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 September 8th, 2004 25
21 Appearances 2 3 Derry Millar ) Commission Counsel 4 Susan Vella ) 5 Donald Worme, Q.C. ) 6 Katherine Hensel ) 7 8 Murray Klippenstein ) The Estate of Dudley 9 Vilko Zbogar ) (np) George and George Andrew 10 Andrew Okin ) Family Group 11 Basil Alexander ) Student-at-law 12 13 Peter Rosenthal ) Aazhoodena and George 14 Jackie Esmonde ) Family Group 15 16 Anthony Ross ) Residents of 17 Kevin Scullion ) Aazhoodena 18 (Army Camp) 19 20 William Henderson ) Kettle Point & Stony 21 Jonathon George ) Point First Nation 22 23 Kim Twohig ) (np) Government of Ontario 24 Walter Myrka ) 25 Sue Freeborn )
31 APPEARANCES (cont'd) 2 3 Janet Clermont ) Municipality of 4 David Nash ) (Np) Lambton Shores 5 6 Peter Downard ) The Honourable Michael 7 Bill Hourigan ) (Np) Harris 8 Jennifer McAleer ) 9 10 Nancy Spies ) (Np) Robert Runciman 11 Alice Mrozek ) 12 13 Harvey Stosberg ) (Np) Charles Narnick 14 Jacqueline Horvat ) 15 16 Douglas Sulman, Q.C. ) Marcel Beaubien 17 Trevor Hinnegan ) (Np) 18 19 Mark Sandler ) (Np) Ontario Provincial 20 Andrea Tuck-Jackson ) Police 21 22 Ian Roland ) Ontario Provincial 23 Karen Jones ) Police Association & 24 Debra Newell ) (Np) K. Deane 25
41 APPEARANCES (cont'd) 2 3 Julian Falconer ) (np) Aboriginal Legal 4 Brian Eyolfson ) Services of Toronto 5 Julian Roy ) (np) 6 7 Al J.C. O'Marra ) (np) Office of the Chief 8 Francine Borsanyi ) Coroner 9 10 William Horton ) Chiefs of Ontario 11 Matthew Horner ) (Np) 12 Kathleen Lickers ) (Np) 13 14 Mark Frederick ) Christopher Hodgson 15 16 David Roebuck ) (Np) Debbie Hutton 17 Anna Perschy ) (Np) 18 Melissa Panjer ) 19 20 21 22 23 24 25
51 2 TABLE OF CONTENTS 3 PAGE NO. 4 List of Exhibits 6 5 6 Joan Holmes, Resumed: 7 Continued Cross-Examination by Peter Rosenthal 9 8 Cross-Examination by Mr. Anthony Ross 36 9 Cross-Examination by Mr. William Henderson 51 10 Cross-Examination by Mr. William Horton 64 11 Cross-Examination by Mr. Brian Eyolfson 71 12 Cross-Examination by Mr. Walter Myrka 84 13 Cross-Examination by Mr. Peter Downard 101 14 Cross-Examination by Mr. Douglas Sulman 186 15 Cross-Examination by Mr. Mark Frederick 199 16 Re-Direct Examination by Ms. Susan Vella 208 17 Re-Cross-Examination by Mr. Peter Downard 218 18 19 20 21 22 23 Reporter's Certificate 222 24 25
61 LIST OF EXHIBITS 2 EXHIBIT NO. DESCRIPTION PAGE NO. 3 P-12 Sarnia Observer article. 29 4 P-13 Document Brief submitted by 5 Peter Downard 101 6 P-14 Article from Hamilton Spectator 210 7 P-15 Transcribed letter. 212 8 P-16 Memorandum from Ian Seddon, dated 9 September the 5th, 1995, 8:44 a.m. 215 10 P-17 Ministry of Natural Resources 11 Document, Inquiry Document Number 12 1011882, a fax cover sheet and Memo 13 dated September 12th, 1995, from 14 Ian Seddon to Peter Allen and Peter 15 Sturdy with the Ontario Ministry 16 of Natural Resources. 217 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 10:32 a.m. 2 3 THE REGISTRAR: This Public Inquiry is now 4 in session. The Honourable Mr. Justice Linden presiding. 5 MR. DERRY MILLAR: Good morning, 6 Commissioner. 7 COMMISSIONER SIDNEY LINDEN: Good Morning. 8 MR. DERRY MILLAR: Before we being today, 9 Commissioner, I just wanted to briefly comment on an 10 issue that occurred last week. The Commission released 11 certain information to the parties a week ago Monday and 12 a press conference was held on Friday last. When we 13 learned of the press conference we had an exchange of 14 views with Mr. Klippenstein and Mr. Orkin with respect to 15 the press conference. 16 In our view it's important for all parties 17 to remember that the Commission is here to act in the 18 public interest to investigate the circumstances 19 surrounding the death of Dudley George and to make 20 recommendations to prevent that violence in the future. 21 Accordingly, as we discharge our 22 obligations, we are gathered -- gathering -- it's an 23 ongoing process and have gathered a substantial amount of 24 information. I can understand the concern by parties if 25 they are receiving information from the Commission that
81 they believe should have been made available by others 2 before in different proceedings. 3 However, the fact that this information is 4 being made available to the Commission and then to the 5 Public, shows that our process is working. It is in the 6 Public interest that information and evidence be 7 disclosed to non-parties in accordance with our rules 8 within our process. 9 The hearing process ensures that when 10 introduced, evidence will be in its proper context, 11 parties will have the opportunity to cross-examine and to 12 deal with the evidence elicited from the Witness. 13 It is the duty of the Commission to ensure 14 fairness to all parties. Fairness is ensured by the 15 introduction of evidence at the appropriate time at the 16 Hearing. 17 There is a process underway now to deal 18 with the issue raised last week and more -- the -- we -- 19 the Commission and Counsel will be dealing with that 20 process later in the week and next week as we go along 21 and that's simply all I have to say. Thank you, 22 Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Fine. 24 MR. DERRY MILLAR: What we're going to do 25 today is Ms. Holmes is going to continue and we
91 anticipate that she will be the whole day based on what 2 we were told by Counsel. 3 COMMISSIONER SIDNEY LINDEN: That's fine, 4 Ms. Holmes? 5 MS. SUSAN VELLA: Ms. Holmes, take the 6 stand, please. 7 8 JOAN HOLMES, Resumed: 9 10 COMMISSIONER SIDNEY LINDEN: Mr. 11 Rosenthal...? 12 MR. BRIAN ROSENTHAL: Good Morning, Mr. 13 Commissioner, thank you. Good morning, Ms. Holmes. 14 THE WITNESS: Good morning, sir. 15 16 CONTINUED CROSS-EXAMINATION BY MR. BRIAN ROSENTHAL: 17 Q: Now, Ms. Holmes, in your testimony 18 last day and other days, perhaps, one (1) of the items 19 that you covered was the 1928 surrender of part of the 20 Stoney Point Reserve. It was bought, as your report 21 indicates on page 42, and I don't suggest you turn to it 22 necessarily, by a realtor -- a Sarnia realtor named W. J. 23 Scott. 24 In -- in that connection there's a 25 document that I've placed on your table there entitled,
101 "Sarnia's Mayors," in big print. Do you see that 2 document? 3 A: Yes, I have it, thank you. 4 Q: Now, this document was given to me by 5 one (1) of my clients, Pierre George, and I've submitted 6 it to the Commission a week or two (2) ago and I think, 7 put a copy on every Counsel's desk. I hope that's so, 8 and Mr. Commissioner, I believe you have a copy. 9 Mr. George informs me that this was from 10 the Sarnia Observer on Saturday, June 8th, 1996 and I 11 should like -- it's a short article -- I should like to 12 read it into the record if I may and then get your 13 comments as to how this affects the evaluation of the 14 surrender in 1928. 15 So, it's entitled, "Sarnia's Mayors -- A 16 History of our City's Leaders, Mayor Helped Develop 17 Provincial Park." And then it reads as follows: 18 "William J. Scott's main claim to fame 19 is that he played a role in the 20 development of Ipperwash Provincial 21 Park. Scott, who was elected our 22 forty-sixth (46) Chief Magistrate in 23 1928, talked senior government 24 officials into creating the popular and 25 controversial northland and
111 campground. Born in Oxford County he 2 came to Sarnia as a young man in 1904 3 in order set up his own bakery. Later 4 he became a well known real estate 5 agent and insurance salesman. 6 Developing an interest in municipal 7 politics, Scott ran for city council in 8 1921, winning a seat as an alderman. 9 He served seven (7) years on council 10 before moving up to the Mayor's chair. 11 Scott succeeded his friend and next 12 door neighbour, James Newton, as the 13 city's top politician. He took over at 14 a time when land developers wanted to 15 get their hands on three hundred and 16 seventy-seven (377) acres of Stoney 17 Point Indian reserve that would 18 eventually become home to both a 19 Canadian army base and Ipperwash 20 Provincial Park. 21 Part of the property was acquired by 22 non-natives in 1928, paving the way for 23 the hundred and seven (107) acre park 24 which opened in 1936. The rest of the 25 land was expropriated by the Federal
121 Government in 1942 for the creation of 2 a military base. According to a 1952 3 story in the Observer, Mr. Scott was 4 very active in the development of the 5 property at Ipperwash Beach and the 6 opening of the Ipperwash Park. In 7 these projects he gained the support of 8 Ross W. Gray, then MP for Lambton and 9 the Honourable Peter Heenan, then 10 Minister of Lands and Forests. 11 Nearly sixty (60) years after Ipperwash 12 opened it became the scene of a bloody 13 clash between Aboriginals, who said it 14 contains a native burial ground, and 15 OPP. One (1) man was killed in the 16 altercation and two (2) others were 17 injured. Today the park is closed 18 while authorities attempt to resolve 19 the native land claim surrounding it. 20 During Mayor Scott's administration, 21 the city also began stressing the need 22 for traffic safety. During Mr. Scott's 23 term of office as mayor, the first 24 safety drive to be held in the city was 25 launched, the Observer noted. Scott,
131 who was married to Mary Lockhart was a 2 member of the St. Andrew's Presbyterian 3 Church. In addition to his interest in 4 politics he was an avid golfer and 5 curler. Scott died in St. Joseph's 6 Hospital on July 25, 1952." 7 Now, this article doesn't contain some of 8 the information that's in your report, for example, 9 namely that Mr. Scott was the person who purchased the 10 land and made the quite extraordinary profit in reselling 11 it. 12 But, given that, and given the context 13 here, does that suggest that, in fact, in 1928 there was 14 -- there were already plans afoot it seems to make it 15 into a park and maybe it was -- it seemed like it was all 16 part of one (1) arrangement, perhaps, and can you, given 17 what you know about the situation, shed any light on that 18 or did you do any research that would shed any light on 19 that? 20 A: I think, as I covered in my report, 21 what we know is that Scott was the person who approached 22 Indian Affairs asking them to get a surrender of the land 23 in order that he can buy it, so we know that. We know 24 from the report that he was a real estate developer and I 25 don't have any evidence in my report that elaborates what
141 plans Mr. Scott had except obviously he wanted to buy -- 2 he wanted to buy the land from the government in order to 3 develop it. 4 Q: I appreciate that but this evidence 5 suggests a different dimension from what you have in your 6 report, namely that Mr. Scott was also -- he became mayor 7 in the same year -- of Sarnia -- in the same year as he 8 purchased the land, apparently. 9 A: Yes, I think what this newspaper 10 report shows us is that -- it tells us a little bit more 11 about who Mr. Scott is, that he was active in politics in 12 Sarnia. So, he was an alderman from 1921 and then it 13 says seven (7) years on council before he became the 14 mayor so it's -- it's unclear if he was the mayor before 15 or after the surrender but he's clearly -- he's an 16 influential politician in Sarnia -- 17 Q: Yes. 18 A: -- at the time that he seeks the land, 19 yes. 20 Q: Yes, and in your research you -- you 21 weren't aware that he was -- in addition to being a real 22 estate developer, an influential politician, right? 23 A: No. 24 Q: The answer is, yes, you were not aware 25 -- I'm correct, you were not aware. Is that right?
151 A: I -- I don't recall being aware of 2 that, no. 3 Q: And so I'm suggesting that that 4 awareness, perhaps, makes it seem even a little bit more 5 sinister than -- than without that awareness. 6 A: Well, actually, when you look -- he 7 was a -- he was a politician and a real estate developer 8 and he approached Indian Affairs to get a piece of land 9 that he wanted to buy so that tells us about who he is 10 and what kind of influence he may have had at the time 11 but it -- it doesn't -- but that's all it tells us, I 12 guess. 13 Q: I'm sorry. 14 A: I said, and that's what it tells us. 15 Q: I see. 16 A: That he was politically -- politically 17 connected and a real estate developer. 18 Q: Okay. And on page 49 of your report, 19 you indicated -- again you don't necessarily have to turn 20 to it, but there's a document that you might want to turn 21 to. 22 You indicate that there were fifty-eight 23 (58) location tickets covering the Stoney Point Reserve 24 lands and you recall that last time we talked about 25 several different numbers. There's the fifty-eight (58)
161 that you had in your report; there's a number sixteen 2 (16) that occurs elsewhere, fourteen (14) that occurs 3 elsewhere as to the number of families who were 4 appropriated at the time, 1942, and then there's also the 5 other document that we looked at quite extensively that 6 seems to list twenty-two (22) families or so, so -- 7 A: Actually, that -- that is a mistake in 8 the report. The -- the fifty-eight (58) location tickets 9 are at Kettle Point not at Stoney Point. They were 10 considered -- the -- the government was looking at that - 11 - was -- compiled that list of fifty-eight (58) location 12 tickets at Kettle Point because they were looking for 13 land for the -- for the displaced Stoney Point people. 14 Q: Yes, so that's what I wanted to 15 clarify. 16 A: Yes. 17 Q: So that's a mistake in your report. 18 A: Yeah, absolutely. 19 Q: It should read -- on page 49 -- the 20 last sentence of the last paragraph should read: 21 "There were fifty-eight (58) location 22 tickets covering the Kettle Point 23 Reserve lands." 24 A: That's correct. 25 Q: Is that correct?
171 A: That's correct, yes. I apologize for 2 that error; it was very confusing. 3 Q: Now, your slide 22, would you have the 4 capacity to put that on again for us? 5 MR. DERRY MILLAR: I think I'm going to 6 have to do it. 7 8 CONTINUED BY MR. BRIAN ROSENTHAL: 9 Q: Oh, sorry, okay. Sorry, I didn't 10 realize that or I would have warned you ahead of time. 11 12 (BRIEF PAUSE) 13 14 Q: I'm concerned, Ms. Holmes, with the 15 last paragraph of that slide -- of the written material 16 to the -- to the left of the map and -- thank you very 17 much. Now we can see -- even with bad eyes like mine, 18 very easily that it reads: 19 "Families originally from Stoney Point 20 finally got permission to resume using 21 the old cemetery in 1990." 22 Now, that would seem to suggest that there 23 was a general permission given by somebody that people 24 from Stoney Point can resume burials in the old cemetery. 25 Is that your understanding?
181 A: That references the permission to bury 2 a gentleman there by the name of -- a Mr. George. I'm 3 just trying to remember what his first name was. 4 Q: In fact, isn't it true that there was 5 only permission to bury one (1) person given at that 6 time. There was no general permission, as it suggests, 7 to -- to resume burials there. 8 A: There was permission to bury that one 9 (1) gentleman and in the -- if I'm -- my memory is 10 correct -- in the 1880 -- or the 1985 agreement, there 11 was a -- a clause in there that gave people the right to 12 visit the cemetery. 13 Q: And -- and what year was that? 14 A: In the 1985 agreement -- 15 Q: To visit the cemetery. 16 A: -- to visit and the burial was 1990. 17 Q: There was a burial in 1990, but your 18 slide says: 19 "Families originally from Stoney Point 20 finally got permission to resume using 21 the old cemetery in 1990." 22 That's not really correct, is it? 23 A: Well, perhaps it sounds more general. 24 They got permission to -- to use it in 1990, yes. 25 Q: In fact isn't what happened is that
191 the family of Dan George Sr. who is the father of many of 2 my clients got permission after his oldest son Graham 3 George, had to beg the Army Commando for such visit 4 permission and so the -- the -- it's -- his mother Melva 5 George and the two (2) of them had to beg for permission 6 to do that, and there was no general granting, isn't that 7 the true facts? 8 A: Well I -- I don't know -- I don't 9 know that much detail about it. All I know is that they 10 were given permission to use that burial in 1990 -- to 11 use the burial ground or the cemetery in 1990. 12 Q: For one burial. No general 13 permission as this seems to suggest; isn't that right? 14 A: I'm just aware of the one burial, 15 yes. 16 Q: Well are you aware of anything else 17 that would substantiate the sentence that they got 18 permission to resume using the old cemetery, a general 19 statement like that? 20 A: Well I guess that you -- you read 21 that statement in -- in a general way and I suppose it 22 would have been more precise to say that they got 23 permission to -- to use the -- the old cemetery in 1990 24 for a burial. 25 Q: Yes. Now, looking at your report at
201 page 70. You're right, on page 70: 2 "Some descendants of -- of former 3 Stoney Point residents took direct 4 action by occupying Camp Ipperwash in 5 1993." 6 Now in fact didn't the people who did that 7 include not only descendants of former Stoney Point 8 residents, but some people who themselves had been 9 residents in fact? 10 A: I'm not sure of the identity of all 11 the people who occupied the park at that -- or the camp 12 in 1993. As I pointed out when I -- when I first went 13 through my report, the last section of my report is -- is 14 not detailed research, it's based on -- on very general 15 accounts. 16 And the purpose of it was not to provide a 17 lot of detail, it was to -- to give a general overview to 18 bring the -- the issues from the historical period up to 19 date. And I -- I don't -- I never -- I never had the 20 material to identify all the people who moved into the 21 camp. And my -- my general understanding is that they're 22 descendants of Stoney Point people and they may have been 23 former residents as well. 24 Q: Well did you not come across the name 25 Clifford George when you looked at the 1993 reoccupation
211 of the land? 2 A: Yes, but as I have already said, I 3 didn't do a lot of detail on that section of the -- of 4 the research and I'm not aware of the personal history of 5 every person who is there and the identity of every 6 person who is there. 7 Q: All right. 8 A: I understand you will be having more 9 in depth evidence on those points. 10 Q: Did you come across the name Pearl 11 George in the course of your research? 12 A: I don't recall. 13 Q: I see. Now you didn't interview any 14 of the people from Stoney Point when you did your report, 15 right? 16 A: No. As I said my report is based on 17 historical documentation. I did no interviews. 18 Q: But in retrospect would it not have 19 been useful to at least talk to a couple people and see 20 if you could flesh out this information? 21 A: My mandate was to provide historical 22 documentation and a historical report on the background. 23 And I did that through the use of historical documents. 24 In a work of this nature I wouldn't go into the depth of 25 -- of interviewing people.
221 As I understood the -- the Commission will 2 be hearing evidence directly from people on these more 3 recent events. 4 Q: You read the thesis of Helen Rouge, 5 you told us, as part of your -- 6 A: Yes, I did. 7 Q: And she -- as you acknowledged last 8 time, did conduct some interviews with some of the people 9 as part of her research, right? 10 A: That's my understanding from her 11 research and from her -- 12 Q: And you don't recall from those 13 interviews that there were people interviewed including - 14 - in particular Pearl George interviewed who had lived in 15 Stoney Point and had been part of the reclaiming of the 16 land? 17 A: She -- I -- I don't recall off the top 18 of my head all the people she interviewed but as I said, 19 I wasn't -- I wasn't doing in-depth work on that section 20 of the history. 21 Q: Now, as you indicate in your report, 22 at page 66, I believe, that it was only in 1994 that the 23 Department of National Defence finally agreed to return 24 the army camp to the First Nations people, right? 25 A: I'm just trying to find that 1994 --
231 Q: Well, it's in your report on page 66. 2 A: Oh, sorry, 66. I'm on the wrong page. 3 Page 66 -- sorry -- okay, yeah -- sorry. Yes -- 4 Q: So it's correct, is it, that it was 5 only in 1994, more than fifty (50) years after the 6 seizure of the lands that the Department of National 7 Defence finally agreed that, in principle, they would 8 return it to the First Nations people. 9 A: Yes, prior to that, they had declined 10 to do so. 11 Q: Prior to that they had claimed it was 12 still military and necessary for them to retain that use 13 of that land, right? 14 A: Yeah, prior to that they -- they 15 stated that they still required the -- the camp. 16 Q: Yes. And you indicated that in 1942, 17 the Department of Indian Affairs would not have had the - 18 - I don't know what word you used -- but the equivalent 19 of fortitude, one might say, to oppose a department like 20 that- of National Defence in a takeover, but can you 21 explain why that persisted into the 1990s as well -- that 22 the Department of Indian Affairs did not insist well 23 prior to 1994, especially given the Jean Chretien letter 24 of 1972 that these lands be returned to the people they 25 had been taken from.
241 A: I think what I said was in -- in the - 2 - in 1942, in the -- during the war that Indian Affairs 3 would not have had -- not the fortitude, but the -- the 4 clout or the power or the influence to oppose or stand in 5 the way of the -- of the plans of the Department of 6 National Defence. I think that that's -- 7 Q: Yes. 8 A: -- was the political reality at the 9 time. 10 Q: What about then fifty (50) years 11 later, let's say 1992, fifty (50) years to the day later. 12 Was it the same situation or what's the explanation? 13 A: I -- I don't really know. I haven't 14 seen anything that really explains that. I would -- I 15 would speculate perhaps that -- that if it came to a 16 difference of opinion between the Department of National 17 Defence and the Department of Indian Affairs that, 18 obviously, the Department of National Defence was -- was 19 able to carry the day, so to speak, when they claimed 20 that they -- they still needed the land. 21 And the clause -- the clause in the 22 agreement is when they -- when they no longer need the 23 land, so, I suppose that that gave them some kind of 24 leverage in terms of claiming that they still needed the 25 land, therefore they would not return it.
