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 12th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) (np) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) 16 17 Mark Sandler ) (np) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) (np) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 Julian Falconer ) (np) Aboriginal Legal 3 Brian Eyolfson ) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) (np) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) (np) Chiefs of Ontario 13 Matthew Horner ) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) (np) 19 Erin Tully ) (np) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 Discussion 6 7 JULIE RAMONA JAI, Resumed 8 Cross-Examination by Mr. Peter Downard 13 9 Cross-Examination by Ms. Jacqueline Horvat 144 10 Cross-Examination by Ms. Alice Mrozek 151 11 Cross-Examination by Mr. Mark Fredrick 154 12 Cross-Examination by Ms. Anna Perschy 208 13 14 15 Certificate of Transcript 239 16 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-704 Document Number 3001718. ONAS 4 briefing note for the Minister 5 responsible for native affairs. 6 Prepared by: Lise Hansen, Director, 7 Negotiations Support June 29/95. 215 8 P-705 Document Number 3001721. Additional 9 information on Aboriginal affairs 10 for Premiers office staff, Aug 23/95. 229 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 10:31 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 MR. DERRY MILLAR: Good morning, 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning, everybody. 10 Just before we begin this morning -- good 11 morning, Ms. Jai. 12 Our understanding is that Ms. Jai's not 13 available for medical reasons next week and I was hoping 14 in any event that we would be able to complete her cross- 15 examination this week. If the low estimates of counsel's 16 time is taken, we would finish this week. And of course 17 sometimes counsel don't use all the time that they 18 estimate. 19 So, I ask you to keep in mind that Ms. 20 Jai's not available next week and we're not exactly sure 21 when she would be available to return. So, I'll ask you 22 to please try, collectively, to complete the cross- 23 examination of Ms. Jail this week. That gives a week, 24 four (4) days, we should be able to do it. 25 Now, I have a few comments that I want to
81 make before we begin. As we move into these September 2 hearings I thought it would be appropriate for me to do 3 another of my informal updates on the status of the 4 Inquiry. 5 You will recall some of the remarks I made 6 when we began these evidentiary hearings approximately 7 one (1) year ago. At that time I said that a public 8 inquiry investigates and reports on matters of 9 substantial public interest. It's a means by which we 10 can go beneath the surface of an incident or situation 11 for the benefit of the people affected and for the 12 broader public. 13 Thus far, I believe we have done this by 14 considering many points of view in the fact finding part 15 of the Inquiry where witnesses, with different interests 16 and perspectives have been and continue to be called to 17 testify. 18 We're also doing it the part two policy 19 review through the public forums, research, papers, and 20 consultations that we have been conducting. We have and 21 will continue to dig deeply through the comprehensive and 22 sometimes scholarly testimony of experts to inform our 23 fact finding and through our commissioned research on 24 topics that will assist and inform my recommendations for 25 the future.
91 In my view it's been important and 2 necessary for both those directly affected or involved in 3 the event surrounding the death of Dudley George as well 4 as for the public at large to tell and to hear the 5 complete story as well as suggestions for the future. 6 This is a lengthy but necessary process. 7 By definition a public inquiry needs to be 8 open and transparent. We've tried from the outset to 9 insure that our dual processes of fact finding and policy 10 review are in public view, for example through our 11 website where daily transcripts and live webcasts of the 12 hearings are available and through regular postings of 13 witness lists, schedules, research documents and notes 14 from our consultations and other meetings and public 15 attendance at the hearings hear in Forest is welcomed and 16 encouraged and most days some members of the public are 17 here. 18 The media has assisted our efforts to be 19 open through regular local and sometimes provincial and 20 national reporting. Our video and audio feed is 21 available for the media and other interested groups to 22 extend the reach of the Inquiry. 23 In my view, the investigative capacity of 24 a public inquiry coupled with its openness and 25 transparency contributes to a very important aspect of
101 public inquiries, namely, providing public information 2 and education. 3 Members of the public who are interested 4 can obtain information on a regular basis. One doesn't 5 need to wait for the final report. I believe we have 6 been successful in enlightening and informing not only 7 the active participants in the process but the larger 8 public as well. 9 And finally, I believe the inquiry process 10 can be instrumental in contributing to healing and to 11 building and repairing institutional and individual 12 bridges. I hope all parties feel that we've begun to 13 move in this direction and that this can be continued 14 long after the hearing process has been complete. I 15 reiterate my appreciation of Counsels' efforts to work 16 constructively to meet our goals. 17 Ultimately, this Inquiry will be measured 18 against its success in meeting its dual mandate of fact 19 finding and making recommendations for the future, but 20 it's also inevitable and even justifiable that the 21 assessment of our success will take into account the time 22 taken and the costs incurred when public funds are being 23 used. Inquiries are lengthy and costly, but they can't 24 be justified at any cost or over an unlimited period of 25 time.
111 You've heard me refer to the need for 2 achieving a balance in our efforts to be comprehensive 3 yet efficient. And so notwithstanding my view that we 4 have done well to-date, inevitably there will be a final 5 report card and I believe it's important that my report 6 be submitted to the government that appointed me in 7 sufficient time for it to consider and where possible or 8 desired to act on my recommendations. 9 Following the conclusion of the hearings 10 there's still much work to be done. Months of testimony 11 will have to be analysed, findings of fact made and I 12 also need to consider the extensive research and 13 consultation that we've undertaken and finally 14 recommendations will need to be developed. 15 This process, which will culminate in 16 writing and production of my report judging from the 17 experience of other inquiries, is expected to take 18 approximately six (6) months following the conclusion of 19 the fact finding. 20 I'm therefore urging parties to continue 21 to work together wherever possible to support our efforts 22 to ensure that the goals of efficiency and thoroughness 23 remain in proper balance. 24 As you know, my goal has been to finish 25 hearing the evidence by December 1. Commission Counsel,
121 with the support of all parties, have been trying to find 2 ways of meeting this objective by identifying the 3 remaining witnesses that need to be heard in order to 4 ensure a thorough investigation. 5 However, my understanding is that despite 6 counsel's best efforts, the December 1st date may not be 7 realistic. Accordingly, I've authorized Commission 8 counsel to schedule additional hearing dates beyond the 9 end of November and into the early part of 2006. 10 That being said, I continue to be mindful 11 of the passage of time and the need to complete the 12 hearing phase of the Inquiry as soon as is reasonably 13 possible. Regardless of when the evidentiary hearings 14 end, there will be sufficient time and opportunity 15 provided for parties to offer both written and oral 16 submissions. 17 I've asked Commission counsel to be 18 diligent and using our remaining hearing dates 19 effectively. And I would simply reiterate my request 20 that all counsel continue to cooperate in helping to 21 achieve the balance, proper balance, between efficiency 22 and thoroughness that challenges all public inquiries. 23 Thank you. 24 Now, we will continue with the -- begin 25 the cross-examination of Ms. Jai.
131 MR. DERRY MILLAR: Thank you, 2 Commissioner. The first cross-examiner is Mr. Downard on 3 behalf of Mr. Harris. 4 MR. PETER DOWNARD: Good morning, 5 Commissioner. 6 JULIE RAMONA JAI, Resumed; 7 8 CROSS-EXAMINATION BY MR. PETER DOWNARD: 9 Q: Good morning, Ms. Jai. My name is 10 Peter Downard and I appear for the former Ontario 11 Premier, Mike Harris and I just have some questions for 12 you on a number of areas in your evidence. 13 First of all, I would like to ask you 14 about what you regarded as being your role as Chair of 15 the Interministerial Committee meetings in September of 16 1995 and particularly the 5th and 6th. 17 As I understand your evidence, you 18 regarded your function and your role as being one of 19 developing consensus among the group as a whole; is that 20 fair? 21 A: I believe that my role was to pass on 22 recommendations to our deputy ministers and ministers for 23 action that would resolve whatever the situation the 24 Committee was considering. Normally in the past that has 25 been done through discussion and then a reaching of
141 consensus by committee members. 2 Q: All right. And as I understand it, 3 that was what you were endeavouring to do as Chair on the 4 5th and 6th. 5 A: Yes. 6 Q: All right. And you regarded that as 7 being the proper function of yourself as Chair, right? 8 A: Yes. 9 Q: Yes. And I -- for example, I take it 10 that you did not consider that your role as Chair was to 11 come in and tell people what the answer was going to be. 12 Your role was to listen to various views and to assist 13 and lead in developing consensus among the views there, 14 right? 15 A: I agree that it -- my role would be 16 to gather information and then using that information 17 assist and as you say, sometimes lead in -- lead the 18 group in trying to come to a consensus. 19 Q: Okay. And as I understand it that's 20 what you did on September 5th and 6th on -- on both days 21 in both meetings. 22 By the end of the meeting you had brought 23 the meeting to a certain position of consensus, fair? 24 A: Yes. 25 Q: All right. And as I understand it,
151 as at September 5th and 6th, you had significant 2 experience in working with ministers in government, 3 deputy ministers in government and their staff to 4 reconcile competing views on issues; is that fair? 5 A: Yes. 6 Q: And you would also experience, when - 7 - when you were Executive Co-ordinator for Justice policy 8 with the Cabinet Office from 1990 to 1994 in working to 9 increase collaboration among public servants and 10 political staff, right? 11 A: I don't know if I would put it in 12 quite that way, but I would say that as Executive 13 Coordinator, I worked closely with both public servants 14 and political staff and that improving relationships with 15 them would have been an adjunct of my work with them. 16 Q: And relationships as between them, 17 between civil servants and political staff? 18 A: I guess I would say that that was 19 perhaps a side product of my role. I wouldn't say that 20 that was what my role was. 21 Q: Okay. But that was something that 22 was part of your work? 23 A: That would occur as a result of the 24 work that I did. 25 Q: Well -- well, and I'm not doing this
161 to -- to try to be critical. I just want to find out a 2 little bit more about the skills that you bring to this 3 particular situation. 4 In Exhibit 640, which is your CV, when 5 there's a description of -- and if that could be provided 6 to the witness, please. 7 It's Tab 1 of your book, Ms. Jai. 8 A: Yes, I have it. 9 Q: When there's a description of your 10 work as Executive Coordinator Justice policy in the 11 Interior Cabinet Office, over at the top of the next page 12 it says that you, during this period between October 1990 13 and September 1994, quote: 14 "Worked to increase collaboration 15 between senior public servants and 16 political staff as secretary to the 17 Cabinet Committee on Justice." 18 Unquote. 19 So, perhaps you could just, if you can, 20 give me any further explanation as to what that refers 21 to? 22 A: Okay. Part of one of the many 23 functions that I performed when I was Executive 24 Coordinator at -- at Cabinet Office was to be the 25 Secretary to the Cabinet Committee on Justice.
171 That meant really providing advice to the 2 Chair, who was a Cabinet Minister and reviewing all of 3 the policy submissions coming forward from government. 4 And that would -- those would be submissions coming 5 forward from the public service generally. 6 I would also brief the Secretary, I mean, 7 sorry, the Chair of the Cabinet Committee on all issues 8 coming forward. 9 So in that -- in that capacity as the 10 Secretary to the Cabinet Committee on Justice, there were 11 times, I guess, when political staff would be trying to 12 get something on the agenda. 13 I think one of the main roles as Secretary 14 was to be kind of the gatekeeper to the process and to 15 ensure that only the things that were going to be -- 16 things that were part of the Government's high priority 17 agenda would proceed and also performing a bit of a 18 quality control function. 19 So, I would get calls from various people 20 trying to get things on the agenda which I would have to 21 field and then have to explain to them, you know, you 22 can't -- you should talk to so and so rather than coming 23 forward with this submission at this point. Or if it was 24 someone from a Minister's office calling saying -- would 25 say that it's really the -- the public service, you
181 should speak to the policy director in your branch if you 2 would like to bring forward a cabinet submission, it 3 can't come from the political staff. 4 So, helping them understand the process 5 and what each of their respective roles should be and how 6 they could best work together to meet their goal of 7 getting their item on the policy agenda. 8 Q: Right. And clearly that involves 9 your having worked to increase collaboration among civil 10 servants? 11 A: Yes. 12 Q: And political staff? 13 A: Yes. 14 Q: All right. Now, as I understand your 15 evidence, just -- just coming back to the subject of the 16 Interministerial Committee when you were in the Cabinet 17 Office from 1990 to 1994 you had attended, I believe your 18 evidence was, at least one meeting of the 19 Interministerial Committee and maybe a couple of 20 meetings, is that -- 21 A: Correct. 22 Q: Okay. So -- and pardon me in 23 addition, once you became the Director of Legal Services 24 of ONAS you're not certain that there was a meeting of 25 the Interministerial Committee prior to the August 2nd
191 meeting about Ipperwash? 2 I believe you said that there might have 3 been some sort of a meeting purely on a organizational 4 basis, but that to your recollection there was no meeting 5 regarding a substantive issue while you were the Acting 6 Legal Director at ONAS prior to the August 2nd meeting, 7 right? 8 A: Correct. 9 Q: Okay. So, I take it you'd -- you'd 10 agree that it's -- it's fair that to the extent that -- 11 that anyone sought to take any comments you made about 12 the Interministerial Committee generally and how it 13 conducted its -- its business as being indicative of the 14 ordinary course of its business prior to August of 1995, 15 it would be appropriate that those people bear in mind 16 that you had only attended one (1) or possibly two (2) 17 meetings of the Interministerial Committee prior to your 18 becoming Legal Director -- Acting Director -- at ONAS in 19 early 1995. 20 Is that fair? 21 A: I would say that as the Chair of the 22 Committee, people would have known that I was carrying on 23 from Yan Lazor who had briefed me very fully and who was 24 still very much involved in the Native Affairs 25 Secretariat as the secretary to the Secretariat. And I
201 was using the same briefing material that, you know, he 2 had used to outline the roles and responsibilities of 3 committee members and the function of the Committee. 4 So, I was not suggesting anything new so I 5 -- I don't see any reason why any of the people in 6 attendance would kind of challenge my authority or feel 7 that my lack of experience chairing the Committee would 8 have any particular bearing. 9 Q: Certainly. Let me just put it to you 10 this way. I take it you would agree that with respect to 11 the way in which events actually transpired at all 12 Interministerial Committee meetings prior to 1995 you 13 would agree that you had only observed what had actually 14 happened at those meetings directly on one (1) or two (2) 15 occasions, right? 16 A: I agree. 17 Q: Okay. And you'd agree with me that 18 that's a relatively limited basis upon which to describe 19 what happened at -- at all of the meetings that were held 20 before you became the Acting Legal Director of ONAS, a 21 fairly limited basis, right? 22 A: I haven't attempted to describe what 23 happened at all of the previous meetings. I certainly 24 wouldn't attempt to speak to meetings that I had not 25 attended.
211 Q: Fine. Thank you very much. Now, if 2 I can refer you to Exhibit 645, P-645 -- 3 A: Could I -- could you tell me the name 4 of the document or the tab number? 5 Q: I'm not sure -- I don't think it has 6 a tab number. It's -- it's -- 7 A: But -- 8 Q: It's the July 30th note -- 9 A: Okay. 10 Q: -- which is a note that you made of a 11 call from Scott Patrick who worked with Ron Fox? 12 A: Okay. Thank you very much, sir. 13 Somebody has just handed me this exhibit so that's 14 helpful. 15 Q: Sure. 16 A: I then just want to say, just on your 17 last question about previous meetings of the 18 Interministerial Committee, that I certainly didn't -- I 19 wouldn't have attempted to describe how those meetings 20 occurred or anything since I was only at one (1) or two 21 (2) of them. 22 But I was -- I certainly used the briefing 23 material that Yan had prepared and had reviewed that and 24 revised that, to some extent, for use when I became the 25 Chair of the Interministerial Emergencies Committee.
221 So, I would say that my knowledge of the 2 general procedures and how the Committee should be run 3 or, you know, what the rules and responsibilities as set 4 out in that document was, was quite good. That's 5 different from saying that I had observed and knew what 6 happened at each of the meetings which I obviously didn't 7 know, but I did have a very good understanding of the 8 general procedures and -- and roles and responsibilities. 9 Q: Well, sure. I appreciate that -- 10 that distinction. And you would have had that, certainly 11 -- you may well have had it before, but you -- you would 12 have certainly have had that when you revised the 13 briefing note of July 10th from Minister Harnick which 14 attached the guidelines which you were going over at that 15 time, right? 16 A: Right. 17 Q: Right. Okay. 18 19 (BRIEF PAUSE) 20 21 Q: Bear with us just a moment, please. 22 23 (BRIEF PAUSE) 24 25 Q: The document number is 1003504.
231 (BRIEF PAUSE) 2 3 Q: All right. Have you got the exhibit, 4 Ms. Jai? 5 A: Yes, I do, thanks. 6 Q: Okay. And this is a note you told us 7 about of a call from Scott Patrick at about 12:30 p.m. on 8 September 30th, 1995. Mr. Patrick being an individual 9 who worked with Inspector Fox. 10 And in the note you'll see it reads: 11 "Chief Superintendent..." 12 And this is a note that you wrote, 13 correct? 14 A: Yes. This is my handwriting. 15 Q: Yes. And in the note it says, quote: 16 "Chief Superintendent Chris Coles is on 17 his way to the site to find out who 18 they are, what they want and to prevent 19 the Military from doing something 20 crazy." 21 A: Right. 22 Q: Right. Okay. Now do you recall 23 whether the reference to preventing the Military from 24 doing something crazy is a characterization of something 25 that Scott Patrick said to you at the time, or whether
241 Scott Patrick actually said those words to you at the 2 time? 3 Do you recall now? 4 A: I can't recall if he said those exact 5 words but this would have been my notes of what he was 6 saying to me. So, I might have condensed, you know, 7 abbreviated what he told me but this would have been the 8 essence of what he said as opposed to my editorializing 9 or commenting on it. 10 Q: Okay. All right. 11 A: And then in brackets underneath it 12 says: 13 "But had a positive training session 14 recently." 15 So, again Scott is telling me that the 16 concern that the Military might do something rash is 17 mitigated somewhat by his knowledge that there was some 18 kind of training session with the Military at Camp 19 Ipperwash recently which would reduce the likelihood of 20 any rash action on their part with respect to this 21 storming of the gates by Aboriginal people. 22 Q: Now, is that your interpretation of 23 the meaning of what he said or had he said all of that to 24 you that -- that this training session would -- would 25 reduce the prospect of -- of rash action?
251 Is that what he said to you or is that 2 what you understood from it at the time or how you 3 interpret it now? 4 A: I can't recall the conversation but 5 based on my notes, I think that -- that he -- this is -- 6 I would not have just interpreted it, he would have 7 explained all of this to me. 8 Q: Okay. He made a point, and as you 9 recall it, he made a point of saying there had been a 10 positive training session -- 11 A: Hmm hmm. 12 Q: -- which -- which balances the risk? 13 Okay. 14 A: I don't know, I didn't watch any of 15 his testimony or read any of his transcripts. 16 Q: I -- 17 A: But, I take -- I take it that you 18 have followed it and -- 19 Q: Well, no, he hasn't -- he hasn't got 20 any testimony or transcripts yet. 21 A: Okay. 22 Q: I'm just asking you about the note. 23 A: Oh, I see. 24 Q: Now, you were saying last week that 25 what this referred to is that, quote:
261 "There had been some sort of training 2 session with the Military, about 3 Aboriginal policing issues or 4 something." Unquote. 5 Now, I take it that you don't have any 6 specific recollection that this -- that you were told 7 that this training session was regarding Aboriginal 8 policing issues? 9 A: No, I don't recall what it would have 10 been on, but it would have been something like Aboriginal 11 sensitivity or some -- some things relating to Aboriginal 12 people. 13 Q: Okay. So, what -- when you said it 14 could have been about Aboriginal policing issues last 15 week, that was a bit of a guess on your part, right? 16 A: It was just trying to read in what, 17 yeah -- 18 Q: What -- 19 A: I mean, reconstructing from the 20 notes. 21 Q: Right, right and -- right -- and what 22 you did say was Aboriginal policing issues or something? 23 A: Right. 24 Q: You indicated uncertainty on your 25 part?
271 A: Right. 2 Q: Right, right. And if I can refer you 3 now to another note which is Tab 15, 4 A: Is this Tab 15 of your materials? 5 Q: Well -- 6 A: Like of your binder? 7 Q: It's -- it's Tab 15 of -- it should 8 be Tab 15 of -- of your binder as well. These things 9 don't always work out in perfect synchronicity, but it's 10 Document number 3001086 and it's Exhibit P-505. 11 A: Yes, I have that. 12 Q: Okay. And that's another handwritten 13 note of yours? 14 A: Yes. 15 Q: Of August 2nd? 16 A: Yes. 17 Q: Okay. 18 19 (BRIEF PAUSE) 20 21 Q: Now, I just want to ask you about one 22 passage of this note which is about a third of the way 23 down the page, which is the note that -- this is the note 24 that you wrote, right? 25 A: Yes.
281 Q: That reads, quote: 2 "Doesn't want them to be on the 3 conference call". Unquote. 4 And then there's the -- the letters "OPP" 5 with an arrow above the word "them". 6 A: Right. 7 Q: Right, okay. 8 A: That means that they don't want the 9 OPP -- that Ron Fox did not want the OPP to be on the 10 conference call. 11 Q: Well, do you -- do you recall 12 whether, and this -- because I want to raise the question 13 whether you're now interpreting and reconstructing the 14 note or whether you're recalling what Inspector Fox said 15 to you at the time either, you know, specifically or in 16 substance. 17 Do you recall Ron Fox telling you in this 18 conversation that he did not want the OPP to be on the 19 Interministerial Committee conference call? 20 A: I recall having discussions with Ron, 21 and I can't say if it was this call or some other call, 22 because I had many calls every day with Ron Fox. But Ron 23 did mention to me at some point the concern with having 24 the OPP connected by phone or in attendance at these 25 Interministerial Committee meetings, because of the risk
291 that they would be overly influenced by what they had 2 heard and the fact that, you know, government cannot 3 direct OPP operations. 4 So, he -- whether it was this call or some 5 other call -- but certainly this note suggests that Ron 6 is saying again that he doesn't want the OPP to be on the 7 conference call. 8 And I can with -- although I don't recall 9 as I said, if it's this specific meeting where we had 10 that conversation, because we had it more than once, it's 11 very clear to me from these notes that these notes 12 indicate that Ron Fox was telling me in this conversation 13 that he does not want the OPP to be connected to the 14 meeting by conference call. 15 Q: Okay. Well, when -- now Inspector 16 Fox has testified, and I've got the transcript, and when 17 he was here he said that what had happened was that 18 Inspector Parkin or -- or I may have -- I may have the 19 wrong title -- Superintendent Parkin, happily I don't 20 work for him, and Incident Commander Carson, or that -- 21 that Parkin had -- had said that -- that Parkin and 22 Carson did not want to be on the call because they were 23 too busy? 24 A: Hmm hmm. 25 Q: And that that's why they weren't on
301 this call. And that Inspector Fox would have considered 2 it appropriate for them to have been on this call at this 3 time. 4 So does that -- does that affect your 5 evidence in any way? 6 A: Well, I mean I didn't review Ron's 7 transcripts or look at his evidence and I'm -- obviously 8 there can be inconsistencies and that's totally 9 consistent with real life. I would just say what I said 10 before that I've had conversations with Ron in which he 11 has indicated to me that he did have concerns about OPP-- 12 Q: Okay. 13 A: -- members being on -- 14 Q: Okay. 15 A: -- conference call because of the 16 concern that that could overly influence them and the 17 desire to keep police operations separate from government 18 -- you know, any sort of perception of government 19 control. I recall that Ron and I have had these 20 conversations separate from this note. 21 Q: Right. So -- so. on this occasion 22 there may or may not have been a discussion between 23 yourself and Ron Fox about this particular reason why 24 these officers were not to be on this conference call, 25 right?
311 A: That's correct. 2 Q: Okay. All right. So, these are -- 3 these are relatively, you know, minor little conflicts -- 4 A: Hmm hmm. 5 Q: -- in the evidence and they're 6 inevitable -- 7 A: Hmm hmm. 8 Q: -- in a complex situation. But, I -- 9 I want to come back to the -- the point you are making 10 which is that you said that on -- and correct me if I 11 haven't got this right, that -- you said that on a number 12 of occasions you and -- and Ron Fox had had discussions 13 in which Inspector Fox said that he had concerns about 14 the operational OPP officers being essentially plugged 15 into the discussion at an Interministerial Committee 16 Meeting; is that fair? 17 A: Yes, we -- we did discuss the -- the 18 potential concerns that could arise from them being 19 directly connected. 20 Q: And as I understand it the -- the 21 primary concern that was being raised in those 22 discussions by Mr. Fox was the risk that the operational 23 OPP officers might possibly be overly influenced by their 24 hearing all the -- the debate and views and so on that go 25 on within government in the Interministerial Committee.
321 That was -- he was very much alive to that 2 concern? 3 A: That would be one (1) of the 4 concerns. 5 Q: Okay. But is it fair to say that -- 6 that on the basis of your discussions with him you 7 understood that he regarded that as being an important 8 concern? 9 A: Yes. 10 Q: Okay. Do you recall what the other 11 concerns were? 12 A: Well, I think it would just be that 13 they wouldn't -- OPP officers on the ground, I mean 14 depending on who it was who was connected to the call 15 might not be able to understand it in context. I mean, 16 it's someone being pulled out of a completely different 17 context, an operational job, and then, you know, coming 18 in and sitting in on the -- the types of meetings within 19 government involving both public servants and political 20 staff. 21 Very unusual meetings. You know this is 22 not even typically the way government works. 23 So, Ron knew that his own role was to kind 24 of be the liaison between government and the OPP and that 25 he had the experience to understand the two (2) different
331 worlds and to interpret or translate between them as 2 appropriate. But, that someone just being pulled out 3 from a field operations situation might not have the 4 experience to really view the information in its 5 appropriate context. 6 Q: All right. So, the risk for example 7 might be that an operational officer could receive 8 through some degree of participation in the Committee's 9 process, some fragment of information and without 10 understanding the context of that information might 11 misinterpret, right? 12 A: That would be risk, yes. 13 Q: Because certainly in these -- 14 wouldn't you agree that certainly in these situations 15 when we are -- are looking at the various sorts of 16 debates and -- and opinions that are being generated in 17 this working process, as you're trying to build to a 18 consensus, it's important that one not take fragments of 19 that debate or discussion out of context, right? 20 Isn't that fair? 21 A: I'd rather not comment on that. 22 Q: Okay, that's fine. I will, in due 23 course, but that's -- that's just me editorializing. 24 25 (BRIEF PAUSE)
341 Q: Now, as I understand your evidence, 2 as at the end of July of 1995, you had been the acting 3 legal director at ONAS for -- for several months? 4 A: Yes. 5 Q: And it was -- it was quite busy at 6 that time, there was a lot of matters on the go? 7 A: Yes. 8 Q: And there was a new government that 9 had come in and -- and there was work you had done in 10 connection with that as well? 11 A: Yes. 12 Q: All right. And so that -- that prior 13 to the end of July 1995, you really hadn't had an 14 opportunity to familiarize yourself with the -- the 15 Ipperwash issue in particular at all, right? 16 A: I hadn't got -- 17 Q: Well -- my understanding of your 18 evidence is -- is that you couldn't recall that you were 19 aware of First Nations issues at Ipperwash prior to the 20 end of July 1995. 21 A: Right. I can't recall that now. I 22 don't know if I was aware of it in July of 1995. 23 Q: Okay. But as I understood your 24 evidence that it was that as of the end of July, you -- 25 you didn't have any awareness of the history of the Army
351 Camp, for example, and the 1942 appropriation and the 2 issue with the government about why it hadn't returned 3 the land and so on. 4 That's what I thought your evidence was 5 last week. 6 A: Yeah. Probably I only became aware 7 of that just around the time of the August 2nd 8 Interministerial Committee meeting. 9 However, I had been with ONAS for a number 10 of months so I can't say what briefings that I may have 11 had on, you know, the many different matters that ONAS 12 was juggling at the time. So, it's possible that I'd had 13 some briefing on it when I first joined. 14 Q: Okay. But, in -- in any event, is it 15 fair to say that you only really started to acquire 16 detailed information about the -- the First Nation 17 situation at Ipperwash around the end of July, early 18 August 1995? 19 A: Yes. 20 Q: That right? 21 A: That's correct. 22 Q: Okay. And if we can look at Exhibit 23 P-500, Document 3001085. It's Tab 12 of, hopefully, your 24 brief. 25 A: Those notes -- handwritten notes
361 dated August 1st? 2 Q: Yes. Your handwritten notes? 3 A: Yes. 4 COMMISSIONER SIDNEY LINDEN: Exhibit 5 Number is 500 I think. 6 MR. PETER DOWNARD: Yes. 7 THE WITNESS: Yes. 8 COMMISSIONER SIDNEY LINDEN: P-500. 9 10 CONTINUED BY MR. PETER DOWNARD: 11 Q: And I just want to refer you to the 12 second page, top of the second page. And I believe that 13 you said that these notes at this point were documenting 14 a conversation you were having with Ron Fox, right? 15 A: Yes. 16 Q: Right. And at the top of the second 17 page, you've noted, quote: 18 "It is only a dissident group that is 19 doing this, not the Band." 20 Then there's a new line, Capital 'B': 21 "Band [and you've underlined the word 22 Band] does not plan to take over 23 Ipperwash Park." 24 So, I take it that at the time, you 25 underlined the word 'Band' in this note to emphasize to
371 yourself that the -- the formal Indian Act Band in the 2 area was distinct from and had different positions from 3 the Stoney Point group that had occupied the built up 4 area of the Army Camp? 5 A: Yes. 6 Q: Okay. And if I can refer you to Tab 7 14 of your book, which is your handwritten note of August 8 2nd, it's document number 1011695. 9 And it's Exhibit P-507 -- 10 A: Yes. 11 Q: These are your handwritten notes of 12 the August 2nd Interministerial Committee meeting? 13 A: Yes. 14 Q: Okay. And... 15 16 (BRIEF PAUSE) 17 18 Q: If you look at the fourth page. 19 20 (BRIEF PAUSE) 21 22 Q: There's a note about a third of the 23 way down the page that starts with the -- the name Chief 24 Bressette; do you see that? 25 A: Yes.
