, a consensus 24 yet, those are just sort of ideas that are being batted 25 about.
2591 Q: Right. 2 A: And then there's this comment on the 3 top of page 8: 4 "We will not mention burial grounds." 5 And I don't know who said that. I assume 6 that what that refers to is that in the public 7 communications that we wouldn't refer to the burial 8 ground, because we didn't know if there was a burial 9 ground and we didn't really know if that was the reason 10 why they were occupying the Park. 11 And then the next line says: 12 "ONAS should not be involved in the 13 communications, that it will be an MNR 14 issue." 15 Then: 16 "Park staff are being denied access." 17 In other -- like, to close down the water. 18 "Another option or another possibility 19 as a quick motion for summary 20 judgment..." 21 Q: And, do you recall -- 22 A: So -- 23 Q: -- who made these comments at the top 24 of page 8? 25 A: No, I don't. Actually, if I do
2601 recall I will say so but I think you can assume that I 2 don't -- 3 Q: Okay. 4 A: -- as I go through this. 5 Q: Thank you. 6 A: But, it's just the -- you can see 7 that we're just batting about a bunch of different ideas 8 at this point and I'm, sort of, trying to pull together a 9 consensus as we get closer to the end of the meeting. 10 Q: So, as you say people are, as you put 11 it, I think brainstorming -- 12 A: Hmm hmm. 13 Q: -- ideas as to what to do? 14 A: Yeah, what are the different options. 15 And then there's a concern, you know, the 16 OPP -- well, the -- the comment that the OPP are not 17 allowing people into the Park and then a discussion about 18 what the communication messages will be. 19 So, here's some possible communication 20 messages: 21 "The Park is closed. All users have 22 left. [And] The Ministry of Natural 23 Resources is being denied access to the 24 Park by the occupiers. The occupiers 25 have been informed that they are
2611 trespassing and we've told them to 2 leave. We have clear title to the 3 Park. We will be taking action to 4 remove them from the Park as soon as 5 possible." 6 So, at this point in the meeting we're 7 sort of saying that MNR Communications will be the lead. 8 But then there's a note that the OPP also will be the 9 lead. 10 And then there's a comment, and it says: 11 "OPP." And I'm wondering who that would be because we 12 didn't have anyone from the OPP on this. Maybe it's just 13 -- because Ron Fox was the only one who -- on -- on this 14 meeting who really had any link with the OPP. 15 Maybe it's just a general comment that if 16 charges are laid, that the OPP become the spokespeople 17 because they have the discretion to charge. So they 18 would have to respond to any questions about charges. 19 And then there's just a comment: 20 "Well, there's different mechanisms but 21 the same goal, removing people. The 22 issue is the methodology." 23 Like, how to remove them. And then 24 there's a comment, and it says: 25 "Deb [so that's Deb Hutton] wants an
2621 emergency injunction, doesn't want to 2 wait two (2) weeks. Attempts should be 3 made to remove people." 4 And then another comment by someone else: 5 "Leave it up to OPP as to how to do 6 this." 7 So then there is another -- sort of a bit 8 of a gap in which I obviously have -- trying to sort out 9 what to write down. Then: 10 "1. We will seek an injunction. 11 2. We will try to peaceably remove the 12 dissidents but -- but that would be up 13 to OPP discretion. We will recommend 14 this to our political masters." 15 In order words, seeking the injunction and 16 leaving it up to OPP discretion to peaceably remove the 17 dissidents, and that a small group will meet to work out 18 the legal mechanisms. 19 Q: The -- do items 1 and 2 go together? 20 A: Yes. Those are the two (2) things 21 that we're saying we'll recommend to our political 22 masters, seeking an injunction and having the OPP try to 23 peaceably remove the dissidents or asking the OPP if they 24 can peaceably remove the dissidents. 25 Q: And can you tell me, I don't
2631 understand what that means; can you help us? 2 A: You mean the second point. 3 Q: Yes. 4 A: I guess, just depending -- I mean, it 5 would be up to OPP discretion but having the OPP go and 6 ask people if they're -- if they would leave because 7 they're -- they're trespassing and they're in the Park 8 illegally. 9 Q: Okay. And then: 10 "A small group will work out legal 11 mechanisms." 12 A: Right. And that was a -- a legal 13 sub-group which did meet, and that was myself and 14 Elizabeth Christie and Tim McCabe, and Scott Hutchinson 15 may have been in the group or we might have just got 16 input from him into the legal options. 17 And then we just say that: 18 "The OPP and the Park Superintendent 19 have left to try to establish contact 20 with the group. As of 10:00 a.m. there 21 were only seven (7) to ten (10) people 22 still in the Park, that they have been 23 cutting trees in the Park and they have 24 an OPP vehicle which they've been using 25 as part of a barricade."