251 But that's just speculation on my part 2 because I haven't -- I haven't seen anything that -- that 3 explains it in -- in more detail and more precisely than 4 that. 5 Q: Well, in fact, isn't it the case that, 6 say, in that fifty (50) year period, 1942 to 1992, there 7 aren't any documents suggesting that the Department of 8 Indian Affairs was strenuously trying to return that land 9 to the First Nations people. There wasn't a big struggle 10 with the Department of National Defence. 11 A: Well, the -- the documents that we've 12 seen are, for example, those two (2) Chretien letters 13 seem to be the -- they seem -- they seem to me to be the 14 strongest effort or the most strongly worded attempt to 15 get that land back, that's correct. 16 Q: Not only the strong -- more strongly 17 worded, they're the only ones, aren't they, that the 18 documents are revealing? 19 A: Well there may be -- there might -- 20 there are -- there may be other documents of exchange. I 21 wouldn't say that they're the only ones, but they are 22 certainly the most -- the most direct and -- and the 23 strongest ones, yes. 24 Q: Well have you provided other 25 documents for us that would indicate that the Department
261 of Indian Affairs was demanding that the Department of 2 National Defence return the land that they had seized 3 from these people during the Second World War? 4 A: I'd actually have to have a quick 5 look at my index to see if there's any -- if there's any 6 other ones. Those are the ones that -- that I remember. 7 There's also -- in the -- 8 Q: Take a quick look at your index. 9 A: Okay. No, you have to remember that 10 -- that my -- my report doesn't include every single 11 document that there is on an issue. There are always 12 other documents, many of them administrative and thank 13 you very much, I got your letter and back and forth and, 14 though -- the documents that I provide, the ones that are 15 -- are the most pertinent. 16 So, I -- you know -- I wouldn't make a 17 statement like there were no other documents. 18 Q: Well, have you provided any other 19 documents? 20 A: Well, I'm going to have a quick look 21 here so that I don't make a liar of myself. 22 23 (BRIEF PAUSE) 24 25 A: Well, the first document that I drew
271 your attention to was the -- it's Document 386 in the 2 collection with all the zeros in front of it; that it's 3 dated May 16, 1946 and it's from the Deputy Minister of 4 the Department of National Defence and he, in fact, is 5 responding to a letter from Indian Affairs regarding the 6 asking about the status of the camp. 7 So that's a document that I, in fact, 8 didn't provide in the collection but it is a -- 9 Q: You didn't provide that in your -- 10 A: I did not. 11 Q: And what do you say the content of 12 that document is? 13 A: Well, he -- the depart -- the 14 Department of Indian Affairs wrote a letter on March 21, 15 1946 asking about, was Camp Ipperwash going to be 16 returned? 17 So what I'm -- the point I'm trying to 18 make to you is that, in my collection of doc -- in my 19 collection and in my report, every document that was 20 written is not included. So that's an example, because 21 what I put in was the reply. 22 Q: I appreciate that Ms. Holmes. 23 A: This is to -- 24 Q: I'm suggesting -- let me suggest to 25 you the following. I'm suggesting to you that, given the
281 situation, and their responsibility, the Department of 2 Indian Affairs should have been badgering the Department 3 of National Defence constantly and strongly from at least 4 1945 until 1994 to return that land and there is no 5 evidence of that. 6 Now would you agree with that statement? 7 A: I would agree that the historical 8 documentation shows that the Department of Indian Affairs 9 made sporadic efforts to have the army camp returned -- 10 returned to the band, or at least returned to the 11 Department of Indian Affairs. 12 Q: Sporadic efforts? Is that the word? 13 A: Yeah. 14 Q: And -- 15 A: Because there -- there are efforts 16 from time to time. 17 Q: And the only ones you've documented 18 is the one -- the letter from Mr. Chretien in 1972? 19 A: Well, we've -- we've documented the - 20 - the exchanges that happened from time to time in the 21 40's. We didn't see anything in the 50's. In the 60's I 22 think that there's one (1) exchange, and then the most -- 23 the strongest and most powerful one that we see in that 24 fifty (50) odd year period is that 1972 -- the two (2) 25 letters from -- from Chretien. That's -- yeah, that --
291 that would be the -- 2 Q: You -- 3 A: -- the sum of it. 4 Q: You indicated in your report, on 5 page 65, that at the time of the occupation, the Band was 6 divided on whether or not the occupation was a good 7 thing, and you referenced a document, and I should like 8 to refer to that document, it's Inquiry Document 4000333. 9 And, Mr. Commissioner, sorry, upon my 10 doing that, I realize that I should have made the, as 11 part of Sarnia Observer article an exhibit at these 12 Proceedings, obviously, although I read it in, and so my 13 apologies for not doing that at the time, and may I 14 request that it be done now? 15 THE REGISTRAR: Exhibit P-12, Your 16 Honour. 17 COMMISSIONER SIDNEY LINDEN: P-12? 18 THE REGISTRAR: P-12. Thank you very 19 much. 20 21 --- Exhibit No. P-12: Sarnia Observer article. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: And then, I'm now going to be 25 referring to Inquiry Document No. 4000333. I do have a
301 hard copy, if that would assist you, Ms. Holmes. 2 A: Well, could you just tell me the 3 date? 4 Q: Yes, it's, well it's a -- it's an 5 article from the Hamilton Spectator, dated August 2, 6 1995. I think I have the Inquiry document number 7 correct, do I? 8 Q: Okay, we -- we have it on the screen 9 behind you, Ms. Holmes, but I do have an extra hard copy 10 if that would assist you. 11 A: Sure, that would be great. 12 Q: For my friends with computers, it's 13 4000333, and it's a document from the Hamilton Spectator, 14 Wednesday, August 2nd, 1995; it's an article entitled, 15 "Standoff Doesn't Phase Beach Crowd, Many Vacationers 16 Ignored Dispute on Military Base." And it's attributed 17 to the Canadian Press. 18 And this is the document that you 19 footnote, Ms. Holmes, in your report, when you indicate 20 that there was division within the Band. 21 A: Sorry, could you tell me the page of 22 the report again? 23 Q: Yes, it's page 65. And then, 24 presumably what you were referring to, I'll -- I'll read 25 from the -- towards the bottom of the document. In order
311 to understand the context, I'll read from, "We've had 2 phone calls..." Is that part of the screen here. Sorry, 3 if you could scroll down a bit, please, Mr. Millar. 4 Thank you. 5 Now, it's a little bit below the middle of 6 our screen, and it's also a little bit below the middle 7 of the article, and the pointer is pointing to is, thank 8 you. Just to read the context: 9 "We've had phone calls from Americans 10 and Canadians asking, "How far are you 11 from the Indians?", said Pierre Schoss, 12 sixty-seven (67), owner of a nearby 13 trailer park where business is 14 suffering. People think there's a war 15 going on here. Chief Tom Bressette of 16 the Kettle and Stoney Point Band 17 agrees, quote: There's no doubt about 18 it, it's hurting the tourism industry 19 and our relations with our neighbours, 20 he said. Mr. Bressette doesn't condone 21 the actions of the occupiers and 22 dismisses them as a splinter group. He 23 was to hold a meeting of sixteen 24 hundred (1,600) Band members last night 25 in hopes of finding a resolution to the
321 impasse he says is overshadowing 2 negotiations with Ottawa to have the 3 land returned." 4 Now, that's what you footnoted as your 5 evidence for the dissension within the Bands; is that 6 correct? 7 A: That was the footnote to the -- the 8 quotation, negotiations, which is the last -- the 9 quotation that's in that paragraph, and this was one (1) 10 -- one (1) of many articles that -- that referred to the 11 conflict within the -- within the Kettle and Stoney Point 12 Band, yes. 13 Q: Yes. Now, we saw a little bit 14 earlier this morning that it was 1994, when the 15 Department of National Defence finally agreed that in 16 principle, the lands were to be returned. 17 And we know that the occupation of the 18 lands by the Stoney Pointers began in 1993. 19 Now, would you create as a reasonable 20 conclusion, that what finally broke the impasse after 21 fifty (50) years was not a letter from Indian Affairs, 22 but the occupation by the Stoney Pointers? 23 A: Sorry, you're -- you're asking me if 24 -- if what caused -- or what urged or caused the -- 25 you're asking me what -- if the occupation caused the
331 Department of National Defence to decide to return the -- 2 the land to the Band? 3 Q: Of if it at least played a 4 significant role, it would appear, isn't that -- is that 5 not so? 6 A: Well, I -- I don't feel that I can 7 really properly comment on that, because I haven't -- I 8 haven't seen the discussion within Department of National 9 Defence, like if I -- if I was doing in-depth research 10 on a question like that, I would want to look at the -- 11 the notes and the correspondence that was going on within 12 the Department of National Defence to see what their -- 13 their thinking was around -- 14 Q: Well, excuse me -- 15 A: -- making that decision. 16 Q: -- were you prohibited from doing 17 that somehow? 18 A: No, I -- no, I wasn't, but -- 19 Q: Well, why didn't you do it? 20 A: I'll -- I'll just make this comment 21 again, one (1) more time. My job was to do -- provide 22 general historical background on the -- the history of 23 Kettle and Stoney Point. I had three (3) months within 24 which to do this, I was doing general background and the 25 -- the modern period. I was only going over in a -- a
341 fairly superficial outline manner, in order to bring the 2 history up to date. It wasn't the main focus of my work, 3 to -- to research in detail, the modern period. 4 So, as I explained when I was -- when I 5 was presenting the material from the report, when it came 6 to the -- the modern period, I was relying on very few 7 sources, and it was very much an overview, not an in- 8 depth look at it. 9 So, I can't really comment on what 10 motivated the Department of National Defence, because the 11 resources that I have are -- are few, and I -- and I 12 wouldn't consider it a responsible -- to -- to draw any 13 conclusions, based on the level of the work that I've 14 done. 15 Q: And so in particular, you didn't 16 record it as part of your mandate to seriously study the 17 question of -- of the land being returned in 1994? 18 A: Well, the land wasn't returned. 19 Q: It wasn't returned, but -- 20 A: The land has not been returned. 21 Q: It has still not been formally 22 returned. 23 A: That's correct. 24 Q: That's right. But the 1994 statement 25 that to be returned in principle, you didn't investigate
351 how that came about? 2 A: No, I did not. 3 Q: Okay. 4 A: In your research, have you come 5 across any other situations, say in the 20th century, or 6 perhaps the 21st century, anything since 1900, where an 7 entire reserve was seized, not surrendered, but seized by 8 the Federal Government, other than the 1942 seizure of 9 Stoney Point reserve? 10 A: I'm not aware of any other ones, of 11 an entire Reserve. 12 Q: Yes, that's quite an extraordinary 13 event, is it not? 14 A: I -- I would say it is, yes. 15 Q: And even with the terrible history of 16 treatment of First Nations people, in general, by the 17 British Crown and the Canadian successor government, this 18 stands out as one (1) of the most atrocious seizures of 19 land from native people; is that a fair thing to say? 20 21 (BRIEF PAUSE) 22 23 A: From the -- the work that I've done, 24 I would say that I'm not aware of any other situation 25 where an entire Reserve has been taken. I'm not saying
361 that it's never been done, I'm just not aware of any. 2 And I would say that, yeah, that's very serious. 3 Q: Thank you very much, thank you, Mr. 4 Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much, Mr. Rosenthal. I don't recall who -- Mr. 7 Ross, are you next? 8 MR. ANTHONY ROSS: Thank you, Mr. 9 Commissioner. 10 11 CROSS-EXAMINATION BY MR. ANTHONY ROSS: 12 Q: Good day, Ms. Holmes. 13 A: Good day. 14 Q: First, I must thank you for a very, 15 very comprehensive piece of work. 16 A: Thank you. 17 Q: However, there are one (1) or two (2) 18 areas that I would like to explore. Now, I recognize 19 that we are not in an adversarial environment, so I'll 20 tell you straight what I'm heading for, just to see if 21 you can help me. 22 There are two (2) things, the first is 23 with respect to the taking of the land, in 1942. Let me 24 tell you what my problem is. 25 We know that in nineteen (19) -- in
371 eighteen (18) -- when the lands were set aside in 1827, 2 there was twenty-six hundred and fifty (2,650) acres set 3 aside for this Reserve, Stoney Point. 4 We also know that in 1928, three hundred 5 and seventy-seven (377) acres were taken. Am I correct 6 on those two (2) numbers so far? 7 A: I think so. 8 Q: Yes. They're consistent with your 9 report. You see, and that is where my problem comes, 10 because when I subtract the three hundred and seventy- 11 seven (377) from twenty-six fifty (2,650), I am left with 12 twenty-two hundred and seventy-three (2,273) acres, 13 straight arithmetic. 14 But then I go to the Order in Council, 15 which is document number 4000282, and specifically the 16 Government is paying for twenty-two hundred and forty 17 (2,240) acres. 18 The numbers correct so far? 19 A: Yeah, I -- actually I have to go and 20 check the original acreage -- 21 Q: Please do. 22 A: -- of the... 23 24 (BRIEF PAUSE) 25
381 Q: I could assist you, your slide number 2 16 reflects the three hundred and seventy-seven (377) 3 acres. 4 A: Which is the 1928 surrender. 5 Q: Yes. 6 A: And the original -- this is the 7 original acreage -- 8 Q: The original is on your slide number 9 7, which is twenty-six fifty (2650) acres. 10 A: Twenty-six fifty (2650), mmm hmm. 11 Q: You see, and that's where I have this 12 little difficulty with the Order in Council. Now, if we 13 look at the Order in Council -- 14 A: It looks like we're missing thirty- 15 three (33) acres. 16 Q: Absolutely. 17 A: Right. 18 Q: Which would tell me one (1) of two 19 (2) things. Either that the Government took more land 20 than they should and didn't pay for it, which I would not 21 want to believe, or on the other hand, the Government 22 became a co-tenant with the -- with the Chippewa, Kettle 23 and Stoney Point, with respect to the -- the twenty-two 24 hundred and seventy-three (2273) acres. 25 They took twenty-two hundred and forty
391 (2240), so there is a thirty-three (33) acre problem that 2 is left unresolved. 3 Are you there with the arithmetic? 4 A: I agree with the arithmetic. 5 Q: Okay, fine, that's good enough for 6 me. Now, the other thing I'm concerned about -- 7 A: Oh, did you want me to comment on it? 8 Is there a question there, or -- 9 Q: Well, no, I just wanted to confirm 10 that the numbers that I've provided is consistent with 11 your research? 12 A: It is, but what that thirty-three 13 (33) acres, and this is not research that I've done, but 14 if I was -- if I was going to do the research to look 15 into the thirty-three (33) acres, the first thing that I 16 would look for is if there were any other takings for 17 small pieces of land like roadways, which -- which often 18 is a case on reserves. Also, I would verify that all 19 those are accurate survey numbers, those acreages. 20 So I can't explain to you the discrepancy 21 in the math, but in order to -- to figure out -- I think 22 that if -- when you have a -- in my experience, when you 23 have a discrepancy in land like that which is very, very 24 frequent when you're dealing with Indian Reserve land, 25 that there's a number of steps that you take to figure
401 out where that discrepancy is. 2 And it could be any number of things: 3 inaccurate survey figures or takings for roadways which 4 are very common. I'm not sure if there are any there. 5 Or it could be some kind of an anomaly as you suggested. 6 Q: But right now with what we have 7 before this Commission of Inquiry, there are questions 8 still to be resolved about that thirty-three (33) acres? 9 A: I would say so. 10 Q: Yes. In your report at Page 17, 11 there's a reference to a -- surveys done by Burwell. 12 A: Yes. 13 Q: These surveys, any idea when the -- 14 the surveys were done by Burwell? 15 A: In 1826. 16 Q: I see. So they were old surveys? 17 A: That's correct. That was the 18 original -- Burwell, if you recall, did the original 19 survey outlining the -- the description of the 20 surrendered tract and the outlines of the reserves that 21 were being set aside in 1827. 22 Q: I see, thank you. Now going back for 23 a minute to the Order in Council. As I read the 24 document, it starts by identifying the -- in -- in a -- 25 in the pre-amble or the -- the premises that it was
411 necessary to provide an advance training centre in 2 Military District Number 1. 3 You'd agree with me that that is pretty 4 specific as to why they want these lands? An advance 5 training centre. 6 A: That's -- 7 Q: That's what they said? 8 A: That's what they said -- 9 Q: Yes. 10 A: Yes. 11 Q: So we understand the purpose. And as 12 far as the site is concerned, it goes on to say in the 13 pre-amble, that: 14 "A suitable site has been located, 15 comprising approximately twenty-two 16 hundred and forty (2,240) acres on the 17 Stoney Point Indian Reserve." 18 It did not say the full Stoney Point 19 Reserve. It says twenty-two hundred and forty (2,240) 20 acres on the Stoney Point Reserve. So we understand the 21 purpose, now we recognize the general location of the 22 site -- sorry, the specific location of the site. It's 23 to be on the Reserve. Correct, so far? 24 A: Yes. 25 Q: Now, we go a little further and we've
421 just looked at the body of the body of the Order in 2 Council over on page 2 when there's a specific indication 3 of what is being taken, and again it repeats that twenty- 4 two hundred and forty (2,240) acres. 5 So here we've got it, site specific, 6 quantum specific, and purpose specific. Correct so far? 7 A: Hmm hmm. 8 Q: Yeah. And you would agree with me 9 that this expropriation process is really a type of an 10 extreme measure as far as land acquisition is concerned? 11 A: Yes, it is. 12 Q: Yeah. And as far as these lands are 13 concerned that we're speaking about at Stoney Point, 14 these were -- these lands were never, ever ceded. They 15 were excluded from what was surrendered in 1827. 16 Am I correct with that? 17 A: That's my understanding, yes. 18 Q: So the underlying title on these 19 lands were never in the hands of Her Majesty the Queen? 20 Or the Crown, let's call it? 21 A: Yeah, I think that that's really a 22 legal question, what -- what the status is. 23 Q: Thank you. But what you can tell me 24 as a researcher is that these lands were never ceded? 25 A: It was excepted out of the ceded
431 tract, yes. 2 Q: Precisely. The other area that I 3 want to explore very quickly, is the numbers that were 4 involved -- the people who voted at the various 5 referenda. 6 Would you agree with me that with the 7 Treaty of 1872 -- 8 A: 1827. 9 Q: Sorry, eighteen (18) -- that's -- I 10 can warn you, that's a problem you're going to have with 11 me, I interpose these numbers, mostly to my convenience. 12 The Treaty of 1827, this -- this Treaty 13 really clearly established the difference between the 14 Reserve lands and Treaty lands; is that a correct -- a 15 fair and correct statement? 16 A: Can you just say that again? 17 Q: Yes. I am suggesting to you that the 18 Treaty of 1827, what it did, it established clearly what 19 the Reserve lands were -- 20 A: Correct. 21 Q: -- and the others, the ceded lands, 22 were the Treaty lands? 23 A: It was land ceded to the Crown, yeah. 24 Q: Yes. But the -- the Indians still 25 had some interest in those lands, the use and occupation
441 until such time as it's taken up for settlement type 2 interest? 3 A: Actually in the 1827 Treaty, I'd have 4 to look at it again, but I don't think that -- that it -- 5 I don't think that that treaty was explicit on what the 6 continuing use was in the way that -- like later treaties 7 are. 8 Q: But is it clear -- is it fair to say 9 from your research though, that the Indians could not 10 have really expected that by signing the treaties -- that 11 treaty in 1827, that they would be relegated specifically 12 just to the Reserve lands. They were still nomadic 13 weren't they? 14 A: Yes, they were. And if you look at 15 the way in which people lived after the treaty, the 16 evidence from people such as Missionaries and Indian 17 Agents, they indicate that people were not -- didn't -- 18 remain solely on their Reserve, they were using land, 19 they were hunting and sugaring and trapping and what not, 20 on other land, on the land that had been ceded to the 21 Crown. 22 Q: And that would not really be 23 inconsistent with the treaties that followed 1827, for 24 instance, even as far as Treaty 9 was concerned, I 25 understand that you've done work on Treaty 9?
451 A: Yes. 2 Q: There were provisions that you can 3 continue with your way of life until such time as the 4 land is being taken up for settlement? 5 A: Yes, that -- that -- that type of a 6 clause was generally written into all of the later 7 treaties. 8 Q: Precisely, but it was not 9 inconsistent with the general conduct, as between the 10 Indians and the Crown, with respect to the earlier 11 treaties, was it? 12 A: I would say that's correct. 13 Q: Hmm hmm. Now, the other thing that 14 I'm concerned about is numbers. And I look at your slide 15 number 21. Yes, please, slide number 21. 16 17 (BRIEF PAUSE) 18 19 Q: And this is a form of population 20 distribution chart, among other things, for the Chippewa 21 of Kettle and Stoney Point? 22 A: That's correct. 23 Q: And as I refer very quickly to the 24 taking of the -- the foreshore of the Kettle Point 25 Reserve, which is reported on pages 39 and 40 of your
461 report, that only twenty-seven (27) -- that is twenty- 2 seven (27) of thirty-nine (39) people voted for that 3 taking. 4 A: Yes, sorry, I'm just trying to find 5 the numbers to verify that. 6 Q: It might be around page 39 or 40. 7 A: You're right. 8 Q: Thirty-nine (39) and forty (40). 9 A: That's correct. 1927...? 10 Q: Yes. 11 A: There were thirty-nine (39) names 12 listed on the -- the voter's pole and twenty-seven (27) 13 of those voted. 14 Q: Yes. And when we go to 1928, we've 15 got twenty-five (25) of twenty-eight (28) voting for the 16 sale of the three hundred and seventy-seven (377) acres. 17 18 (BRIEF PAUSE) 19 20 A: Yes, at that -- at that meeting, 21 there's -- there's supposed to have been twenty-eight 22 (28) members who were present at the meeting, and twenty- 23 five (25) of those voted in favour and three (3) against. 24 Q: Yes. And in 1942, when there was an 25 attempt at the surrender, for military purposes, we knew
471 that fifty-nine (59) voted against and thirty-nine (39) 2 voted for. 3 A: Thirty-nine (39) voted for? Are you 4 sure? 5 Q: Fifteen -- sorry, thirteen (13). 6 Fifty-nine (59) voted against and thirteen (13) -- 7 A: Thirteen (13) -- 8 Q: -- thirteen (13) -- 9 A: -- voted against. 10 Q: But you see, that's the thing, that's 11 why I asked you to put this chart up. As I take those 12 numbers, and I try to match them against the chart, it 13 suggests to me that further work might need to be done. 14 I recognize what your terms of reference were, by the 15 way, as far as identifying the -- the individuals 16 entitled to vote at these surrender meetings. 17 I would follow that by suggesting to you - 18 - by asking you, sorry, in your research, the Indian pay 19 lists for the different Reserves, are they readily 20 available? 21 A: Pay lists from 1905 and earlier are 22 readily available, from 1906 forward into the modern 23 time, those pay lists are restricted under accessed 24 information privacy laws; they -- they are available, you 25 know, for -- with permission.
481 Q: I see. I tell you why I'm asking 2 that, because when I'm having a problem with the numbers, 3 I go back and my understanding is that the Crown is 4 responsible for Indians and land reserves for Indians; 5 you've heard that term? 6 A: Yes. 7 Q: Yes. And if the treaties, the 8 treaties have got a provision for almost a renewing of 9 the covenant, and there's -- there's treaty money which 10 is paid once a year; correct so far? 11 A: Yes, it's interpreted that way, yes. 12 Q: Yes. So, Canada's pay lists, if 13 available, should be able to assist us in knowing the 14 numbers of the Chippewa of Kettle and Stoney, in 1927, 15 when there was a surrender, and 1928 and when there was a 16 taking in 1942? 17 A: That's correct. 18 Q: Yes. Just one (1) other minor 19 matter, sorry, one (1) other short matter, not 20 necessarily minor. As I review the work, the -- your 21 work product with respect to the Royal Proclamation of 22 1763, it appears that the Proclamation was intended to 23 identify settled lands on the east and what was now 24 become Indian lands on the west; is that a fair 25 statement?
491 A: That's correct. 2 Q: Yeah. And by its own wording, it was 3 intended to -- to really impose the Crown between the 4 settlers and the Indians, to avoid exploitation? 5 A: That's correct, yes. 6 Q: I won't ask you if it worked, but I 7 will suggest to you that it did work, and in fact, there 8 are very few situations after the Proclamation, where 9 there have been purchases -- there have been non-Crown 10 purchases of Indian lands? 11 A: That there have been very few of 12 those? 13 Q: If any? Can you -- can you recall 14 any, in your research, or in your experience? 15 A: Well, there are some -- some areas of 16 the Country, which were designated by the Royal 17 Proclamation as Indian country, where there was 18 settlement without a treaty, prior to there being a 19 treaty. 20 But generally speaking, it is more common 21 that there was a treaty taken either prior to or right 22 around the time when settlers started to settle. 23 It's -- that's a bit of a hard question to 24 answer, because in many parts of the country there was 25 some kind of settlement, even though it was designated
501 Indian country, there was in fact some settlement prior - 2 - prior to the Royal Proclamation. 3 Q: Perhaps I can then narrate a bit. 4 Would you agree with me then, that as far as Ontario is 5 concerned, that the Crown successfully created a monopoly 6 on the acquisition -- on the acquisition of Indian lands? 7 A: In general, yes, with that one (1) 8 exception on the Ottawa River I would say, yes. 9 Q: And finally, -- through your 10 research, did you find that any other lands in southern 11 Ontario had been taken by the Crown, pursuant to the War 12 Measures Act; just your experience? 13 A: Any other Indian land, or land -- 14 Q: Lands period? 15 A: The only other land that I'm aware of 16 that was taken under the War Measures Act was land that 17 was seized from Japanese Canadians. I don't know if 18 there's any in Ontario or not. 19 Q: Thank you very much, Ms. Holmes. 20 A: Thank you. 21 MR. ANTHONY ROSS: Thank you, Mr. 22 Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much. Where do we go now? 25
511 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Mr. 4 Henderson...? 5 MR. WILLIAM HENDERSON: Thank you, 6 Commissioner. 7 8 CROSS-EXAMINATION BY MR. WILLIAM HENDERSON: 9 Q: Good morning, Ms. Holmes. 10 A: Good morning. 11 Q: My name is Bill Henderson, and I 12 represent the Chippewas in Kettle and Stoney Point. 13 When you were looking a few minutes ago at 14 the Order in Council, which approved the appropriation of 15 the Stoney Point Reserve under the War Measures Act, I 16 did not notice the Governor in Council being advised that 17 a vote had been taken, and that the electors of the First 18 Nation opposed that taking? 19 A: I -- I don't recall any record of him 20 being advised. Senior people in the Department of Indian 21 Affairs were certainly aware of it, but I don't -- don't 22 see it referenced in the Order in Council. 23 Q: Well, certainly, the National Defence 24 people, and Indian Affairs people, which was then the 25 Department of Mines and Resources actually, and other
521 things that are exploited. 2 The -- those officials would have been 3 aware, but the question is, did they advise the Governor 4 General in Council, which is in effect, a Committee of 5 Cabinet, or a Committee of the Privy Council. It's not 6 an individual? 7 A: That's correct. 8 Q: Now, in the information that is 9 submitted to the Governor General in Council, and the 10 approval that is there, there is no recital that in fact 11 the electors of the First Nation had voted on this 12 proposed appropriation and that they had opposed it. 13 A: I don't think there was but if you 14 want to give me one (1) minute I want to check -- just 15 check my documents. 16 Q: If we may, Commissioner. 17 18 (BRIEF PAUSE) 19 20 A: Sorry, can you just remind me of the 21 document number for that Order in Council? Was it 282? 22 Q: 4000282. 23 24 (BRIEF PAUSE) 25
531 A: I don't see any record of them being 2 advised. 3 Q: In fact, I'm looking at the -- the 4 third paragraph of text and it says 5 "negotiations were entered into by 6 National Defence and Indian Affairs 7 acting on behalf of the Indian band on 8 the reserve in question." 9 It doesn't, for a moment, suggest that the 10 Band itself or its members or electors had been involved 11 in these negotiations or had, in fact, expressed an 12 opinion. 13 A: Well, that's what it suggests, yes. 14 Q: Thank you. Now, My Friend, Mr. Ross 15 asked about the numbers of voting in 1942. On that 16 question there were seventy-two (72) members who voted 17 and fifty-nine (59) opposed. Is that correct? 18 A: That's correct. 19 Q: The -- the number of seventy-two (72) 20 electors, therefore, had to have come from both 21 reserves -- 22 A: Yes. 23 Q: -- Kettle and Stoney Point. 24 A: That's correct. 25 Q: Thank you. Earlier in your evidence
541 you talked about the reluctance around 1900 and the 2 period shortly after that to approve a survey and 3 allocation of lands at Stoney Point. Do you recall that? 4 A: Yes, the survey and subdivision, yes. 5 Q: And that was opposed at that time, 6 why? 7 A: Because the -- the people at Kettle 8 Point and Stoney Point feared that the -- the survey 9 subdivision was a prelude to selling off parts of the 10 reserves. 11 Q: And did that situation change after 12 1919? 13 A: Which situation? It had been -- 14 Q: Just the survey and allocation of 15 lands. 16 A: It had been surveyed by then. 17 Q: By then. And in 1919 that was the 18 date of the agreement between Sarnia and the Chippewas in 19 Kettle and Stoney Point to divide reserve lands and that 20 -- other assets. 21 A: Yeah, to divide -- they -- they 22 divided themselves as a band and the -- the reserves and 23 the assets were split at that time in 1919. 24 Q: And the document that evidences that 25 is, in agreement, physically signed by individuals from
551 both -- both communities -- Stoney Point, Kettle Point 2 and Sarnia. 3 A: Yes, that's correct. 4 Q: And that was approved by an Order in 5 Council. 6 A: Yes, it was. 7 Q: And it's your understanding that after 8 1919 location tickets were issued with respect to the 9 Stoney Point Reserve. 10 A: Yes, they were. I'm not sure when all 11 those location tickets were actually issued but there 12 were certainly location tickets issued, yes. 13 Q: And there was a significant number of 14 them in place by 1942. 15 A: That's correct. 16 Q: And most of those or -- I don't -- I 17 don't know the -- the number. Do you know the number of 18 location tickets for Stoney Point. 19 A: I know -- I know at Kettle Point there 20 was fifty-eight (58). I'm -- I can't recall how many 21 there were at Stoney Point. 22 Q: And obviously many of those 23 represented allocations of land to individuals or 24 families that were residing on Stoney Point? 25 A: The -- the location tickets at Stoney
561 Point? 2 Q: Yes. Were in respect of lands on 3 which individual members of the Band were residing? 4 A: That's correct. And people were also 5 residing places without location. The location ticket 6 system is -- was not always very precise. 7 Q: Granted. I'm going to ask Mr. 8 Millar, we -- we looked at much earlier a letter that was 9 written by Mrs. Beattie Greenbird at the time of the 10 appropriation. 11 A: That's correct. 12 Q: To the Deputy Superintendent General. 13 That's document number four thousand two eighty-six 14 (4000286). 15 Commissioner, I have advised counsel of 16 this hyperlink that was on the Internet and actually 17 attached to the Lokenbach (phonetic) article which you 18 referred to in your sources. 19 This is not in script, it's transcribed. 20 And you'll note, Commissioner, it indicates that it was 21 written to the Minister of National Defence although the 22 original, as I say in the script, is addressed to the -- 23 the Deputy Superintendent General of Indian Affairs. I 24 don't know if it was copied to the Minister of National 25 Defence.
571 Do you know, Ms. Holmes? 2 A: I'm just going to get my copy of this 3 document. 4 Q: Of course. 5 6 (BRIEF PAUSE) 7 8 A: Okay. I have -- I have in front of 9 me the copy that's up on the screen which is the 10 hyperlink. Yeah. And then I have the copy from my 11 collection which is in handwriting. 12 Q: Thank you. 13 A: And I'm sorry, you asked me a 14 question about who it was addressed to. 15 Q: I -- I didn't know if you were aware 16 that it -- a copy of it or if some version of it had been 17 addressed to the Minister of National Defence? 18 A: No. The copy that I have is to the 19 Deputy Superintendent General of Indian Affairs. 20 I'm not -- I'm not aware that there was 21 one to the Minister of National Defence. But the wording 22 appears to be the same and I mean, I -- I don't know the 23 one -- the one that's typed out it says to the Minister 24 of National Defence but -- and it's the same date. So 25 I'm not -- I'm not aware of one being sent to him.
