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 18th, 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  
  4   JOAN MARGARET HOLMES, Resumed
  5  Continued Examination-in-Chief 
  6                 by Ms. Susan Vella             6
  7  
  8  
  9  
 10  Certificate of Transcript                     199
 11  
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 15  
 16  
 17  
 18  
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 25  

6
  1  ---  Upon commencing at 10:00 a.m.
  2  
  3                 THE REGISTRAR:   Order, all rise, please. 
  4  This Public Inquiry is now in session.  The Honourable
  5  Mr. Justice Linden presiding.
  6                 COMMISSIONER SIDNEY LINDEN:   Good
  7  morning.
  8                 THE REGISTRAR:   Please be seated.
  9                 COMMISSIONER SIDNEY LINDEN:   Good
 10  morning.
 11                 MS. SUSAN VELLA:   Good morning,
 12  Commissioner.  Just before we resume Ms. Holmes'
 13  testimony, I have a couple of matters.  The first, if
 14  you'll recall that yesterday we discovered that the slide
 15  5 of the PowerPoint presentation that had been
 16  distributed was incorrect.
 17                 And so, this morning I have distributed to
 18  counsel, a hard copy of slide 5, which contains the
 19  correction, which mirrors what was on the screen
 20  yesterday.  And we also have a revised PowerPoint
 21  presentation, which mirrors the presentation you're
 22  seeing today and yesterday.
 23                 I'd like to tender the new CD as a
 24  replacement Exhibit P-9, and -- and as well, the
 25  replacement for your Tab 2 of the Expert Brief, slide 5.

7
  1                 COMMISSIONER SIDNEY LINDEN:   Exhibit T-9;
  2  is that what it is?
  3                 MR. DERRY MILLAR:   P.
  4                 MS. SUSAN VELLA:   P.
  5                 COMMISSIONER SIDNEY LINDEN:   I'm sorry. 
  6  I'm sorry, 9.  Yes, P-9.
  7  
  8                        (BRIEF PAUSE)
  9  
 10                 MS. SUSAN VELLA:   As a second item, Ms.
 11  Holmes has advised me of some typographical errors in the
 12  report, which should be corrected, and I propose to do
 13  that right now.  So, perhaps all counsel can retrieve the
 14  expert brief, and I will review for the record, the
 15  corrections.
 16                 And we will start with page 16, footnote
 17  43.  The last sentence reads:
 18                   "His direct ancestors have the family
 19                    names Shawnoo and Shawkence."
 20                 It should read his direct descendants.  So
 21  replace the word "ancestors" with "descendants."
 22                 Next, page 29, the first full paragraph
 23  sentence reads:
 24                   "Similar petitions were sent in 1892."
 25                 The date should be corrected to 1885. 

8
  1  Next, go to page 42, first full paragraph; first sentence
  2  reads:
  3                   "In 1992, the Chippewas of Kettle and
  4                   Stony Point First Nation, initiated a
  5                   Court action alleging that the 1928
  6                   surrender was invalid."
  7                 Replace 1928 with 1927.  
  8                 Last, page 69, fifth paragraph; currently
  9  the first sentence, currently reads:
 10                   "Shortly after Camp Ipperwash was
 11                    created in 1932."
 12                 It should read:
 13                   "Shortly after Ipperwash Park was
 14                    created in 1936."
 15                 And for the record, those are the
 16  corrections to the report.  
 17                 COMMISSIONER SIDNEY LINDEN:   Thank you
 18  very much, Ms. Vella.  Did everybody get those?  Thank
 19  you very much.
 20                 MS. SUSAN VELLA:   Thank you.
 21  
 22                   JOAN MARGARET HOLMES, Resumed:
 23  
 24  CONTINUED EXAMINATION-IN-CHIEF BY MS. SUSAN VELLA:
 25                 Q:   Ms. Holmes, perhaps -- Ms. Holmes,

9
  1  perhaps you can put on the computer.  And I believe that
  2  we left off yesterday, when we concluded at the creation
  3  of the Chippewas of Kettle and Stony Point in 1919 and
  4  you were going to proceed with slide 15?
  5                 A:   Yes, I'll just bring up that slide
  6  now.  I'd like to -- to now focus then on the -- the
  7  Kettle and Stony Point Band and, in particular, the
  8  reserve lands assigned to that band. 
  9                 Q:   Okay.  
 10                 A:   Okay.  So, if you remember where we
 11  left off yesterday, Kettle and Stony Point had just been
 12  divided from the -- the rest of the Sarnia Band and
 13  created as one Indian Act Band.  
 14                 This slide that -- that you have up on the
 15  screen is about the 1927 purchase from the Kettle Point
 16  Reserve and I'll just explain to you a little bit about
 17  what I'm going to talk about and then I will -- I will
 18  point out the -- the location on the map.
 19                 So, in 1927 part of the beachfront of the
 20  Kettle Point Reserve was surrendered for sale.  It was a
 21  total of eighty-three (83) acres and it was sold for
 22  eighty-five dollars ($85) per acre; that represented
 23  about 3 percent of the Kettle Point land base.
 24                 And I'll just show you the -- oh, I don't
 25  seem to have my pointer.  I'll -- 

10
  1                 Q:   Ms. Holmes, just a minute.  I have an
  2  extra. 
  3                 A:   What you see on the -- on the slide
  4  is the two (2) reserves, the Kettle Point Reserve and the
  5  Stony Point Reserve.  Thank you.  
  6                 COMMISSIONER SIDNEY LINDEN:   Excuse me, I
  7  don't want to interrupt you but there's a little bit of a
  8  hum in the room, is everybody hearing it or am I the only
  9  one who's hearing it?  Are you hearing a hum? No?  Is it
 10  just the air conditioning; is that all it is?  
 11                 MS. SUSAN VELLA:   I think it's just the
 12  air conditioner, Commissioner. 
 13                 COMMISSIONER SIDNEY LINDEN:   Okay.  Let's
 14  carry on. 
 15  
 16  CONTINUED BY MS. SUSAN VELLA:   
 17                 Q:   Thank you. 
 18                 A:   Okay, on the left this is the Kettle
 19  Point Reserve which I'm showing you.  I'm going along the
 20  -- the -- the western boundary of the reserve with Lake
 21  Huron, the shoreline.  This -- this is Kettle Point
 22  itself and this is the -- the continuation of the
 23  shoreline of Lake Huron.
 24                 The area that was surrendered is shown in
 25  red on the -- on this plan and that's the eighty-three

11
  1  (83) that comprises eighty-three (83) acres.  On this
  2  side, on the right side of the -- the reserve, just to
  3  keep you oriented on the -- on the plan, this -- this
  4  area that I'm showing with the pointer is the Stony Point
  5  Reserve and it is on the right -- the far right of the
  6  slide. 
  7                 Q:   And just for the record, the -- on
  8  the left side it's marked "Kettle Point Reserve" and on
  9  the right side you point -- the place that you outlined
 10  is actually marked "The Stony Point Reserve". 
 11                 A:   That's correct.  And just for
 12  interest, this plan that we made in our office to -- to
 13  show these two (2) locations, it's a modification of that
 14  1900 plan of survey that Davidson did. 
 15                 Q:   And in which way did you modify it? 
 16                 A:   We -- we modified it by putting the -
 17  - the area that was surrendered on it, to mark it for
 18  people's information because, of course, that wasn't
 19  surrendered in 1900. 
 20                 Q:   Of course.  Thank you.  
 21                 A:   So, I would just -- before I -- I go
 22  into the process of how that land was surrendered for
 23  sale, I just wanted to recall to you that by the terms of
 24  the Royal Proclamation of 1763, which we had discussed
 25  yesterday morning, land -- Indian reserve land can only

12
  1  be surrendered directly to the Crown by a First Nation.
  2                 So, the Royal Proclamation introduces that
  3  -- that concept that -- that land that was reserved for
  4  Indians in settled areas could only be taken by the
  5  Crown, not by any third parties.
  6                 And that principle was elaborated through
  7  the years by various instructions to Indian agents and
  8  then when the Indian Acts were written, starting in --
  9  starting before Confederation, but -- but consolidated in
 10  the First Indian Act of 1876.  The Department was given
 11  particular instructions and guidelines and requirements
 12  for taking surrenders of Indian land.
 13                 From a fairly early period, starting
 14  around 1912, there was local pressure to open up part of
 15  the beach front at Kettle Point for development and
 16  settlement.  And the -- there were -- there were a couple
 17  of attempts in 1912, and then again in 1923, but none of
 18  those were carried through.
 19                 But in -- in 1927, a party by the name of
 20  Mackenzie Crawford, approached the Indian Agent and
 21  asking -- stating that he wanted to buy part of the beach
 22  front at Kettle Point.  And at that time the Indian Agent
 23  was favourably disposed towards there being a surrender,
 24  because he felt that that beach front land at Kettle
 25  Point was worthless; he says it's white drifting sand and

13
  1  he says, worthless for agricultural purposes.  
  2                 And I think that you -- you have to recall
  3  that at this -- this period in history, the attitude --
  4  the general attitude of the Department of Indian Affairs
  5  was that reserve land was the -- the primary value of it
  6  was as agricultural land, or as land that you could cut
  7  timber off, or -- or sell other resources for.
  8                 So, when this -- this local land
  9  developer, Mackenzie Crawford was looking at this land as
 10  a -- a development potential for recreational
 11  development, this wouldn't be something the Department of
 12  Indian Affairs would think of was value to the band, they
 13  just thought of it as being of no value, because they
 14  couldn't use it for agricultural purposes.
 15                 So, the Indian Agent was approached by --
 16  by Crawford, and he -- and -- and the Indian Agent had a
 17  favourable attitude towards taking a surrender.
 18                 And what we see when we look at the
 19  historical record is within the community there was a
 20  divided opinion on whether or not this surrender was --
 21  was a good idea.
 22                 Q:   And -- and when you say "community,"
 23  which community are you referring to?
 24                 A:   I'm referring to the Stony Point and
 25  -- and Kettle Point communities.