2641 So this next comment is: 2 "Mischief charges." 3 Like that potentially there would be 4 grounds for mischief charges. And that MNR would be 5 responsible for a meeting with the Township. 6 Q: And do you recall who made these 7 comments about the OPP and Park Superintendent and the 8 OPP vehicle? 9 A: I believe it was an MNR staff person. 10 Q: Okay. Then, the next steps? 11 A: That -- well, the first is -- I think 12 that this is: 13 "Politicians to be briefed." 14 Like, it had originally said: 15 "Political staff." 16 And I crossed out "staff." So that must 17 be that the -- the politicians would be briefed by the 18 political staff who were at the meeting. 19 Q: Yes. 20 A: "The communication messages would be 21 as we had agreed, MNR would be the 22 spokesperson, OPP would take action as 23 appropriate, and we would meet tomorrow 24 at 9:30 a.m." 25 Q: And there's a comment, "next meeting,
2651 9:30 a.m." up at the top? 2 A: Right. 3 Q: And then that meeting is noted at -- 4 in Exhibit 459, part of 459 and 509, at Tab 22, as having 5 lasted three (3) hours; is that correct? 6 A: Yes. From 11:00 until 2:00 p.m. And 7 then, right after that meeting I did an e-mail to my 8 boss, who was Yan Lazor, about the Interministerial 9 meeting. And actually, that -- sorry, I'm just looking 10 because that's at Tab 25, and that says that the meeting 11 went from 11:00 until 1:30 p.m. 12 Q: Okay. And at Tab 25, it's Inquiry 13 Document 1011769, it's an e-mail from you to Yan Lazor. 14 Who's Imcha (phonetic)? 15 A: Michelle Fordyce. 16 Q: Okay. Oh yes. And then? 17 A: And then Frances Noronha, who was 18 Larry Taman's assistant. 19 Q: And this was sent at 2:27 p.m.? 20 A: Right. So that would have been 21 shortly after the meeting. So I would have gone back to 22 my office and typed up this e-mail just to report on what 23 happened at the meeting. 24 Q: And you set out that it was well 25 attended with political and civil servant staff. After a
2661 lengthy discussion it was agreed, what you agreed to. 2 Then there's a note: 3 "It was also agreed the Committee 4 members would advise their Minister -- 5 Ministers that the group's 6 recommendation is to seek a civil 7 injunction, whether ex parte or interim 8 has not been determined, and seek 9 direction from their Ministers on the 10 issues." 11 That was -- that consensus point had been 12 reached? 13 A: Yes. 14 Q: But what was left open was whether it 15 was to be ex parte or -- 16 A: Right. That would await the -- the 17 discussion of the legal subgroup. 18 Q: Okay. And then the next paragraph 19 refers to the sub-group evaluating the legal options? 20 A: Yes. 21 Q: And then it says: 22 "I'm working on a blue note on this." 23 A: That's a briefing note for the 24 Minister. 25 Q: Okay. And that's -- we'll come to.