381 Q: And it reads, and I quote: 2 "Chief Bressette and Band are 3 supportive and view occupation as 4 illegal." 5 A: Yes. 6 Q: "If we close the Park, Bressette 7 would be upset. It would be 8 recognizing the validity of the 9 dissident group. [And I'll stop there]" 10 Unquote. 11 Now, so right from the beginning of your 12 acquiring a detailed understanding of the Ipperwash 13 situation, you appreciated that there was a clear 14 distinction between the formal Indian Act Band and the 15 Stoney Point group that had occupied the built up area, 16 right? 17 A: Yes. 18 Q: And you understood that Chief 19 Bressette and the Band were supportive of the government 20 position and viewed the occupation by the Stoney Point 21 people as being illegal, right? 22 A: Yes. 23 Q: And you understood, right from this 24 early stage, that Chief Bressette would be upset if the 25 government took action that, in his view, recognized the
391 validity of what he called or what is referred to as the 2 dissident group, right? 3 A: Yes. 4 5 (BRIEF PAUSE) 6 7 Q: And when you prepared the minutes, 8 which are at Tab 16 of your brief, Exhibit P-506, and as 9 I recall it, your evidence, one of the important 10 functions of a Chair, as far as you were concerned, is to 11 ensure that accurate minutes of a meeting are prepared, 12 right? 13 A: Yes. 14 Q: And that's something that you would 15 pay particular attention to in reviewing draft minutes 16 and making corrections where appropriate? 17 A: Yes. 18 Q: And in these minutes, at page -- 19 A: Having said that, there have been 20 times that, despite having done that, you would later 21 find out that there was a mistake in a minute. I mean 22 it's -- 23 Q: Sure. 24 A: -- impossible to be foolproof. 25 Q: Right, right. There's -- subject --
401 subject to things that ordinarily happen in -- 2 A: Right. 3 Q: -- in life, you would at least be 4 taking care of it -- 5 A: Yes. 6 Q: -- to try to make sure they're 7 correct? 8 A: Yes. 9 Q: Right. And in these minutes at the 10 fourth page, it has the number 3 at the centre at the top 11 of the page. 12 A: Yes. 13 Q: If you'll bear with me just for a 14 moment. 15 16 (BRIEF PAUSE) 17 18 Q: Sorry, it's the page numbered 4, I 19 beg your pardon. At the -- at the bottom of the page. 20 A: Yes. 21 Q: You -- you noted in the minutes, and 22 I quote, that: 23 "The Stoney Point group is not 24 recognized as a First Nation by Indian 25 Affairs and they do not have broad
411 support within the First Nation. They 2 are a dissident faction whose actions 3 are not supported by the recognized 4 Kettle and Stony Point First Nation." 5 Unquote. Right -- 6 A: Yes. 7 Q: So that -- and that reflected your 8 understanding at the time? 9 A: Yes. 10 Q: And -- and in addition to what we've 11 touched on before that this -- this group did not appear 12 to have any degree of substantial support among the First 13 Nations in a larger sense? 14 A: I can't say in a larger sense. I can 15 only comment on the fact that what I was told was that 16 the Kettle and Stoney Point First Nation did not support 17 them. That does not mean that this group would not 18 necessarily have Aboriginal rights. That's a separate 19 issue from -- 20 Q: That -- that is -- I understand 21 that's a very distinct issue. Very distinct issue. I'm 22 just trying to take from this note what your 23 understanding was at the time. 24 And I take it that what you're saying is 25 that -- where you say and I quote:
421 "They do not have broad support within 2 the First Nation." Unquote. 3 By 'First Nation', you're referring to the 4 Kettle and Stoney Point Band and -- and not anybody else? 5 A: Right. 6 Q: Okay. That's fine, thank you. And 7 it -- it continued to be perhaps not -- not a theme but 8 one of the -- the things that was said in the 9 Interministerial Committee meetings when we get to 10 September 5th and 6th that the -- the chief of the Kettle 11 and Stony Point Band, Chief Bressette, did not want 12 government to take any steps to recognize the Stoney 13 Point group; is that fair? 14 A: Yes. 15 Q: Okay. 16 17 (BRIEF PAUSE) 18 19 Q: Okay. Now one thing that you talked 20 about in your evidence that was news to me was that, as I 21 understood your evidence, you said that there had been 22 some kind of ceremonial occupation of Ipperwash 23 Provincial Park in 1994. And in particular, in both 1994 24 and 1993. 25 A: Yes.
431 Q: Now -- now we've heard some evidence 2 about some events involving what I think is fair to 3 characterize as a relatively minor, I'll call it an 4 occupation but I might debate that later, in 1993 but I 5 don't believe we've heard any evidence about an 6 occupation in 1994. 7 And so could you tell me as best you can, 8 if you recall, what further information you had about an 9 occupation in 1994 and what that was based on? 10 A: It would have -- it was just based on 11 what somebody told me and it was -- I can't add to 12 anything that I said in the examination-in-chief. 13 Q: Okay. So -- so you recall that that 14 was your understanding at the time -- 15 A: Yes. 16 Q: -- and -- and whether your source of 17 information is accurate or not is not something that you 18 can definitively say? 19 A: I can't say. 20 Q: Right. That's fine. Now by the time 21 of the August 2nd Interministerial Committee meeting 22 there was an awareness, on your part, that there was an 23 allegation out there that there was a burial site, an 24 Aboriginal burial site in Ipperwash Provincial Park, so 25 you were aware of that at that time?
441 A: Yes. 2 Q: Okay. Do you recall whether in the 3 August 2nd Interministerial Committee meeting or around 4 that time anyone with whom you were dealing about 5 Ipperwash in -- in government was saying that there 6 should be an investigation of oral history of First 7 Nations people in the Ipperwash area regarding the 8 existence of a burial site in the Park? 9 A: No, I don't recall anyone saying 10 that. 11 Q: Do you recall whether later in time 12 up to and including the September 6th Interministerial 13 Committee meeting, anyone said there should be an 14 investigation of oral history of First Nations people in 15 the Ipperwash area regarding the existence of a burial 16 site in the Park? 17 A: No. 18 Q: Do you have any specific recollection 19 of Ron Fox ever saying that, prior to September 6th? 20 A: Well, I do recall having a discussion 21 with Ron Fox about the burial site issue some time, you 22 know, after August -- in that August -- from either the - 23 - from the beginning of August to September 5th, sometime 24 in that period, in which he said that there was an 25 allegation that there was a burial ground and I said to
451 him, do you think that there is a burial ground there and 2 he said, Well, these people have occupied this area for 3 centuries and centuries, so it's very likely that there 4 is. 5 Q: Right. And that's what you described 6 to us last week. 7 A: Yes. 8 Q: And -- and that's what you recall 9 about that conversation, as far as that's concerned? 10 A: That's what I recall of the 11 conversation. 12 13 (BRIEF PAUSE) 14 15 Q: Do you recall whether anyone said, at 16 the September 5th or 6th Interministerial Committee 17 meeting, that they had information that there was a 18 belief among many First Nations people in the Ipperwash 19 area that there was a burial site in Ipperwash Provincial 20 Park? 21 A: I don't recall anyone saying that. 22 That doesn't mean that they didn't say it; I just can't 23 recall. 24 Q: That -- I understand that -- 25 A: Hmm hmm.
461 Q: I'm just asking for your 2 recollection. 3 A: Hmm hmm. 4 5 (BRIEF PAUSE) 6 7 Q: Okay. All right. And with respect 8 to the September 5th Interministerial Committee meeting, 9 do you recall Inspector Fox talking to the meeting about 10 a scenario in which occupiers in the Park would, as a 11 deliberate strategy, place women and children out in 12 front of their group in the event that police took action 13 with respect to the Park and the occupation? 14 A: I recall Ron saying that at some 15 point. I can't recall if it was in that meeting. 16 Q: Okay. So, what is it that you 17 recall? 18 A: I recall Ron saying that there were - 19 - that the group was composed of a mixed group of men, 20 women and children and that there was a risk that the 21 women and children would be used or, you know, that they 22 would be placed out front. 23 But I don't even know if that was in a 24 meeting or in a phone call, so I don't recall when -- 25 when Ron said that.
471 Q: Okay. 2 3 (BRIEF PAUSE) 4 5 Q: All right. Now, if we can come back 6 to Exhibit P-500, document 3001085 which are your August 7 1 notes of a telephone call you had with Ron Fox, it's at 8 Tab 12 of your documents. 9 A: Yes. 10 11 (BRIEF PAUSE) 12 13 Q: Right. And on the first page of 14 those notes beside the number 2 -- 15 A: Yes. 16 Q: You'll see there's a note that reads, 17 quote: 18 "The sacred point, [quote], 'The Kettle 19 Point' [unquote]." 20 A: It actually says: 21 "The sacred site, [quote], 'The Kettle 22 Point' [unquote]." 23 Q: Right. I thought I just said that, 24 but okay. Quote: 25 "FN people regularly go there."
481 Unquote. 2 So, I -- I think that there's a slight 3 substantial error here in that I believe Inspector Fox 4 testified that the point that's relevant is -- is Stoney 5 Point, but you can just take that from me. 6 I take it though that what you understood 7 from this information that you were getting from Ron Fox 8 is that there was a site in the Park that was regarded as 9 sacred by some First Nations people and that those people 10 were regularly provided access to that site, right? 11 A: I agree that there was a site that 12 was known, based on these conversations with Ron, to be a 13 sacred site for the Aboriginal people. I don't know to 14 what extent they were regularly provided access. 15 Q: Well it's -- well it says in the note 16 that the, quote: 17 "FN people regularly go there." 18 Unquote. 19 A: Yeah, but I don't know if that's -- 20 like what the arrangements were. I mean anybody can go 21 to the Park. 22 Q: Right. 23 A: It's a public park. 24 Q: Okay. 25 A: So I don't know if there were special
491 arrangements or what the set-up was. 2 Q: As at this time, which is the 3 beginning of August of 1995, had you received any 4 information of any kind that Stoney Point people had made 5 any approach to ONAS about having a -- a burial site in 6 Ipperwash Provincial Park identified and protected? 7 A: To the best of my knowledge, we had 8 not been approached. 9 Q: And did you have any information that 10 Stoney Point people or actually -- actually before I go 11 on to that -- that next question, did -- did you receive 12 any information like that, right up to September 5th and 13 6th, okay, about an approach to ONAS by Stoney Point 14 people about identifying and protecting a burial site in 15 the Park? 16 A: We were never formally approached by 17 the occupiers during this period about anything. 18 19 (BRIEF PAUSE) 20 21 Q: Okay. And right up to September 5th 22 and 6th did you ever receive any information that the 23 Stoney Point people or anyone on their behalf had made 24 any approach in 1995 to any branch of government or any 25 representative of the government to assist them in
501 identifying and protecting a burial site in Ipperwash 2 Provincial Park? 3 A: I had not heard of any attempt at 4 contact with anyone in government by the Stoney Pointers 5 about the burial site at that time. 6 Q: Okay. 7 A: That doesn't mean that we assumed 8 that either there was or that there was not a burial 9 site. 10 Q: No, I -- I understand, that -- that's 11 distinct. I'm -- I'm just trying to explore the extent 12 to which the -- the Stoney Point Group or their 13 membership who were occupying the Army Base and 14 ultimately the Camp actually sought any sort of a hearing 15 with anyone in government or connected to government -- 16 A: Right. 17 Q: -- about this issue. 18 19 (BRIEF PAUSE) 20 21 Q: And given the -- I want -- I want to 22 ask you something based upon what experience and 23 knowledge and awareness you clearly had about ONAS' 24 operations in the summer of 1995. 25 And on that basis, if -- if, say, an
511 individual had called and said I am a Stoney Point Elder, 2 I am one of the people who is in occupation at the Army 3 Camp, the former Army Camp lands at Camp Ipperwash, and I 4 believe, and a number of us believe there is a burial 5 site in Ipperwash Provincial Park, Can ONAS do anything 6 to help us in identifying that site and protecting that 7 site? 8 On the basis of your awareness of how ONAS 9 worked at the time, what do you believe would have 10 happened? 11 A: Just was -- as if I didn't -- I'm not 12 sure I got the whole question. Is this if they -- 13 assuming they were already occupying the Park and -- 14 Q: No, no, this is -- 15 A: Oh, they're not occupying the Park 16 and they come and ask us this question? 17 Q: Right. 18 A: Okay. We could have entered into a 19 discussion with them about how to go about identifying 20 the burial site and protecting it under the Cemeteries 21 Act. 22 Q: All right. Did -- would -- do you -- 23 well, let me step back. Do you believe there would have 24 been any reluctance on the part of ONAS to provide that 25 assistance?
521 A: I don't think there would have been 2 any reluctance. It might have been difficult to actually 3 find the records since, even after, you know, going back 4 years later we -- I don't know that we ever uncovered 5 anything in our own files about it. 6 But, we would have -- we would have 7 certainly been willing to engage in that discussion with 8 them. 9 Q: And -- and if -- if records were 10 found and if there appeared to be some evidence of a 11 burial ground, and you might also consider the views of 12 local people, right -- 13 A: Right. 14 Q: -- of it, right? And if there was 15 some evidence in your view to support the identification 16 of a burial site and -- and a need for protection, I take 17 it that ONAS would have worked to facilitate that? 18 A: Yes. 19 20 (BRIEF PAUSE) 21 22 Q: Okay. But, at -- as it was -- as it 23 was, as I understand your evidence from last week, when 24 we get to September 5th and 6th and the occupation is in 25 place, you really didn't know what, if any, basis there
531 was for a claim that a burial site existed in the Park 2 and needed protection? 3 A: Correct. 4 5 (BRIEF PAUSE) 6 7 Q: So, it was -- it was difficult for 8 you to conclude, at that time, that there was substantial 9 evidence in support of that claim, right? 10 A: I don't think we were even assessing 11 the evidence one way or another. 12 Q: But, you didn't really have anything 13 to assess, right? 14 A: Well, we didn't have any to assess, 15 but we hadn't had any formal communication indicating 16 that they were occupying the Park because of the burial 17 ground, so -- 18 Q: So -- right, so that was -- that was 19 another -- another problem. It was -- it was a message-- 20 A: Was -- 21 Q: -- if you will, that was out there 22 but it was hard to put a lot of weight on it; is that 23 fair? 24 A: Well, it was an issue that kind of a 25 second order issue that we wouldn't have even gotten to.
541 If we'd gotten to the point of having discussions with 2 the occupiers and they then said there are these, you 3 know, this is the reason we are occupying or there are 4 these two (2) or three (3) reasons, then we would have 5 tried to reach agreement about a process to deal with 6 those issues. And in that separate process, we would 7 have done investigation about the alleged burial ground. 8 But, even so, that would have been a 9 separate process. That wouldn't have been part of the 10 negotiations around the end of the occupation. 11 Q: Right. Okay. All right. And with 12 respect to the subject of a -- a claim by the Stoney 13 Point Group to the lands upon which Ipperwash Provincial 14 Park had been established, similarly there had been -- I 15 think was covered by one (1) of your previous answers, 16 but just to put a point on it, that there had been no 17 communication to your knowledge prior to September of 18 1995 by the Stoney Point people or occupiers as to the 19 basis for, the grounds for, a claim by them to that land? 20 A: Correct. 21 Q: To your -- to your knowledge they had 22 not made any attempt to seek any kind of a hearing with 23 any government official directly or indirectly on that 24 issue; to your knowledge at that time? 25 A: Yeah. Right.
551 (BRIEF PAUSE) 2 3 Q: And you -- you know Scott Hutchison, 4 I take it? 5 A: Yes. 6 Q: And when he was here he described the 7 -- the tenor of -- of or the -- or the state of 8 discussions regarding a -- a possible claim on the Park 9 land by the Stoney Point group as one in which the view 10 was expressed in -- in a meeting that -- and he's talking 11 about September 6th because that's the only -- only one 12 he was at before the tragic events. 13 People took the view that if there was a 14 claim on the land it was either a -- a weak claim or one 15 that was not enforceable in the hands of these particular 16 occupiers, that they didn't have the standing to assert 17 that claim. 18 Do you recall that? 19 A: I don't specifically recall those -- 20 it being put quite that way, but that's consistent with 21 the general tenor of the discussion. 22 Q: Okay. 23 COMMISSIONER SIDNEY LINDEN: We're going 24 to try and adjourn approximately a quarter to 12:00 so if 25 this is a good point, I'm not sure where you are?
561 MR. PETER DOWNARD: That'd be fine, yes. 2 Thank you. 3 COMMISSIONER SIDNEY LINDEN: Would that 4 be all right? We'll have a morning break now. 5 MR. PETER DOWNARD: I -- I think I should 6 -- I should tell you, Commissioner, and give My Friends a 7 heads up that I'm moving along much more quickly than I 8 thought I might. 9 COMMISSIONER SIDNEY LINDEN: That's good 10 news. Thank you, Mr. Downard. We'll take a break now. 11 THE REGISTRAR: This Inquiry will recess 12 for fifteen (15) minutes. 13 14 --- Upon recessing at 11:42 a.m. 15 --- Upon resuming at 12:01 p.m. 16 17 THE REGISTRAR: This Inquiry is now 18 resumed. Please be seated. 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY MR. PETER DOWNARD: 23 Q: Ms. Jai, on the matter of whether 24 there was a claim by First Nations people to the lands 25 upon which Ipperwash Provincial Park was located, I take
571 it that when you were learning about this whole situation 2 in August and early September of 1995 you became aware 3 that the Kettle and Stoney Band had filed certain land 4 claims but not against the Park land, right? 5 A: Correct. 6 Q: Right. And you became aware that the 7 Band had vigorously prosecuted a lawsuit regarding 8 certain beachfront property in the area, right? 9 A: Yes. 10 Q: And so in -- in considering and -- 11 and bearing in mind the absence of information that you 12 had from the Stoney Point people that you told us about, 13 when you're considering the prospect of whether there is, 14 or was, a substantial land claim against the Park land in 15 August and September 1995, was it relevant to you that 16 the Kettle and Stony Point Band had not been hesitant to 17 make land claims where it thought it appropriate to do 18 so? 19 A: Well, I think that all things 20 considered, we felt that we had good title to the Park 21 and that the fact that there hadn't been any claims with 22 respect to the land that the Park was on or any claims 23 really relating to the -- any alleged burial ground, were 24 the things that we took into account. 25 I hadn't -- I don't know -- I mean, I see
581 the point you're making that we reali -- that there 2 seemed to be a First Nation that was relatively assertive 3 about its rights or certainly was able to go to court if 4 it felt that had a valid case. 5 I don't know if we took that into account. 6 I can't specifically answer that question. It was part 7 of the backdrop of information that we were considering. 8 Q: Okay. And -- and just generally as - 9 - as part of considering that backdrop, I take it, it was 10 very important to you as Chair of -- of the Committee 11 that you had some sense of what the -- the views of the - 12 - the local Indian Act Band were? 13 A: Yes, that was relevant information. 14 COMMISSIONER SIDNEY LINDEN: I'm sorry. 15 Mr. Henderson...? 16 MR. WILLIAM HENDERSON: I'm sorry. If My 17 Friend is following on his previous question, he is 18 planting the assumption, which I suggest may be invalid, 19 that if the First Nation Chippewas of Kettle and Stoney 20 Point thought they had a valid claim that it would 21 automatically be before the courts. 22 As with many litigants, whether their 23 claims are valid or not, now -- they don't have unlimited 24 funds for litigation. And the more valid question would 25 be when, not if.
591 MR. PETER DOWNARD: That's fair. 2 COMMISSIONER SIDNEY LINDEN: I think 3 you're reading a lot more into it, Mr. Henderson, but I'm 4 not sure. 5 Yes, Mr. Downard...? 6 MR. PETER DOWNARD: It's at most it's a 7 point for -- for argument. I mean, we heard evidence 8 from Chief Tom Bressette and Elizabeth Stevens as to what 9 the Kettle and Stony Point Band's view was on -- on that 10 issue. 11 And I'm just asking this Witness what her 12 perception was at the time and what she regarded as being 13 important at the time that's all. 14 COMMISSIONER SIDNEY LINDEN: I think the 15 questions you're asking so far are appropriate. 16 17 CONTINUED BY MR. PETER DOWNARD: 18 Q: And I -- I take it that in the course 19 of the Interministerial Committee meetings, you -- you 20 became aware that there had been direct contact by the 21 OPP at Ipperwash with Chief Bressette and that Chief 22 Bressette had indicated that he had no concerns about 23 government opposing the occupation of the Park. 24 Is that fair? 25 A: Well the communications that we
601 received were that Chief Bressette and the First Nation 2 did not support the occupation of the Park. 3 Q: Okay. That's fine. I -- I won't -- 4 I'll try not to be repetitive as I continue. 5 I want to ask some questions about the 6 subject of an ex parte injunction. And you testified 7 last week that you had some involvement with the 8 Interministerial Committee while you were at cabinet 9 office; not in a leading role in the Committee but as -- 10 as someone who was present in connection with the 11 incident at Beardmore, right? 12 A: Right. 13 Q: And that was in, I believe, the fall 14 of 1991; is that about right? 15 A: I can't recall. 16 Q: Fine. Do you recall whether, in that 17 case, the Province, and let me step back for a minute, we 18 -- we did hear from, I believe, Mr. Millar, in his 19 examination, he made it clear that there was -- there was 20 some discussion in which a blockade was removed, and 21 after removal of the blockade then there were some 22 discussions about concerns that the people involved had, 23 and then the agreement to suspend the blockade somehow 24 went south, did not work out, the blockade -- and the 25 blockade went back in place.
611 And do you recall whether, when that 2 blockade went back in place, that not only the province 3 moved for an injunction but it moved for an ex parte 4 injunction? 5 A: I can't recall. 6 Q: Okay. So, if I -- if the 7 Commissioner were to hear evidence that that was so, you 8 wouldn't dispute that, right? 9 A: I wouldn't dispute it. 10 Q: Right. 11 12 (BRIEF PAUSE) 13 14 Q: Okay. Now, with respect to the 15 discussion of an ex parte injunction at the September 5th 16 and 6th Interministerial Committee meetings, Inspector 17 Fox told us in his evidence that legal Counsel expressed 18 different views as to whether an injunction should be 19 sought ex parte. 20 You said that, with respect to September 21 5, they were somewhat split and that again on September 22 6th there were different legal opinions as to whether the 23 injunction should be brought ex parte or not. 24 Is that consistent with your recollection? 25 Is that -- is that a fair description of
621 the discussions? 2 A: Well, what I recall is that the views 3 of the people who were really knowledgeable about this, 4 which would be Tim McCabe and Elizabeth Christie, they're 5 the experts in civil litigation, their view was that we 6 would not succeed in an application for an ex parte 7 injunction. 8 There was a brief discussion in which I 9 believe Tim McCabe said something like, and this was in 10 response to, I think, Deb Hutton saying that the Premier 11 wanted to proceed in a day or two, you know, very, very 12 quickly -- 13 Q: Right. 14 A: That Tim might have said something 15 like, oh, Well, then in that case, we'd have to go for an 16 ex parte injunction. In other words, we wouldn't have 17 time to provide notice if we were to meet that direction 18 from the Premier. 19 But, it was not, in my view, it was 20 unanimous among the experts, you know, Tim and Elizabeth, 21 that we would not succeed on an ex parte injunction. 22 Q: Okay. 23 A: Now I, of course, had a much greater 24 knowledge of this than most of the people at the 25 Committee meeting, because on the afternoon of September
631 the 5th, after the first Interministerial Committee 2 meeting on this, I had been at a meeting with Tim McCabe 3 and Elizabeth Christie, this legal subgroups meeting, in 4 which we had gone into great detail of assessing the pros 5 and cons of different legal mechanisms and what our 6 chances of success on each one would be. 7 So, I was -- I had that knowledge in my 8 head which Ron wouldn't have had. 9 Q: Okay. And so I take it that the -- 10 the focus of those discussions outside the meeting and 11 the focus of Mr. McCabe and Ms. Christie's comments in 12 the meeting would have been, in essence, that if you move 13 for an injunction ex parte, it usually requires the 14 moving party to meet a higher test? 15 A: Yes, we would have to meet a higher 16 test and we would be unlikely to succeed. 17 Q: And -- 18 A: And it would be counter productive, 19 because it -- if we didn't get the injunction, then we 20 wouldn't have the legal tool that we were looking for, 21 which we knew was the preferred tool of the OPP to remove 22 the occupiers peacefully from the Park. 23 Q: Sure. And also, when -- when you're 24 looking at this issue, you're not -- well, let me put it 25 this way. When you're looking at this issue, you're
641 looking at it from the view of an independent civil 2 servant, right? 3 A: Yes. 4 Q: Right. And obviously, I think it's 5 fair to say that most lawyers when they're giving advice 6 to a client, in government or out, are going to be 7 concerned about recommending a course of action where 8 there is a -- a risk of loss on -- on the law, right? 9 A: Yes. 10 Q: So I take it you -- you didn't want 11 to recommend an ex parte injunction if there was a 12 significant chance you might lose? 13 A: Correct. 14 Q: Right. Okay. And I -- I take it 15 though that it would be -- it would be fair for -- 16 because -- because you were the person who's making a 17 decision on -- on what to do, you're -- you're making the 18 recommendations as the independent civil servant, right? 19 A: Yes, I made the recommendation to my 20 Deputy Minister and my Minister. 21 Q: Right. And I take it though it would 22 be fair that if those responsible for making the decision 23 weighed the risks and decided to accept those risks and 24 proceed ex parte, that would be within their authority to 25 do so, right?