14
  1                 Q:   All right.  Earlier in your testimony
  2  when you started out with respect to the 1912 and 1923
  3  attempts to open up the land, you said it was from the
  4  local community; what local community were you referring
  5  to then?
  6                 A:   At first it was the Thedford Board of
  7  Trade that -- that wanted to open up land, and they were
  8  particularly looking at the Stony Point Reserve at that -
  9  - at that time.  So, really the -- the pressure to get
 10  land is -- is in relation to both of those reserves.
 11                 And the -- the approach in 1912 was more
 12  specific to Kettle Point, and this -- this proposal that
 13  Mackenzie Crawford brought to the Indian agent in 1927,
 14  that was specific to Kettle Point, to the beach front.  
 15                 So, I'm just going to draw your attention
 16  to one (1) -- one (1) piece of correspondence that was
 17  sent in by a portion of the -- of the band, and it's --
 18  it's Document 189 and it's at Tab 45.  
 19                 Q:   That would be Inquiry Document
 20  4000189.  
 21  
 22                        (BRIEF PAUSE)
 23  
 24                 A:   Okay.  So, are we ready?
 25                 Q:   Yes, go ahead.

15
  1                 A:   Okay.  So, this document was written
  2  in February 1927 by Chief John Millikin, Bressette and
  3  Robert George.  And it's signed, there's a little bit cut
  4  off on the bottom of the page but it looks it's signed
  5  also by William George who appears to be the secretary.
  6                 And it's written from Raven's Wood which
  7  is the little town on the highway just outside of the
  8  reserve.  And there it -- it starts off:
  9                   "Sir,
 10                   We have been anxiously awaiting for the
 11                   decision of the Indian Department
 12                   regarding the sale of the parcel of
 13                   land applied for by McKenzie Crawford
 14                   and Son of Sarnia, Ontario.  Whatever
 15                   conclusion the Department has come to,
 16                   please advise us if you are in favour
 17                   of the sale of the land.
 18                   Please give us permission to hold a
 19                   general council as soon as possible. 
 20                   The majority of the voters are in
 21                   favour of the sale of this land and are
 22                   anxiously waiting for a general
 23                   council.
 24                   If the letter sent by Cornelius
 25                   Shawanoo have anything to do with the

16
  1                   delay of the sale, please do not pay
  2                   any attention to them.  No doubt the
  3                   most of his letters are fictions.
  4                   Waiting for a favourable reply at an
  5                   early date, we remain as ever yours."
  6                 And then there's the signatures.
  7                 Now there's a couple of very interesting
  8  things about this letter.  First of all, at this time,
  9  all that we know from the written record is that McKenzie
 10  Crawford who's a private developer has approached the
 11  Indian agent saying that he wants to buy this land.  
 12                 There has been no formal application to
 13  the Department to make a purchase.  And there hasn't been
 14  a -- the Department hasn't raised with the First Nation
 15  the -- the prospect or the possibility of surrendering
 16  the land.  So, when I read this letter it -- it suggests
 17  to me that either Mr. Crawford has approached some of the
 18  -- the band members, probably the chief himself or the
 19  Indian agent has already been talking to the -- probably
 20  the chief and council perhaps some other members about
 21  this proposed surrender.
 22                 Now, the second thing is you'll notice by
 23  the language of it that the chief and these two (2) other
 24  men who appear to be councillors, they're asking the
 25  Indian Department what should we do?  And do you favour

17
  1  the sale and do you have permission for us to have a
  2  general council?
  3                 And a general council would be a meeting
  4  of the entire band membership to -- to vote on the
  5  surrender.  So, the chief is asking Indian Affairs for --
  6  for permission, for advice and it shows how at this
  7  period of time the Department of Indian Affairs has a
  8  tremendous amount of influence over what a chief and
  9  council might do.  So, it show -- it shows the degree of
 10  -- it shows the degree of -- of control that the
 11  Department has in band -- in band affairs.  
 12                 The second part of the letter where he's
 13  talking about letters from another band member, Cornelius
 14  Shawanoo, is raising the -- the flag that there is
 15  descent or -- or a difference of opinion within the
 16  community on -- on this whole question -- potential
 17  question of surrendering the land.
 18                 And the -- and Shawanoo did in fact write
 19  some letters and I'm going to take you to one of those
 20  next so that you can see the other -- the other view on
 21  this -- this topic.  And the -- one of the letters from
 22  Shawanoo is -- it's at Tab 48 and it's Document Number
 23  196.
 24                 Q:   That would be Inquiry Document Number
 25  4000196.  And this is a letter dated March the 1st, 1927?

18
  1                 A:   Yes.  Actually it's March 21st.
  2                 So, a little bit -- a little bit of time
  3  has passed before this letter comes in, and there is some
  4  activity prior to this letter, which I'm going to talk
  5  about later, because the Indian agent has -- has started
  6  to make some -- some advances to call a General Council,
  7  and to -- and to get the surrender processed, or the
  8  consultation for the surrender process underway.
  9                 But this is what Cornelius Shawanoo
 10  writes, and the letter is a little bit difficult, because
 11  there's many archival records, it's -- it's torn on the
 12  corners.  And it's also -- the author of the letter is
 13  not a fluent English speaker, so the letter's not -- is
 14  always -- is sometimes a little bit difficult to follow.
 15                 But he's writing directly to the
 16  Department of Indian Affairs in Ottawa, he's not going
 17  through the Indian agent.  And again, just to -- to help
 18  you to understand the significance of that in this time
 19  period when a -- an individual of a -- of a First Nation
 20  would write to the Department, they were always
 21  instructed to go through their Indian Agent, they were
 22  not supposed to write directly to the Superintendent
 23  General of Indian Affairs.  Always the instruction was
 24  you deal with your Indian Agent, you deal through the
 25  Indian Agent, it was part of the Indian Affairs

19
  1  hierarchy.  And it was one (1) of the ways in which
  2  Indian Affairs wanted to keep the Indian agent to be the
  3  first line person in control of local disputes.
  4                 But -- but in this case he writes directly
  5  to the -- the Department of Indian Affairs in Ottawa,
  6  perhaps as an indication that he's not confident that the
  7  Indian agent will give proper weight or -- or take his --
  8  his request seriously.
  9                 So, I'll read you -- I'll read from the
 10  letter.  It starts off:
 11                   "Dear Sir.  We wish to find out if an
 12                   Indian agent has authority to notify
 13                   Indians to hold General Council and
 14                   propose to sell Indian land.  He came
 15                   to Kettle Point last week, distributing
 16                   notices that a General Council is to be
 17                   held on the 30th of the month, for a --
 18                   for a purpose of selling a certain
 19                   parcel of ground at Kettle Point.  
 20                      And the Chief said they never pass a
 21                   resolution at the Council for Council
 22                   to be held.  This is the second time
 23                   [It's cut off] does this, this winter. 
 24                   It looks to us that he [It's cut off
 25                   again]

20
  1                   "-- not care anything about the    
  2                   original --"
  3                 Looks like members of Kettle Point:
  4                   "Our boys are refused from [And I
  5                   believe it's] taking up land.  And
  6                   they're -- and they -- and they're put
  7                   [A word I can't read] almost in the
  8                   same position of an Indian woman who
  9                   has married a non-Treaty Indian or a
 10                   white man, all be --"
 11                 Cut off.  And I think that's supposed to
 12  be, rights:
 13                   "They have is to get their annuity,
 14                   money, and will not --"
 15                 Excuse me, it's a -- an Indian woman
 16  married to a non-Treaty Indian or a white man, and then I
 17  think that there's a period there, and then the new
 18  sentence starts:
 19                   "All the right they have is to get
 20                   their annuity money and will not vote
 21                   any land dealing."
 22                 And I think it's supposed to be:
 23                   "And will not be able to vote in any
 24                   land dealing, because they not entitled
 25                   to any land on our reserve."

21
  1                 I'll come back and explain that after. 
  2  Then the letter goes on:
  3                   "This affair arose from our Indian
  4                   agent by the Council, that the Indian
  5                   Department is holding certain part of
  6                   the Kettle Point for the purpose
  7                   selling the ground.  He even does one
  8                   (1) of the Indian --"
  9                 And it's cut off again:
 10                   "-- of the Indians [I'm not sure of the
 11                   word, sorry] to sell.  That the
 12                   Department was --"
 13                 This is a little bit difficult  So, he
 14  goes on to say:
 15                   "same and [okay] that the Department
 16                   will sell it just the same."
 17                 So I think what he's saying here is that,
 18  if  -- okay -- if he -- sorry, I'm just going to start
 19  the sentence again because I'm -- I -- I'm losing the
 20  sense of it for you.  
 21                 Okay, so he's talking about the Council to
 22  sell the ground:  
 23                   "He even told one (1) of the Indians,
 24                   If the Indians refused to sell that the
 25                   Department will sell it just the same

22
  1                   and the supposed [I think it's supposed
  2                   to be  -- buyer, or buy] amount to pay
  3                   fifteen dollars ($15.00) each of those
  4                   who will go to the meeting on the
  5                   thirtieth (30th).  I suppose those in
  6                   favour of the sale, as I have said many
  7                   times, our property is going fast
  8                   enough without selling land because we
  9                   have not the majority to stop it, sorry
 10                   to say.  I want to know if that is the
 11                   case on the --"
 12                 Q:   letter -- letter?
 13                 A:   I think it is letter --"
 14                 Q:  Which I wrote.
 15                 A: "-- which I wrote to the Honourable
 16                 Charles Stewart, Minister of the Interior,
 17                 Ottawa, where I have mentioned all our
 18                 troubles.  I can say it is positively no
 19                 use for us to try to stop the land sale
 20                 and I ask the Department to stop the
 21                 General Council, which is called up by our
 22                 Indian agent without the Council passing a
 23                 resolution or without [and then the word,
 24                 "without" is repeated] the original
 25                 members' consent.  I am sorry to acquire a

23
  1                 few more facts about this reservation."
  2                 And then he goes on.  There is something
  3  there at the beginning and I think it might be, "if" or
  4  "I" -- I'm not sure but it -- then it says:
  5                   "Does half-breeds of a white father
  6                   residing at Kettle Point entitled to
  7                   hold office if there was not --"
  8  And it's supposed to be, "if they were":
  9                   "-- not admitted in the Band by
 10                   Council.
 11                 And in number 2, right up there where I
 12  didn't know what it is, it's actually number 1.  Number
 13  2:
 14                   "Does a member of the American
 15                   Potawatomi, who hold a claim -- a share
 16                   of that million dollars in U.S. -- has
 17                   right to hold office on Canadian Treaty
 18                   Indians' property and do as he likes on
 19                   the reservation without the original
 20                   members' consent?"
 21                 Moving on the last page:
 22                   "Who is the original members on Indian
 23                   reserve [And, two (2) little words I
 24                   can't read] descended of the first
 25                   Indian that will settle on parcel of

