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 19th, 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

1 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 JOAN MARGARET HOLMES, Resumed 6 Continued Examination-in-Chief 7 by Ms. Susan Vella 7 8 Cross-Examination by Murray Klippenstein 52 9 Cross-Examination by Peter Rosenthal 93 10 11 12 13 14 15 Certificate of Transcript 193 16 17 18 19 20 21 22 23 24 25

1 LIST OF EXHIBITS 2 Exhibit No. Description Page No. 3 4 P-10 Excerpt from the Royal 5 Commission on Aboriginal 6 People's Final Report from 7 1996, paragraphs 1,013 to 8 1,038. 64 9 P-11 Excerpt of pages from Lisa 10 Phillips Valentine's Thesis 159 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon Commencing at 10:00 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session. The Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER SIDNEY LINDEN: Good 10 morning. 11 MS. SUSAN VELLA: Good morning. 12 13 JOAN MARGARET HOLMES, Resumed: 14 15 THE WITNESS: Good morning. 16 17 CONTINUED EXAMINATION-IN-CHIEF BY MS. SUSAN VELLA: 18 Q: Yesterday, you began your review of 19 the various periods of negotiations which ensued after 20 World War II concerning the possible return of Camp 21 Ipperwash which was formerly the Stony Point Reserve of 22 the Kettle Point and Stony Point Band. 23 I would just like to briefly recap some of 24 the events that you testified to at the end of the day 25 yesterday. I understand that the negotiations, the first

1 round of negotiations, began as early as 1946? 2 A: That's correct. 3 Q: And at that time it was the 4 Department of National Defence which initiated the 5 discussions? 6 A: Yes. 7 Q: And those early negotiations were 8 primarily as between the Department of Indian Affairs and 9 the Department of National Defence? 10 A: That's correct. 11 Q: Now, why wouldn't the Band be 12 involved in direct negotiations with the Department of 13 National Defence in these early -- in this early period? 14 A: Typically, at that period of time, 15 when a First Nation or an Indian Band had any business 16 they always dealt through the Department of Indian 17 Affairs and the Department of Indian Affairs was charged 18 with representing their interests. 19 Q: All right. And I understand that the 20 early discussions carried on until about 1948? 21 A: That's correct. 22 Q: And you took us through the 23 correspondence yesterday that detailed those 24 negotiations. Now, you also testified yesterday that the 25 Department of National Defence terminated the

1 negotiations, because it decided to turn the facility 2 into a cadet camp? 3 A: That's correct. 4 Q: And previously it had been an 5 advanced infantry training centre? 6 A: That's correct. 7 Q: Were there any further negotiations 8 after the 1940s? 9 A: Yes, there was a -- a brief attempt 10 to negotiate in the 19 -- around 1963. The -- at that 11 time the Department of National Defence representatives, 12 stated that they -- that they still needed the camp and 13 that it was not likely that it would be returned in the 14 foreseeable future. So, that -- that ended that round of 15 -- of negotiation or attempt to get the camp back. 16 Q: And again, these negotiations were 17 held as between the Department of Indian Affairs and the 18 Department of National Defence? 19 A: That's correct. 20 Q: It seems that Canada was effectively 21 negotiating against itself, in relation to whether or not 22 Camp Ipperwash would be maintained or returned to the 23 Kettle Point and Stony Point Band. 24 I'm just wondering if you can comment on 25 the political dynamics that -- that would be involved in

1 such a negotiation? 2 A: Well, yes, this was -- this would 3 typically occur if the Department of -- of Indian 4 Affairs, which is a Federal Department, represented by a 5 Federal Minister in Cabinet. 6 If they were dealing on an Indian issue 7 that involved -- fell into the jurisdiction of another 8 Federal Department such as the Department of National 9 Defence, then the Minister of Indian Affairs would be 10 negotiating with the Minister of the other Federal 11 Department, in this case the Department of National 12 Defence. 13 So, those are essentially two (2) Federal 14 Ministers who are both in Cabinet, and are negotiating 15 with each other; the Department of Indian Affairs 16 Minister having his primary responsibility of 17 representing the interests of the Department of Indian 18 Affairs, the Indian Band and the Crown, and the other 19 Minister, in this case Department of National Defence, 20 would be looking after the interests of the Department of 21 National Defence, but also of the Crown. 22 So, it -- certainly on the face of it, it 23 appears that there's some -- some tension between -- 24 between the Ministers, because they're both Ministers of 25 the same government.

1 Q: Thank you, yes. Now, in the third 2 round of negotiations, which you talked about yesterday, 3 they occurred in 1972, when Jean Chretien, the then 4 Minister of Indian Affairs, corresponded with Donald 5 MacDonald and then Edgar Benson (phonetic), who were the 6 respective Ministers of the Department of National 7 Defence. 8 And you took us to some of the 9 correspondence, which revealed the respective positions 10 of these Ministries. We'll recall, for example, that the 11 Department of National Defence terminated those 12 negotiations, ultimately, notwithstanding Mr. Chretien's 13 stated concerns about the -- as he put it, the moral 14 responsibility of Canada, with respect to the former 15 reserve lands and the concerns that there might be civil 16 disobedience on the part of the band or members, in the 17 event that these matters weren't attended to. 18 And you took us through that yesterday? 19 A: That's correct. 20 Q: Now, based on your historical review 21 of the record, up to the 1970s, was there any civil 22 disobedience documented on the part of the band, in 23 relation to the return of the former Stony Point Reserve? 24 A: Not that I'm aware of. 25 Q: And then after the failed 1972

1 negotiations, did the band itself become more directly 2 involved in negotiations with respect to the possible 3 return of Camp Ipperwash? 4 A: Yes, in 1973, the -- the First 5 Nation, in conjunction with the National Indian 6 Brotherhood, started to negotiate directly with the 7 Department of National Defence. 8 Q: All right. And perhaps you can begin 9 your review today with that event and the discussion 10 begins at page 60 of your report. 11 A: Thank you. Okay. In -- as I said, in 12 -- in 1973 you see a couple of pieces of correspondence 13 from Jean Chretien. He's writing to the -- the President 14 of the National Indian Brotherhood and at that time the 15 National Indian Brotherhood was the -- the precursor to 16 the Assembly of First Nations. It was a national 17 association of -- of chiefs. 18 And the National Indian Brotherhood and 19 the First Nation were negotiating directly with the 20 Department of National Defence and we see letters from 21 Chretien in June 1973 and September 1973. And just for - 22 - for information purposes, those are my document numbers 23 four-o-two (402) and four-o-three (403) but they don't 24 appear in the tabs. 25 Basically, Chretien is congratulating

1 George Manual and being very encouraged by the fact that 2 negotiations have, in fact, begun and the Department of 3 Indian Affairs is not active in those negotiations but 4 they do have an aide from the Minister's office who 5 attends the -- the meetings and keeps the -- the Minister 6 of Indian Affairs informed on the -- the progress. 7 Q: All right. And just for the record, 8 those would be Inquiry Document Numbers 4000402 and 9 4000403. 10 A: And the -- the Department of Indian 11 Affairs was very encouraged by the fact that there was 12 negotiations going on and to the extent that in March 13 1974, the Department of Indian Affairs advanced a sum of 14 money, sixty-six thousand dollars ($66,000), to the 15 Chippewas of Kettle Point and Stony Point to give them an 16 opportunity to -- to purchase some acreage next to the 17 reserve, I think it was seventy (70) acres. And that -- 18 that advance -- the sixty-six thousand dollars ($66,000) 19 was an advance against the -- the compensation that the 20 Department believed that they would be getting as a 21 result of the negotiations. 22 At that time, the Department of Indian 23 Affairs would not, or could not -- didn't have the -- the 24 physical ability to give that money to the First Nation 25 in order to buy the land so it was an advance against