651 A: Yes. 2 Q: And -- and they -- they might have 3 some broader considerations in -- in mind? 4 A: Certainly. Politicians consider 5 political considerations as well as legal considerations. 6 Legal considerations would only be one (1) of the factors 7 that would be weighed by a decision maker. My job as a 8 public servant would be to ensure that the decision maker 9 had all of the information available before him and 10 understood the implications so that, at least, if they're 11 going to take a legal risk, they know what the risks are. 12 Q: Okay. And when Scott Hutchison 13 testified he -- he said that he -- he did not think that 14 on September 6th there was a consensus whether an 15 injunction should be sought ex parte or on notice, this 16 is at the September 6th Interministerial Committee 17 Meeting; is that -- is that fair? 18 A: I felt that the consensus was that it 19 be a regular injunction, not ex parte. 20 Q: Okay. 21 A: And that's what's reflected. Well, 22 that was what was reflected in the minutes. What was 23 then -- the minutes were then changed after we heard that 24 the direction was that we were to seek an ex parte 25 injunction.
661 Q: Okay. Well, I'm going to come back 2 to that. 3 If I could ask you just about another 4 legal point, this is going to the September 5th 5 Interministerial Committee Meeting, the first of those -- 6 those two (2) meetings. 7 In that meeting do you recall there being 8 discussion about whether the Trespass Notice that was 9 discussed at that time had been properly served; whether 10 -- whether technically there had been an adequate service 11 of that Trespass Notice? 12 A: I recall that issue arising, yes. 13 Q: Do you -- did -- did lawyers express 14 concern about that? 15 A: I can't remember who expressed the 16 concerns. 17 Q: Okay. Okay. But I take it though 18 that -- that you -- you became aware on September 5th or 19 6th that there had been attempts to serve a Trespass 20 Notice and the occupiers had refused to accept it? 21 A: Yes. 22 Q: All right. And coming back to the -- 23 the ex parte injunction there -- there was clearly the 24 concern being expressed by the -- the legal people 25 involved about being -- being reluctant to proceed ex
671 parte because of the higher test and the higher risk of 2 loss, right? 3 A: Well, it was -- I guess I -- the 4 impression I got from discussing it with Tim McCabe and 5 Elizabeth Christie was that the chances of succeeding ex 6 parte were very, very small. 7 Q: And from a legal perspective you were 8 also concerned about setting a -- a precedent, right? 9 A: Yes, because if we lost this 10 injunction that would be a negative precedent, and it 11 would make it more difficult, potentially, in the future, 12 if we really needed an ex parte injunction, to get one. 13 Q: Okay. All right. Now, you spoke 14 about your meeting with the Attorney General Charles 15 Harnick. And as I read your evidence, I understood that 16 you were saying that on the basis of that meeting you 17 understood that the direction from the Attorney General 18 was to seek an injunction but not to seek an ex parte 19 injunction. 20 A: Correct. 21 Q: Okay. Do you -- 22 A: That -- that was based on our 23 recommendation. The recommendation from myself and Larry 24 Taman that we should seek a regular injunction and he 25 agreed with that.
681 Q: Well did -- did he -- did he say to 2 you, Do not seek an ex parte injunction? 3 A: Well I can't remember the words that 4 he used but he clearly agreed with us that we should seek 5 an injunction with notice in the regular course. Not an 6 ex parte injunction. 7 Q: Okay. Well there's -- there's some 8 difficulty that I have with that because Mr. Harnick has 9 -- has said elsewhere and I'm -- I'm referring as 10 substance to discovery evidence and undertakings and 11 civil litigations and so on, that he doesn't recall any 12 discussion in -- in this meeting in which he said 13 specifically or in substance, Do not seek an ex parte 14 injunction. 15 And his evidence has previously been, not 16 -- not in this proceeding yet, he's yet to testify, but 17 he has previously said that what he did was authorize the 18 seeking of an injunction as soon as possible. And that 19 he left it to a counsel to determine how to proceed in 20 that regard to obtain an injunction as soon as possible. 21 Whether it was on notice or whether it was 22 ex parte would be up to counsel. Now, is it -- is it 23 your evidence that what he actually said to you in your 24 meeting with him is inconsistent with that, is contrary 25 to that?
691 A: Well what I recall from the briefing 2 is that we recommended seeking -- that we get the 3 authority to seek an injunction in the normal course. In 4 other words with notice but, you know, as quickly as 5 possible, so on an expedited basis. 6 After we presented this recommendation to 7 him, he indicated that he agreed with us. So what -- he 8 may have just used those words, I agree, like I can't 9 recall exactly the words that he used. 10 So, if he -- he may have said that he 11 agreed and not really fully understood that -- 12 appreciated that what we were saying was what we're 13 seeking is authority to proceed with a regular injunction 14 and not an ex parte injunction. 15 But I know that in the briefing I very 16 clearly made the distinction between the two (2) and 17 indicated that this was not a case for an ex parte 18 injunction in the opinion of myself and the other lawyers 19 who were working on it. 20 So to the extent that there's an 21 inconsistency between what he may have said in his 22 examination for discovery and what I said, I still stand 23 by what I said, what I'm saying now. 24 As I indicated earlier we had a very brief 25 time with him, maybe five (5) or ten (10) minutes and
701 when you're a minister receiving, you know, many 2 briefings and many things that for very short periods of 3 time, you may not recall all of the details that you're 4 being briefed on. Especially for events that took place 5 many years ago. 6 Q: Okay. If we could see Exhibit P-536 7 please. 8 A: Do you know what tab that is? 9 Q: Just bear with me for a moment 10 please. I believe these are your handwritten notes of 11 the September 6th meeting. 12 A: Okay. I have the document. Thank 13 you. 14 COMMISSIONER SIDNEY LINDEN: I don't have 15 it yet. Do you have an idea what the tab number is 16 because I still -- 17 MR. PETER DOWNARD: It's Tab 31. 18 MR. DERRY MILLAR: Tab 31. 19 COMMISSIONER SIDNEY LINDEN: Tab 31? 20 That's fine. 21 MR. PETER DOWNARD: I just turned it up 22 this second myself. 23 24 (BRIEF PAUSE) 25
711 CONTINUED BY MR. PETER DOWNARD: 2 Q: If you'd look at your notes of the 3 September 6th meeting and at page 3 at the top. 4 5 (BRIEF PAUSE) 6 7 A: Yes. 8 Q: It's -- there's a reference to Tim, 9 would I take it that would be Tim McCabe? 10 A: Yes. 11 Q: And he says, quote: 12 "Mins. -- 13 A: Ministers. 14 Q: Ministers, yes: 15 "Can say instructions has been given to 16 AG to seek an injunction ASAP." 17 Now, doesn't that make it more likely that 18 the instructions that you got, that you understood what 19 the instruction to the AG were to get an injunction ASAP? 20 A: Well, the very next line on this -- 21 Tim's note is that it says it's not a case for an ex 22 parte injunction. 23 Q: No, that's what -- I said that. 24 A: So I think that there's a clear dis - 25 - like this is maybe a confusion in some people's mind,
721 but I guess to lawyers who work in the area of 2 injunctions, it's fairly clear that you can seek a 3 regular injunction with notice and have an expedited time 4 period for serving the notice, so that would be an 5 injunction as soon as possible. 6 That's quite different from an injunction 7 without notice, which is an ex parte injunction, and it's 8 quite clear from these notes that Tim is saying that it 9 is not a case for an ex parte injunction. 10 Q: I understand that it's clear that Tim 11 is saying that, but what I'm suggesting to you that this 12 note is more consistent in terms of what instructions are 13 coming down from government with the proposition that the 14 instructions were to seek an injunction as soon as 15 possible, rather than the instructions were -- from the 16 Government were not to proceed as soon as possible. 17 Wouldn't you agree this notes more 18 consistent with that? 19 A: I don't really understand your 20 question. I -- I can't really agree with it, since I 21 don't understand it. 22 Q: Well, all I'm suggesting is that this 23 -- this note suggests that the instructions coming down 24 from government are to seek an injunction as soon as 25 possible; that's all this note is saying, I suggest to
731 you, about the instructions coming from government. 2 MR. DERRY MILLAR: Well, I think this is 3 a note of Mr. McCabe saying ministers can say 4 instructions have been given to AG to seek an injunction 5 ASAP. 6 Now, you can ask the witness what she 7 understood that to mean at the time, because these are 8 her notes. 9 MR. PETER DOWNARD: Okay. 10 11 CONTINUED BY MR. PETER DOWNARD: 12 Q: Well -- all right. All right. 13 A: So, my understanding of that was that 14 the ministers would be able to say that the Attorney 15 General has been instructed to seek an injunction as soon 16 as possible; that could be the public communications 17 notice. 18 But, the actual instructions to Counsel 19 are, would be at a much higher degree of -- of detail and 20 that -- that's where you would go into the technical 21 issue of whether it was an injunction with or without 22 notice and it's quite clear that the instructions are 23 that the advice of Tim is that it is not a case for an ex 24 parte injunction, and that's what I communicated to 25 Minister Harnick and he agreed with that at the time that
741 I briefed him on this, on the morning of September 6th. 2 Q: Okay. Well, if you could look at Tab 3 29 of your brief, this is Exhibit P-653, document number 4 1011762, and this is an e-mail that you wrote to Yan 5 Lazor and others on September 6th at 12:54 p.m. right? 6 A: Yes. 7 Q: Okay. And in the first paragraph it 8 says, quote: 9 "MAG [Minister of the Attorney General] 10 staff and I met with Larry Taman this 11 morning and Larry and I briefly met 12 with the minister to discuss the 13 Ipperwash application. [New paragraph] 14 The agreed-upon direction from the 15 minister and deputy, following the 16 discussion with the minister and the 17 Premier was the following: We will 18 apply for a civil injunction ASAP." 19 Now, and I take it -- or pardon me, I 20 recall that what you said last week was that you thought 21 there might have been a discussion with the minister and 22 the Premier during your meeting with Minister Harnick in 23 which he stepped out of the room and may have spoken with 24 the Premier. 25 That's what your evidence was, I believe,
751 right? 2 A: Right. 3 Q: Right. So what you're talking about 4 in these paragraphs are or, pardon me, is your meeting 5 with Attorney General Harnick at which you received 6 instructions about the injunction, right? 7 A: Yes. 8 Q: Right. And I take it you'd agree 9 that your recollection of what the instructions were with 10 any kind of precision would have been better at 12:54 11 p.m. on the day of -- of September 6th than it would be 12 today, right? 13 A: Well, I still have very clear 14 recollection of that. 15 Q: Okay. But I suggest to you that 16 this -- 17 COMMISSIONER SIDNEY LINDEN: Yes. I'm 18 sorry. Ms. Twohig's trying to attract my attention. 19 Yes, Ms. Twohig? 20 MS. KIM TWOHIG: Thank you, Mr. 21 Commissioner. To be fair to the Witness I think she 22 should be permitted to read the part below the heading, 23 The Injunction -- 24 THE WITNESS: Right. 25 MS. KIM TWOHIG: -- which may clarify
761 the issue. 2 THE WITNESS: Now, perhaps I could just 3 speak to this generally. I get -- I have a sense of 4 where -- where you're trying to go and I will try to 5 clarify it because this is an important issues. 6 7 CONTINUED BY MR. PETER DOWNARD: 8 Q: Okay. Well, fine, but if for that 9 purpose you want to take time to review the document as 10 your Counsel suggested by all means do so. 11 A: No, I don't need to review it. 12 Q: Okay. 13 A: As -- I mean it does say later on the 14 same page, The Injunction: 15 "Tim McCabe advised that we do not have 16 grounds for an ex parte injunction." 17 That has -- has been -- was the consistent 18 message that both Tim and Elizabeth were providing to me. 19 The part of this note that summarizes the discussion with 20 Larry and the Minister is just that -- the first three 21 (3) paragraphs. So, you're correct in that it simply 22 says we will apply for a civil injunction ASAP; that does 23 not say that -- a civil injunction -- that is not an ex 24 parte injunction, but you would not need to do that. 25 In -- in other words when you're
771 describing an injunction, if it's a normal injunction you 2 just say it's an injunction. It would only be if it were 3 an ex parte injunction, in other words, an unusual 4 injunction for which you decided that there was no need 5 or no time to give the other party notice, then you would 6 put the words, 'ex parte' in. 7 So, by describing it as I have, to me it's 8 quite clear that when you say we will apply for a civil 9 injunction ASAP that that means a normal injunction with 10 notice but as soon as possible. So, try to get before a 11 judge as soon as possible. 12 Q: But as -- as I understand -- 13 A: It's possible that other -- others 14 who are not as familiar with this, you know, for example, 15 Minister Harnick would not have appreciated the 16 distinction as much as -- as I am. I mean, I'm -- I'm 17 trying to help you out here in terms of what -- but 18 certainly to me it's extremely clear that when you just 19 say something that we will apply for a civil injunction 20 that means an injunction with notice. 21 Q: Okay. And I believe you've already 22 said that you don't recall exactly or in substance what 23 Minister Harnick said to you in that meeting in terms of 24 giving you specific instructions? 25 A: Right. All I recall is that he
781 agreed with our recommendation. 2 Q: Yeah. And I'm -- I'm -- I'm going to 3 suggest to you that his instructions to you were more 4 general than, Do not bring an ex parte injunction; that 5 his instructions to you were to apply for a civil 6 injunction as soon as possible. 7 Do you agree or disagree? 8 A: I -- I can't, sort of, put words in 9 his mouth so all I -- I think I've said what I believe he 10 said to us. 11 Q: Okay. And you'll see there's a 12 reference to Tim McCabe at the bottom of the page? 13 A: Yes? 14 Q: Was Tim McCabe in the meeting with 15 Minister Harnick? 16 A: No, he was not, this -- these 17 paragraphs, as I mentioned earlier, from the -- the 18 bottom two-thirds (2/3's) of this -- of this -- this page 19 are a summary of the discussion at the Interministerial 20 Emergencies Meeting. 21 Q: Thank you. Now... 22 23 (BRIEF PAUSE) 24 25 Q: Just bear with me for a moment, I'm
791 trying to -- 2 COMMISSIONER SIDNEY LINDEN: Sure. 3 MR. PETER DOWNARD: -- make haste slowly. 4 5 (BRIEF PAUSE) 6 7 CONTINUED BY MR. PETER DOWNARD: 8 Q: Okay. Now, as I understand it in the 9 Interministerial Committee Meetings there was some 10 discussion, although the notes indicate pretty limited, 11 about what would happen if an injunction was obtained. 12 And there was discussion in the meetings 13 about bringing a contempt application if the injunction 14 was obtained and there was non-compliance? 15 A: Right. 16 Q: Right. Okay. So, when we talk about 17 this whole process of getting an injunction and about 18 whether the process was aggressive or not, then we do 19 have to consider that what was being discussed at the 20 Interministerial Committee meeting was in the event of 21 non-compliance with the -- the injunction, another court 22 proceeding at which the -- the persons alleged to be in 23 contempt would have an opportunity to defend their 24 position, right? 25 A: That's a separate issue from whether,
801 on the injunction application itself, the parties against 2 whom the injunction is sought, have the opportunity to 3 make their case. 4 Q: No, I understand that that's a 5 separate issue. I under -- but I'm just asking you 6 whether -- when -- when we look at what -- what the 7 intentions were and what the prospects were as to the 8 impact of the injunction that was being discussed, one 9 significant option that was being discussed in the event 10 of non-compliance was simply a further court proceeding? 11 A: Yes. 12 Q: Right. Okay. And I -- I take it 13 that even before we get to a contempt proceeding, you -- 14 you would have been aware that if an injunction is sought 15 ex parte, whether to grant an injunction is in the 16 discretion of the court and the discretion of an 17 independent judge, right? 18 A: Yes. 19 Q: And that a judge in -- if the judge 20 chose to exercise his or her discretion to grant the 21 order, the judge could make that order one of very short 22 duration, right? 23 For example, as the judge did here, right? 24 The judge here made the order, what about four (4) days 25 duration?
811 A: Well, it was a complex order which I 2 believe -- 3 Q: Sure. 4 A: -- didn't take effect for some time-- 5 Q: Right. 6 A: -- basically in order to give the 7 party the time which they should have had in a normal 8 injunction. 9 Q: Okay. Okay. But, I'm just trying to 10 come to my point; we're just talking about it generally. 11 I take it you understood that if an injunction was 12 granted ex parte, it would be up to the court to decide 13 for how long that injunction could -- could be enforced? 14 A: Yes. 15 Q: And that a court could make it 16 enforced for a very short period of time? 17 A: Yes. 18 Q: And I take it you understood that -- 19 and this would have been raised, that the court would be 20 required by law to only grant the injunction for, I 21 believe, a maximum period of ten (10) days at that time. 22 You knew that, right? 23 A: Well, I can't remember what -- if it 24 was ten (10) days or what the exact period was. But I 25 agree --
821 Q: Okay. But, that -- okay. But that 2 was an injunction that would be granted for a short 3 period of time and if it was to be renewed -- 4 A: Hmm hmm. 5 Q: -- if it was granted and the First 6 Nations people were not -- to simply be at liberty to go 7 back into the Park again, there would have to be a 8 further court hearing to -- to renew that injunction, 9 right? 10 A: I -- I believe so. I really -- 11 Q: Okay. 12 A: -- I'd rather not comment on what 13 my -- 14 Q: All right. All right. 15 A: -- understanding of the law as it 16 then was -- is and if in fact the law has changed. So -- 17 Q: But -- but, the law hasn't changed 18 that an ex parte injunction is granted for a short period 19 of time. It has to be renewed on a further hearing. 20 So, I -- I take it you were aware of those 21 things? 22 A: Yes. 23 Q: Okay. And you would have understood 24 that on a renewal hearing there would be an opportunity 25 for -- for the persons affected by the injunction to make
831 their case? 2 A: I can't recall if I had -- we'd 3 thought about that -- got that far ahead. 4 Q: Okay. All right. But, we're -- and 5 were you aware of this notion that when you -- when you 6 move for an ex parte injunction there is a duty of full 7 disclosure, all material facts have to be disclosed to 8 the court by the moving party and then if they don't do 9 that, then an injunction can be -- can be set aside 10 later? 11 A: I believe Tim McCabe or Elizabeth 12 would have mentioned that to me, yes. 13 Q: Okay. And so, on the one -- although 14 ruling for the ex parte injunction on -- on the one hand 15 may be seen as giving the moving party an upper hand, 16 there was some balance there and that -- and that moving 17 ex parte gave the people -- responded to the injunction 18 in -- in due course another basis upon which they could 19 challenge the injunction, right? 20 COMMISSIONER SIDNEY LINDEN: Somebody 21 objecting to that question? Who's going to make the 22 objection? 23 MR. DERRY MILLAR: Perhaps I've lost 24 track of the question but I -- 25 MR. PETER DOWNARD: Sorry, I could argue
841 it but the -- and -- I can argue it. The Witness has 2 said -- the Witness has said that my client was very 3 aggressive and that's one (1) of those words that can be 4 used by all sorts of people to mean all sorts of 5 different things. 6 And I'm trying to focus on exactly what 7 was going on here and that's what that question goes to. 8 But I can argue it; that's fine. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 MR. DERRY MILLAR: I was simply trying to 11 address the question. If My Friend's going to move on, 12 fine. 13 COMMISSIONER SIDNEY LINDEN: He's going 14 to move on, so let's move on. 15 16 CONTINUED BY MR. PETER DOWNARD: 17 Q: Now, you said in your evidence a 18 number of times that as you understood it the information 19 you had regarding the OPP's view was that the OPP wanted 20 to go slowly in getting an injunction, right? 21 A: Not slowly in getting an injunction, 22 just that they wanted to proceed cautiously in terms of 23 dealing with the occupiers. They didn't want to do 24 anything rash or rush in so that their overall approach 25 was cautious.
851 And with respect to the injunction I don't 2 know that they had a specific view because that's a legal 3 issue that -- I mean other than that they wanted to have 4 an injunction because they preferred having a civil 5 injunction and being able to enforce that rather than 6 having to rely on the Criminal Code or other offences 7 against provincial statutes. 8 Q: Did you understand whether the OPP 9 regarded the situation as urgent? 10 A: I didn't -- I got the impression that 11 they did not regard it as urgent. 12 Q: And from whom did you get that 13 impression? 14 A: From Ron Fox. 15 Q: Anybody else? 16 A: I can't -- I can't recall. I may 17 have spoken with probably Scott Patrick, as well. 18 Q: Okay. Did anyone ever tell you -- 19 well -- well, first of all, I -- I believe in a number 20 of points in the Interministerial Committee Meetings 21 there are discussions about the importance of -- or the 22 weight to be given to the view of the operational OPP 23 officers on the ground because they were close to the 24 situation, right? 25 A: Yes.
861 Q: Okay. And was it ever brought to 2 your attention that it was the view of the incident 3 commander on the ground at Ipperwash on September 6th 4 that an injunction should be granted on an urgent basis? 5 MR. WILLIAM HENDERSON: Mr. Commissioner? 6 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 7 Henderson...? 8 MR. WILLIAM HENDERSON: The -- the 9 evidence, Commissioner, of Ms. Jai, as I understand it, 10 is that she has memos and discussions going up to a 11 period sometime before noon on September the 6th. The 12 evidence we have in relation to whether or not the 13 incident commander thought this was urgent was in the 14 course of a subsequent conversation with Ron Fox of which 15 this Witness was not aware. 16 The inference, I think, that some people 17 would argue, and I think it is a matter for argument that 18 should be drawn from this, is that when -- when put to 19 the question and the question was put to Inspector Carson 20 or Deputy Superintendent Carson many times that when 21 pressed to come up with whether or not there was exigent 22 matters he said, Yes, but nobody was aware of this back 23 in Toronto at the same time. 24 In other words when these meetings were 25 going on upon which Ms. Jai is reporting there is no
871 evidence that anybody including the incident commander 2 Inspector Carson as he then was, had said that there were 3 exigent circumstances; that hadn't happened yet. 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. PETER DOWNARD: Well, I was -- I was 6 just going to come to the -- I was going to tell the 7 Witness that at -- at 2:30 p.m. that afternoon and -- and 8 Incident Commander Carson spoke to Tim McCabe and Tim 9 McCabe asked him whether -- if -- if the judge asked 10 Incident Commander Carson who would then be considered as 11 being a -- a viva voce witness -- 12 THE WITNESS: Right. 13 MR. PETER DOWNARD: -- a live witness on 14 the hearing, if the injunction should be granted on an 15 urgent basis, what's his answer to that and -- and 16 Incident Commander Carson said, Yes, absolutely. And 17 then -- and that is -- that's at 2:30 in the afternoon. 18 I was going to get there. 19 And also that -- that afternoon, which is 20 -- in a -- in a conversation with Inspector Fox which -- 21 which is again also that afternoon and it's after the 22 completion of the Interministerial Committee meeting on 23 September 6th and it's after the discussion in the 24 Premier's dining room that we've heard evidence about it 25 and you've probably heard of on that afternoon.
881 Inspector Fox says that Mr. McCabe is 2 asking Inspector Fox, In your opinion can we say with 3 certainty to a court there is a need for an emergent 4 order, and Incident Commander Carson says, Well I think 5 we can. 6 So my -- my question is simply and -- and 7 there may be answers to some of my questions. That 8 usually doesn't constitute grounds for an objection. 9 COMMISSIONER SIDNEY LINDEN: But your 10 question is -- 11 12 CONTINUED BY MR. PETER DOWNARD: 13 Q: My question is, did -- did anyone 14 bring to your attention on September 6th that the 15 Incident Commander was of the view that an injunction 16 should be sought on an urgent basis? 17 A: I don't believe that was necessarily 18 the view of the Incident Commander but I never spoke to 19 the Incident Commander. From what you have told me and 20 what I know from reading the documents, after the 21 direction was received from the Premier to seek an ex 22 parte rather than a normal injunction, lawyers then went 23 about doing that. 24 And they realized that given the time 25 constraints they would have to come up with somebody who
891 could give viva voce evidence to support the injunction 2 application. 3 At that time they asked Ron Fox if there 4 was somebody on the ground who would be able to say that, 5 in fact, the situation was urgent because that's what we 6 needed in order to be able to support an ex parte 7 injunction application. 8 So, when that question was asked, John 9 Carson, from what I've heard, this is third hand, as I 10 said I didn't speak to him, that -- that he then said 11 yes, he would be able to say that there was some urgent 12 situation that would justify an ex parte injunction. 13 That's different when you're told by your 14 political masters that you have to do something, you try 15 to do it. That's different from doing a general 16 assessment of the situation and being told either that it 17 is or is not urgent. 18 The general assessment that we had and the 19 information we received at the Interministerial Committee 20 meeting was that the situation was not urgent. 21 Q: So, are you saying that when John 22 Carson said to Tim McCabe, on the afternoon of September 23 6th, that this was absolutely a case for an urgent 24 injunction, that he was not telling the truth; is that 25 what you're saying?
901 COMMISSIONER SIDNEY LINDEN: I don't 2 think that's what she's saying, Mr. Downward. 3 MR. WILLIAM HENDERSON: Well -- 4 MR. PETER DOWNARD: Well she -- she's -- 5 what she seems to be attributing a motive to him -- 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MR. PETER DOWNARD: -- which is -- which 8 is -- 9 COMMISSIONER SIDNEY LINDEN: But -- 10 MT. PETER DOWNARD: -- which he has no 11 basis to do, she's admitted. 12 COMMISSIONER SIDNEY LINDEN: Well she -- 13 MR. WILLIAM HENDERSON: Mr. Commissioner-- 14 COMMISSIONER SIDNEY LINDEN: -- she 15 answered the question, you asked the question and the way 16 you just put what she said isn't what she said. Yes? 17 MR. WILLIAM HENDERSON: Well, not only 18 that but in relation to the question that was just asked, 19 it was, you know, do you think that another person having 20 a conversation -- 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. WILLIAM HENDERSON: -- to which 23 you're not privy was lying, is clearly improper and of no 24 assistance to you. 25 MR. PETER DOWNARD: Well, that seemed to
911 me to be exactly what the witness was implying. 2 COMMISSIONER SIDNEY LINDEN: Well again, 3 that's for your argument I think. I don't think she said 4 that. 5 MR. PETER DOWNARD: All right. 6 COMMISSIONER SIDNEY LINDEN: But in any 7 event, you can make that argument. 8 9 CONTINUED BY MR. PETER DOWNARD: 10 Q: So I want to get to the bottom of 11 this a little bit more because you -- you said that you 12 weren't sure whether it was Incident Commander Carson's 13 view that this is a situation where an injunction should 14 be sought urgently. 15 MR. DERRY MILLAR: I think -- 16 COMMISSIONER SIDNEY LINDEN: Mr. Downard, 17 I think you have to be precise with respect to time. 18 MR. DERRY MILLAR: I think that My Friend 19 should with -- the problem that's occurring is the -- the 20 question, Incident Commander thought it should be sought 21 on an urgent basis, the Witness has -- has said that it 22 was her understanding that he was asked about urgency and 23 he responded. 24 And if you go to, frankly, the -- the 25 transcript of Mr. McCabe you can see exactly what Mr.