24
  1                   ground have -- and have improvements on
  2                   already.  When the reserves were first
  3                   set apart, or those that came in
  4                   afterwards as visitors between fifty
  5                   (50) and seventy (70) years ago, we
  6                   want to have a full understanding of
  7                   this."
  8                 So, there's a lot of information in this
  9  letter and I -- I'm -- I want to go back and -- and point
 10  out some of the particular features of it.  You know,
 11  first of all, he's talking about -- he's asking -- he's
 12  asking what kind of rights and what kind of procedure is
 13  required and necessary, which I think is a measure and
 14  indication of how difficult it was for the -- the general
 15  population on a reserve to understand exactly what rights
 16  there were and what rights they had and exactly what
 17  procedures were required for anything as monumental as
 18  taking away part of the reserve.  
 19                 So -- and this -- you know, in this
 20  period, like in 1927, there was very little -- there was
 21  very little education of the Indian population about what
 22  their rights were, and -- and while they were controlled
 23  and managed under very strict and specific legislation,
 24  there was very little understanding amongst the general
 25  population of -- of what there were -- what those things

25
  1  were, and even amongst a council.
  2                 So, this first part of the letter he's
  3  asking that you know, does the Indian agent have the
  4  right to do that, to come and call a general council
  5  meeting, when the chief and council have indicated that
  6  they didn't pass a resolution saying, we're going to have
  7  a general council meeting.  So, that's the first thing he
  8  wants to know.  Does the Indian agent have the right to
  9  initiate this -- this surrender process.
 10                 He goes on talking about the original
 11  members of the reserve, and this comes back to that issue
 12  that we talked about yesterday, about the -- the rights
 13  of the so called Potawatomi, foreign Indians, American
 14  Indians on the reserve, and we can see how this was an
 15  issue, which really hasn't gone away and really hasn't
 16  been resolve.
 17                 So, he's asking about that, and in that he
 18  uses this analogy of some of their boys not having any
 19  more rights.  He talks about Indian women who've married
 20  out.
 21                 And here -- here the reference is to that
 22  the -- the lack of rights that women had, who -- who
 23  married non -- non-Indians or non-band members, how they
 24  lost a lot of their rights on the reserves.
 25                 So, he's saying that there are people

26
  1  here, what he calls our boys, our original members who
  2  aren't getting what he considers to be the proper right
  3  and access to -- to land on the reserve.
  4                 And the -- again, this -- this issue of --
  5  of people not having full rights is one (1) that --
  6  that's at the fore. 
  7                 So, he's -- he's asking again, you know,
  8  do they have the right to sell it.  Now, at the beginning
  9  of page 2, he raises the -- he raises what becomes a huge
 10  controversy in this surrender about the fact that
 11  somebody has been told that even if the -- the band
 12  refuses the vote, the Government is going to sell the
 13  land anyway.
 14                 So, this is a common fear on the reserve,
 15  this is a -- an idea that's going around, is that the
 16  reserve is going to be sold out under them that they --
 17  even if they refuse a surrender.  So, it goes back again
 18  to the fact that people are not very aware of what their
 19  legal rights are, because their legal rights under the
 20  Indian Act are the only way that the land can be
 21  alienated from them and sold, is if, in fact, they give a
 22  voluntary surrender.
 23                 It -- he also starts talking about this
 24  money that -- that's being circulated, and -- and money
 25  being paid to people if they -- if they will go and vote

27
  1  for the surrender.
  2                 So, he raises here the -- the whole issue
  3  and what becomes a very contentious issue in this whole
  4  1927 Kettle Point surrender, of whether there was some
  5  kind of undue influence or he -- he refers to it later as
  6  -- as bribery.
  7                 Again, at the bottom of that second page,
  8  he raises that the issue of what rights do people have,
  9  what he calls half breeds that are born of a white
 10  father.  And again, the issue of -- of Potawatomis.  And
 11  when he's talking about this million dollar claim, what
 12  he's referring to is there was -- around this time there
 13  was a claim in the United States that Potawatomi
 14  descendants had -- there was a compensation claim going
 15  on.  So, that -- that's what that reference is -- is to
 16  that.
 17                 Q:   I'm sorry, can you just explain that
 18  a little more; a compensation scheme with respect to
 19  what?
 20                 A:   Well, I don't know a huge amount
 21  about it, but in the United States, in this time period,
 22  there were a number of Indian claims being considered,
 23  where the American Government looked at claims that a
 24  number of tribal groups had against the American
 25  Government, for displacing them for -- from their lands. 

28
  1  And this would be a reference to one (1) of those, that
  2  there was -- there was some kind of a compensation coming
  3  from the American Government, due to certain -- certain
  4  tribal groups.
  5                 So, it's obvious this is -- this is in the
  6  news, and he's aware of this and -- and there's likely
  7  discussion of it on the reserve and if there are people
  8  who are living on the reserve who have an interest in
  9  that claim.  So, that's the reference to that.
 10                 So, basically I wanted just to take you to
 11  that document because it -- it shows you again, sort of
 12  the roots of -- of some of the division in the community
 13  in general which is carrying on, which has never really
 14  been resolved.  And more specifically in terms of the
 15  surrender, he's raising issues already about how this
 16  surrender is being approached in terms of procedure.  
 17                 And he's raising the flag about the
 18  feeling that -- that people have the idea that if they
 19  don't vote for the surrender that the land is going to be
 20  sold anyway.  And that there is -- there is the
 21  suggestion that there's -- there's money being offered to
 22  people to go and vote at the surrender.
 23                 So, what -- what had happened between that
 24  -- that first letter that I read to you, the letter from
 25  the chief, and asking the Indian Department if they were

29
  1  in favour of the surrender and the -- the letter from
  2  Shawanoo against the surrender the Indian agent had gone
  3  and put up notices calling for a -- a general council to
  4  -- to start the vote, to -- to seek a vote for the
  5  surrender.
  6                 And what's of -- of particular interest I
  7  think is that the local -- the local MP had written to --
  8  to the Department and supporting the application from
  9  Crawford and the -- he -- he writes in a document and I -
 10  - I quoted it on page 39 of the report in that second
 11  last paragraph.  
 12                 Goodi -- the name of the MP is Goodison,
 13  the MP for Lambton West.  And the -- the officer in -- in
 14  charge of lands at Indian Affairs writes that Mr.
 15  Goodison very -- was very strongly in favour of Mr.
 16  Crawford's proposition and has requested the Department
 17  to give it every consideration.
 18                 So, what you see and again this was a
 19  fairly common occurrence of this -- this period in
 20  history is that local MP's would write to the -- to the
 21  Minister of Indian Affairs and support a -- an
 22  application by a particular person who was seeking to --
 23  to buy Indian land.  So, the local MP has promoted --
 24  promoted the -- the application by Crawford.
 25                 So, shortly after that there was a

30
  1  resolution in -- in council from the chief to -- to
  2  endorse the idea of getting a surrender.  And they were
  3  looking for a cash payment of eighty-five dollars ($85)
  4  an acre for that land. 
  5                 Q:   So, that's eighty-five dollars ($85)
  6  for each of eighty-three (83) acres?  
  7                 A:   Yeah.
  8                 Q:   That was the subject of this
  9  application?
 10                 A:   That's right.  And so, the Department
 11  went ahead with the usual kind of procedure for taking a
 12  surrender and the -- the Department drew up a -- a
 13  voter's list.  And a voter's list would be a list of all
 14  the individuals on the reserve who had a right to vote in
 15  -- in a surrender.  And they would be men, twenty-one
 16  years (21) of age or older. Women did not have the right
 17  to vote.
 18                 And on that voter's list that was drawn up
 19  there were thirty-nine (39) individuals.  They had the
 20  vote.  Twenty-seven (27) of them voted in favour of the
 21  surrender and there were no votes against the surrender.
 22                 And if you look at the poll list, the --
 23  the -- the list of voters, what you'll see is that the
 24  thirty-nine (39) names are listed and they include --
 25  these are -- these are band members, so they would be

31
  1  members that were potentially residing on either the
  2  Stony Point or the Kettle Point Reserve. 
  3                 Q:   And is that at Tab 49? 
  4                 A:   Yes.  
  5                 Q:   That's Inquiry Document Number
  6  4000197.  It's the poll book? 
  7                 A:   And the first -- the first page of
  8  the poll book is a general memorandum for agent's
  9  guidance.  This is not specific to this surrender.  This
 10  would be something that was a standard Indian Affairs
 11  circular or memorandum that would be put in the front of
 12  the poll book.
 13                 And then if you look -- if you look on the
 14  second page, the third, the fourth and the fifth page,
 15  this -- this document, the first and the second page,
 16  actual -- are actually one (1) page because it's a wide,
 17  like a ledger-sized page.
 18                 So -- and what the agent has actually used
 19  here is -- is a sheet which is the standard sheet that
 20  was used for making annuity payments; that's what the
 21  columns and everything that are in there.  And they've
 22  just used that sheet as a poll book for the -- the vote
 23  on the surrender.
 24                 So, down the left-hand side is the names
 25  of all the voters, you'll see that on the second page and

32
  1  the fourth page.  And then in the columns, over to the
  2  right, you'll see one column that's written in in
  3  handwriting "voted for". 
  4                 The next column in handwriting is written
  5  "voted against".  And if you look down the columns you'll
  6  see there are X's besides certain names in the "voted
  7  for" list and there's a total of twenty-seven (27) of
  8  those. 
  9                 And in the "voted against" list there are
 10  no marks.  And the note on the bottom of the third page,
 11  it says:
 12                   "Those members on list were absent at
 13                   the meeting who did not vote."
 14                 So, that's the agent's note which is a
 15  little awkwardly worded.  But what he's saying is, the
 16  people on the list who did not vote, they were absent,
 17  okay?  So people either went to the surrender meeting and
 18  voted for the surrender or they didn't go and vote.
 19                 And it's -- it's a -- if you recall from
 20  the Shawanoo letter and which -- and which is also
 21  documented in other documents, there was a suggestion
 22  that -- that fifteen dollars ($15) were given out for
 23  people to go and vote.
 24                 And when the agent later defends that, the
 25  suggestion was, well, actually they gave out five dollars