1 their -- their expected settlement which would then be 2 repaid and that -- the information related to that is at 3 my Document 404. 4 Q: Inquiry Document 4000424. 5 A: And at that time when that money was 6 advanced they expected -- or Chretien expected that the - 7 - the settlement would -- would be received early the 8 next fiscal year. However, that did not occur. There 9 was no -- no settlement forthcoming at that time. 10 No agreement was reached and it's not 11 until 1980 that we see a proposal for a -- a partial 12 settlement. And by this time, the -- some of the people 13 who were descendants of the -- the Stony Point, the 14 original Point inhabitants -- were becoming disenchanted 15 or -- or wanting to be separate from the official Indian 16 Act Band Council -- the Chippewas of Kettle Point and 17 Stony Point. 18 So, we see in 1980 that there is a 19 proposal that goes before the First Nation and it's my 20 Document 315. It's not in a tab but it's -- it's 21 outlined in -- in the report on page 61 and I'll go 22 through the -- the terms that were in that proposal. 23 Q: That would be Inquiry Document Number 24 4000315. 25 A: And this -- this document was part of

1 an information package that went out to the Band 2 membership to explain what the -- what the terms of the 3 proposal were. And I'm just going to go through them. 4 They're at the top of page 61 and they're 5 numbered 1 to 8. So: 6 "Number 1: All of Camp Ipperwash is 7 included and not just the part taken 8 from us in 1944." 9 This is a direct quote from this 10 informational material. When they're talking about all 11 of Camp Ipperwash, that includes the section of the 12 former Stony Point Reserve that had been surrendered and 13 then was purchased by DND. 14 "Number 2: We will receive 15 approximately two million four hundred 16 and ninety thousand dollars 17 ($2,490,000) representing additional 18 compensation, interest and expenses." 19 And I just want to elaborate a little bit 20 on that. When -- when the negotiations were originally 21 taking place in 1974 with the Indian Brotherhood there 22 was an evaluation, a study, an appraisal study done of 23 the -- the -- the -- to -- to evaluate or to appraise the 24 -- the value of the land that had been taken. 25 And so, part of this -- this money comes

1 from the recommendations of that evaluation report which 2 had come to the conclusion that when the -- when the 3 Kettle Point and Stony Point Band was compensated for the 4 Stony Point Reserve the fifty thousand dollars ($50,000) 5 in 1942 that that fifty thousand dollars ($50,000) was 6 well below market value. 7 So, in number 2 here what we see is this 8 sum of money where it says, "representing additional 9 compensation, interest and expenses"; that additional 10 compensation was based on the findings of that earlier 11 evaluation that gave a value to the land, interest that 12 would have been earned on that. 13 And "expenses"; the expenses in these 14 kinds of settlements, the expenses are usually legal fees 15 and associated fees that people have spent in the course 16 of negotiation. okay. 17 On to number 3 of the proposal: 18 "Mine, minerals and timber rights will 19 be transferred to Indian Affairs now 20 for our benefit." 21 And the -- the thing I wanted to point out 22 to that, those rights, those resource rights being 23 transferred to the Department of Indian Affairs for their 24 use and benefit is not the same as them coming back to 25 reserve status.

1 So, that means that those rights are held 2 and controlled by Indian Affairs but exclusively for the 3 benefit of the First Nation. 4 "Number 4: When not required by 5 Defence parts or all of Camp will be 6 returned to us at no cost." 7 And you note that "when not required" as 8 part of that. 9 "Number 5: No part of the Camp can be 10 sold without Indian Affairs' approval. 11 Number 6: At regular intervals, 12 Defence will consider its -- its need 13 to continue its use of all or part of 14 the camp. 15 Number 7: We will have a designated 16 contact with Defence to see if jobs are 17 available for Band members." 18 And finally: 19 "Number 7 (sic): This proposal deals 20 only with the band's interest. The 21 vote to be held is not a surrender 22 vote. Locatee claims for those who 23 were moved are not being affected." 24 So, that was the -- the draft -- the 25 proposal that came forth in 1980. Apparently there --

1 there was a vote on -- on this agreement in September of 2 1981 and that -- that vote passed 80 percent voted in 3 favour of it. 4 Q: And you're talking about who? Who 5 voted? 6 A: The -- it would be the registered 7 band members of Kettle Point and Stony Point Band. 8 Around this time there's also -- there's 9 not unanimous agreement amongst the First Nation, and 10 I'll -- I'll read you a -- a comment on -- on the 11 situation at the time. And this comment is taken by -- 12 from a thesis written by a woman named Helen Roos. And 13 it appears in the bottom half of the page on page 61. 14 I'll just read from it. 15 According to this author, this is the way 16 she characterizes the situation at this time. She said: 17 "The Stony Point grievance resulted in 18 a deep schism between the two (2) 19 communities." 20 And here by the two (2) communities, she's 21 talking about the people from Kettle Point and the people 22 who formerly resided at Stony Point: 23 "During the 1980s the Stony Point Band 24 organized into the Stony Point Steering 25 Committee, which later became the Stony

19
  1                   Point Community Association.  The
  2                   primary organize -- the primary aim of
  3                   the organization was to educate the
  4                   public and the Kettle Point community,
  5                   to the fact that the Stony Point group
  6                   was separate from the larger community. 
  7                   The secondary issue was to lobby the
  8                   Government and Indian Affairs, to
  9                   ensure that the locatees and their
 10                   descendants be recognized as legal
 11                   heirs and negotiating body in any
 12                   return of Camp Ipperwash."
 13                 And that term locatees, if you can
 14  remember from yesterday, a locatee is a person who had a
 15  location ticket, a -- a permit given by the First Nation,
 16  which allowed them to occupy a particular piece of land
 17  on the reserve.  And in this case she's referring to the
 18  people who had been living at -- at Stony Point before
 19  the camp had been appropriated.
 20                 The -- in -- in 1981, the -- the Crown,
 21  the Government passed an Order in Council approving the
 22  agreement.  And I think I'll -- I'll take you to that,
 23  that  -- so that you can see the wording that -- that the
 24  Crown used, and that is Document 316, and it's at Tab 93.
 25                 Q:   The Inquiry document number 4000316.

1 (BRIEF PAUSE) 2 3 A: Okay. This is Privy Council Order 4 1981-499, and I'm going to read through it. It's not too 5 long, the language is a little bit legalistic, but I 6 think we can follow it. 7 It starts off: 8 "Whereas by Order in Council P.C. 2913, 9 dated April 14, 1942, under the 10 authority of the War Measures Act, it 11 was ordered that part of the lands 12 described in the schedule hereto -- 13 hereto, be appropriated for use of the 14 Department of National Defence, and 15 that compensation -- compensation be 16 paid to the Kettle and Stony Point Band 17 of Indians, for the said lands, not to 18 exceed fifty thousand dollars 19 ($50,000), including costs of removal 20 of Indian families, their buildings and 21 chattels. 22 Whereas by the same Order in 23 Council, it was acknowledged that if 24 subsequent to the termination of the 25 war such part of the lands described in

1 the schedule hereto, was not required 2 by the Department of National Defence, 3 negotiations would then be entered 4 into, to transfer such part back to the 5 Kettle and Stony Point Band of Indians, 6 at a reasonable price to be agreed to 7 by mutual agreement. 8 Whereas the Kettle and Stony Point 9 Band of Indians dispute the continued 10 retention of such part of the lands 11 described in the schedule hereto, by 12 the Department of National Defence. 13 Whereas a further part of the lands 14 described in the schedule hereto, were 15 originally part of the Stony Point 16 Indian Reserve, which had been 17 surrendered and sold to private 18 interests, from whom it was acquired by 19 the Department of National Defence for 20 the -- for military purposes, as a 21 result of Order in Council P.C. 7820, 22 of October 6th, 1944." 23 So, here basically they're -- they're 24 setting out the history, that this land was taken under 25 the War Measures Act, that the -- the First Nation

1 disputes the -- the need for National Defence to continue 2 to hold on to that land and that this Order in Council 3 applies not only to that land that was appropriated from 4 the Stony Point Reserve but also the land that was 5 purchased from the third parties apart from the 6 surrendered tract. 7 So, then it goes on and says: 8 "And whereas the potential of all said 9 lands described in the schedule hereto 10 for agricultural or other commercial 11 development is seriously compromised 12 due to the possible presence of 13 unexploded munitions." 14 So, we see, again, this reference to the 15 concern of -- of the -- the usability of the land because 16 there's all these unexploded munitions because it's been 17 used as an army training camp. 18 Then he goes on to say -- or the Order in 19 Council goes on to read: 20 "Therefore, His Excellency, the 21 Governor General in Council on the 22 recommendation of the Minister of 23 National Defence, the Minister of 24 Indian Affairs and Northern Development 25 and the Treasury Board pursuant to

1 National Defence Vote 5 of the 2 Appropriation Act Number 1, 1980-81 is 3 pleased hereby..." 4 And then it sets out the terms. And 5 there's -- there's basically three (3) of them so I'm 6 going to read through. The first one deals with the -- 7 the money: 8 "(a) To direct that a sum not to 9 exceed two million four hundred and 10 twenty-six thousand five hundred 11 thirty-five dollars and ninety-five 12 cents ($2,426,535.95) as compensation 13 for that part of the lands described in 14 the schedule hereto that were 15 appropriated by the Department of 16 National Defence in 1942 under the 17 authority of Order in Council P.C. 2913 18 of April 14, 1942 and a sum not to 19 exceed a hundred and fifteen thousand, 20 eight hundred and eighty-nine dollars 21 and thirty-five cents ($115,889.35) for 22 band expenses and legal fees to be held 23 by Her Majesty in the Right of Canada 24 for the use and benefit of the Kettle 25 and Stony Point Band of Indians."

