1
  1  
  2  
  3                 IPPERWASH PUBLIC INQUIRY
  4  
  5  
  6  
  7                   ********************
  8  
  9  
 10  BEFORE:        THE HONOURABLE JUSTICE SIDNEY LINDEN,
 11                 COMMISSIONER
 12  
 13  
 14  
 15  
 16  Held at:       Forest Community Centre
 17                 Kimball Hall
 18                 Forest, Ontario
 19  
 20  
 21                   ********************
 22  
 23  
 24                     August 17th, 2004
 25  

2
  1                        Appearances
  2  
  3  Derry Millar      )             Commission Counsel
  4  Susan Vella        )
  5  Donald Worme, Q.C. )
  6  Katherine Hensel   )
  7  
  8  Murray Klippenstein )            The Estate of Dudley 
  9  Vilko Zbogar       )  (np)      George and George Andrew
 10  Andrew Okin        )            Family Group
 11  
 12  Peter Rosenthal  )              Aazhoodena and George
 13  Jackie Esmonde   )              Family Group
 14  
 15  Anthony Ross     )              Residents of 
 16  Kevin Scullion   )              Aazhoodena
 17                                   (Army Camp)
 18  
 19  William Henderson )              Kettle Point & Stony
 20  Jonathon George  )              Point First Nation
 21  
 22  Walter Myrka     )              Government of Ontario
 23  Kim Twohig       )   (np)
 24  Sue Freeborn     )
 25  

3
  1                   APPEARANCES (cont'd)
  2  
  3  Janet Clermont   )              Municipality of 
  4  David Nash       )              Lambton Shores
  5  
  6  Peter Downard    )              The Honourable Michael
  7  Bill Hourigan    )   (Np)       Harris
  8  Jennifer McAleer )
  9  
 10  Nancy Spies      )   (Np)       Robert Runciman
 11  Alice Mrozek     )   (Np)
 12  
 13  Harvey Stosberg  )   (Np)       Charles Narnick
 14  Jacqueline Horvat )
 15  
 16  Douglas Sulman, Q.C. )           Marcel Beaubien
 17  Trevor Hinnegan     ) (Np)
 18  
 19  Mark Sandler       )            Ontario Provincial 
 20  Andrea Tuck-Jackson ) (np)       Police
 21  
 22  Ian Roland       )              Ontario Provincial 
 23  Karen Jones      )              Police Association &
 24                                   K. Deane
 25  

4
  1                   APPEARANCES (cont'd)
  2  
  3  Julian Falconer  )   (np)       Aboriginal Legal 
  4  Brian Eyolfson   )              Services of Toronto
  5  Julian Roy       )
  6  
  7  Al J.C. O'Marra  )              Office of the Chief
  8                                   Coroner
  9  
 10  William Horton   )              Chiefs of Ontario
 11  Matthew Horner   )   (Np)
 12  Kathleen Lickers )   (Np)
 13  
 14  Mark Frederick   )   (np)       Christopher Hodgson
 15  Craig Mills      )
 16  
 17  David Roebuck    )   (Np)       Debbie Hutton
 18  Anna Perschy     )   (Np)
 19  
 20  
 21  
 22  
 23  
 24  
 25  

5
  1                     TABLE OF CONTENTS
  2                                                PAGE NO.
  3  List of Exhibits                              6
  4  
  5  JOAN MARGARET HOLMES, Sworn
  6  
  7                   (VOIR DIRE COMMENCED)
  8  Examination-in-Chief by Ms. Susan Vella       12
  9                   (VOIR DIRE CONCLUDED)
 10  
 11  Examination-in-Chief by Ms. Susan Vella       24
 12  
 13  
 14  Certificate of Transcript                     183
 15  
 16  
 17  
 18  
 19  
 20  
 21  
 22  
 23  
 24  
 25  

6
  1                        LIST OF EXHIBITS
  2  EXHIBIT NO.      DESCRIPTION                  PAGE NO.
  3  P-7            Expert Brief, consisting of 
  4                 Report by Joan Holmes,
  5                 appendices, Power Point 
  6                 presentation slides
  7                 and curriculum vitae
  8                 of Joan Holmes.                25
  9  P-8            Book of Documents.             26
 10  P-9            CD-Rom Containing PowerPoint
 11                 Presentation.                  27
 12  
 13  
 14  
 15  
 16  
 17  
 18  
 19  
 20  
 21  
 22  
 23  
 24  
 25  

7
  1  --- Upon commencing at 10:30 a.m.
  2  
  3                 THE REGISTRAR:   This Public Inquiry is
  4  now in session, the Honourable Mr. Justice Linden
  5  presiding.  Please be seated.
  6                 COMMISSIONER SIDNEY LINDEN:   Once again,
  7  good morning to everyone.  I don't intend to make an
  8  opening statement after every adjournment, but it's been
  9  a month since we last convened, and these are still very
 10  early days for this Inquiry.  So, I think it's
 11  appropriate for me to say just a few words before we
 12  begin.
 13                 The three (3) Hearing days this week are
 14  dedicated to continuing, and hopefully concluding, the
 15  overview of historical facts and events affecting the
 16  Aboriginal people and land in this region.
 17                 Our objective is to provide some
 18  historical context to assist in our understanding of the
 19  events that occurred in September 1995.  
 20                 A great deal of time has passed since
 21  those events, and many people's lives have been
 22  affected.  One only needs to look around the room at the
 23  seventeen (17) diverse parties who have been granted
 24  standing at this Hearing, and the others who have been
 25  granted standing for Part II, to appreciate the range

8
  1  and scope of interests affected.
  2                 Many are relying on the outcome of this
  3  investigation.  Among our objectives for this Inquiry is
  4  to provide closure and a foundation for healing, and
  5  improved relations for those affected.  Long after this
  6  Inquiry has completed its work, many of the parties
  7  whose interests are represented here will need to
  8  continue to live and work together.
  9                 As I stated at the opening of our Hearing
 10  on standing in April, unlike a trial, a Public Inquiry
 11  is expected to go beneath the surface of the controversy
 12  that gave rise to its need, and to consider the broader
 13  context in which the events occurred.
 14                 I was encouraged by the response to
 15  Professor Darlene Johnston's testimony in July.  There's
 16  no doubt that Professor Johnston's evidence will
 17  contribute to the Commission's efforts to provide
 18  context, to broaden understanding, and to raise
 19  awareness of the Aboriginal history of the Ipperwash
 20  area.
 21                 Today the Commission will be calling
 22  Professor Joan Holmes, whose testimony is expected to
 23  build on the historical overview commenced by Professor
 24  Johnston.
 25                 Professor Johnston focussed on the period

9
  1  before Aboriginal contact with the Europeans, and
  2  examined some of the more important Treaties and events
  3  after contact and up to the 19th Century.
  4                 There may be some overlap, but Professor
  5  Holmes' testimony is expected to add further historical
  6  texture, and will continue right up to the period of
  7  time in question.
  8                 When the evidentiary hearings continue on
  9  a more regular pattern in September, there may be other
 10  junctures at which context or background may be useful. 
 11  As everyone knows, a great deal of work is being
 12  undertaken by the Commission, much of it with the
 13  assistance of parties, and that work is progressing
 14  concurrently with these evidentiary Hearings.
 15                 The complete record, that is the evidence
 16  of these Hearings, together with the background policy
 17  work that is being done in Part II, will be used to
 18  write the final report and make recommendations to the
 19  Government.
 20                 The Osgoode Symposium that took place in
 21  June is a good example.  The papers presented at that
 22  Symposium are now on our website, and I expect that they
 23  will become a valuable resource as we proceed.
 24                 Professor Johnston's paper is also on the
 25  website and Professor Holme's will be posted as well.

10
  1                 I now call on Mr. Derry Millar.
  2                 MR. DERRY MILLAR:   Thank you,
  3  Commissioner, good morning.
  4                 Before we start today, I would like to
  5  attend to some housekeeping details.  First we will be
  6  sitting today until 5:30, we will break for lunch at
  7  1:00 p.m., until 2:15 p.m.  Wednesday and Thursday we
  8  will start at 10:00 a.m. and sit to 4:30, and we will
  9  have the same lunch break.
 10                 And secondly, we've created a sign-in
 11  sheet and -- that's going to be at the reporter's spot
 12  at her table, and we would ask every day that people
 13  check off or initial that they're here.  It's been done
 14  -- I think I've gotten everybody today that's here thus
 15  far, but if nothing changes from day to day, we can
 16  simply leave it.  But we want to make sure, for the
 17  transcript, that we capture who's here for a party.
 18                 Thirdly, we've had requests for
 19  additional seating at the counsel table, and we've added
 20  some spots.  We've determined that we can add some space
 21  to this configuration, which would permit additional
 22  counsel.  We may have counsel who, on a particular day,
 23  may or may not attend, which will again free up some
 24  space.
 25                 But I would like anyone who seriously

11
  1  believes that they need space for a second counsel to
  2  let me know, and depending on the number of requests, we
  3  will attempt to accommodate the requests for the
  4  September Hearings.  We're not going to be able to do it
  5  this week, and it may necessitate moving to a different
  6  row, but we'll try -- try our best to do that.
  7                 And for today, if people, as people are,
  8  if they want to add an extra chair, that's fine.  But we
  9  will in the in the future try to see if we can get some
 10  more space.
 11                 A reminder to everyone that the
 12  transcripts are available on our website, which is
 13  www.ipperwashenquiry.ca and as you said, Commissioner,
 14  we're going to be hearing from Joan Holmes this week and
 15  Ms. Vella is going to be leading Ms. Holmes.
 16                 I may have mis-spoke myself, we're ending
 17  at 5:00 today not 5:30.
 18                 COMMISSIONER SIDNEY LINDEN:   Good
 19  morning.
 20                 MS. SUSAN VELLA:   Good morning, Mr.
 21  Commissioner.  The Commission calls Joan Holmes to the
 22  stand, please.
 23                 REGISTRAR:   Would you state your name in
 24  full, please for the record?
 25                 MS. JOAN HOLMES:   Joan Margaret Holmes.

12
  1                   JOAN MARGARET HOLMES; Sworn
  2  
  3                 MS. SUSAN VELLA:   Commissioner, you
  4  should have before you the expert brief of Joan Holmes
  5  which consists of the reports, the glossary of terms,
  6  the description of Chiefs names and totems, text of
  7  Surrender 29, selected population status statistics.  At
  8  Tab 2, a hard copy of Ms. Holmes' PowerPoint
  9  presentation.  Tab 3, copy of the curriculum vitae.
 10                 In addition, you should have before you
 11  Ms. Holmes' document brief containing a hundred and
 12  thirty  (130) documents and an index which is a certain
 13  selection of documents which may be referred to.  The
 14  selection is drawn from the larger grouping of
 15  historical documents disclosed to all counsel in Volume
 16  8 of the CD rom and for information of counsel, I will
 17  refer to the Inquiry document number so that you can
 18  obtain that document on your computer screens.
 19                 COMMISSIONER SIDNEY LINDEN:   Everything
 20  is in order.
 21  
 22                   (VOIR DIRE COMMENCED)
 23  
 24  EXAMINATION IN-CHIEF BY MS. SUSAN VELLA:
 25                 Q:   Thank you.  Ms. Holmes, I understand

13
  1  that you graduated with an Honours Bachelor of Arts and
  2  Anthropology from the University of Winnipeg in 1981?
  3                 A:   That's correct.
  4                 Q:   And what does the study of
  5  anthropology involve?
  6                 A:   The study of anthropology involves
  7  the -- it's broken down into several areas.  Cultural
  8  anthropology studies the culture of human societies and
  9  normally concentrated on what we call small scale
 10  societies as opposed to large industrial society.
 11                 It also looks at physical anthropology
 12  which is the -- the study of the human skeleton and our
 13  -- our primate ancestors.  And archaeology is also
 14  considered part of -- of anthropology and linguistics
 15  and the area that I really worked in was in cultural
 16  anthropology.
 17                 Q:   Thank you.  I understand you
 18  graduated with a Masters of Arts in Northern and Native
 19  issues from the Institute of Canadian Studies from
 20  Carlton University?
 21                 A:   Yes, that's correct.
 22                 Q:   And did you write a thesis for that?
 23                 A:   Yes, I did.
 24                 Q:   What did your thesis address in
 25  brief?