33
  1  ($5) to go and vote but you didn't have to vote for the
  2  surrender, you just had to show up to vote.
  3                 But what we see, the way in which people
  4  reacted to the situation was, they only went and voted if
  5  they were going to vote for.  If they were vote -- if
  6  they didn't want the surrender they did not vote.
  7                 And that -- that is sometimes a
  8  consistent, sort of, action or reaction that people don't
  9  go and vote if they're going to vote no.  They either,
 10  they don't go or they -- they don't want to have the
 11  meeting in the first place.
 12                 And if you recall yesterday when we talked
 13  about the -- the vote to -- to set aside that fifty (50)
 14  acres for the Potawatomis, the Kettle Point and Stony
 15  Point people refused to vote.
 16                 So, it's not that they voted against it,
 17  they didn't vote.  They refused to take part in the vote. 
 18  And I -- some people have told me that it is a Nishnawbe
 19  cultural, behavioural fact, that people don't want to say
 20  no.  So, instead of saying no, the way you say no, is to
 21  avoid something.
 22                 And I think that it would be my
 23  interpretation of both these incidents of the refusing to
 24  vote for the fifty (50) acres.  And when people did not
 25  come to vote at -- at this -- at this surrender vote,

34
  1  that it's because that -- that was their way of refusing.
  2                 Of course under Indian Act legislation,
  3  and the way a surrender is conducted, the -- the absence
  4  of voting or the refusing to vote is not considered a no
  5  vote, it's just an absence.
  6                 Q:   Okay.  Thank you.  And -- 
  7                 A:   So -- 
  8                 Q:   -- do you -- you were able to -- to
  9  discover, based on your research, who paid the -- the
 10  five dollar ($5) bonus?
 11                 A:   It was Crawford, who was the -- the
 12  purchaser.
 13                 Q:   Right.
 14                 A:   And the -- this whole paying people
 15  to show up to vote becomes a controversy that is -- is
 16  raised and discussed.  And I will just -- I'll just read
 17  you a portion of a letter that Crawford wrote just after
 18  the election.  And it's -- it's cited on page 40 of the
 19  report, and it's from document -- it's from document 199,
 20  which is at Tab 51, but you can just look at it in the
 21  report if you care to.
 22                 So, Crawford wrote this letter to the MP,
 23  and he's -- he's explaining the -- his actions and his
 24  involvement.  He writes, quote:
 25                   "I think I forgot to tell you that all

35
  1                   the Indians of the band over twenty-one
  2                   (21) that has a vote, will get their
  3                   bonus just the same as the ones that --
  4                   that did vote.
  5                   We tried to buy it that day --"
  6                 And he's talking about the surrender day:
  7                   "-- we tried to buy it that day for a
  8                   hundred dollars ($100) per acre, but
  9                   they all said they had to have some
 10                   money right away.  So we agreed to pay
 11                   them eighty-five dollars ($85) per
 12                   acre, and fifteen dollars ($15).  There
 13                   was nothing underhanded, everything was
 14                   discussed at the meeting."
 15                 Then he goes on to say:
 16                   "I am writing you this as I am sure
 17                   some of the Indians are going to make
 18                   as much trouble as they can."
 19                 Q:   And just -- just for the record, that
 20  was Inquiry Document Number 4000199.
 21                 A:   Okay.  And -- and in fact, there is
 22  continued protest against -- against the surrender, led
 23  primarily by Shawanoo, who -- who says that it was
 24  bribery and fraud.  And the Indian -- the Department of
 25  Indian Affairs looked at those -- those receipts and they

36
  1  -- they came to the -- the conclusion, or to the
  2  determination that  -- that it was all above board, that
  3  it was -- that it was acceptable, and that it -- that it
  4  met the requirements of the Indian Act.  
  5                 And they -- the Department states that
  6  when they -- when they seek surrenders, in fact they --
  7  they usually have to make a cash distribution at the time
  8  of the surrender.  I think that that was the
  9  interpretation that the Department was putting on that
 10  issue at the time.  
 11                 What I'm doing here is sort of a general
 12  overview, so I'm not going to delve into, you know, the -
 13  - all the -- all the points about whether or not this was
 14  a legitimate surrender or not, but it certainly caused a
 15  great deal of upset in the community with people, some
 16  people believing that it -- it -- that it was a -- it was
 17  not a -- a legitimate surrender, and that it wasn't
 18  lawfully taken.
 19                 The Department went ahead and had the
 20  surrender approved by Order in Council, and surrenders at
 21  this period do have to be approved by Order in Council.
 22                 And the -- actually, I'll -- I'll read you
 23  part of that Order in Council, what it -- what it says. 
 24  The -- 
 25                 Q:   Can we just go to the document and

37
  1  it's at Tab 57? 
  2                 A:   Yes.  And it's Document Number 210.  
  3                 Q:   That's Inquiry Document Number
  4  4000210? 
  5                 A:   Okay.  So, this is -- this is -- this
  6  document is Privy Council Order in Council Number 842. 
  7  It's passed the 11th of May, 1927.  And it reads:
  8                   "The Committee of the Privy Council
  9                   have had before them a report dated 28
 10                   April, 1927 from the Superintendent
 11                   General of Indian Affairs submitting a
 12                   surrender given on the 30th day of
 13                   March, 1927 by the Chippewas of Chenail
 14                   Ecarte and St. Clair Band of Indians
 15                   residing on the Kettle Point Reserve
 16                   Number 44 in the County of Lambton in
 17                   the Province of Ontario of a portion of
 18                   the above-mentioned Indian Reserve
 19                   Number 44 containing an area of eighty-
 20                   three (83) acres which may be described
 21                   as follows..."
 22                 And then they give a legal description of
 23  the land.  And following down to the next paragraph:
 24                   "The said surrender has been given in
 25                   order that the said portion of land may

38
  1                   be sold for the benefit of the band of
  2                   Indians in accordance with the terms
  3                   thereof.  The Minister recommends that
  4                   the said surrender has been duly
  5                   authorized, executed and attested in
  6                   the manner required by the forty-ninth
  7                   section of the Indian Act, that the
  8                   same be accepted by Your Excellency in
  9                   Council, the Committee concurring the
 10                   foregoing rec -- foregoing
 11                   recommendation and submit the same for
 12                   approval."
 13                 And it has been approved.  A couple of
 14  interesting things about the Order in Council; they
 15  describe the Band -- they name the Band "the Chippewas of
 16  Chenail Ecarte and St. Clair Band" and if you remember
 17  they, in 1919, they had already been separated and
 18  constituted as the Kettle and Stony Point Band.
 19                 And then they refer to them as residing on
 20  the Kettle Point Indian Reserve Number 44.  Actually, the
 21  -- when you look at the list of voters for this surrender
 22  and then you compare it with the list of voters for the
 23  next surrender at Stony Point which we're going to talk
 24  about next, they are the same, with a few differences,
 25  they're basically the same -- the same people.

39
  1                 So, the Order in Council is a little bit
  2  imprecise or it's not, like the name of the band isn't up
  3  to date and whatever.  
  4                 Q:   Okay. 
  5                 A:   So, that was -- that was authorized -
  6  - excepted.  So, the final -- the final amount of money
  7  for that surrender is seven thousand and fifty-five
  8  dollars ($7,055) which is the eighty-three (83) acres by
  9  eighty-five dollars ($85) per acre.
 10                 And just out of interest, Crawford had a
 11  little bit of a hard time actually raising the money to
 12  pay for it so the payment comes a little bit late.  And
 13  in the -- in the meantime, while he's trying to raise the
 14  money, another individual comes forward with a -- an
 15  offer to buy the land and then the -- the chief, because
 16  the land payment isn't being made, wants to have the
 17  surrender cancelled, but these two individuals, Crawford
 18  who'd made the initial application to buy the land and
 19  White, who's the -- makes -- the other party that makes
 20  the offer, they -- they go in together.  
 21                 They, sort of, join forces and -- and the
 22  land purchase is -- is completed.  Just to -- to jump
 23  ahead a little bit in time, the -- the Chippewas of
 24  Kettle and Stony Point did launch a court action in
 25  relation to this surrender.  

40
  1                 In 1992, the -- the parties talked to the
  2  Specific Claims Branch of Indian Affairs, to see if they
  3  couldn't negotiate a settlement of this surrender, and
  4  the Specific Claims Branch rejected it, they would not --
  5  they did not believe it was within their mandate, it
  6  didn't fit within their mandate of a claim to negotiate. 
  7  So, it went on in the courts.
  8                 And the -- the Court found in 1925, I
  9  think, sorry, I just lost my place here.  Okay, so the
 10  Court found that it was -- okay.  So, the Court found
 11  that:
 12                   "The portion of the band's case seeking
 13                   a declaration of the land surrender and
 14                   subsequent Crown patent were void, was
 15                   -- was dismissed."
 16                 The Ontario Court of Appeal upheld that
 17  decision in '96 and the Supreme Court also in '98. 
 18  During that time period while it was going through the
 19  Courts, the Indian Claims Commission, also reviewed the
 20  rejection of the claim by Specific Claims.  
 21                 And I should just explain those bodies
 22  briefly.  The Specific Claims Branch is a -- is a Branch
 23  of the Department of Indian Affairs that looks at
 24  grievances that First Nations have, to do with the lawful
 25  obligations of the Crown, usually things around reserve

41
  1  land.  And if the Specific Claims Branch rejects a claim,
  2  then the First Nation can take that rejected claim to the
  3  Indian Claims Commission, which is a -- a third party
  4  body.  And the Indian Claims Commission will inspect the
  5  facts of the case and make recommendations to Government.
  6                 And in this case, the Indian Claims
  7  Commission reviewed the claim and they -- while they
  8  concluded that the surrender was valid and unconditional,
  9  they agreed that -- that Canada breached its fiduci --
 10  fiduciary obligation to the First Nation, and recommended
 11  that there be some -- some kind of a negotiated claim. 
 12  And to my knowledge that -- there has been no further
 13  action on that.
 14                 Q:   All right.  All right.  So, just to
 15  recap then, in 1927 the Kettle and Stony Point Band
 16  surrendered eighty-three (83) acres of its shoreline or
 17  beach front property at the Kettle Point Reserve, which
 18  is marked in red on slide 15, after which the Department
 19  of Indian Affairs completed a sale of that property to
 20  the -- for developmental purposes, for which seven
 21  thousand and eighty-five dollars ($7,085) was paid?
 22                 A:   That's correct.
 23                 Q:   All right.  And just again, the
 24  effect of the surrender was for -- in this case, was that
 25  the band lost its interest in that portion of the Kettle