1 Just a comment on that: So, they -- they 2 lay out the money, the two (2) parts of money, part of it 3 is for expenses, part of it is compensation. And that 4 money is to be held by Canada for the use and -- and 5 benefit of the Kettle and Stony Point Band of Indians; 6 that means put in their trust fund. Now: 7 "(b) To transfer, pursuant to Section 8 35 of the Public Works Act, the 9 management charge and direction of the 10 mines and minerals, whether precious, 11 base, solid, liquid or gaseous in, on 12 or under all the lands described in the 13 schedule hereto and all surface sand 14 and gravel and timber upon all the said 15 lands from the Minister of National 16 Defence to the Minister of Indian 17 Affairs and Northern Development for 18 the use and benefit of the Kettle and 19 Stony Point Band of Indians subject to 20 an agreement satisfactory to the 21 Minister of National Defence respecting 22 the exploration for and exploitation of 23 the said mines, minerals, sand, gravel 24 and timber." 25 So, again, we see that these resources are

1 to be transferred to the Minister of Indian Affairs for 2 the use and benefit. And this is subject -- this -- I 3 believe by reading it and actually someone with legal 4 training would be better at interpreting this than I am, 5 but I -- I believe it reads that the use and benefit -- 6 the use of it -- it's either the use of it or the 7 transfer of it is subject to the agreement of the -- the 8 Minister of National Defence regarding any exploration or 9 exploitation. 10 So, I -- the way that I read that, and I 11 stand to be corrected from a legal scholar, but the way 12 that I read that is that the -- the resources are to be 13 transferred to the Minister of Indian Affairs for the 14 exclusive use and benefit of the First Nation. 15 But the actual exploitation or use of 16 those resources is subject to agreement by the Department 17 of National Defence. So, it's not really falling 18 completely within control of the First Nation, the sense 19 of that, as I understand it. 20 And (c), the final part of this Order in 21 Council says: 22 "To direct, pursuant to Section 35 of 23 the Public Works Act, that upon all the 24 said lands described in the schedule 25 hereto or any part or parts thereof

1 being no longer required for military 2 purposes, the management, charge and 3 direction of the surface thereof shall 4 then be transferred to the Minister of 5 Indian Affairs and Northern 6 Development, and then the lands shall 7 be set apart for the use and benefit of 8 the Kettle and Stony Point Band of 9 Indians, as of further addition to 10 their said reserve. The whole, without 11 any commitment by the Crown, to 12 decontaminate the lands or guarantee 13 that entry upon the lands can be made 14 without risk." 15 So, we see in that paragraph, as I 16 understand it, that the -- the land -- the surface of the 17 land is to be transferred to the Department of Indian 18 Affairs, in order that they can then transfer it to 19 reserve status. 20 There is, however, no undertaking on the 21 part of the Crown to decontaminate the lands or to -- to 22 declare that the lands are safe because of -- if you 23 recall that paragraph in the preamble about munitions 24 being on the land. 25 Whenever -- just for general information

1 purposes, whenever land is to be made -- whenever land is 2 transferred from one (1) part of the Crown, with the 3 intention of it becoming Indian reserve land, it always 4 goes to the Department of Indian Affairs first, and then 5 the Department of Indian Affairs sets it aside as reserve 6 land. 7 So, in this period of time it's a two (2) 8 -- it's a two (2) step process. 9 And of course that transfer again, is 10 subject to the condition that it's no longer needed for 11 military purposes. So, the agreement is not putting the 12 transfer in place, it's saying when the military no 13 longer needs this land, this is what will happen, it will 14 be transferred to Indian Affairs, all or part of the land 15 that's not needed, and then Indian Affairs can set it 16 aside as -- as reserve land, in the meaning of the Indian 17 Act. 18 Q: And just for clarification then, the 19 land covered by this Band -- by this Order in Council, 20 included not only the former Stony Point Reserve that was 21 appropriated in 1942, but also the beach front property, 22 which was formerly part of the Stony Point Reserve, prior 23 to the 1928 surrender, and excluded the Ipperwash 24 Provincial Park, and excluded the northeastern corner of 25 the beach front property, which you showed us on the

1 slide yesterday? 2 A: Yes, that's -- that's correct. Would 3 you like me to show it on the slide again, so it's clear, 4 because I know that it becomes a little bit confusing, or 5 are we -- are we clear with the concept? Yes? 6 Q: I think that's fine, thank you. 7 A: Yeah. So, it's all -- it ends up 8 being all of the Stony Point Reserve -- the original 9 Stony Point Reserve, with the exception of the -- the one 10 (1) corner that is the Provincial Park, and that tiny 11 parcel that is still in private hands. 12 Q: Thank you. 13 14 (BRIEF PAUSE) 15 16 A: Okay. So the next -- the next event 17 of -- of great significance is that by 1985 -- so, this 18 is 1981, when this Order in Council was passed, which 19 gave the Crown the right to expend that money and enter 20 into the agreement. The -- the agreement is actually put 21 in place in 1984. So, there's a four (4) year period in 22 -- sorry, 1985. So, there's a four (4) year period 23 between that Order in Council and the agreement. 24 And I'll just take you -- we can just have 25 a -- a quick look at the agreement in -- in 1985, and

1 that's Document 405, which appears at Tab 108. 2 Q: Inquiry Document Number 4000405. 3 4 (BRIEF PAUSE) 5 6 A: The -- the document is very long. 7 I'm not going to read it all because it's 8 -- it's long to read but I think the thing that I -- that 9 I would like to point out about it is, you'll see at the 10 very top of the page there it says, 11 "This is an agreement made the 14th day 12 of March, 1985 between Her Majesty the 13 Queen and the right of Canada 14 represented herein by the Minister of 15 National Defence and Kettle and Stony 16 Point Band Council herein referred to 17 as BC..." 18 which stands for Band Council. 19 And basically this agreement -- first of 20 all, it cites the Order in Council that I just went 21 through and then it goes on with outlining those -- those 22 clauses or those conditions that were described in that - 23 - in that 1981 Order in Council. It's a little bit more 24 -- it's a little bit more complicated. 25 It has provisions in there for how the --

1 how the right of access will be controlled and how the 2 base commander will liaison with the members of the First 3 Nation or with the members of the band council in order 4 to allow access onto Stony Point. And it talks a little 5 bit more in detail about possible use for hunting and 6 fishing, about access and use of roads. 7 And one (1) of the -- one (1) of the 8 clauses in that agreement, which is on the third page and 9 is number twelve (12), refers to the issue of the -- the 10 burial ground, the cemetery which we spoke of the other 11 day and it reads: 12 "The burial yard is and will remain out 13 of bounds to any and all military 14 personnel." 15 So, that was part of this agreement that 16 the -- the cemetery would -- would be out of bounds as a 17 -- as a measure to protect it and at the next tab, which 18 is Tab 109, is document -- my Document 406. 19 Q: Inquiry Document Number 4000406. 20 A: And that's the -- the copy of the Band 21 Council resolution giving the -- and it's dated the 11th 22 of April, 1985 and it reads that: 23 "The Chippewas of Kettle and Stony 24 Point Band Council hereby accept the 25 Camp Ipperwash proposal, dated March