2671 And I take it the briefing note to the Minister is 2 printed on blue paper? 3 A: Yes. 4 Q: And then there's a reference in the 5 next paragraph: 6 "We're hoping to get briefing time with 7 our Minister tomorrow morning early. 8 David Moran is aware of this as he was 9 at the meeting. MNR, PO, SG will be in 10 touch with their Ministers to get 11 direction today." 12 A: Right. 13 Q: And what you were hoping was to meet 14 with Mr. Harnick the next morning? 15 A: Yes. And we did meet with him early 16 the next morning, prior to the 9:30 a.m. meeting of the 17 Interministerial Committee. 18 Q: And then there's a report -- the next 19 paragraph refers to Deb Hutton? 20 A: Yes. Do you want me to take you 21 through that? 22 Q: Sure. 23 A: So then it says: 24 "Deb Hutton had already spoken to the 25 Premier."
2681 So that would be prior to the 2 Interministerial Committee meeting. So she came to the 3 meeting with direction or, you know, some clear direction 4 from the Premier. And MNR had already spoken to their 5 Ministers. So, again, they came to the meeting having 6 already spoken to their Minister. 7 Then I say: 8 "The Premier's views are quite hawkish 9 [Deb's words]." 10 Because I want to make it clear that I'm 11 quoting her. I wouldn't normally use that expression, 12 myself. 13 "And he would like action to be taken 14 ASAP to remove the occupiers. It was 15 agreed though that no legal action 16 would proceed until the lawyer subgroup 17 had done a risk assessment of the 18 options so -- so that we could take the 19 best course possible to reach the 20 agreed-upon goal, which is removal of 21 the people from the Park, and until we 22 had direction from Minister Harnick." 23 So what that paragraph conveys is that 24 while the -- the Premier's views, as conveyed by Deb 25 Hutton, were quite hawkish, through the course of the
2691 meeting I was able to get the group to agree that we 2 wouldn't do anything right away, that we would wait until 3 the lawyer sub-group had done a risk assessment of the 4 options, and that we would also wait until we had 5 direction from Minister Harnick. 6 Q: Okay. And perhaps we could mark this 7 document, the e-mail from Ms. Jai to Mr. Lazor and others 8 on September 5th, 1995 at 2:27 p.m. as the next exhibit. 9 THE REGISTRAR: P-649, Your Honour. 10 COMMISSIONER SIDNEY LINDEN: P-649. 11 12 --- EXHIBIT NO. P-649: Document Number 1011769. 13 E-mail from Julie Jai to Yan 14 Lazor, Sept.05/95 re: 15 Ipperwash Park Emergency. 16 17 CONTINUED BY MR. DERRY MILLAR: 18 Q: And the note -- the second-last 19 paragraph talks about the agreed upon goal, which is the 20 removal of the people from the Park, that was the -- 21 A: That was the consensus of the group, 22 that it's not desirable to have these people to -- 23 continuing to occupy the Park. 24 Q: And is it fair to say that was -- 25 that's consistent with dealing with blockades, to --
2701 A: Yes. 2 Q: -- to try to deal with the blockade 3 by getting the blockade over or -- 4 A: Yes. 5 Q: -- an occupation -- 6 A: Yes. 7 Q: -- to come to an end? 8 A: Yes. 9 Q: And then I note, just if we -- before 10 we move on, at Tab 19 there's a document, Inquiry 11 Document 1011712, and it has on it in quotes in 12 handwriting: "Sept. 05/'95.IPP." 13 And it's actually dated August 5th, 1995 14 and it's a three (3) page document, and these were the 15 draft minutes prepared by Ms. Nepton? 16 A: Yes. 17 Q: And you then reviewed those minutes 18 and made the minutes, the final minutes that appear at 19 Tab 22 and are parts of Exhibits P-459 and 509? 20 A: Yes. 21 Q: And why did you take the minutes of 22 Ms. Nepton and change them? 23 A: Well, I corrected them. I guess I 24 always -- I view anything that is given to me as a draft. 25 Q: Yeah.