14
  1                 A:   My thesis was about the erosion of
  2  Indian land rights in northern Ontario and I looked
  3  specifically at northwestern Ontario which is part of
  4  Treaty Number 9.  And what I was -- what I was examining
  5  was in Treaty Number 9 which was made between the
  6  Nishnawbe and the Crown in 1905 with an adhesion in
  7  1929.  In -- in that area the people ceded their land
  8  but they retained rights to use land that hadn't already
  9  been taken up for settlement so they weren't used for
 10  other purposes.
 11                 And the -- the land use planning process
 12  that went on in the -- the early 1980s, which is when I
 13  was working on my thesis, that land use planning was in
 14  fact putting in regulations and laws that was going to
 15  affect the way in which those Treaty 9 people could
 16  continue to use that land.  So, I looked at that --
 17  that's -- that's basically what I was looking at there.
 18                 Q:   Thank you.  I understand you are
 19  currently the president of Joan Holmes and Associates
 20  Incorporated, in Ottawa?
 21                 A:   I am.
 22                 Q:   And what is your company's primary
 23  focus?
 24                 A:   We do work on historical studies in
 25  -- in relation to land claims and aboriginal rights. 

15
  1  Most of our work is historical, looking at the
  2  relationship between the Crown and various First
  3  Nations.
  4                 Q:   Okay.  And how long, approximately,
  5  have you been engaged in this business?
  6                 A:   Professionally, twenty-one (21)
  7  years.
  8                 Q:   Thank you.  I understand that in the
  9  course of your position with Joan Holmes and Associates,
 10  you have acted on behalf of First Nation's governments,
 11  and under joint retainers on behalf of First Nations and
 12  Government; is that correct?
 13                 A:   Yes, that is.
 14                 Q:   Have you been qualified as an expert
 15  witness before the Court before?
 16                 A:   Yes, I have, in -- in a number of --
 17  of different cases, the -- the first one (1) where I was
 18  an expert witness was I think around 1992 -- '96, sorry. 
 19  And I was -- I was an expert witness in a -- in the case
 20  that was called Grand Chief Mike Mitchell v. The
 21  Minister of National Revenue, it was in the Federal
 22  Court, and I testified for Mike Mitchell, who was the
 23  Grand Chief of Akwesasne. 
 24                 And the second -- the second one (1) that
 25  I did was in a case Chief Victor Buffalo and the Sampson

16
  1  Cree v. Her Majesty the Queen; that also was in the
  2  Federal Court of Canada, and that case is -- is still
  3  ongoing.  I testified in the year 2000, and I testified
  4  for the Sampson Cree in that case.
  5                 I testified in -- in an Ontario case
  6  called R v. Joseph Johnson.  It was a fishing charge
  7  brought by the Ontario Ministry of Natural Resources,
  8  and the case was in the year 2000, and in that case I
  9  testified for Joe Johnson, who was a -- a non-status
 10  Mississauga man living around the Kawartha Lakes area. 
 11  And most recently in 2002, I testified in the case of R
 12  v. Houle, which is a fishing case in the Treaty 6 area. 
 13  And in that case I testified for Alberta.
 14                 Q:   Thank you.  Have you written and
 15  published papers during the course of your career?
 16                 A:   Some, yes.
 17                 Q:   And are they listed on pages 3 and
 18  4, of your curriculum vitae, which is found at Tab 2?
 19                 A:   Yes.
 20                 Q:   Sorry, Tab 3 of the Expert Brief.  I
 21  see that you wrote a paper entitled, The Original
 22  Intentions of the Indian Act, in -- for Ottawa, in April
 23  of 2002, for the Pacific Business and Law Institute. 
 24  Can you just tell us a little bit about what that paper
 25  addressed?

17
  1                 A:   Yeah, I was -- I was asked to
  2  prepare that paper for the conference.  It was a
  3  conference called Beyond the Indian Act.  And what I did
  4  in that case was I looked at the -- the historical
  5  precursors of the Indian Act.  Like legis -- legislation
  6  that came prior to the initial Indian Act in 1876, and I
  7  looked at some of that legislation, the way it was
  8  encompassed into the Indian Act, and how the Indian Act
  9  evolved after that.
 10                 What I was specifically looking at was
 11  not so much the -- the legal aspects of the Indian Act,
 12  but the way that the policies and the practices around
 13  Indian -- the management of Indian Affairs and the
 14  control of Indian Affairs by the Department of Indian
 15  Affairs.
 16                 I was looking at how those policies and
 17  practices evolved.  The -- the social and political
 18  forces that affected the development of -- of Indian Act
 19  legislation, and sort of looking at the -- the
 20  consistency of the Act and the fact that in over a
 21  hundred (100) years of -- of Indian legislation in
 22  Canada, that really very little of substance has
 23  changed.
 24                 Q:   And I also see that you wrote a
 25  paper entitled, Research Issues and Techniques for the

18
  1  St. Lawrence Seaway Project, in 1994.  
  2                 Can you tell us what that was about?
  3                 A:   Yeah, I was -- I was working with a
  4  group of -- of young researches from Akwesasne, which is
  5  a First Nation on the St. Lawrence Seaway.  And I worked
  6  with them to help them develop a methodological approach
  7  and a research strategy for researching issues around
  8  the -- the development of the St. Lawrence Seaway.  And
  9  when the St. Lawrence Seaway was constructed, it -- it
 10  affected their community, because some -- some of their
 11  land was taken because it was flooded because of the
 12  Seaway.
 13                 So, I helped that -- I worked with that
 14  community to develop a -- a solid research methodology
 15  and -- and approach to doing that study.
 16                 Q:   Right.  You also -- well, we talked
 17  about your thesis, the Erosion of Indian Property
 18  Rights, 1983, I think you addressed that.  
 19                 And the last paper I want to review with
 20  you is The Issues and Techniques Regarding the Sale and
 21  Surrender of Reserve Lands, written in 1992?
 22                 A:   Yeah, that -- that was a paper that
 23  I was asked to prepare for the National Research
 24  Directors' Conference.  And the National Research
 25  Directors' Conference is a -- is a conference that's

19
  1  held every year, and it's Research Directors from First
  2  Nations across Canada and people who are doing research
  3  for mainly for specific claims purposes for the Crown. 
  4  They get together -- together every year, they have a
  5  research conference, which looks at developments in that
  6  area, and people share their research.
  7                 So, the -- the paper that I was asked to
  8  do for -- and to lead a workshop on, had to do with --
  9  again, with research methodology for -- for researching
 10  land sales and -- and surrenders of -- of reserve land,
 11  and we looked at the -- the issues that were involved,
 12  the kinds of things one has to do in order to put
 13  together a -- a research package to submit a claim on --
 14  on one (1) of those issues.
 15                 Q:   Thank you.  You've also conducted
 16  several research -- historical research studies with
 17  respect to First Nations on claims.  Are they listed at
 18  page 4 to five (5) of your curriculum vitae?
 19                 A:   That's correct.
 20                 Q:   Thank you.  And the first one (1) is
 21  the -- on the Ojibway of Lake Superior and Heron and the
 22  Bruce Peninsula.  Can you just briefly describe what
 23  that entailed?
 24                 A:   Okay, that -- that paragraph, it
 25  describes a number of projects that -- that I was

20
  1  involved with, looking at the -- the history of -- of
  2  those communities, which are all Anishinabek or -- or
  3  Ojibway communities around Lake Superior, Heron, the
  4  Bruce Peninsula and Manitoulin Island.
  5                 And the various projects I did in that
  6  area looked at issues such as the relationship that
  7  those communities had with the British Crown, before
  8  they entered into treaty with them, the kinds of treaty
  9  negotiations that they had, what was entailed in the
 10  treaty negotiations, and the -- the various approaches
 11  that -- that both the First Nation's side and the
 12  Crown's side took to those treaty negotiations.
 13                 I looked at the way in which the reserves
 14  in that area were set aside as a result of those
 15  Treaties, and again, looking at the process that was
 16  used to set aside the reserves, where the reserves were
 17  set aside and then went on to look at, for a number of
 18  those communities, some surrenders of -- of the reserved
 19  land and -- and the sale of lands.
 20                 I did a lot of work on the surrender and
 21  sale of lands on the Bruce Peninsula, for example, and -
 22  - and around Lake Huron and -- and also on Manitoulin
 23  Island.  Some of those projects also involved things
 24  such as looking at fishing -- fishing issues or other
 25  resource use issues in that -- in that area.

21
  1                 Specifically, around Manitoulin Island. 
  2  So, that through -- and that's many, many projects that
  3  I -- that I worked on in that area and through those
  4  projects I have gained a pretty solid understanding of
  5  the history and the relationship with the Crown in that
  6  area. 
  7                 Q:   All right.  Thank you.  And on page
  8  5 you list other issue focussed research studies; are
  9  they all listed on pages 5 to 6? 
 10                 A:   That's correct. 
 11                 Q:   And you have a number of these.  I'd
 12  ask you to speak to the first one, The Nature of Pre and
 13  Post Confederation Treaties and Adhesions to Treaty;
 14  could you just tell us what that involved? 
 15                 A:   Okay, that was a very large -- a
 16  very large study that we did in my office and I had a
 17  primary role in that.  And what we were looking at was
 18  what -- the nature of treaties that were made between
 19  various First Nations in Ont -- what's now Ontario and
 20  the Crown and we looked at treaties that were made prior
 21  to Confederation, treaties that were made after
 22  Confederation; that's 1867 and adhesions to those
 23  treaties.
 24                 So, we did one project on that that looks
 25  specifically at what the Crown believed it had to do in

22
  1  order to make a legitimate treaty.  I also looked at
  2  those same kinds of issues for the pre-Confederation
  3  period in Ontario and the Prairie Provinces.
  4                 Again, looking at, basically, what the
  5  process was for making a treaty and how that was done
  6  under the British and how it continued under the --
  7  after Confederation under -- under Canadian
  8  jurisdiction.
  9                 And in those -- in those -- doing those
 10  studies, we looked at both the Crown's approach or the
 11  Crown's perspective to treaty making and also the -- the
 12  First Nations' perspective and attitude to the treaty
 13  and their -- their belief in what -- what was involved
 14  in making a treaty and how those treaties affected their
 15  rights, what kinds of rights they had as a result of
 16  treaty. 
 17                 Q:   Thank you.  And you've also been
 18  involved conducting several studies relating to the
 19  administrative practice of creating Indian Bands within
 20  the meaning of the Indian Act; is that correct 
 21                 A:   Yes. 
 22                 Q:   And, as well, you've conducted
 23  studies into the loss of reserve lands through surrender
 24  and expropriation; is that correct? 
 25                 A:   That's correct. 