581 And there's no -- there's no archival 2 reference on this, so, I'm not sure where it came from. 3 Q: But the text does appear to be the 4 same as Document Number 4000286? 5 A: It appears to be but I haven't had a 6 chance to check it word for word. 7 Q: Thank you. Just looking at the 8 bottom of the screen behind you, there's a paragraph 9 there that begins: 10 "I'm quite sure there is no word in 11 this indenture that would lead you to 12 take Indian's land without their 13 consent." 14 Do you understand that indenture to refer 15 to the 1827 Treaty? 16 A: Yes. 17 Q: And is Mrs. Greenbird correct in 18 saying there's nothing in that indenture that would lead 19 you to take Indian's land without their consent? 20 A: That's correct. 21 Q: Thank you. If you can go down just a 22 little further please, Mr. Millar. Thank you. 23 The paragraph that starts "what I want to 24 understand is these words" and I believe this a further 25 reference to the Treaty. Then going down the end of the
591 third line it says: 2 "On our front two (2) lots where our 3 boys have been farming, the timber is 4 well worth five thousand dollars 5 ($5,000) for wood and for building 6 purposes, which we have been saving for 7 this last ten (10) years, and two (2) 8 more lots which our boys has been 9 taking and located by Council, they too 10 have been saving the timber for their 11 houses to build. They are worth more 12 than the first two (2) I have 13 mentioned. Do you think the party who 14 sold Stoney Point would furnish the 15 timber for our boys' houses? No, they 16 would not. Some of this money will go 17 to moving and building houses and 18 paying improvements, and some might be 19 distributed among them and the rest 20 into the band funds, where Indian can't 21 never touch it, except interest after 22 their money is all spent and hard times 23 comes, no wood to sell, as there was 24 never much work and now misery is 25 handed to them and danger, because
601 their usual means of livelihood is 2 taken away from them by force. But 3 some of them are overseas and some 4 training on Canadian soil." 5 What I don't see in that letter, and you 6 may know this, you may not, is that the Greenberg family 7 itself was living at Stoney Point or removed from Stoney 8 Point, or that Mrs. Greenberg is saying that they've lost 9 their home. They have lost obviously an economic 10 resource, valuable timber, farming property that she 11 refers to there, but she doesn't say that they were 12 losing their home. 13 Is that correct? 14 A: That's what she says, yes. 15 Q: And if you go down I think to the 16 bottom of the letter, there is the reference at the -- at 17 the P.S. that says: 18 "As the Reserve is sold already, I 19 suppose we have a very poor chance to 20 cut some timber for building purposes, 21 and fenceposts, as we were told we can 22 cut timber any time, even if the 23 reservation is sold. We need five (5) 24 or six hundred (600) fenceposts at 25 Kettle Point, we were just starting to
611 cut them when the blow hit us." 2 3 And again, there's an indication there 4 that the lands that were taken when the blow hit, were 5 the lands where they would have obtained these five (5) 6 or six hundred (600) fenceposts for use at Kettle Point? 7 A: That -- yes. 8 Q: So would it be your -- consistent 9 with your understanding of the general arrangement of -- 10 that Mr. and Mrs. Greenberg, in fact, lived at Kettle 11 Point and that they had location tickets for land at 12 Stoney Point? 13 A: I think so. What I would have to do 14 is check the -- the list of improvements to see that they 15 weren't living at Kettle Point, or weren't -- were not 16 living at Stoney Point. 17 But my -- my recollection from reading the 18 documents is that they lived at Kettle Point, they had -- 19 she talks about these location tickets that were given to 20 her, that's what she -- that's what she's referring to in 21 her letter, where she says locate -- you know, two (2) 22 lots located by Council to her boys. 23 Q: Hmm hmm. 24 A: Those would be location tickets, and 25 the letter -- the letter implies that they're cutting on
621 their location, but there was also general cutting -- 2 people cut places that weren't their locations. 3 Q: Yes, in fact, wasn't it common that a 4 -- that individuals from Kettle Point, residing at Kettle 5 Point, had allocations or used lands at Stoney Point for 6 wood lots or small farming? 7 A: I have seen some reference to that, I 8 don't know exactly how widespread it was. I haven't 9 looked at it in detail. 10 Q: Well, we don't -- we don't have that 11 before you, Commissioner. 12 There is -- there's a modern perspective 13 on it. You're aware that the Chippewas of Kettle and 14 Stoney Point have a Chief and Council? 15 A: That's correct. 16 Q: That there's one Chief and nine (9) 17 Councillors? 18 A: I'm not sure of the number of 19 Councillors. 20 Q: Are you aware that five (5) of those 21 ten (10) elected officials are directly descendant from 22 people who resided at Stoney Point in 1942? 23 A: No, I don't -- I don't know their 24 genealogies. 25 Q: Are you aware that one (1) of those
631 five (5) was herself removed as a child, in 1942, and has 2 since served as the Chief and Councillor of the First 3 Nation? 4 A: No. 5 Q: And would you be aware that the other 6 five (5) of the ten (10) elected officials are directly 7 descendant from people who resided in 1942, at Kettle 8 Point, but have location tickets for lands at Stoney 9 Point? 10 A: No. 11 Q: Thank you, I'm sure we may get at 12 that information another way. 13 A: Thank you. 14 Q: Ms. Holmes. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Mr. Henderson. 17 MS. SUSAN VELLA: Commissioner, I'd like 18 to propose that we take the morning recess. 19 COMMISSIONER SIDNEY LINDEN: Thank you 20 very much, Ms. Vella. We'll break now for fifteen (15) 21 minutes, until five (5) after 12:00. Thank you very 22 much. 23 THE REGISTRAR: This Inquiry will recess 24 for fifteen (15) minutes. 25
641 --- Upon recessing at 11:50 a.m. 2 --- Upon resuming at 12:11 p.m. 3 4 5 THE REGISTRAR: This Inquiry is now 6 resumed. 7 COMMISSIONER SIDNEY LINDEN: Mr. 8 Horton...? 9 MR. WILLIAM HORTON: Thank you, 10 Commissioner. 11 12 CROSS-EXAMINATION BY MR. WILLIAM HORTON: 13 Q: Ms. Holmes, my name is Bill Horton, 14 and I represent Chiefs of Ontario. And I appreciate 15 you're not here as a legal expert, and so I want you to 16 make certain assumptions with respect to one (1) or two 17 (2) legal principles. 18 I would like you to assume that Canadian 19 law imposes a fiduciary duty on the Government, in 20 particular the Federal Government, when dealing with 21 First Nation lands and assets; all right? 22 And, I'm going to ask you to assume that 23 in Canadian law a fiduciary duty requires the fiduciary, 24 in this case the Government, to put the interests of the 25 beneficiary, in this case, the First Nations, ahead of
651 its own interests when dealing with the property of the 2 beneficiary. 3 So, to summarize that, I'm asking you to 4 assume that under Canadian law, the Federal Government is 5 supposed to put the interests of First Nations ahead of 6 its own interests when dealing with First Nation 7 property, lands and assets. 8 And I'm going to ask you whether, in all 9 of this research that you've done when you've examined 10 the dealings between the Federal Government and this 11 First Nation, that you can say that your research 12 demonstrates or shows the history of the Federal 13 Government putting the interests of the First Nation 14 ahead of its own interests when dealing with First Nation 15 lands and properties? 16 A: Well, that's a pretty big question. 17 I'll break it down and comment on some of it. 18 Based on the assumption that you're asking 19 me to make, I would say that when they -- when they first 20 made treaty in 1827, I think that, to a certain extent, 21 the needs of -- of the First Nation was being considered. 22 The Crown had its own needs, probably 23 foremost because they -- they were most interested in 24 settlement. It would be a question of debate whether or 25 not the interests of the -- the First Nation were
661 adequately provided for in terms of the reserve and the 2 annuity, the reserve lands that were set aside and the 3 annuity. 4 If you look at something like the -- the 5 surrenders in 1927 and '28, the surrenders at Kettle and 6 Stoney Point, I think that -- that arguments can probably 7 be made on both sides of whether or not that was in the 8 interest of the First Nation. The First Nation did vote 9 on it. 10 They -- they had some benefit from it. 11 Again, I think that it would be a matter of debate as to 12 whose interests were most -- were at the foremost. 13 The -- and it would be a matter of looking 14 at what it was that the First Nation got in return for 15 surrendering their land, whether or not that was an 16 adequate benefit. They would certainly be -- some room 17 to debate that. 18 If they -- if they -- if they received an 19 adequate kind of compensation in terms of what they -- 20 what they gave up in comparison with the kind of benefit 21 that accrued to the people who then bought that 22 surrendered land, so that -- that could certainly be 23 debated on both sides. 24 In terms of the 1942 expropriation, I 25 think what the historical evidence shows us is that the
671 Chippewas of Kettle Point and Stoney Point clearly did 2 not want to lose the Stoney Point Reserve. They were 3 very clear about that. 4 The vote was a very, very strong vote to 5 have such a huge majority of the voters voting against a 6 surrender. So it's clear that the First Nation -- their 7 interests and what they believe was best for them was to 8 keep their reserve and to not surrender it. 9 The Federal Government went ahead and they 10 appropriated that land under legislation which they had - 11 - they had at their disposal. So, I think that one -- 12 one might conclude from the historical evidence is that 13 the First Nation was certainly opposed to losing their 14 land, and they were powerless to stop it. 15 Q: Thank you. Now, what I'm taking from 16 your evidence, and let's leave aside the 1942 17 expropriation for a moment. 18 But what you've said is that it is, at 19 best, a debatable proposition as to whether or not the 20 Federal Government put the interests of the First Nations 21 ahead of its own interests in its dealing with the lands 22 and property and assets of these First Nations' people? 23 A: I would say -- 24 Q: Isn't that correct? 25 A: Yes. Yeah, I think it's a debatable
681 proposition. 2 Q: And if we look at each one (1) of 3 those instances that you've mentioned, there were 4 powerful self interests at work on the part of the 5 Government, in achieving the transactions that you have 6 referred to. 7 Isn't that a correct statement? For 8 example, in the original surrender, there was a need to 9 have lands for settlement? 10 A: That's correct. And in the -- and in 11 both of the surrenders, the 1827 surrender at Kettle 12 Point and the 1828 surrender at Stoney Point, there were 13 individuals who wanted that land. And those individuals 14 had the support of the Federal Member of Parliament for 15 that area who encouraged the Department of Indian Affairs 16 to seek the surrender. 17 So, there -- there was certainly -- there 18 was certainly pressures or -- or interests involved in -- 19 in taking that surrender. Also the Depart -- with every 20 -- with every Indian surrender -- surrender of reserve 21 land, what you have to remember is the Department always 22 -- always welcomed or valued the opportunity for a Band 23 to get cash in exchange for land. 24 So, there was a general ethic or belief in 25 the Department of Indian Affairs that surrendering land
691 was good for Indians. So, there's the -- the -- what is 2 in someone's interest is -- was a value judgment, and the 3 Department of Indian Affairs very often took the position 4 that surrenders, because they gave a First Nation cash, 5 were in their interest. 6 Q: And we won't -- I won't go back into 7 all the questions that Mr. Rosenthal asked you relating 8 to those transactions but, specifically, those 9 transactions were initiated not by the First Nations, but 10 by the Department of Indian Affairs in order to further a 11 commercial purchase of those lands? 12 A: That's correct. 13 Q: It was already a done deal, that 14 those lands would be in private hands after they were 15 surrendered to the Crown? 16 A: As long as the First Nation approved 17 the surrender, yes. 18 Q: And just going back a little bit 19 before then. When the people at Kettle and Stoney Point 20 wanted to have their Reserve separated in their best 21 interests, that did not happen, until it became a part of 22 a strategy to expand the City of Sarnia? 23 A: It appears so from the evidence, yes. 24 Q: Again, not a clear example of the 25 Government putting First Nation interests ahead of its
701 own interests? 2 A: One could certainly interpret it that 3 way, yes. 4 Q: And when we come to the expropriation 5 in 1942, and you've already dealt with this differently 6 in your answers than on the other transactions where 7 you've said it was debatable. 8 But I just want to emphasize a couple of 9 things in your evidence about that. And in that 10 particular instance, these lands were identified, based 11 on your evidence, for acquisition, because they were 12 undeveloped as compared to other possible lands which 13 were developed; isn't that correct? 14 A: That -- that appears to be their 15 reasoning, yes. 16 Q: All right. And the problem with the 17 Federal Government acquiring developed land for military 18 purposes, was one of financial and political 19 inconvenience to the Federal Government in acquiring 20 those lands; isn't that right? 21 A: That's correct, yes. 22 Q: Whereas, on the other hand, the human 23 cost to the First Nation, in terms of having to give up 24 those lands, was not weighed as heavily in the balance as 25 the political and financial inconvenience to the Federal
711 Government of acquiring other lands; isn't that a fair 2 conclusion from your evidence? 3 A: I'd say that that's a fair 4 interpretation, yes. 5 Q: Thank you very much. 6 COMMISSIONER SIDNEY LINDEN: Thank you, 7 very much. Mr. Eyolfson...? 8 MR. BRIAN EYOLFSON: Thank you, 9 Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning. 12 13 CROSS-EXAMINATION BY MR. BRIAN EYOLFSON: 14 Q: Good afternoon, Ms. Holmes. 15 A: Good afternoon. 16 Q: My name is Brian Eyolfson. I 17 represent Aboriginal Legal Services of Toronto. 18 I just wanted to pick up on an area that 19 Mr. Klippenstein was asking you about the other day, and 20 ask you a few more questions. 21 You had spoke about the attitude of the 22 Crown towards Indian people, around the early 23 confederation period, and indicated that the attitude of 24 the Crown was that it was desirable that the Indian 25 people be assimilated into the population; is that
721 correct? 2 A: That's correct. 3 Q: Okay. And that this was the reason 4 behind the Government's introduction of the concept of 5 enfranchisement? 6 A: That's correct, yes. 7 Q: And you referred to voluntary 8 enfranchisement, where individuals would voluntarily give 9 up their Indian status? 10 A: Yes. 11 Q: And this voluntary enfranchisement, 12 was it provided for an early legislation, that preceded 13 the first Indian Act? 14 A: Yes, it was. 15 Q: And you also indicated that Crown 16 soon became aware that their efforts to encourage people 17 to enfranchise, to give up their Indian status, were not 18 successful? 19 A: That's correct. 20 Q: Now, the Crown did, however, continue 21 with efforts to encourage people to enfranchise and to 22 assimilate? 23 A: Yes, they did. 24 Q: And at some point the Crown also 25 introduced legislative provisions effecting involuntary
731 enfranchisements; is that correct? 2 A: That's correct, in the Indian Act, 3 yes. 4 Q: Right. And do you recall when those 5 involuntary enfranchisement provisions were first 6 introduced? 7 A: Well, it's certainly in the -- the 8 first Consolidated Indian Act in 1876, because they -- 9 they provided for people who had Indian status, 10 particularly women, to lose their status if they married 11 non-status, non-registered -- a non-registered man. 12 Q: Right. Are there any other basis 13 upon which an individual could lose status involuntarily? 14 A: Involuntarily: Women by marrying 15 out, their children, children who -- children's status 16 generally followed the father, so, as families 17 reconstituted themselves, children would -- would often 18 lose their status, because they became attached to a 19 father without status; women by marrying out. 20 And, there were also provisions in the Act 21 for people who attained certain levels of education, and 22 who the Indian Department considered to be sufficiently 23 like a white person, I suppose, and I'm being very 24 colloquial about it, for them to -- to be enfranchised. 25 Q: So, these were individuals who had
741 retained a certain level of education or -- or 2 professional designation? 3 A: Yes, like doctors was -- was one of 4 the prominent ones. Those people would -- would lose 5 Indian status. 6 Q: What about joining any Armed Forces; 7 are you aware of any provisions relating to that? 8 A: No, I don't recall. 9 Q: Okay. So, what was the practical 10 effect of these provisions, such as the marrying out 11 provision? What was the practical effect on the 12 individuals affected? 13 A: Well what -- what it meant for 14 individuals and their families were that people who had 15 lost their status, lost their -- their legal right to -- 16 to the benefits of being a member of a Band and for the 17 benefits of being a registered Indian. 18 So for example, those people no longer had 19 a legal right to re -- reside on their reserve, to take 20 part in Band politics, for example, to vote or to run for 21 election, to be buried on their reserve. And the long 22 term impact on that was that on reserves all over Canada, 23 you have people who have lost their status, who are still 24 living on reserve but are not considered legally part of 25 -- of those Bands under the Indian Act.
751 Large numbers of Aboriginal people who no 2 longer live on reserve are -- are separated and divorced 3 from their families, have to go and live somewhere else. 4 And so it creates fractures within communities and 5 fractures within -- within families. And those people 6 are very often referred to as non-status people and they 7 -- they have a different legal status than the rest of 8 their family. 9 Q: And obviously, just to clarify based 10 on what you said, a non-status person is not necessarily 11 non-Aboriginal? 12 A: That's correct. And you'll see we 13 had the example when they were looking at moving people 14 from Stoney Point they refer to 'white people' who aren't 15 necessarily non-Aboriginal people, they're just people 16 who don't have registered Indian status. So they're not 17 recognized by the Crown but they're -- they're 18 Aboriginality is -- is what it is. 19 Q: And how long were these involuntary 20 enfranchisement provisions contained in the Indian Act 21 legislation? 22 A: Up until 1985 when there was a bill 23 introduced called Bill C-31 which changed the membership 24 provisions of the Indian Act and after that the 25 involuntary enfranchisement stopped legally. Prior to
761 that actually, there had been a bar on the -- using those 2 terms of -- those membership terms that were in the 3 Indian Act on stripping people from their status. 4 Because prior to the -- the Act being 5 changed in 1985, there was -- there was appeals to the 6 United Nations and there were court cases where the whole 7 membership provisions of the Indian Act were in question. 8 And -- and during that period people normally didn't lose 9 their status. It was kind of a limbo situation. 10 Q: That's one of the questions I was 11 going to ask you about was just prior -- or in the period 12 prior to those 1985 amendments. Were there protests or 13 organized efforts by individuals -- individuals or groups 14 focussed on those provisions -- those involuntary 15 enfranchisement provisions? 16 A: Yeah. Yeah, there were in -- if my 17 memory serves me correctly, it started -- well there were 18 always protests about the membership provisions of the 19 Indian Act. All -- for over a hundred years while the 20 Indian Act was in place, First Nations were from time to 21 time protesting the exclusion of particular individuals 22 or the Act in general. 23 So there were many -- there were many, 24 many protests about membership provisions of the Indian 25 Act. But in the 1970's the -- the protests became very,
771 very organized and very strong. And there was -- there 2 were appeals to the United Nations and a lot of other 3 kind of demonstrations and -- and that type of activity. 4 Q: Do you recall why there was 5 eventually an appeal to the United Nations? 6 A: I did a lot of work on this at one 7 time and I'm trying to remember -- well, there was the 8 Sandra Lovelace case was a particularly prominent case. 9 I don't recall that much the details, I'm sorry. 10 Q: Okay. 11 A: But it -- but it was a very -- it was 12 -- I think that -- I think that there was -- I think that 13 there was some litigation in Canada against the -- 14 against the provisions of the Indian Act of a particular 15 case which -- which failed in the courts and I think that 16 that's why they -- these group of women ended up taking 17 it to the United Nations. 18 Q: Okay. And do you recall why the 19 Indian Act was amended in 1985, why at that particular 20 time? 21 A: Because the Charter of Rights and 22 Freedoms guarded us against discrimination on the -- on 23 the basis of -- of sex, and so the Indian Act was 24 amended, primarily to bring the -- the Indian Act 25 provisions into line with the Charter guarantees.
781 Q: Okay. I see from your CV, that you 2 have done some research, a fair bit of research on the -- 3 on Bill C-31, and the amendments to the Indian Act? 4 A: That's correct. 5 Q: Okay. Could you explain just 6 briefly, or in general, how the involuntary 7 enfranchisement provisions were changed? 8 A: They -- they were completely removed 9 from the Act -- so, there's -- there's no longer -- well, 10 people can still lose Indian status, or fail to get 11 Indian status, but the -- the way that the Act is written 12 now, for example, if you become a doctor or a lawyer, 13 you're not in danger of losing your Indian status. 14 And I -- I don't think -- I can't think of 15 any other examples off hand. 16 Q: Okay. Presumably there was -- was 17 some reinstatement of individuals, following the 1985 18 amendments? 19 A: That's correct. 20 Q: And did that reinstatement result in 21 any problems or difficulties for individuals or First 22 Nations communities, that you're aware of? 23 A: Yes, it did. There was -- there were 24 a number of problems caused by the reinstatement. On the 25 First Nation level, for individual First Nations, the --
791 there were very, very large numbers of people who were -- 2 either gained status for the first time, or were given 3 their status back, as a result of Bill C-31. 4 And First Nations who owned Reserve land 5 didn't have the capability, the capacity, to integrate 6 all of those people back onto their reserves for example, 7 there were housing shortages. Almost all Reserves in 8 Canada have severe housing shortages. When all of these 9 new people were registered, there was no way that First 10 Nations could accommodate them physically on the 11 reserves. 12 It -- it put stress on other kinds of 13 infrastructure like schools; there wasn't enough room in 14 schools for all of the people to move back onto the 15 Reserve. So that -- that was some of the -- the 16 practical sort of day to day impact of it. 17 In some communities the -- the people who 18 had never lost their status, had certain resentments 19 towards people who regained status and wanted to move 20 back onto the Reserve so, it caused tensions in some 21 communities. And -- and then on a more individual level, 22 there were people who believed that they should get 23 status as -- as a result of Bill C-31, but still did not 24 meet the requirements for various reasons. 25 So, there was still -- there's still a
801 body of people of aboriginal descent, who have not been 2 able to get Indian status, because they don't meet 3 certain criteria. 4 Q: So, I take it no additional resources 5 were allocated on the part of Government to deal with 6 reinstated members? 7 A: There -- there was some additional 8 resources, but very, very little in comparison to the -- 9 the demands that were created by this large body of -- of 10 people regaining Indian status. 11 Q: Okay. I'm wondering if you could 12 just briefly explain how the new provisions -- membership 13 provisions of the Indian Act work, going forward from 14 1985, particularly the -- the two (2) categories if you 15 will, of -- of status, that people fall under? 16 A: Okay. If you recall, one (1) of the 17 purposes of changing the membership provisions of the 18 Indian Act was so that the Indian Act would come in line 19 with the Charter of Rights and Freedoms, so the 20 discrimination based on taking your Indian status from 21 your father and not from your mother, was removed from 22 the Act. 23 So, now an individual can get Indian 24 status based on the status of either their mother or 25 their father. However, what has been created as a new
811 criteria or factor governing membership, is that there 2 are two (2) different categories of status Indians and 3 one (1) is called -- people refer to it generally as six 4 (6) -- 6-1 Indians which are people whose -- have their 5 Indian status under Section 6-1, or 6-2. 6 So if you -- if both of your parents have 7 registered Indian status, then you are a 6-1 person. If 8 only one (1) of your parents has Indian status, then you 9 are a 6-2 person. 10 When the next generation is born, if your 11 parents are a 6-1 and a 6-2, then you become a 6-1 12 person. However, if one (1) of your parents is a 6-2 and 13 your other parent is a non-aboriginal person, then you do 14 not get status. 15 So to explain another way, I can usually 16 explain this with a chart. But to explain it a more 17 simple way, a 6-2 person does not have the legal capacity 18 to pass Indian status to their children unless they have 19 that child with another Indian person, either a 6-1 20 person or a 6-2 person. 21 So, now what happens is instead of failing 22 to get Indian status because your -- because only your 23 mother is a status Indian, you can now fail to get status 24 because only one (1) of your parents is an Indian and 25 that person has 6-2 status.
821 So, the -- the ability to pass on status 2 is still being restricted but it doesn't matter if you're 3 a man or a woman; it matters who your parents are, so to 4 speak. And people refer to -- this as the second 5 generation cut-off, because the next generation of people 6 who are impacted by the fact a person may have 6-2 7 status. 8 I don't know if I -- do you want to ask 9 any other questions about how confusing that explanation 10 was? It's much easier to explain it with a chart, but, 11 yeah, the -- the -- the bottom line is: if you are -- if 12 you are an Indian person with 6-2 status, you can only 13 pass status onto your children if you have those children 14 with -- with another -- with a person who is registered 15 as an Indian, either 6-1 or 6-2. 16 Q: Okay, thank you. Are you aware of 17 any concerns expressed about this second generation cut- 18 off from individuals or groups of, say, women who have 19 been reinstated after marrying out and their children any 20 of whom would be Section 6-2 Indians? 21 A: Yes, I know that there's -- there's 22 some litigation that has been filed regarding the so- 23 called 6-2 cut-off and there's quite a number of -- of 24 groups that are working to -- to remedy that situation 25 that are very concerned about the impact because their
831 children or their grandchildren don't have Indian status 2 and they believe that that is -- is unfair and is 3 detrimental to their communities. 4 Q: Okay. Are you aware of any concerns 5 expressed about the effects of the new provisions for 6 recognizing Indian status, such as Section 6-2 in 7 particular over the long term that's been expressed by 8 any First Nation communities in particular? 9 A: Yes, there -- there's a number of 10 communities that have been doing work on what the long 11 term effect is and there have been some studies that I'm 12 aware of that look at the -- the long term impact of the 13 current membership provisions of the Indian Act. 14 The -- the general findings of the -- of 15 those works and the concern about those works is that, in 16 the long run, the -- the status Indian population will 17 become smaller and smaller as more and more people are 18 unable to have status under the current -- under the 19 current provisions. 20 Q: And are you aware if there are First 21 Nation communities in Ontario that have these concerns? 22 Are you aware of any studies in Ontario? 23 A: Yes, I am, a few. There's a couple 24 that I've -- I've worked on. 25 Q: And is it fair to say that the
841 concern is that the effect of these new provisions in the 2 Indian Act will be to assimilate First Nation communities 3 over time? 4 A: Yes. 5 Q: Thanks, those are all my questions. 6 A: Okay. 7 COMMISSIONER SIDNEY LINDEN: Thank you 8 very much. The Government of Ontario? 9 10 CROSS-EXAMINATION BY MR. WALTER MYRKA: 11 Q: Good morning, Ms. Holmes. 12 A: Good morning. 13 Q: My name is Walter Myrka, and I appear 14 on behalf of the Province of Ontario. 15 I wanted to ask you a few questions by way 16 of follow-up to your evidence concerning the issue of 17 burial sites, and specifically whether there is or is not 18 a burial ground within Ipperwash Provincial Park? 19 I understood from your evidence that the 20 first indication that you found in the documents to the 21 issue of burial sites, was within Mr. Burwell's survey 22 notes from 1826, and those would be the survey notes that 23 related to the surveying of those lands ultimately 24 covered by Treaty 29. Is that correct? 25 A: Yes.