42
  1  Point Reserve; is that right?
  2                 A:   That's correct.
  3                 Q:   Okay.  
  4                 A:   Okay.  So, on -- I'm going to go on
  5  to the next slide right now.  
  6                 So, the year -- the year following the
  7  surrender at Kettle Point, there was a surrender at the
  8  Stony Point Reserve, and in this case the surrender takes
  9  up the entire beach front, and -- and it was three
 10  hundred and seventy-seven (377) acres; it was sold for
 11  thirty-five dollars ($35) an acre and it's about 14
 12  percent of the land base of Stony Point.
 13                 So, I'll just -- again, I'll just -- I'll
 14  just point this out on the slide.  Okay, on the far left
 15  of the slide is the Kettle Point Reserve, labelled Kettle
 16  Point Reserve, which we just talked about.
 17                 Over here on the right of the slide is the
 18  Stony Point Reserve, labelled Stony Point Reserve.  And
 19  what you see in red is the entire beach front property of
 20  the Stony Point Reserve, that's the area that -- that was
 21  surrendered in this 1928 surrender, leaving the -- the
 22  balance of the reserve behind the beachfront and down to
 23  where the highway is.
 24                 So, this -- the surrender at Stony Point
 25  has some -- some similarities to the -- the surrender of

43
  1  Kettle Point.  Also in this case there's real estate
  2  developer whose name is Scott and he applies to Indian
  3  Affairs to purchase this beachfront.  
  4                 And the Indian agent again, same Indian
  5  agent, is in favour of the surrender.  Again, he talks
  6  about this -- this land being worthless to the Indians,
  7  again --
  8                 Q:   And because of the agri -- the lack
  9  of agricultural potential?
 10                 A:   Yes.  And -- and what he says is and
 11  I quote:
 12                   "Being white sand and from an
 13                   agricultural point of view, it's
 14                   absolutely worthless."
 15                 So, we see that same -- that same attitude
 16  towards how land should be used or how they valued land
 17  for Indian purposes.
 18                 And again in this case, the local MP,
 19  Goodison, he supports the -- the application and he makes
 20  a statement that -- that the Indians are anxious to
 21  dispose of the land.  And of course we have no way of
 22  knowing what -- what his basis of -- of making that
 23  comment is.
 24                 Q:   In -- in terms of the written
 25  historical record?

44
  1                 A:   That's correct, yeah.  And he -- so
  2  it, you know, it suggests again that the local MP has
  3  been -- has been talking to people but that's not
  4  apparent.  Now Goodison was -- was told by the Department
  5  that -- that they should be very careful in the way that
  6  this surrender is taken because of all the trouble that
  7  they just encountered at -- at Kettle Point and that a
  8  proper application should be made.
  9                 But Goodison is -- is given some assurance
 10  by the Indian Department that the application would --
 11  would receive consideration it wants.  So, there's that
 12  suggestion that -- that the Department is -- is in favour
 13  of a surrender.  
 14                 The -- Kettle and Stony Point chiefs, they
 15  -- they pass a resolution calling for a general council
 16  to consider this application for a surrender.  And it was
 17  -- the surrender was accepted by the band.  Again, we see
 18  that what's a little bit peculiar in this case is that
 19  the voter's list -- the -- the -- is twenty-eight (28)
 20  band members and if you remember the year before at
 21  Kettle Point it was thirty-nine (39).  
 22                 So there's a difference -- there's a
 23  difference in how many people are on the voter's list and
 24  I can't really account for that because I haven't gone
 25  into examining what the -- what the -- why there's that

45
  1  difference in number.
  2                 Q:   But just -- just for clarification of
  3  course it's all of the members, male members over twenty-
  4  one (21) years of age who are members of the Kettle and
  5  Stony Point bands which have a vote, the right to vote on
  6  the surrender?  And what you're saying is that one year
  7  earlier there were thirty-nine (39) such eligible voters
  8  and this time around there are fewer?
  9                 A:   Yes.  So, I'm -- and it's twenty-one
 10  (21) years of age or older male members, right, who are
 11  official band members.  So --
 12                 Q:   I'm sorry.  That means that they're
 13  on -- on the membership list; is that right?
 14                 A:   That means that they're on the
 15  membership list, that's correct.  And if you look at what
 16  they call the poll which is -- it's Document 229 and it's
 17  at Tab 68.
 18                 Q:   And that's Inquiry Document Number
 19  4000229.
 20                 A:   And the -- the first -- the first
 21  page of that document is the letter the report of the
 22  Indian agent and then the second one is the list of names
 23  and I'll just go through that.  
 24                 Q:   Okay.  Yes. 
 25                 A:   Okay.  So, this is the Indian agent,

46
  1  Thomas Paul, and he's writing to J.D. McLean who's the
  2  Assistant Deputy and Secretary of the Indian Affairs in
  3  Ottawa.  He writes it in October 28th.  He says:
  4                   "Sir, I beg to acknowledge the receipt
  5                   of your letter of the 23rd instant
  6                   regarding the surrender of certain
  7                   shore lots to Mr. W.J. Scott of Sarnia,
  8                   Ontario in Kettle Point.  In reply --
  9                   in reply, beg to say that the original
 10                   and duplicate copies of the surrender
 11                   was forwarded to the Department for
 12                   approval.  I am also enclosing copies
 13                   of the members who were present, be
 14                   twenty-eight (28) in number and the
 15                   list of those who voted for same, be
 16                   twenty-five (25).  The other three (3)
 17                   present did not vote either way.  In
 18                   checking over the vote, I found that I
 19                   have submitted twenty-seven (27)
 20                   present and twenty-five (25) voting for
 21                   surrender, but the former check is
 22                   correct per enclosed list.  Trusting
 23                   that this meets with the Department's
 24                   approval, I remain..."
 25                 And you know what, now I know why the --

47
  1  which I neglected to notice before because this is not --
  2  this is not the list of everyone who is entitled to vote. 
  3  These were the list of the people who are present at the
  4  meeting and that's why the number is -- is smaller.
  5                 And it's not -- it's a -- it's not an
  6  actual poll.  Usually a Poll Book gives the name and then
  7  you have the X's on it.  This one is a list that he made
  8  up afterwards. 
  9                 But you'll see if we cross-reference this
 10  list with the poll -- the poll on the Kettle Point
 11  surrender that there's a large overlap with the names. 
 12  So, the -- the basic information that we get by comparing
 13  these two (2) is that people -- men from both Kettle and
 14  Stony had the right to vote on both of these surrenders
 15  which they would under the Indian Act, being considered
 16  one Band, and that -- that they did -- there was an
 17  overlap in the people who voted on both of those. 
 18                 Q:   So, just so that I understand, what
 19  this list shows us is the names of the twenty-five (25)
 20  members -- Band Members who voted in favour of the
 21  surrender and it makes list -- makes note of the fact
 22  that there were also three (3) other Band Members present
 23  who did not vote but they don't actually identify who
 24  those people were? 
 25                 A:   That's correct.  Yes.  So, that's

48
  1  what I mean by, it's not really a -- it's not really a
  2  poll because a poll normally lists every eligible voter. 
  3                 Q:   And was the surrender ultimately
  4  accepted by the Department of Indian Affairs? 
  5                 A:   Yes, it was.  And we can look at that
  6  Order in Council.  It's -- it's Document Number 245 and
  7  it's at Tab 70.  
  8                 Q:   Yes, that's Inquiry Document Number
  9  4000245.  
 10                 A:   There was one other thing I just
 11  wanted to -- to remark on with Thomas' letter because he
 12  -- he says something in his letter which -- which really
 13  isn't correct and one wonders why an Indian agent would
 14  make such a slip up.
 15                 But he says "The surrender ..." it's in
 16  the -- if you look at the beginning of his letter which,
 17  sorry, was at Tab 68. 
 18                 Q:   4000229, the Inquiry Document Number
 19  that we were just looking at? 
 20                 A:   So he says in his very opening
 21  sentence:
 22                   "I beg to acknowledge the receipt of
 23                   your letter [blah, blah, blah]
 24                   regarding the surrender of certain
 25                   shore lots to Mr. Scott of Sarnia."

49
  1                 Well, the surrender was not made to Mr.
  2  Scott.  The surrender is made to the Crown and the Crown
  3  is then at liberty to sell it to Scott.
  4                 But the -- but it's -- the -- the reason
  5  that I -- that I mentioned that is -- the Indian  -- the
  6  Indian agent is the person on the ground who deals face
  7  to face with the band members in discussing a surrender
  8  or in discussing any kind of a transaction, so that the
  9  Indian agent would be sloppy or imprecise about the whole
 10  surrender procedure and who the surrender is made to and
 11  the purpose of it is -- it reflects, perhaps, on his
 12  knowledge of his job, his knowledge of Indian legislation
 13  or that he's just not being very precise.
 14                 Q:  All right.
 15                 A:  Sorry, so we were going to the order
 16  in Council which was at --
 17                 Q:  Tab 70.
 18                 A:  Tab 70.
 19                 Q:  Inquiry Document Number 4000245.
 20                 A:  And this is Privy Council Order 1421
 21  from August 1929.  Okay?
 22                 Q:   Yes.
 23                 COMMISSIONER SIDNEY LINDEN: Yes.
 24  
 25  CONTINUED BY MS. SUSAN VELLA:

50
  1                 A:  So it reads:
  2                   "The Committee of the Privy Council
  3                   have had before them a report dated 24
  4                   July 1929 from the Right Honourable W.
  5                   L. Mackenzie King, Prime Minister for
  6                   the Superintendent General of Indian
  7                   Affairs submitting a surrender given on
  8                   the 18th day of October, 1928 by the
  9                   Chippewas of Kettle Point and Stoney
 10                   Point Band of Indians in the County of
 11                   Lambton in the Province of Ontario of a
 12                   certain -- of certain parcels of land
 13                   containing therein, more particularly
 14                   described as follows:"
 15                 And then there's a paragraph which gives
 16  the legal description of the land. 
 17                 And then it goes on to say:
 18                   "The said surrender has been given in
 19                   order that the said land may be sold
 20                   for the benefit of the said band of
 21                   Indians by the Department of Indian
 22                   Affairs.  The Minister recommends, as
 23                   the said surrender has been duly
 24                   authorized, executed and attested in
 25                   the manner required by the 51st section

51
  1                   of the Indian Act, the same be accepted
  2                   by Your Excellency in Council, the
  3                   committee concur in the foregoing
  4                   recommendation and submit the same for
  5                   approval and that it's approved."
  6                 So, you'll notice in this -- in this Order
  7  in Council, that the band is properly described by its --
  8  its Indian Act band name, the Chippewas of Kettle and
  9  Stony Point, as opposed to the -- the description in the
 10  last -- the last Order in Council.
 11                 So, the -- the land, again, that was
 12  surrendered by this -- by this surrender is three hundred
 13  and seventy-seven (377) acres.  It's right across the
 14  entire beach front of the Stony Point Reserve and it was
 15  sold for thirty-five dollars ($35.00) an acre and that
 16  represents fourteen (14) -- about 14 percent of the land
 17  base of the Stony Point Reserve and that --
 18                 Q:  Just before -- just before you get
 19  there  --
 20                 A:  Oh.
 21                 Q:  -- I note that, notwithstanding there
 22  were being a one (1) year difference.  The difference --
 23  there was a difference in price per acre.  Kettle Point
 24  Reserve was, I believe eighty-five dollars ($85.00) --
 25                 A:  Eight-five (85), yes.