921 McCabe asked of John Carson and what John Carson 2 responded. But it's a little different than I think what 3 My Friend is -- 4 COMMISSIONER SIDNEY LINDEN: Yes. And I 5 think the time of that conversation is also important. 6 The time of the conversation that you're referring to. 7 MR. DERRY MILLAR: Yeah, those 8 conversations took place in the afternoon -- 9 COMMISSIONER SIDNEY LINDEN: In the 10 afternoon. 11 MR. DERRY MILLAR: -- and this witness at 12 the time as I understand it -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. DERRY MILLAR: -- was not party to 15 those conversations. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. PETER DOWNARD: Well what -- what I'm 18 concerned about is that the witness has -- has ventured, 19 it seems to me, well beyond her actual knowledge to try 20 to advance an explanation as to -- as to why Incident 21 Commander Carson's statement to Tim McCabe should not 22 simply be taken at face value and that he did believe it 23 was an urgent situation. 24 COMMISSIONER SIDNEY LINDEN: Well I'm 25 not --
931 Yes, Mr. Henderson...? 2 MR. WILLIAM HENDERSON: With great 3 respect, Commissioner, that was the objection I initially 4 made -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. WILLIAM HENDERSON: -- that he was 7 going beyond the state of knowledge at the time. My 8 Friend pressed on -- 9 COMMISSIONER SIDNEY LINDEN: And asked 10 the question -- 11 MR. WILLIAM HENDERSON: -- he doesn't 12 like the answer -- 13 COMMISSIONER SIDNEY LINDEN: -- the 14 answer came. 15 MR. WILLIAM HENDERSON: -- and you can't 16 have it both ways. 17 COMMISSIONER SIDNEY LINDEN: It's an 18 answer that you may not have wanted but it's an answer. 19 I don't know if you want -- 20 MR. PETER DOWNARD: Well -- well to be 21 fair, the witness has gone into saying things like, Well 22 there's direction from political masters. 23 COMMISSIONER SIDNEY LINDEN: Yes. I 24 heard the answer. 25 MR. PETER DOWNARD: All right. Well I
941 think it's fair, for example, when I ask this witness 2 what specific evidence does she have or what information 3 specifically does she have to -- to suggest that when 4 Incident Commander Carson made this statement to Mr. 5 McCabe, he was acting at the behest of political masters. 6 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 7 Millar...? 8 MR. DERRY MILLAR: I don't think she said 9 that. She -- her evidence is that the direction from 10 their political masters was to get an ex parte 11 injunction. COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. DERRY MILLAR: There's absolutely no 13 question, I don't think, that that was what she said and 14 what she understood from -- as a result of the 15 instructions received after the dining room meeting. 16 And then -- and that's what she said. And 17 -- but she did not say that John Carson responded because 18 of directions from the -- his political masters; that was 19 not part of her answer. 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. PETER DOWNARD: Well I took the -- 22 the reference to, 'political masters' having a bit of 23 nuance and maybe I can just clarify it and move on. 24 25 CONTINUED BY MR. PETER DOWNARD:
951 Q: Are -- are you suggesting that when - 2 - when Incident Commander Carson told Mr. McCabe that he 3 thought this was an urgent situation, that he was saying 4 that because he had direction from "political masters" to 5 do that? 6 A: No. 7 Q: Thank you very much. That clarifies 8 it. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MR. PETER DOWNARD: 14 Q: I would like to step back a bit to 15 the beginning of August and the information that you're 16 getting at the outset about the situation there. 17 And I take it that in early August you -- 18 you became aware that the local Kettle Point Band had 19 held a community forum and that -- and this is just in 20 the wake of the takeover of the built-up area, and that 21 an invitation had been extended to the occupiers to come 22 to that community forum but they didn't do so. 23 A: Correct. 24 Q: Right. And did that cause you some 25 concern at the time?
961 A: I can't remember what I felt at the 2 time. 3 Q: Okay. Did you take that as an 4 indication that the -- the Stoney Point group did not 5 want to participate in a forum in which their opinions 6 could be heard on a louder basis or a broader basis? 7 A: I don't think I read any such 8 implication into it. 9 Q: Okay. 10 A: There could have been any number of 11 reasons why they didn't attend that meeting. 12 Q: Oh, I understand. I'm just asking 13 you -- 14 A: Hmm hmm. 15 Q: -- what your recollection is. 16 A: Right. 17 Q: Now, you were aware, in early August, 18 that Ovide Mercredi had offered to mediate the -- the 19 situation at the Army Camp, right? 20 A: I had heard that. 21 Q: I see. And did you follow up on -- 22 on that? 23 A: I did not because the Army Camp 24 occupation was a federal matter. 25 Q: I see. Did you -- did you -- well
971 you were -- you were interested, though, as -- as a 2 result of your obligations and your duties regarding the 3 -- the Park? 4 You were interested to know what was going 5 on with respect to the situation in the Army Camp, right? 6 A: Yes, I did have regular phone calls 7 with colleagues at INAC about the Army Camp situation. 8 Q: Okay. So it would have been of 9 interest to you to know what, if any, progress was being 10 made with respect to an effort to -- to mediate issues in 11 the Army Camp and -- and achieve a more settled situation 12 there, wouldn't it? 13 A: That would have been of general 14 interest. I would have relied on whatever it was my 15 federal colleagues told me. 16 Q: Okay. Well, so did -- did you ask 17 your federal colleagues about what happened with this 18 possible mediation with Ovide Mercredi? 19 A: I can't recall. 20 Q: Okay. Did it come to your attention 21 that -- that there were press reports that indicated that 22 that mediation was in -- in August was not going to 23 proceed? 24 A: I know that the mediation didn't 25 proceed. I don't remember if I -- if I knew that because
981 of press reports or from -- 2 Q: Okay. 3 A: -- what sources I -- I can't recall. 4 Q: Did -- did you know that at the time 5 or have you learned that since? 6 A: I think I knew it at the time. 7 Q: And now, we -- we don't know exactly 8 why that -- that didn't proceed, but I -- I take it that 9 you would agree with me that certainly at that time, and 10 I'm not suggesting the contrary today, that Ovide 11 Mercredi was a very widely respected First Nations leader 12 in Canada? 13 A: Yes. 14 Q: All right. And -- 15 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 16 Henderson...? 17 MR. WILLIAM HENDERSON: Commissioner, I - 18 - I don't -- when you expressed this morning some 19 interest in advancing the proceedings we had Mr. Mercredi 20 here. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. WILLIAM HENDERSON: We had everybody 23 who was occupying the Camp or almost everybody who was 24 occupying the Camp. I don't know what Ms. Jai could 25 possibly contribute to any discussion that's already been
991 made. 2 COMMISSIONER SIDNEY LINDEN: Well -- 3 MR. WILLIAM HENDERSON: She had not 4 contact with Mr. Mercredi. 5 COMMISSIONER SIDNEY LINDEN: He just -- 6 MR. WILLIAM HENDERSON: This was in -- 7 this was in August, the Park was not occupied. There -- 8 My Friend may well have some relevant line of questioning 9 or some purpose in asking this, but frankly it's not 10 obvious. 11 COMMISSIONER SIDNEY LINDEN: I think he's 12 moving on. 13 MR. PETER DOWNARD: I'm done. 14 COMMISSIONER SIDNEY LINDEN: I thought 15 you were done so I just suggest you move on. 16 17 CONTINUED BY MR. PETER DOWNARD: 18 Q: Now, in early August you were also 19 aware that an individual named Bob Antone from Oneida had 20 been involved in the situation at the -- at the Army 21 Camp, right? 22 A: I can't recall if I was aware that he 23 was involved at the Army Camp. I know his name came up, 24 but I don't recall in what context. 25 Q: Okay. Do you recall ever taking any
1001 steps to find out more about what involvement he may have 2 had? 3 A: I don't recall. 4 Q: Okay. And I don't intend to go to 5 the document right now, but there's -- and it's -- as I 6 understand it it's not a note of the Interministerial 7 Committee Meeting, but you were familiar with an 8 individual named Don Elliott or Dan Elliott from the MNR, 9 right? 10 A: Yes. 11 Q: And there's a document that indicates 12 that Mr. Elliott contacted Elizabeth Stevens (phonetic); 13 at the time her name was Elizabeth Thunder, the Band 14 Administrator at Kettle Point on September 6th and made 15 inquiries of Kettle Point about whether people associated 16 with the -- the Council or -- or elders had information 17 about a burial ground in Ipperwash Provincial Park. 18 Do you recall being informed of that on -- 19 on September 6th; were you aware? 20 A: I can't -- I can't recall. 21 Q: Okay. Thank you. All right. 22 23 (BRIEF PAUSE) 24 25 Q: Okay. Now, with respect to the --
1011 the subject of not having a -- an ONAS person go to the - 2 - the scene of the occupation on September 5th and 6th, 3 would you agree with me that -- well, sorry. 4 I suggest to you a concern was raised in 5 the -- the Interministerial Committee Meetings that if 6 that was done, that could be seen as conferring 7 legitimacy on the occupying group and that that would be 8 contrary for the wishes of the local formal Indian Act 9 Band and Chief Bressette? 10 A: Well, I recall it also be contrary to 11 the wishes of the Government that the view certainly 12 expressed by Deb Hutton was that the Premier didn't want 13 this viewed as a native rights issue and that sending 14 someone from ONAS to negotiate with the Stoney Pointers 15 would be, in a sense, giving them legitimacy or bringing 16 it in to the context of being some sort of native rights 17 or Aboriginal rights issue and that the Government did 18 not want that. 19 Q: No, I heard all of your evidence in 20 that regard, but that isn't the question I asked you. 21 The question I asked you is whether there was -- there 22 was a concern raised in the meetings, and I'll go at it 23 again. 24 Was there a concern raised in the meetings 25 that it would be inappropriate to send an ONAS person to
1021 the Park to open up discussions, because that might be 2 objected to by the local Indian Act Band as conferring 3 legitimacy on the Stoney Point group? 4 A: I believe that that was a factor that 5 was also -- that was taken into account; it came up at 6 the meetings, yes. 7 8 (BRIEF PAUSE) 9 10 Q: Just bear with me for a moment, 11 please. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 14 (BRIEF PAUSE) 15 16 CONTINUED BY MR. PETER DOWNARD: 17 Q: Okay. Now, you said, I believe 18 several times, toward the end of your evidence last day, 19 that -- or that the occupation of the -- the Park was a 20 peaceful occupation, to use your words, right? That 21 that's how -- 22 A: Yes. 23 Q: -- you perceived it, right? 24 A: Yes. 25 Q: Okay. But now I take it that when
1031 you first became involved in the situation, at the time 2 of the take over of the built-up area of the Army Camp at 3 the end of July, you became aware that at least some 4 people in the Stoney Point group engaged in that take 5 over, had engaged in -- in violence? 6 A: You're talking about the take over of 7 the Army Camp? 8 Q: Of the built-up area of the Army Camp 9 at the end of August -- pardon me, at the end of July, 10 1995? 11 A: I know there were some minor 12 incidents. I can't remember the details now. 13 Q: Okay. Okay. Well, let's go to the 14 minutes of the August 2nd meeting. 15 COMMISSIONER SIDNEY LINDEN: Mr. Downard, 16 we were going to adjourn for lunch around one o'clock. 17 It's one o'clock now, we -- 18 MR. PETER DOWNARD: Oh, that's fine, 19 that's fine. 20 COMMISSIONER SIDNEY LINDEN: Would this 21 be a good time for us to adjourn for lunch? 22 MR. PETER DOWNARD: That's just fine. 23 COMMISSIONER SIDNEY LINDEN: Are you all 24 right Ms. -- 25 THE WITNESS: Yeah.
1041 COMMISSIONER SIDNEY LINDEN: We'll 2 adjourn for lunch now. 3 THE REGISTRAR: This Inquiry stands 4 adjourned until 2:15. 5 6 --- Upon recessing at 1:01 p.m. 7 --- Upon resuming at 2:17 p.m. 8 9 THE REGISTRAR: This Inquiry is now 10 resumed, please be seated. 11 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 12 Downard...? 13 14 CONTINUED BY MR. PETER DOWNARD: 15 Q: Ms. Jai, before we broke I started to 16 ask you about information that you received early in 17 August, or late July of 1995, regarding events in 18 connection with the takeover of the built-up area at the 19 Army Camp and I'd suggested to you that there had been 20 some incidents of violence and I -- I believe you 21 suggested to me that you have a recollection of being 22 aware of some minor incidents; is that fair? 23 A: Yes. 24 Q: And in particular though if we look 25 at the -- the minutes of the August 2nd Interministerial
1051 Committee Meeting which is at Tab 13 Exhibit P-504 2 Document number 1012232. 3 4 (BRIEF PAUSE) 5 6 Q: Oh, I beg your pardon, that's the 7 agenda material. I mean to refer to Tab 16, Exhibit 8 506, Document number 1012231 which contains the meeting 9 notes. 10 And I just want to refer you to the top of 11 the page numbered '3' in -- in type under the heading, 12 Update from the Solicitor General? 13 A: Yes. 14 Q: Okay. And in particular the -- the 15 first paragraph under the heading which reads, quote: 16 "On July 29, 1995 members of the Stoney 17 Point Group drove a bus through the 18 Military Base's gate and the Drill 19 Hall's doors. The driver of the bus 20 proceeded to back up and hit a Military 21 jeep which he dragged for approximately 22 forty (40) feet. The Military Police 23 occupying the Base suffered minimal 24 injuries. An altercation ensued in 25 which the Military Police used pepper
1061 spray on the bus driver." 2 So, I -- I take it it's clear that that's 3 all information that you had as -- at August 2nd? 4 A: Yes. 5 Q: And so I take it you understood that 6 on the basis of this information that at least there were 7 some members of the group of people who had taken over 8 the built-up area who were quite capable and had used 9 force to damage property in connection with that 10 takeover, right? 11 A: Yes. They had used the bus to break- 12 in through the gates. 13 Q: And -- and they'd driven the bus 14 through drill hall doors, right? 15 A: Yes. 16 Q: And they'd dragged a jeep forty (40) 17 feet? 18 A: Yes. 19 Q: And I take it you understood from 20 this information that the persons who had engaged in that 21 conduct were prepared to put the safety of persons at 22 risk, as well as, simply, committing acts of force 23 regarding property? 24 A: I don't think that I made any 25 inference at the time. I -- they used the force that was
1071 required to break into the Army Base. 2 Q: Right. But, then they dragged a 3 military jeep approximately forty (40) feet? 4 A: There was no one in the jeep. It was 5 unoccupied. 6 Q: I see. That -- that was your 7 understanding? 8 A: That was my understanding. 9 Q: I see. And did you not -- did you 10 not appreciate it or to that at the time that this act of 11 -- these acts of -- of driving through the Base's gate, 12 driving through the drill hall doors, dragging a military 13 jeep could have put the personal safety of persons at 14 risk? 15 A: Yes. 16 Q: Okay. And when we move up to the 17 information you're getting on September 5th and 6th, I 18 wanted to refer you to Elizabeth Christie's notes of the 19 September 5th Interministerial Committee meeting which 20 are Exhibit P-637. A copy of them is at 1012562. 21 A: Is that at a particular tab in the 22 material -- the binder that you provided? 23 Q: I'm -- I'm not sure that that is in 24 your binder. 25 A: Oh, what was it? Exhibit P-528?
1081 Q: I have it as Exhibit -- I think 2 they're in Exhibit P-528 but -- 3 A: Okay. 4 Q: -- they're also Exhibit P-637. 5 A: Thank you. Thanks. It's been 6 provided to me, thank you. 7 Q: Okay. Now, when Ms. Christie 8 testified as I take it she'll confirm that these are 9 notes she took of the meeting of the Interministerial 10 Committee on September 5th. 11 And if you look at the second page of the 12 notes, there's a sideways two (2), it seems, with a 13 circle in the upper lefthand corner, you'll see there's a 14 note at the bottom -- towards the bottom of the page it 15 starts with the words, "At 9:30". Do you see that? 16 A: I'm -- I'm afraid I don't and the 17 document I have in front of me which is Document 11797 or 18 sorry, that's from another -- oh, okay. Anyways it's 19 Exhibit P-637? 20 Q: That's -- that's what I had but -- 21 A: It's dated September 6th? 22 Q: No. It's September 5th. 23 A: Because on the one I have says 24 September 6th at the top. 25
1091 (BRIEF PAUSE) 2 3 Q: I'm -- I'm told by your Counsel, very 4 helpfully, that these notes are at Tab 20 of a binder 5 that she provided to you. 6 A: Okay. 7 Q: And the note is up on the screen. 8 A: Okay. So -- okay, on page 2, yes. 9 Q: Yes. Towards the bottom of the page 10 you'll see there's -- oh, I beg your pardon, I -- I had 11 it wrong. It's Exhibit P-642. 12 A: Okay. 13 Q: And towards the bottom of the page is 14 the writing, "At 9:30". Do you see that? 15 A: Yes, I do. 16 Q: Okay and that states and I quote: 17 "At 9:30 MNR and OPP were told to leave 18 the Park. One (1) back window of an 19 OPP cruiser broken." Unquote. 20 Now, do you recall receiving information 21 on September 5th that on the evening of September 4th 22 there had been OPP officers in the Park and that they had 23 left the Park after one of the occupiers told them to 24 leave the Park and also smashed a window of an OPP 25 cruiser?
1101 A: I recall that there -- that there 2 were OPP people who were told to leave the Park and that 3 they did leave the Park. I can't recall this incident 4 about the alleged smashing of the window and I hadn't 5 made a note of it myself. But there are a number of 6 notes -- reports from MNR, various things, and I didn't 7 take notes of all of it. 8 Some of the things that MNR field 9 personnel reported were -- Ron Fox said that he would 10 verify, because it sort of seemed odd that MNR was 11 reporting on OPP things, and some of those things turned 12 out later not to be accurate. 13 Q: Okay. Well, I can tell you, we -- 14 we've heard evidence from numerous people in the course 15 of this Inquiry, including the key occupiers involved in 16 the incident I've been describing to you, that in fact on 17 the night of September 4th, one of the occupiers demanded 18 that OPP in the Park leave the Park and then when they 19 didn't move quickly enough, he smashed a window out of a 20 cruiser. 21 A: Hmm hmm. 22 Q: And I take it you'd agree that that's 23 not conduct that's consistent with a peaceful occupation, 24 right? 25 A: Right.
1111 Q: And -- okay, but you just don't 2 recall now whether you had this information on September 3 5th that, and now I'm going back -- 4 A: Hmm hmm. 5 Q: -- to the note, that an OPP window 6 was smashed on the night of the 4th? 7 A: I don't recall, because I didn't make 8 a note of it myself at the time. 9 Q: All right. And if I can refer you to 10 the notes of Eileen Hipfner which -- and I hope I have it 11 right, it's Exhibit P-636, Document number 1011784. 12 13 (BRIEF PAUSE) 14 15 A: Was that 1011724? 16 Q: 1011784. 17 A: Oh. 18 Q: That's what I have. Okay, apparently 19 it's your Tab 15. 20 COMMISSIONER SIDNEY LINDEN: I'm sorry, 21 what Tab number was that again? 22 MR. DERRY MILLAR: It's a different -- 23 COMMISSIONER SIDNEY LINDEN: No, it's not 24 our Tab. It's a different binder. That's fine. 25 Is it in our Tab, Mr. Millar? No, okay.
1121 MR. PETER DOWNARD: Yes, she -- Ms. Jai's 2 Counsel made a separate book. 3 COMMISSIONER SIDNEY LINDEN: I 4 understand. 5 MR. PETER DOWNARD: Okay, now -- 6 THE WITNESS: Okay. Are these the notes 7 of September the 6th? 8 9 CONTINUED BY MR. PETER DOWNARD: 10 Q: Yes, they are notes of September 6th. 11 A: Okay. I have those. 12 Q: Just bear with me for a moment, 13 please. 14 15 (BRIEF PAUSE) 16 17 Q: Yeah. Yes, Exhibit P-636 and if you 18 can look at the second page, you'll see there's a 19 reference to comments by Peter Sturdy at the bottom of 20 the page? 21 A: Yes. 22 Q: And as I say, I expect that Ms. 23 Hipfner will confirm that these are her notes taken at 24 the meeting of September 6th when she testifies shortly, 25 and you'll see there's a note here attributing to Peter
1131 Sturdy the following, quote: 2 "Heavy equipment work being done, 3 apparently, in the Park. Park buildings 4 have been broken into." 5 And then down at the bottom of this 6 section under his name: 7 "Somebody heard automatic gunfire." 8 Now, I take it that that's all information 9 that you had and was provided to you at the September 6th 10 meeting? 11 A: Yes. 12 Q: Okay. And I'd take it you'd agree 13 that all of that conduct is not consistent with a 14 peaceful occupation, right? 15 A: Yes. There was some question, 16 because the earlier note, like what we had heard from Ron 17 Fox, was that they did not have firearms; that there was 18 some sort of flare that had been used. 19 So, there were conflicting reports being 20 received. 21 Q: Okay. And I -- I take it you also 22 received some information that -- that -- or rocks had 23 been thrown at OPP vehicles? 24 A: Yes. 25 Q: And obviously that's not consistent
1141 with a peaceful occupation, right? 2 A: Right. 3 Q: Okay. 4 5 (BRIEF PAUSE) 6 7 Q: Okay. Now, I've heard your evidence 8 about how the motion for an injunction being made on 9 notice rather than ex parte could have served to 10 stimulate dialogue with the occupiers? 11 A: Yes. 12 Q: Now, looking at -- at your notes of 13 September 5th and 6th Interministerial Committee 14 Meetings, is there anything in your notes that shows that 15 being discussed as a rationale for proceeding with an 16 injunction on notice rather than an ex parte injunction? 17 A: I don't think there is. I mean I 18 don't -- I -- I -- from my recollection of my notes I 19 don't think that that is mentioned in my notes. 20 Q: And on the basis of -- of my review 21 of -- of the material, it appeared to me that the primary 22 reason discussed at the Interministerial Committee 23 Meetings for not proceeding ex parte was the risk of 24 being unsuccessful on the application; is that a fair 25 characterization?
1151 A: Yes. 2 Q: And at the September 6th 3 Interministerial Committee Meeting the consensus was 4 certainly on -- on your evidence to proceed to obtain an 5 injunction as soon as possible? 6 A: Yes. 7 Q: With the best case of being in court 8 on Friday? 9 A: Correct. 10 Q: Which is two (2) days later? 11 A: Two (2) days later because the 12 meeting was on a Wednesday. 13 Q: Yes, thanks. Now, there is one (1) 14 thing I wanted to bring to your attention. I'm not doing 15 it in a -- in a critical way, but in a document that I - 16 - I don't believe is yet an exhibit, there was an 17 undertaking letter in the civil litigation arising from 18 this matter. 19 It's Commission Document 3000836 and it's 20 an undertaking letter which is from Ontario Crown Civil 21 Counsel to parties in the litigation which reports on an 22 inquiry of Tim McCabe on the -- the question of an ex 23 parte injunction. 24 And what he -- he says -- I propose just 25 to -- to read it to you; it's quite -- it's quite short
1161 and I'm going to read it in its entirety. 2 A: Okay. 3 Q: The letter says that Mr. McCabe 4 advises, and I quote: 5 "He does not recall receiving any 6 instructions, directions or 7 authorization from Mr. Harnick, Mr. 8 Moran or Mr. Taman. It was the 9 consensus of the Interministerial 10 Committee as a whole that he bring the 11 injunction motion the next day. He 12 does not recall receiving any specific 13 instruction as to the extent or nature 14 of the notice to be given although it 15 is possible that he did." 16 And that's -- that's the end of it and I-- 17 A: Hmm hmm. 18 Q: -- and I note he's -- he's saying, 19 well, there may have been something that I don't recall 20 right now. But he does say that it was the consensus of 21 the Interministerial Committee as a whole that he bring 22 the injunction motion the next day which I think we can 23 reasonably take to be September 7th. 24 Now, assuming that he comes to the Inquiry 25 and -- and gives that evidence and he -- he might decide
1171 that was incorrect, but assuming that he comes to the 2 Inquiry and gives that evidence does -- does that have 3 any affect on your recollection or on your evidence on 4 the point? 5 A: No, it does not. 6 Q: Okay. And I want to turn to another 7 subject. As I understand it, Debbie Hutton, who was an 8 executive assistant to the Premier at -- at the time, 9 made clear in the Interministerial Committee meetings 10 that she would like Chief Bressette to support the 11 Government. 12 Now, she -- my information is that she 13 also said that she -- she wanted this to be done 14 independently and at the same time she said that -- that 15 -- that she did not want to go into land claims. 16 But as I understand it, she said at these 17 meetings that -- that she wanted Chief Bressette to 18 support the Government. Is that your recollection as 19 well? 20 A: I can only go by what is in my notes 21 which I described -- went through in the direct 22 examination. 23 Q: Okay. Well unfortunate -- I don't 24 recall at the moment whether this point was specifically 25 spoken to and I believe it is in your notes. So just
1181 bear with me for a second. 2 3 (BRIEF PAUSE) 4 5 Q: Yes, it's at the -- the page number 2 6 for the notes of September 6th; these are your notes. 7 A: Yes. 8 Q: Do you have those handy? 9 A: Yes, at the top of the page: 10 "Premier's office --" 11 Q: Yes. 12 A: "-- would like the Chief to support 13 us, but do this independently. Doesn't 14 want to go into land claims." 15 Q: Right. So you understood that the 16 Government wanted the support of the First Nation in this 17 matter? 18 A: Yes, yeah. 19 Q: Thank you. Now, onto another subject 20 very briefly. Mr. Millar asked you about the multiple 21 hearsay allegation that has floated around, that has been 22 spoken to in this Inquiry, about the Premier having said: 23 "Get the [expletive deleted] Indians 24 out of the Park and use guns if you 25 have to."
1191 And you spoke to that, and I don't intend 2 to till that ground again, but just by way of a brief 3 supplementary, did anyone ask you, around September 5 or 4 6 or in the days immediately following September 5 and 6 5 in 1995, about that comment? 6 A: I don't think so. 7 Q: And I wanted to ask you briefly about 8 your evidence about your conversation with Hubert Ryan of 9 Indian Affairs in Ottawa, how shortly after the tragic 10 events at the Park he called to say that they had found 11 documents that when the park had been established in 12 1937, there was a burial site there. 13 A: Yes. 14 Q: Yes. And did he say how long it took 15 them to find those 1937 documents? 16 A: Well he indicated that they had just 17 kind of come across them by chance; that they were in 18 some archival material or something. He didn't say how 19 long it had taken them. 20 Q: All right. Didn't it strike you as 21 being an extraordinary coincidence that he would have, by 22 chance, found these 1937 documents? 23 A: Well perhaps by chance is too strong 24 a way of describing it. I think he had been going 25 through information relating to Ipperwash because of the
1201 occupation, both of the Army Base and the Park. 2 Q: Okay. 3 A: But it wasn't like there was a file 4 called "Alleged Burial Ground" that he could look under, 5 but he was going through boxes of documents and he found 6 this. 7 Q: Okay. 8 9 (BRIEF PAUSE) 10 11 Q: Okay, all right. 12 13 (BRIEF PAUSE) 14 15 Q: And just coming back to the 16 injunction for a minute. I -- I take it you understood 17 that there was quite a bit of unrest in the non Native 18 community in the Ipperwash area in connection with the 19 occupation of the Park; is that fair? 20 A: Yes. 21 Q: And you understood that the local 22 municipality had issued a press release. I believe it 23 was headed, Rein of Terror. 24 A: I can't remember the name of the 25 press release but I was aware that the local municipality
1211 was very concerned. 2 Q: Okay. And was it your understanding 3 at the time that -- that one reason that would favour 4 seeking an injunction as soon as possible would be to try 5 to prevent further unrest among the non Native community 6 in the area and it's possible consequences? 7 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 8 Twohig...? 9 OBJ MS. KIM TWOHIG: I would like to object to 10 that question in that the witness is being asked to 11 speculate on the reasons why someone might have wanted to 12 seek the injunction. 13 MR. PETER DOWNARD: No. No, this is a 14 witness who supported getting an injunction as -- as soon 15 as possible and I'm just asking what her understanding 16 was at the time for the reasons that supported that, in 17 her mind at the time. If she -- if that was not a factor 18 it wasn't a factor. 19 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 20 Twohig...? 21 MS. KIM TWOHIG: Well she was -- she 22 testified that she was given instructions regarding the 23 injunction and as I understand My Friend's question, 24 she's being asked what might have motivated those 25 instructions. And I don't think she can answer that.