851 Q: Okay. In any of the documents that 2 you looked at concerning Treaty 29 and its formation, did 3 you find anything else where there was an expression of 4 concern, or a discussion about burial grounds and 5 cemeteries, and what should be done about those? 6 A: In the discussions surrounding the -- 7 the treaty, the discussions that took place from 1818 to 8 1827? 9 Q: That's correct, that period? 10 A: Was there any discussion of burial 11 grounds or cemeteries? 12 Q: Yes, that's my question? 13 A: No, not that I've seen. 14 Q: Okay. If we move to the two (2) 15 surrenders, and I want to deal first with the -- the 16 surrender, in eighteen (18) -- sorry, 1927, at Kettle 17 Point. And these were the beachfront lands that were 18 surrendered, so that they could be sold to -- 19 A: Mr. Crawford. 20 Q: Did you find anything in the record 21 in the documents, where the issue of burial sites, 22 cemeteries was raised as a concern in any way, or as a 23 topic of discussion, surrounding that transfer in 1927? 24 A: No, I did not. 25 Q: Okay. And I take it your answer is
861 the same with respect to the -- the entire beachfront of 2 Stoney Point that was surrendered a year later, for a 3 transfer to Mr. Scott? 4 A: Did I see any reference in those -- 5 in relation to that surrender to any burial grounds? No. 6 Q: Okay. Now, earlier this morning, Mr. 7 Rosenthal took you to a -- an article from, I believe it 8 was the Sarnia Observer. It's that article that I think 9 was made Exhibit P-12 this morning. 10 A: You mean the article regarding Mr. 11 Scott? 12 Q: Yes. 13 A: Yes. 14 Q: And I just wanted to make it clear 15 for the record, if you can, do you know whether that's 16 the same Mr. Scott who acquired the Stoney Point 17 beachfront lands, the three hundred and seventy-seven 18 (377) acres in 1828 -- sorry, 1928? 19 A: I believe it is William J., and I 20 will -- I'll just check. 21 Q: If it assists you, I've looked at the 22 -- the Order in Council and it -- it refers to a William 23 J., so it appears to be the same person. I'm just 24 wondering whether you know or have any information beyond 25 that.
871 A: No, but -- I -- in -- in the -- the 2 documentation in the report regarding Mr. Scott, they -- 3 they describe him as a real estate developer and his name 4 is William J., so I'm -- I'm assuming that they are one 5 (1) and the same. 6 Q: It looks like it's the same person. 7 A: Yeah. 8 Q: Okay. And I understand, just to be 9 clear from the evidence, that when the Province of 10 Ontario acquired the lands for Ipperwash Park in 1936 -- 11 that's eight (8) years after the surrender and the 12 transfer to Mr. Scott -- that the Province of Ontario 13 acquired it's a hundred and nine (109) acres from Mr. 14 Scott. 15 A: That's correct. They bought it from 16 Mr. Scott. 17 Q: Okay. And, to state the obvious, they 18 weren't dealing with the First Nation because at that 19 time, in 1936, that a hundred and nine (109) acres 20 belonged to Mr. Scott. 21 A: That's correct. 22 Q: Okay. And my understanding is, the 23 province having acquired the -- the lands for the 24 provincial park in 1936, it was about a year later -- if 25 I understand your evidence -- the documents suggest that
881 a provincial engineer working at the park discovered what 2 may be an Indian -- burial ground within the provincial 3 park. 4 A: The Indian -- the engineer described 5 it as a burial ground, yes. 6 Q: A burial ground. And in that -- and 7 that's recorded in that correspondence from August 1937 8 that you took us to in your evidence. 9 A: That's correct. 10 Q: Okay. And as a result of that, the -- 11 A: I'm just going to turn to that part in 12 my report. 13 Q: Okay, I think it begins at page 55, if 14 that helps you. 15 A: It does. 16 Q: And the 1937 correspondence -- if I 17 could just quickly list it for you and I'll refer to 18 where I understand it is in your documents and your 19 productions -- it begins with an August 12, 1937 band 20 resolution which is Document 377 and it's at your Tab 97. 21 A: That's correct. 22 Q: Okay. And when we have the letter 23 written one (1) day later on August 13, by the Indian 24 agent and he's writing to his employers -- the Federal 25 Department of Indian Affairs --
891 A: That's correct. 2 Q: -- and in his letter he makes 3 reference to the Band resolution and the wishes of the 4 community that the burial ground that the engineer has 5 found, if that can be properly marked off, bordered and 6 then fenced off -- 7 A: That's correct. 8 Q: As would be appropriate for, indeed, 9 any burial ground or memorial ground. Is that correct? 10 A: That's correct. 11 Q: Okay. We then have a letter dated 12 August 17 which is sent by the Federal Department in 13 Ottawa to the Deputy Minister at Lands and Forests 14 Ontario and that letter sets out again the concern of the 15 community that this burial ground be properly marked off 16 and fenced off. 17 A: That's correct. 18 Q: Okay. And then the last document that 19 we have which addresses -- which appear to talk about the 20 same issue is Mr. Cain's August 19 letter responding to 21 the Federal Department in which Mr. Cain indicated that 22 he would do his best to accommodate the wishes of the 23 local community. 24 A: That's correct. 25 Q: Okay, and I take it from your evidence
901 that's where this thread, so to speak ends, with Mr. 2 Cain's letter. If there are other documents that address 3 this issue you weren't able to find them. 4 A: That's correct. 5 Q: That's correct. Until -- until much 6 later. 7 Q: Much later on. With the 1937 8 correspondence, would you not agree to me that what we 9 have with Mr. Cain's letter is evidence which, I believe 10 you gave, which is that no further correspondence 11 suggests that maybe Ontario, in fact, did nothing in 12 response to the concerns of the community? 13 A: Usually when the -- the paper trail 14 ends like that, it -- it indicates that -- that the 15 matter was dropped or the matter wasn't pursued, yes. 16 Q: Okay. In this case, that may have 17 been what happened. 18 A: It may -- 19 Q: Is that fair? 20 A: It may have been what happened, yes. 21 Q: Okay. Might it not be possible that 22 the reason there's no further correspondence, is that 23 Ontario did, in 1937, comply with the wishes of the 24 community, mark off the burial ground and fence it? 25 A: It's -- it's possible. However, the
911 -- the later evidence shows that this burial was found in 2 1950 which is thirteen (13) years later. And in the 3 discussion around that, there doesn't seem to be any 4 indication that there was a burial ground that was 5 recognized as such by being fenced or somehow indicated 6 on the ground. 7 So when I look at the paper trail ending 8 in 1937 and then I see the evidence talking about the 9 Park Superintendent's find in 1950, taken together if I 10 had to make a -- if I had to make a -- an opinion, I 11 would -- I would lean towards that nothing had been done 12 about it. 13 Q: But it's fair to say that at the end 14 of the day, based on the documents that you found, we 15 just don't know. 16 A: I would say based on the documents 17 we've found we don't know for sure, yes. 18 Q: Okay. The -- the documents from 19 1937, do I understand that you located those in the 20 Federal Government archives? 21 A: No. Those documents come from, I 22 think, three (3) different locations. 23 Q: Okay. 24 A: The -- two (2) of the documents come 25 from a Department of Indian Affairs file that is still in
921 the -- the Central Registry of the Department of Indian 2 Affairs. That means it's a file that's in their -- their 3 current file registry in -- in Hull. 4 Q: And this -- 5 A: At their headquarters. 6 Q: And this would be -- 7 A: That -- 8 Q: -- a Federal Government record, just 9 so as I understand -- 10 A: Yes. 11 Q: -- it? All right. 12 A: A Federal Government record that is 13 currently housed in Department of Indian Affairs 14 Headquarters in Hull in their -- what they call their 15 Central Registry, which is they keep all their active 16 files. It's not in the National Archives -- hasn't been 17 sent to archives yet. 18 That's two (2) of those documents, which 19 is the -- the letter from the Indian Agent and the letter 20 from the Deputy Minister of the Departments of Lands and 21 Forests. 22 One (1) of the documents which was that -- 23 the Band Council resolution asking to have the graveyard 24 protected, that document was found -- it came from a 25 collection in the Department of Indian Affairs Regional
931 Office in Toronto. 2 And it's a collection of documents that 3 was put together by a Department of Indian Affairs 4 official named Jim Wells who's now retired and Mr. Wells 5 was -- worked for many, many years in -- in the Lands 6 section. And one (1) of the things that he did was he 7 put together files that had all sorts of information 8 about particular reserves and so that comes from that 9 file. 10 And the other -- the third source -- the 11 letter from the Secretary of the Indian Affairs branch to 12 the Deputy Minister of Lands and Forests, that particular 13 letter, August 17, 1937, that comes from a Ministry of 14 Natural Resources file. 15 I got -- I, actually -- that -- that's the 16 source -- the sources for all of those documents. I 17 actually obtained those documents because they had 18 already been filed in -- in the Harris litigation. 19 Q: Okay. 20 A: But that's -- that's their original 21 sources. Three different locations, one (1) Ontario 22 Ministry of Natural Resources, one (1) Indian Affairs 23 Headquarters current files, and one (1) Department of 24 Indian Affairs, Toronto Regional Office. 25 Q: If we move forward in time to Dr.
941 Spence's report in 1996, this is the report where he 2 examined the photographs of the -- the remains that were 3 found within Ipperwash Park in April of 1950? 4 A: That's correct. 5 Q: Okay. Other than his report, did you 6 find any other documents that made specific reference to 7 the 1950 finding within the park? 8 A: No I did not. 9 Q: Okay. We do know from his report 10 that the evidence is that there are the remains, or there 11 were the remains of what appears to be an Aboriginal 12 child -- 13 A: Hmm hmm. 14 Q: -- found within the Park in 1950. 15 Would you agree with me that on the question of whether 16 this was a single burial as opposed to a burial ground or 17 cemetery that that is an issue that no one knows the 18 answer to today. It hasn't been examined. 19 A: Well, first of all I don't know why 20 one (1) burial is not considered a burial ground. I 21 don't know that there's a definition that says that there 22 has to be X number of people buried in order for 23 something to be considered a burial ground. So I just 24 wanted to make that point. 25 Whether or not there were other people
951 buried in the vicinity, we don't know that for sure. In 2 Spence's report in relation to the 1950 discovery of the 3 skeleton, there -- he also makes reference to the fact 4 that some time earlier I believe in 1942, that people 5 reported that there were a large number of bones 6 discovered when they built a reservoir and that the 7 skeleton he found was very close to the reservoir. 8 So that suggests that perhaps that there 9 were other burials that were destroyed or disturbed when 10 -- when the reservoir was built in 1942. But that's -- 11 that's as much as -- as I've been able to locate on that 12 topic. 13 Q: And indeed doesn't he refer to the 14 reports from 1942 as rumours? 15 A: Well he says it's -- I think what he 16 says is rumours. But in my experience where there's 17 smoke there's fire. 18 Q: Okay. 19 A: So he says, however -- okay. Some -- 20 Spence writes in his report: 21 "Some letters between government 22 officials and Ojibwe leaders suggest--" 23 And here I think he's -- he's referring to 24 the 1937 correspondence: 25 "-- suggests that there had been an
961 Ojibwe cemetery somewhere in the Park 2 but nobody knows where it was. 3 However, rumour has it that a large 4 number of bones were found when the 5 reservoir was built in 1942 and the 6 Ipperwash child was buried quite near 7 the reservoir." 8 And then he -- he goes on from there. So, 9 yeah, rumours. People report having seen that in '42. 10 Q: Okay. And in addition to that, there 11 was the archaeological investigation by Mr. Hamalainen 12 in 1972? 13 A: That's correct. 14 Q: And Mr. Hamalainen's conclusion was 15 that there were no archaeological artifacts within 16 Ipperwash Provincial Park. 17 A: Actually I think what -- what he said 18 in his report was that the local informants, local 19 people, said that there were no archaeological articles - 20 - artifacts. And -- or no archaeological material found 21 in the park and -- and he also said that -- that it had 22 been disturbed. That was his other conclusion, that the 23 land had been disturbed. 24 Q: But do they not understand that he 25 himself concluded that there were no archaeological
971 artifacts within the park, however he got there? That's 2 what his conclusion was? 3 A: No, I'm not sure that -- he said 4 local informants had advised that no archaeological 5 material had been found in the park. So, he's reporting 6 what local people have told him and he doesn't specify in 7 that, the difference if he differentiated between 8 archaeological material and skeletal remains, which to 9 many people would be two (2) very different things. 10 Q: Hmm hmm. 11 A: And he -- I think in his conclusion, 12 and we could go to his report and look at it again, I 13 think in his conclusion he -- he suggests that there not 14 be anymore archaeological work done in the park. 15 And he also at the beginning of his -- 16 his report, he prefaces all of his work on the fact that 17 the park had been disturbed, and any archaeologist will 18 tell you that if an area is disturbed, you don't expect 19 to find a lot of archaeological material, and certainly 20 not in situ, which is, what makes archaeological material 21 more valuable and more diagnostic. 22 So, that -- I think that when you read his 23 report, you have to be very careful to understand what 24 he's saying about the limitations of the area that he 25 examined, and the limitations of the methodology that he
981 used to examine the park. And he's quite clear in his 2 report on that. 3 Q: Okay. And this report, do you have 4 it in your brief of documents in front of you? 5 A: Oh, yeah, yeah. 6 Q: I don't know what the tab number is, 7 I think it's 400 on the computers, for the benefit of 8 other counsel. 9 A: Yeah, it is. I'll just -- I'll just 10 get my copy. 11 12 (BRIEF PAUSE) 13 14 MR. WALTER MYRKA: Oh, Mr. Commissioner, 15 it's one o'clock, perhaps this would be a convenient time 16 to break for lunch. 17 COMMISSIONER SIDNEY LINDEN: You're going 18 to be a bit longer are you? 19 MR. WALTER MYRKA: Perhaps another five 20 (5) minutes. 21 COMMISSIONER SIDNEY LINDEN: I think if 22 it's five (5) minutes we should finish your examination. 23 MR. WALTER MYRKA: If -- 24 COMMISSIONER SIDNEY LINDEN: We can just 25 postpone our lunch a bit, if it's --
991 MR. WALTER MYRKA: Okay. 2 COMMISSIONER SIDNEY LINDEN: -- if you 3 only have five (5) minutes to go, I'd like you to finish. 4 MR. WALTER MYRKA: Okay. 5 THE WITNESS: Yeah, I have that in front 6 of me. 7 8 CONTINUED BY MR. WALTER MYRKA: 9 Q: I don't have the report in front of 10 me, Ms. Holmes, but I wonder if you could read the 11 conclusion from it? Are you able to locate that within 12 the -- the report? 13 A: He had -- his very last paragraph is 14 what he calls his recommendations, which is a different 15 thing than conclusions. 16 Q: Hmm hmm. 17 A: His recommendations: 18 "Since no archaeological finds were 19 made in Ipperwash Provincial Park -- 20 Park, it is recommended that no further 21 archaeological work of any kind be 22 carried on there." 23 Q: Now, do I understand that you had an 24 opportunity to speak to Mr. Hamalainen about his report? 25 A: No, I knew Mr. Hamalainen many years
1001 ago, but I haven't talked to him about this report, no. 2 Q: All right. Thank you. 3 MR. WALTER MYRKA: Thank you, 4 Commissioner, those are my questions. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much. Mr. Millar, I think this would be a good 7 point to break for lunch. 8 MR. DERRY MILLAR: Yes, thank you, 9 Commissioner. I wonder if I could ask the counsel, 10 however, to stay just for five (5) minutes after we 11 break. 12 COMMISSIONER SIDNEY LINDEN: All right, 13 what time should we break to, Mr. Millar? 14 MR. DERRY MILLAR: Perhaps 2:20. 15 COMMISSIONER SIDNEY LINDEN: 2:20? 16 MR. DERRY MILLAR: Yes. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 THE REGISTRAR: This Inquiry stands 20 adjourned until 2:20 p.m. 21 22 --- Upon recessing at 1:05 p.m. 23 --- Upon resuming at 2:26 p.m. 24 25 THE REGISTRAR: This Inquiry is now
1011 resumed. 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 Mr. Downard...? 4 MR. PETER DOWNARD: Ms. Holmes, My name 5 is Peter Downard and I appear for the former Premier of 6 Ontario, Mike Harris. 7 And before I begin, I've provided to 8 Commission Counsel a relatively small brief of documents 9 and I have copies for Commission Counsel and for yourself 10 and for the Commissioner. 11 And if I may, I would ask that one copy of 12 that brief be marked as the next exhibit, Exhibit P-13 13 COMMISSIONER SIDNEY LINDEN: Mr. Millar, 14 do you have an exhibit that you want to introduce from 15 the last witness before you call this one? 16 MR. DERRY MILLAR: No, Ms. Vella will. 17 COMMISSIONER SIDNEY LINDEN: No, okay. 18 That's fine. Okay, what's the number? 19 THE REGISTRAR: P-13 Your Honour. 20 COMMISSIONER SIDNEY LINDEN: Thirteen 21 (13), thank you. That's fine. 22 23 --- EXHIBIT NO. P-13: Document Brief submitted by 24 Peter Downard. 25
1021 CROSS-EXAMINATION BY MR. PETER DOWNARD: 2 Q: Now, Ms. Holmes, I would like to 3 start by reviewing briefly a number of the letters 4 involving the now former Prime Minister of Canada Jean 5 Chretien that you referred to in your evidence and in 6 your report. 7 And the first of those letters is at Tab 1 8 of the brief and it's Inquiry document 4000398. And for 9 the benefit of my colleagues I've circulated copies of 10 the index to the document brief which include references 11 to the Inquiry document numbers of all the documents I'm 12 going to refer to. 13 14 (BRIEF PAUSE) 15 16 Q: So there we have it on the screen 17 behind you and it's at Tab 1 of the brief. This is the 18 first document, as I understand, and what -- what I wish 19 to do very briefly is to review with you the series of 20 correspondence involving former Prime Minister Chretien 21 that has been referred to in your evidence and in your 22 report. 23 So, first of all, we have this letter at 24 Tab 1 of the brief, document 398, which is on the screen. 25 And this is the first letter that we have chronologically
1031 speaking involving Prime Minister -- former Prime 2 Minister Jean Chretien and Ipperwash, correct? 3 A: That's correct, yes. 4 Q: And this is a letter that is sent to 5 him in January of 1972 by Donald S. MacDonald, in which 6 Mr. MacDonald says that the Department of National 7 Defence, must retain the Camp Ipperwash property, 8 correct? 9 A: That's correct. 10 Q: And then at the end of the letter he - 11 - to paraphrase he seems to be saying to Mr. Chretien as 12 the Minister of Indian Affairs and Northern Development 13 that he should be alert -- be alerted to this position, 14 since he expects that Mr. Chretien will undoubtedly 15 receive further representations, right? 16 A: That's correct. 17 Q: And then the next correspondence 18 involving Mr. Chretien, in the chronological chain is 19 document 4000399, at Tab 2 of the brief. And this, as I 20 understand it, is a letter written in April of 1972, to 21 Mr. Benson, as the Minister of National Defence, from Mr. 22 Chretien, who remains the Minister of Indian Affairs, 23 correct? 24 A: That's correct. 25 Q: And this is the -- the letter in
1041 which, if I can put it this way, Mr. Chretien pleads the 2 case for the aboriginal people who want to have the 3 return or a proper resolution of their claim, regarding 4 Camp Ipperwash, correct? 5 A: That's correct. 6 Q: And in this letter, Mr. Chretien, in 7 the second last paragraph on the second page, warns that 8 the First Nations people with this grievance may run out 9 of patience and may resort to tactics of occupation, 10 correct? 11 A: That's correct. 12 Q: And then the next document in the 13 chain, as I understand it, is the document at Tab 3, 14 document 4000401, of the Inquiry. 15 And this is a letter in December of 1972, 16 when Mr. Chretien takes another run at the issue, with a 17 new Minister of National Defence, Mr. Richardson, 18 correct? 19 A: That's correct. 20 Q: And he again presents the case on 21 behalf of the First Nations people in a quite similar 22 fashion to that in which it was presented in the earlier 23 letter, right? 24 A: That's correct. 25 Q: And again, in this letter, on the
1051 second page, the third last paragraph on the page, he 2 again warns that the First Nations people have waited 3 patiently and may soon run out of patience and resort to 4 tactics of occupation, correct? 5 A: That's correct. 6 Q: And in the last paragraph on this 7 page, he adds, something that was not in the last letter, 8 he says specifically that there's a moral responsibility 9 on the government to deal with this issue, correct? 10 A: Yes, he's a little bit more specific. 11 He says: 12 "A moral responsibility on the 13 government's part to acquire an 14 equivalent amount of land and sell it 15 to them at a price to be mutually 16 agreed upon." 17 Basically, he's trying to deal with it. 18 Q: Yes -- 19 A: Yes. 20 Q: -- thanks. And then the next 21 correspondence in the chain is document 4000402, at Tab 4 22 of the brief and this is a letter which Mr. Chretien 23 writes to George Manuel, as President of the National 24 Indian Brotherhood in June of 1973. 25 And is it fair to say that this is a
1061 letter in which Mr. Chretien says that the issue has to 2 be dealt with through negotiation between the Band and 3 the Department of National Defence and that he's hopeful 4 for progress? 5 A: That's correct. 6 Q: And then the next letter is document 7 4000403 which is at Tab 5 and that's another letter to 8 Mr. Manuel from Mr. Chretien. 9 And in this letter he simple says, if I 10 can precis the letter, if you can confirm that I'm 11 summarizing it accurately, that he supported the Kettle 12 Point -- the Kettle Point and Stoney Point Bands' request 13 regarding Camp Ipperwash, he's made representations and 14 his representative will do all he can to assist the Band; 15 is that correct? 16 A: Yeah. Yes. 17 Q: And then, finally, we have a letter 18 at Tab 6 of the brief which is Inquiry document 4000404 19 which is another letter from Mr. Chretien to Chief 20 Charles Shawkence of the Kettle Point Band Council dated 21 March 1, 1974. 22 And this is the letter in which Mr. 23 Chretien refers to his expecting that a settlement of the 24 Camp Ipperwash issue is imminent; correct? 25 A: That's correct.
1071 Q: Now, I take it that you would agree 2 with me that all of the letters that we have just 3 reviewed expressly deal with the army camp at Ipperwash 4 and not Ipperwash Provincial Park; correct? 5 A: That's correct. 6 Q: And I take it you would agree with me 7 that none of the letters to which Mr. Chretien is a party 8 make any reference to a burial ground; correct? 9 A: That's correct. They're just talking 10 about the army camp. 11 Q: All right. So what I'd like to do is 12 refer you to a document at Tab 7 of the brief and 13 unfortunately I don't have this in a computer version for 14 the screen. This is a newspaper article that was 15 published giving an account of your evidence in this 16 Inquiry on Wednesday, August 18th this year in the 17 Toronto Star. 18 And what I'd like to do is just to read to 19 you the lead paragraph of the -- the article and it says, 20 and I quote: 21 "Former Prime Minister Jean Chretien 22 warned the Federal government more than 23 two (2) decades before the 1995 24 Ipperwash crisis that officials had to 25 start respecting Chippewa burial
1081 grounds around Ipperwash Provincial 2 Park on Lake Huron or face native 3 protests." 4 Now, I take it that it is not your 5 evidence in this Inquiry that Jean Chretien warned the 6 Federal government more than two (2) decades before the 7 1995 Ipperwash crisis that officials had to start 8 respecting Chippewa burial grounds around Ipperwash 9 Provincial Park; is that fair? 10 A: I didn't say that, no. 11 Q: And if you look at the headlines, the 12 headline at the top -- the big headline running across 13 the top of this page in the front section of the Toronto 14 Star reads, and I quote: 15 "Chretien warned in '72 of Ipperwash 16 struggle." 17 Unquote. And then below that in smaller 18 type there is another sub-headline, if you will, that 19 reads, and I quote: 20 "Former PM knew of Chippewa burial 21 grounds." 22 Unquote. Now, I take it that it is not 23 your evidence in this Inquiry that Jean Chretien knew of 24 Chippewa burial grounds; right? 25 A: No. All the -- all the evidence that
1091 I presented regarding Chretien's letter, just had to do 2 with the return of the army camp, Camp Ipperwash. 3 Q: So, as far as you know, that headline 4 is quite incorrect? 5 A: Well, I didn't write that. 6 Q: Yes, but to the best of your 7 knowledge, it is incorrect? 8 A: Yes. 9 Q: Now, the next document I'd like to 10 refer you to is, Inquiry document 40000344, and that is a 11 Canadian Press article, dated December 17th, 1995, from 12 your documents entitled, quote: 13 "PM predicted Ipperwash trouble twenty- 14 three (23) years ago." Unquote. 15 And so I take it you would agree with me 16 that the warnings contained in the Chretien letters that 17 we've reviewed has been something that's been known to 18 the public, or has been made available to the public, 19 since late 1995, correct? 20 A: Chretien's -- sorry -- can you just 21 say that again? 22 Q: Yes, indeed. I'm just referring to 23 this Canadian Press article, which is dated December 24 17th, 1995 and you will see that in the lead paragraph it 25 says, and I quote:
1101 "In 1972, then Indian Affairs Minister 2 Jean Chretien, urged the return of Camp 3 Ipperwash military base to the Indian 4 Band that originally held the land, 5 warning about an imminent occupation of 6 the military base by disgruntled 7 Indians." 8 Unquote. And I'm just asking whether you 9 would agree, that the fact that Mr. Chretien gave such a 10 warning has been in public circulation since 1995? 11 A: Newspaper reports of it have been. 12 Q: Yes. Thank you. And would you agree 13 with me that, when one looks at the Chretien letters, 14 particularly the two (2) letters warning of potential 15 occupation that it's -- it's very clear that those 16 letters deal with the Camp and not a burial ground? 17 A: Yes, the letters deal with Camp 18 Ipperwash, yes. 19 Q: And they very clearly do so, correct? 20 A: Yes. 21 Q: Now, I'd like to turn to another 22 subject. Now, I believe you've said before that you were 23 here for the evidence of Darlene Johnston? 24 A: That's correct. 25 Q: And Darlene Johnston told us that
1111 First Nations people have an aboriginal concept of 2 ownership of land which includes the right to sell land 3 or ownership rights, if they choose to do so, to non- 4 aboriginal persons. Do you recall that? 5 A: Vaguely, yes. 6 Q: Would it assist you if I specifically 7 went to the evidence that she gave on that point? 8 A: Sure. 9 Q: Okay. Now, I can either simply read 10 the excerpt -- all right, this is from the third day of 11 her evidence, page 74, and it's line 7 and I believe this 12 is in the cross-examination by Mr. Rosenthal. I'll read 13 it as follows, quote: 14 "Q: Well, did they have a concept of 15 ownership that coincides or even 16 approximates the way we use that word? 17 A: Well, they took money for the 18 purchase. They signed the -- 19 Q: Sorry -- 20 A: Yes, I think so. 21 Q: Ownership of land in the same way 22 that we think of it? 23 A: Well, they sold it, sir. There was 24 a purchase agreement. They believed it 25 was their land. They supervised it.