52
  1                 Q:  -- an acre and this was -- was more. 
  2  In your documentary review did you come up with any
  3  consideration with respect to the respective prices that
  4  -- that were paid?
  5                 A:  No.  I -- I'm -- I'm sure of why there
  6  was such a discrepancy, saying it was white drifting land
  7  not -- white drifting sand not suitable for agricultural
  8  purposes.  I don't know any other reason why there would
  9  be such a difference in the value.
 10                 Q:  Alright.  So, none -- none is revealed
 11  in the documentation.
 12                 A:  None that I can recall.
 13                 Q:  Thank you. 
 14                 A:  Yes.  So, I just had two (2) other
 15  little points I wanted to make about that.  This -- this
 16  land surrender is also the subject of a land claim.  I
 17  think it was submitted to Canada in 1996 and as far as I
 18  know it's currently being reviewed by the Department.  
 19                 There's just one (1) other -- one (1)
 20  other thing that I want to mention about both those
 21  surrenders and it's -- sometime later in 1930, Cornelius
 22  Shawanoo asks the Department for copies of the eighteen
 23  (18) -- the 1927 surrender and the 1928 surrender.  He
 24  asks to have copies of the surrenders and the Department
 25  answers him and says, 

53
  1                   "No, we're not going to send them to
  2                   you."
  3                 So, this -- this is just another sort of a
  4  general indication or illustration of the way in which
  5  land manners -- matters were managed at that time period,
  6  and the level of information that Band members could or
  7  could not obtain, regarding their reserve land.
  8                 Q:   And just for the record, that I
  9  believe you're referring to a letter that was written to
 10  Mr. Shawanoo.  It's found at Tab 71, Inquiry document
 11  number 4000251, and it appears to be a letter dated
 12  October 21st, 1930, from J. C. Caldwell, Chief Clerk,
 13  Lands Receiver Branch, Department of Indian Affairs, to
 14  Cornelius Shawanoo, and that's just for the record.
 15                 A:   Yes.  Thank you.  Thank you.  
 16                 MS. SUSAN VELLA:   All right. 
 17  Commissioner, I'm wondering if we can take the morning
 18  break at this time.  It would be convenient for the
 19  expert.
 20                 COMMISSIONER SIDNEY LINDEN:   Absolutely,
 21  it is now twenty (20) after, we'll break for fifteen (15)
 22  minutes.
 23                 MS. SUSAN VELLA:   Fifteen (15) minutes,
 24  thank you.
 25                 COMMISSIONER SIDNEY LINDEN:   Thank you

54
  1  very much.
  2                 THE REGISTRAR:   This Inquiry will recess
  3  for fifteen (15) minutes.
  4  
  5  --- Upon recessing at 11:17 a.m.
  6  --- Upon resuming at 11:35 a.m.
  7  
  8                 THE REGISTRAR:   This Inquiry is now
  9  resumed.
 10                 COMMISSIONER SIDNEY LINDEN:   Carry on.
 11                 MS. SUSAN VELLA:   Thank you, Mr.
 12  Commissioner.
 13  
 14  CONTINUED BY MS. SUSAN VELLA:
 15                 Q:   Ms. Holmes, we have to wake up your
 16  computer again.  Thank you.  All right, just before the
 17  break we concluded the discussion with respect to the
 18  1928 surrender, in relation to the beach front property
 19  of the Kettle Point and Stony Point Band.
 20                 A:   Okay, so I'll go on to the next
 21  slide.
 22                 Q:   Thank you.  
 23                 A:   So, this next slide shows the area --
 24  the creation of Ipperwash Park.  And if you look on the
 25  slide, which is that same basic base plan that -- that

55
  1  we've been using for the surrenders, with the Kettle
  2  Point Reserve indicated on the left hand side of the
  3  slide, and labelled Kettle Point, the Stony Point Reserve
  4  on the right hand side labelled Stony Point.
  5                 And you'll see in the slide at the -- the
  6  top left hand corner of the Stony Point Reserve, that --
  7  that section that's coloured red.  That is the piece of
  8  land that was purchased by the Provincial Government, and
  9  made into Ipperwash Park.
 10                 And if you recall from the discussion that
 11  we just had of the surrender, that piece of land is
 12  within the surrender tract.  So, this is land that was
 13  surrendered by the Stony Point and Kettle Point Band, and
 14  it -- the Provincial Government then purchased it.
 15                 So, I'm just going to go quickly through
 16  how that happened.  So, the -- the purchase of the park -
 17  - that process started in 1932, and the actual purchase
 18  is not made until 1936.
 19                 So, beginning in 1932, the -- the local
 20  residents were looking to the Provincial Government to
 21  create a public park at Stony Point.  There's a number of
 22  petitions that went to government, asking them to -- to
 23  create a public park in that area.  They were -- the
 24  local residents were concerned, because much of the beach
 25  front on Lake Huron was being taken up by private --

56
  1  private owners for cottages and they wanted to have an
  2  area that would be open to the public.
  3                 So the -- the Provincial Government began
  4  to investigate that area and they concluded that on that
  5  surrendered stretch of land the -- the only piece that
  6  was really suitable for a park was the section that you
  7  see on the slide coloured red which is Lot 8 and
  8  Concession 9 -- or Concession -- Lot 8 and Concession A,
  9  excuse me.
 10                 And it's interesting the Lands and Forests
 11  representative made a comment that he didn't know why
 12  Scott had paid so much money for that -- that land
 13  because it was, what he called, Crown Property.
 14                 I don't know exactly what his reasoning
 15  was there.  I suppose that he thought because it had been
 16  surrendered it was Crown Property.  But, in fact, even
 17  after a surrender, the interest in the lands still
 18  belongs to the Indians so the -- they were the actual
 19  owners of that -- that land until it was sold and
 20  patented.
 21                 However, so the -- the land was -- was
 22  purchased and the Province, in 1936, they paid ten
 23  thousand dollars ($10,000) for that lot.  The -- it was
 24  about a hundred and nine (109) acres, so you're looking
 25  at almost -- a hundred dollars ($100) an acre paid in

57
  1  1936 for that plot of land.  
  2                 Q:   And just -- 
  3                 A:   And that -- that purchase was
  4  purchased from Scott who was the person who had bought
  5  that land as soon as it was surrendered.  
  6                 Q:   And just -- just remind us then, in
  7  1928, Mr. Scott paid thirteen thousand, five hundred
  8  dollars ($13,500) for all four (4) lots that you showed
  9  us in the previous slide? 
 10                 A:   That's correct. 
 11                 Q:   And in 1936 he is, in turn, paid ten
 12  thousand dollars ($10,000) for one (1) of those lots and
 13  a hundred and nine (109) acres of approximately, was it
 14  three hundred and thirty-three (333) -- 
 15                 A:   Three hundred and seventy-seven
 16  (377). 
 17                 Q:   Three hundred and seventy-seven (377)
 18  acres -- 
 19                 A:   Mmm hmm. 
 20                 Q:   -- that was surrendered? 
 21                 A:   Yes. 
 22                 Q:   Thank you. 
 23                 A:   So Scott was paying about thirty-five
 24  dollars ($35) an acre and this sale was made for almost a
 25  hundred dollars ($100) an acre, what was that, eight (8)

58
  1  years later.
  2                 And the -- the purchase document, if you
  3  want to look at that, is Document 257 and it's at Tab 72.
  4                 Q:   That's Inquiry Document Number
  5  4000257 and it's a Provincial Order in Council? 
  6                 A:   That's correct.  And it just -- it
  7  just describes the land and it's the official document.  
  8                 Q:   Thank you.  
  9                 A:   So I'm going to go on to the next
 10  slide? 
 11                 Q:   Yes, please. 
 12                 A:   Just give me a moment to organize my
 13  pages here. 
 14  
 15                        (BRIEF PAUSE)
 16    
 17                 A:   So this next slide is about the
 18  burial ground at Ipperwash Park and in 1937, which is
 19  just a year after the park was created, the Chief and
 20  Council notified the authorities that there was a burial
 21  ground in the park and they asked to have it protected.
 22                 And I'm just going to go through the
 23  documentation that's related to that find and the request
 24  and the response to that request.  So the first -- the
 25  first document that we have related to that is a Band

59
  1  Council Resolution.
  2                 And it's from August 12, 1937.  You'll
  3  find it, it's document 377 and it appears at Tab 97 in
  4  the book. 
  5                 Q:   And that's Inquiry Document Number
  6  4000377.
  7                        (BRIEF PAUSE)
  8  
  9                 Q:   Yeah, okay.
 10                 A:   So what you see at this tab is -- is
 11  a minute from the Kettle Point and Stony Point Council. 
 12  And it's labelled at the top "Kettle and Stony Point
 13  Monthly Council August 12."  And the -- the year date is
 14  cut off but it's 1937.  
 15                 And the -- the first page is a number of
 16  items of business and if you go to the second page, down
 17  at the second paragraph from the bottom.  And it's the --
 18  the text of it is shown on the screen and I'll -- I'll
 19  read that for you.  It says:
 20                   "Moved by Wellington Elijah, and S-E-C
 21                   --"
 22                 as a shortform for seconded, 
 23                   "-- by Caleb Shawkence that we ask the
 24                   Department of Indian Affairs to request
 25                   the Provincial Gov. to preserve the old