31
  1                   14, 1985 and that Chief Charles K.
  2                   Shawkence is hereby authorized to sign
  3                   the agreement on behalf of the
  4                   Council."
  5                 And you'll just note for interest sake
  6  that that -- that band council resolution is -- it's on a
  7  form.  There's now forms for band council resolutions
  8  which are different than the ones we've been looking at
  9  previously when they were a handwritten minute of
 10  council.
 11                 A:  Okay.
 12                 Q:  So, we see that after this -- the --
 13  the agreement has been reached and signed but the reserve
 14  is not returned.  There's no return of land at this time.
 15                 Q:  Does the agreement specify a fixed
 16  date for the return of the reserve land?
 17                 A:  No, it doesn't specify a fixed date. 
 18  What it says is that every four (4) years they're going
 19  to revisit the question of whether or not the military
 20  still requires the land and if it can be returned.
 21                 Q:  Thank you.
 22                 A:  In -- in 1991, we know from newspaper
 23  reports that the Department of National Defence declined
 24  again to return the reserve and there's statements from
 25  the Commander of the Canadian Forces Base in London in

1 which he says that they still -- they still require the 2 camp to stay in military hands and they will not return 3 it. 4 Q: Just -- just prior to that event, was 5 there any recognition by any parliamentary committee 6 concerning the issue of returning the former Stony Point 7 Reserve to the aboriginal people? 8 A: Yes, there was -- I think it's 1990 -- 9 yes there was a parliamentary standing committee on 10 aboriginal affairs, which is -- a standing committee is a 11 -- is a committee of Parliament, that examines various 12 issues in a particular field, and there -- and there is 13 one (1) in -- on aboriginal affairs, a parliamentary 14 standing committee, that -- that looks at various issues 15 that are current in -- in aboriginal affairs. 16 And they -- they've heard submissions on 17 this issue, and according to Helen Roos, who wrote a 18 thesis on it, she -- and I'll read a quotation from her 19 quote: 20 "The Government [And then it's an 21 inserted word] must rectify a serious 22 injustice done to the Stony Point First 23 Nation, by returning the land at Stony 24 Point to its original inhabitants and 25 their descendants from who the land was

33
  1                   seized."
  2                 However, as I said in -- by 1991, it -- it
  3  still had not been returned.
  4                 Q:   And then in summary, since about
  5  1946, there have been periods of negotiations surrounding
  6  the return of the former Stony Point Reserve, resulting
  7  in an Order in Council in 1981 and then an agreement in
  8  1985.  
  9                 But to date, based on your review of the
 10  historical record, there has not been a return of that
 11  land via the land reserve process?
 12                 A:   That's correct.  So, I'm just going
 13  to go on to the next slide.  
 14                 This is just to -- to give a little
 15  overview that during this time period when the -- when
 16  the -- the people are anxious to have the Stony Point
 17  Reserve returned, and the Stony Point Reserve is not
 18  being returned, the -- the community is going through the
 19  various official and established processes, for trying to
 20  have their grievances addressed.
 21                 So, all through the 1990s, what we -- what
 22  we see is a number -- a number of efforts being made, and
 23  the things that I have up on the slide are the two (2)
 24  things that I talked about earlier, when we talked about
 25  those original surrenders at Kettle Point, and at Stony

1 Point in 1920 and 1928 -- or 1927 and 1928, excuse me. 2 The -- the Chippewas of Kettle Point and 3 Stony Point had gone through the specific claims process, 4 trying to have those addressed. And in the case of the - 5 - the surrender of the Kettle Point Reserve, that -- that 6 issue had also gone to Court and had been taken to -- for 7 deliberation in front of the Indian Specific Claims 8 Commission. 9 So, we see that those -- those actions 10 being taken by the community. Also they -- they -- there 11 were a number of Court challenges brought and actually in 12 the report there's just a little chart of those. 13 I'm not sure that it's actually -- that 14 it's complete, but there are a number of Court cases that 15 were brought in -- related to Camp Ipperwash. 16 So, the point of that slide is just to -- 17 to repeat the fact that -- that there are -- are several 18 attempts through these established bodies, the Specific 19 Claims Commission, and Specific Claims grievance process, 20 and through the court process, to have some of the 21 grievances addressed. 22 Q: And just for the record, a list of 23 some of those claims is provided at page 67 of your 24 report? 25 A: That's correct, yeah. And I think

1 that that -- that list is current to, like, 1996. 2 So, I'm going to go on to -- to my -- my 3 next and final slide. Here we're talking about the -- 4 the mid-1990s, the early to mid-1990s, and this is the 5 last, sort of, substantive section of -- of my report and 6 it starts on page 62. 7 And one of the things that you'll notice 8 with it is that almost all this information that's in 9 this section of the report is taken from media accounts 10 of events. The -- I took that approach for a number of 11 reasons. 12 One, it's -- it's a modern period and a -- 13 and a -- one way as -- when we study history that we 14 study a modern period, is by looking at what is -- what 15 is written in the press. 16 And although when we look at press 17 accounts we have to be very cautious because whereas a 18 lot of factual information such as dates are -- are 19 almost always correct or they're usually correct, they -- 20 press accounts are often very interpretive. 21 There's -- they're not always strictly 22 neutral or objective. So, when you're reading press 23 accounts that -- that one has to be cautious in that 24 sense with the language that they use. 25 And sometimes when an issue is very

1 technical or very legalistic, with all due respect to the 2 press, the -- it's not always absolutely accurate or not 3 as precise as somebody working in that field would like. 4 But still, it is a very useful source of 5 information. And I understand that the Commission will 6 be hearing from a number of witnesses who were alive and 7 present at this time. 8 So, the purpose of this last section of my 9 report is really to bring us up to date into the modern - 10 - into the modern period. So, as I had said at the -- 11 the end of the last section on -- on the negotiation, by 12 1991 the -- the military had issued statements that they 13 were still using the -- the camp and that they would not 14 be returning it. 15 It was right around this time where, to my 16 knowledge, there was the -- the first really active 17 protest at Camp Ipperwash in July 1990. There were 18 people who had formerly lived at Stony Point or were the 19 -- the descendants of people from Stony Point who -- who 20 were going to stage a stand off at the -- at the Camp as 21 soon as the -- the cadets had -- had left. 22 Q: And just for clarification, they -- 23 you say -- when you say, "the descendants of Stony 24 Point," you're referring to the descendants of those who 25 were formerly resident at the Stony Point Reserve?

1 A: Yeah, and who had been moved to -- 2 whose -- had been moved or their parents or grandparents 3 had been moved to Kettle Point. In -- in May of 1993 a 4 group of people who identify themselves as the Stony 5 Point First Nation occupied the Camp. 6 They -- they informed the Toronto Star 7 that they were serving notice to the military officials 8 in London that they were taking possession of it and that 9 they were giving the military an eviction notice. 10 And also around this time period in the 11 press what you see is reports of internal divisions 12 between -- in the community between the Kettle and Stony 13 Point community members with some people supporting the 14 direct action and -- and others not supporting it. 15 In -- in August of '93 there was an 16 incident where someone had apparently shot at a Canadian 17 Forces helicopter, and the Ontario Provincial Police 18 reacted by restricting access to the base. However, that 19 -- that seemed to -- the tensions around that seemed to 20 dissipate and the people continued to -- to occupy the -- 21 to occupy the camp in -- 22 Q: Just -- just for clarification -- 23 A: Yeah. 24 Q: -- while this group of individuals 25 were occupying the camp grounds, were -- was there any

1 military presence on the grounds? 2 A: No. Well during some periods there 3 were, but not during other periods and the -- the 4 military spokesman had indicated that -- I think he 5 called it a gentlemen's agreement, where the -- each 6 party sort of stayed out of -- they stayed out of each 7 other's way. That -- that the military -- the military 8 personnel stayed in one (1) part of the camp and the 9 protestors, the people who'd moved into the camp, stayed 10 in another part of camp, and they had kind of -- he 11 called it a gentlemen's agreement. 12 And they were -- seemed to be co-existing 13 for -- for most of this period in a fairly peaceful way, 14 with, I think the one (1) exception to that is the -- the 15 incident in August '93, when -- when the helicopter was 16 shot -- was shot at. 17 In -- in 1994, the Minister of National 18 Defence, David Collenette, stated that they no longer 19 needed Ipperwash Park as a -- as a camp, but it was -- it 20 was still not being -- being returned. And it was at 21 that point, this is in -- in '95, when the -- the chief 22 and council from -- from Kettle and Stony Point 23 instructed their lawyers to file the statement of claim 24 with the Federal Court. They had become quite frustrated 25 with negotiating without any -- any positive results.