23
  1                 MS. SUSAN VELLA:   Thank you. 
  2  Commissioner, I would like, at this time, to tender Joan
  3  Holmes as an expert in aboriginal rights, on government
  4  aboriginal relations and aboriginal ethno-history? 
  5                 COMMISSIONER SIDNEY LINDEN:   Does
  6  anybody have any objection or anybody have any
  7  questions?  
  8                 MR. WALTER MYRKA:   Good morning,
  9  Commissioner.  I'm W. Myrka on behalf of the Province of
 10  Ontario.  The Province does not object to the testimony
 11  of this witness or the admissibility of her report for
 12  the purposes of this Inquiry.
 13                 Nor do we object to her characterization
 14  as an expert witness on the understanding that the
 15  purpose of this evidence, as it was for Dr. Johnstone
 16  was to provide a historical overview and history of
 17  Aboriginal peoples in southwestern Ontario, in order to
 18  inform the issues that will be dealt with in this
 19  Inquiry.
 20                 The Province is compelled, nevertheless,
 21  to point out that the report and some of the evidence
 22  that may be heard, may rely on facts and opinions that
 23  are currently contentious in various pieces of
 24  litigation in this -- in Ontario, some of which involves
 25  the Province, and some of which does not.

24
  1                 And we anticipate it may be contentious
  2  in future litigation as well.  We appreciate that the
  3  issues are different in the litigation and for the
  4  purposes of the Inquiry, but we -- we do need to put on
  5  the record that Ontario does wish to reserve its right
  6  to possibly challenge the expertise of this witness, and
  7  her evidence, in that other litigation, and not for the
  8  purposes of this Inquiry, thank you.
  9                 COMMISSIONER SIDNEY LINDEN:   Thank you
 10  very much, Mr. Myrka.
 11                 Subject to that qualification, I think
 12  Professor Holmes is characterized as an expert witness
 13  and entitled to give expert opinion evidence.  Thank
 14  you.
 15                 MS. SUSAN VELLA:   Thank you,
 16  Commissioner.
 17  
 18                   (VOIR DIRE CONCLUDED)
 19  
 20  CONTINUED BY MS. SUSAN VELLA:
 21                 Q:   Ms. Holmes, were you retained by the
 22  Ipperwash Commission of Inquiry to conduct historical
 23  research?
 24                 A:   I was.
 25                 Q:   Did you write a report which

25
  1  contains your findings, opinions and conclusions?
  2                 A:   Yes, I did.
  3                 Q:   And is your report and schedule
  4  shown at Tab 1 and Tab A to D, of the Expert Brief?
  5                 A:   That's correct.
  6                 Q:   And did you also prepare a
  7  PowerPoint presentation, as an aid to your testimony?
  8                 A:   I did.
  9                 Q:   And is a hard copy of your slides
 10  contained at Tab 2 of the Expert Brief?
 11                 A:   It is.
 12                 MS. SUSAN VELLA:   Commissioner, at this
 13  time I would like to tender Ms. Holme's Expert Brief,
 14  consisting of her report, appendices, PowerPoint
 15  presentation, slides and curriculum vitae, as Exhibit P-
 16  7.
 17                 COMMISSIONER SIDNEY LINDEN:   It will be
 18  so marked.
 19  
 20  --- EXHIBIT NO. P-7:  Expert Brief, consisting of Report
 21                        by Joan Holmes, appendices, Power
 22                        Point presentation slides and
 23                        curriculum vitae of Joan Holmes.
 24  
 25                 MS. SUSAN VELLA:   Thank you.

26
  1  CONTINUED BY MS. SUSAN VELLA:
  2                 Q:   And, Ms. Holmes, you prepared a
  3  selection of documents, which you may refer to during
  4  the course of your evidence, in a book entitled, Book of
  5  Documents?
  6                 A:   I did.
  7                 Q:   And that is from the selection of
  8  the historical documents contained on CD-Rom Volume 8?
  9                 A:   That's correct.
 10                 Q:   All right.
 11                 MS. SUSAN VELLA:   Commissioner, I'd like
 12  to tender the Book of Documents as the next exhibit,
 13  Exhibit P-8.
 14                 COMMISSIONER SIDNEY LINDEN:   Thank you
 15  very much.  
 16  
 17  --- EXHIBIT NO. P-8:  Book of Documents.
 18  
 19                 MS. SUSAN VELLA:   And lastly,
 20  Commissioner, I'd like to tender the CD-Rom of the
 21  PowerPoint presentation as the next exhibit, Exhibit P-
 22  9.
 23                 COMMISSIONER SIDNEY LINDEN:   P-9.
 24  
 25  --- EXHIBIT NO. P-9:  CD-Rom Containing PowerPoint

27
  1                        Presentation.
  2  
  3                 MS. SUSAN VELLA:   Thank you.  And,
  4  Commissioner, You'll recall that Volume 8 has already
  5  been tendered as an exhibit, Exhibit P-4.
  6  
  7  CONTINUED BY MS. SUSAN VELLA:
  8                 Q:   Ms. Holmes, can you tell us what the
  9  scope of your assignment was?
 10                 A:   Yes, I was -- I was hired by the
 11  Commission to prepare a background history of the Kettle
 12  and Stony Point area, I was looking at the -- to give a
 13  little bit of background on the -- the pre-history of --
 14  of the area, the pre-Treaty period, and to look at the -
 15  - the major events that happened in the last couple of
 16  hundred years in this area.
 17                 I looked at the negotiation of -- of the
 18  Treaty, which was -- which was concluded in 1827, to
 19  look at the way in which the reserves at Stony Point and
 20  Kettle Point were established under that Treaty, in
 21  general, how those -- the -- the Band in that area and
 22  the -- the Band that had been created by Government,
 23  under the Treaty, how that was administered and its
 24  relationship with -- with the Crown.  
 25                 I also looked at the way -- how those two

28
  1  (2) reserves had been diminished in size, the --
  2  surrender of -- of parts of the reserve, the taking of
  3  the remainder of the Stony Point Reserve by the
  4  Department of National Defense in -- during the Second
  5  World War, to look in general at the -- the grievances
  6  around burial grounds and government's response to those
  7  grievances.  
  8                 And then very briefly to bring the study
  9  up to date to the -- to the present day.  I was also to
 10  -- to look at -- to prepare an executive summary and --
 11  and prepare for a presentation.
 12                 Q:   And can you describe what steps you
 13  took in with relation to your research methodology?
 14                 A:   Yes.  When -- when we began the --
 15  the work the first thing that we did was we looked at
 16  some secondary sources and some existing research so
 17  that's both published works and -- and other studies
 18  that had been done in the area and those things are
 19  listed in the bibliography.
 20                 Moving on from that, we identified a
 21  number of archival sources, that's written documentation
 22  that's kept in records.  We identified those -- those
 23  sources and examined them looking for documentation that
 24  would help to -- help us to put together a background
 25  overview history.  We -- we collected those documents

29
  1  and all of -- of all of the documentation we collected,
  2  we -- we selected the documents that in -- in our
  3  experience felt that were the -- were the most important
  4  and authoritative documents that -- that demonstrated
  5  the history.  
  6                 Those documents we -- are in an index
  7  which is the -- the large index that you described
  8  which, I can't remember the exhibit number, but it's --
  9  I think that there's about three hundred and fifty (350)
 10  documents in that collection.  We put those together in
 11  an index as a guide, as an organizational guide.  
 12                 Also the index provides what's very
 13  important to historians and probably of no interest to
 14  anyone else, is the source information.  What we call
 15  the -- the reference or the source citation which
 16  explains where the documents came from in order that a
 17  person can go back and look -- find those documents,
 18  verify that in fact that they are legitimate historical
 19  documents and to know what kind of a collection they
 20  came from.
 21                 Because the -- the providence or the --
 22  the collection that a document comes from tells you
 23  something about that document.  So, we need that
 24  information.  So, that -- that material was put
 25  together.  We use that as the basis for writing the

30
  1  reports.  So, when I'm writing a report I'm constantly
  2  referring to those documents and the documents are
  3  footnoted in -- in the reports so as you read the report
  4  you can tell where the factual information comes from.
  5                 We also looked at newspapers and -- and
  6  other -- other media for -- for providing a general flow
  7  of history of what happened in the more modern period.
  8                 Q:   All right.  And so you -- what
  9  archives did you actually review; what source of
 10  archives?
 11                 A:   Most of the written material comes
 12  from collections of documents from Department of Indian
 13  Affairs' files and those documents are found in a number
 14  of places.  The older ones, generally speaking, are
 15  housed at the National Archives of Canada in -- in a
 16  record group that is for Indian Affairs.  
 17                 They -- and some of the documents are
 18  from -- are still within the Department's Central
 19  Registry, either at their headquarters in Ottawa -- or
 20  in Hull, excuse me, or in their regional office in
 21  Toronto.  And many of the documents we accessed through
 22  the Department of Indian Affairs Central Registry where
 23  they store all their more -- more current documents. 
 24  So, that's generally documents that are from, maybe,
 25  say, the 1950s, '60s, '70s would be still with the

31
  1  Department.
  2                 Besides that there's a fair number of
  3  documents that come from collections that are at the
  4  National Archives of Canada which are colonial records. 
  5  So, those are records that were kept by the British
  6  Colonial Office and many years ago the National Archives
  7  of Canada went to Britain and got copies of those
  8  documents as they pertain to Canada and their part of
  9  our -- our national history. 
 10                 Q:   Thank you.  Now, before we go into
 11  the substance of your testimony, there are certain terms
 12  that you use frequently within your report and I thought
 13  it would be helpful at the outset to define some of
 14  those terms.
 15                 The first series of terms used in the
 16  report are "surrender", "cessation" and "purchase" as
 17  used in relation to aboriginal lands.  
 18                 A:   Hmm hmm.  Okay.  You'll find when
 19  you look at either historical records or writing about
 20  aboriginal affairs and aboriginal history and in legal
 21  documents pertaining to aboriginal history, you see
 22  those terms used a great deal.
 23                 And, in general, they're used quite
 24  interchangeably.  The sense of the word "to cede land"
 25  or -- or "land cession" or "land cession treaty", or a

32
  1  "land purchase" or "reserves surrender" or "a purchase"
  2  all of those terms are terms that are used to describe
  3  an action by which -- or a transaction by which a First
  4  Nation or a group of aboriginal people has given over
  5  certain rights in their traditional lands or in reserve
  6  lands over to the Crown.
  7                 And in the -- in the modern day, today,
  8  people who are working in this field, they often use the
  9  term a "land cession treaty" or a "land cession" to
 10  refer to that initial transaction under which a First
 11  Nation gave over some particular rights in their land to
 12  the Crown and they used the term "surrender" more to --
 13  specifically to refer to a transaction under which a
 14  First Nation or a group of First Nations gave over
 15  rights in reserve land to the Crown.
 16                 And maybe it would be a good idea for me
 17  to -- to just point out the difference between a reserve
 18  land and traditional land. 
 19                 Q:   Please? 
 20                 A:   If I'm not going too far up here. 
 21  What you have to recall, the general principle that --
 22  that's always been recognized in -- in Canada or in the
 23  land that was -- became Canada was that the aboriginal
 24  people had -- had the right -- had the title to the
 25  land.  And that is their traditional land.  So, thus we