60
  1                   Indian Burial Ground on the government
  2                   park on Ipperwash Beach.  And have
  3                   their engineer mark out and fence off
  4                   the Grounds so that they will be
  5                   protected, carried."
  6                 And you'll see the -- at the bottom of
  7  that page is the signatures I think, yeah, I think
  8  they're signatures of what would be the chiefs and
  9  councillors at their meeting.  There's four (4) of them
 10  named.  
 11                 And the next item that we see on this
 12  issue is a letter from the Indian agent from the
 13  following day.  The day after this council meeting.  
 14                 And the Indian agent is submitting the
 15  minutes of council to headquarters.  You'll find that
 16  Document 378 which is at Tab 98 in your book.
 17                 Q:   And that's Inquiry document number
 18  4000378.
 19                 A:   And again this would be the normal
 20  practice at this time that when there was a -- a meeting
 21  of the chief and council of an Indian Act Band, the
 22  Indian agent usually attended those meetings but not
 23  always but he usually did.  
 24                 And then after the -- the meeting was
 25  concluded, any resolutions that the -- the council made

61
  1  at their meeting, the Indian agent would forward onto
  2  Departmental headquarters looking for Departmental
  3  headquarters to approve of those resolutions.
  4                 At this time under the Indian Act, chief
  5  and council could make resolutions but it was not -- the
  6  Indian Department would not necessarily approve of those
  7  resolutions and carry them through.  Because in fact the
  8  chief and council had a very limited range of items that
  9  they could make decisions on.  And they were -- they
 10  always had to go to the Indian Department for approval.
 11                 So again, this would be the normal course
 12  of action.  That the Indian agent would forward this onto
 13  headquarters.  So this is the Indian agent writing August
 14  13 which is the day after the council meeting, writing to
 15  the secretary of the Department of Indian Affairs.  And
 16  he's writing from Sarnia and the letter reads:
 17                   "Sir:
 18                   With reference to minute of council of
 19                   the Kettle and Stony Point band of the
 20                   12th inst,"
 21                 And that "inst" means the instant of the
 22  same month.
 23                   "recommending that the Department of
 24                   Indian Affairs request the Ontario
 25                   government to reserve the old Indian -"

62
  1                 Q:   Sorry, does that say "reserve" or
  2  "preserve"?
  3                 A:   Oh, excuse me, it's "preserve".
  4                   "to preserve the old Indian Burial
  5                   Ground on the new government park at
  6                   Ipperwash Beach.  I would approve of
  7                   this resolution."
  8                 So here the Indian agent is giving his
  9  recommendation that this resolution be approved.  Then he
 10  goes on to say:
 11                   "When clearing out this park recently,
 12                   the engineer discovered an old Indian
 13                   burial ground and stated that if the
 14                   band would make a request to the
 15                   Provincial Government he was sure they
 16                   would be glad to mark off and fence the
 17                   plot.  The council would like this
 18                   done.  I would be pleased if you would
 19                   advise me if the Department will make
 20                   this request or will I do so direct."
 21                 So, the extra piece of information that we
 22  get from this Indian Agent letter is that he talks about
 23  the engineer, and I -- I think by the -- the context,
 24  that what he's talking about is an engineer who's in the
 25  employ of the Provincial Government, and who is working

63
  1  in the Park.  
  2                 That while this -- this man, this
  3  engineer, was working in the park, he discovered this
  4  burial ground and he remarked on it to the Band, and
  5  suggested that they make a request that it be fenced off,
  6  and that he -- he is anticipating that the -- that the
  7  Government would be amenable to doing that.
  8                 So, if we -- if we look at the next
  9  letter, which is the Department of Indian Affairs
 10  responding to the Indian Agent, to the Indian Agent's
 11  request, and it's dated a few days later.  And that is
 12  document 379, and you find it at Tab 99.
 13                 Q:   And that's Inquiry document number
 14  4000379.
 15                 A:   Okay.  
 16                 Q:   Yes.
 17                 A:   Okay, so this is a letter, and it's
 18  written by T. R. L. MacInnes, who's the secretary who --
 19  who the Indian Agent had just written to, and he is
 20  writing to the Deputy Minister of the Department of Lands
 21  and Forests.
 22                 Q:   All right, so this is a letter from a
 23  representative of the Indian Affairs Branch for Canada,
 24  to the Deputy Minister of the Department of Lands and
 25  Forests, for the Ontario Government?

64
  1                 A:   That's correct.  And Department of
  2  Lands and Forests, Ontario, was the Department under
  3  which -- that had the jurisdiction for parks.  So parks
  4  would be under Lands and Forests.  
  5                 And if you'll notice, the letterhead on
  6  this letter, the secretary of Indian Affairs, MacInnes,
  7  the letterhead is the Department of Mines and Resources,
  8  Indian Affairs Branch, because Indian Affairs at this
  9  time is under the Department of Mines and Resources, so
 10  not to be confused by that letterhead.
 11                 So, he's writing -- MacInnes is writing on
 12  August 17th, 1937, so you see that this correspondence is
 13  progressing very rapidly, and he writes to the Deputy
 14  Minister, and he says:
 15                   "Dear Sir.  In connection with the work
 16                   at present being carried out under the
 17                   direction of your department at
 18                   Ipperwash Beach near Sarnia, I have to
 19                   inform you that the Indians of the
 20                   Kettle and Stony Point Band are much
 21                   concerned in the preservation of the
 22                   old Indian cemetery, which I understand
 23                   is located within the territory now
 24                   being developed as a park.
 25                   On the 13th of this month the Council

65
  1                   of the Kettle and Stony Point Bands
  2                   passed a resolution requesting this
  3                   department to bring the matter to your
  4                   attention, with a view to having this
  5                   old Indian burial ground preserved
  6                   intact, and properly fenced.  
  7                   The request will, I am sure, appear to
  8                   you as entirely reasonable.  And I
  9                   should be glad if you would see that
 10                   the necessary action is taken with a
 11                   view to meeting the wishes of these
 12                   Indians.
 13                   I should be glad to have a favourable
 14                   reply at your earliest convenience, in
 15                   order that the Indians may be so
 16                   advised."
 17                 And you'll see on your copy of the letter
 18  in the -- in the margin there is a notation written in
 19  handwriting, and it's initialled W.C.C., at the very
 20  bottom of the handwriting, and that's the initials of W.
 21  C. Cain, who MacInnes is writing to.
 22                 And the content, that note, is actually
 23  word for word, the next document, which is Cain's reply. 
 24  And again, this was a very -- this would be a very normal
 25  thing, that a letter would be sent.  The person who was

66
  1  receiving the letter would write his reply in the margin
  2  and then give that to his secretary who would then type
  3  it out and send it.
  4                 So, that's why I'm not going to read that
  5  marginalia now, because it is in fact the response, which
  6  we find in our next document, which is Document 380, and
  7  it's found at Tab 100.
  8                 Q:   And this is Inquiry Document Number
  9  4000380.
 10                 A:   So this document is written by Deputy
 11  Minister of the Department of Lands and Forests who's in
 12  charge of Ontario Parks.  And he is writing back to
 13  MacInnes, the secretary of Indian Affairs.  He writes on
 14  August 19, 1937.  So again you see that this is very fast
 15  turnaround.  Everything's happening in August.  And Cain
 16  writes:
 17                   "Dear Sir:
 18                 And the subject line is:
 19                   "Re: Indian Burial Ground Ipperwash."
 20                 Q:   Sorry, it says burying ground?
 21                 A:   Burying ground, sorry.
 22                 Q:   Thank you.
 23                 A:   And he writes:
 24                   "Not having before me all the facts in
 25                   connection with the location of this

67
  1                   area in relation to our program of
  2                   works now being carried out, I cannot
  3                   speak definitively -- definitely --
  4                   definitely, sorry, on the matter except
  5                   to affect that I shall do my best to
  6                   make such arrangements as will respect
  7                   the natural wishes of the Indians."
  8                 Q:   And to your knowledge, was there any
  9  action taken at this time by the Provincial Government to
 10  either protect, preserve or mark off this burial ground?
 11                 A:   No.  I found no evidence of that. 
 12  And but what we do find later on is that we discovered
 13  from an investigation that was done in 1996, we find that
 14  in fact some human remains were found in the park.
 15                 Q:   When was that that the human remains
 16  were found?
 17                 A:   In 1950 they were located and there
 18  was a Dr. M. W. Spence from the University of Western
 19  Ontario who documented that find in 1996.  So in 1996,
 20  Spence, Dr. Spence goes and documents the evidence from
 21  1950 and I'm going to read to you from his report because
 22  that explains the circumstances and the -- the evidence
 23  that he looked at and considered and the conclusions that
 24  he came to.
 25                 And we find his report in -- it's document

68
  1  number 408 and it's found at Tab 110 in -- in your book.
  2                 Q:   That's Inquiry document number
  3  4000408.  And just before you get to reading the text of
  4  the letter, do you know what Dr. Spence's background is?
  5                 A:   Yes.  He's -- he's a professor with
  6  the Department of Anthropology at the University of
  7  Western Ontario.  It's a little bit of a lengthy report
  8  but I think that it's worth it to go through it because
  9  it -- it has a lot of information in it.  So you'll see
 10  at the top of page 1, the title is "The Ipperwash Burial
 11  General Report, Michael W. Spence, Department of
 12  Anthropology, University of Western Ontario, November 4,
 13  1996."
 14                 And there's the first subtitle called
 15  "Introduction" and it reads:
 16                   "Sometime in the week of April 24, 1950
 17                   a burial was found in Ipperwash
 18                   Provincial Park.  Mrs. Opal Dale, wife
 19                   of the Park Superintendent of the time
 20                   observed the burial and took two (2)
 21                   photographs of it.
 22                   The skull and perhaps the lower jaw too
 23                   were saved and later given to Wilfred
 24                   Jury of the London Museum of
 25                   Archaeology.