1 And -- but the -- the tensions within the 2 community continued with the differences of opinion on 3 what kinds of actions should be taken to -- to get the 4 camp back. 5 In July '95, the Globe and Mail reported - 6 - they quoted an OPP Officer who was describing the 7 situation, and this is where the OPP Officer at this time 8 says: 9 "We've seemed to come up with a 10 gentlemen's agreement, where the 11 natives are staying away from the built 12 up area of the camp, and the military 13 is staying away from the -- the native 14 area, and they keep -- if we keep doing 15 that, everything will -- will live 16 peacefully." 17 In July, the end of July -- July 29th, in 18 '75 -- 19 Q: Sorry, not -- in 1995? 20 A: Oh, sorry, what did I -- I'm time 21 traveling here, sorry. 1995. 22 The -- the last of the military personnel 23 were due to evacuate Camp Ipperwash, but there was a -- 24 an outbreak of -- of violence and -- which was described 25 in the newspaper. The -- the military then withdrew at

1 that time, which they -- they characterized that as being 2 a -- a matter of safety for their personnel. So, they -- 3 so they withdrew at that outbreak. 4 And the chief of Kettle and Stony Point 5 Band opposed the action of the protestors, and so we see 6 it's another -- that increased the sort of the tensions 7 in the community. 8 And there are newspaper reports around 9 that time that -- that discussed this disagreement or 10 difference of approaches between the -- the Kettle and 11 Stony Point Band Council and the -- the people who are -- 12 or some of the people who are occupying the camp at that 13 time. 14 And then in -- in September, after the -- 15 at the end of the Labour Day weekend, September 4, 1995, 16 some of the protestors moved into the Ipperwash Park, and 17 that led to the -- the OPP on the night of September 6th, 18 they -- they marked on the protestors, and that's when 19 Dudley George was shot. 20 Q: All right, thank you. So, in -- in 21 conclusion then, with respect to the -- the 20th century 22 history that you've provided to us, if I might just 23 review it. 24 In 1919 -- 1919, the Kettle Point and 25 Stony Point Band is created by Indian Affairs, effecting

1 a separation from the Sarnia Band? 2 A: That's correct. 3 Q: In 1927, part of the beachfront of 4 Kettle Point Reserve is surrendered for sale by the 5 Crown, to a developer? 6 A: That's correct. 7 Q: 1928 the entire beachfront of the 8 Stony Point Reserve is surrendered for sale by the Crown, 9 to a developer? 10 A: That's correct. 11 Q: 1936 the Province of Ontario 12 purchases a lot from the surrendered Stony Point 13 beachfront property and establishes the Ipperwash 14 Provincial Park? 15 A: That's correct. 16 Q: In 1937, the chief and band council 17 of the Kettle Point and Stony Point Band, together with 18 the Department of Indian Affairs, notifies the Province 19 and Park Officials, that there is a burial ground at the 20 Ipperwash Provincial Park, and request to protect that? 21 A: That's correct. 22 Q: 1942, the Department of National 23 Defence appropriates the remaining reserve of the Stony 24 Point Reserve, for military purposes and establishes Camp 25 Ipperwash?

1 A: That's right. 2 Q: And then beginning in 1946, or 3 thereabouts, there are many failed negotiations and 4 attempts at the return of Camp Ipperwash to the Kettle 5 Point and Stony Point Band, which results in an agreement 6 in 1985? 7 A: That's right. 8 Q: Then on May 18th, 1993 or 9 thereabouts, a group of former residents of the Stony 10 Point Reserve and some descendants of those residents, 11 self identified as the Stony Point First Nation, occupy a 12 portion of the Camp Ipperwash grounds? 13 A: That's right. 14 Q: On July 29th, 1995, the military 15 leaves Camp Ipperwash and these individuals occupy the 16 entire Camp Ipperwash facility? 17 A: That's right. 18 Q: September the 4th, 1995, the 19 occupation of the Ipperwash Provincial Park begins? 20 A: Yes. 21 Q: And on the evening of September the 22 6th, 1995, the Ontario Provincial Police march on the 23 protestors at the park, ending in the shooting death of 24 Anthony O'Brien Dudley George? 25 A: Yes.

1 Q: Thank you. 2 MS. SUSAN VELLA: Commissioner, that 3 concludes the examination of the expert. Perhaps we 4 should proceed with the cross-examination. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much. Okay, just as we did when Professor Johnston 7 completed her evidence in-chief, I'd like to get a sense 8 of who thinks they might be cross-examining this witness, 9 and an idea of an estimate of how long they think they 10 might take, just so we can schedule and figure where we 11 go from here. 12 So, the first question is, if you think 13 you will cross-examine this witness, would you please 14 indicate so? 15 Yes? Well, perhaps I just want to get a 16 sense. One (1), two (2), three (3), four (4), five (5), 17 six (6), seven (7), eight (8). Let me just try to get a 18 sense of this, okay. 19 We're going to -- obviously when we have 20 seventeen (17) parties, we have to have some kind of 21 order, some kind of way to proceed. What we -- and you 22 can discuss this at the counsel meeting that you're going 23 to have for the future. 24 But what we've tried to do is to put the 25 parties into groupings, and we would like to proceed with

1 the cross-examination according to those groupings. 2 Now, obviously, the order of cross- 3 examination will be -- can be determined depending on the 4 witness. So, it doesn't have to be the same with respect 5 to each witness. And the order inside the group can 6 change as the group decides among itself. 7 But, at this time, the first group that 8 will cross-examine will be the group of parties that have 9 an aboriginal interest. Now, obviously we've lumped them 10 and if there's any -- somebody does not agree with the 11 grouping they should indicate so now. 12 The first grouping of the aboriginal -- 13 aboriginal parties include the Dudley George Estate, the 14 Aazhoodena and George Family Group, the residents of 15 Aazhoodena, the Chippewa and Kettle -- the Chippewa of 16 Kettle and Stony Point First Nations, the Chiefs of 17 Ontario and aboriginal legal services; that's the first 18 group. 19 Now, of that group, I just want to get a 20 sense of that group; Mr. Klippenstein on behalf of Dudley 21 George has indicated he wants to cross-examine, Mr. 22 Rosenthal on behalf of the Aazhoodena and George Family 23 and Mr. Ross, the Chippewas of Kettle and Stoney Point, 24 Mr. Henderson and the Chiefs of Ontario, Mr. Horton and 25 the Aboriginal Legal Services, Mr. Eyolfson. So,

1 everybody in that group wishes to cross-examine. 2 The B group, the next group I've indicated 3 is the Province of Ontario. And you've -- you wish to? 4 Can't hear you. All right. You'll have to -- all right. 5 You have to come up to the mike. 6 MR. DERRY MILLAR: Yeah, it would be 7 helpful, just for the purposes of the record, these 8 microphones, actually we're not going to have these 9 microphones coming in September because, for the purpose 10 of the record, it's better if everyone comes to the mike. 11 I know it slows things down but it would 12 be preferable if everyone could come to the podium 13 please. 14 COMMISSIONER SIDNEY LINDEN: But you 15 indicated that you intend to cross? That's fine. Okay. 16 Now, the next grouping would be the police 17 or law enforcement group with the Ontario Provincial 18 Police and Mr. Sandler. 19 MR. MARK SANDLER: At present, it is not 20 my inclination to cross-examine subject to what might be 21 developed over cross-examinating. 22 COMMISSIONER SIDNEY LINDEN: The Ontario 23 Provincial Police Association...? 24 MS. KAREN JONES: Same as -- 25 COMMISSIONER SIDNEY LINDEN: All right.