33
  1  talk about traditional land to which the -- the
  2  aboriginal people have been occupying, using and owning.
  3                 And when we talk about -- 
  4                 Q:   I'm sorry, so that would be pre-
  5  contact, for example? 
  6                 A:   Yes.  But it could -- it could also
  7  be right up to the modern period.  We have in Canada
  8  still areas where the aboriginal title has never been
  9  formally ceded. 
 10                 Q:   Thank you. 
 11                 A:   Okay?  So, that's traditional --
 12  traditional land that people have never formally given
 13  over to the Crown through a treaty process.
 14                 So, what we often do today is we talk
 15  about when that land is given to the Crown that's a land
 16  cession treaty or ceding the land to the Crown.
 17                 There's also reserve land.  And reserve
 18  land is land that the Crown has specifically set aside
 19  or established for the exclusive use and occupation of a
 20  particular group of Aboriginal people.
 21                 So, a reserve -- a reserve is different
 22  than traditional land.  A reserve is -- is land that has
 23  a particular legal status in -- in the -- in the
 24  Canadian system.  And not to complicate things too much,
 25  but a reserve land can -- reserve land can either be

34
  1  land that was excepted out of a Treaty so, if a Treaty
  2  gave up most of the land, but this one (1) little
  3  section was -- was retained for the -- the exclusive use
  4  and occupation or a reserve can be created on land that
  5  was already ceded.  So, in that case a land cession
  6  treaty gave up rights in the land to the Crown, and then
  7  the Crown came and created a reserve on top of that
  8  land, and that could also be a reserve.
  9                 So, what -- getting back to your original
 10  question about what a surrender is, or a cession, in --
 11  in modern times, people usually talk about a surrender
 12  from a reserve land, where a piece of -- of reserve land
 13  has -- the rights to it have been given up to the Crown,
 14  and it's -- a surrender can be different things that you
 15  can give over completely, the use of land to be sold to
 16  somebody else --  
 17                 Q:   Hmm hmm.
 18                 A:   -- or a surrender can also be just
 19  to surrender something like particular resources.  So,
 20  you -- so a First Nation, for example, could surrender
 21  their timber for sale.  It doesn't mean that they have
 22  surrendered the land itself.  They are just surrendering
 23  the right for somebody else to come and -- and take the
 24  timber.
 25                 In getting back again to the original

35
  1  question of the use of those terms, you'll see for
  2  example in the historic period in -- in the past, in the
  3  distant past, those terms are used fairly
  4  interchangeably as well.
  5                 So, for example, in the Royal
  6  Proclamation of 1763, they talk -- that document talks
  7  about the -- the Indian Nations or the Indian Tribes,
  8  ceding their land to the Crown.
  9                 And -- but when we look at something like
 10  many of the surrenders from that early period, say from
 11  the early 1800s, as we'll see with the Huron Tract
 12  Treaty, in the Treaty itself, they talk about the land
 13  being surrendered and sold.
 14                 So, you can see that in the -- in the
 15  historical documents as well, that those terms are used
 16  very, very interchangeably, and sometimes they just use
 17  the term "purchase," as to sell or to purchase land.
 18                 Q:   All right.  So, what you're saying
 19  is that some of these terms are very time period
 20  specific, and that would have informed the way and when
 21  you used these terms within your report?
 22                 A:   Yes.  Generally speaking in the
 23  report, we try to use the same terms that are used in
 24  the historical documents, which can become very
 25  confusing, because also in the historical documents,

36
  1  even though there's some time sensitivity to how -- the
  2  way in which people use terms, they also use terms in a
  3  very -- various ways.
  4                 So, sometimes they'll use one (1) term,
  5  sometimes they'll use another term, and it can be a
  6  little bit confusing.
  7                 But in -- but generally speaking, those
  8  terms mean the same.  In the -- and -- and always I'm
  9  speaking not in a -- in a legal sense, but in a
 10  historical sense, or a sense of common usage of terms.
 11                 Q:   Thank you, yes.  And as well in your
 12  report you refer to an entity called a Band in different
 13  context.  Can you give us a sense of the different
 14  connotations of Band, that you use?
 15                 A:   Okay.  Yeah.  The term "Band" has
 16  been a very problematic term in -- in the study of -- of
 17  Aboriginal history.  Band can have many different
 18  meanings.  And again, the people who use the term Band
 19  in historical documents, are very often using it in both
 20  a -- a general colloquial kind of sense, and -- and
 21  sometimes they're using it in a much more specific
 22  legalistic sense, or -- or a sense that's defined in
 23  legislation.
 24                 So, Band can mean a group.  So, you -- in
 25  -- in historical documentation, in anthropological

37
  1  writings, in historical writings you'll -- you will read
  2  people referring to a hunting band, i.e., a group of
  3  people who are related with each other and carry out an
  4  activity together.  They hunt together.  They live
  5  together.  They are usually some kind of an extended
  6  family.
  7                 So, we see Band used in that sense. 
  8  There's also a very particular use of the term "Band"
  9  and that's the use as it was defined in the Indian Act. 
 10  And I believe, if my memory serves me correctly, I
 11  believe that the first time that Band is ever defined in
 12  -- in the legal sense is in the -- the 1876 Indian Act
 13  which was the first, sort of, consolidated Indian Act
 14  legislation passed by the Canadian Government.
 15                 And in that case the Department of Indian
 16  Affairs had a definition of Band which is quite
 17  legalistic which they -- which they -- they use in their
 18  management and administration.  And that -- that
 19  definition is -- it's tied to two (2) things.
 20                 The, roughly speaking, the definition
 21  goes something like this, it's a group of Indians, and
 22  "Indian" again having a particular legal meaning, it's a
 23  group of Indians who have an interest in land that has
 24  been set aside for their use, i.e., that have interests
 25  -- a common interest in a -- in a reserve or have a

38
  1  common interest in a trust fund in a -- in a -- a trust
  2  fund is a fund of money that's -- that's owned by a
  3  First Nation which the Government, through the
  4  Department of Indian Affairs manages for them.
  5                 So, that's, kind of a very legalistic
  6  explanation of Band and you'll see that used.  In the
  7  report, again, we try to reflect the way that the term
  8  is used in the documents to reflect the documents.
  9                 And it's used very generally, very coll -
 10  - in a very colloquial sense.  Department officials,
 11  Missionaries, First Nations themselves, they use that
 12  term, generally, to describe a group of people who they
 13  associate with each other. 
 14                 Q:   All right.  Thank you.  And I also
 15  note that throughout your report you refer to a
 16  particular grouping of aboriginal persons variously as
 17  Aux Sable, Kettle Point, Stony Point and Kettle and
 18  Stony Point.  On what basis did you choose which
 19  designation to be used within the particular context in
 20  your report?  
 21                 A:   Again, we tried to reflect what was
 22  being said in the document and how the document
 23  described the people.  Sometimes, it's very difficult
 24  when you're reading a document to figure out exactly who
 25  they meant.

39
  1                 Sometimes the term Aux Sable was used and
  2  when you read the document you get a clear sense that
  3  they're really referring to all the people that are
  4  residing around what's now Kettle and Stony Point.  
  5                 They refer to them as the Aux Sable
  6  Indians or Sable or Sable or various confusing
  7  spellings.  Sometimes, in a -- in a document,
  8  particularly in the petitions that come out of the
  9  communities, you'll see the people describe themselves,
 10  what is obviously a more precise definition for how they
 11  identify themselves.
 12                 They'll say, all the old and young men
 13  from Kettle Point or the people from Aux Sable or Stony
 14  Point or all the men or the leading men from Kettle and
 15  -- and Stony Point.
 16                 So, what we've tried to do in the -- in
 17  the report itself, and I'm sure that I wasn't perfect at
 18  it, was to -- to use whatever term they were using in
 19  the documents that we have used to -- to extract the
 20  facts from. 
 21                 Q:   Thank you. 
 22                 A:   Actually, the Department of Indian
 23  Affairs officials from the very beginning to -- up until
 24  the more recent era have been the most, sort of various
 25  in their use of that.  And -- and very often what I

40
  1  found in the documents was they would refer to Kettle
  2  Point especially in the earlier period.  
  3                 They would refer to Aux Sable or Kettle
  4  Point when they were really meaning both -- both areas;
  5  the full body of people that -- that lived in that area. 
  6  So, it -- it is a little bit confusing.
  7                 Q:   Okay, thank you.  And as well you
  8  use the term "chief" in various ways in your report. 
  9  Can you give us the -- the two (2) senses in which you
 10  use the term "chief".
 11                 A:   Okay.  Again, the term "chief" is
 12  rather like the term "band".  Chief is a -- well of
 13  first of all it's an English word so it is not -- it is
 14  probably not very accurate in -- in capturing how people
 15  actually named, recognized and characterized their
 16  leadership.  So that's always a caveat when dealing with
 17  any of these English terms.
 18                 It's used in a couple of ways.  First of
 19  all like the word band, chief has a particular meaning
 20  under Indian Act Legislation, normally being that
 21  Department of Indian Affairs in the historical period
 22  recognized a chief as somebody who was elected using a
 23  particular electoral system.
 24                 Q:   Is this an electoral -- election
 25  system, excuse me, that was dictated by the Department

41
  1  or by some other means?
  2                 A:   It was -- it's -- it's specified in
  3  Indian Act Legislation the -- it's called the electoral
  4  system under -- and it was introduced and in -- in some
  5  cases imposed by the Indian Department on Indian
  6  communities starting around the 1880's.  Traditionally,
  7  chief is a -- a translation or an English
  8  characterization of a leading person in a band.  
  9                 The -- there are traditional chiefs. 
 10  There was always a leadership in an -- in the
 11  Anishinabek language I believe it's Ogima.  And the
 12  chief would be the leader of the people.  A chief
 13  traditionally was a person who gained the respect of the
 14  people therefore people followed him.
 15                 Sometimes you see a hereditary aspect to
 16  chief because the -- one of the sons of a -- of a chief
 17  would be a particularly strong person worthy of
 18  following and therefore would become chief after his
 19  father.  But it was not necessarily hereditary.
 20                 When the British first started having
 21  interaction with the First Nations and -- and the French
 22  before them, but I'm just going to talk about the
 23  British period, when the British first started having
 24  interaction with the -- with the First Nation peoples,
 25  they -- they dealt with their chiefs and you'll see in -

42
  1  - in many transactions, the British will ask them to put
  2  forward their chiefs of a head man to -- to negotiate
  3  with and to deal with.
  4                 As time went on the Department of Indian
  5  Affairs officials or the Indian -- Indian Department
  6  officials influenced chiefdoms because they would, by
  7  their distribution of presents, by choosing to negotiate
  8  with particular people who were probably easier to
  9  negotiate with, they would give authority to someone as
 10  a chief who maybe would not have had that authority
 11  without their influence.
 12                 Q:   Thank you.  All right.  And would
 13  you also kindly define what an Order in Council is?
 14                 A:   Yeah.  An Order in Council is a --
 15  is a legal document passed by the Privy Council.  They
 16  are normally introduced by a department, like a
 17  government department who has jurisdiction or a
 18  particular jurisdiction and responsibility in an area,
 19  will draft up what they want in an Order in Council.  It
 20  is passed by the Privy Council and to -- to give affect
 21  to -- to particular transactions.
 22                 Q:   Thank you.  And a petition?  You
 23  refer to a petition.
 24                 A:   Hmm hmm.
 25                 Q:   What is that?