1121 They complained about trespass and they 2 ultimately sold it. Now, not 3 individual ownership, if that's what 4 you mean, but, they had a proprietary 5 interest, which they protected and 6 ultimately alienated." Unquote. 7 Now, so would -- would you agree with me 8 that it's a fair price of Ms. Johnston -- Professor 9 Johnston's evidence, that she said that First Nations 10 people have an aboriginal concept of the ownership of 11 land, which includes the right to sell it; is that fair? 12 13 (BRIEF PAUSE) 14 15 A: Yeah, I would say that was fair. 16 Q: All right. Thank you. And now I 17 would like to turn to Inquiry Document 4000001, which is 18 at Tab 9 of the brief; this is the Royal Proclamation of 19 1763. 20 And in particular, I would like to refer 21 you to a page 983 of the extract. And the portion, in 22 particular, that I want to refer to is toward the bottom 23 of the page; it's about an inch on the brief, from the 24 bottom. 25 We have the right paragraph on the screen
1131 and you will see that there are the words that are at the 2 end of a line that begin, quote: "if at any time". Do 3 you see those? 4 5 (BRIEF PAUSE) 6 7 A: Okay. I have it. 8 Q: All right. And so the words are, and 9 I quote: 10 "If at any time, any of the said 11 Indians should be inclined to dispose 12 of the said lands, the same shall be 13 purchased only for us, in our name at 14 some public meeting or assembly of the 15 said Indians, to be held for that 16 purpose by the Governor or Commander in 17 Chief of our colonies, respectively, 18 within which they shall lie." And then 19 it goes on -- Unquote. 20 And then it goes on to say that if they're 21 purchased at all, they'll be purchased only in the name 22 of the Crown; is that correct? 23 A: That's correct. 24 Q: So, this is the document that is 25 providing, it would appear, some safeguards on the sale
1141 of First Nations land by providing for the involvement of 2 a senior official and a public meeting and title going 3 only to the Crown, correct? 4 A: That's correct. 5 Q: All right. But, the Royal 6 Proclamation also clearly contemplates that the First 7 Nations people may -- may sell land which after the 8 Royal Proclamation is, to use the term that's been used 9 in the evidence, "Indian Territory"; land outside the 10 proclamation line? 11 A: Yes, this particular part they're 12 talking also about land where they've allowed settlement. 13 Q: Right. But, those are -- that's land 14 where settlement has been allowed outside what is the 15 proclamation line? 16 A: Or inside. 17 Q: I see. But, it would include land 18 outside the proclamation line? 19 A: Yes. 20 Q: Okay. 21 A: There's two (2) -- there's two (2) 22 different provisions in the Royal Proclamation and one 23 (1) is to allow the Crown to take possession of Indian 24 land in the Indian territory. 25 Q: Yes?
1151 A: And the other is for the Crown to take 2 possession of land that's been reserved for Indians 3 within the settled territory, giving up land to the Crown 4 -- selling land or disposing of land to the Crown, yes. 5 Q: All right. Right. And in 1818, as I 6 understand your evidence the British began to pursue 7 negotiations for the purchase of all of the lands owned 8 by the people they called the Chippewa north of the 9 Thames River for the purpose of settlement by non- 10 natives, correct? 11 A: That's correct. 12 Q: All right. And that ultimately leads 13 to Treaty Number 29 in 1827, correct? 14 A: That's correct. 15 Q: Which is Inquiry Document 4000023 16 which it at Tab 10 of the brief. Now, this is the treaty 17 that provides for the various reserved lands. And at the 18 third page of the Inquiry Document, which is page 72 of 19 the text -- at the bottom of page 72, this is the text, 20 you'll see it's about -- about eight (8) lines from the 21 bottom -- this is the text that provides that the reserve 22 shall be reserved, quote: 23 "to the said nation of Indians and 24 their posterity at all times hereafter 25 for their own exclusive use and
1161 enjoyment." 2 Unquote. 3 A: That's correct. 4 Q: Okay. And as I recall your evidence 5 when Mr. Klippenstein was asking you questions, you 6 agreed with his suggestion that the reference to the 7 Nation of Indians and their quote "posterity" unquote was 8 fairly to be taken as a reference to holding the lands in 9 perpetuity, correct? 10 A: That's correct. 11 Q: All right. Okay. And -- and I take 12 it though that there was nothing in Treaty 29 that -- 13 that said the -- the aboriginal people could not sell 14 reserved land in the future if they chose to do so? 15 A: There's nothing that says that in 16 Treaty 29; that's correct. 17 Q: And if we look at the next page of 18 the Inquiry document which is page 74 of the text, you'll 19 see that, and this is about -- just a little bit below 20 halfway down page 74, there is a reference to the Crown 21 receiving and I quote, because I'm starting with the 22 words: 23 "The said two million and two hundred 24 thousand (2,200,000) acres of land..." 25 Do you see that?
1171 (BRIEF PAUSE) 2 3 Q: It's about two (2) inches at the 4 bottom, starting at the left margin with the words "the 5 said two million (2,000,000) ..."? 6 A: They should have made more paragraphs 7 in these things. 8 Q: Yes. And they should be bigger when 9 you press the print button too, but anyway? 10 A: Okay, it says: 11 "land first herein described two 12 million one hundred and eighty-two 13 thousand, forty-nine (2,182,049) 14 acres." 15 Is that where you are? 16 Q: No, I'm -- no, I'm -- 17 A: Further down? 18 Q: -- I'm reading from it says: 19 "The said two million and two hundred 20 thousand acres (2,200,000) ..." 21 From the -- from the left margin? 22 A: Okay. 23 "The said two million, two hundred 24 thousand (2,200,000) acres of land..." 25 Q: Right.
1181 A: Okay. 2 Q: Yes. And carrying on from there, and 3 I quote: 4 "...with their and -- and every of 5 their rights, privileges, advantages 6 and appurtenances, brackets(saving and 7 excepting the several reserved tracts 8 aforesaid)closed bracket, unto our said 9 Sovereign Lord, the now King, his heirs 10 and successors to the only proper use 11 benefit and behove of our said 12 Sovereign Lord, the nor King, his heirs 13 and successors forever." Unquote. 14 Now, is it -- so it's -- would it be fair 15 to say that what this is referring to, as it were, is a 16 grant of the 2 million plus acres to the Crown and the 17 Crown -- the King's heirs and successors forever, and 18 then in other words, that is a grant of the land, in the 19 language of this document, to the King's posterity? 20 A: That's correct. 21 Q: And in that sense, it is a grant of 22 rights to the land, in perpetuity, correct? Is that 23 fair? 24 A: I think so, yes. 25 Q: Okay. But, it was -- it was always
1191 the intention and it was known intention when this was 2 done, that this land was not being acquired by the Crown 3 for the purpose of the Crown holding it in the Crown's 4 name forever, right? The very purpose of this, was to 5 acquire the land and then re-transfer it to -- to 6 settlers, right? 7 A: Yes, for settlement and other 8 purposes, yes. 9 Q: All right. And we know that in the 10 approximate period -- well let me take you to the 11 document first. 12 The next document is Commission document 13 4000358. And this is a letter -- it's at Tab 11 of your 14 brief, it's a letter written by William Jones, Assistant 15 Superintendent of the Indian Department, to Colonel James 16 Givins, Chief Superintendent of the Indian Department. 17 And it's a letter written in March 18 -- 18 pardon me -- 1836. I'm relying on the -- as we call 19 them, the cheat sheet that I've got at the front of the 20 Tab, from the Inquiries materials. 21 And you'll see that in this document on 22 the first page, in the -- in the -- well, I'll go to the 23 first paragraph, on the first page and the first 24 paragraph, you'll see there's a reference to the Indians, 25 quote -- and we don't know exactly who is being referred
1201 to, but it says, quote: 2 "Sometime after the Indians returned 3 from Toronto they came to me to state 4 that they had made several requests of 5 the Lieutenant Governor. And that His 6 Excellency told them they should come 7 to me and get their wishes committed to 8 writing." Unquote. 9 And then in the next paragraph, it reads, 10 quote: 11 "The Indians have called on me again to 12 press the business - therefore to avoid 13 their further importunities, I now do 14 my self the honour of stating that in 15 the first place they prayed that the 16 northeastern most reserve near the 17 River Aux Sable, may be exchanged for 18 an equal quantity of land on the 19 southwestern side of the southern most 20 reserve at that place." Unquote. 21 Now, as I understand it, the northeastern 22 most reserve near the River Aux Sable would be what is -- 23 we know now as the Stoney Point Reserve? 24 A: Yes, that's correct. 25 Q: And so, would you agree with me that
1211 this document shows that in the approximate period of the 2 1827 surrender, about nine (9) years after, Indian people 3 or at least some Indian people, were clearly of the view 4 that they could transfer that reserve, if they wished to 5 do so? 6 A: That's what it indicates, yes. 7 Q: All right. Now, I'd like to turn to 8 another subject and this is the matter generally of 9 shoreline development at Kettle Point and Stoney Point. 10 Now, as I understand it -- your evidence 11 that -- that in -- the first record that appears to exist 12 regarding this notion that the shorelines on these 13 reserves might be used for recreational development is 14 something that appears in 1900 when Mr. Davidson is 15 surveying the Stoney Point Reserve; do you recall that? 16 A: Yeah, it's when Mr. Davidson, the 17 surveyor Davidson, surveyed the boundaries of the Stoney 18 Point and Kettle Point Reserves, he noted in his comments 19 that the shore front, particularly he referred to the one 20 at Kettle Point, might be suitable for recreational 21 development, especially in view of the fact that it was 22 right off the -- the Kettle Point, I think it's a bass 23 fishing ground. A famous -- you know, a well -- a well 24 known fishing ground. 25 So that was the first suggestion that I am
1221 aware of. 2 Q: Right. And I believe your evidence 3 also is that subsequently there are attempts -- attempts 4 to obtain shoreline land in 1912 and 1923, which did not 5 succeed? 6 A: That's correct. 7 Q: And in 1923 there was a fellow named 8 Kemp who attempted to lease Kettle Point waterfront lots 9 for the purpose of developing recreational property? 10 A: That's right. 11 Q: And if I can refer you to Tab 12 of 12 the brief which is Inquiry document 4000184 and I'd be 13 much obliged if Mr. Millar could magnify this one because 14 it's quite small in the original, as you see. 15 This is a letter which is dated September 16 19th, 1923, and it's from a law firm and the first 17 paragraph reads -- and if you can get this from the hard 18 copy you're doing better than me. 19 A: I'm looking for my magnifying glass. 20 21 22 (BRIEF PAUSE) 23 24 Q: Now, the first paragraph reads, it's 25 a letter to the Superintendent General, Indian Affairs
1231 and it reads quote: 2 "We have been consulted by the 3 representatives of the descendants of 4 the original Chippewa Indians, members 5 of the Band at Kettle Point Reserve in 6 Lambton County, with reference to the 7 proposed leasing by the Band of some 8 two hundred (200) acres on the 9 northeast corner of the reserve for 10 summer resort purposes and asked by 11 them to make representation to the 12 Department to prevent the proposed deal 13 going through." 14 And then if we go down to the next 15 paragraph you'll see that the -- let's see, the fifth -- 16 the fifth line of that paragraph, in the second paragraph 17 reads, and I quote: 18 "The lessee evidently proposes to 19 sublet this property into small lots 20 suitable for summer cottages and to 21 derive therefrom a very large revenue." 22 Unquote. You see that? 23 A: Hmm hmm. 24 Q: Now, as I understand it, this -- and 25 I think you've already confirmed this, this lease deal
1241 did not go through? It didn't proceed? 2 A: That -- that's correct. 3 Q: All right. But would you agree with 4 me that it would appear that certainly by 1923, it was 5 known by persons in the aboriginal community that people 6 were interested in acquiring reserve shoreline for 7 recreational development? 8 A: Yes. 9 Q: And -- 10 A: Or most of the Band Council or some - 11 - some of the people at least, yeah. 12 Q: Yes. Indeed. And that such persons 13 appear to have known, at least by 1923, that at least one 14 developer wanted to do that for the purpose of making a 15 very significant profit? 16 A: Yes. 17 Q: All right. Now, if we can move up to 18 1927, and the sale of the Kettle Point beach front which, 19 as I understand it, is -- it was about half of the 20 shoreline at the Kettle Point Reserve; correct? 21 A: Oh no. It would have been less than 22 that because you have to remember that -- that Kettle 23 Point has shoreline because it's a point, on -- 24 Q: Yes. 25 A: -- on -- on two (2) sides so --
1251 because the top of the reserve is kind of like a peak. 2 So it would -- in terms of the shoreline it might be 3 maybe a fifth, or something in that neighbourhood. 4 Q: Thanks very much. So then in -- in 5 1927 Mr. Crawford comes along and he wants to buy a 6 portion of this Kettle Point shoreline and Inquiry 7 document 4000198, which is at Tab 13 of your brief, is 8 the -- it's the resolution of the General Council of 9 Kettle and Stoney Point on March 30th, 1927 which is a 10 motion -- a motion to approve the sale of certain of the 11 Kettle Point shoreline lands in a quantity of eighty- 12 three (83) acres at a stated price of eighty-five dollars 13 ($85) per acre; correct? 14 A: That's what this is, yes. 15 Q: And then in Inquiry document 4000197 16 we have the -- we have the poll book related to the 17 Kettle Point Surrender; correct? 18 A: That's correct. 19 Q: Okay. And just so I understand this 20 -- this document, if we look at the -- the third page of 21 the document itself, as I understand it we have -- this 22 list of handwritten names going down the left side of the 23 page is a list of all the people who voted for the 24 surrender at Kettle Point; right? 25 A: No. The list of names in the left-
1261 hand column -- 2 Q: Yes. 3 A: -- is the list of the eligible voters 4 because -- 5 Q: I see. Right. 6 A: -- it's a poll book. This -- these 7 are the people who, in the view of Department of Indian 8 Affairs, have the legal right to vote. So all of the 9 names are -- are listed. 10 Q: I see. I see. 11 A: The -- the -- the columns more to the 12 right, you'll see at the top of that column written in in 13 handwriting, "voted FO" -- I think it's "FR" which is 14 supposed to be for and then in the next column "voted 15 against". 16 Q: Right. And -- and as -- thank you 17 for that. And as I recall your evidence, no one voted 18 against but quite a number of people did not vote at all? 19 20 A: That's correct. 21 Q: So the only X's that you see are the 22 X's that are in the voted for column. 23 Q: Right. And so if we look over the 24 next page there's a notation saying: 25 "P.S. Those members on list were
1271 absent at this meeting who did not 2 vote." 3 Right? 4 A: Yes. 5 Q: All right. And then over the next 6 page there are more names and there's X's beside them? 7 A: That's correct. 8 Q: And everybody it seems on -- on the - 9 - on the next page voted in support of the surrender; 10 right? 11 A: That's correct. 12 Q: And the -- the people on the earlier 13 page where there is no X beside their name, those are the 14 people who did not vote at all; right? 15 A: That's correct. 16 Q: Thank you very much. If you'll just 17 bear with me for a moment please. 18 19 (BRIEF PAUSE) 20 21 Q: Now, I believe your evidence is that 22 the -- that the Kettle Point surrender caused a great 23 deal of upset in the community; correct? 24 A: It did. 25 Q: And the next document I would like
1281 you to look at is document number 4000189 and there's -- 2 on your hard copy, there's -- somehow one of our post-it 3 notes has gotten in there and it says nothing of an 4 adversarial nature I can assure Counsel. 5 But this Document 4000189 -- I understand 6 that this is a document in which the Chief, John Milliken 7 of the Band writes to the Indian agent saying the 8 majority of the band's in favour of the sale at Kettle 9 Point, and this is in February of 1927 so it's more -- 10 more than a month -- it's February 11, 1927 -- more than 11 month before the -- the surrender and the Chief is saying 12 to the Indian agent that the majority of the band's in 13 favour of the sale at Kettle Point. And you'll see that 14 he seems to -- well, he -- he says -- and I'll read about 15 the middle of the letter. It says, quote: 16 "If the letter sent by Cornelius 17 Shawanoo has anything to do with the 18 delaying of this sale, please do not 19 pay any attention to them." 20 So, they're essentially showing that 21 they're aware of a potential opponent to the sale and 22 they're just telling the Indian agent to never mind about 23 him, right? 24 A: That's correct. 25 Q: All right. So, about a month and a
1291 half before the surrender we see that there's -- there's 2 some issue in the community about the appropriateness of 3 this sale? 4 A: That's correct, yes. 5 Q: And then, if we look at the next tab 6 which is Document 4000196, this is a letter -- as I 7 understand it you referred to it in your evidence -- it's 8 a letter from Mr. Shawanoo which he wrote directly to 9 Indian Affairs in Ottawa instead of to the Indian agent, 10 correct? 11 A: That's correct. 12 Q: And here in this letter, he is 13 complaining about the potential Kettle Point sale. This 14 is a letter, by the way -- this is March -- 15 A: Twenty-one (21). 16 Q: Yes, March 21, and -- so, about nine 17 (9) days before the surrender, right? 18 A: That's correct. 19 Q: And this a letter where he's directly 20 protesting the -- the potential sale to Ottawa, right? 21 A: That's correct. 22 Q: Okay. And then, the next document is 23 four thousand and two hundred (4000200) which is a letter 24 dated April 4, 1927 and that's five (5) days after the -- 25 the surrender, right; the surrender of March 30?
1301 A: Yes. Yes. 2 Q: All right. And -- so in this letter a 3 law firm is writing to the Superintendent General, 4 Department of Indian Affairs, Ottawa, Ontario, and he is 5 saying the -- the lawyer is saying that, quote: 6 "We have been instructed by Mr. 7 Shawanoo and others on the Indian pay 8 list of the Kettle Point Reserve about 9 certain alleged bribery and fraud in 10 connection with the meeting of the 11 General Council held last week to vote 12 upon the question of the sale of a 13 portion of the reserve to Mr. Mackenzie 14 Crawford of Sarnia, Ontario," unquote. 15 Now -- so I -- I take it -- it's fair to 16 say that we are seeing, very quickly after the surrender 17 vote, vigorous opposition to that sale and serious 18 allegations of bribery and fraud. 19 A: Yeah. Objection to the surrender, 20 yes. 21 Q: And it's -- and charges of bribery and 22 fraud are quite serious, aren't they? 23 A: I think they're serious, yes. 24 Q: All right. And if we look at the next 25 document which is Document 4000199, which is a letter
1311 from the purchaser, Crawford, to the local MP and it 2 appears his ally, Mr. Goodison and you'll see on the 3 second page of this letter, and it's a letter dated April 4 1, 1927, the day after -- two (2) days after surrender -- 5 that -- it says, I quote, on the second page: 6 "I am writing you this as I am sure 7 some of the Indians are going to make 8 as much trouble as they can." unquote. 9 Do you see that? 10 A: Yes. 11 Q: So, it would appear to be clear that 12 the purchaser knows full well that there -- there are 13 quite vigorous objections to this sale in the community. 14 A: Yes, it seems that way, yes. 15 Q: And if we look at the next document, 16 which is Document 4000220; this is a -- a letter of June 17 14, 1928 -- a letter to Mr. -- to Mr. Goodison, the MP, 18 from Mr. Caldwell Chief Clerk, Lands and Timber branch of 19 Indian Affairs dated June 14th, 1928 and you'll see that 20 this is the letter and you referred to this in your 21 evidence. 22 In the second paragraph this letter refers 23 to this desire of the apparent Mayor of Sarnia, Mr. 24 Scott, to buy reserve shore-front in 1928 and it reads, 25 and I quote:
1321 "Mr. Scott has not made application to 2 the Department and in view of the 3 trouble recently experienced in 4 connection with the proposed purchase 5 of a portion of the Kettle Point 6 Reserve by Mr. MacKenzie Crawford, I 7 think Mr. Scott should be advised to 8 submit the matter first to the 9 Department rather than to proceed to 10 negotiate with the Indians without 11 either our approval or consent." 12 Unquote. So would you agree with me this 13 -- this letter is being written about -- well, about 14 fifteen (15) months, over a year after the -- the Kettle 15 Point surrender? 16 A: Yes. 17 Q: And -- 18 A: Although -- 19 Q: It -- 20 A: Yeah, about thirteen (13), fourteen 21 (14) months, yeah. 22 Q: And this letter suggests that the 23 opposition to the Kettle Point surrender was so vigorous 24 that it is still being given weight by Indian Affairs 25 officials over a year later?
1331 A: Yeah, I think -- I think what it 2 indicates is that because there was so much controversy 3 over the surrender at Kettle Point when, a year later, 4 another private individual goes through -- has the MP 5 assist him in -- in -- in obtaining or encouraging the 6 Department of Indian Affairs to obtain a surrender in 7 order that he can purchase land. 8 What Caldwell is -- is telling the MP is 9 that if Scott wants that land, he should be careful to go 10 through the proper channels, because the proper channels 11 are to approach the Department of Indian Affairs not to 12 go onto a Reserve and start talking up a surrender with 13 Indians. It's supposed to go through the Department. 14 Q: Yes, thank you. All right, and if I 15 can turn to the next document, then, which is Inquiry 16 Document 4000229. 17 As I understand it, this is the letter 18 from the Indian Agent, Mr. Paul, to Mr. McLean as the 19 Assistant Deputy and Secretary with the Department of 20 Indian Affairs written in October of 1928 in which he 21 reports on the vote, regarding the surrender of Stoney 22 Point shore-line, correct? 23 A: Yeah, he makes a mistake in the 24 letter and he says Kettle Point but he means -- he means 25 Stoney Point.
1341 Q: Yes, thanks. And as I understand it, 2 the second page of the document -- let me see if I've got 3 it right this time, is -- it's a list of all of the 4 people who voted for the surrender, correct? At Stoney 5 Point? 6 A: That's correct. 7 Q: Okay. And ... 8 A: So it's not a poll book. 9 Q: Right. 10 A: It's just a list of people who voted 11 in favour. 12 Q: There doesn't appear to be a -- a 13 poll book in existence, correct? 14 A: That's correct. 15 Q: And -- and what he says in his letter 16 is that -- this is about the middle of the first 17 paragraph he -- he says that there were twenty-eight (28) 18 people present and the list -- and that -- pardon me, and 19 that twenty-five (25) of those people voted for the 20 surrender. 21 A: That's correct. 22 Q: Okay. And I believe you had said in 23 your evidence that there had been thirty-nine (39) people 24 eligible to vote in 1927? 25 A: There were thirty-nine (39) people on
1351 the poll book in 1927, yes. 2 Q: Okay. And if there were thirty-nine 3 (39) people eligible to vote in -- in 1928 on the Stoney 4 Point surrender, the number of people voting would still 5 have been a -- a clear majority of the -- the persons 6 eligible to vote, right? 7 A: If -- if the number of eligible 8 voters was still thirty-nine (39) which is likely that 9 it's around the same number, being only a year later, and 10 twenty-five (25) voted in favour, then that would still 11 be -- that would still constitute a majority. 12 Q: Okay. 13 A: Or under the more complicated formula 14 for looking at a surrender, it would also constitute a 15 majority of the majority, which is one of the standards 16 that the Department used at the time. 17 Q: Now, as I understand it, in your 18 report, or, and in your evidence, you have not received 19 or identified any evidence of allegations of bribery or 20 cash bonuses being paid, in connection with Scott's 21 purchase of the Stoney Point land; correct? 22 A: I'm not aware of any; that's correct. 23 Q: And, as I understand it, there's no 24 indication in the documents of any protest about the sale 25 at Stoney Point at the time or shortly thereafter,
1361 shortly after the -- the sale? 2 A: The sale following the surrender? 3 Q: Yes. 4 A: The sale of the surrendered land? 5 I'm not aware of any protests, no. 6 Q: And, we've seen from the documents we 7 reviewed, regarding the protests of the Kettle Point 8 surrender, was that there were people in the community 9 who would not hesitate to rise and make their voices 10 heard, if they thought Reserve land was being sold 11 improperly; correct? 12 A: That was the experience at Kettle 13 Point, yes. 14 Q: Now, so, when Mr. Klippenstein was 15 asking you some questions, I believe that he asked you 16 about whether the Indian Agent had discussed with the -- 17 the people voting on the Stoney Point surrender, the 18 relative prices in the Kettle Point surrender and the 19 Stoney Point surrender; do you recall that? 20 You were asked about what the Indian Agent 21 had said, what record there was of what the Indian Agent 22 had said? 23 A: I recall it sort of, yes. 24 Q: Okay. I'll -- I'll just come to the 25 point. If we look at the, I'm going to bounce back and
1371 forth a little bit, and I hope I don't get Mr. Millar mad 2 at me, but if we look at the resolution, which is 3 Document 4000198, of Tab 13 of your Book, of the Council 4 of Kettle and Stoney Point, which was a resolution to 5 support the Kettle Point sale at the specific price, of 6 eighty five dollars ($85) an acre for eighty-three (83) 7 acres. 8 We see that the Council is identified as 9 being John J. Milliken, Robert George, Sam Bressette and 10 William George; right? 11 A: That's correct. 12 Q: Okay. Then if we go to the surrender 13 for Stoney Point, the Stoney Point shoreline, which is -- 14 this is Inquiry Document 4000226, as I understand it, 15 this is at Tab 21 of your material, and as I understand 16 it, this is a transcription of the surrender at Stoney 17 Point? 18 A: Yes, that's correct. 19 Q: And I have attached under the same 20 tab, document 4000227 which is the -- a copy of the 21 original surrender. 22 A: With the signatures, that's correct. 23 Q: Okay, I'm just going to stay at -- at 24 -- I'm just going to stay at the transcript for the 25 moment. I take it you would agree with me that the
1381 persons signing the surrender at Stoney Point are signing 2 a document that, if we look at the -- the first page of 3 the surrender at the bottom, they're signing a document 4 which shows a -- a purchase price or shows a description 5 of the land and then a purchase price of thirteen 6 thousand five hundred dollars ($13,500). Right? 7 A: I'm just looking for the purchase 8 price in here. 9 Q: It's at the bottom of the first page 10 of the transcript. 11 A: Yes. 12 Q: So, clearly the -- the members of the 13 Council who signed this document, when they signed this 14 surrender, have information about what the -- the price 15 is. 16 A: Yeah, the only difference is, on the 17 surrender at Stoney Point it's the price of the entire 18 sale, which is thirteen thousand five hundred ($13,500) 19 and in the Minute of Council which you were drawing 20 attention to, it's a -- a per acre price, so just the 21 difference there is that those two (2) figures are 22 sometimes hard to compare. 23 Q: But it would -- there -- there were 24 certainly information as to -- as to the price at Stoney 25 Point that could cause the -- the Councillors, as the
1391 leaders of their community, to raise further questions if 2 they wished to do so. Right? 3 A: They -- they were aware of the 4 purchase price, yes. 5 Q: Okay, and if -- and being aware of 6 that purchase price, they would be in a position to -- to 7 raise questions about the adequacy of that purchase price 8 if they were minded to do so. 9 A: They could if they -- if they believed 10 that they had the option to, yes. 11 Q: Okay, well, this was a matter that was 12 -- it was put to a vote, right. 13 A: Yes, it was put to a vote but I think 14 -- I think something that you -- that you have to recall 15 when you're dealing with Indian surrenders in this period 16 of time is that the people were under extreme pressure 17 and influence from Indian agents. 18 And even to the extent that in some of 19 this document that we're just going through, one (1) of 20 the things that the Council asks is, they ask the Indian 21 agent for permission to call a general council. 22 So I think that that and -- and many of 23 the other things that I talked about in -- in my 24 testimony that when you're -- when you're looking at 25 surrenders and when you're talking about, you know, the
1401 inference being made here I think is that people were 2 fully informed, that they were making an informed choice 3 and that they were making an informed choice with free 4 will and the ability to -- to have their -- their 5 protest, their concerns, looked at and acted upon . 6 And, I mean, even if you look at what 7 happened at Kettle Point which was, you know, extreme 8 distress in the community, a division in the community of 9 people who favoured the -- the surrender, people who did 10 not favour the surrender, the lesson that the -- the 11 community learned at Kettle Point was it didn't matter 12 how much the community protested or -- or raised severe 13 objections about something, it went ahead anyway. 14 So I think that while, you know, we can 15 look at documents and say, this document says this and 16 this document says that, one (1) of the jobs that I have 17 and where my expertise lies is to look at the body of the 18 documents and say this is what each document says but we 19 have to look at that in the totality of the experience 20 and we have to look at it in terms of the trends and 21 experience of the First Nation people at that time. 22 And during this time period it was very, 23 very difficult for any First Nation to successfully 24 resist pressure to surrender their land and that's why 25 you see all over Canada that there's barely -- I think
1411 there's one (1) reserve in Canada -- that has never had a 2 surrender of its reserve land. 3 So, I -- I -- I feel that -- that it's my 4 responsibility in discussing these documents to stress 5 that -- that we -- that we have to understand the 6 documents a little bit in their historical context. 7 So that -- that's the only background I 8 would like to give to that. 9 Q: All right. Well, thank you very 10 much. Would you agree with me that this -- this relevant 11 historical context that you're talking about -- 12 A: Hmm mmm. 13 Q: -- didn't begin in 1928. It would 14 include 1927 as well, right? 15 A: Yes. 16 Q: And in 1927 we saw vigorous protests 17 at Kettle Point, right? 18 A: That's right. 19 Q: Right. And -- 20 A: An unsuccessful vigorous protest. 21 Q: Yes, indeed. And are there documents 22 in your material that record discussions that support the 23 proposition or the interpretation of circumstances that 24 the people had decided that it didn't matter what they 25 said and that was the -- attitude they approached the
1421 Stoney Point surrender with? 2 Is -- is that a matter of inference and 3 interpretation, or is there a document that shows that 4 clearly? 5 A: There's no documents that show that 6 clearly. I'm saying that that's one thing that one has 7 to bear in mind when examining documents. I'm not saying 8 that that's the case. 9 Q: Thank you. And just to close off, 10 the document, as I understand it -- and this is the 11 Stoney Point surrender. We see that the -- the 12 signatories are Sam Bressette, John Elijah, Morris 13 George, Robert George and John J. Milliken, right? 14 A: That's correct. 15 Q: Okay, and is it -- and it's the case 16 that three (3) of those people, Sam Bressette, Robert 17 George and John J. Milliken, they had -- they had signed 18 the -- they had signed the Kettle Point resolution and 19 they knew of the price at Kettle Point? 20 A: That's correct. 21 Q: Okay. All right. Now, do we know -- 22 because this notion develop on the shore-line is -- 23 you've said has -- has been in play for quote a few years 24 by 1928 and first of all, and this may open up a whole 25 other ball of wax.