1 And then the next group that I have are the former 2 Ministers and officials of government which include The 3 Honourable Michael Harris. Is there any intentions -- 4 MR. PETER DOWNWARD: Yes, Mr. 5 Commissioner. 6 COMMISSIONER SIDNEY LINDEN: Yes, okay. 7 And Mr. Harnick..? Some aren't here so I don't think 8 anybody's here on behalf of Mr. Runciman. 9 I don't think anybody's here on behalf of 10 Ms. Hutton, Mr Hodgson. 11 Mr. Beaubien...? 12 MR. DOUGLAS SULMAN: Yes, Mr. 13 Commissioner. 14 COMMISSIONER SIDNEY LINDEN: All right. 15 And finally I have, in the final grouping of parties, the 16 Municipality of Lambton Shores...? 17 MS. JANET CALMONT: No questions. 18 COMMISSIONER SIDNEY LINDEN: And the 19 Chief Coroner...? 20 MR. AL O'MARA: No intentions to cross- 21 examine. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 Now, it would be -- it would be helpful, and obviously I 24 understand no one can ever predict with accuracy how long 25 a cross-examination is going to take, but just for the

47
  1  purposes of scheduling and seeing if we can complete it
  2  today.  If we can we'll try to.
  3                 If we can't, then we will continue when we
  4  reconvene.  So, I would appreciate if you would give me
  5  some indication of how long you expect.  Those who have
  6  indicated an intention to cross-examine, give me some
  7  indication of how long you think you might be.  
  8                 Mr. Klippenstein...? 
  9                 MR. MURRAY KLIPPENSTEIN:   Yes,
 10  Commissioner, I would expect to be between one (1) and
 11  two (2) hours.  And I know that's not a very helpful
 12  range but -- 
 13                 COMMISSIONER SIDNEY LINDEN:   That's
 14  helpful.  That's more -- that's closer to one (1) or two
 15  (2) days but one (1) or two (2) hours is fine. 
 16                 MR. MURRAY KLIPPENSTEIN:   And we take
 17  what you said about possible further discussions
 18  pertaining to the order of cross-examination and, for
 19  example, we may suggest that the aboriginal interests
 20  actually are interests and other direct interests and
 21  those that have an indirect or public -- public interest
 22  nature application but that can be discussed later if --  
 23                 COMMISSIONER SIDNEY LINDEN:   That's fine. 
 24  Mr. Rosenthal, any indication of how long you might be? 
 25                 MR. PETER ROSENTHAL:   Again, a rough

1 guess and it might depend upon what Mr. Klippenstein does 2 to some extent, but I would think two (2) to three (3) 3 hours. 4 COMMISSIONER SIDNEY LINDEN: Mr. Ross...? 5 MR. ANTHONY ROSS: Not being paid by the 6 word, maximum half an hour. 7 COMMISSIONER SIDNEY LINDEN: Mr. 8 Henderson...? 9 MR. WILLIAM HENDERSON: Commissioner, I 10 don't think that -- that our questions would go more than 11 half an hour. I would -- I would have hoped not to be 12 asking any at all. 13 With respect to the order and without -- 14 without prejudice to Mr. Klippenstein's suggestion that 15 some of the public interest groups might want to go last, 16 the First Nation was not previously aware of the Province 17 of Ontario's interest in its history we might like to go 18 after Ontario. 19 COMMISSIONER SIDNEY LINDEN: Well, as I 20 say, and depending on the witness, and the evidence 21 that's being led, the order will shift. 22 MR. WILLIAM HENDERSON: Thank you, sir. 23 COMMISSIONER SIDNEY LINDEN: The next 24 parties indicated an intention to cross-examine is the 25 Chiefs of Ontario. Mr. Horton...?

1 MR. WILLIAM HORTON: Commissioner, I 2 don't anticipate being more than ten (10) or fifteen (15) 3 minutes, and perhaps not at all, depending on what others 4 ask -- uncover. 5 COMMISSIONER SIDNEY LINDEN: I do remind 6 all parties, that I'm going to try my best to keep from - 7 - to not to allow overlap and duplication of the same -- 8 the same questions. So, obviously some of your estimates 9 may shorten or lengthen, depending on what others do. 10 Mr. Eyolfson...? 11 MR. BRIAN EYOLFSON: Perhaps fifteen (15) 12 or twenty (20) minutes, depending on the other questions 13 that are asked, I may not have any questions at all. 14 COMMISSIONER SIDNEY LINDEN: Thank you 15 very much. Mr. Myrka...? 16 MR. WALTER MYRKA: Sir, I -- 17 COMMISSIONER SIDNEY LINDEN: I 18 unfortunately I can't hear you unless you're at the mike. 19 MR. WALTER MYRKA: I anticipate twenty 20 (20) minutes to half an hour at most. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 This is very helpful, and I thank you all very much for 23 making this effort. The Ontario Provincial pol -- 24 MS. SUSAN VELLA: Commissioner, Marcel 25 Beaubien's lawyer, I believe, is going to cross-examine,

1 and Mr. Harris' lawyer as well, perhaps. 2 COMMISSIONER SIDNEY LINDEN: Okay. On 3 behalf of Mr. Harris? 4 MR. PETER DOWNWARD: Yes, Commissioner, I 5 would estimate about an hour, that's subject to being 6 abridged by what goes before me. 7 COMMISSIONER SIDNEY LINDEN: I think the 8 next -- on behalf of -- I'm sorry, would you -- 9 MR. DOUGLAS SULMAN: For Mr. Beaubien -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. DOUGLAS SULMAN: -- my name is 12 Sulman. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. DOUGLAS SULMAN: Being mindful of the 15 admonition not to be duplicative, it may be half an hour 16 and it may be less, dependent on Mr. Downward's cross- 17 examination. 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 Who else has indicated an intention to cross-examine, 20 could you please come forward and give me some rough 21 estimate? Is that it? 22 Okay. Well we're -- that's very helpful, 23 I appreciate that very much, and obviously you're not 24 going to be held to it, but I hope that you'll try your 25 best to stay within the times you've indicated.

1 I think this would be a good time to 2 adjourn for the morning break, and we'll start with the 3 cross-examination, and get as far as we can today. Thank 4 you very much. 5 THE REGISTRAR: All rise please. This 6 Inquiry will recess for fifteen (15) minutes. 7 8 --- Upon recessing at 11:05 a.m. 9 --- Upon resuming at 11:27 a.m. 10 11 THE REGISTRAR: This Inquiry is now 12 resumed. 13 COMMISSIONER SIDNEY LINDEN: Okay. 14 Yes...? 15 MS. SUSAN VELLA: Mr. Commissioner, I 16 just would like to inform the counsel who will be cross- 17 examining, that if you wish to refer the expert to a 18 document, an Inquiry Document number from the historical 19 documents, please advise us as you go to that document, 20 and we will be ensuring that that document is printed to 21 the screen, but we'll need the Inquiry document number in 22 advance. Thank you. 23 COMMISSIONER SIDNEY LINDEN: Mr. 24 Klippenstein...? 25 MR. MURRAY KLIPPENSTEIN: Thank you,

1 Commissioner. 2 3 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 4 Q: Good morning, Ms. Holmes. 5 A: Good morning. 6 Q: I and my co-counsel represent the 7 estate of Dudley George and the five (5) brothers and 8 sisters of Dudley George, and a number of them are here 9 today. 10 I'd like to begin our questioning by 11 touching on the Treaty of 1829 for a little bit. And you 12 dealt with that in your report, and I will refer to your 13 report once or twice. 14 To -- to state the obvious, I guess, would 15 be the Treaty of 1829 between the Crown and the Chippewa 16 nation verified several what it called reserves, that 17 were parcels of land that were not ceded or surrendered 18 to the Crown in the treaty. 19 This -- is that right so far? 20 A: It's -- the treaty was 1827. It's 21 Treaty Number 29 but it's 1827. 22 Q: Good. I will continue to confuse that 23 throughout so, correct me or not as you wish. Did I get 24 the rest of it right? 25 A: That's correct.