43
  1                 A:   Petitions were used in the early
  2  period to -- to address Government, or to address
  3  Government officials.  So, for instance -- 
  4                 Q:   Who -- who did the addressing?
  5                 A:   In -- in the case of the -- the
  6  material that I'm dealing with in my report, these are
  7  petitions that came from -- from the Aboriginal people. 
  8  It was their way of making a complaint or a suggestion
  9  or bringing a grievance to the attention of the
 10  Government.
 11                 And normally those Petitions would have
 12  been -- often the -- the actual writing of them would
 13  have been done by a missionary, by an interpreter, by
 14  somebody that the First Nation group trusted to -- to
 15  write up their -- their request to Government.  And
 16  those Petitions normally went to -- sometimes they just
 17  went to the Indian agent, but normally they would go to
 18  the Superintendent General of Indian Affairs, who was
 19  the -- like a Minister is today, a Minister of a
 20  Department.
 21                 Or sometimes the Aboriginal people would
 22  send a Petition directly to the Lieutenant Governor, or
 23  the Governor General --
 24                 Q:   Hmm hmm.
 25                 A:   -- because they had lost faith in

44
  1  the Indian Department Officials to follow up on their
  2  grievances.  So, the Petition was a way in which they --
  3  they expressed their -- their opinion and made their
  4  requests.
  5                 Q:   All right, and last.  How is it that
  6  you -- or at least, how do you use the term "Band
  7  Council Resolution" throughout your report?
  8                 A:   Okay.  In the report we use the term
  9  "Band Council Resolution" to identify a written document
 10  that -- that was prepared by a Band Council at -- at a
 11  Council Minute.
 12                 Sometimes you see them called a -- a
 13  Minute of Council.  So, when the Band Council was having
 14  a meeting, they would come to certain decisions, they
 15  would write those up, as a Band Council Resolution.  And
 16  you see those from around the -- the early 1870s onward.
 17                 Q:   All right.  Thank you.  Now, Ms.
 18  Holmes, were you present during the testimony of Dr.
 19  Johnstone?
 20                 A:   Yes, I was.
 21                 Q:   As you know, there will be some
 22  overlap in your respective presentations with respect to
 23  the early period, the 18th century and 19th century. 
 24  Accordingly, I do not propose that we go into
 25  significant detail, at least the same level of detail as

45
  1  addressed in your report, however, I do wish you to
  2  review those periods in sufficient detail for your
  3  presentation today.
  4                 A:   Okay. 
  5                 Q:   And I believe that you've prepared a
  6  PowerPoint presentation to assist the Commission with
  7  your testimony?
  8                 A:   I have.
  9                 Q:   Perhaps you would like to put that
 10  on?
 11                 A:   Yeah.  I think somebody turned off
 12  my machine. 
 13  
 14                        (BRIEF PAUSE)
 15  
 16                 MS. SUSAN VELLA:   Just bear with us and
 17  we'll get this going.
 18  
 19                        (BRIEF PAUSE)
 20  
 21                 THE WITNESS:   We're just going to have
 22  to wait a minute while all this comes up.
 23  
 24                        (BRIEF PAUSE)
 25  

46
  1  CONTINUED BY MS. SUSAN VELLA:
  2                 Q:   Perhaps you can start by reminding
  3  us when the British defeated the French over the
  4  Territory that was then known as New France?
  5  
  6                        (BRIEF PAUSE)
  7  
  8                 A:   Okay, just -- just to refresh us,
  9  I'll -- I'll just -- I'll just remind everybody of -- of
 10  where we are here.  Okay. If you -- if you look at on
 11  the map starting with the slide -- at the bottom of the
 12  slide, here's Lake Erie.  We go -- 
 13                 Q:   Now, we're just pointing at the
 14  bottom of the slide on number 2? 
 15                 A:   Yeah.  Sorry.  Up the Detroit River,
 16  the St. Clair -- Lake St. Clair.  Up the St. Clair River
 17  to Lake Huron which is at the top left-hand side of the
 18  slide, looking at the slide.
 19                 If you recall from Darlene Johnstone
 20  talking about this period, before the British conquest,
 21  all of these groups, the Ojibwe also known as Sauteau
 22  and Mississauga are around this area of southeastern
 23  Lake Huron and the St. Clair River.
 24                 You've got Ottawa down here on the St.
 25  Clair River, Potawatomi generally on the Detroit side of

47
  1  the Detroit River and these people have all been in
  2  relationship with the French, have been trading with the
  3  French.  
  4                 When the British -- the British and the
  5  French have a large conflict known as the war of -- the
  6  Seven (7) Year War, in Canada they called it the French
  7  Indian War -- 
  8                 Q:   Maybe if you can just wait until you
  9  position that microphone for the sound to come through? 
 10                 A:   Sorry.  There.  The -- the British
 11  beat the French and took over the -- this area and the
 12  war -- the war was actually finished in 1760.  But the
 13  British were very, very concerned about their
 14  relationship with the First Nations in this area.
 15                 And what you have to recall about the
 16  area is that there were -- there was a very small French
 17  settlement around the Detroit area other than that, very
 18  little settlement.  This is really aboriginal territory. 
 19                 It was -- the French were engaged in the
 20  fur trade in this area and the British basically were
 21  very interested in this area to keep the French out to
 22  capture the fur trade and to be in alliance with the
 23  First Nations in this area.  They needed them as
 24  military allies.  They needed their trade.
 25                 So, we'll see that the -- the people that

48
  1  we are focusing on the -- the -- what -- what the
  2  British called the Chippewa and what the French called
  3  the Ojibwe or the Soto.  These people are around the
  4  southeast shore of Lake Huron at this time, occupying
  5  that area, have been in relationship with the French and
  6  they come into relationship with the British at the --
  7  at the end of the -- the Seven (7) Year War and the
  8  British were very anxious to have their cooperation and
  9  to have -- to have their trade.
 10                 So, shortly after -- 
 11                 Q:   Just -- just before you move on to
 12  the next slide -- 
 13                 A:   Yeah, sorry. 
 14                 Q:   -- if you're going to, just to
 15  orient all of us, can you show approximately on that map
 16  where the present day Sarnia Reserve, Kettle and Stony
 17  Point Reserve and the former Stony Res -- Reserve was? 
 18                 A:   Okay.  Okay.  The Kettle and Stony
 19  Point Reserve are right in this area. 
 20                 Q:   And just describe that for the
 21  record? 
 22                 A:   And this is on the southeast shore
 23  of Lake Huron.  If you follow Lake Huron down into the
 24  St. Clair River, this -- where this large green dot is
 25  here, this is the area of Sarnia. 

49
  1                 Q:   All right.  And it's marked "Ojibwe,
  2  Soto and Mississauga"? 
  3                 A:   That's right.  And if you continue
  4  down the St. Clair River into Lake St. Clair you'll see
  5  right here on the northeast shore of Lake St. Clair is
  6  what's known today as Walpole Island and we see in the
  7  historical record called Chenail Ecarte.
  8                 So, this -- this is -- this is where all
  9  of the people that eventually enter into the Huron Tract
 10  Treaty.  This is where they were living at the time of
 11  the conquest when they first come into relationship with
 12  the British.
 13                 Q:   All right.  And you're basically --
 14  we're just demonstrating the territory between Lake St.
 15  Clair and the southeastern shore of Lake Huron?
 16                 A:   That's correct.
 17                 Q:   And what is the present date sites
 18  of the 1760 site of the Potawatomi?
 19                 A:   That's Detroit.  So, as I was saying,
 20  the -- the British were -- were anxious about their
 21  relationship with the First Nations in that -- in this
 22  area and they had cause to be because the First Nations
 23  were much more favourably disposed towards the French
 24  than the British.
 25                 And even after the conquest in 1760, many

50
  1  people believed that the French were going to come back. 
  2  So, they were -- they were reluctant to -- to enter into
  3  a relationship with the British.  They didn't really
  4  trust them.  The British had in the thirteen (13)
  5  colonies had been involved with a lot of fraudulent land
  6  deals; stealing land basically.
  7                 So -- so, the First Nations were very
  8  cautious to come into a relationship with them.  So, in -
  9  - as a result of that, the -- the British passed a
 10  proclamation in 1763 and this -- the Royal Proclamation
 11  of 1763 it is a very important document in aboriginal
 12  history.
 13                 It -- it did a number of things and the --
 14  the important things for -- for the purpose of -- of this
 15  history is -- is first of all, if you -- you look on the
 16  map you'll notice that --
 17                 Q:   Just for the record, we're looking at
 18  the map on slide 3 of your PowerPoint presentation dated
 19  1763.
 20                 A:   So, the Royal Proclamation
 21  established what was called the -- the Proclamation Line
 22  and you will notice it on the map here.  It -- it
 23  separates the colonies.  So, if we go along the eastern
 24  colony of -- of the eastern seaboard of British North
 25  America, it separates the British colonies which we think

51
  1  of as the thirteen (13) colonies and Quebec which is the
  2  southern part of modern day Quebec to the Ottawa River.
  3                 This area was recognized by the British as
  4  settled area.  Everything to the west of that -- the west
  5  of the Proclamation Line they called Indian Country.  And
  6  if you notice where our communities are, this is Lake
  7  Huron and Georgian Bay.  Here's our communities down here
  8  and it's -- and it's clear that they are within the
  9  Indian Country.
 10                 And the significance of the Indian Country
 11  is that by the Royal Proclamation, the Indian Country was
 12  protected from -- from settlement.  So, the -- so, the --
 13  the -- within the Indian Country according to the Royal
 14  Proclamation, the people could not come and settle there
 15  until that land had been formally ceded to the Crown.
 16                 And in here in the Royal Proclamation they
 17  use the term "ceded".  So the British Government was
 18  protecting that -- that area -- the Indian Country from -
 19  - from settlement.  And according to the -- to the rules
 20  of the Royal Proclamation and Professor Johnstone went
 21  over this quite thoroughly so I -- I won't go into detail
 22  on it.
 23                 It is -- it is document number 1 and it is
 24  at Tab 1 in your -- in your books if you'd like to look
 25  at it, but the --

52
  1                 A:   It's Inquiry Document number 4000001.
  2                 Q:   So, according to the -- to the Royal
  3  Proclamation, the -- the land in the Indian Country could
  4  only be ceded to the Crown.  The Crown had to purchase it
  5  before anyone could go and live there.
  6                 The -- the Royal Proclamation, just in
  7  general, it's important in Aboriginal history because the
  8  -- the policies and the practices of the British Indian
  9  Department, really flow from those basic principles that
 10  -- that are laid out in the Royal Proclamation and -- and
 11  the most fundamental of the -- of the principles is that
 12  the First Nations were to be treated with -- with honour
 13  and justice.
 14                 The -- the British were very concerned
 15  about building a relationship and keeping these people as
 16  allies, because they -- they were -- the were concerned
 17  with -- with holding -- with holding the Territory.
 18                 Q:   All right.  So, the map that you
 19  referred to just for the record, the Royal Proclamation
 20  Line to the right or east of it, in a darker pink shade,
 21  is the British Colonies, Quebec, Nova Scotia, and the
 22  Eastern Seaboard of Newfoundland and the Island of
 23  Newfoundland.
 24                 And to the west of that line in lighter
 25  pink shading is Indian country within which the people --