1431 But what -- what was the economic 2 condition of the Band during this period? 3 A: I haven't -- I haven't looked at that 4 question for quite some time. I -- I believe in the 5 1920's, and I'm speaking very generally here, I believe 6 in -- in the 1920's that the Band was not particularly 7 prosperous. 8 Q: And apart from the -- the Scott 9 purchase offer, do we know whether there are any other 10 offers to purchase the Stoney Point shore-line prior to 11 1928? 12 A: I'm not aware of any. 13 Q: Okay. And do we know whether the -- 14 the -- 15 A: Just hang on -- 16 Q: Yeah. 17 A: -- a second. 18 Q: Hmm mmm. 19 A: Sorry. I just want -- I just want to 20 check something in my report -- 21 Q: Sure. 22 A: -- because there -- White was 23 interested in that as well and just bear with me -- 24 Q: Sure. 25 A: -- for a minute.
1441 (BRIEF PAUSE) 2 3 MR. PETER DOWNARD: Commissioner, I 4 understand it's about 3:30. Perhaps this would be an 5 appropriate time? 6 COMMISSIONER SIDNEY LINDEN: Yes, that's 7 fine, if you're -- you're going to be a bit longer, I 8 presume. 9 MR. PETER DOWNARD: Yes. 10 COMMISSIONER SIDNEY LINDEN: I think this 11 would be an appropriate time to take a break. 12 THE REGISTRAR: Order, all rise, please. 13 This inquiry will recess for fifteen (15) minutes. 14 15 --- Upon recessing at 3:27 p.m. 16 --- Upon resuming at 3:50 p.m. 17 18 THE REGISTRAR: This inquiry is now 19 resumed. Please be seated. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 22 CONTINUED BY MR. PETER DOWNARD: 23 Q: Ms. Holmes, before I carry on with 24 the question I was on just before the break about other 25 offers, I'd like to step back and revisit one (1) point
1451 we dealt with before, when we were talking about the -- 2 the 1927 poll book, which showed thirty-nine (39) 3 eligible voters and the -- the reporting letter of the 4 Indian agent in 1928 showing that twenty-eight (28) 5 people were present at the meeting and not specifically 6 speaking to the number of people eligible. Do you recall 7 that? 8 A: Okay. Yes, I do. 9 Q: And I'd like to take you to page 42 of 10 our report, just for a minute, where you address the 11 subject of quote "shoreline taking at Stoney Point" 12 unquote. And I -- I'd like to direct you to the last 13 paragraph on that page. 14 A: Yes. 15 Q: And you'll see that in that paragraph 16 you say, and I'll -- I'll just read it, quote: 17 "The Kettle and Stoney Point Chief and 18 Council passed a resolution calling for 19 a general council to consider the 20 application. The surrender of the land 21 requested by Scott was accepted by a 22 band vote. Of the twenty-eight (28) 23 band members present at the surrender 24 meeting, twenty-five (25) voted in 25 favour and three (3), quote "did not
1461 vote either way" unquote. The 1929 2 Indian Affairs Census states that there 3 are twenty-seven (27) male members of 4 the band twenty-one (21) years of age 5 or older." 6 And I'll just -- I'll just stop right 7 there. Now -- so, is it -- is it -- is that an accurate 8 fact in that last sentence? Is -- is it the fact that 9 the 1929 Indian Affairs census states that there were 10 twenty-seven (27) male members of the band twenty-one 11 (21) years of age or older? 12 A: That's what the census says. Now, 13 clearly all those numbers don't add up. I mean, there's 14 -- there's a problem with the -- with the figures and I 15 don't know if it's a problem with the census data -- 16 Q: Or some other problem? 17 A: -- or some other problem. 18 Q: All right. And if -- if we just 19 assume for a minute that the census data is -- is 20 accurate, just on -- just on that assumption, as I 21 understand it, the people who could vote in the band were 22 the -- the male members of the band twenty-one (21) years 23 of age or older, right? 24 A: That's correct. 25 Q: So, if the 1929 census is accurate, it
1471 would suggest that the number of people present at the 2 Stoney Point surrender, twenty-eight (28), was very close 3 to reflecting all of the people in the band eligible to 4 vote. 5 A: Yes, but it's at total odds with the 6 poll book a year earlier that lists thirty-nine (39) 7 voters so there's -- there's obviously -- there's some 8 kind of a discrepancy. I didn't investigate it -- what 9 it was. It's there for informational purposes. 10 Q: So, the -- the accurate fact may have 11 been that there were twenty (20) -- twenty-nine (29) 12 eligible members or there were thirty-nine (39) or 13 somewhere in between, in 1928? 14 A: One could make that proposition, yes. 15 Q: Now, with respect to my -- my question 16 whether there were other purchase offers for Stoney Point 17 and -- and just -- and also just on the backburner -- 18 there actually -- there had been attempts to develop the 19 -- the shoreline at the two (2) reserves in the past and 20 they had all failed prior to 1927, right? 21 A: At Kettle Point, yes. 22 Q: Were there no attempts at Stoney Point 23 prior to 1928? 24 A: The -- the 1928 one is the only one 25 that I'm aware of.
1481 Q: So, there were no other offers to 2 purchase that land. 3 A: Not that I'm aware of, no. 4 Q: Okay. And I -- I take it we don't 5 know whether in the -- in the face of the Scott offer, 6 the Indian agent or any First Nations people tried to 7 solicit other interests or better offers? 8 A: I'm not aware of that. 9 Q: Well, is -- is it possible that since 10 this notion of shoreline development at the reserve 11 shorelines had been in the air for quite a few years by 12 1928. Is it possible that the First Nations people 13 thought, that since that gotten no other offers for 14 Stoney Point that Scott's offer was the best they were 15 likely to get? 16 A: It's possible. It's -- I -- I find 17 it hard to speculate on that because I haven't seen any - 18 - any documentation on it. It's -- if I was going to 19 look into that in a great deal of detail, one (1) of the 20 key things I would look at would be the economic 21 situation of the Band at the time. 22 One of the things that you find frequently 23 with surrenders is that the Band is desperate for capital 24 for some kind of a project. Sometimes it's as simple as 25 putting groceries on the table and sometimes they have
1491 some kind of economic scheme in mind and they're -- and 2 they're desperate for capital because they, as an Indian 3 Band, they can't borrow money or get money in the way 4 that any other Canadian citizen can. 5 So, it's very often the case with 6 surrenders that the Band has some -- some reason for 7 being desperate for capital -- for really wanting 8 capital. 9 If I was going to investigate that 10 surrender in detail, those are the kinds of things that I 11 would look for; what kinds of conditions there were; what 12 kinds of internal discussions there were about -- that 13 would influence the First Nation to want to grant a 14 surrender. 15 In this case, I haven't done that kind of 16 in-depth research so I can't really speculate on it. 17 Q: Thank you. And in -- in terms of 18 what discussion took place at the surrender meeting 19 regarding the Stoney Point sale, I -- I take it that 20 there just isn't record of what was discussed at that 21 meeting, right? 22 A: I -- I don't have any record of it, 23 no. 24 Q: So, we just don't know what was 25 discussed at that meeting.
1501 A: I don't know, no. 2 Q: Now, what I would like to do is -- is 3 turn to the subjects of the appropriation under the War 4 Measures Act of Camp Ipperwash and the -- the purchase of 5 the park by the Province. 6 And we've -- we've gone over the talk 7 about the -- the majority vote to support the surrender 8 of the Stoney Point land that included the land in the 9 corner that became the park. 10 And so, in that case is -- I believe 11 you're evidence was that there was a majority under the 12 Indian Act, right? 13 A: A majority vote under the Indian -- 14 Q: Yes. 15 A: -- Act, yes. 16 Q: Yes. Whereas in the case of the 17 camp, there was an overwhelming majority vote. And 18 there's no doubt about it, there was an overwhelming 19 majority vote against the surrender, right? 20 A: That's correct. 21 Q: And at --at that time, the lawyer for 22 -- for the Band -- a lawyer for the Band wrote to protest 23 the expropriation, right, in 1942? 24 A: In 1942, yes, that's correct. 25 Q: And the -- the Indian Agent reported
1511 then that the -- the people deeply resented the 2 expropriation? 3 A: That's correct. 4 Q: And so they -- they weren't -- they 5 weren't simply going along with this, they were 6 protesting this, right? 7 A: They were. 8 Q: All right. And this was a matter of 9 serious concern to the First Nations people at Camp 10 Ipperwash for many years after 1942, right -- right down 11 to the present day, correct? 12 A: The people of Kettle and Stoney 13 Point? 14 Q: Yes. That the expropriation of Camp 15 Ipperwash ... 16 A: Was -- was a -- they deeply resented 17 it? Yes. 18 Q: And a land claim was launched 19 regarding the camp, right? 20 A: I believe a court case was launched 21 regarding the camp. 22 Q: Okay, yes, and -- and -- fine. I'm 23 mixing my -- my processes, which is a bad thing for a 24 lawyer to do. They -- they launched, as a Band, a 25 lawsuit in 1992, right?
1521 A: I -- I'm not sure of the -- I think 2 the -- the Chippewas of Kettle and Stoney Point 3 initiated litigation in 1994 or '95 relative to the Camp. 4 The 1992 claim was a specific claim regarding the 5 surrender of Kettle Point, the -- the 1927 surrender of 6 Kettle Point. 7 Q: Well, that -- that was a claim for 8 declaration that that surrender was invalid, right? 9 A: That's correct. 10 Q: And then in 1993, there was a 11 submission of the specific claim to the Department of 12 Indian Affairs, alleging that the surrender of Kettle 13 Point land in 1927 and its sale in 1929, was invalid, 14 right? 15 A: I should check the dates in here, but 16 I believe that the specific claim was filed with the 17 Department of Indian Affairs regarding the 1927 Kettle 18 Point surrender in 1992. In 1993 the Specific Claims 19 Branch rejected that claim and then that the -- the First 20 Nation went ahead with a Court case on that and -- and he 21 -- the claim was also referred to the Indian Claims 22 Commission. 23 Q: Is it -- isn't it the case that the 24 Band vigorously pursued this claim on -- on two (2) 25 fronts: First of all there was the specific claim to
1531 Indian Affairs and then when that's rejected, they -- 2 they press on to the Indian Claims Commission, right. 3 A: That's correct, for the Kettle Point 4 surrender. 5 Q: Yes. And for the -- for the lawsuit, 6 as I understand it, in 1995, the -- the Trial Division of 7 the Superior Court in Ontario, on a Motion for Summary 8 Judgment, dismissed the claim for a declaration of the 9 1927 surrender, was invalid? 10 A: That's correct, and it went to Appeal 11 and it went to the Supreme Court. 12 Q: Right. So, in -- in that case, 13 again, the Band vigorously pressed their claim, they went 14 to the Court of Appeal and the Supreme Court? 15 A: That's correct, as far as I'm aware 16 of it. 17 Q: Okay. And, as I understand it, as at 18 September of 1995, the Kettle and Stoney Point Band had 19 not made a land claim, either to Indian Affairs or by way 20 of a lawsuit, for the return of the shoreline of Stoney 21 Point, right? 22 A: There is a specific claim, there was 23 a specific claim regarding Stoney Point, -- 24 Q: Yes. 25 A: -- and I just have to look at my
1541 report to figure out what the date of that was. 2 Q: I -- I believe you'll see that that's 3 1996. But, by all means -- by all means, turn to your 4 report. 5 A: I just can't remember what page it's 6 on. 7 8 (BRIEF PAUSE) 9 10 A: I'm just having a little bit of 11 trouble finding it. My understanding is that from the 12 Specific Claim Status Report, is that that claim -- yes, 13 it's -- yeah it was 1996, the claim on the Stoney Point 14 surrender was put forward and as far as -- as far as my 15 information goes, that claim is still under 16 consideration. 17 Q: Yes. And, so that claim in 1996 is 18 launched after the occupation of Ipperwash Park in 19 September of 1995, and after the -- the violent events of 20 the Park in September of 1995? 21 A: That's when it was filed, yes. 22 Q: All right. 23 A: On claims -- the other thing that you 24 should be aware of when we're talking about the filing of 25 specific claims is, a specific claim takes a long time to
1551 prepare, a great deal of that is contingent on the First 2 Nation obtaining funding to do the research and make the 3 present -- make the presentation. 4 So, it's filed in 1996, but I -- I have no 5 information on when the process was started in terms of 6 that claim. 7 So I'm just -- I'm just alerting you to 8 the fact that sometimes the date when something is filed, 9 is not really indicative of the dates at which a First 10 Nation started a process to make -- to set forth a 11 grievance. 12 Q: Okay. So, you just -- you just don't 13 know when that process starts? 14 A: That's correct. 15 Q: All right. I -- I take it though, 16 that there's no evidence in your report that prior to 17 September of 1995, the Kettle and Stoney Point Band had 18 publicly stated an intention to make a land claim 19 regarding Ipperwash Provincial Park? 20 A: I have no information about that. 21 22 (BRIEF PAUSE) 23 24 Q: Okay. Now, I want to turn to the 25 matter of the old burial ground in the land at Stoney
1561 Point and the 1937 correspondence. If you'll turn to Tab 2 24 of the brief; this is Document Number 4000377. 3 As -- as I understand it, this is the 4 minute of Band Council resolutions or the resolutions 5 themselves for August of 1937 by the Kettle and Stoney 6 Point monthly Council, right? 7 A: That's correct. 8 Q: Okay. And when we look at the first 9 page we see there's various business being dealt with on 10 the first page and various business being dealt with on 11 the second page and then at the end there is the -- the 12 motion -- or I'll read it, quote: 13 "Moved by Wellington Elijah and sec. 14 ..." 15 Presumably that means seconded. 16 "... by Calib Shawkence that we ask the 17 Department of Indian Aff. ..." 18 Presumably means affairs. 19 "... to request the Provincial 20 Government to preserve the ..." 21 I think that's "old"? 22 A: That's "old". 23 Q: Yeah. 24 "... old Indian burial grounds on the 25 government part at Ipperwash Beach and
1571 have their engineer mark out and fence 2 off the grounds so that they will be -- 3 be protected at Carrot." Unquote. 4 And then at Commission Document 4000378 we 5 have a letter which is dated -- it's actually -- they 6 dated it the day following the -- the Council meeting and 7 it's a letter written by the Indian agent to the 8 Secretary of Indian Affairs regarding the minute we've 9 just looked at, right? 10 A: That's correct. 11 Q: And I take it, that -- is that a 12 minute that would have been forwarded to Indian Affairs? 13 A: Yeah. The Indian agent would have 14 forwarded the minutes and the resolutions of Council to 15 Indian Affairs because, at that time, Indian Affairs had 16 to approve a resolution in order for it to be acted upon. 17 Q: Right. And -- 18 A: The Council didn't have the power to 19 make a resolution without Indian Affairs approving it. 20 Q: And you'll see that at -- this letter 21 -- and I'll just read it, it says, quote: 22 "With reference to minute of Council of 23 the Kettle and Stoney Point Band of the 24 12th instant recommending that the 25 Department of Indian Affairs request
1581 the Ontario Government to preserve the 2 old Indian burial ground on the new 3 government park at Ipperwash Beach, I 4 would approve this resolution. When 5 cleaning out this park recently, the 6 engineer discovered an old Indian 7 burial ground and stated that if the 8 Band could make a request to the 9 Provincial Government, he was sure that 10 they would be glad to mark off and 11 fence the plot. The Council would like 12 this done." Unquote. 13 All right. Now, so -- so what -- what we 14 have here is the minute -- or the resolution of the 15 Council on the 12th and then the explanatory letter on 16 the 13th saying that the engineer discovered an old 17 Indian burial ground and has raised this matter of its 18 protection, correct? 19 A: That's correct. 20 Q: Okay. So, when we're thinking about 21 this resolution, do we -- do we know or do we have any 22 evidence that in passing this resolution the Council 23 members had any actual memory of an old burial ground in 24 the park or whether in passing the resolution they are 25 responding to information being brought to them which
1591 they didn't know about before? Do -- do we have any 2 evidence to decide that question one way or the other or 3 suggest an answer? 4 A: No, we don't. 5 Q: And would you agree with me that and 6 we're well beyond hearsay with these historical 7 documents, but the -- the engineer clearly appears to be 8 mindful of protecting whatever it is he -- he's found. 9 Would you -- he doesn't appear to have any intention of 10 desecrating any burial ground, right? 11 A: No, he seems quite respectful. 12 Q: And then we have the exchange of 13 correspondence at -- first at Document 4000379 which is 14 the letter to Deputy Minister Cain from the Secretary of 15 Indian Affairs of August 17th for -- he just conveys -- 16 he conveys that this -- this information to the Deputy 17 Minister, right? 18 A: That's correct. 19 Q: And then on the -- on the next 20 document we have Deputy Minister Cain writing back on 21 August 19 to Mr. MacInnes, this is at 4000380. And here 22 he says and I quote: 23 "Not having before me all the facts in 24 connection with the location of this 25 area in relation to our program of
1601 works now being carried out, I cannot 2 speak definitely on the matter except 3 to the effect that I shall do my best 4 to make such arrangements as will 5 respect the natural wishes of the 6 Indians." 7 Now would you agree with me that when Cain 8 writes this letter he doesn't appear to know where this 9 so-called old burial ground is? 10 A: He doesn't -- well he -- I think that 11 he knows that it's at Ipperwash because that's the 12 subject line, but the way I read that is he doesn't know 13 where it is in relation to the work that they're doing in 14 the Park. 15 Q: Or -- or whether it's in the Park or 16 outside the Park? He's saying, he doesn't know where it 17 is in relation to the program of works. And I -- I take 18 it that the program of works is the Park -- 19 A: It's in the Park. 20 Q: -- the program of works is -- is the 21 Park and he doesn't know where it is in relation to their 22 program of works so he may be suggesting, I don't know if 23 we have authority over this land. Is that one possible 24 interpretation? 25 A: It's a possible interpretation but it
1611 doesn't -- it doesn't -- it doesn't fit with the -- the 2 report of the engineer, because the report of the 3 engineer, who is a provincial engineer working in the 4 Park -- and I would guess that he is the engineer -- a 5 Lands and Forests engineer working in the Park that he's 6 working in the Park, he says it's in the Park and 7 MacInnes -- is it MacInnes that writes to him, yeah. 8 MacInnes tells him that it's in the Park. 9 This part where he says we don't know 10 where this is in relation to the Park; that with all due 11 respect is government speak of how people answer letters 12 where they, you know, are trying to be not very precise 13 about something. 14 Q: So -- so you're suggesting he wasn't 15 being straightforward when he wrote this letter? 16 A: No. I'm -- I'm saying that he's -- 17 he's not giving, like, an absolute direct answer because 18 that's the way government officials, especially a deputy 19 minister, would answer something at that time. 20 Q: So you're -- you're taking that -- 21 that's the deduction you're taking from a -- an 22 impression as to the type of government people that 23 occupy these kind of offices? 24 A: No, no, no, no, no. 25 Q: I'm must trying to understand what
1621 you're saying. 2 A: No. No. What I'm saying is at that 3 time period a deputy minister -- you see this is an 4 extremely short little letter -- 5 Q: Yes. 6 A: -- basically what he's saying is, you 7 know, we're -- we're going to do our best to look after 8 this but he doesn't have all the facts in front of him 9 yet. So he's not saying, yes we're going to build a 10 fence, you know, out of wood four (4) feet by four (4) 11 feet, so he's -- he's being general. 12 I mean, you can try and make an argument 13 that he doesn't know that it's inside the Park, but if 14 you look at it in relation to the other correspondence 15 that goes with it, I would say that that's a very hard 16 argument to make because he's informed it's in the Park, 17 the subject line is Indian burial -- burying ground 18 Ipperwash, and he is -- he's been informed of -- of where 19 it is. 20 Q: Well, hold on a minute, are you 21 saying that the re line Indian Burying Ground, Ipperwash 22 says that the Indian burying ground is in the Park? 23 A: No. It's saying that that's what 24 he's responding to. 25 Q: Okay.
1631 A: Because he's responding directly to 2 this letter, from MacInnes, which -- which identifies 3 where the burying ground is, then he says he'll do his 4 best to make arrangements that will respect the natural 5 wishes of the Indians. 6 Q: Okay. Well let's -- let's go back to 7 Document 4000378 for a minute, and this is the report of 8 the Indian agent to MacInnes in Indian Affairs, about 9 what the engineer said. And just -- just so I'm clear 10 and understand this, I take it you'd agree, that this is 11 the best information we have as to what -- what the 12 engineer has seen or what he has reported? 13 A: That I'm aware of, yes. 14 Q: All right. And, where does it say in 15 the letter that the old Indian burial ground is within 16 the park boundaries? 17 A: It says: 18 "With reference to the minute of 19 Council" 20 Okay, of the Band. 21 Q: Right. 22 A: "recommending that the Department of 23 Indian Affairs request the Ontario 24 Government to preserve the old Indian 25 burial ground on the New Government Park
1641 at Ipperwash beach." 2 Q: Right. 3 A: So, I think that that identifies it 4 quite clearly. 5 Q: Well, no, no. But, that -- that's 6 not the -- that's not the engineer's information, that's 7 -- that's the Council's -- 8 A: That's -- that's -- that's what the - 9 - that's what the Indian agent is saying. And then he 10 goes on to say, when clearing out this park -- this park, 11 the grammatical antecedent to this park, is the 12 Government park at Ipperwash Beach. 13 Okay, so, when clearing out this Park 14 recently, the engineer discovered an old Indian burial 15 ground and stated that if the Band would request -- make 16 the request to the Provincial Government. 17 So, the engineer is working on the -- the 18 new Government park at Ipperwash Beach, -- 19 Q: Yes. 20 A: -- he finds the Indian burial ground, 21 he must be working inside the Park because why would the 22 Government be paying their engineer to work outside of 23 their Park? So, he's working -- he's working inside the 24 park, he finds the burial ground, and he says: Ask the 25 Provincial Government to lay it out; which indicates to
1651 me that the engineer believes that this is within the 2 geographical jurisdiction of the Provincial Government. 3 Q: Okay. So, that's the conclusion you 4 draw -- the inference you draw from those circumstances? 5 A: Yes. And because the engineer has 6 talked to the Indian agent and so the engineer is clearly 7 -- believes that -- that this is associated with the -- 8 with the First Nation. So, one -- you know, again, it's 9 a matter of having to look at all the documents together, 10 and -- 11 Q: Of course. 12 A: -- that -- and that's what I would 13 conclude from that. 14 Q: Is -- is it -- I understand your 15 conclusion. Is it -- is it impossible that the -- the 16 burial ground discovered might have been just outside the 17 -- the park boundaries; is that impossible? 18 A: Well, why would the -- why would 19 they, you know -- I don't want to be argue -- 20 Q: I don't want to -- 21 A: -- no, I don't think that -- I don't 22 think that that's a logical conclusion, because why would 23 the provincial engineer be spending provincial money 24 working outside of the Park? It's, you know, doesn't 25 really make sense to me. So, when I read the documents,
1661 that's how I interpret them, based on all the different 2 factors. 3 Q: I see, I see. So, it's not -- it's 4 not possible that he could be working in the park, and he 5 could see something somewhere, outside the park boundary, 6 that could be an old burial ground? I'm just wondering 7 if it's a possibility, that's all. 8 A: Well, anything is a possibility -- 9 Q: Okay. 10 A: -- you know. But, I don't think that 11 it's -- I don't think that it is a likely interpretation 12 of the documents. 13 Q: Okay. Thanks. All right. Now, 14 you'll recall that when Darlene Johnston testified -- or 15 let me actually just step back for a second. 16 You've given it -- the evidence that there 17 is -- there is no evidence that the Provincial Government 18 did anything further after this letter from Mr. Cain, 19 saying that he doesn't know where this is, and using the 20 bureaucrat-speak you referred to, right? 21 A: I -- I'm not aware of any evidence. 22 Q: Okay. And by the same token, we 23 don't know of any evidence that shows that the Kettle and 24 Stoney Point Band did anything further to follow-up on 25 their resolution, right?