1 Q: Thank you. And for my purposes, I 2 just want to trace one (1) of those reserves, and I don't 3 think this is at all controversial at this point, but one 4 (1) of those reserves, obviously was the Stony Point 5 Reserve, sometimes going by different names, correct? 6 A: That's correct. 7 Q: And part of that reserve, which is the 8 northwest corner of the Stony Point Reserve, were the 9 lands that later became Ipperwash Provincial Park; is 10 that right? 11 A: That's correct. 12 Q: And to state what I think is obvious, 13 the -- the Ipperwash Provincial Park lands were lands 14 that were allocated or reserved to natives by the Treaty 15 of 1827. 16 A: That's correct. 17 Q: To go back to what the treaty said 18 about such reserve lands, I'd like you to refer to your 19 report at page 17. That's at Tab 3, Commissioner. And 20 in the second paragraph on that page 17, you summarize 21 parts of the Treaty of 1827 and the third sentence -- or 22 rather fourth sentence says the described locations 23 were, quote: 24 "expressly reserved to the said nation 25 of Indians and their posterity at all

1 times hereafter for their own exclusive 2 use and enjoyment" Close quote. 3 And that's a quote from the treaty, 4 correct? 5 A: That's correct. 6 Q: And if I just focus on the words, 7 "their prosperity at all times hereafter"; that seems to 8 me a fairly uncontroversial way to suggest that in that 9 treaty, the Crown is committing that the lands that are 10 reserved would, in fact, be native lands in perpetuity. 11 Is that -- is that a fair meaning of that 12 treaty term? 13 A: I believe so. 14 Q: And those lands that are referred to 15 in that way include what later became the Ipperwash 16 Provincial Park lands; is that correct? 17 A: That's correct. 18 Q: The reserved lands that were referred 19 to in the treaty were only a small portion of the lands 20 that were inhabited and owned, if you will, and governed, 21 if you will, by the Chippewa nation previous to the 22 treaty. 23 And your report, on page 16 -- sorry, it's 24 also on page 17, states in the third paragraph that the 25 Chippewas, by the treaty, ceded over two million

1 (2,000,000) acres of land to the Crown and you say, 2 quote: 3 "They retained less than 1 percent for 4 their own exclusive use and 5 occupation." Close quote. 6 A: That's correct. 7 Q: And so, as part of the bargain, if you 8 will, the Chippewas shared with the Crown, or turned over 9 to the Crown, about 99 percent of their traditional 10 territory, and retained 1 percent; is that right? 11 A: That's correct. 12 Q: And as we -- as we've seen, in return 13 for the 99 percent, the Crown seems to have agreed that 14 the 1 percent would remain Native land, in perpetuity. 15 Is that a fair reading of what we've just gone through? 16 A: Yes, it's set aside as a reserve, and 17 the reserves are -- it's specified in the Treaty that 18 they're reserved to the Nation of Indians and their 19 posterity, yes. 20 Q: In your reports and your discussion, 21 you drew our attention to something else that was going 22 on in the treaty process. And you drew our attention to 23 the fact that the treaty has a term which allows the 24 treaty payments to decrease if the population of the 25 Chippewa Nation decreases in the future; is that right?

1 A: If it decreases by more than half, or 2 by at least half, yes. 3 Q: Right. And you noted that there was 4 not an equivalent mirror image term, that said if the 5 population of the Chippewa Nation increases, then the 6 payments would increase as well. So, it was a one (1) 7 way ratchet? 8 A: That's correct. 9 Q: And you mentioned in your discussion, 10 a bit of background about why that term adhered, which I 11 found very interesting. I wanted to just refer you to 12 that discussion in the transcript. 13 And I'll just read one (1) or two (2) 14 sentence -- sentences. I don't think it's necessary to 15 turn up the transcript. This is what you mentioned on 16 Tuesday, and on page 80 of the transcript, in reference 17 to that provision of the Treaty, which allowed payments 18 to decrease, but made no reference to payments 19 increasing. And you said at page 80, line 4: 20 "So, there's only a provision for 21 decreasing the annuity but not for 22 increasing it. And I think that the 23 reason for that is because at this time 24 period, 1827, the attitude of the 25 British Crown was that the -- the

1 Indian population, the aboriginal 2 people were going to disappear. They - 3 - they believed that the aboriginal 4 people could not sustain the onslaught 5 of the white settlers, and that they 6 would -- that they would disappear. 7 So, when they made their Treaty, 8 they're making it in such a way that if 9 in fact the people do die off, that 10 they won't owe -- they won't owe as 11 much money as the population 12 decreases." 13 Now, do you recall pointing that out to 14 us? 15 A: Yes, I do. 16 Q: I wonder if you could elaborate at 17 all on this idea that the Crown, at that time, appeared 18 to have the attitude that the aboriginal population were 19 going to disappear. 20 Can you tell us anything more about that? 21 A: Certainly. Around that time period, 22 the -- the aboriginal population in -- in what was 23 British North America at that time, and in the -- in this 24 area of Upper Canada, was in fact, the population had 25 been decreasing for quite some time, because of disease

1 and displacement of -- of population, because of changes 2 in lifestyle the population in fact had been dropping. 3 And the Crown was aware of that, the British Indian 4 Department would be aware of that -- that trend. 5 And the attitude of the Department and of 6 missionaries, was that the -- the Indian people would 7 slowly die away as a people. 8 And the approach of the British Indian 9 Department and of missionaries who had a certain amount 10 of influence in Indian policy and in interacting with -- 11 with Native people at that time, they believed that the 12 people could be isolated in isolated communities away 13 from settlement and that they would -- they would slowly 14 die out; that was the thinking at the time. 15 Q: In your original comments you, I 16 think, you talked about the onslaught of the white 17 settlers being linked with the -- the expected 18 disappearance of aboriginal people and then you mentioned 19 just now, displacement of population so is part of the 20 scenario that they foresaw at that time that as settlers 21 came in, First Nations people will be displaced? 22 A: That's correct. 23 Q: And you mentioned that the 24 expectation was that people -- the First Nations people 25 would be isolated and then they would slowly die out, and

1 you used the word "slowly"; is it fair to understand your 2 description as meaning that people believed it would take 3 place over quite a long period of time? 4 A: I can't really be sure what kind of 5 time frame that they had in mind. But they certainly 6 believed that -- that the Indian groups wouldn't -- 7 wouldn't survive. 8 Q: And so, when we see the treaty terms 9 that refer to land being guaranteed to the First Nations 10 people in perpetuity, there seems to have been something 11 else going on behind the words about the expectation of 12 the Crown party to the treaty over the longer term 13 future; is that fair? 14 A: I think that -- that when they 15 actually made that treaty, when they negotiated it over 16 the -- the long term, the nine (9) years, I don't see any 17 discussion or indication of that in partic -- they don't, 18 in the documentation that I see, they don't really 19 address that directly in terms of this treaty. 20 But the general trend at that time period 21 and shortly after that time period is reserves that had 22 been set aside, and here I'm speaking very generally of 23 what happened in Upper Canada, reserves that were set 24 aside in that early 19th Century period were very often, 25 parts of them, were surrendered away, that the Crown took

1 surrenders of them or amalgamated people on reserves. 2 So, the -- the amount of reserved land -- 3 of land that had been reserved also decreased. 4 Q: When I asked you whether there was 5 something going on behind the scenes in the treaty terms, 6 I didn't mean being discussed behind the scenes, but in a 7 sense there was this expectation on the Crown party, it 8 would appear from what you say, that although the treaty 9 guaranteed the land in perpetuity, the Crown party 10 thought that it might not exist as Indian land in 11 perpetuity, in fact? 12 A: Okay. Well, the point I'm trying to 13 make and maybe I'm not making it clearly, is that up to 14 1827 when that land was set aside and the treaty made, I 15 don't see a lot of discussion in records pertaining to 16 this treaty specifically or in general about reserve -- 17 the reserve land being decreased. 18 However, in the -- in the subsequent 19 period, starting around 1836 which is nine (9) years 20 later, that's when you observe, in general, in the Crown 21 the more conscious policy or a more conscious view that 22 people are being sent to more isolated areas where they 23 expect that they will -- I think it was Lieutenant 24 Governor Bondhead that -- that said, where they will live 25 out their last days and die away.