53
  1  Aboriginal peoples with whom we are interested, were
  2  situated, and to the west of that Territory in yellow, is
  3  Louisiana; is that correct?
  4                 A:   That's correct.
  5                 Q:   All right.  And is it fair to say
  6  that one (1) of the significances of the King's
  7  designation of this large Indian Territory or country is
  8  that it recognized the ownership, if you will, of the
  9  Indian inhabitants of that particular area of land?
 10                 A:   That's correct.
 11                 Q:   Okay.  
 12                 A:   The -- the other thing that I would
 13  just -- just point out before we move on, around this
 14  period the  -- the Indian -- the British Indian
 15  Department has been created, and the British Indian
 16  Department, it was actually created under the guidance of
 17  -- of Sir William Johnson, who's a name that you always
 18  hear a lot of when you're looking at early aboriginal
 19  history.  
 20                 And Johnson shared the Royal Proclamation
 21  with the First Nations.  So, while the Royal Proclamation
 22  was proclaimed by the King and -- and issued and used as
 23  a guidance to governors of -- of all these colonies that
 24  we see, Quebec and -- and the British colonies, it was
 25  for their guidance in how they should deal with land and

54
  1  what they could and could not do.
  2                 It was also shared with all the Aboriginal
  3  groups, and Johnson was very -- was very active in that,
  4  in explaining it to the First Nations and promoting it
  5  and the  -- as you study aboriginal history in general,
  6  what you'll see is that the aboriginal people are
  7  constantly recalling the Royal Proclamation, the -- the
  8  terms that are in the Royal Proclamation, and looking to
  9  that for -- for their protection, and as a basis for
 10  their relationship with the Crown.
 11                 And the -- the copy of the Royal
 12  Proclamation that -- that I provided with my documents,
 13  is in fact a copy that comes from William Johnson's
 14  papers, and -- and he -- he accompanies that with his
 15  instructions to share it with the First Nations.
 16                 Q:   And --
 17                 A:   So, it's -- it's a document that is -
 18  - that is well known, both amongst First Nations and --
 19  and amongst the Crown authorities.
 20                 Q:   Was the Royal Proclamation ever
 21  revoked by the Imperial Crown?
 22                 A:   No.
 23                 Q:   Okay.  
 24                 MS. SUSAN VELLA:   Are we at a convenient
 25  place to break for the morning break, Commissioner?  I

55
  1  would like to request we have the morning break?
  2                 COMMISSIONER SIDNEY LINDEN:   That's fine,
  3  we'll break now for fifteen (15) minutes.  We'll break
  4  now for fifteen (15) minutes.  Thank you very much.
  5                 THE REGISTRAR:   All rise please.  This
  6  Inquiry will recess for fifteen (15) minutes.
  7  
  8  --- Upon recessing at 11:45 a.m.
  9  --- Upon resuming at 12:04 p.m.
 10  
 11                 THE REGISTRAR:   This Inquiry is now
 12  resumed.
 13                 COMMISSIONER SIDNEY LINDEN:   Okay, carry
 14  on.
 15                 MS. SUSAN VELLA:   Thank you. 
 16  
 17  CONTINUED BY MS. SUSAN VELLA:   
 18                 Q:   Thank you.  Thank you, Ms. Holmes. 
 19  Would you like to carry on then with the next slide? 
 20                 A:   Okay.  The next -- the next thing I'm
 21  going to talk about is the -- the treaty of 1827 which
 22  became known as the Huron Tract Treaty.  And I have four
 23  (4) slides for the treaty.  
 24                 The first slide here, the visual that you
 25  see is three (3) pages of the manuscript copy of the

56
  1  treaty; the handwritten copy of the treaty.  The
  2  handwritten copy actually takes five (5) pages but I just
  3  put three (3) pages up here to show you what it looked
  4  like, to give a taste of the historical document.
  5                 And, first of all, what I'm going to talk
  6  about is a little bit about the process that the Crown
  7  used in order to negotiate this treaty and then I'm going
  8  to go on in the other slides and talk a little bit about
  9  the actual terms of the treaty. 
 10                 Q:   And perhaps you can start by telling
 11  us what events gave rise to this process? 
 12                 A:   Right.  The -- after the war of 1812
 13  and, if you remember, the War of 1812 was a war between
 14  the Americans and the British in -- in Canada, in what
 15  was called Upper Canada, at that time.
 16                 The -- during the War the British felt
 17  that what -- what is now southwestern Ontario, this area
 18  north of Lake Erie and south of Lake Huron that this area
 19  was particularly vulnerable to attack by the Americans
 20  and they didn't feel that the -- the -- the non-
 21  aboriginal population -- the white population in that
 22  area was maybe as loyal to the British as they would
 23  like.
 24                 So, they were very anxious to -- to give -
 25  - to make settlement in the area to bring settlers into -

57
  1  - into what's now southwestern Ontario.
  2                 And so, in order to do that, if you
  3  remember, under the terms of the Royal Proclamation, the
  4  -- the first  -- the British had to take a cession of the
  5  land from the -- from the aboriginal people in order that
  6  they could bring settlers in.
  7                 So, they -- they started a process that
  8  led to this treaty and they negotiated it over a period
  9  of nine (9) years.  So, you can see it's not -- it wasn't
 10  a -- a quick or a frivolous undertaking.  It took some
 11  time to negotiate it.
 12                 So, first of all, I'm -- I'm just going to
 13  tell you a little bit about the process that they used. 
 14  So, initially, around 1818 the Lieutenant Governor of
 15  Upper Canada who was called Maitland, he decided that he
 16  wanted to have this area settled and he drew up a map
 17  where he marked off a number of blocks of land that he
 18  wanted to have ceded by the aboriginal people.
 19                 And one of these areas of land was what
 20  later becomes known as the Huron Tract.  At that time,
 21  Maitland thought that the land was about seven hundred
 22  and twelve thousand (712,000) acres.  And that he -- he
 23  instructed the Deputy Superintendent General of Indian
 24  Affairs to set about finding out who the aboriginal
 25  people were who owned that land and what it would take to

58
  1  get a cession of the land.
  2                 So, the Superintendent General sent a
  3  message to John Askin who was the Superintendent at --
  4  the Indian Superintendent at Amherstberg.  He sent him a
  5  copy of that map and that map, if you recall, Professor
  6  Darlene Johnstone showed us that map in her discussion.
  7                 So he -- he contacted Askin and he said,
  8  find out who owns this land and, you know, what's it
  9  going to take to get a cession of the land.  So, Askin,
 10  who was the Superintendent and I'll just -- just divert
 11  for a minute and speak a little bit about him.
 12                 John Askin was the son of an Indian
 13  Department official, who's -- his name was also John
 14  Askin and a -- and a Ottawa woman, an Ottawa woman, and
 15  he -- Askin was born up around Michilimackinac.  He
 16  worked up there with the British Indian Department from
 17  before the war of 1812.  And Michilimackinac, if we look
 18  on this other map, it's up here --
 19                 Q:   And just for the record, we're
 20  looking at Exhibit P-6 which is a map of the Great Lakes
 21  region.
 22                 A:   Okay. so Michilimackinac is up in the
 23  -- the straits beyond Lake Huron and so Askin grew up in
 24  this area.  His mother's an Ottawa so she's probably from
 25  that area.  He grew up here.  He was involved in the war

59
  1  of 1812 and later he moved down in 1816, I believe, and
  2  he started working at the British fort at Amherstberg
  3  which is on the -- what's now the Canadian side of the --
  4  the Detroit River.
  5                 So, he was around this area, so I would --
  6  I would assume from that, that Askin knew the people of
  7  this area very well, because this was his region and
  8  because he was an aboriginal person himself, spoke
  9  Adolwal, which is a very close language to -- it's also
 10  an Algonquin speaking language and -- and he probably
 11  spoke the Chippewa language as well, although I'm not
 12  sure of that.  I'm assuming that because his mother was a
 13  Adolwal.
 14                 So Askin -- Askin states that he -- he
 15  called the people to come to Amherstberg in 1818 to talk
 16  about seeding their land and the interesting thing that
 17  you see from Askin is, he says that the people, the
 18  Chippewa who own this land are the Chippewa from Chenail
 19  Ecarte which is now called Walpole Island, the River St.
 20  Clair which is the river between Lake St. Clair and Lake
 21  Huron and River Aux Sable.
 22                 So, he identifies those people as the
 23  people who own that land who the Crown should be dealing
 24  with in order to take a surrender of the land.
 25                 He calls them to Council and they meet. 

60
  1  And actually, I'm going to read out to you the minutes of
  2  that first Council because this is the first time that
  3  the Crown consults with the people about taking the
  4  surrender of the land.
  5                 And the minute of that Council is Document
  6  Number 6 and it's found at Tab 112 in the -- the books. 
  7  And just -- hang on --
  8                 Q:   That would be Inquiry Document Number
  9  4000012. And just -- just before we move on, the Great
 10  Lake regions map upon which you just referred is in fact
 11  Exhibit P-5.  I just wanted to correct the record.  Thank
 12  you.
 13                 A:   Okay.  So, I'm reading from this
 14  document which is a transcript of the Council minutes,
 15  and it starts off:
 16                   "The minutes of a Council held at
 17                   Amherstberg on the 16th October, 1818
 18                   between John Askin, Esquire,
 19                   Superintendent of Indian Affairs and
 20                   the following Chippewa chiefs and
 21                   leaders of Chenail Ecarte, River St.
 22                   Clair, Sable, and Thames and Bear
 23                   Creek."
 24                 And then he lists all of the names which
 25  I'm going to talk about the names of the chiefs

61
  1  afterwards.  And there is a -- the local army official is
  2  in attendance and there's an interpreters -- John
  3  Baptiste Cadeau who was quite a well known interpreter in
  4  that area.
  5                 So, the -- this is what the minutes of the
  6  Council say:
  7                   "After the superintendent of Indian
  8                   Affairs had informed the above
  9                   mentioned chiefs that he had received
 10                   instructions from the Deputy
 11                   Superintendent General of Indian
 12                   Affairs signifying that it was the wish
 13                   of their great fathers' representative,
 14                   Sir Peregrine Maitland, Lieutenant
 15                   Governor of this province to purchase
 16                   all the lands belonging to them, the
 17                   Chippewas, lying north of the River
 18                   Thames including the River Aux Sable
 19                   and a sketch of the territory required
 20                   being shown to them.
 21                   They were des -- desired to state on
 22                   what terms they would dispose of said
 23                   tract.  Their answer, after mature
 24                   deliberation, was as follows:
 25                      Father, we Chippewas have always