1671 A: I'm not aware of any evidence, no. 2 Q: We just don't know what happened, 3 right? 4 A: We don't -- regarding the Province 5 protecting that? No, we don't. 6 Q: Or -- or regarding the Kettle and 7 Stoney Point Band taking further steps to protect that. 8 Right? 9 A: I'm not aware of any. 10 Q: Okay, now you'll recall that Darlene 11 Johnston gave quite a bit of evidence about First 12 Nations' practices regarding burial sites during the -- 13 the period that she was concerned with in her evidence. 14 Do you recall that? 15 A: Yes, I do. 16 Q: And that she had talked about their 17 being married to their rituals around graves and grave 18 construction. Do you recall that? 19 A: Yes. 20 Q: And she testified about Champlain 21 reporting on a -- on a -- a cemetery which she said was 22 not simply random burials, which involved tombs in the 23 form of shrines with -- made of pieces of wood across the 24 top and fixed upright in the ground, those -- those sort 25 of more elaborate formal cemetery constructions.
1681 Do you recall that? 2 A: Yes, I do. 3 Q: And she referred to Pouchaut 4 (phonetic) at the end of the -- the French regime, 5 referring to aboriginal people being buried with their 6 finest garments and their arms and a keg of brandy. Do 7 you recall that? 8 A: Hmm hmm, yes. 9 Q: And she spoke of Sir Francis Bondhead 10 in 1836, describing a burial ground in Canada on the 11 north shore of Georgian Bay and said that in -- in those 12 graves that there -- there -- the deceased person's 13 friends would deposit, you know, powder, shot and other 14 influence. 15 Do you recall that? 16 A: Yes. 17 Q: And there was the sketch she showed us 18 by Paul Cain which showed the -- the -- off the wall, 19 it's like a -- a burial house. It was quite a -- quite a 20 substantial structure. 21 A: Yes. 22 Q: And -- and there's the evidence of 23 Henry Schoolcraft about that as well, she spoke of. 24 A: That's correct. 25 Q: Okay, and as -- as I understand it, no
1691 -- no trace of -- of any such constructions or monuments 2 or -- or of any of this sort of material has ever been 3 found within the boundaries of Ipperwash Provincial Park, 4 as best we know? 5 A: Well, the engineer found something. 6 He doesn't describe what it is that he found -- 7 Q: Right. 8 A: -- but he clearly recognizes it as a 9 burial, so I don't know what he found. I don't know what 10 he saw there on the ground but he recognized this and 11 identified it as a burial. 12 Q: Sure. Apart from whatever it was the 13 engineer found, do we know of anything else? 14 A: On -- 15 Q: Of the sort -- of the sort of material 16 that was described at length by Darlene Johnston. 17 A: I personally don't know. 18 Q: And is -- is there -- I'm now 19 duplicating Mr. Myrka. Now -- 20 A: But not -- you know -- the other thing 21 that I should inform you of is that not all aboriginal 22 burials are indicated in -- in the way that -- that 23 Darlene -- Professor Johnston described; that there -- 24 that there are many burials that either, through time or 25 because they originally weren't very well demarcated
1701 become lost to knowledge. 2 And she described quite clearly in her own 3 community and I worked on -- on some of those burial 4 sites in her community, that there are many, many burial 5 sites that through time, become obscured or lost to the 6 knowledge of people until they are -- until the 7 information is recovered many years later. 8 So to -- to say -- you know, I don't want 9 to leave you with impression that every aboriginal burial 10 is marked with the kinds of structures that -- that 11 Darlene -- Professor Johnston described. 12 Q: No, I haven't suggested that -- that 13 to you. Professor Johnston also did refer to random 14 aboriginal burials existing. Right? That's a 15 possibility, right? 16 A: Yes. 17 Q: Now, as I understand it, and we -- we 18 touched upon Davidson as the surveyor before, who -- who 19 -- he surveyed Stoney Point as the Reserve, as I 20 understand it, for the purpose of subdivision and there 21 was quite a dispute about -- because Sarnia wanted that 22 and people at Kettle Point and Stoney Point didn't want 23 that, and that ultimately leads to Davidson doing this 24 survey for subdivision, right? Around 1900? 25 A: That's correct.
1711 Q: Okay. And on this -- this whole 2 issue of just coming to -- to grips with as much factual 3 information as we can about this, could -- could the 4 surveyor's journal or field notes, if we got them, 5 possibly be of assistance to us and -- in locating a -- a 6 burial ground within the park with any specificity? 7 A: The -- the kind of work that Davidson 8 was doing, he was -- he surveyed the boundary and he was 9 noting houses and other dwellings like churches and 10 schools, houses, barns, and what they call improvements 11 which would be gardens, et cetera, valuable stands of 12 timber, that type of thing. 13 Whether or not he would note burials if he 14 saw them, I don't know. 15 Q: And so it -- it's a possibility? 16 A: But I don't think that he -- I -- I 17 looked at his -- his plan and he -- there's nothing 18 marked on his plan. 19 Q: Have you had an opportunity to review 20 any field notes of Davidson or anything like that? 21 A: I'm -- I'm trying desperately to 22 remember if looking at the field notes. I can't recall 23 actually if I looked at the field notes at all. I looked 24 at the plan very carefully, didn't see anything. 25 But as I said, the kind of mandate that
1721 Davidson had, I'm not -- I'm not convinced that he would 2 have been looking for that kind of -- that kind of a 3 landmark and would have noted it. 4 Q: Okay. So -- an absence of 5 information or any notes may not be dispositive one way 6 or the other, but it might be helpful if we could see 7 those notes to just to try exhaust every source of 8 information we can; right? 9 A: Yes. 10 Q: And do you -- do you know of any 11 evidence in the possession of the Kettle and Stoney Point 12 Band by way of further Council resolutions or -- or 13 Minutes of meetings or any documentation that would 14 indicate that from 1937 up to September of 1995 the 15 Kettle and Stoney Point Band took any steps to pursue 16 this issue of -- of a -- of a burial ground in the 17 Ipperwash Provincial Park land? 18 A: I'm not aware of any. 19 Q: Right. And we know that Robert 20 George was very active in attempting to protect the -- 21 the long-established burial ground in -- in the Army 22 Camp, right? 23 A: That's correct. 24 Q: And we have to be very careful about 25 what we -- what we -- what we take from any of this,
1731 because Mr. Rosenthal suggested that -- that Robert 2 George had -- had sons buried in that cemetery and, 3 therefore, had a very special concern about that cemetery 4 apart from any general cultural concern, right? 5 A: I -- I believe Mr. Rosenthal pointed 6 out some family members that were buried in that burial 7 ground. I don't remember exactly what the relationship 8 was. 9 The other thing that -- that should recall 10 is that although the Indian Agent minimized Robert 11 George's concerns over the cemetery, he also added that 12 every time it was raised in a general meeting or a 13 Council meeting that the other -- the other Band members 14 supported George in his -- in his protest about the state 15 of the cemetery. 16 So I think that you have to be careful not 17 to follow the lead of the Indian Agent and decide that it 18 was only Robert George's concern. 19 Q: It was the Indian Agent who referred 20 to Robert George's concern as, I think as a -- 21 A: Pet peeve, he called it. 22 Q: Pet grievance -- 23 A: Yeah. 24 Q: -- I think was the language. 25 A: Oh, maybe.
1741 Q: Just as inappropriate, right? 2 A: Yes. 3 Q: All right. But what we see, though, 4 is that Mr. George and the other members of the Band when 5 he -- when he raises this at -- at Council are very 6 active to -- to support the protection of the burial 7 ground in Camp Ipperwash; right? 8 A: They're active to the extent that 9 they could be at the time which was to -- to make 10 complaints through their Indian Agent, yes. 11 Q: Right. But your -- your evidence is 12 that the -- the burial ground in the park appears to have 13 been forgotten; right, because there were no similar 14 complaints regarding the park after 1937; right? 15 A: There's no similar complaints that 16 we're aware of. However, I think that, you know, if we 17 want to look at the -- the concerns raised by Robert 18 George as a -- as a parallel to compare to, what you'll 19 also note is that the Indian Agent -- the only reason 20 that the Indian Agent even brings this up is because an 21 outside party, namely, this individual from health and 22 welfare I believe, National Health and Welfare, was -- 23 was one that raised the issue with the Department. 24 And at the time the Indian Agent said, oh 25 well, he's brought this up many times. So we only find
1751 out that Robert George has been complaining about that 2 cemetery because somebody from the outside, namely, this 3 official from Health and Welfare, brings it to the 4 attention of the Department. 5 So if we use that experience as a 6 parallel, we don't know if Band Members have been 7 similarly making complaints about the graveyard at Park 8 Ipperwash but it's never been recorded because the Indian 9 Agent clearly is not recording and bringing forth every 10 complaint that Band Members are made, which, again, I 11 would -- I -- I know is very typical of that period for 12 Indian Agents not to pass on all of the complaints of 13 Band Members because the general attitude of Indian 14 Agents at the time was that the Indians were a bunch of 15 complainers and that they didn't have to bother 16 headquarters with all these grievances. 17 And we can see that in the case of Robert 18 George, that's exactly how the Indian Agent behaved. 19 Q: Sorry, the general attitude of Indian 20 Agents generally at this general time was that Indians 21 are a bunch of complainers; is that what your evidence 22 is? 23 A: That -- that is my experience of 24 doing historical research for First Nations and on First 25 Nation grievances in this time period is Indian Agents,
1761 very often, did not put forward concerns that were 2 brought forth by Band Members because they believed that 3 they were complaining a lot and that they were 4 troublemakers. 5 And if you look at Indian Affairs' records 6 through this whole time period, you will see these kinds 7 of comments being made and this is why the Indian Agent 8 would not always pass on grievances that were raised by 9 the Band. 10 Q: Well, apart from this reference to a 11 pet grievance in -- in the letter regarding Robert 12 George, are there documents that you've provided us that 13 show that the Indian Agent at the time for Kettle and 14 Stoney Point thought that the First Nations' people there 15 were a bunch of complainers and troublemakers? 16 A: Well, if you think about at the time 17 of the expropriation, one of the instructions from 18 headquarters to the Indian Agent was that he should guard 19 carefully all the information about the valuations 20 because people would start putting forth all sorts of 21 arguments about the value of this and the value of that. 22 And as I've just said in my statement was 23 that it's my general observation in studying First 24 Nations' history for twenty-one (21) years that during 25 this time period Indian Agents are quite well known for
1771 making these kinds of disparaging remarks about how these 2 people were complaining all the time and that they 3 shouldn't be, you know, paying attention to all their 4 grievances in the same way that people were always being 5 instructed to deal through their Indian Agent and not 6 bother the Department of Indian Affairs headquarters with 7 their complaints. 8 Q: Any other documents that you recall? 9 A: I can -- you know, I could sit down 10 and go back to my office and make you a list of thousands 11 of them but -- 12 Q: No, no, I'm asking you about 13 Ipperwash? 14 A: In Ipperwash? 15 Q: Yes. 16 A: Well, we see it with the -- the 17 attitude about the sharing information in the -- about 18 the valuations -- 19 Q: Right. 20 A: -- and about the whole process. We 21 see it when -- when he's talking about Robert George and 22 his general attitude about the -- the number of 23 complaints he's made that he has not passed along and his 24 characterization of his complaints. 25 Q: Right.
1781 A: Those are the ones that come to the - 2 - to my mind. 3 Q: The two (2) you've already told me 4 about? 5 A: Yes. 6 Q: All right. Thank you. Now, Donnelly 7 Johnson (phonetic) was telling us about the new 8 regulations under the Cemeteries Act regarding the 9 protection of First Nations' burial grounds and you 10 recall her evidence said that was relatively recent, it's 11 from the early 1990's? 12 A: I believe so. I'm -- I'm not really 13 very familiar with that legislation. 14 Q: Okay. But she was saying and I -- I 15 suggest this is a fair precise of her evidence. She was 16 saying that on -- on the one had it was the only 17 legislation of its kind in -- in Canada and on the other 18 hand, she was saying there were difficulties in the way 19 that people charged with administering the regulation and 20 interpreting it. So it was -- it was a mixed -- a mixed 21 review. 22 Do you recall that? 23 A: I have a general recollection of that 24 discussion, yes. 25 Q: All right. And I take it that, to
1791 the best of your knowledge, prior to September of 1995, 2 no one took any action to obtain the benefit of that 3 regulation to protect an old Indian burial ground in 4 Ipperwash Provincial Park; right? 5 A: I'm not aware of any. 6 Q: And there was a reference in your 7 evidence earlier today to the surveyor Burwell of the 8 late 1820's and his finding of a burial, right? 9 A: That's correct. 10 Q: And that was close to the shore of 11 Lake Huron and the Aux Sable River but outside the area 12 of the Stoney Point Reserve, right? 13 A: Yeah, east of the Reserve. 14 Q: East of the Reserve. And -- and that 15 is -- that was a single burial, right? 16 A: Well, he -- he just -- he refers to 17 it as a burial but unless one dug it up, one wouldn't 18 know how many people were buried there. 19 Q: He -- he used the singular anyway? 20 A: Yes, he did. He said a burial so 21 but -- 22 Q: So -- 23 A: -- that's all we can conclude from 24 that. 25 Q: -- so the -- the possibility is that
1801 that was a so called, to use Darlene Johnston's term, a 2 random burial, right? Rather than a formal cemetery of 3 the sort that Darlene Johnston also told us about? 4 A: It would -- I don't -- I don't know 5 what exactly what it was except that Burwell recognized 6 it as a burial and he said -- and he noted it as a burial 7 so he doesn't really -- he doesn't draw what it looked 8 it, he doesn't tell us how big it was, he doesn't tell us 9 anything about it. I -- I would -- my -- my inclination 10 would be to think that it was a small burial. 11 Q: And we'll leave it at that. Now, 12 let's come back to the Spence report for a minute. And 13 that's -- in the document brief - just a moment please - 14 at Tab 36 it's Document 4000408. 15 Now, I just want to come back to this 16 paragraph of conclusions and that's -- it's the last 17 paragraph on page 4 of the document? 18 A: That's correct. 19 Q: And just to go back to this, it says 20 quote: 21 "The final question is whether it was a 22 lone burial or whether there may be 23 others in the area. Some letters 24 between government officials and Ojibwe 25 leaders suggest there had been an
1811 Ojibwe cemetery somewhere in the Park 2 that nobody knows where it was. 3 However, rumour has it that a large 4 number of bones were found when a 5 reservoir was built in 1942 and the 6 Ipperwash child was buried quite near 7 the reservoir. 8 Also Mr. Greg George has reported 9 recently seeing some small pieces of 10 bone on the ground near the reservoir. 11 But we don't know if they were human or 12 not. 13 It is thus possible that the Ipperwash 14 burial was once part of a larger Ojibwe 15 cemetery in the area. It would take an 16 archeological examination of the area 17 to resolve the question." 18 Unquote. Now, do you agree with the final 19 statement of the expert who's looked into this matter 20 that, and I quote: 21 "It would take an archeological 22 examination of the area to resolve the 23 question." 24 Unquote? 25 A: That's a suggestion that he makes.
1821 However, an archeological investigation of the area would 2 not necessarily resolve the question because, as we've 3 seen, the -- the park was disturbed. There was a lot of 4 construction that went on in the park. 5 So, while he suggests that an 6 archeological examination of the area would resolve the 7 question, it would not necessarily resolve the question 8 because, as any archeologist will tell you, that if they 9 do an investigation of an area that's been greatly 10 disturbed, they're not necessarily going to find 11 evidence. 12 Q: Okay. Are you an archeologist? 13 A: No, I'm not. 14 Q: And -- 15 A: So you're going to have to get one 16 and ask them. 17 Q: Okay. But would you agree that what 18 Mr. Spence is saying is that as of the date of his report 19 in 1996, the -- the question whether the remains found in 20 the park was a lone burial or whether it may have been 21 part of a larger Ojibwe cemetery remained unresolved? 22 A: That's correct. 23 Q: And it's still unresolved, right? 24 A: The size of the burial is unresolved, 25 yes.
1831 Q: Whether it was a -- a lone burial or 2 part of a larger cemetery? 3 A: Well, I don't understand what the 4 distinction is between a cemetery and a burial. A burial 5 is a burial, a cemetery -- I did -- I'm not aware that to 6 use the term cemetery you have to have more than one (1) 7 burial. There's a -- there's a burial. 8 Q: Well, fair enough. But let me put it 9 to you this way. It's -- it's unresolved whether what 10 was in the park was a burial of one (1) person or of more 11 than one (1) person. 12 A: That's correct. 13 Q: Right. Okay. Now, I was interested 14 in your evidence about -- about rumours when Mr. Myrka 15 was examining you and as -- as I -- well, you -- you made 16 a reference to this notion of where there's smoke, 17 there's fire, right? 18 A: Yes, I -- that was a throw away 19 comment. I beg your pardon, but he said there's rumours. 20 The -- the text is -- there are rumours that -- that 21 there were a large number of bones found when the 22 reservoir was built in 1942. 23 So either -- you know, they're rumours and 24 he doesn't -- and he doesn't give us any more information 25 on who made those statements.
1841 Q: So it's very important to consider 2 the source of the rumour? 3 A: Yes, and he doesn't. He doesn't give 4 us any more information on that. 5 Q: And -- and would you agree that for 6 the purpose of a Judicial Inquiry, a -- a rumour can only 7 be given very, very slight weight? 8 A: I think a rumour can be given slight 9 weight. I think that in this context where they found 10 one (1) body and that there was a report from eight (8) 11 years earlier that there were additional bodies found, is 12 -- the fact that there was a skeleton found eight (8) 13 years after the rumours of many bones being found, gives 14 the rumour a little bit more weight. 15 I think if we had only rumours of bones, 16 it would -- it would have very little weight; that the 17 fact that there's a skeleton found very soon after that 18 construction makes the rumours a little bit more 19 interesting. But, no, rumours are rumours. 20 21 (BRIEF PAUSE) 22 23 Q: And would -- would you agree with me 24 generally that a -- a -- a public park is supposed to be 25 community property in our society for the benefit of
1851 everyone, native and non-native? 2 A: A Crown park? 3 Q: Yes. 4 A: Like a provincial park? 5 Q: Sure. 6 Q: Yes, it's for the use of the citizens, 7 yes. 8 Q: All of the citizens? 9 A: That's correct. 10 Q: And would you agree with me that if 11 there are issues and -- and arguments as to the Public's 12 entitlement about that -- entitlement to that park -- 13 it's in the interest of all us that those issues are 14 resolved in accordance with the law. 15 A: In general, I would say that's true, 16 yes. 17 Q: Thanks very much, Ms. Holmes. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much. I think that there's only one (1) cross- 20 examiner left and we'll try to complete him today for Mr. 21 Beaubien. 22 MR. DOUGLAS SULMAN: Mr. Commissioner, Ms. 23 Holmes, I don't expect that I'll be very long with this 24 as I -- I'm parsing as I go. I'm scratching out -- 25 COMMISSIONER SIDNEY LINDEN: Well, we
1861 would like to complete -- 2 MR. DOUGLAS SULMAN: I understand. 3 THE CHAIRPERSON: -- Ms. Holmes today, if 4 we can. 5 6 CROSS-EXAMINATION BY MR. DOUGLAS SULMAN: 7 Q: My name is Douglas Sulman and I 8 represent Marcel Beaubien who is the Member -- the 9 Provincial Member of Parliament for the Ipperwash area 10 from 1985 to 2003 and what I really want to do, Ms. 11 Holmes, is rather quickly, I hope, have you simply 12 confirm some documentary matters in your reports. 13 And just so I understand it, in preparing 14 your report and your evidence, I understand your 15 methodology to be one of documentary research and that's 16 why I want to focus on that and by documentary research I 17 mean finding, retrieving and examining documents and then 18 reporting those documents. 19 A: That's correct. 20 Q: Have I understood it correctly? 21 A: That's correct. 22 Q: Okay. So what I'd really like to 23 focus on is a fairly narrow area of your research and 24 that is principally pages 55 and 56 of your report, page 25 18 of the handout or slide 18 of PowerPoint and Inquiry
1871 documents 4000377 to 4000380 and I have previously given 2 Commission Counsel that information so you could have it 3 handy. 4 And I'll -- you'll be pleased to know I'm 5 not going to ask you to turn up each one (1) of those 6 documents. I think we've gone through them pretty 7 thoroughly. 8 But I would ask that the first document be 9 put up on the board and that is slide 18 and we -- we can 10 go through that pretty rapidly. Do you have that in 11 front of you in a hard copy or -- 12 A: The slide? 13 Q: The slide -- 14 A: Yes. 15 Q: -- or the handout. 16 A: I'm -- I'm not sure what you mean by 17 the handout. 18 Q: Well, your Ipperwash general 19 historical background --. 20 A: Oh, just the paper copy of the -- 21 Q: Yeah, I just-- 22 A: -- slides? Yes. 23 Q: I just find it easier to bring it up 24 here than -- than the laptop. So you have that in front 25 of you?
1881 A: I do. 2 Q: Okay, you -- at the top of the page it 3 states at a bullet point in 1937 the Chief and Council 4 notified park authorities of a burial ground in the park. 5 The Council and Indian Affairs asked that the burial 6 ground be protected. 7 There is no evidence that this was done 8 and I take it that that is put forward like that because 9 it's unlike the army base situation where a burial ground 10 was located and fenced. And this is a different 11 situation; you're just distinguishing those, I take it? 12 A: Distinguishing what happened in the 13 park -- 14 Q: Yes. 15 A: -- to what happened in the camp? 16 Q: Yes. 17 A: Yes. 18 Q: Okay, thank you. And on that page you 19 -- you write: 20 "In 1937 the Chief and Council notified 21 park authorities of a burial ground in 22 the park." 23 But would you just confirm for me your 24 oral evidence that there really was no direct 25 communication or notification of the park official by the
1891 Chief and Council because there's another protocol that's 2 followed that you described? 3 A: Yeah, the -- the -- the notification 4 actually went from the Band to the Indian agent to the 5 Department of Indian Affairs to Lands and Forests, which 6 is the park -- which is the -- the body in charge of the 7 park. 8 Q: Right, right. So that's -- I -- what 9 -- what you've said is really a summary of -- 10 A: Yes. 11 Q: -- of what you told us in your oral 12 evidence; correct? 13 A: That's correct. Yes. 14 Q: Okay. And at least on this one 15 occasion, it appears that the acting Indian Agent did act 16 promptly when he got the resolution. The resolution is 17 dated August 12th, he sends his letter to his superior on 18 August 13th -- 19 A: That's correct. 20 Q: -- 1937? 21 A: That's correct. Yes. 22 Q: And then it seems like everybody 23 acted promptly, at least in August of 1937? 24 A: It was -- it was a very short 25 turnaround time on those -- that correspondence.
1901 Q: I wish I could do that with my own 2 but it seems that in -- then on August 17th the Secretary 3 of Indian Affairs writes the Deputy Minister, Mr. Cain 4 and then two (2) days later Mr. Cain writes back and 5 that's where I'd like to turn to for just a moment? 6 A: That's correct. 7 Q: Okay. And that is -- and you've gone 8 through it before with other cross-examiners but that is 9 document number 4000380 and I -- I think we can pull that 10 one up pretty easily. 11 A: I'm just going to try and find it in 12 this mini-collection I have here. 13 Q: There it is; do you have it in front 14 of you? 15 A: Yes. Yes, I do. 16 Q: Okay. And -- and I take maybe a 17 different view than some others who have examined you but 18 I'm just trying to understand what's gone on here. 19 The wording says: 20 "Not having before me all of the facts 21 in connection with the location of this 22 area in relation to our program of 23 works being carried out..." 24 If I could stop there, as I understand 25 your evidence, by "location of this area"; that term --
1911 A: Yes. 2 Q: -- I understand that you believe that 3 Cain is referring to the location of the alleged burial 4 grounds in the Provincial Park? 5 A: I -- I think so, yes. 6 Q: Okay. And whether it's bureaucratese 7 speak or it's protectionism, whatever, all we have is the 8 exact words that he -- that he has given and it, I take 9 it, means the location of the burial grounds in the park 10 area? 11 A: That's what I believe it says, yes. 12 Q: Okay. And this letter -- this Cain 13 letter is to MacInnes; correct? 14 A: That's correct. 15 Q: Okay. Did you find -- or I take it 16 you didn't find any documentary evidence that MacInnes 17 then communicated this letter from Cain back down the 18 chain to Trenouth and then, I guess, to the Band Council? 19 A: Yeah, I -- I -- I don't have any 20 evidence to that effect. 21 Q: I -- these are some of the things I 22 just want to close off and find out whether there's 23 documentary evidence? 24 A: It would -- it would be usual for him 25 to do that --
1921 Q: Right. 2 A: -- to communicate back to the Indian 3 Agent but I haven't seen anything to that effect? 4 Q: Right. And that -- that's the kind 5 of pertinent evidence, had you found it, you would have 6 produced it in your own evidence? 7 A: Yes, I would have. 8 Q: Okay. Thank you. And my 9 recollection in the early days of your evidence is that 10 you told us that Indian Bands communicated with the 11 governments through Band Resolutions, petitions and 12 letters; correct? 13 A: That's correct. 14 Q: In effect, that's what we've seen 15 throughout all the days that you've been on the stand. I 16 take it you found no documentation in which the Band 17 communicated with any Federal government representative 18 after 1937 setting out a location within the park that 19 they believed the burial ground was actually physically 20 located? 21 A: I -- I haven't seen anything to that 22 effect, no. 23 Q: Okay. That's the Federal government 24 I'm asking about. I take it you found no documentation 25 or correspondence between the Band -- any documentation
1931 or correspondence directly between the Band and the 2 Provincial Government with regard to the burial ground 3 issue between 1937 and September 1995; correct? 4 A: I haven't seen anything, no. 5 Q: And if you had, you would have 6 produced it here? 7 A: Yes. Yes, I would have. 8 Q: Likewise, I take it you found no 9 documentary evidence of any meeting, as opposed to 10 letters going back and forth, but any physical meeting 11 between Band Council representatives and the provincial 12 government representatives after 1937 in which they 13 actually say, here's the location for the park -- in the 14 park where we believe the burial ground is located? 15 A: I haven't seen anything to that 16 effect, no. 17 Q: Thank you. Did you find any 18 documentary evidence, any correspondence whatsoever 19 between the Band Council and the province where they 20 might have diagrammed or mapped or otherwise set out in 21 writing their position. 22 Because there is -- there are some maps 23 that we've seen; anything that set -- which set out 24 exactly a physical location for a burial ground in the 25 park as opposed to the -- I know that happened at the
1941 army base, but in the park? 2 A: Not -- not that I've seen. No. 3 Q: Okay. I take it you haven't 4 uncovered any Band resolutions, petitions, letters, or 5 anything at all between 1937 August and September 6, 6 1995, where the Band communicated with the Province of 7 Ontario, regarding the burial ground in the park? 8 A: No, I haven't seen anything to that 9 effect. 10 Q: The other thing maybe I don't 11 understand is, I heard that the -- the Band Council 12 meetings were called monthly meetings. Now, I -- I 13 suppose they might have taken summer vacation on -- from 14 time to time, but do I understand it right that the 15 Council generally met every month, and continues to do 16 so? 17 A: I don't know how frequently they meet 18 now. At this time period it seems that they were meeting 19 monthly, but I'm not -- I'm not sure of that. 20 Q: Okay. Am I right to conclude that in 21 the thirty-eight (38) years that transpired between 1937 22 August and September 6, 1995, and I guess now we'd be 23 almost at what, sixty-seven (67) -- sixty-seven (67) 24 years, that -- but between that August 30 -- August 1937, 25 September 1995, am I right to conclude that there is no
1951 documentary evidence that shows a precise physical 2 location of a burial ground in --inside the park? 3 A: I haven't seen any, but then I 4 haven't looked at all the Band Council minutes in all 5 that time period either, so... 6 Q: Okay. But you're not -- 7 A: I'm not aware of any. 8 Q: Okay. And that's the best evidence 9 we have before us at this point; correct? We don't have 10 anything else, so I'm -- I'm relying on you. 11 A: Not that -- not that I'm aware of. 12 Q: Okay. Thank you. You had a short 13 discussion with -- with Mr. Downard, about Dr. Spence's 14 report, and I recognize that's after September 1995, 15 that's a November '96 report; correct? 16 A: That's correct. 17 Q: Okay. And in that report, he 18 reviewed 1950s black and white photos of the bones of a 19 child, and he reached certain conclusions. And then he - 20 - what he said in his report as you've told us at the top 21 of page 56, he really -- he could not conclude that there 22 was a burial ground in the park on the evidence before 23 him, but he said it would take an archeological 24 examination of the area to resolve the question. 25 And as I understand, what you told Mr.