1221 COMMISSIONER SIDNEY LINDEN: Well he says 2 that's not what he's trying to do. So maybe the question 3 isn't as clear as it might be. 4 5 CONTINUED BY MR. PETER DOWNARD: 6 Q: On September 6th, 1995 did you 7 understand that it was desirable to get an injunction in 8 order to prevent further unrest in the non Native 9 community in the Ipperwash area? 10 A: The reasons that we gave to Minister 11 Harnick for seeking the injunction were because that was 12 considered the most effective way of allowing the OPP to 13 peacefully remove the Natives from the Park. 14 So that was what we were focussing on. 15 Obviously, if the Aboriginal people were removed from the 16 Park then that would help calm down the non Aboriginal 17 population. 18 Q: And was that a factor in your mind at 19 the time? 20 A: Well since everybody -- all of these 21 factors pointed to the desirability of finding some way 22 of removing the occupiers from the Park. 23 Q: Okay. And -- 24 A: But that wasn't a factor in terms of 25 whether we would go ex parte or seek a regular injunction
1231 or -- and it wasn't a factor that I raised in briefing 2 Minister Harnick. 3 Q: Okay. Okay. But it -- it was one of 4 the factors that had been in play under discussion of the 5 Interministerial Committee meetings? 6 A: The concerns of the residents was -- 7 were certainly -- that came up at the meetings, yes. 8 Q: And -- and also the concerns and 9 possible conflicts with the local Native community and -- 10 and the formal Indian Act Band, fair? As -- as favouring 11 moving to get an injunction. 12 A: Actually I don't think was a factor. 13 Q: Okay. That's fine, thank you. Now, 14 as I understood your evidence last week, you were 15 commenting on -- on some notes of Interministerial 16 Committee meetings and you said that Jeff Bangs, the 17 Minister of Natural Resources EA, had said and I quote: 18 "We haven't dealt with the SPR yet and 19 so we don't have the larger framework." 20 The SPR being the Statement of Political 21 Relations with First Nations people. 22 A: Yes. 23 Q: And -- and you said that the new 24 government didn't really have a framework as to how it's 25 going to deal with Aboriginal people, right?
1241 A: Right. Other than things that they 2 had said, you know, their stated policy, No special 3 treatment. 4 Q: Well okay -- but I take it it was 5 your understanding that the new government had not yet 6 worked out a larger more comprehensive policy with 7 respect to Aboriginal people? 8 A: Right. 9 Q: Okay. And when you say -- and 10 obviously you -- you did say in your evidence that when 11 the new government came in it had a very clear policy 12 that Aboriginal people do not get any special rights. 13 Now, have -- have you come to that view on 14 the basis of any particular documents that you've 15 reviewed for the purpose of your evidence? 16 A: No, that was -- that's my distinct 17 recollection from the time. 18 Q: Okay. All right. And that's the 19 recollection you associated with your -- your government 20 briefings? 21 A: Well, I think it was also public 22 knowledge at the time. It was part of the campaign that 23 the Government ran on before they were elected so it was 24 common knowledge. And then I also had these briefings in 25 which it was told to me quite explicitly that that was
1251 the Government's policy, that it was consistent with what 2 they had campaigned on. 3 Q: Okay. And do you have any -- I take 4 it you don't or else we would have seen them -- any -- 5 any notes of your attendance at a briefing of premier's 6 office staff regarding First Nation's issues? 7 A: We haven't -- I don't know if there 8 are any handwritten notes. What we do have is the slides 9 that I went through in my examination-in-chief. It's 10 possible that there are handwritten notes as well and 11 that those haven't been located. 12 Q: I see. And I take it you also 13 haven't located or been provided with any memorandum of - 14 - describing the particular events and particular 15 statements that were made at any briefing of the 16 Premier's office staff regarding First Nation's issues? 17 A: I don't have -- we don't have those 18 documents in front of us. 19 Q: And -- and to your knowledge there 20 aren't any such documents, right? You -- you don't know 21 of the existence of any? 22 A: I don't know. I -- it's -- knowing 23 my penchant for taking notes at the time I suspect I 24 would have had notes but, in any event, they haven't been 25 -- we haven't located those notes and I don't know how
1261 specifically we -- those notes were looked for or how -- 2 how actively in, you know, a search was requested for 3 those notes. 4 Q: Okay. But to -- to come to the 5 point, when you talk about what was said in any of these 6 briefings of Premier's office staff, you're relying on 7 your general recollection? 8 A: Yes. 9 Q: Unaided recollection? 10 A: Yes. 11 Q: All right. 12 A: Well, aided only by the slides 13 themselves which are what I used as the briefing 14 material. 15 Q: All right. And what you recall 16 receiving was a -- a message that was consistent with the 17 -- the Conservative campaign in the months prior to the 18 1995 election, right? 19 A: Well what I was told was that the 20 position of the Government is that Aboriginal people do 21 not have any special rights. 22 Q: Okay. Well, I want to show you a 23 document which is in Exhibit 528, Tab 5. Actually we'll 24 make it Tab 6. Now -- 25 A: So I don't have this document in
1271 front of me, but I'm hoping someone will supply me with 2 it. 3 Q: All right. 4 A: Thank you. 5 Q: Okay. All right. And -- and just -- 6 actually before I -- I ask you about this document I -- 7 as I understand your -- your evidence, your recollection 8 is is that you were told at a Premier's office briefing 9 that as far as the Premier's office and the Government 10 was concerned, quote: 11 "We don't care," unquote, about special 12 legal rights for First Nations people, right? 13 A: Yes. 14 Q: Okay. Well, I also understand your 15 evidence to be that there were two (2) briefings, right? 16 A: Yes. 17 Q: And that the second briefing came 18 about because Debbie Hutton and also Guy Giorno who was 19 on the Premier's staff at the time requested a second 20 briefing, right? 21 A: Yes. 22 Q: All right. And I take it that -- 23 that you would have understood on the basis of a second 24 request being made, that Ms. Hutton and Mr. Giorno were 25 concerned to know what the legal position was with
1281 respect to First Nations people? 2 A: Yes. 3 Q: That it was not something they did 4 not care about, right; is that fair? 5 A: They wanted to understand, yes. 6 Q: All right. And in -- in your 7 evidence you said that after you said at a Premier's 8 office briefing, that Aboriginal people have special 9 rights protected by Section 35 of the Constitution, you 10 were met with the response, quote: 11 "We don't care." Unquote. 12 Right? Is that -- is that your 13 recollection of what happened? 14 A: Yes, more or less. It was that our 15 position is that there are no special rights. 16 Q: All right. Well, but were you 17 specifically told by someone in that briefing that the 18 staff in the Premier's office didn't care about Section 19 35 of the Constitution? 20 A: Well it was in response to my 21 briefing on Section 35 that the comment was, We don't 22 care, our position is Aboriginal people have no special 23 rights. 24 Q: And -- all right. And you understood 25 that Guy Giorno was a lawyer at the time?
1291 A: I probably knew that at the time. 2 Q: Is it your evidence that Guy Giorno 3 said that to you? 4 A: No, as I said, I testified earlier I 5 can't remember who made that comment? 6 Q: You don't know who said it? All 7 right. Would you agree that a Conservative Party document 8 from around this time, stating the party's position on 9 Aboriginal legal issues, would be a more reliable guide 10 to the official policy of that government than your 11 unaided recollection today? 12 MR. DERRY MILLAR: Well I don't know how 13 she can answer that question. She can't answer that 14 question. 15 MR. PETER DOWNARD: Okay. 16 17 CONTINUED BY MR. PETER DOWNARD: 18 Q: Would -- all right, that's fine, 19 that's fine. Let's go to the document, the Tab 6 of the 20 -- the book. 21 MR. DERRY MILLAR: You might ask the 22 Witness if she's ever seen the document before today. 23 THE WITNESS: Yeah, I don't think I've 24 seen this document before. 25
1301 CONTINUED BY MR. PETER DOWNARD: 2 Q: I presumed you hadn't. I was just 3 going -- I was just going to tell you that this was a 4 document -- you'll see the first page, it's entitled, 5 "Bringing Commonsense to Community Development," and you 6 recall that the 1995 government -- government's campaign 7 was run under the general concept of a quote, 8 "commonsense revolution," unquote? 9 A: Yes. 10 Q: And this is a document which will be 11 put into evidence in a more formal way. It's been 12 referred to in the past and hasn't yet been proven, but I 13 anticipate that evidence is going to be given that this 14 was a -- an internal Conservative Party document from 15 early 1995 that spoke to, generally, the subject of -- of 16 community development, and as apart of that it spoke to 17 the subject of development of Aboriginal people. 18 And if you look at the fourth page under 19 the Tab, you'll see the first sentence under the heading, 20 Native Canadian Communities"; do you see that? 21 A: Sorry, what page are you on? 22 Q: Yes. I'm on -- it's at page number 23 15 at the bottom. 24 A: Okay. 25 Q: And it's the fourth page under the
1311 Tab. 2 A: Yes. 3 Q: And you'll see there's a heading, 4 "Native Canadian Communities?" 5 A: Yes. 6 Q: All right. And you'll see that the 7 first sentence says: 8 "Native Canadians are a special group 9 in our society with unique recognition 10 in the constitution and specific needs 11 and concerns." 12 Unquote, okay? 13 A: Hmm hmm. 14 Q: Now, assuming that what I've told you 15 about this document is true, okay? 16 A: Hmm hmm. 17 Q: That this was a internal conservative 18 policy document from early 1995, I take it you would 19 agree that the Conservative Party at that time recognised 20 exactly this, that native Canadians are a special group 21 in our society with unique recognition in the 22 constitution and have specific needs and concerns? 23 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 24 Twohig...? 25 MS. KIM TWOHIG: Excuse me, Mr.
1321 Commissioner. I think it would be fair to say that this 2 is what the campaign literature says but, in my 3 submission, this witness cannot testify as to whether or 4 not that was the official party position or make any 5 comment on the campaign literature. 6 COMMISSIONER SIDNEY LINDEN: Well, I -- 7 8 CONTINUED BY MR. PETER DOWNARD: 9 Q: All right, if we can move back to Tab 10 5, please. You'll see at Tab 5 there's an extract from a 11 document that's called, "A Voice for the North," and -- 12 A: Sorry, what Tab? 13 Q: It should be at -- I'm sorry, it's at 14 Exhibit 528, Tab 5. 15 A: Do you mean page 5? 16 COMMISSIONER SIDNEY LINDEN: No, Tab 5. 17 MR. DERRY MILLAR: She does not have 18 that, Commissioner. We've only got the copy that you've 19 got -- 20 COMMISSIONER SIDNEY LINDEN: Oh, I see. 21 I thought she had the same one as I have. 22 MR. DERRY MILLAR: No. 23 COMMISSIONER SIDNEY LINDEN: Is this the 24 one that's titled, A Voice for the North? 25 MR. PETER DOWNARD: Yes.
1331 MR. DERRY MILLAR: Yes, so we'll have to 2 -- if Mr. Hewitt could give that to the Witness. 3 COMMISSIONER SIDNEY LINDEN: Would you 4 mind giving this to the Witness? 5 THE WITNESS: Okay. I have it now. 6 7 CONTINUED BY MR. PETER DOWNARD: 8 Q: Okay. Now, this is a public document 9 that was from January of 1995 that the Conservative Party 10 published at the time as a report on what was called the, 11 Mike Harris "Northern Focus" Tour. A report regarding a 12 venture that was undertaken to -- to get views from 13 people of Northern Ontario. 14 Could I ask the question please before you 15 object? 16 COMMISSIONER SIDNEY LINDEN: Well, I 17 think we should hear the question, Mr. Henderson, and 18 then you can decide whether you want to object to it. 19 20 CONTINUED BY MR. PETER DOWNARD: 21 Q: And you'll see under the second page 22 there's a heading 'Native Issues'. 23 A: Yes. 24 COMMISSIONER SIDNEY LINDEN: If you're 25 going to read -- if you're going to read then perhaps he
1341 can make -- go ahead read it then. 2 3 CONTINUED BY MR. PETER DOWNARD: 4 Q: I'm just going to refer to the bottom 5 paragraph and you'll see it reads, quote: 6 "In many instances, Northern Focus 7 found that Queen's Park was alienating 8 non Natives. People believe that two 9 (2) systems of conservational (sic) are 10 being created, one for-Natives and 11 another for non Natives." Unquote. 12 Right? 13 A: Yes. 14 Q: And that would be consistent with 15 your recollection that there was some concern on the part 16 of the new government that in -- with respect to some 17 matters the First Nations people and non-First Nations 18 people should be treated the same. 19 COMMISSIONER SIDNEY LINDEN: Before you 20 answer the question, do you still want to object? 21 No, go ahead answer the question. 22 MR. WILLIAM HENDERSON: For whatever 23 value it is, Commissioner. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 THE WITNESS: Well. just reading. I mean
1351 later on the same document it says: 2 "A balance must be struck between 3 Native hunting and fishing rights and 4 the priorities of conservation with 5 equal treatment for all Ontarians." 6 So, that would be I guess that's just 7 further illustrating your point that there was some 8 emphasis on equal treatment between non-Natives and 9 Natives with respect to hunting and fishing. 10 11 CONTINUED BY MR. PETER DOWNARD: 12 Q: Right. Is it possible that -- 13 COMMISSIONER SIDNEY LINDEN: I think, Mr. 14 Downard, you should ask this Witness what she knows and 15 what she recalls and what she -- 16 MR. PETER DOWNARD: Well, that's what I 17 was just coming to. 18 COMMISSIONER SIDNEY LINDEN: That's what 19 you're trying to do, okay. 20 21 CONTINUED BY MR. PETER DOWNARD: 22 Q: Is it possible that what you -- 23 what you were told, what message you were -- you were 24 taking from these briefings, that the Conservative 25 Government, in fact, thought that First Nations and non-
1361 First Nations people should be treated the same with 2 respect to some issues? 3 But it wasn't as simple as First Nations 4 and non First Nations people should be treated the same 5 with respect to all issues. 6 Is that possible that that was what said 7 to you on the basis of your recollection having 8 experienced the event at the time which I'm asking about? 9 COMMISSIONER SIDNEY LINDEN: Okay. Well, 10 the question the way he's refined it at the end there 11 might be a proper question. 12 What's your objection? 13 MR. WILLIAM HENDERSON: If I might sneak 14 in there, Commissioner, but again if we're concerned 15 about time and some relevance -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. WILLIAM HENDERSON: -- I mean, what 18 the Witness has said if I may summarize it and frankly 19 this is all argument, is what the Supreme Court of Canada 20 has said. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. WILLIAM HENDERSON: And what this 23 document has said is opposite to what the Supreme Court 24 of Canada has said. 25 COMMISSIONER SIDNEY LINDEN: Well, I
1371 don't want to get into this argument. You've -- 2 MR. WILLIAM HENDERSON: So, why have the 3 argument? 4 COMMISSIONER SIDNEY LINDEN: It's 5 absolutely right, it's argument. I don't want to hear 6 that argument. But, the question the way you asked it 7 now -- what was your question? 8 MR. PETER DOWNARD: I'm not interested in 9 -- in arguing. I'm just trying to find out -- I was 10 suggesting to this Witness that she heard something at 11 the meeting that was a little bit less simplistic and 12 less damning of the Conservative Government than simply 13 we don't care about Native rights at all and there are no 14 special rights ever for First Nations people. 15 COMMISSIONER SIDNEY LINDEN: Yeah but you 16 can ask that question and you have asked it, but you 17 don't have to refer specifically unless you opening it up 18 a large -- 19 MR. PETER DOWNARD: Well, I was -- I was 20 just trying to -- to show the Witness -- 21 COMMISSIONER SIDNEY LINDEN: Other 22 published documents which take a slightly different view. 23 MR. PETER DOWNARD: That take a 24 substantially different view, yes. 25 COMMISSIONER SIDNEY LINDEN: Or a
1381 substantially different view. 2 3 CONTINUED BY MR. PETER DOWNARD: 4 Q: Is it possible that -- is it possible 5 that what you were, in fact, told at these meetings, was 6 that the Government had a view that First Nations and 7 non-First Nations people should be treated the same with 8 respect to some matters but that the Government did not 9 go so far as to say that First Nations and non First 10 Nations people should be treated the same on all matters 11 and that categorically First Nations people should never 12 have any special rights? 13 Is that possible what you were told? 14 COMMISSIONER SIDNEY LINDEN: Well, that's 15 a good question without having to refer to the document. 16 Yes...? 17 THE WITNESS: Okay. I believe that 18 certainly the understanding that I got from these 19 briefings was that First Nations people do not have any 20 special rights. And that was a general statement not 21 limited to hunting and fishing rights. 22 And that statement also came out in the 23 discussion of the occupation of the Park that they -- 24 they should be treated the same as if they were non- 25 Aboriginal, that because they were Aboriginal people
1391 didn't give them any greater rights to occupy the Park. 2 3 CONTINUED BY MR. PETER DOWNARD: 4 Q: Okay. Well, let's come back from the 5 statements of the time of the occupation of the Park and 6 come back to the briefing at which this was said -- at 7 which you say it was said. 8 And you don't know who said it, right? 9 A: Right. I can't recall who said it, 10 but this came up not just at this briefing, but at other 11 briefings. 12 Q: Okay. Well, I'm -- well, I'm -- the 13 briefings for other people are with respect to people who 14 have their own counsel -- 15 A: Right. 16 Q: -- and they can deal with that. I'm 17 just asking you about the briefing at the Premier's 18 office. 19 A: Right. 20 Q: Was -- was this or was this not said 21 to you at the briefing of the Premier's office staff that 22 -- that categorically First Nations people have no 23 special rights? 24 A: That's what was said, that -- 25 Q: At the briefing --
1401 A: -- that that was the position of 2 their party. 3 Q: At -- 4 A: At the briefing of Premier's office 5 staff. 6 Q: And you don't recall who it was who 7 said that, right? 8 A: Right. 9 Q: Do you recall anything about the 10 person who said this? 11 A: No, I can't recall. 12 Q: Do you recall anything about the 13 circumstances in which this was said? 14 A: Well, just that it was after that I 15 had done the briefing on the Section 35 rights under the 16 Constitution. 17 Q: Well, was it a statement that was 18 made to the room as a whole or was it a statement that 19 was made to you privately? 20 A: It was made to the -- to -- I mean 21 there was not private discussion, it was a briefing. 22 Everything was -- that was said would have been said to 23 everyone. 24 Q: And how many people were there? 25 A: I can't recall. Five (5) or six (6);
1411 that's a guess. 2 Q: And do you recall the names of any of 3 the people who were there? 4 COMMISSIONER SIDNEY LINDEN: I think she 5 went into some of this in her evidence-in-chief. 6 THE WITNESS: Yes, I did already go over 7 this. 8 MR. PETER DOWNARD: Well, I -- 9 COMMISSIONER SIDNEY LINDEN: Yes, I think 10 she went into this, who was at the meeting, who went with 11 her? She wasn't sure about one (1) or two (2) of the 12 people, but as I recall she did say some of this in her 13 evidence-in-chief. 14 MR. PETER DOWNARD: I'm -- I'm just 15 trying to get every last bit of detail I can on this 16 point, that's all. 17 COMMISSIONER SIDNEY LINDEN: Well, okay, 18 it's an important for you. See what she can remember. 19 If she remembers any more now than she did the other day. 20 Let's see. 21 THE WITNESS: Yeah, I -- I would just -- 22 it's the same as what I said in-chief. 23 MR. PETER DOWNARD: Okay. All right. 24 25 CONTINUED BY MR. PETER DOWNARD:
1421 Q: And if -- if someone comes to this 2 Inquiry and for -- for example, I don't know if Mr. Jonas 3 is going to testify. I can tell you that if he does 4 testify he will -- 5 COMMISSIONER SIDNEY LINDEN: I'm not sure 6 I want to hear what he would say if he testified if he's 7 not going to testify. 8 MR. PETER DOWNARD: Well -- well, okay. 9 All right. 10 11 CONTINUED BY MR. PETER DOWNARD: 12 Q: If persons who are at these briefings 13 testify at this proceeding that you are incorrect in 14 saying that so categorical a statement was made to you or 15 that it is incorrect that so categorical a statement 16 represented the policy of the Government of the day what 17 do you say about that? 18 A: I would just say that that was the 19 impression that I had at the time and that's my 20 recollection. 21 Q: Okay. Just bear with me for a 22 moment, please. 23 THE WITNESS: Okay. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25
1431 (BRIEF PAUSE) 2 3 MR. PETER DOWNARD: Just bear with me for 4 one (1) moment please? 5 COMMISSIONER SIDNEY LINDEN: Yes, 6 certainly. 7 8 (BRIEF PAUSE) 9 10 MR. PETER DOWNARD: Yes, fine. Those are 11 my questions. Thanks very much. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, Mr. Downard. 14 MR. PETER DOWNARD: Thanks very much, Ms. 15 Jai. 16 THE WITNESS: Thank you. 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER SIDNEY LINDEN: I believe 21 the next examiner is Jacqueline Horvat on behalf of Mr. 22 Harnick; is that right? 23 24 (BRIEF PAUSE) 25
1441 COMMISSIONER SIDNEY LINDEN: Good 2 afternoon. 3 4 CROSS-EXAMINATION BY MS. JACQUELINE HORVAT: 5 Q: Good afternoon. My name's Jacqueline 6 Horvat and I'm here on behalf of Charles Harnick. 7 I only have a few questions for you. 8 Firstly, apart from the briefing on the morning of 9 September the 6th, did you have any other conversations 10 with Minister Harnick regarding Ipperwash? 11 A: I believe that's the only 12 conversation I had with him regarding Ipperwash. I 13 probably had another general briefing with him just in 14 his role as Minister responsible for native issues, soon 15 after he became the Minister, but it would not have dealt 16 with Ipperwash. 17 Q: Not dealt with the occupation? 18 A: Right. 19 Q: Can I take you to Tab 29. It's the 20 e-mail -- your e-mail to Yan Lazor. 21 A: Yes. 22 Q: It's 12:54, the time of the e-mail. 23 MR. DERRY MILLAR: Six fifty-three (653). 24 25 CONTINUED BY MS. JACQUELINE HORVAT:
1451 Q: Pardon? Yes, that's Exhibit P-653, 2 P-653. There's reference to a discussion between the 3 Attorney General and the Premier in your summary of the 4 briefing of September 6th. 5 A: Yes. 6 Q: What did you base that comment on? 7 A: I can't recall. So all I know is 8 what's in this note. 9 Q: Do you recall Minister Harnick 10 leaving the room? 11 A: I'm trying to remember and I think I 12 did say in my evidence in-chief that he may have left the 13 room briefly, but I couldn't recall -- 14 Q: You don't recall -- 15 A: -- precisely. 16 Q: Sorry. You don't recall him saying, 17 I just spoke with the Premier and my instructions are? 18 A: I can't recall that. 19 Q: I'll take you to Tab 36 right now. 20 21 (BRIEF PAUSE) 22 23 Q: Exhibit 459 and 509. Now on sub 24 paragraph number 5, which is, "Next steps." 25 A: Yes.
1461 Q: You included that bold note. 2 A: Yes. 3 Q: And it states: 4 "Cabinet directed -- cabinet directed 5 MAG lawyers to apply immediately for an 6 ex parte injunction." 7 A: Yes. 8 Q: What was the basis of that 9 information? 10 A: That was based on the phone call that 11 I had from Ron Fox in which he said he had just been 12 pulled into a cabinet meeting as he was leaving the 13 Interministerial Committee meeting and I would have 14 verified that information with Larry Taman or -- or Yan 15 Lazor. 16 Q: Do you specifically recall confirming 17 that? 18 A: I don't specifically recall, but I 19 would not have changed the instructions to Counsel 20 without checking with someone within my own ministry -- 21 Q: Do you have any notes -- 22 A: -- because these are legal 23 instructions. 24 It's possible I did. I don't -- but I 25 don't have them in front of me.
1471 Q: Okay. Can I take you to the notes at 2 Tab -- Tab 27, your notes of your telephone conversation 3 with Ron Fox? 4 5 (BRIEF PAUSE) 6 7 Q: P -- 8 A: Yes. 9 Q: -- 515. When you -- when you drafted 10 these notes or when you took these notes, did you 11 paraphra -- paraphrase what Ron Fox was saying, or did 12 you record his comments verbatim? 13 A: It would have been a paraphrase or a 14 summary. 15 Q: How -- would they have been taken 16 while you were on the phone with him? 17 A: Yes, it would have been 18 contemporaneous with the phone call with him, so it would 19 have been as he was speaking. 20 Q: Do you specifically recall him -- do 21 you specifically recall him saying that the decision to 22 go ex parte had already been made? 23 A: I -- I recall that after -- I recall 24 that, in general, just the phone call with him and that 25 he said that he was called into this cabinet meeting
1481 which was, you know, what he thought was -- 2 Q: Hmm hmm. 3 A: -- that it was a cabinet meeting, and 4 I recall him saying that -- that now the instructions 5 were to go ex parte. 6 So I recall that as the result of that. 7 Q: Do you recall the words "ex parte" or 8 is it possible that he said the decision was to seek an 9 injunction ASAP? 10 A: I'm pretty sure he said ex parte. 11 Q: It is possible that you could have 12 interpreted ASAP as ex parte? 13 A: I don't think so. 14 15 (BRIEF PAUSE) 16 17 Q: You made some reference in your -- in 18 your evidence in-chief to instructing Mr. McCabe or Ms. 19 Christie -- 20 A: Yes. 21 Q: -- to seek an ex parte injunction 22 following your call with Ron Fox? 23 A: Yes. 24 Q: Do you have -- do you recall that 25 independent of any documents?
1491 A: I'm sure that I spoke to one (1) or 2 the other of them about it. 3 Q: Do you have any notes regarding that 4 conversation? 5 A: Not that are in front of us today. 6 Q: Would you have taken notes of those 7 instructions? 8 A: I don't -- it depends on the 9 circumstances, so possibly yes or possibly no. 10 Q: Would you have taken notes of your -- 11 A: Because of it's -- often if it's 12 things that I myself say, I don't take notes of them. 13 Like my notes tend to be of things that people tell me, 14 so for example if I just called him and said, you know, 15 that the instructions are to go ex parte then I would not 16 necessarily have made a note of that. 17 Q: But you would have made a -- a note 18 confirming that the decision now is ex parte? If you 19 spoke to, for example, Deputy Attorney General Taman? 20 A: Not necessarily, just things were 21 happening very quickly. 22 Q: So the only written document we have 23 is -- is regarding the ex parte or your opinion that the 24 decision changed to an ex parte injunction are your notes 25 from your telephone conversation with Ron Fox?