62
  1                   been obedient children, and never
  2                   refused anything that our great father
  3                   has required of us.  We are, therefore,
  4                   willing to sell our lands, but we wish
  5                   to make the following reserves. 
  6                      First:  Four (4) miles square, at
  7                   some distance below the rapids on the
  8                   River St. Claire.  
  9                      Second:  One (1) mile in front by
 10                   four (4) deep, bordering on the said
 11                   river, and adjoining to the Shawenoe
 12                   Reserve. 
 13                      Third:  Two (2) miles at Kettle
 14                   Point, Lake Huron.  
 15                      Fourth:  Two (2) miles square at the
 16                   River Aux Sable.
 17                      Fifth:  Two (2) miles square at
 18                   Bears Creek, also a reserve for Tomago,
 19                   and his Band, up the Thames, which he
 20                   will point out when he arrives.  And we
 21                   trust that the reserves now made by us
 22                   will be augmented at the time the
 23                   purchase is finally concluded.  Should
 24                   our great father's representatives see
 25                   that they are insufficient for the

63
  1                   whole of our nation, now living on this
  2                   side of the waters to plant corn and
  3                   hunt, so that we will not be poor and
  4                   miserable, like our brethren on the
  5                   American side.
  6                      We, who have sold all our lands and
  7                   who have not made sufficient reserves
  8                   for their men, women and children to
  9                   plant."
 10                 Excuse me, I read that wrong.  I'll just
 11  back up:
 12                   "So that we will not be poor and
 13                   miserable like our brethren on the
 14                   American side, who have sold all their
 15                   land and have not made sufficient
 16                   reserves for their men, women and
 17                   children to plant corn.
 18                      Father, you will inform our great
 19                   father's representative, that it is our
 20                   wish he himself set the valuation on
 21                   the tract required.  But that payment
 22                   is to be made annually for fifty (50)
 23                   years, half in hard money and half in
 24                   clothing.
 25                      The payment for our lands is to be

64
  1                   separate and distinct from the presents
  2                   our great father, the King, gives us
  3                   yearly, for our loyal and past
  4                   services.  But out of our yearly
  5                   payments to our Nation, is to be
  6                   furnished with -- payments our Nation,
  7                   is to be furnished with a blacksmith
  8                   and husbandman to be stationed near the
  9                   reserves.  The former to mind our axes
 10                   and traps and repair our guns, the
 11                   latter to instruct us in the -- the art
 12                   of husbandry."
 13                 So, I'm -- I'm just going to make a few
 14  comments on -- on some of the things that -- that they --
 15  some of the particular things that they -- that the
 16  Chippewa spokesman asked for and commented on in -- in
 17  this -- in this minute.
 18                 First of all, you notice that they -- the
 19  -- the Chippewa say -- they -- they refer to the
 20  relationship that they have with the British, and they
 21  say:
 22                   "We've always been obedient serv --
 23                   children, we never refused anything."
 24                 And that -- that metaphoric language of --
 25  of the child and the father is -- you have to be careful

65
  1  in English when you read this, because in -- in English
  2  culture, we think of a father and a child as being a
  3  relationship of  -- of dominance and subservience, that -
  4  - that children are  -- have to be obedient to the -- to
  5  the father.
  6                 The -- the metaphor, the aboriginal
  7  metaphor of the father and the children, is -- it
  8  concentrates more on the -- the relationship of respect
  9  and the relationship of the kind of obligations that a
 10  father has to his children, that a father has the
 11  obligation to -- to guard the children, to be respectful
 12  of the children, and to -- to provide for the children. 
 13                 So, it's a -- it's a very different
 14  relationship, if you're looking from a British cultural
 15  perspective, or an aboriginal perspective.
 16                 So, the metaphor throughout aboriginal --
 17  aboriginal diplomatic language, you see all these rela --
 18  these metaphors of -- that are kinship metaphors, father,
 19  children, uncles and other kinship references.  So, that
 20  -- that's the first thing that I would alert you to
 21  there.
 22                 The second thing that -- that is
 23  interesting about this council minute men, is -- is right
 24  away the -- the Chippewa leaders point out the specific
 25  places that they want as reserves.  And they already have

66
  1  a notion of what it means to have reserves set aside for
  2  them because they make the comment about how they don't
  3  want to be like their brethren on the American side.
  4                 Their -- their relatives that live on the
  5  -- the American side who have found themselves miserable
  6  because they don't have enough of a land base to subside
  7  on.  So, they -- they enumerate the particular locations
  8  that they want.
  9                 Also I -- I think that we should remember
 10  here where they say that they're asking -- the Chippewa
 11  are asking the  -- the Lieutenant Governor to decide what
 12  he thinks is the appropriate compensation for the land
 13  where he says, Father you will inform our great father's
 14  representative, who's the Lieutenant Governor, because
 15  the great father is the King, the representative is the
 16  Lieutenant Governor.  So they're saying, tell the
 17  Lieutenant Governor that it's our wish that he himself
 18  set the valuation on the tract.
 19                 So, he's saying he is -- and that again,
 20  is an expression of a -- as a tremendous amount of trust,
 21  that they trust the Lieutenant Governor when he says how
 22  much money he's going to pay for the tract, that he's
 23  going to be fair and honourable in setting the -- the
 24  amount of money.
 25                 But what they ask for, is they want the

67
  1  payments for fifty (50) years and they want half of the
  2  payment in money, in hard -- in hard money and they want
  3  the other half in clothing.  So, you can see that they
  4  are looking to their -- their future security.  They want
  5  clothing because clothing is actually something that's
  6  very difficult to come by particularly at this time where
  7  hunting is not as lucrative as it was and  -- and
  8  clothing is something that you have to obtain in -- in
  9  trade.
 10                 These people were use to already getting
 11  cloth as annual presents; it's highly desirable.  Also,
 12  money was highly desirable.  There was very little money
 13  in circulation in this time period.  So they're asking
 14  part in money, part in clothing.
 15                 And then the next thing that they -- that
 16  they point out is, they're saying that they want the
 17  payment for the land so the compensation for the land
 18  they're ceding to be separate and distinct from the
 19  presents that our Great Father the King gives us yearly.
 20                 So, when they're talking about those
 21  presents that the Great Father gives them, here they're
 22  referring to the annual presents.  And the annual
 23  presents were something that was given out by the Crown
 24  every year.  It's often referred to as His Majesty's
 25  Bounty.  And this -- these were presents that the British

68
  1  gave out as a symbol of the -- the alliance relationship
  2  that the -- that the British had with the First Nations.
  3                 So, they're saying, we're going to be paid
  4  for our land, but that's not to be confused with the
  5  annual payments that we get the presents that we're
  6  already getting every year.  And then they ask for a
  7  blacksmith and a husbandman which is like a farm
  8  instructor.  And they're again here looking to their
  9  future.  
 10                 They want a blacksmith because a
 11  blacksmith is needed to -- to repair and keep metal guns,
 12  traps and tools in shape.  And they're asking for the
 13  husbandman who is someone whose going to assist them in -
 14  - in learning how to farm.  So, that's our -- that's the
 15  first time in -- in these documents that I'm dealing with
 16  that we hear the voice of the Chippewa, what it is that -
 17  - what it is that they want in terms of their ceding that
 18  -- the land.
 19                 So, after that -- after that council
 20  meeting with Askin the -- Askin calls -- so this is the -
 21  - this is the opening -- the opening negotiation for the
 22  treaty and this would be the normal procedure at this
 23  time for making a treaty.
 24                 So, there's this opening council and Askin
 25  reports on that.  The following year, Askin is going to

69
  1  call these same chiefs together once again in order to
  2  make the treaty.  Now, by this time, the Government has
  3  decided that they want to take this treaty in two (2)
  4  parts.
  5                 They're going to split it into -- into two
  6  (2) geographical areas and the -- the area along the
  7  Thames River they're going to take in one treaty which is
  8  called the Longwoods Treaty and the northern area they're
  9  going to take in the Huron Tract Treaty. 
 10                 Q:   And it's the latter treaty with which
 11  we are concerned? 
 12                 A:   Yes, the Huron Tract Treaty.  And
 13  when Askin calls the -- calls them together, this time
 14  when he talks about who is -- who the land belongs to,
 15  for the first time we see him use the term Kettle Point. 
 16  And that document is -- it's document 13 and it's at Tab
 17  113.
 18                 But what -- the relevance instead of
 19  taking you right to the document, the relevant section of
 20  it is he talks about this -- this area of land and he
 21  says:
 22                   "The whole of the land required by the
 23                   Crown belongs to the River St. Clair,
 24                   Kettle Point, River Aux Sable and River
 25                   Thames Chippewas."

70
  1                 And in this case, he's talking to all the
  2  -- he's referring to all the land that's - - that's going
  3  to be encompassed in both of those treaties. 
  4                 Q:   All right.  And just for the record,
  5  that's Inquiry Document Number 4000013. 
  6                 A:   Yeah, and in the report, you'll see
  7  that -- that little quotation that I just read is at the
  8  page at the top -- the first paragraph on page 14.  
  9                 So, Askin meets with these chiefs in -- in
 10  March 1819 and he makes a provisional agreement with
 11  them.  Now, in this -- when he makes this provisional
 12  agreement I -- I'm unsure why but, for some reason, the
 13  British have got their geography sorted out a little
 14  better and in this -- in this -- in this provisional
 15  agreement they talk about this land being just over 2.7
 16  million acres as opposed to the first time he talked
 17  about he was thinking that it was in the neighbourhood of
 18  seven hundred and twelve thousand (712,000) acres.
 19                 So, it's a signif -- significant change in
 20  the acreage.  In that -- that first agreement, that 1819
 21  provisional agreement, the -- the chiefs again, they ask
 22  for the same reserves as they did in the 1818 Council
 23  Minute, but it's only the first four (4) reserves because
 24  the last two (2) reserves that they talked about in 1818
 25  now belong to the -- to the people who are in the

71
  1  Longwoods Tract Treaty.
  2                 So, just looking at the Huron Tract
  3  Treaty, they again ask for the same reserves; the four
  4  (4) miles square at the rapids of the River St. Clair
  5  which becomes known as the Sarnia Reserve or the Upper --
  6  the Upper Reserve.
  7                 The -- they ask for the one (1) mile by
  8  four (4) miles on the River St. Clair which becomes known
  9  as Moore Township or the Lower Reserve.  And then they
 10  ask for the two (2) miles square at River Aux Sable and
 11  they ask for the two (2) miles at Kettle Point, Lake
 12  Huron. 
 13                 Q:   And just -- just for clarification,
 14  the reserve at the River Aux Sable later became known
 15  as...? 
 16                 A:   The Stony Point Reserve. 
 17                 Q:   Thank you.  
 18                 A:   Now, that -- that agreement that was
 19  made in 1819 as would be the -- the usual process, that
 20  agreement was sent to the British authorities, the
 21  Imperial authorities, for their approval and they did not
 22  approve it.
 23                 And the reason that the British did not
 24  approve that 1819 provisional treaty was that the
 25  Chippewa had asked for half their compensation in money