1961 Downard just a couple moments ago, was that, you don't 2 necessarily agree that that would resolve the question, 3 that's -- that's Spence's opinion; correct? 4 A: Yes, that's his opinion. 5 Q: Yes. 6 A: That's his suggestion. 7 Q: Right. And you don't necessarily 8 agree that it would resolve the question; if I've got it 9 right? 10 A: Yes, it wouldn't necessarily -- it 11 wouldn't necessarily find evidence if the evidence had 12 been destroyed or... 13 Q: Yeah, fair enough. That's all. I 14 just wanted to know whether it was just that phrase, 15 resolve the question, that you were -- you were 16 disagreeing on. And is that -- am I correct on that? He 17 says it would resolve the question, and as I understand 18 it, and you can correct me if I'm wrong, you're saying it 19 might not necessarily resolve the question because -- 20 A: It might not -- an archeological 21 examination of the park might not necessarily resolve 22 that question and it might not necessarily tell us 23 whether or not there had ever been additional burials -- 24 Q: Okay. 25 A: -- in that area.
1971 Q: Is there -- some other methodology 2 that you would propose that might resolve that question? 3 A: Well, if -- if there were numerous 4 burials in the park, and they've been destroyed by 5 development, I have no idea how you could confirm that. 6 I think that we know that there's one (1) burial that the 7 park Superintendent's wife discovered or became aware of. 8 I don't know, you know, there's a -- there 9 is a possibility of course that there is additional 10 documentary evidence. Maybe if you spent a year or two 11 (2) combing through every possible document, you would 12 find other references to it. That might help to resolve 13 that. 14 There might be -- I mean there's -- I've 15 done three (3) months worth of research on this question, 16 and if one spent a year or two (2) years combing through 17 the thousands and thousands and thousands of pages of 18 minutes, of letters, one might find some additional 19 reference but I don't know. 20 Q: Okay, fair enough. Not every 21 question is resolved. 22 A: Not every question -- not every 23 question can be proven and because something cannot be 24 proven does not mean that it's not true. And I think 25 that when we do historical research, that's the thing
1981 that we always have to keep in mind and we always have to 2 be aware of, that not every truth can be proven. 3 Q: Right. But as -- back to my earlier 4 question it -- there's no documentary evidence that would 5 support that at this point in time? 6 A: There's none that I have located. 7 Q: Okay, thank you. And in -- and this 8 may not be something you can answer but in the nine (9) 9 years since September 1995, the Park has been occupied. 10 And I'm just wondering whether you're aware from your 11 researches of any evidence that's been uncovered during 12 that period of time that would determine a precise 13 location of a burial ground in the Park? 14 A: I'm not aware of any. 15 Q: Thank you. Thank you very much. 16 A: Thank you. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 MS. SUSAN VELLA: Mr. Commissioner, Mr. 20 Frederick has indicated that he does have some cross- 21 examination. You will recall that at the last session he 22 wasn't here so he couldn't put up his hand. 23 COMMISSIONER SIDNEY LINDEN: He's giving 24 us a signal that it's very short. 25 MS. SUSAN VELLA: A very short one.
1991 COMMISSIONER SIDNEY LINDEN: I think we 2 should -- we should do it and try to complete it. Thank 3 you very much. Come up and please let's -- let's try and 4 get it done. 5 MR. MARK FREDERICK: Thank you, sir, I'm 6 tall, but I'll be short. 7 COMMISSIONER SIDNEY LINDEN: You're -- 8 you're not really short. 9 10 CROSS-EXAMINATION BY MR. MARK FREDERICK: 11 Q: Well -- it's mirrors. Any event, Ms. 12 Holmes, I just have a couple of questions. Just from 13 what had gone on earlier today, I take it as of 1937, we 14 don't really know what the engineer found in the Park, is 15 that correct? 16 A: We know that the engineer found 17 something that he characterized as an old Indian burial, 18 but we don't know exactly what that was. 19 Q: Could have been a bone, could have 20 been a -- some old article of clothing, it could have 21 been a full corpse, but he didn't say full corpse? We 22 don't know exactly what he found? 23 A: We don't know exactly what he found 24 but I -- I would make the -- the assumption that if he 25 had found skeletal remains, he would have treated them in
2001 a different manner than saying an old burial ground that 2 should be fenced and protected. I'm -- I'm making a -- 3 Q: You're making an assumption -- 4 A: I'm -- I'm making an assumption but 5 you know what, I think it's a very good assumption. 6 That if this gentleman had found skeletal remains, he 7 would have used a different approach rather than saying 8 fence and protect. He may have suggested reburial. 9 Q: Again we don't know. we can't ask 10 him? 11 A: But we don't -- but we don't know and 12 that's -- 13 Q: We're left -- 14 A: -- I'm just -- I'm just giving my 15 opinion. 16 Q: We're just -- we're just guessing on 17 that one ultimately, aren't we? 18 A: I'm giving my opinion on that, yeah. 19 Q: Right. And we don't know exactly 20 where he found them specifically. We know what sort of a 21 general area from the letter but we don't know where 22 exactly, correct? 23 A: That's right. He doesn't -- he 24 doesn't pinpoint it. 25 Q: Now have you ever heard of the
2011 expression, six (6) foot under? 2 A: Yes. 3 Q: That usually applies to burials, 4 right? 5 A: It -- it applies to our modern burial 6 practices, yes. 7 Q: I'm saying, the reason six (6) foot 8 under arose was because shallow burials have problems. 9 Have you ever heard of that? 10 A: Yes. 11 Q: Shallow burials are open to the 12 elements, they're open to disturbing by people, by 13 animals, all sorts of different things can happen, 14 correct? 15 A: That's generally correct, yes. 16 Q: Okay. I'm sure that happened in -- 17 in pre-contact with the Europeans in this area as well as 18 elsewhere around the world. Everybody has the same sort 19 of experience. Would that be an assumption you could 20 likely make? 21 A: Well, I think that the -- the 22 anthropological evidence is that Aboriginal people bury 23 their dead in many different ways. I don't -- I don't 24 know or I've never seen anything that indicate the depth 25 at which they bury them.
2021 Q: But I'm -- what I'm getting at is 2 that if you have a shallow burial just like here, like 3 anywhere else around the world, it can be subject to a 4 number of factors that can disturb the burial, correct? 5 A: Yes. 6 Q: Now, Mr. Millar was kind enough to 7 give me a photocopy of Peter Hamalainen's 1972 report 8 which included a survey of the Park. I'm not going to 9 make him pull it up, but I'm just going to read a brief 10 description of how he described Ipperwash Park when he 11 looked at it and give a bit of its history. 12 "During its construction..." 13 And I'm quoting from, I believe this is 14 the second page of the typed report that the Crown did of 15 Mr. Hamalainen's report: 16 "During its construction most of the 17 park was disturbed by bulldozing, 18 landfill, and drainage operations. As 19 a result, Ipperwash Provincial Park has 20 taken on a -- deceivingly flat 21 appearance which contrasts with the 22 rolling sand dunes of the surrounding 23 area. Only in the undisturbed 24 southwest corner of this park can a 25 visitor get some idea of the park as it
2031 might have appeared at one (1) time. 2 This area consists of sand dunes, some 3 of which reach twenty-five (25) to 4 thirty (30) feet in height and are 5 covered by a thick growth of pine 6 trees." 7 Okay? What I take from that is that Mr. 8 Hamalainen was saying that prior to development, 9 Ipperwash, like some of the other landscape that we're 10 still fortunate enough to see today, had very large 11 rolling sand dunes across a good part of it. 12 A: That's correct. 13 Q: And it had limestone that jutted out 14 into the lake at certain points; correct? 15 A: Mmm hmm. 16 Q: And Mr. Hamalainen, he goes on to 17 describe a couple of other things, but I don't think 18 they're necessarily relevant to us. We do know though 19 that, have you ever tried to dig in sand? 20 A: Not -- 21 Q: You dig in sand -- 22 A: -- since I was a kid at the beach. 23 Q: Right. And I bet you didn't go down 24 a couple of feet. You can only go down a little bit 25 before sand starts collapsing in on you; is that fair?
2041 A: Mmm hmm. 2 Q: And it's pretty hard to dig a deep 3 grave without having shovels or anything of that nature; 4 especially in sand, would that also be fair? 5 A: I suppose so. 6 Q: Right. So if you ended up with 7 shallow graves in a sandy area, typically that wouldn't 8 allow for the greatest comfort for those remains; would 9 that be fair? 10 A: Possible. But you know, I -- I 11 really don't know a lot about burying in sand, so I feel 12 like I'm in an area of a whole lot of conjecture. 13 Q: Well, we'll try and -- we'll try and 14 help you along here because conjecture, I -- I suppose, 15 is something we'll have to deal with as we go through. 16 Ultimately, what I'm getting at though is 17 that we have Ipperwash Park as it's been described in the 18 past as being a very sandy area; correct? 19 A: That's correct. 20 Q: If a grave was put on that area or in 21 any area, the whole coast is -- along here is sand; is 22 that correct? Sand dunes -- 23 A: My understanding it is; yes. 24 Q: Right. And if the graves weren't -- 25 we've already established that sandy graves might be a
2051 little bit harder to dig, or certainly harder to dig in 2 the old days without shovels, you wouldn't expect there 3 to be a very -- 4 A: People had lots of ways of digging. 5 Q: Right. But you wouldn't -- 6 A: Just because they didn't get a shovel 7 from Canadian Tire doesn't mean they didn't have 8 implements to dig with. 9 Q: I'm happy about your -- I'm happy 10 about your knowledge of that sort of thing, but in any 11 event what we're talking about is, it's difficult to dig 12 a deep grave in sand. 13 So if we had a shallow burial on sand it 14 would be subject to the elements. It would be subject to 15 disturbance from a number of different factors; correct? 16 A: I guess so. Yeah. 17 Q: All right. And in that circumstance 18 remains could be placed all over the place by animals or 19 by different people maybe, like people who would want to 20 disturb graves; that sort of thing can happen, correct? 21 A: I suppose that's correct. 22 Q: Right. That's because, as I 23 understand it, the grave site that was identified in the 24 army camp is really buried somewhat far away from where 25 the sandy area is; correct?
2061 A: Yeah. But there are -- there are 2 other graves, for example, the one (1) identified by 3 Burwell in 1826 which is also in the sandy area close to 4 the mouth of the Aux Sable and Lake Huron and we know 5 that at Kettle Point along the beachfront, the un- 6 surrendered part of the beachfront at Kettle Point that - 7 - that there are burials along there as well. So -- 8 Q: Yeah, but those are -- 9 A: -- burials in sand, close -- you 10 know, in the -- in the general vicinity of the -- of the 11 lake front are not inconsistent with aboriginal burials. 12 Q: But what we do know though is that in 13 this particular area the grave site that we can identify 14 for certain up in the army camp base is -- is really far 15 away from where the sand dunes are located; correct? 16 A: Yeah. The -- the burial -- the 17 burial ground in the army camp was a more modern 18 cemetery, yes. And it was -- it's sort of in the middle 19 area. Back considerably from the lake shore. 20 Q: Right. And, as a result, being very 21 further away from the sand dunes, presumably in a more 22 modern fashion, deeper, it's less likely to be disturbed; 23 is that fair? 24 A: You know, I -- I don't know how -- 25 Q: Can we make that assumption?
2071 A: Can I make that assumption? I don't 2 know. 3 Q: No? 4 A: Do you want to make that assumption? 5 You can make that assumption. I -- you know -- 6 Q: It's not unreasonable, anyway? 7 A: Well, you know, a lot of things sound 8 reasonable but to me, how much something is disturbed by 9 how deep its buried and what kind of medium its buried 10 in, it's really kind of beyond my knowledge area. 11 So, you're asking me to make a whole bunch 12 of assumptions about things that I'm not really 13 comfortable with. I don't -- I don't have that level of 14 knowledge. 15 If I was an archeologist who'd studied 16 burial practices all my life, and had dug up no end of 17 burials, I could probably give you a better answer. But 18 it's really -- it's really outside of -- of my area of 19 expertise. 20 Q: Exactly. You'd be having to make 21 great speculations as to the condition on something, 22 correct? Thanks, Ms. Holmes. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much. Ms. Vella, are you going to wrap it up? 25 MS. SUSAN VELLA: Just a few questions in
2081 reply, Commissioner. 2 3 RE-DIRECT EXAMINATION BY MS. SUSAN VELLA: 4 Q: This morning Mr. Rosenthal asked you 5 whether there was any documentary -- documented evidence 6 pre-dating 1972, evidencing the attempts by the 7 Department of Indian Affairs to retrieve or negotiate the 8 retrieval of Camp Ipperwash and you referred to a letter 9 in 1946. 10 And I'd like to just turn up that letter, 11 Inquiry Document Number 4000386, or your Document Number 12 386. 13 14 (BRIEF PAUSE) 15 16 Q: It's a letter dated May 18, 1946 from 17 the Department of National Defence to the Deputy Minister 18 of the Department of Mines and Resources and in the first 19 paragraph -- 20 A: I'm just going to take a minute to 21 find my copy, because it's hard to ... 22 23 (BRIEF PAUSE) 24 25 A: Sorry, excuse me. Could you just
2091 tell me the date again? 2 Q: It's May -- May 16, 1946. And it's 3 your Document Number 386. 4 A: That's right, thank you. 5 Q: All right. And in the first 6 paragraph, it states: 7 "This will acknowledge receipt of your 8 letter dated March -- 21st March, 1946 9 wherein you asked that negotiations be 10 opened at the earliest opportunity with 11 a view to returning the Ipperwash Camp 12 Site to its former Indian owners." 13 Is that the letter that you were referring 14 to as some evidence of an attempt by the Department of 15 Indian Affairs to negotiate the return of Camp Ipperwash? 16 A: Yes. 17 Q: Thank you. Secondly, Mr. Rosenthal 18 put to you a -- a article from the Hamilton Spectator and 19 it's footnoted in your report at page 65, Footnote 350. 20 Do you have your copy there? 21 A: Yes, I do. 22 MS. SUSAN VELLA: All right. 23 Commissioner, I would just like, for the record, to make 24 that the next exhibit. 25 COMMISSIONER SIDNEY LINDEN: What exhibit
2101 number? 2 THE REGISTRAR: P-14, your Honour. 3 COMMISSIONER SIDNEY LINDEN: 14? Thank 4 you. 5 6 --- EXHIBIT NO. P-14: Article from Hamilton 7 Spectator. 8 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 11 CONTINUED BY MS. SUSAN VELLA: 12 Q: Thank you. Now, moving on to Mr. 13 Henderson; Mr. Henderson asked you whether there was any 14 evidence suggesting that the Lieutenant Governor, the 15 Governor General in issuing his Order in Council 16 authorizing the 1942 appropriation, whether he was 17 advised that the people at the Kettle Point and Stoney 18 Point Band had, in fact, voted against such a surrender. 19 Can you tell me whether you are aware of 20 any situations in which the measure of appropriation was 21 taken where the property holder either -- either 22 consented to either the surrender or sale of the lands? 23 A: Sorry, can you -- I'm -- I'm just 24 losing my concentration. 25 Q: No, not at all.
2111 A: Can you just -- can you just repeat 2 that again? Am I aware of...? 3 Q: Of any situations where the 4 Government took the measure of appropriate in the face of 5 a property owner consenting to the surrender or sale of 6 the land in question? 7 A: Well, I can't think of any, because 8 in -- what I know of the use of expropriation as it's 9 done when the owners aren't -- aren't willing to -- to 10 sell. 11 Q: Thank you. 12 A: So, if the owner's willing to sell, 13 then they don't use the expropriation measures. 14 Q: Thank you. As well, Mr. Henderson 15 put to you a transcribed letter, referencing a letter 16 from Mrs. Beattie Greenbird, which you had produced the 17 handwritten version in your -- in your documents? 18 A: That's correct. 19 Q: You indicated that the original 20 handwritten version produced in your collection was 21 addressed to the Superintendent General of Indian 22 Affairs, rather than to the Minister of National Defence? 23 A: That's correct. 24 Q: And also that you had not compared 25 the transcription word for word with the handwritten
2121 transcription? 2 A: That's correct. 3 Q: All right. 4 MS. SUSAN VELLA: Mr. Commissioner, with 5 those caveats, I'd like to make that document the next 6 exhibit please? 7 THE CHAIRPERSON: Thank you. Fifteen 8 (15). 9 10 --- EXHIBIT NO. P-15: Transcribed letter. 11 12 CONTINUED BY MS. SUSAN VELLA: 13 Q: Thank you. Now Mr. Myrka, for the 14 Province, asked you some questions concerning the 1972 15 archaeological report of Peter Hamalainen and what 16 relevance or reliance might be placed on that report. 17 And you responded that there were 18 restrictions and limitations with respect to the physical 19 area that would have to be examined in 1972, because it 20 had been disturbed, and also restrictions on the 21 methodology employed by Mr. Hamalainen. I'd like to 22 produce to you a letter, it's Inquiry document number 23 1009137. 24 I've distributed hard copies, 25 Commissioner, to counsel.
2131 (BRIEF PAUSE) 2 3 Q: And it's on the screen, but for the 4 record, it's a memorandum from Ian Seddon, who is 5 identified as a district planner for the Ontario Ministry 6 of Natural -- National -- sorry, Natural Resources. And 7 it appears to be dated September the 5th, 1995, 8:44 a.m. 8 I'd like to read to you from the paragraph 9 under Ipperwash Burial Ground Findings: 10 "There is no evidence in any of these 11 files of the existence of a burial 12 ground in Ipperwash Provincial Park." 13 And you'll see that he's referring to 14 files that were provided by a Terry Crabe. Continue with 15 the quote: 16 "There are a couple of oblique 17 references to the possibility of a 18 Jesuit Mission having existed somewhere 19 in the area, and the material on file 20 sets up a debate as to where such a 21 Mission might have existed, and the 22 debate seems to favour the Stoney Point 23 area over the Pinery, on account of the 24 lack of stone building material within 25 Pinery Provincial Park. The inference
2141 in the file material being that this 2 Mission was constructed of stone. 3 Opinion: It would seem likely that a 4 Mission would be established close to, 5 or within easy access from an 6 established Native community. 7 If archaeological evidence of an 8 established native community were to be 9 found, it could be likely that a burial 10 ground or Osary (phonetic) would also 11 be close by." 12 And then if you would skip down to the 13 heading suggestion: 14 "A search of the Provincial archives is 15 recommended. At the same time the 16 search is undertaken, I would recommend 17 a search for any budgetary or project 18 documents, relating to the early 19 development of the Ipperwash 20 Campground. My reason for this 21 recommendation comes from a comment in 22 Peter Hamalainen's archaeological 23 report on Ipperwash, 'during its 24 construction, most of the park was 25 disturbed by bulldozing, landfill and
2151 drainage operations. As a result, 2 Ipperwash Provincial Park has taken on 3 a deceivingly flat appearance, which 4 contrasts with the rolling sand dunes 5 of the surrounding areas'." 6 Is that consistent with your understanding 7 of one (1) of the restrictions with respect to Peter 8 Hamalainen's report, namely, that there were -- that the 9 land had been disturbed? 10 A: Yes, it is. 11 MS. SUSAN VELLA: I'd like to make that 12 the next Exhibit, Commissioner. 13 THE REGISTRAR: Exhibit P-16, Your 14 Honour. 15 COMMISSIONER SIDNEY LINDEN: P-16. 16 17 --- EXHIBIT NO. P-16: Memorandum from Ian Seddon, 18 dated September the 5th, 19 1995, 8:44 a.m. 20 21 CONTINUED BY MS. SUSAN VELLA: 22 Q: Finally, I'd like to refer you, also, 23 to another Ministry of Natural Resources Document, 24 Inquiry Document Number 1011882, which is a fax cover 25 sheet and Memo dated September 12th, 1995.
2161 (BRIEF PAUSE) 2 3 Q: This is another Memorandum from Ian 4 Seddon, and it's to Peter Allen and Peter Sturdy with the 5 Ontario Ministry of Natural Resources, look on the second 6 page, please, entitled, Notes Regarding Peter 7 Hamalainen's 1972 Report. And I'll draw your attention 8 to the middle and I'll quote: 9 "A few comments concerning the value of 10 this report. The methodology used at 11 the time does not agree with current 12 archeological survey standards. This 13 report cannot be used to say, with 14 authority, there are no burial sites 15 within Ipperwash Provincial Park. The 16 methodology as described in the report 17 would not likely uncover possible 18 sites. It is unlikely burial sites 19 will be found in the Park since no 20 evidence of long-term human habitation 21 has been found. It's quite possible 22 habitation of a seasonal or temporary 23 nature may have occurred in Ipperwash, 24 though, again, no evidence has been 25 found to support this view.
2171 Prehistoric burial sites down in other 2 areas in southwestern Ontario have 3 always been found in association with 4 long-term habitation sites." 5 Is that consistent with those observations 6 -- consistent with Mr. Hamalainen's self-identified 7 restrictions on his methodology? 8 A: Yes, particularly the -- the first 9 two (2) bullets, -- 10 Q: Thank you. 11 A: -- the first two (2) comments. 12 Q: I've read the entire, so it would be 13 in the context. I'd like to make that the next Exhibit, 14 Commissioner. 15 COMMISSIONER LINDEN: Thank you. 16 THE REGISTRAR: Exhibit P-17. 17 COMMISSIONER LINDEN: Exhibit P-17. Thank 18 you. 19 20 --- EXHIBIT NO. P-17: Ministry of Natural Resources 21 Document, Inquiry Document 22 Number 1011882, a fax cover 23 sheet and Memo dated 24 September 12th, 1995, from 25 Ian Seddon to Peter Allen and
2181 Peter Sturdy with the 2 Ontario Ministry of Natural 3 Resources. 4 5 MS. SUSAN VELLA: And that completes my 6 reply, Commissioner. Just before we break for the day, 7 Mr. Millar has some comments that he would like to make. 8 COMMISSIONER LINDEN: Thank you very much. 9 MS. SUSAN VELLA: Thank you, Ms. Holmes. 10 COMMISSIONER LINDEN: Thank you very 11 much. 12 MR. PETER DOWNARD: I don't have any 13 objection, Commissioner, but if one of these documents, 14 being the Seddon Memo had been brought forward in your 15 first examination of the witness by Commission Counsel, I 16 would have, in my cross-examination, wanted to direct the 17 witness' attention to something else the Memorandum says. 18 May I do that just for a brief moment? 19 COMMISSIONER LINDEN: I think we should 20 allow you to do that. 21 MR. PETER DOWNARD: Thank you, sir. 22 23 RE-CROSS-EXAMINATION BY MR. PETER DOWNARD: 24 Q: Looking at the -- the Seddon 25 Memorandum, on the second page, in the first full
2191 paragraph...16, would you agree with me that this 2 Memorandum also goes on to say, in the first few 3 sentences of the only full paragraph on the second page: 4 "In most instances, park campgrounds 5 that were built in the, 'built by the 6 seat of your pants,' era of park 7 development, (largely pre-1960), were 8 built with minimum cost and built 9 around the land features present. But 10 even at that time, if knowledge of a 11 burial site existed, care would have 12 been taken to avoid disturbing it." 13 unquote. 14 I take it you'd agree that that is what 15 that Memorandum also says? 16 A: Yes, it does. 17 Q: Thank you. 18 MR. PETER DOWNARD: Commissioner, I just 19 thought that should be part of the record as well. 20 COMMISSIONER LINDEN: Thank you very 21 much, Mr. Downard. Mr. Millar...? 22 MR. DERRY MILLAR: Thank you, 23 Commissioner. I just wanted to do two (2) things: 24 firstly, for everyone, anyone who is not signed in the 25 sign-in sheet that the reporter has, I would ask them to
2201 do that because if you're not signed in you don't show up 2 on the record and, so, I would ask everyone to do that. 3 I think there are some people here today who haven't been 4 before. 5 And, secondly, tomorrow we're going to 6 deal with the evidence of Mr. Thompson and it was my 7 intention when I decided to call Mr. Thompson, in effect, 8 out of what would have normally been the order was to 9 simply do some identification of the site and certain 10 photographs that he took. Mr. Thompson did a lot of 11 forensic work and I will be -- we will be recalling Mr. 12 Thompson at a later time, an appropriate time, to deal 13 with the forensic issues. 14 So we're going to be focussing on certain 15 work he did that will identify some drawings and some 16 photographs he did, but the forensic issues we'll be 17 dealing with at another time. 18 COMMISSIONER SIDNEY LINDEN: The object 19 of the evidence will be to assist us with the view that 20 we're going to be taking? 21 MR. DERRY MILLAR: Well, to assist with 22 the view, but also to assist with some of the documents 23 we're going to be using with some of the witnesses that 24 come up and I just wanted you to have it on the record 25 what he did to create, particularly, a sketch that will
2211 be used by a number of people. 2 And, lastly, if we could have the 3 indulgence of counsel for three (3) minutes, we need to 4 talk to counsel about another issue. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much, Mr. Millar. We're going to adjourn for the 7 day. I note it's 5:30. We didn't expect to go this long 8 but I think it was important to complete Ms. Holmes' 9 evidence and I thank you very much for your patience and 10 for the long time that you've been on the stand. 11 Thank you very, very much. 12 THE WITNESS: My pleasure. 13 14 (WITNESS STANDS DOWN) 15 16 COMMISSIONER SIDNEY LINDEN: We're done 17 for the day then except for the meeting that you're 18 having. 19 MR. DERRY MILLAR: Thank you. 20 COMMISSIONER SIDNEY LINDEN: What time do 21 we convene again? 22 MR. DERRY MILLAR: Ten o'clock tomorrow 23 morning. 24 COMMISSIONER SIDNEY LINDEN: At 10:00 25 a.m. tomorrow morning. Thank you.
2221 THE REGISTRAR: This Public Inquiry is 2 adjourned until tomorrow, Thursday, September 9th, at 3 10:00 a.m. 4 5 --- Upon adjourning at 5:31 p.m. 6 7 8 9 10 11 Certified Correct, 12 13 14 15 _____________________ 16 Wendy Warnock, Ms. 17 18 19 20 21 22 23 24 25