2711 A: And maybe this is part of some civil 2 service thing, but I guess anything can be improved. And 3 I was quite concerned, not only with accuracy but I guess 4 with the tone of -- of things that are sent out. And, as 5 I said, having been the Secretary to the Cabinet 6 Committee on Justice, I'm very aware of the importance of 7 written records of meetings. 8 So no matter what, I would always go 9 through any meeting notes that were prepared by anyone 10 under my direction, fairly closely, and make changes that 11 I thought were appropriate. And I still do that today in 12 meeting notes that I review for committees that I chair. 13 Q: One (1) of the changes I noticed was 14 that on the attendance there's -- some of the 15 individuals, their positions are noted, for example, 16 Chris Buhagiar, PA-ONAS; do you know what PA stands for? 17 A: I think that it means that he was 18 with the Parliamentary Assistant for ONAS -- 19 Q: And -- 20 A: -- which would be Dan Newman. 21 Q: And why were these descriptors -- did 22 you remove these types of descriptors? 23 A: Well, some of them -- I think that 24 there was just -- we -- I don't know that we had -- that 25 our practice had been to indicate exactly where people
2721 were. It's not that -- it certainly wasn't a secret, 2 where -- which part of government people were from. 3 There was actually an error in this. For 4 example, it said that G. Wallace Pidgeon was with the PA 5 for ONAS, and that is not true. He was, I believe, with 6 the Civil Service at ONAS. 7 So it was just a level of detail that I 8 decided was unnecessary and that we hadn't done 9 consistently. Like, a whole bunch of these people, it 10 doesn't say, you know, like, Leith Hunter, it just says 11 MNR, whereas Andrew MacDonald it says: "MAG Aboriginal 12 Issues Group," and Elizabeth Christie it says: "MEG CLO 13 - Civil." So that was just to have a more consistent 14 format. 15 Otherwise, we would have had to have 16 researched and gotten the exact correct title for 17 everybody, which we obviously weren't very good at doing 18 since there were already errors in the first draft. 19 Q: And then under, "Background on Stoney 20 Point Group," there a one (1) paragraph note on the draft 21 and two (2) paragraphs on the final document at Tab 22, 22 with additional information; you simply wanted to provide 23 more information, or why did you add that second 24 paragraph? 25 A: Yes. I felt that this information
2731 had been left out and it was relevant to the background. 2 Q: And were these minutes distributed to 3 the participants as we've seen, but to others within 4 their ministry? 5 A: It was certainly distributed to all 6 participants and then it would be up to them to -- how 7 much further they wanted to distribute them. 8 9 (BRIEF PAUSE) 10 11 Q: And in any event at the final 12 minutes, the minutes as distributed, were those at Tab 22 13 parts of Exhibit P-459 and 509? 14 A: Sorry, the final ones were the ones-- 15 Q: At Tab 22? 16 A: Yes. And just some it, in some 17 cases, it's just that the information is slightly 18 rearranged, because some of it is in different locations 19 but it's the same information. 20 But -- and there are a number of errors 21 that were corrected; just dates that were wrong and 22 people who were alleged to have attended who did not 23 attend and things like that, so. 24 Q: So, in effect, you had long 25 experience in dealing with minutes and --
2741 A: Yes. 2 Q: -- so you applied that long 3 experience to these -- the draft prepared by your 4 articling student? 5 A: Yes. 6 Q: Thank you. Perhaps that would be an 7 appropriate place to stop today? 8 COMMISSIONER SIDNEY LINDEN: I think so. 9 MR. DERRY MILLAR: And we'll start again 10 tomorrow morning, Ms. Jai, at nine o'clock. 11 THE WITNESS: Okay. 12 COMMISSIONER SIDNEY LINDEN: All right, 13 we'll adjourn now until tomorrow morning at 9:00. 14 15 (WITNESS RETIRES) 16 17 THE REGISTRAR: This public Inquiry is 18 adjourned until tomorrow, Wednesday, August 31st at 9:00 19 a.m. 20 21 --- Upon adjourning at 4:41 p.m. 22 23 24 25
2751 2 3 4 5 Certified Correct 6 7 8 9 10 ________________________ 11 Dustin Warnock 12 13 14 15 16 17 18 19 20 21 22 23 24 25