72
  1  and half in goods.  And the Brit -- and they asked for it
  2  to be paid over a fifty (50) year period, and the British
  3  only wanted to pay annuities, and they only wanted to pay
  4  in goods, they did not want to have to pay out any hard -
  5  - hard cash.
  6                 It's right -- it's right in this time
  7  period that the British have decided for fiscal reasons,
  8  that they  -- all Treaties, they want to pay the Treaty
  9  compensation in annual payments, which become known as
 10  annuity payments.  So, these would be payments that
 11  people would get every year, perpetually, forever.
 12                 So, the British did not approve that --
 13  that agreement -- that provisional agreement made by
 14  Askin.
 15                 And it's not until 1825 that the British
 16  give a second set of instructions to go ahead and -- and
 17  get the  -- and seek the Treaty.  And so in 1825, the --
 18  by this time Askin has passed away, and the -- the new
 19  Indian Superintendent at the time, whose name is James
 20  Givins, he -- he goes out to seek the provisional
 21  agreement, again, meeting with the Chiefs at Amherstburg,
 22  and this -- this provisional agreement is -- Treaty
 23  Number 27 1/2.  
 24                 And when the instructions are given for
 25  that -- to take that provisional agreement, they -- they

73
  1  refer to the -- the agreement that Askin had made in
  2  1819.  
  3                 So, Givins meets with them, he makes -- he
  4  makes another provisional agreement.  I'll talk a little
  5  bit more about the -- the actual terms a little bit
  6  later, but the -- one (1) of the things is that the
  7  compensation is -- is lower than -- than originally
  8  discussed.
  9                 After the provisional agreement is made,
 10  the  -- the Crown has the lands surveyed.  So, the land
 11  is being surveyed while the provisional agreement goes to
 12  the -- the Imperial authorities, to be -- to be verified
 13  -- to be approved of.
 14                 Q:   And when you say the land is being
 15  surveyed, do you mean the reserve lands, or what are you
 16  referring to?
 17                 A:   Both.  What -- the -- a surveyor,
 18  Mahlon Burwell, he goes up to the area, he surveys the
 19  boundary of the ceded tract.  So, he -- he looks at the
 20  whole -- the whole boundary of the ceded tract, and he
 21  also surveys out the boundaries of the reserves, where
 22  exactly the reserves are located.
 23                 And so when the -- and -- and that again,
 24  was a usual kind of practice at that time, so that when
 25  the final Treaty is made, in -- two (2) years later in

74
  1  1827, the Huron Tract Treaty.  When that -- when that
  2  Treaty is written up, at that time they know the -- the
  3  proper description of the boundaries, and they know the
  4  actual acreage of both the area that's being ceded and
  5  the area of the reserves.
  6                 And I -- and I'm going to talk a little
  7  bit more specifically about that afterwards.
  8                 But if we go and -- and look at the Treaty
  9  itself, I'll just go through the terms of the final
 10  Treaty, it's -- it's document number 23, and it's at Tab
 11  3.
 12                 Q:   That's Inquiry document number
 13  4000023.
 14  
 15                        (BRIEF PAUSE)
 16  
 17                 A:   And in -- in the documents that I've
 18  provided in the book, there's -- there's both a
 19  manuscript copy of it, which is the handwritten copy,
 20  which you see on the screen is three (3) pages of that. 
 21  And the -- the version that is printed in the -- the
 22  Treaties and Surrenders Book.
 23                 So, I'm -- I'm not going to read the whole
 24  Treaty, because the language is very difficult, but I --
 25  I'm just going to go through it -- you know, very kind of

75
  1  briefly and point out some of the -- the features of it.
  2                 So it starts off -- it -- it becomes known
  3  as Treaty 29, because the Crown started to number all --
  4  all of these early treaties to keep them separate, one
  5  (1) from the other.
  6                 So it was made on the 10th day of July in
  7  1827, between the Crown and the -- the First Nation
  8  leaders and their names are, in fact, listed in the -- in
  9  the printed version of the Treaty.  And their names
 10  appear at the end of the Treaty written in English and in
 11  the manuscript copy, the handwritten copy of the Treaty
 12  you'll see that their names are written and there are --
 13  the -- their totem signs are beside their names.
 14                 So if you look up on the screen on the --
 15  the third page, you'll see all the -- the -- the totem
 16  marks that the -- that leaders had made beside their
 17  names.
 18                 Q:   And this is Slide Number 4, just for
 19  the record.
 20                 A:   Yes, Slide Number 4.  So in the text
 21  of the treaty, it -- it -- it names the -- the -- the
 22  leaders and identifies them as being the -- the chiefs
 23  and principal men of the part of the Chippewa nation who
 24  -- who claims -- who occupy and claim the land that --
 25  that's being ceded.

76
  1                 And they -- they say in the Treaty -- they
  2  specify in the Treaty that the land is being ceded or
  3  it's being appropriated by the Crown for the -- purpose
  4  of cultivation and settlement of the tract of land.
  5                 And they refer to the provisional
  6  agreement that had been made in 1825.
  7                 Towards the bottom of that first page, it
  8  says in the very last paragraph:
  9                   "And whereas the tract -- the tract of
 10                   land intended and agreed to be
 11                   surrendered as aforesaid has been since
 12                   accurately surveyed so that the same as
 13                   well as certain small reservations
 14                   expressly to be made by the Indians
 15                   from and out of the said tract for the
 16                   use of themselves and their posterity
 17                   can now be certainly defined."
 18                 And, in the -- in the treaty they -- they
 19  -- they do describe them.
 20                 Q:   Can you just tell us what page of the
 21  treaty you're reading from?
 22                 A:   Oh, I -- I beg your pardon.  It's in
 23  the first -- in the -- in the document that's at Tab 3 on
 24  the very first -- it's page -- it's in the Treaties book,
 25  it's Page 71 which is the right hand side of the page. 

77
  1  You'll see Number 29, which is the number of the treaty
  2  and I was reading from the very last paragraph.
  3                 Q:   Thank you.
  4                 A:   So if we move to the next page, which
  5  is on the left hand side of the page.  It's got number 72
  6  at the top, in that first paragraph it says that -- that
  7  the head men are ceding up this land and it's about the
  8  fourth line down:
  9                   "For and in consideration of the annual
 10                   sum or payment of one thousand and one
 11                   hundred (1,100) pounds of lawful money
 12                   of the province of Upper Canada to be
 13                   paid by His Majesty, his heirs, and
 14                   successors to the said Indians and
 15                   their posterity in each and every year
 16                   in the manner hereafter mentioned."
 17                 So we'll see here that the sum of money is
 18  eleven hundred (1,100) pounds.  And towards the very
 19  bottom of this page, after they -- they go on and they
 20  describe the -- the survey description of -- of the
 21  boundaries of the reserve which is very long and tedious
 22  to read.
 23                 And towards the end of the -- the -- that
 24  page, they note that now that the land has been surveyed,
 25  they know that that -- the area being surrendered is

78
  1  2,201,000 acres, more or less.
  2                 And then they go on to describe the -- the
  3  reserves that are being set aside out of that land.  And
  4  so at the -- starting about the sixth line up it says:
  5                   "And expressly reserving to the said
  6                   Nation of Indians and their --
  7                   posterity at all times hereafter for
  8                   their own exclusive use and enjoyment
  9                   the part or parcel of the said tract
 10                   which is hereafter particularly
 11                   described and which is situated at the
 12                   mouth of the River Aux Sable on Lake
 13                   Huron, that is to say ..."
 14                 Then there is the surveyor's description. 
 15  So that -- here they're describing the reserve at the
 16  River Aux Sable on Lake Huron which is later known as the
 17  Stony Point Reserve.
 18                 And it is two thousand six hundred and
 19  fifty (2,650) acres.  Then, next, they go on to describe
 20  the reserve at Kettle Point which is two thousand, four
 21  hundred and sixty-four (2,464) -- forty-six (46) acres,
 22  pardon me.
 23                 And then they go on and they describe the
 24  two (2) reserves on -- which become the Sarnia Reserve
 25  and the Moore Township Reserve.  

79
  1                 Now, if you go over to the next page which
  2  is on the top of the pages is number 74 and 75, at the
  3  bottom of page 74 which is on the left-hand side, they
  4  talk about how the -- the compensation money is to be
  5  delivered.
  6                 So this is the one thousand, one hundred
  7  (1,100) pounds of lawful money in goods.  So here they
  8  describe that this -- this money is -- the eleven hundred
  9  (1,100) pounds is going to be distributed in goods.  So
 10  it's eleven hundred (1,100) pounds worth of goods. 
 11                 Q:   And you indicated earlier that their
 12  request had initially been for half goods and half money?
 13                 A:   That's -- half goods and half money
 14  and it was the -- the hard currency money part of it that
 15  the Crown wouldn't sanction.  So -- but there's a little
 16  bit of a catch to the -- to the goods and I'm going to
 17  read you the bottom part of this page 74 because -- and
 18  basically the language is sometimes hard to understand.
 19                 But basically what they're saying is if
 20  the -- the population of Chippewas at the time of this
 21  treaty was supposed to be four hundred and forty (440)
 22  people.  And they're saying, if that population falls to
 23  less than half of that, then the annuity is going to be
 24  cut in proportion. 
 25                 Q:   Did the -- did the treaty address

80
  1  what would happen if the population significantly
  2  increased? 
  3                 A:   No.  There's no provision for that. 
  4  So there's only a provision for decreasing the annuity
  5  but not for increasing it.  And I think that the reason
  6  for that is because at this time period, 1827, the
  7  attitude of the British Crown was, that the -- the Indian
  8  population, the aboriginal people, were going to
  9  disappear.
 10                 They -- they believed that the aboriginal
 11  people could not -- could not sustain the onslaught of
 12  the white settlers and that they would -- that they would
 13  disappear.
 14                 So, when they made their treaty, they are
 15  making it in such a way that if, in fact, the people do
 16  die off, that they won't owe -- they won't owe as much
 17  money as the population decreases.
 18                 So, just starting from the bottom of that
 19  it says: 
 20                   "In the delivery or distribution of the
 21                   said goods, each individual composing
 22                   that part of the Chippewa Nation which
 23                   has heretofore inhabited and enclaimed
 24                   the said tract hereby surrendered.  And
 25                   each individual with their posterity

81
  1                   shall be entitled to an equal share. 
  2                   And that if it shall happen hereafter
  3                   that by death or removal the number of
  4                   -- of such individuals which it is
  5                   declared and agreed by the said Chiefs
  6                   and principal men of the said Indians
  7                   does, at the time of the execution of
  8                   this surrender amount to four hundred
  9                   and forty (440)."
 10                 So, what they're saying there is
 11  everyone's agreed that there's four hundred and forty
 12  (440) Chippewas who are part of this Treaty.  
 13                   "So if that -- if that number, four
 14                   hundred and forty (440) shall fall
 15                   below half -- so does at the time of
 16                   the execution of this surrender amount
 17                   to four hundred and forty (440) shall
 18                   fall below half of their present
 19                   number, then the said annuity shall be
 20                   hence forth reduced one-half («).  And
 21                   continue to so reduce until and unless
 22                   it shall happen that the residue shall
 23                   in like manner be therefore reduced by
 24                   1/2 when the said annuity shall be
 25                   therefore reduced in the same

82
  1                   proportion.  And that the same
  2                   principle shall continue to prevail
  3                   provided however that there shall be no
  4                   reduction in the said annuity by reason
  5                   of any decrease of numbers so long as
  6                   the said Indians or their posterity
  7                   equal in number one-half of the number
  8                   entitled to the claim by the last
  9                   preceding numeration."
 10                 So basically what all of that is saying is
 11  that if -- if the -- the number drops to less than half
 12  then the annuity is also going to drop to less than half. 
 13  But as -- as I already pointed out, there is no provision
 14  for it increasing.
 15                 Q:   Thank you.  If you're proceeding with
 16