69
  1                   With the recent controversy over the
  2                   park a number of people have become
  3                   interested in learning more about this
  4                   mysterious burial.  Unfortunately, the
  5                   personnel of the Ontario -- the London
  6                   Museum of Archaeology have not been
  7                   able to find the bones.  The means of
  8                   that -- that means that the only
  9                   evidence that we have left lies in the
 10                   photos and in the memories of those who
 11                   saw the burial.
 12                   On October 29th, 1996, Paul Lennox, in
 13                   brackets (Ontario Ministry of
 14                   Transportation) end brackets, and I
 15                   interviewed Mrs. Dale and her daughter,
 16                   Mrs. Joyce Erends [it's E-R-E-N-D-S]
 17                   about the burial.   I have also
 18                   examined two (2) photos closely. 
 19                   Fortunately they are good photos and
 20                   quite informative.  This account of the
 21                   burial is based primarily on the photos
 22                   and the interview."
 23                 And his next subheading is called, "The
 24  Discovery".
 25                   "According to Mrs. Dale's diary, the

70
  1                   burial was found in the week of April
  2                   24th, 1950.  In the interview, she said
  3                   that the late Owen Burley, who worked
  4                   at the nearby pumphouse, signalled her
  5                   to come outside.  She left her house
  6                   and he showed her the burial.  She says
  7                   that it had been exposed when the wind
  8                   blew away the light sand that covered
  9                   it.  She took two (2) photographs of
 10                   the burial.  
 11                   Mrs. Dale is not sure what happened to
 12                   the bones.  She believes that most were
 13                   disposed of somehow in the park while
 14                   the head, bracket (which I take to mean
 15                   at least the skull and probably the
 16                   lower jaw, too) end bracket, was kept
 17                   by her husband.  These were later given
 18                   to Wilfred Jury of the London Museum of
 19                   Archeology but so far they have not
 20                   been found in the museum collections. 
 21                   She also remembered that there were no
 22                   leg bones with the skeleton and no
 23                   signs of a coffin."
 24                 And the next subheading is called, "The
 25  Photographs."

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  1                   "The two (2) photo -- the two (2)
  2                   photographs are photo 1, bracket (taken
  3                   earlier) end bracket, and photo 2,
  4                   bracket (taken a short time later) end
  5                   bracket.  Photo 1 shows the upper part
  6                   of the burial, the bones of the head,
  7                   upper torso and arms.  Beyond the bones
  8                   is Mr. Burley, crouching on the far
  9                   side of the burial.  In the background
 10                   are the two (2) wheel tracks of the
 11                   road that passed east of the house and
 12                   reservoir and beyond them, a stretch of
 13                   higher ground with some bush and pine
 14                   trees along it.  In this photo the
 15                   bones are a little out of focus.
 16                   Photo two (2) shows all of the burial,
 17                   or least all that was left of it and is
 18                   focussed more directly on the bones. 
 19                   Most of the background is now out of
 20                   the frame and Mr. Burley is no longer
 21                   there but the bones are now clearly
 22                   visible, thus, each photo can tell us
 23                   somewhat different things about the
 24                   burial.  Taken together they are quite
 25                   informative."

72
  1                 The next subheading is, "The Location and
  2  Orientation of the Burial".
  3                   "In the interview, Mrs. Dale said that
  4                   the burial was near her house between
  5                   it and the reservoir.  It was on the
  6                   same side of the road as the house and
  7                   the reservoir, bracket (that is, on the
  8                   west side of the road) end bracket. 
  9                   Its head was pointed towards the area
 10                   of the reservoir and pumphouse and its
 11                   feet toward a store and animal cage
 12                   some distance to the north.  
 13                   A caption on the back of photo 2
 14                   written by Mrs. Dale some time ago
 15                   says, quotation mark "A skeleton
 16                   unearthed at Ipperwash where the bath
 17                   house now stands.  Opal constructed it
 18                   and took its picture.  The skeleton
 19                   went to western Ontario [excuse me], to
 20                   Western University." end quote
 21                   The bath house was built some time
 22                   after the burial was found on the
 23                   opposite side, bracket (east side) of
 24                   the road and a short distance further
 25                   along it, bracket (south) end bracket

73
  1                   from the area of the house, reservoir
  2                   and pumphouse.
  3                   The higher ground with trees in the
  4                   background of photo 1 may be the high
  5                   area shown east of the road on the
  6                   contour map of the area.  According to
  7                   an April 1959 --"
  8                 Q:  Sorry, I think it was October.
  9                 A:  Oh, sorry.  
 10                   "According to an October 1950 map.
 11                   [there -- okay] According to an October
 12                   1950 map, the nearest wooded area is
 13                   also east of the road.  This indicates
 14                   that the burial was as Mrs. Dale says,
 15                   west of the road. However, it may have
 16                   been a little further south than she
 17                   remembers, perhaps between the
 18                   reservoir and the road.
 19                   Whichever location it was in, Mrs.
 20                   Dale's description of the burial
 21                   orientation -- orientation suggests
 22                   that its head was pointed approximately
 23                   to the south, and its feet to the
 24                   north.
 25                   Also, both photos show that it was

74
  1                   parallel to the road, which runs
  2                   north/south.  It was not oriented with
  3                   its head to the west and its feet to
  4                   the east.  The standard orientation for
  5                   Christian burials in 19th Century white
  6                   settlements."
  7                 The next sub-heading is called, "The
  8  Position of the Body":
  9                   "The body rested on its back with its
 10                   arms extended by its sides, and its
 11                   legs probably also extended straight.
 12                      Photo 1 shows the body of the left -
 13                   - the bone of the left upper arm in
 14                   place by the side of the skeleton. 
 15                   However, one (1) of the forearm --
 16                   forearm bones, bracket (the radius), is
 17                   somewhat out of place.  On the right
 18                   side of the skeleton the upper arm is
 19                   in place, along the side of the body,
 20                   like its left side counterpart, and on
 21                   the -- and one (1) of the forearm
 22                   bones, bracket (the right ulna) end
 23                   bracket, continue -- continues the line
 24                   of the arm along the right side of the
 25                   body.

75
  1                      Photo 2.  According to Photo 2 -- 
  2                   according to the caption on its back is
  3                   the somewhat reconstructed view of the
  4                   skeleton.  The bones of the torso,
  5                   bracket (the spinal column and the
  6                   ribs) end bracket, are still in their
  7                   original positions and show that the
  8                   body had rested on its back.  The left
  9                   arm is lying along the side of the
 10                   body, but has clearly been
 11                   reconstructed.
 12                      One (1) of the forearm bones,
 13                   bracket (the left radius) end bracket,
 14                   is not there.  But instead is lying on
 15                   the other side of the body, resting
 16                   beside what appears to be the right
 17                   radius.
 18                      Although there has evidently been
 19                   some displacement of the bones, it
 20                   seems that both arms had rested in the
 21                   extended position along the sides of
 22                   the body.  Photo 1 shows the right arm
 23                   in that position, although it was then
 24                   disturbed before photo 2 was taken. 
 25                   And although the left arm was disturbed

76
  1                   and then reconstructed, the presence of
  2                   what appears to be a finger bone near
  3                   the area of the left thigh, indicates
  4                   that the left arm too, had been
  5                   extended along the side of the body.
  6                      The leg bones are not visible in the
  7                   photos.  They had probably been removed
  8                   before the arrival of Mrs. Dale.
  9                      The position of the spinal column
 10                   shows that like the arms, the legs had
 11                   probably been extended, rather than
 12                   drawn up in a fetal position.
 13                      The head had been moved, but was
 14                   then replaced in the position seen in
 15                   both photos.  This was probably about
 16                   its original position to judge by the
 17                   spinal column."
 18                 The next subheading is, "The Individual":
 19                   "The age of the person at death can be
 20                   estimated from photo 2, which shows the
 21                   bones clearly.  It can be seen that the
 22                   ends of the long bones and of the arms
 23                   had not yet fused to the shafts.  Also,
 24                   the three (3) segments of the pelvic
 25                   bone had not yet joined together.  Some

77
  1                   of these would have fused by the age of
  2                   thirteen (13) in females, or fifteen
  3                   (15) in males.  Thus, the Ipperwash
  4                   person had to be younger than that.
  5                      On the other hand, the arches had
  6                   fused to the -- to the vertebrae in the
  7                   spinal column, something that takes
  8                   place by the age of six (6).  The
  9                   person then -- the person then was
 10                   between six (6) and thirteen (13) to
 11                   fifteen (15) years of age at the time
 12                   of death.
 13                      This range can be narrowed by
 14                   examining the teeth.  Photo 2 shows
 15                   that all the milk teeth had been lost. 
 16                   The only teeth visible in the photo are
 17                   the larger permanent teeth.  Of these,
 18                   the incisors, first pre-molar and first
 19                   molar have erupted.  The canine was in
 20                   the process of erupting, and the second
 21                   pre-molar and second and third molars,
 22                   had not started to erupt.  This stage
 23                   of dental development occurs about the
 24                   age -- about eleven (11) years of age.
 25                      Nothing can be said from the bones

78
  1                   about the sex of the child or --" 
  2                   Excuse me. 
  3                 Q:   Would you like to take a second? 
  4  It's disturbing to read about, that they're remains.  I
  5  appreciate that.
  6                 A:   Yeah, just a sec here, okay:
  7                   "Nothing can be said about the -- from
  8                   the bones about the sex of the child,
  9                   or about whether it was native or
 10                   white.  The bones of children this
 11                   young have not matured enough to give
 12                   that sort of information, even if we
 13                   are to find the skeleton.  The cause of
 14                   death is also not known.  There is some
 15                   damage to the forehead --"
 16                 Q:   Perhaps we could -- shall we just
 17  take a moment?
 18                 A:   Yeah, if we might.
 19                 MS. SUSAN VELLA:   Commissioner, may we
 20  have a moment.
 21                 COMMISSIONER SIDNEY LINDEN:   Sure.  
 22  
 23  CONTINUED BY MS. SUSAN VELLA:   
 24                 Q:   Perhaps I can finish reading the
 25  letter if you'd like?

79
  1                 A:   Sure.  No, I'll do it.  I'm too long
  2  away from home from my own children to read things like
  3  this.
  4                 Q:   I appreciate that.
  5                 A:   Okay.  So, we just determined that
  6  you can't tell anything about the sex.  Okay:
  7                   "The cause of death is not known. 
  8                   There is some damage to the forehead,
  9                   as if it had received a blow.  Since
 10                   the damaged area is not a different
 11                   colour from then the surrounding bone,
 12                   it can -- it seems most likely that it
 13                   happened before or at the time of
 14                   death.  If it had happened when the
 15                   burial was uncovered and removed, I
 16                   would have expected the damaged area to
 17                   be lighter in colour than the rest of
 18                   the forehead.  However, nothing
 19                   definite can be said without examining
 20                   the actual bone.
 21                      The face is a dark colour, a dark
 22                   brown, according to Mrs. Dale.  The
 23                   contrast between it and the rest of the
 24                   skull, which has a light colour like
 25                   the other bones, is very sharp.  The

80
  1                   line between the two (2) colours runs
  2                   forward across the top of the skull and
  3                   then down the left side of the face and
  4                   the lower jaw.  There is no good
  5                   explanation for this strike -- striking
  6                   difference in colour.  
  7                      Mrs. Dale is sure that the face was
  8                   not painted, and I agree wi