1501 A: That's the only document we have in 2 front of us, yes. 3 Q: Okay. Thank you. Those are all of 4 my questions. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much. 7 I think we should take a break now. Would 8 this be a good time, do you think? We were going to try 9 to break at 3:15. I don't want to break in the middle of 10 your examination so we'll take our afternoon break right 11 now. 12 THE REGISTRAR: This Inquiry will recess 13 for fifteen (15) minutes. 14 15 --- Upon recessing at 3:12 p.m. 16 --- Upon resuming at 3:27 p.m. 17 18 THE REGISTRAR: This Inquiry is now 19 resumed, please be seated. 20 COMMISSIONER SIDNEY LINDEN: I think Ms. 21 Mrozek -- I'm sorry, there you are. I thought you were 22 down there some place. 23 MS. ALICE MROZEK: I'm here. 24 COMMISSIONER SIDNEY LINDEN: You're next 25 on behalf of Mr. Runciman?
1511 MS. ALICE MROZEK: That's right. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 4 CROSS-EXAMINATION BY MS. ALICE MROZEK: 5 Q: Good afternoon, Ms. Jai, my name is 6 Alice Mrozek and I'm here on behalf of Mr. Runciman. 7 A: Good afternoon. 8 Q: I just wanted to ask you a few 9 questions about the Interministerial Committee Meeting on 10 September 6th? 11 A: Yes? 12 Q: And I wanted to direct your attention 13 to the couple of questions that you were asked about what 14 Kathryn Hunt said at the meeting and just to remind you, 15 Kathryn Hunt was Mr. Runciman's executive assistant. 16 A: Right. 17 Q: And in your evidence-in-chief 18 Commission Counsel put to you that Kathryn Hunt said 19 something about a protocol of the Solicitor General not 20 to involve itself in the day-to-day operations of the 21 OPP. 22 And you testified that Kathryn Hunt may 23 have said this, but you had no recollection of it? 24 A: Right. 25 Q: And later you said that you believe
1521 the comment may have been said in the context of a 2 discussion as to whether the province can ask the police 3 to remove occupiers. 4 You say you may have believed that was the 5 context in which that was said, but you weren't sure? 6 A: Right. 7 Q: And other than this, you had no 8 recollection of what Kathryn Hunt said? 9 A: Correct. 10 Q: And you testified that you made no 11 note of any such comment in your handwritten notes of the 12 September 6th meeting? 13 A: Right. 14 Q: And so given that you have no memory 15 of Hunt's comments and that you didn't make a note of it, 16 would it be fair to say that Hunt did not play a large 17 role in the discussions? 18 A: I can't -- I -- I would say that she 19 played less of a role than other people and that I did 20 not take detailed notes of what she said and I have no 21 independent recollection of what she said. 22 Q: Okay. In fact I believe Hunt's 23 evidence will be that the message that I just described 24 was the only message that she communicated on behalf of 25 the Solicitor General so I suppose you would agree with
1531 that? 2 A: That sounds consistent with the -- 3 the very little that I recall about her participation in 4 that meeting. 5 Q: Thank you. Now, I just would like to 6 take you back to some comments that you made at the end 7 of your testimony in-chief where you spoke about your 8 recommendations and your thoughts generally on the 9 events. 10 And you made certain comments as to what 11 the political staff said or did at the Interministerial 12 Committee meetings on September 5th and 6th. 13 Would it be fair to say that when you were 14 expressing your views as to the actions of the political 15 staff at these meetings, you were not basing these 16 impressions on what Kathryn Hunt said? 17 A: I can't actually -- I'm not sure 18 which part of my comments you're referring to. It was -- 19 Q: I think it was to the affect that 20 political representatives at the meeting weren't 21 interested in Aboriginal issues. I believe that was the 22 gist of what you were saying. 23 A: Well, I -- I don't recall saying 24 exactly that. But, I would -- I would just -- in 25 response to your comment say that I have -- had a very
1541 limited recollection of Kathryn Hunt's participation or 2 role in those meetings to that comments that I would have 3 made with respect to the political staff at those 4 meetings would not be specifically directed towards Ms. 5 Hunt. 6 Q: Thank you, those are my questions. 7 COMMISSIONER SIDNEY LINDEN: Thank you 8 very much. 9 Mr. Fredrick on behalf of Mr. Hodgson? 10 11 CROSS-EXAMINATION BY MR. MARK FREDRICK: 12 Q: Thanks very much, Mr. Commissioner. 13 Ms. Jai, my name is Mark Fredrick. I'm counsel for Chris 14 Hodgson. I'm going to ask you some questions today. 15 Some background questions and I'll get 16 into a little bit about specifics surrounding the 17 September 5th and 6th date. 18 As I understand it you were the Legal 19 Director of the Ontario Native Affairs Secretariat in the 20 summer of 1995; is that correct? 21 A: Yes. 22 Q: And that was the Department of the 23 Ministry of the Attorney General? 24 A: At that time it was, yes. 25 Q: And its purpose was advising on and
1551 dealing with Native issues as they pertained to the 2 Government of Ontario? 3 A: Yes. 4 Q: And one of the specialty issues, if I 5 can call it that, that it had developed, had been the 6 setting up of a committee to deal with procedures 7 concerning, what I'll call Aboriginal emergencies; is 8 that fair? 9 A: Yes. 10 Q: And this would include the blockades 11 or roads, railways, occupation of lands and things of 12 that nature? 13 A: Yes. 14 Q: And in doing this I take it ONAS, if 15 I can call it that, would collect background information 16 for the Government on the source of that dispute. 17 Would that be fair? 18 A: Yes. 19 Q: Because you obviously you couldn't 20 discuss them unless you knew what it was dealing about. 21 You'd also provide some analysis as to the cause of a 22 solution perhaps for such emergencies. 23 A: That might be going a bit beyond our 24 role because our role was really to just deal with the 25 immediate emergency and then recommend a process for
1561 dealing with the actual cause of the occupation or the 2 blockade. So, that wouldn't necessarily be the Committee 3 which really was kind of a, you know, reactive short term 4 focus. 5 Q: So, not a solution so much, but a 6 processing -- 7 A: A process to lead to a solution. 8 Q: Sure. But included in that process 9 would be considerations around the strategies of 10 implementing a process including the taking of legal 11 action if that was appropriate? 12 A: Yes. 13 Q: And in the case of the Ipperwash 14 incident, what we're all here about today, would it be 15 fair to say that ONAS provided a coordinating role for 16 the sharing of facts and strategies among the responsible 17 ministries? 18 A: Facts and options. 19 Q: Okay. And in this case it would 20 include the Attorney General's Department, the Solicitor 21 General's Department and the Ministry of Natural 22 Resources. 23 A: Yes. 24 Q: And it would also coordinate with 25 public bodies such as the Ontario Provincial Police.
1571 A: Yes. 2 Q: Now the MNR was involved in this 3 matter primarily because it held title to the Park in the 4 name of the Crown, correct? 5 A: Yes. Although I think they were a 6 core member in any event of the Aboriginal Emergencies 7 Committee because so many of these issues would involve 8 them. 9 Q: Having had some focus on the Natural 10 Resources or the landscape for Crown lands? 11 A: Yes. 12 Q: MNR holds title to all kinds of Crown 13 lands -- 14 A: Right. 15 Q: -- they? Now, the principles guiding 16 the response to these emergency situations included the 17 prevention of violence, property damage or personal 18 injury. 19 A: Yes. 20 Q: You understood that at all times? 21 A: Yes. 22 Q: And that was certainly the focus you 23 operated on in your position, correct? 24 A: Yes. 25 Q: And that certainly was the focus of -
1581 - direction was given by the Government, correct? 2 A: That's difficult to answer, do you -- 3 because that was never presented to them as a specific 4 question. I mean, I had briefed Charles Harnick probably 5 on the emergencies committee and its mandate and he would 6 have perhaps given some general statement, yes, that 7 sounds good or something. 8 It's difficult to say that that was a -- 9 that the Government's overall direction was that. 10 Q: I just -- 11 A: It could have just -- I don't think 12 it came up in that specific way, unless there's some 13 document you can point me to. 14 Q: Well, I was just looking -- I was 15 just looking at Tab number 13 in your brief of documents, 16 as briefing notes for Charles Harnick. 17 A: Right. 18 Q: So can -- 19 A: As I said, I would have briefed 20 Charles on this and I would have given him this note to 21 which he probably would have said that sounds like a 22 reasonable approach. 23 Q: Sure. You never heard anybody say 24 that wouldn't be a reasonable approach, correct? 25 A: Right.
1591 Q: Now, ONAS became involved in this 2 particular matter round the end of July or the beginning 3 of August of in 1995, correct? 4 A: Yes. 5 Q: And that was before the occupation of 6 the Park, but after the occupation of the adjacent 7 Military Base? 8 A: Correct. 9 Q: And the reason that ONAS had become 10 involved was the threat of an occupation of the Park 11 itself by a group, un-allied with the local official 12 Indian Band, is that correct? 13 A: Well, from within the -- that First 14 Nation. 15 Q: A dissident group with the local 16 band, is -- 17 A: Yes. 18 Q: -- that maybe a better way of putting 19 it? 20 A: Yes. 21 Q: And, in fact, there had been some 22 concern at the time that this group, having taken over 23 the Military Base, was being emboldened and may want to 24 try and take other property such as the Park? 25 A: Yes.
1601 Q: Now, as I understood it, a -- an 2 emergency meeting took place on or about August 2nd, 3 1995? 4 A: Yes. 5 Q: And you summoned people to that 6 meeting, and including people that were summoned was Mr. 7 Bangs from the Ministry of Natural Resources and several 8 other people? 9 A: I believe so. 10 Q: And you would expect Mr. Bangs, he 11 was the executive assistant to the Minister, you 12 understood that? 13 A: Yes. 14 Q: You would expect him to be in 15 attendance along with some of the operations people, the 16 policy people from the Ministry? 17 A: Yeah, it was our practice at that 18 time to include both political and public service staff. 19 Q: And that was, of course, was the -- 20 was that an ongoing practice you'd had -- 21 A: Yes. 22 Q: -- previously? 23 A: Yes. 24 Q: So, it wouldn't be out of line to 25 have political people in at these types of meetings?
1611 A: Right. 2 Q: Now, did you know Mr. Bangs at all, 3 prior to this meeting? 4 A: I believe I had met him at a 5 briefing, but just -- you know, I didn't know him. 6 Q: Not personally, or anything like 7 that. 8 A: No. 9 Q: You did know that he was the EA to 10 the Minister? 11 A: Yes. 12 Q: And that's a fairly important 13 position in the Ministry's office? 14 A: Yes. 15 Q: Your expectation, I take it, as 16 somebody who's briefed people in the Government from time 17 to time and has had lots of dealings with both the 18 political and operation side of government, your 19 expectation would be that Mr. Bangs would be there to 20 learn about the subject matter of the meeting then brief 21 the minister and then perhaps convey back what he thought 22 the Minister's position would be on matters discussed at 23 your meetings? 24 A: Yes. 25 Q: Is it fair to say that at the outset
1621 back in August, the concern was essentially whether this 2 Park might be taken over, that was a big concern the MNR 3 had? 4 A: Yes. 5 Q: Okay. And when it was taken over, 6 the concern the Ministry had were really on operational 7 things, such as water distribution service to the Park, 8 potential that, effectively, people in the Park might be 9 come to some harm or some problem. 10 A: Well, once -- you mean once it was 11 occupied? 12 Q: Yes. 13 A: At that point the Park -- 14 Q: Initially -- 15 A: -- was closed. 16 Q: Okay. But initially I think the 17 concerns were all about infrastructure; is that fair? 18 A: They were concerned about damage to 19 property. 20 Q: Okay. And I want to go back to that 21 August 2nd meeting, and that's at your Tab 16. 22 A: Yes. 23 Q: And the purpose of the meeting is 24 described on the first page. It says here -- I'm about 25 midway down the page:
1631 "The meeting was convened in order to 2 gather information and develop 3 recommendations regarding the Camp 4 Ipperwash takeover by the Stoney Point 5 Group and the possibility of this group 6 occupying Ipperwash Provincial Park." 7 Do you see that? 8 A: Yes. 9 Q: And of course that -- that was the 10 accurate reason why everybody got together, correct? 11 A: Yes. 12 Q: Now, those concerns of the MNR, if we 13 go over to page -- I believe it's 4 item 3. 14 Do you see here about the water supply? 15 We talked about that, that's infrastructural concerns 16 that the MNR had? The water system -- 17 A: Yes, this is at the top of page 4? 18 Q: Okay. Yes. 19 A: Yes. 20 MR. DERRY MILLAR: Exhibit P-506. 21 MR. MARK FREDRICK: That's Exhibit P-506, 22 Mr. Millar helpfully tells me for which I thank him 23 again. 24 25 CONTINUED BY MR. MARK FREDRICK:
1641 Q: Items 4 and 5. If we go over to page 2 5 there is some discussion about some options that the 3 MNR and OPP staff at Ipperwash will monitor the situation 4 closely. So it's not the Minister's office, but just the 5 on-the-ground MNR people, correct? 6 A: Right. Right. 7 Q: "And the options as to how to proceed 8 will depend on what occurs. Closing 9 the Park would be extreme. MNR and OPP 10 will respond appropriately in a 11 measured way should any further 12 problems arise." 13 And of course that was a reasonable course 14 of action. I take it you believed it was reasonable at 15 that time, fair? 16 A: Yes. 17 Q: And on page 5 -- pardon me, point 5, 18 Next Steps, it says: 19 "It was agreed that MNR and OPP staff 20 are in the best position to monitor the 21 Stoney Point Group's activities and 22 assess the risks. We will all keep in 23 close communication so that we're aware 24 of developments. And individuals at 25 this meeting are responsible for
1651 briefing their Deputy Ministers and 2 Ministers as needed." 3 Do you see that? 4 A: Yes. 5 Q: And there's some other 6 recommendations there about telling the -- keeping the 7 campers advised and developing contingency plans and 8 things like all that. 9 What I'm getting at is, MNR's response at 10 this point is what you would say appropriate and a 11 reasonable response given the threatening situation? 12 A: Yes. 13 Q: And the last paragraph on that point 14 5 on page 5: 15 "It is agreed that the Committee will 16 reconvene if an actual incident at 17 Ipperwash occurs, but that MNR and OPP 18 staff on the ground do not to wait for 19 the Committee's approval before taking 20 actions that are necessary to protect 21 public safety." 22 A: Right. 23 Q: And again that was a reasonable way 24 of proceeding -- 25 A: Yes.
1661 Q: -- as far as you were concerned; 2 consistent with how ONAS had dealt with these matters in 3 the past? 4 A: Yes. 5 Q: So, essentially I take it the 6 attitude, at least in August of 1995, of those present in 7 the room including MNR people, was that they would only 8 get involved immediately if there was some necessity in 9 order to do so; is that fair? 10 A: Yes. Are you finished with this 11 document? 12 Q: Yes, as a matter of fact, I am. 13 A: Could you just cover the flashbulb 14 light, it's just in my eyes. Thanks. 15 Q: Not a spellbinding questions, I 16 suppose, it's the light. 17 And as you understood, what that point 5 18 meant at the end of the day was, that it was MNR as Park 19 owner would involve the OPP to deal with the matter if 20 that necessity arose? 21 A: Yes. 22 Q: Now, I -- I wasn't here and I'm sorry 23 I didn't -- wasn't here to hear it, but I understand 24 there was some discussion about involving the OPP in some 25 of these -- the actual OPP people by telephone conference
1671 or things of that nature. 2 Do you recall that? 3 A: You mean at a -- the next 4 Interministerial -- 5 Q: The next Interministerial Meeting. 6 A: -- Committee Meeting, yes. 7 Q: I just want to establish one (1) 8 point. Certainly no one from the MNR and Mr. Hodgson or 9 Mr. Bangs, asked for the OPP to be teleconferenced in? 10 A: No. 11 Q: And you decided -- you and Mr. Fox 12 decided -- that that wasn't going to happen, is that 13 fair? 14 A: Right. 15 Q: No one ever sought the Provincial 16 Government's input as to whether the OPP should be 17 involved or not, correct? 18 A: No one asked that they be conferenced 19 into the meeting. 20 Q: Correct. 21 A: It was agreed that -- yeah -- I mean 22 if -- if Solicitor General -- and if Ron Fox and I felt 23 that it was not appropriate that wasn't questioned. 24 Q: Thank you. Now, the month of August 25 passed by and with some incidents and then I understand
1681 eventually in -- around the Labour Day weekend the 2 dissidents did in fact take over the Ipperwash Park and 3 as a result the Interministerial Group was summoned to a 4 meeting on the 5th of September 1995 over at 595 Bay 5 Street. 6 Do you recall that? 7 A: Yes. 8 Q: And you were Chairman of the meeting? 9 A: Yes. Chair -- Chairperson. 10 Q: Chairperson, oh, I'm sorry about 11 that. Actually, I'm happy you were Chairperson, but I 12 just used an old term. 13 Mr. Bangs attended along with other MNR 14 personnel at that meeting on September 5th; is that 15 correct? 16 A: Yes. 17 Q: And Minister Hodgson didn't attend? 18 A: Sorry, no. The Minister Hodgson did 19 not attend. 20 Q: No. And what we have is we have some 21 meetings at Tab 19. I think these were prepared by 22 Nathalie Nepton; is that correct? 23 A: Yes, these are the draft meeting 24 notes. 25 Q: Okay. So what occurs at this meeting
1691 is a review of the facts and a consideration of options; 2 is that fair? 3 A: Yes. 4 Q: And if we go over to page 2 -- 5 A: This is of the draft? 6 Q: Yes. 7 8 (BRIEF PAUSE) 9 10 A: So, you're referring to Inquiry 11 document 1011712? 12 Q: Is it 22? 13 MR. DERRY MILLAR: I would ask My Friend, 14 unless he has some purpose to refer to Tab 22. It's 15 Inquiry document 1012288 that has the September 5th 16 minutes. It's part of Exhibits 459 and 509. 17 MR. MARK FREDERICK: That's perfectly 18 fine. It makes no difference to my question at the end 19 of the day. Tab 22, please. 20 21 (BRIEF PAUSE) 22 23 CONTINUED BY MR. MARK FREDERICK: 24 Q: The options you -- we see at page 2 25 under item 3, disclose a couple of different thoughts;
1701 criminal or statutory relief or in a third case, a civil 2 injunction. 3 And what I get at here is that everyone 4 agrees that the civil injunction seems to be the way to 5 go, including Mr. Bangs; is that fair? 6 A: Yes. 7 Q: And -- 8 A: Although that -- this was all -- also 9 subject to a legal subcommittee meeting that afternoon to 10 examine those legal options in more detail. 11 Q: Sure, but -- but the operative people 12 on the ground, the political people, the operations 13 people, they all -- the OPP, everyone -- 14 A: Yes. 15 Q: -- seems to be in favour of pursuing 16 a civil injunction of some sort. And the steps to be 17 taken appear on the next page, page 3 and including that 18 the MNR would act as spokesperson regarding the matter in 19 the short term and setting out some basic points; do you 20 see that? 21 A: Yes. 22 Q: And indeed, those were in fact the 23 only steps then contemplated; is that fair? These 24 various items listed in item 4. 25 A: These were the steps that were agreed
1711 to at this meeting, yes. 2 Q: And nowhere is it stated that the 3 Ministry of Natural Resources or its Minister would 4 contact the OPP to provide directions; is that fair? 5 A: That's true. 6 Q: Never any discussion about that 7 anyway, was there? 8 A: No, there was never any discussion 9 about that. 10 Q: Okay. And in fact, if someone had 11 suggested that, I take it you, in your particularly 12 sensitive position in -- at ONAS, would have had some 13 alarm about that sort of thing; is that fair? 14 A: I think that people would have just - 15 - someone would have raised the issue that it's not a -- 16 that the OPP does not take direction from government and 17 that's not appropriate. 18 Q: I realize someone may have done that, 19 but I'm suggesting you yourself would have done that; 20 isn't that right? 21 A: Well, probably -- if no one else 22 had -- 23 Q: Sure, because that's an issue that 24 you were sensitive to as well. 25 A: Yes.
1721 Q: All right. But in fact, quite the 2 contrary, it was noted that the -- the OPP, if I look at 3 the bullet point, the second to last bullet point, item 4 number 4: 5 "The OPP will have the discretion as to 6 how to proceed with removing the Stoney 7 Pointers from the Park." 8 That was everyone's -- the group's thought 9 at the point, correct? 10 A: Yes. I mean having said this, of 11 course, the MNR and OPP on the ground are in constant 12 communication with each other. That was known and 13 understood as appropriate. 14 Q: Sure, the OPP is going to do the 15 policing, not the MNR, right? 16 A: Right. 17 18 (BRIEF PAUSE) 19 20 Q: Now I have some handwritten notes 21 that were taken on that meeting, and My Friend, Mr. 22 Millar, I think, knows which documents they are, from 23 September 5th. 24 Pardon me for one second, they're Ms. 25 Hipfner's notes.
1731 (BRIEF PAUSE) 2 3 Q: Have you -- have you got these by 4 chance? 5 A: Is this P-510? Eileen Hipfner's 6 notes of September 5th? 7 MR. DERRY MILLAR: Yes P-510. 8 THE WITNESS: Yes. Yes, I have -- I have 9 that. It was handed to me at some previous point in 10 time. 11 MR. MARK FREDRICK: I'm always grateful 12 to Millar. One of these days I'm going to become 13 computer proficient enough to find them on my own, but 14 for the moment I defer to his wisdom in that account. 15 16 CONTINUED BY MR. MARK FREDRICK: 17 Q: So we have notes of this meeting and 18 one of the people at this meeting, of course, again, is 19 Mr. Bangs, Mr Hodgson's Executive Assistant, correct? 20 A: Yes. 21 Q: Now we talked about your experience 22 dealing with executive assistants before. Generally they 23 attend as political staffers to represent the minister at 24 meetings. 25 And the assumption being that they brief
1741 the minister or got his thoughts and ideas, correct? 2 A: Yes. Although in some cases it would 3 be just to communicate information back to the minister, 4 you know, if we're just calling the meeting and the 5 minister wouldn't have had a chance to give any input; 6 this would be an opportunity for all of the political 7 staff to get information and quickly bring it back to 8 their ministers. 9 Q: Sure. And the convention is though, 10 that if they express a view, generally it's the view that 11 the minister shares; is that correct? 12 A: Yes. 13 Q: Now there's a discussion in the 14 minutes -- in these minutes about pursuing criminal 15 charges and I guess this was some of the things that were 16 discussed on September the 5th. But if we go to page 3 17 at the very top it discussed options and this mirrors the 18 note we saw before. 19 Ms. Hipfner is recorded specifically from 20 Mr. Bangs; do you see at the top? 21 A: Yes. 22 Q: It says: 23 "Should consider injunction first." 24 A: Yes. 25 Q: And again that -- that is sort of the
1751 reasonable course of view that -- 2 A: Yes. 3 Q: -- that you would even advocate at 4 that point; is that correct? 5 A: Yes. 6 Q: And indeed that's what the OPP was 7 recommending as well as you understood, correct? 8 A: Yes. 9 Q: So what we take from that is the OPP 10 asked for an injunction and the Ministry of Natural 11 Resources agrees with that recommendation and OPP go get 12 that injunction effectively; that seems to be the 13 Ministry's position, fair? 14 MR. DERRY MILLAR: I'm not certain that 15 that's -- that's certainly not a reflection of the 16 evidence. The evidence has always been that the OPP 17 would not be getting any injunction. 18 MR. MARK FREDRICK: Sorry. 19 MR. DERRY MILLAR: That the property 20 owner MNR, if it wanted an injunction would invoke that 21 process. 22 23 CONTINUED BY MR. MARK FREDRICK: 24 Q: Mr. Millar is quite correct. What I 25 meant to say was essentially that the OPP's plan, let's
1761 follow the OPP's plan and get the injunction. That's 2 certainly what you understood, correct? 3 A: Yes. 4 Q: Now if we go down the page, a little 5 bit further on, Ms. Hipfner's recorded somebody saying 6 and it's about a third of the way up. Somebody from the 7 MNR -- do you see that? 8 A: Yes. 9 Q: "Shouldn't be too precipitous about 10 what we do even with regard to [I think 11 that's what WRT means] obtaining 12 injunctions." 13 Do you see that? 14 A: Yes. 15 Q: So again that sounds like someone 16 within the Ministry wanting the exercise of caution, 17 fair? 18 A: Yes. 19 Q: And this of course was the day prior 20 to this unfortunate incident, right? 21 A: This was prior to, yes. 22 Q: Okay. And if we look at the line 23 above that it says: 24 "Need to have a talk with them about 25 what they're trying to accomplish
1771 occupying empty Provincial Park." 2 And again, that doesn't sound terribly 3 ruthless, does it, it sounds -- 4 A: It sounds reasonable. 5 Q: Reasonable, cautious response. 6 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 7 Millar...? 8 MR. DERRY MILLAR: It may be that My 9 Friend should ask the witness if she recalls if this 10 assists her, refreshes her memory with respect to what 11 went on. What My Friend is doing is putting to her -- 12 COMMISSIONER SIDNEY LINDEN: Somebody 13 else's notes. 14 MR. DERRY MILLAR: -- somebody else's 15 notes. 16 COMMISSIONER SIDNEY LINDEN: Yes, I know 17 that. 18 MR. DERRY MILLAR: And -- 19 20 CONTINUED BY MR. MARK FREDRICK: 21 Q: These are consistent with your 22 recollection of what was discussed at the meeting; is 23 that fair? 24 A: Yes. 25 Q: Okay. You can assume that when I go
1781 through these notes that I'm asking you that effectively 2 if this -- if this accords with your recollection as 3 well. 4 A: Okay. 5 Q: It will be the same for what we said 6 about Mr. Bangs a few minutes ago. 7 COMMISSIONER SIDNEY LINDEN: Yes. yes, 8 Mr. Horner? 9 MR. MATTHEW HORNER: My concern with -- 10 with this is that because we haven't had the author of 11 the notes there's no indication that the -- the fact of 12 it under the tab, it looks like it comes under MNR, that 13 that is -- that was their way of writing the notes, 14 generally. 15 COMMISSIONER SIDNEY LINDEN: Whoever it 16 was who made the notes? 17 MR. MATTHEW HORNER: Exactly and so... 18 COMMISSIONER SIDNEY LINDEN: Ms. Hipfner. 19 MR. MATTHEW HORNER: In these questions 20 it's assuming that MNR is making that comment and -- 21 MR. MARK FREDERICK: Was there anybody 22 else -- 23 MR. MATTHEW HORNER: -- we've had some 24 confusion with other -- other notes that that's what it 25 looked like and that was not --
1791 COMMISSIONER SIDNEY LINDEN: That wasn't 2 the case -- 3 MR. MATTHEW HORNER: It wasn't the case. 4 COMMISSIONER SIDNEY LINDEN: -- in some 5 other notes. 6 MR. MARK FREDRICK: There was no one else 7 there with the initials, "MNR" at the meeting that you 8 can recall, was there? 9 COMMISSIONER SIDNEY LINDEN: No, the way 10 -- others took notes a little differently so. 11 MR. MARK FREDRICK: Okay. 12 MR. DERRY MILLAR: I can -- I can assure 13 you we will be calling Ms. -- Ms. Hipfner, that's the 14 plan, but it's -- it's -- Mr. Horner's comment is a fair 15 comment. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. DERRY MILLAR: Because not all -- we 18 don't know until we get the witness here how the 19 individual witness may or may not have taken their notes. 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 22 CONTINUED BY MR. MARK FREDRICK: 23 Q: Okay. Well subject to those caveats 24 and those cautions and the evidence will bear out what it 25 bears out at the end of the day, let me take you over to
1801 page 4 if I can. 2 Now at the very top of the page there is a 3 quote attributed to Mr. Bangs and it says: 4 "We can afford to wait. If we get 5 injunction we'll be expected to move 6 in. Don't want to escalate [I believe 7 that's] situation." 8 Do you recall Mr. Bangs making a statement 9 to that effect in the meeting on the 5th of September? 10 A: I don't recall that exact statement, 11 but it sounds consistent with the meeting. 12 Q: And again that sounds like a 13 reasonable consideration of the circumstance; is that 14 fair? 15 A: Yes. 16 Q: Now, the -- the end of this and I 17 think we saw it in an earlier note, the MNR minister was 18 asked to give a press conference as owner of the Park; do 19 you recall that? 20 A: Sorry, this was during the meeting 21 that he -- 22 Q: No, at the end -- the end -- the 23 decision was made that the MNR would be the 24 spokesperson -- 25 A: Yes?
1811 Q: -- for this matter. 2 A: Yes. 3 Q: I think we looked at that earlier on. 4 A: Yes. 5 Q: So -- and later on Minister Hodgson, 6 I think, that evening of September 5th made a statement 7 to the press; do you recall that? 8 A: I don't recall. 9 Q: Okay. I won't ask about that then. 10 Now there's another meeting that happens the next day, 11 September 6th at 9:30 in the morning, and I think that's 12 at Tab 36? 13 A: Yes, that's Exhibit 459 and 509? 14 MR. DERRY MILLAR: Yes, Inquiry Document 15 1011766. 16 17 CONTINUED BY MR. MARK FREDRICK: 18 Q: Now, if we go over to the second 19 page, I won't take you through all of this, but if we go 20 to the second page there's a section called, Minister's 21 Directives, and it says with regard to the MNR: 22 "The Minister wants to act as quickly 23 as possible to avoid damage and curtail 24 any escalation of the situation." 25 Do you see that?
1821 A: Yes. 2 Q: And is that accurate -- 3 A: Yes. 4 Q: -- from your recollection of 5 attending at the meeting? 6 A: Yes. 7 Q: Okay. And for the Solicitor 8 General's office it says -- it says: 9 "Essentially as a matter of protocol 10 the SGC does not involve itself in the 11 day-to-day operations of the OPP. The 12 OPP will exercise its discretion 13 regarding how to proceed in removing 14 the Stoney Pointers from the Park and 15 the laying of appropriate charges." 16 Do you see that? 17 A: Yes. 18 Q: And that accorded with your 19 recollection for that day? 20 A: Yes. 21 Q: And for the Ministry of the Attorney 22 General it says: 23 "The Minister agrees the application 24 will be made for an injunction." 25 Do you see that?
1831 A: Yes. 2 Q: So essentially that accords with your 3 recollection as well? 4 A: Yes. 5 Q: And again these were all sort of 6 reasonable steps in accordance with what you had been 7 discussing -- 8 A: Yes. 9 Q: -- the day before previously, 10 correct? 11 A: Yes. 12 Q: And in fact, if we look at item 4, 13 "Communications," it says here -- this was the morning of 14 September 6th: 15 "It was agreed that MNR is the Park's 16 owner and steward." 17 That was -- that phrase, "owner and 18 steward," that was kind of the -- did you recall hearing 19 that phrase at the meeting? 20 A: I can't recall if it was used at the 21 meeting or not, but I think there was this general 22 understanding that MNR had, besides being the legal 23 owner, had sort of a stewardship relationship with the 24 Parks, that it had a responsibility to look after and 25 take care of the land.
1841 Q: Was that sort of the emphasis that it 2 had, your impression of the emphasis it had in coming 3 towards these meetings? 4 A: I wouldn't say that was the emphasis, 5 but that was part of its responsibility, part of its 6 mandate. 7 Q: Part of what it was sharing at the 8 table, fair? 9 A: Yes. 10 11 (BRIEF PAUSE) 12 13 Q: I'm going to make some reference to 14 Inquiry document 101 -- 15 MR. DERRY MILLAR: 101174. 16 17 CONTINUED BY MR. MARK FREDERICK: 18 Q: 1011784, document P-636. Do you have 19 that one, by chance? 20 A: Could you tell me -- 21 MR. DERRY MILLAR: Perhaps, we could get 22 Exhibit P-636 for the witness? 23 These are handwritten notes again of Ms. 24 Hipfner of September the 6th. 25
1851 (BRIEF PAUSE) 2 3 THE WITNESS: Thank you. Okay, I have 4 them. Okay, I have this document now. It's dated 5 September 6th, 1995. 6 7 CONTINUED BY MR. MARK FREDERICK: 8 Q: Okay. If you go over to the second 9 page, there's a comment attributed to Mr. Allen. He was 10 an officials with the -- 11 A: MNR. 12 Q: -- Ministry of Natural Resources, 13 right? 14 A: Yes. 15 Q: Okay, and the comment attributed to 16 him is: 17 "MNR views this as a police issue. MNR 18 would prefer to take a back seat at 19 this point." 20 Do you see that? 21 A: Yes. 22 Q: Is that consistent with your 23 recollection of the discussion -- 24 A: Yes. 25 Q: -- at the meetings?
1861 A: Yes. 2 Q: MNR was sort of a reluctant 3 bridesmaid -- 4 A: Yes. 5 Q: -- in all of this? 6 A: Yes. 7 Q: Now, at the bottom of the page there 8 is a rec -- a mention here at the very second last to the 9 -- on the page, second to last line from Peter Sturdy; he 10 was also with the MNR? 11 A: Yes. 12 Q: Operation -- 13 A: Yes. 14 Q: In the operations department, I 15 believe. 16 A: Yes. 17 Q: It says here, somebody heard 18 automatic gunfire. Do you recall that being discussed at 19 the meeting that day? 20 A: Yes. 21 Q: Would your view have been, on hearing 22 that information, that the situation maybe was beginning 23 to escalate? 24 A: Yes, that certainly -- that was a 25 concern. I believe that that was one of the issues that
1871 Ron Fox was going to confirm because this was, I think, 2 you know, even for Peter saying it at the meeting was 3 second or third hand. 4 Q: If I go over to page 3, there's an 5 attribution to Mr. Bangs again and he says: 6 "Went to M with plan developed at 7 table." 8 Went to Minister with plan developed at 9 table. 10 A: Actually page 3 is missing from this 11 exhibit. Like there is -- there is no page 3. It goes 12 from page 2 to page 4. 13 Q: Well, why don't I see if I can come 14 up and share my page 3 with you -- 15 A: Oh, it's okay. It's just out of 16 order. I found it after page 4. That's fine, okay, I'm 17 with you now. 18 COMMISSIONER SIDNEY LINDEN: Okay. 19 THE WITNESS: So, can you just go over 20 what -- where you were on that page? 21 22 CONTINUED BY MR. MARK FREDERICK: 23 Q: Sure, it says at the very top, it's 24 some quotes attributed to Mr. Bangs by Ms. Hipfner making 25 these notes. And it says here, Mr. Bangs says he went --
1881 MR. DERRY MILLAR: We don't know. The 2 notes simply say Bangs went to M and placed something 3 plan developed -- I don't -- we don't know what -- My 4 Friend's assuming that Bangs said this. 5 MR. MARK FREDERICK: I'm going to ask her 6 if her recollection -- 7 COMMISSIONER SIDNEY LINDEN: He can ask-- 8 MR. MARK FREDERICK: -- is consistent with 9 that, so. 10 11 CONTINUED BY MR. MARK FREDERICK: 12 Q: The note -- the note recorded is Mr. 13 Bangs went to M, I take it that to be Minister, with plan 14 developed at table. 15 Do you see that? 16 A: Yes. 17 Q: Is that consistent with your 18 recollection of the discussions that ensued at the 19 meeting on the 6th of September? 20 A: Well, I recall, and this is from 21 reviewing my own notes at -- from this meeting, that Jeff 22 Bangs did say he had briefed his minister on our 23 discussions of the previous day. 24 Q: And so that would be consistent then? 25 A: Yes.
1891 Q: And down two (2) lines it says: 2 "The way things are escalating, M 3 doesn't want to..." 4 A: "Carry this." 5 Q: "...carry this especially with regard 6 to threat nearby lands." 7 See that? 8 A: Yes. 9 Q: Do you recall a discussion to that 10 affect at the meeting on the 6th of September? 11 A: Yes. 12 Q: And if we go down a little bit below 13 there's some talk about gunfire and damage to public park 14 property and then the last line says: 15 "This is quickly spiralling out of 16 MNR's hands." 17 Do you see that? 18 A: Yes. 19 Q: Do you recall a discussion to that 20 affect at the meeting on the 6th of September? 21 A: Yes. I have a very similar note in 22 my own notes from the meeting. 23 Q: Okay. So, effectively this is not 24 something the Minister wanted to have any control or 25 direction about at the end of the day, the way the
1901 situation was developing, correct? 2 A: It -- it did sound like MNR didn't 3 want to be the main spokesperson or to take 4 responsibility for this. 5 Q: Well if Ms. Hipfner's correct, it 6 says, 7 "M doesn't want to carry this". 8 A: Right. 9 Q: Well you wouldn't expect any Minister 10 of the Crown to want to have to deal with this situation 11 escalating the way it's escalating? 12 Would that be a fair -- 13 COMMISSIONER SIDNEY LINDEN: I'm not sure 14 that is a fair -- 15 THE WITNESS: That's not a fair -- I 16 can't -- 17 COMMISSIONER SIDNEY LINDEN: I'm not 18 sure -- 19 20 CONTINUED BY MR. MARK FREDRICK: 21 Q: You can't tell? Okay. Well we'll -- 22 COMMISSIONER SIDNEY LINDEN: All these 23 questions were more or less asked and answered in-chief, 24 Mr. Fredrick. Almost all of them so far. 25 MR. MARK FREDRICK: They're all --
1911 they're all going -- they're all -- found some other 2 questions that'll come along, Mr. Commissioner. 3 COMMISSIONER SIDNEY LINDEN: It would be 4 helpful if you did. Ms. Jai took us through her own 5 notes and made reference to almost all the point's you've 6 made in-chief. 7 8 (BRIEF PAUSE) 9 10 CONTINUED BY MR. MARK FREDRICK: 11 Q: So, at the end of the day what's 12 happening here is the Ministry of Natural Resources, the 13 ministers, as far as you know, are giving the indication 14 that this is a situation that they feel is beyond their 15 ability; is that fair? 16 MR. DERRY MILLAR: Well I don't know -- 17 COMMISSIONER SIDNEY LINDEN: I'm not 18 sure -- 19 MR. DERRY MILLAR: -- if -- 20 21 CONTINUED BY MR. MARK FREDRICK. 22 Q: Do you have that impression then? 23 MR. DERRY MILLAR: My Friend says the 24 Minister of Natural Resources then says the ministers. 25 I'm not certain who he's referring to when -- if he -- if
1921 he want to ask the question of this Witness' 2 understanding about the Minister of Natural Resources 3 that's one thing. 4 We've already heard in-chief what Ms. 5 Hutton on behalf of another -- the Premier at the time -- 6 so My Friend has to make it clear which minister he's 7 referring to and even if this Witness can answer the 8 question. 9 The Witness can't answer a question as to 10 what was in the mind of the Minister. 11 12 CONTINUED BY MR. MARK FREDRICK: 13 Q: Certainly, what you were hearing at 14 the meeting, if this accords with your recollection, is 15 that Minister Hodgson and his staff believed that the 16 situation was escalating and they didn't want to carry 17 it. 18 Is that correct? 19 A: Yes. 20 Q: Okay, that's fair. I want to take 21 you to your note at Tab 29. I'm sorry it's the wrong 22 tab. Tab 27, I'm sorry. 23 MR. DERRY MILLAR: It's Exhibit P-515. 24 25 CONTINUED BY MR. MARK FREDRICK:
1931 Q: Do you have -- 2 A: Yes, I have that. 3 Q: These were some notes that you took 4 of your conversation with Ron Fox; is that right? 5 A: Yes. 6 COMMISSIONER SIDNEY LINDEN: Tab 27 is 7 355? 8 THE REGISTRAR: P-515. 9 COMMISSIONER SIDNEY LINDEN: P? 10 MR. DERRY MILLAR: 515. 11 12 CONTINUED BY MR. MARK FREDRICK: 13 Q: Do you recall when Mr. Fox telephoned 14 you? 15 A: Sometime in the afternoon of 16 September the 6th, in the late afternoon. 17 Q: And you must forgive me, do -- do you 18 know why he called you? 19 A: Well, he always called me to keep me 20 informed of anything significant. It was not unusual for 21 us to talk several times a day, especially in a situation 22 like this. 23 Q: Now one of the things you record is, 24 saying here is "Premier and Hodgson came out strong"; do 25 you see that?
1941 A: Yes. 2 Q: And I -- you don't have any further 3 notes on what exactly they came out strong about. 4 A: Right. 5 Q: Did you ask Mr. Fox what he meant by 6 that and where he gathered that impression? 7 A: I -- I can't recall. 8 Q: Okay. I take it you weren't present 9 at any of the meetings that Mr. Fox had with Mr. Hodgson; 10 is that right? 11 A: Well, I was not -- no, I was not 12 present at this meeting. Ron Fox was present and I 13 believe he's already testified so he would be in the best 14 situation to answer any of those questions. 15 Q: That's fine. Now, you made some 16 comments about Mr. Hodgson and his view of I think 17 fishing and hunting rights the other day or -- or lack or 18 concern with them. 19 Do you recall that? 20 A: Yes. 21 Q: Were you involved in a dispute up at 22 Owen Sound concerning fishing rights between native 23 groups and non-native groups that occurred in August of 24 1995? 25 A: This was around Cape Croker or --
1951 Q: I believe so, yes. 2 A: I believe that there was some 3 reference to the -- that -- that there was -- there were 4 ongoing disputes around fishing. 5 Q: Were you involved in the resolution 6 of those disputes? 7 A: I don't believe that I was personally 8 involved in the resolution, no. 9 Q: So, you have no knowledge of Mr. 10 Hodgson's role in the eventual reached that resolved 11 those disputes? 12 A: I can't recall now what his role was. 13 Q: Okay. But you weren't involved in 14 any -- 15 A: No. 16 Q: I have some general questions and 17 then I'll -- and I'll finish here. The -- you -- you're 18 a solicitor by training; is that correct? 19 A: Yes. 20 Q: And you understand that consititute - 21 - constitutional issues and native affairs are the sole 22 domain of the Federal Government, correct? 23 A: Well, that's actually not accurate. 24 COMMISSIONER SIDNEY LINDEN: Just a 25 minute.
1961 MR. WILLIAM HENDERSON: Commissioner. 2 COMMISSIONER SIDNEY LINDEN: Mr. 3 Henderson...? 4 MR. WILLIAM HENDERSON: Sorry. I'm sure 5 both My Friends are solicitors and barristers and I 6 happen to be both myself. This is a question for a 7 conclusion of constitutional law which even if it were 8 not factual evidence that may be of assistance to you, is 9 also an incorrect statement of constitutional law. 10 So, it -- it doesn't assist you and -- and 11 with due respect, while I'm sure the Witness is quite 12 competent to answer it, it's not a proper question. 13 COMMISSIONER SIDNEY LINDEN: I agree. 14 It's not a question that's -- 15 16 CONTINUED BY MR. MARK FREDRICK: 17 Q: I'll put it this way. A group that 18 has a department of Indian and Northern Affairs that 19 deals with Indian bands and it was your understanding it 20 was always with the Federal Government, correct? 21 A: Sorry. I'm having trouble hearing 22 and understanding. 23 COMMISSIONER SIDNEY LINDEN: Just a 24 minute. Mr. Henderson is still -- just relax. 25 MR. WILLIAM HENDERSON: Again,
1971 Commissioner, this is such a ludicrous premise. Every 2 level of government in Ontario, Federal, provincial and 3 municipal deals with First Nations. 4 The fact that there happens to be a 5 Federal Department of Indian Affairs is no more probative 6 of anything than the fact that the Government of Ontario 7 has an Ontario Native Affairs Secretariat -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. WILLIAM HENDERSON: -- and a minister 10 responsible. 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. MARK FREDRICK: Well, put it this 13 way, the -- the group with treaty responsibilities to 14 natives is in fact the Federal Government; you understand 15 that? 16 MR. WILLIAM HENDERSON: The Supreme Court 17 of Canada says, no, Commissioner, could we stop asking 18 for conclusions of law? 19 COMMISSIONER SIDNEY LINDEN: Yes, yes. I 20 don't think this is a useful area to probe with this 21 Witness. 22 MR. MARK FREDRICK: Well, I'll keep going 23 until I get it right then, Commissioner, if I may? 24 COMMISSIONER SIDNEY LINDEN: Until you 25 get it which?
1981 MR. MARK FREDRICK: The -- 2 COMMISSIONER SIDNEY LINDEN: I'm sorry. 3 MR. MARK FREDRICK: I'll get it right -- 4 I'll get it right eventually. I'll keep going until I 5 get it right if I can. 6 COMMISSIONER SIDNEY LINDEN: Well, I'm 7 not sure that this is a proper area to probe with this 8 Witness, but let's see where you're going. 9 10 CONTINUED BY MR. MARK FREDRICK: 11 Q: You understood and understood back in 12 September of 1995 that the Federal Government 13 expropriated the land of the Stoney People back in 1942, 14 I take it from the briefing that you did back in August 15 of 1995? 16 MR. DERRY MILLAR: Well, I think he 17 should ask -- 18 MR. MARK FREDRICK: Camp -- Camp 19 Ipperwash? 20 MR. DERRY MILLAR: -- he should ask the 21 question because there's a dispute, that Camp Ipperwash, 22 what is now -- what became Camp Ipperwash was 23 appropriated by the Federal Government in 1942. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 THE WITNESS: Yes.
1991 MR. MARK FREDRICK: You have that 2 understanding? 3 THE WITNESS: I testified to that in- 4 chief. 5 6 CONTINUED BY MR. MARK FREDRICK: 7 Q: Okay. And did you understand then, 8 in 1995, that the Government had made a promise to return 9 that land at some point? 10 A: Yes. 11 Q: As soon as was no longer required 12 was, I believe, the promise. 13 A: Yes. 14 Q: Does that accord with your 15 recollection? And you understood that -- and we all 16 understand World War II ended in 1945, right, and between 17 1946 and 19 -- right up to 1995 that land wasn't returned 18 to the Stoney people? 19 You understood that? 20 A: Yes. 21 COMMISSIONER SIDNEY LINDEN: We've heard 22 an abundance of evidence on these matters, Mr. Fredrick. 23 I'm not sure how this Witness is going to help us any 24 more on those points. 25 MR. MARK FREDRICK: Well, if I may be
2001 allowed a little more leeway. 2 COMMISSIONER SIDNEY LINDEN: Well, I'll 3 try. 4 5 CONTINUED BY MR. MARK FREDRICK: 6 Q: You understood, prior to 1995, that 7 the Federal Government had made promises to return the 8 land back to the Stoney people and had not done that, 9 correct? 10 A: I don't know if I'd understood prior 11 to 1995 because the whole issue of Camp Ipperwash only 12 came to my attention in 1995. 13 Q: Okay. Well, in 1995 you understood 14 that; is that fair? 15 A: Yes. 16 Q: And in fact, that never happened, 17 correct? 18 A: That it was not returned -- 19 Q: Yes. 20 A: -- in 1995. 21 Q: And that failure to return directly 22 and what I suggest is you concluded, that failure to 23 return the land directly led to the occupation of the 24 military base by the dissident group; that's what you 25 understood, correct?
2011 MR. WILLIAM HENDERSON: I would think 2 that's an inference that's for you to draw, Commissioner, 3 as part of your report, if you see fit? 4 MR. MARK FREDERICK: Well I think it was 5 discussed in some of the background papers, and did you - 6 - if the witness had that understanding, I'd like her to 7 answer it. 8 COMMISSIONER SIDNEY LINDEN: If you don't 9 know the answer to any of these questions just say so, 10 but I'm sorry, what's the question again, that the 11 refusal to -- or the failure to return the land? 12 13 CONTINUED BY MR. MARK FREDERICK: 14 Q: The question was, the failure to -- 15 you understood the Stoney people were aggrieved, the 16 dissident group was aggrieved, initially, about not 17 getting their land back, so they occupied the Army Base, 18 correct? 19 A: It was a general understanding that 20 that was the reason behind the occupation. 21 Q: Sure. And there was a link between 22 the occupation of the Army Base and the potential threat 23 to the Park. 24 COMMISSIONER SIDNEY LINDEN: Yes that's - 25 - yes, who's going to object to that?
2021 MR. DERRY MILLAR: Well, I don't know if 2 she can answer -- 3 COMMISSIONER SIDNEY LINDEN: It's one of 4 the -- 5 MR. DERRY MILLAR: -- he can ask -- 6 COMMISSIONER SIDNEY LINDEN: -- one of 7 the key questions of this Inquiry, one of the key 8 questions. 9 MR. DERRY MILLAR: Yeah, like, I don't 10 know if this witness can answer why the peop -- we've 11 heard from the occupiers -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. DERRY MILLAR: We've heard from what 14 the occupiers did and to put this -- this is a not a 15 proper question for -- 16 COMMISSIONER SIDNEY LINDEN: This 17 Witness. 18 MR. DERRY MILLAR: -- this Witness. 19 20 CONTINUED BY MR. MARK FREDERICK: 21 Q: But what you -- what you were able to 22 agree with me before is taking over the Army Base, one of 23 the considerations was they would be involved in the take 24 over Ipperwash Provincial Park, correct? 25 A: I don't recall agreeing to that
2031 statement. I recall that -- that one of the concerns 2 discussed at the Interministerial Committee Meeting was 3 that once they had taken over the Army Base, which was 4 the case as of our August 2nd meeting, there was then a 5 concern that they would then take over or occupy Camp 6 Ipperwash which was -- had a boundary contiguous to the 7 Army Base. 8 Q: Sure, that there would be some -- 9 some -- 10 MR. DERRY MILLAR: I've got to say, I 11 think, Ipperwash Provincial Park. 12 THE WITNESS: Right. 13 MR. DERRY MILLAR: Yeah. 14 THE WITNESS: Right, what -- I'm sorry 15 what -- 16 MR. DERRY MILLAR: You said Camp 17 Ipperwash. 18 THE WITNESS: Sorry, I meant Ipperwash 19 Provincial Park. 20 21 CONTINUED BY MR. MARK FREDERICK: 22 Q: You understood there had been 23 discussion about a concern that this would follow from 24 occupation of the camp, correct? 25 A: Yes.
2041 Q: Okay. And effectively, with that 2 concern being expressed, as of August 1995, to your 3 knowledge, the Federal Government hadn't done anything to 4 then solve the situation at the camp, correct? 5 A: I can't agree with that statement. I 6 don't know there -- I'm sure that they were working on -- 7 Q: Well, you may be sure, but you hadn't 8 heard of anything, correct? 9 A: Well, it wasn't really my job to 10 inquire into what they were doing. 11 Q: Were they -- 12 A: They were obviously aware that there 13 was a conflict and that -- that they had promised to 14 return the Park. 15 Q: Do you -- 16 MR. DERRY MILLAR: Camp. 17 MR. MARK FREDERICK: Camp. 18 THE WITNESS: Oh sorry, the Army Base, 19 sorry. 20 21 CONTINUED BY MR. MARK FREDERICK: 22 Q: Do you believe that the situation, 23 your understanding, your belief that the situation at the 24 camp led to an occupation of the Park? 25 COMMISSIONER SIDNEY LINDEN: Yes, Ms.
2051 Twohig...? 2 MS. KIM TWOHIG: I believe Ms. Jai has 3 testified on several occasions that they received no 4 communication from the occupiers as to why the Park was 5 occupied -- 6 COMMISSIONER SIDNEY LINDEN: It would be 7 pure speculation, wouldn't it? 8 MS. KIM TWOHIG: Yes, it would be pure 9 speculation, thank you. 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MR. MARK FREDERICK: 14 Q: Did you ever liaise with anybody at 15 Indian Affairs as to the reasons for Camp Ipperwash being 16 occupied or their understanding of the reasons? 17 A: Well, I had phone calls with DIAND 18 officials after Camp Ipperwash was occupied. 19 Q: And what did they tell you? 20 A: I can't recall. 21 Q: Do you have any impression -- was any 22 impression left with you as to the reasons why the camp 23 had been occupied? 24 A: Well, as I said in response to one of 25 your earlier questions, that there was a general
2061 impression that the reason for the occupation was that 2 the land -- that there was this long delay in the 3 promised return of the Army Base. 4 Q: Okay. And then you, in giving 5 information and advise and considering strategies, with 6 ONAS, and -- and mechanisms and processes, come to any 7 conclusion that what was going on in the Camp -- what was 8 occurring in the Park were linked? 9 A: I don't think I came to any 10 conclusions. There were many possible reasons for the 11 occupation of the park. We -- I testified earlier that 12 the park had been ceremonially occupied two (2) years 13 previously and that there was reference to a sacred site 14 in the park. 15 Q: Well, if that's the limit of your 16 understanding I don't think I can go much further with 17 you. Thanks very much. 18 A: Thank you. 19 Q: Thanks, Mr. Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 We indicated to Ms. Jai that we would take a break at 22 4:15 so I think we'll take it now. 23 MR. DERRY MILLAR: Sir, perhaps, it could 24 be a short break. 25 THE WITNESS: Yeah, just five (5)
2071 minutes. 2 MR. DERRY MILLAR: Five (5) minutes would 3 be -- 4 COMMISSIONER SIDNEY LINDEN: Just a short 5 break now. 6 MR. DERRY MILLAR: Thank you. 7 THE REGISTRAR: This Inquiry will recess 8 for five (5) minutes. 9 10 --- Upon recessing at 4:21 p.m. 11 --- Upon resuming at 4:28 p.m. 12 13 THE REGISTRAR: This Inquiry is now 14 resumed, please be seated. 15 COMMISSIONER SIDNEY LINDEN: Counsel on 16 behalf of Mr. Beaubien? Yes, sir. 17 MR. TREVOR HINNEGAN: Good afternoon, Mr. 18 Commissioner. 19 COMMISSIONER SIDNEY LINDEN: Good 20 afternoon. 21 MR. TREVOR HINNEGAN: We had reserved a 22 short period of time -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. TREVOR HINNEGAN: -- but in light of 25 what's already been covered that won't be necessary.
2081 COMMISSIONER SIDNEY LINDEN: Thank you. 2 I think Ms. Perschy's up next on behalf of Deb Hutton. 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER SIDNEY LINDEN: You 7 indicated -- Ms. Perschy, you indicated that you might be 8 as much as half a day. Obviously we're not going to 9 finish your cross-examination this afternoon, but we'll 10 start it and go until five o'clock and then it's 11 completed tomorrow. 12 Would that be all right? 13 MS. ANNA PERSCHY: Yes. Thank you, 14 Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Do you still 16 expect to be that length of time or -- 17 MS. ANNA PERSCHY: I hope to be somewhat 18 less. 19 COMMISSIONER SIDNEY LINDEN: That's fine, 20 carry on. 21 22 CROSS-EXAMINATION BY MS. ANNA PERSCHY: 23 Q: Good afternoon, Ms. Jai, my name is 24 Anna Perschy and I believe you heard I'm here on behalf 25 of Ms. Hutton.
2091 Now I understand that back in 1995 you 2 were the Director of Legal Services for ONAS? 3 A: Yes. 4 Q: Could you turn -- I've provided you 5 with some documents. 6 A: Oh, I have not received any 7 documents, but -- 8 Q: Your Counsel is just going to provide 9 them to you. 10 A: Okay. 11 Q: For the -- for the assistance of My 12 Friends it's Document number 3001718. It's the top 13 document in -- on the folder and I believe I've provided 14 you with a sticky as to the -- it's a bundle of a variety 15 of documents and it's actually the -- the document 16 entitled, Ontario Native Affairs Secretariat Briefing 17 Note for the Minister Responsible for Native Affairs, 18 dated June 29th, 1995. It's at about page 11 or so. 19 COMMISSIONER SIDNEY LINDEN: Are these 20 documents in the binder that I have? 21 MR. DERRY MILLAR: We don't have control 22 over other -- 23 COMMISSIONER SIDNEY LINDEN: No. 24 MR. DERRY MILLAR: -- they're supposed to 25 provide copies of documents for you, sir.
2101 COMMISSIONER SIDNEY LINDEN: Well, I 2 don't have any of these -- 3 MS. ANNA PERSCHY: My apologies. I -- I 4 had a copy made for the Witness, I didn't appreciate that 5 you wouldn't have that. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 MS. ANNA PERSCHY: But it is up on the 8 screen. 9 COMMISSIONER SIDNEY LINDEN: That's fine, 10 we'll try to... 11 MR. DERRY MILLAR: And an exhibit number. 12 MS. ANNA PERSCHY: Sorry. 13 14 (BRIEF PAUSE) 15 16 MS. ANNA PERSCHY: I will have copies 17 made, sir. 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: Page 11. This was a briefing note 22 that was prepared for the new minister? 23 A: Yes. 24 Q: And I take it that the purpose of 25 this briefing note was to give the minister some
2111 information regarding ONAS because the minister was 2 responsible for Native Affairs. 3 That was -- that was one of his 4 portfolios, right? 5 A: Yes. 6 Q: The briefing note at the bottom of 7 the first page, and this is the note dated June 29th, 8 1995? 9 A: That's correct. 10 Q: Right. At the bottom of the first 11 page, the briefing note describes the mandate of ONAS and 12 it states: 13 "The secretariat's mandate is to:" 14 Bullet: 15 "Assist the Government of Ontario in 16 creating opportunities and initiatives 17 which advance the recognition of the 18 rights and aspirations of Aboriginal 19 peoples." 20 Next bullet: 21 "To contribute to an improvement in the 22 quality of life of Aboriginal peoples." 23 And next bullet: 24 "Resolve issues of concern to 25 Aboriginal peoples that are within the
2121 Province's authority, responsibility, 2 resources and priorities." 3 That's an accurate description of the 4 mandate of ONAS at the time, in 1995, to the best of your 5 knowledge? 6 A: To the best of my knowledge. 7 Q: And that's a mandate that as a 8 director of ONAS you took seriously and pursued during 9 your tenure -- tenure as Director within ONAS? 10 A: I'm not sure -- I -- I believe I 11 would have but at the time I can't actually recall this. 12 This is the first time -- I mean I may have seen this 13 document in 1995 but right now, this is the first time 14 I'm seeing this document since 1995. 15 Q: I appreciate that but just in terms 16 of your general recollection the -- the principles were 17 outlined in this mandate, that's something as a Director 18 of ONAS you would generally have had tried to pursue? 19 A: Yes. They may have been other 20 mandate documents as well in addition to this one. 21 Q: Fair enough. 22 A: Sometimes the mandate is described in 23 different ways. I guess -- just that I have other 24 recollections of mandate statements that are similar but 25 not exactly like this.
2131 Q: Fair -- fair enough. And the 2 briefing note indicates on the next page that: 3 "ONAS is responsible for leading and 4 implementing Ontario's corporate 5 objectives which included:" 6 Bullet: 7 "Negotiating land claim settlements" 8 Bullet: 9 "Making progress and establishing self- 10 government arrangements." 11 And bullet: 12 "Raising the quality of life in 13 Aboriginals on and off Reserve by 14 improving provincial program and 15 finding arrangements." 16 And again -- 17 A: Funding arrangements. 18 Q: Funding arrangements. My apologies. 19 In terms of your general recollection that accords with-- 20 A: Yes. 21 Q: -- your understanding of ONAS' 22 responsibilities. 23 A: Yes. 24 Q: If you can just let me finish the 25 question before you provide an answer that'll just make
2141 the record clearer. 2 And again, you took those responsibilities 3 of ONAS seriously and sought to implement those 4 objectives? 5 A: Yes. 6 Q: If I could just have -- make this 7 briefing note the next exhibit. 8 A: I didn't write this note. I guess 9 you know that I was -- I was not involved in writing this 10 note 11 Q: No, I appreciate that. It -- it's 12 simply for purposes of assisting in terms of the record. 13 MR. DERRY MILLAR: Does My Friend have a 14 copy for the Registrar or -- or can we take the copy that 15 the Witness has? The pages -- 16 MS. ANNA PERSCHY: The four (4) or five 17 (5) pages? 18 MR. DERRY MILLAR: The -- the few pages 19 that are there that relate to this. 20 MS. ANNA PERSCHY: Yes, I was just going 21 to suggest that. I'm now finished with that document. 22 MR. DERRY MILLAR: Perhaps Mr. Hewitt, 23 you could give us back the document so we could identify 24 which of the pages? 25
2151 (BRIEF PAUSE) 2 3 And this document appears to have been 4 prepared by Lease Hanson, Director of Negotiations 5 Support. And there's a note at the top, "[something] 6 wrong date". 7 THE REGISTRAR: That would be P-704, Your 8 Honour. 9 COMMISSIONER SIDNEY LINDEN: P-704. 10 11 --- EXHIBIT NO. P-704: Document Number 3001718. 12 ONAS briefing note for the 13 Minister responsible for 14 native affairs. Prepared by: 15 Lise Hansen, Director, 16 Negotiations Support June 17 29/95. 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: You testified about the land claims 21 process. Prior to 1995 the Provincial Government had set 22 up the land claims process for Aboriginal land claims so 23 that where appropriate the land claims could be resolved 24 for negotiation and not litigation in the courts; is that 25 right?
2161 A: Yes. 2 Q: And you testified that the document, 3 I believe it's Tab 8 of Commission Counsel's materials, 4 accurate -- accurately describes the land claims process? 5 A: Yes. 6 Q: And that was the process that was in 7 place when you joined in 1994, right? 8 A: Yes. 9 Q: And I take it, did you understand 10 that that was also the process that existed in 1993? 11 A: I wouldn't know that. I hadn't -- I 12 wasn't a member of the Ontario Native Affairs Secretariat 13 then, so I have no idea what changes -- 14 Q: Fair -- 15 A: -- was being made. 16 Q: Fair enough. But you don't have any 17 information that significant changes were made in 1994 -- 18 A: Correct. 19 Q: -- to the process? 20 Now, this process is with regard to Crown 21 Lands in Ontario, land whose title is held by the 22 Province or the Federal Crown on behalf of the people? 23 A: Well, it was with respect to land in 24 Ontario, more broadly. 25 Q: Fair enough. And you testified that
2171 the process is initiated by First Nations people 2 submitting a claim in writing with some historical 3 evidence in support to the Provincial Government? 4 A: Yes. 5 Q: And as I understand it, ONAS policy 6 was to only review land claims that had been filed with 7 the Government, right? 8 A: Yes. 9 Q: ONAS didn't, on its own, decide to 10 review possible land claims, they waited for the filing? 11 A: That's correct. 12 Q: And then that policy left it up to 13 the First Nation peoples to decide which claims they 14 wanted the Government to address? 15 A: Yes. 16 Q: Now, I understand that ONAS policy 17 was that it would accept and review land claims from any 18 Aboriginal group or community not just a recognized First 19 Nations; is that your understanding? 20 A: Yes. 21 Q: And you testified that the claim 22 filed with the Provincial Government would preferably 23 include supporting historical and other documentation. 24 I take it that the First Nations people 25 did not to have to provide a preponderance of evidence in
2181 support in order for the Government to receive the claim 2 for filing? 3 They just had to submit the claim? 4 A: The claim and some reasons or 5 evidence supporting the claim. 6 Q: And you testified that ONAS would 7 then review the claim to determine if any further 8 historical research was required and, if that research 9 was required, I take it that ONAS would then conduct that 10 research? 11 A: It would conduct it or engage a 12 private contractor to conduct it. 13 Q: And I think you testified that there 14 was a group within ONAS that conducted the historical 15 research? 16 A: Yes. 17 Q: And I take it that in your position 18 as director of the legal area, you had occasion to see 19 some of that historical research that was done by ONAS? 20 A: Yes. 21 Q: And a number of civil servants within 22 ONAS were employed in conducting the historical research? 23 A: A fairly small number, maybe one (1) 24 or two (2) people. John Van West was one of the people. 25 Q: Okay. And from your experience in
2191 having seen some of the work that was done, I take it 2 that you knew that a lot of work went into doing that 3 research thoroughly and carefully, right? 4 A: Yes, very time consuming work. 5 Q: And I take it that ONAS research 6 would search for all the relevant information, including 7 any that would support the claim of the First Nations 8 people? 9 A: Yes. 10 Q: And you testified that ONAS would 11 then conduct a legal review to determine if the claim had 12 legal merit and whether to accept it for negotiation? 13 A: Yes. 14 Q: And I take it that that legal review 15 is necessary because the Government is supposed to act on 16 a principled, legal basis? 17 The Government can't just give away Crown 18 lands or provide compensation just because someone 19 asserts a claim, right? 20 A: Yes. 21 Q: And without proper research, 22 historical research and legal review, the Province 23 wouldn't know if others might assert a right to the same 24 land, or who had a right to it? 25
2201 A: That's correct. 2 Q: Now, I understand that in reviewing 3 land claims, ONAS policy was also to assess the fairness 4 of Ontario's past actions or errors, right? 5 A: Yes. 6 Q: And you testified that as director, 7 you were involved in the legal review process. You 8 directed the legal department that conducted these 9 reviews, right? 10 A: Yes. 11 Q: And again a number of civil servants 12 were employed in conducting the legal -- legal review? 13 A: Yes. 14 Q: And you were personally involved in 15 these legal reviews? 16 A: I would -- I didn't conduct any of 17 them myself. 18 Q: But you oversaw it? 19 A: I oversaw some of them. 20 Q: And from your experience you know 21 that a lot of work went into doing the legal review 22 thoroughly and carefully, right? 23 A: Yes. 24 Q: And you testified that once the legal 25 review was complete more senior people within ONAS and
2211 possibly Cabinet would decide whether or not to accept 2 the claim for negotiation? 3 A: Yes, we would make a recommendation 4 based on the legal and historical review and the 5 materials received from the First Nation and that 6 recommendation would then be reviewed at a more senior 7 level. 8 Q: And I understand it -- I understand 9 that ONAS policy generally was to prefer negotiation over 10 litigation, correct? 11 A: Yes. 12 Q: But in making the recommendation that 13 you've described the historical research, the legal 14 review, and an assessment of Ontario's past actions had 15 to be taken into account? 16 A: Yes. 17 Q: And I take it that not -- that 18 negotiation would not be appropriate for every claim? 19 A: Yes, that's correct. 20 Q: And the assessment that we've just 21 talked about, the historical research, the legal review, 22 the assessment of Ontario's past actions, might in fact 23 determine that a claim had no merit? 24 A: Yes. 25 Q: Alternatively, a claim might raise
2221 issues which required a decision from the courts to 2 provide clarity as to legal entitlements, right? 3 There might be some reason why it needed 4 to be resolved by the courts? 5 A: That's possible. I would say that in 6 many of those situations that would not preclude us 7 recommending negotiation. 8 A: Fair enough. 9 Q: And you then testified that the 10 parties would typically enter into a framework agreement 11 and then engage in substantive negotiations? 12 A: Yes. 13 Q: And I understand that one (1) of the 14 principles of, sort of, the land claims policy was that 15 the Federal Government would be involved in the 16 negotiations, right? 17 A: Yes. 18 Q: And in fact as of '90/'95, Ontario 19 had not conducted any negotiations involving land claims 20 without involving the Federal Government, right? 21 A: I believe that's the case. I -- I 22 can't remember 100 percent, but that seems likely. If we 23 had it would have been very exceptional. 24 Q: And do I take it that the policy of 25 involving the Federal Government was in recognition of
2231 the Federal Government's constitutional powers with 2 respect to Indians and lands reserved for them? 3 A: It was with -- partly in recognition 4 of their Section 92(14) response, Constitutional 5 responsibilities and the fact that they were signatories 6 to treaties that had been made with the First Nations. 7 Q: Now, you testified in-chief that the 8 Federal -- 9 A: Oh, I'm sorry. What -- I really feel 10 that I misquoted that section of the Constitution, did I 11 say 91(24)? 12 COMMISSIONER SIDNEY LINDEN: No, you said 13 92(14). 14 THE WITNESS: Sorry. It should have been 15 -- I think it should have been 91(24), but I'm sure this 16 isn't a test. 17 MS. ANNA PERSCHY: It's the 18 constitutional powers. 19 THE WITNESS: Yes. 20 MS. ANNA PERSCHY: Fair enough. 21 22 CONTINUED BY MS. ANNA PERSCHY: 23 Q: You testified that the Federal 24 Government provides funding to First Nations people for 25 their negotiator.
2241 But I understand that between 1993 and 2 1995 the Ontario government also provided negotiation 3 funding to Aboriginal organizations for things such as 4 community consultations, negotiators, legal services, 5 travel, meeting costs, and other costs associated with 6 participating in negotiations? 7 A: Yes, I believe that's true. 8 Q: So, between 1993 and 1995 the 9 Provincial Government had invested some significant 10 resources in terms of people and money to this land 11 claims process? 12 A: Yes. 13 Q: And if you could actually look at the 14 briefing document which is at Tab 20 of Commission 15 Counsel's materials? 16 COMMISSIONER SIDNEY LINDEN: Exhibit C -- 17 MR. DERRY MILLAR: P-642. 18 COMMISSIONER SIDNEY LINDEN: P-642. 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY MS. ANNA PERSCHY: 23 Q: And I'm looking at that portion of 24 the briefing that's towards the end, it's the slide that 25 begins:
2251 "What funding does ONAS provide to 2 Aboriginal organizations to participate 3 in negotiations and how are the funds 4 administered." 5 A: Could you give the page number? 6 Q: It's page 11 towards the back. And 7 just to assist you, the heading on the page is, "Support 8 the community negotiations fund, expenditures and 9 allocations." 10 A: I think we're looking at two (2) 11 different documents. 12 COMMISSIONER SIDNEY LINDEN: Yes, we are. 13 14 CONTINUED BY MS. ANNA PERSCHY: 15 Q: Okay. P-642, the briefing materials 16 on Aboriginal issues. There's a series of slides and 17 they all have their own numbering schemes, unfortunately. 18 A: I don't know, the document that I 19 have which is dated August 11th. Is that the one you're 20 looking at, 1995 Briefing on Aboriginal affairs for 21 Premier's Office Staff?" 22 It's a slide presentation, it's forty- 23 eight (48) pages and it's numbered consecutively from 24 pages 1 to 48. 25 Q: My apologies.
2261 COMMISSIONER SIDNEY LINDEN: On page 11 2 the title is, "The General Rule." 3 MS. ANNA PERSCHY: All right. Let me 4 give you -- I've got another copy which I'll just 5 provide. But it's Document Number 3001721 for the 6 assistance of My Friends. I'll just get another copy of 7 the document. 8 9 (BRIEF PAUSE) 10 11 MS. ANNA PERSCHY: It appears that the 12 document that I had, had a couple of documents bundled 13 in. But you'll be provided with a copy momentarily. 14 MR. DERRY MILLAR: The document that was 15 marked P-642 was a forty-eight (48) page document that 16 goes down to page -- page -- My Friend is now referring 17 to a document that has information on it. 18 It's -- it's not been marked as an 19 exhibit. Additional information on Aboriginal affairs - 20 Premier's Office Staff that has the date on it August 21 23rd, 1995. 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER SIDNEY LINDEN: You
2271 mentioned 300171. The number I have is 3001721. 2 MS. ANNA PERSCHY: Two one (21). It 3 should be 3001721. 4 MR. DERRY MILLAR: But, the -- what was 5 marked did not include this provision, this part here. 6 So I'll put this up on the screen and it'll have to be 7 marked as an exhibit. 8 THE WITNESS: Yeah. I've not seen this 9 document and at the time that it was prepared or the date 10 of the document, I was on vacation. 11 12 CONTINUED BY MS. ANNA PERSCHY: 13 Q: Okay. But if you could turn to page 14 11 of this slide information? 15 A: Yes. 16 17 (BRIEF PAUSE) 18 19 Q: It's a little bit further along. 20 That's the page. Do you have that, it's five (5) pages 21 further along than -- 22 A: Oh. You mean -- I have page 11. You 23 want -- 24 Q: Yes. Is -- is this the page that you 25 have that's up -- up on the screen?
2281 A: Yes. 2 Q: Okay. If you look at this document, 3 I appreciate you may have not -- not have seen this 4 document at the time but you may be aware of the 5 information that's contained in it. 6 The document which is entitled, Support 7 for Community Negotiations Fund, Expenditures and 8 Allocations, indicates that between 1993 and 1995 the 9 Provincial Government expended approximately $3.5 million 10 just in negotiation funding for Aboriginal communities. 11 Does that generally accord with your 12 understanding? Not -- not to the dollar. 13 A: I -- I don't know the amounts. But I 14 agree that the Ontario Government did provide negotiating 15 -- negotiations funding to Aboriginal communities or 16 organizations. 17 Q: And -- and you don't have any reason 18 to believe that the figures -- the amounts involved were 19 something in this range? 20 A: I have no reason to believe that this 21 is not accurate. 22 Q: Fair enough. 23 A: And that doesn't include the salaries 24 of civil servants at ONAS or other costs involved in 25 historical research, the legal review and the
2291 Government's involvement in negotiations. This is just 2 with respect to funding that's provided to the Aboriginal 3 communities. 4 Q: Yes. So it would be fair to say that 5 between 1993 and 1995 the Provincial Government spent at 6 least several million dollars of taxpayers' money to fund 7 this land claims process, right? 8 A: Based on this document that appears 9 to be the case. 10 Q: And -- and you don't have any reason 11 to believe otherwise? 12 A: Right. 13 Q: Now I understand that the land claims 14 -- I -- I'm finished with this document so we could 15 actually make that the next exhibit. 16 MR. DERRY MILLAR: Do you have a copy for 17 the Registrar? 18 MS. ANNA PERSCHY: If you want. 19 20 (BRIEF PAUSE) 21 22 THE REGISTRAR: P-705, Your Honour. 23 COMMISSIONER SIDNEY LINDEN: P-705. 24 25 --- EXHIBIT NO. P-705: Document Number 3001721.
2301 Additional information on 2 Aboriginal affairs for 3 Premiers office staff, Aug 4 23/95. 5 6 CONTINUED BY MS. ANNA PERSCHY: 7 Q: Now, I understand that the land 8 claims process and negotiations could be quite lengthy. 9 A: Yes. 10 Q: You testified to that. And I believe 11 that you testified that one of the reasons for this is 12 that these claims are quite complex and may involve 13 massive amounts of historical material. 14 A: Yes. 15 Q: And do I take it that another reason 16 for the time involved with that would be that, with 17 respect to negotiations, the Aboriginal community would 18 need to consult among themselves and reach agreement? 19 A: That would be one part of it. I 20 wouldn't say that that would be the more time consuming 21 part of it. There would also be all of the interests of 22 other parties, third parties, that would have to be, you 23 know, considered and taken into account. 24 Q: All of those things need to be 25 taken --
2311 A: All of those things taken. 2 Q: -- and all of them took time? 3 A: They all take time. 4 Q: Now, even though this process was 5 time consuming as of 1995 a number of First Nations 6 people had chosen to enter into this process and submit a 7 claim, right? 8 A: Yes. 9 Q: In fact I believe that there were 10 over eighty (80) land claims that had been submitted, 11 right? 12 A: Something like that, yes. 13 Q: Between September 1994 when you 14 became Director of ONAS Legal Services and September of 15 1995, how many occupations were there in regard to land 16 claims? 17 A: I don't recall that there were any 18 other than the Ipperwash Provincial Park occupation. 19 Q: You don't recall any other than the 20 Ipperwash? 21 A: Right. 22 Q: So it would be fair to say that in 23 this timeframe with respect to the majority of land claim 24 -- land claims, First Nation peoples generally chose to 25 have their land claims raised in this forum, to file
2321 their claim with the province rather than engaging in an 2 occupation? 3 A: I -- I'd rather not generalize about 4 what First Nations chose to do in their -- 5 Q: Well, they submitted the claim? 6 A: A hundred (100) of them so, in 7 Ontario. 8 Q: A lot of people had filed the 9 claims -- 10 A: Yes. 11 Q: -- with the province. 12 A: Yes. 13 Q: They hadn't engaged in occupations; 14 that was your -- 15 A: Correct. 16 Q: -- information? If you could turn to 17 Commission Counsel's Tab 9, it's the two (2) briefing 18 notes dealing with the Interministerial Committee? 19 A: Yes. 20 21 (BRIEF PAUSE) 22 23 Q: These are the two (2) briefing notes 24 I believe dated July 10th, 1995 and September 6th, 1995 25 which set out the procedures for dealing with Aboriginal
2331 emergencies. 2 A: Yes. 3 Q: And both those versions state that 4 the issue is, quote: 5 "How to ensure that adequate processes 6 are in place so that Aboriginal 7 emergencies including blockades and 8 other forms of direct action can be 9 prevented or if not prevented resolved 10 as quickly and safely as possible." 11 A: Yes. 12 Q: So assuming you couldn't prevent it 13 in the event that there was a blockade or some other 14 direct action occurred, the Government's stated goal was 15 to resolve it or end it as quickly and safely as 16 possible, right? 17 A: Yes. 18 Q: Do you know what was meant by, 19 "direct action?" 20 A: Yes. 21 Q: What did it mean? 22 A: Where people take action rather than, 23 let's say, pursuing a land claim or litigation but, for 24 example, having a demonstration would be direct action. 25 Occupying a building would be direct action. A blockade
2341 or a -- the occupation of Ipperwash Provincial Park, 2 those are all examples of direct action. 3 Q: So it's -- it's an umbrella term? 4 A: Yes. 5 Q: Fair enough. Now both briefing notes 6 referred to the Interministerial Committee as being the 7 main mechanism for coordinating the response and -- and 8 that's your understanding, right? 9 A: Yes. 10 Q: And this committee was responsible 11 for developing recommendations and ensuring that there 12 was adequate information for all affected groups, both 13 internally within the Government and also with respect to 14 the general public, right? 15 A: Well, internally within government 16 would have been our priority I think. Communications 17 with the general public would have been something that 18 would have been handled by the communications staff in 19 consultation with the Committee. 20 Q: Fair enough. 21 22 (BRIEF PAUSE) 23 24 Q: And on the second page of both 25 documents there's a reference to the principles involved
2351 that would guide the Government's response to emergencies 2 and effectively there -- there -- there were three (3) 3 guidelines, three (3) principles: 4 "1. Preventing violence, property 5 damage or personal injury. 6 2. Timely lifting of a blockade for 7 negotiations. 8 3. Review of Aboriginal grievances and 9 issues and the establishment of 10 processes to address them, however, no 11 substantive negotiation is to occur 12 until after the blockade is lifted?" 13 A: Yes. 14 Q: And those were the principles. So it 15 was clear from these procedures that there was to be no 16 substantive negotiations until the blockade or other 17 direct action ended? 18 A: Yes. 19 20 (BRIEF PAUSE) 21 22 Q: And for the benefit of My Friends, 23 the two (2) documents that I'm looking at, the one dated 24 July 10th, 1995 the briefing note, is Exhibit P-303, 25 document number 1011557, and the second document, which
2361 is a briefing note dated September 6th, 1995, is Exhibit 2 P-498, Inquiry Document number 1010501. 3 Now, the second point -- the second bullet 4 point in terms of these principles, refers to blockades 5 and this Committee was also known as the Blockade 6 Committee? 7 A: Yes. 8 Q: And I think you've testified to this 9 that -- that many of the emergencies dealt with this -- 10 dealt with by this Committee were situations with First 11 Nations people would blockade a highway, for example, in 12 order to draw attention to another issue, such as an 13 environmental contamination, for example? 14 A: Yes. 15 Q: And the briefing note also refers to 16 occupations and I take it with respect to an occupation, 17 that could be, for example, a sit in at a public place 18 such as Queen's Park or a local ministry office, in order 19 to draw government attention to an issue, that that's an 20 example of an -- 21 A: Yes. 22 Q: -- occupation? But the term 23 'occupation' could also refer to a situation where a 24 group simply takes physical control of land with respect 25 to which they regard that they have some sort of claim,
2371 right? 2 A: Yes. 3 Q: And that's effectively some sort of 4 self help remedy? 5 A: Yes. 6 Q: Where a group is engaging in a 7 blockade, the blockade, the means used, the blockade 8 while it may raise awareness or exert some sort of 9 pressure on the Government, it doesn't achieve any of the 10 groups ultimate objectives? 11 That blocking the highway doesn't fix the 12 environmental issue, for example? 13 A: Right. But if it can bring attention 14 to the issue so that there is a process for resolving the 15 issue, then in that way it can solve the ultimate issue. 16 COMMISSIONER SIDNEY LINDEN: Ms. Perschy, 17 I don't want to interrupt you in the middle of a point, 18 but I indicated to Ms. Jai that we would finish around 19 5:00. 20 Can you finish the point you're on in a -- 21 MS. ANNA PERSCHY: I will finish the 22 point briefly and -- 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 MS. ANNA PERSCHY: -- end for the day. I 25 lost track of time. My apologies.
2381 COMMISSIONER SIDNEY LINDEN: That's fine. 2 3 CONTINUED BY MS. ANNA PERSCHY: 4 Q: But the blockade in of itself doesn't 5 achieve a goal, it just raises the awareness? 6 A: If it's a road blockade, yes. 7 Q: Right. Now, in contrast, where a 8 group wants some land, believes that it's entitled to 9 some land and simply takes control of that land, by doing 10 that they've actually got control of the land. 11 The means employed in the occupation have 12 that result? 13 A: Yes. 14 Q: And unless and until the Government 15 takes legal action to get the land back, the group 16 continues to have that land, right? 17 A: They have control over it, yes. 18 Q: You'll be happy to know, 19 Commissioner, that I can stop right there. 20 COMMISSIONER SIDNEY LINDEN: That's a 21 good point to stop for the day then, and we'll reconvene 22 tomorrow morning at 9:00, and thank you very much. 23 24 (WITNESS RETIRES) 25
2391 THE REGISTRAR: This Public Inquiry is 2 adjourned until tomorrow, Tuesday September 13, at 9:00 3 a.m. 4 5 --- Upon adjourning at 5:06 p.m. 6 7 8 9 10 Certified Correct 11 12 13 14 15 ________________________ 16 Dustin Warnock 17 18 19 20 21 22 23 24 25