1 So, it's a little bit after the Treaty 2 period that we're involved with. 3 Q: I'd like to pursue that topic a 4 little bit more, namely the question about the belief in 5 that time period that -- that Native people would 6 disappear. And -- and in order to do that, I'd like to 7 draw your attention to some comments on that topic, made 8 by a previous commission of inquiry. And I have in mind 9 the Royal Commission on Aboriginal Peoples, which 10 released its final report in 1996. 11 MR. MURRAY KLIPPENSTEIN: And, 12 Commissioner, I have duplicated a number of pages from 13 that Royal Commission Report, and provided copies earlier 14 to -- to Ms. Vella, and so hopefully Ms. Holmes has had a 15 chance to look at it. 16 And I've made copies available to other 17 counsel, and I propose to -- once I've asked Ms. Holmes a 18 few questions about it, possibly make it an exhibit. And 19 I wonder if -- we'll provide a copy to you, Commissioner. 20 And I have a few extra copies. 21 We've also tried to arrange to have the 22 excerpts projected onto the screen for ease of reference, 23 if -- if in fact that works. 24 And this -- and so before I ask that it be 25 made an exhibit, I would perhaps suspect, Ms. Holmes,

1 that you have some familiarity at least with the Royal 2 Commission, on Aboriginal Peoples? 3 THE WITNESS: Yes, I do. 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: I won't ask if you're one (1) of the 7 few people in Canada who've read the full four thousand 8 (4,000) pages, but -- 9 A: Thank you. 10 Q: Nor, will I say that I've read all 11 the pages. But is it -- is it correct, as is my 12 understanding, that that Royal Commission considered many 13 issues related to the First Nation subject matters for 14 something like a period of five (5) years; is that about 15 right? 16 A: I believe that's correct, yes. 17 Q: And that's a very wide consult -- 18 consultations across the country? 19 A: Yes. 20 Q: And there were a number of 21 Commissioners, including Madam Justice Bertha Wilson, of 22 the Supreme Court of Canada, was one (1) of the 23 Commissioners, as I recall; does that sound familiar to 24 you? 25 A: It's probably correct, but I -- I

1 couldn't swear to it. 2 Q: Okay. But it sounds possible to you 3 in your recollection. And if I suggested to you that the 4 Co-Chairs of the Commission were Georges Erasmus, a 5 former National Chief of the Assembly of First Nations or 6 its equivalent, and that the -- the other co-chair was 7 Justice Renee Dussault of the Quebec Court of Appeal; 8 does that sound familiar to you? 9 A: I believe that's correct. 10 Q: Would you agree that the Royal 11 Commission on Aboriginal People's Reports or -- or RCAP, 12 as I'll refer to it, are generally recognized as speaking 13 with a great deal of authority on issues related to 14 aboriginal people? 15 A: I -- I believe that the RCAP Report 16 has had input from a number of different people, and I 17 think depending on who you are, people have -- hold 18 different opinions of how authoritative it is. But 19 there's certainly a great deal of -- of information in 20 their reports. 21 Q: Would you agree that although not 22 everyone unanimously agrees with everything in the 23 report, that it is considered as -- as one (1) of the 24 important authorities on these issues in Canada? 25 A: Yes, I think it's viewed as -- as

1 capturing the significant opinion that's current at -- at 2 the time it was published, yes. 3 MR. MURRAY KLIPPENSTEIN: Commissioner, I 4 would request that this excerpt be made an exhibit. 5 And -- 6 COMMISSIONER SIDNEY LINDEN: What number 7 are we up to? Number 10...? 8 MR. MURRAY KLIPPENSTEIN: Post exhibit is 9 an excerpt from the Royal Commission on Aboriginal 10 People's Final Report from 1996, paragraphs 1,013 to 11 1,038, from the CD-Rom. 12 I believe that's Exhibit P-10. 13 COMMISSIONER SIDNEY LINDEN: Exhibit P- 14 10. Thank you. 15 16 --- EXHIBIT NO. P-10: Excerpt from the Royal Commission 17 on Aboriginal People's Final 18 Report from 1996, paragraphs 1,013 19 to 1,038. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: Ms. Holmes, I'd like to take you to 23 parts of this exhibit. And I'd like to follow up the 24 idea that you mentioned that the Crown, around the time 25 of the 1827 Treaty, believed that the aboriginal people

1 would likely disappear and see whether we find more 2 appearances of that idea or similar ideas subsequently. 3 And, first of all, I'd like to refer you 4 in Exhibit P-10, which is the excerpt from RCAP, to the 5 first part of the excerpt under the heading, "Extending 6 Measures of Control and Assimilation". And I'm 7 interested in the reference to Sir John A. Macdonald, the 8 first Prime Minister of Canada, that appears in the 9 second paragraph. 10 And just for context, I'll read the whole 11 two (2) paragraphs and ask you about Sir John A. The 12 excerpt says, quote: 13 "The nation of Canada was born on the 14 1st July, 1867 within a Federal 15 political structure, a modern trans- 16 continental society is to be fashioned 17 and, as Empire became nation, a new 18 beginning was to be made. Work on the 19 Confederation project had begun as 20 early as 1858 and as the tempo 21 quickened between 1864 and 1866 the 22 Fathers met in Charlottetown, Quebec 23 and London. At those meetings, in the 24 editorial papers of the Colonial Press 25 and even on the hustings, the details

1 of the Federation and the Pan-Colonial 2 consensus were hammered out. At no 3 time, however, were First Nations 4 included in the discussion nor were 5 they consulted about their concerns, 6 neither was their future position in 7 the Confederation given any public 8 acknowledgment or discussion. 9 Nevertheless, the broad outlines of a 10 new constitutional relationship, at 11 least with the First Nations, were 12 determined unilaterally. The first 13 Prime Minister, Sir John A. Macdonald, 14 soon informed parliament that it would 15 Canada's goal to, quote, 'to do away 16 with the tribal system and assimilate 17 the Indian people in all respects with 18 the inhabitants of the Dominion'" End 19 of quote." 20 First of all, can you accept, based on 21 this reference in RCAP in the last sentence there that 22 Prime Minister Macdonald made the statements attributed 23 to him? 24 A: The quotation here is taken from, 25 "Malcolm Montgomery, the Six Nation Indians and the

1 Macdonald Franchise" an article from Ontario history. I 2 haven't actually read that article. 3 The quotation to do away with the tribal 4 system and assimilate Indian people, that -- that does 5 sound familiar to me in -- in relation to a statement 6 that Macdonald would make but I haven't actually reviewed 7 that article. 8 Q: Are you -- are you prepared to accept 9 that Sir John A. made that statement for today's 10 purposes? 11 A: Yes, because I'm sure I've seen it 12 before. 13 Q: I thought you'd probably had seen 14 something like that before. Would you agree that when 15 Prime Minister Macdonald was talking about 16 "assimilating the Indian people in all 17 respects with the inhabitants of the 18 Dominion," 19 there's a similarity to the views you 20 pointed out earlier in that they're both talking about 21 Indians disappearing? 22 A: Well, I think in the earlier period 23 when the Crown officials talked about Indians 24 disappearing, they really were talking about them dying 25 out as individuals. When -- in the -- in the -- that

1 early Confederation period that is being referred to in 2 this article, when -- when the Crown talked about 3 assimilation and used that term "assimilation" really 4 what they were talking about is that the Indian people 5 would become like white people. 6 That, for example, in this statement he 7 says "to do away with the tribal system" that they would 8 no longer follow a traditional way of life in any 9 respect, be it government structure or lifestyle, that 10 they would be like white people. So, it's -- it's 11 changing the essence of -- of who they were as a people 12 which is a -- is a slightly different -- slightly 13 different thing. 14 Q: I've seen references to education and 15 intermarriage and things like that. Is that more along 16 the lines of -- of what he was talking about, do you 17 think? 18 A: When he talks about assimilation? 19 Q: Yeah. 20 A: Here I think Macdonald was 21 particularly focussed on getting rid of a tribal -- what 22 they called a tribal system, which was a system of -- of 23 government, of holding land in common -- that -- that 24 type of thing. That's -- that was his particular focus 25 around that time.

1 Q: You mentioned that the -- the concept 2 was that Indians would become like white people and would 3 change their essence, I think were the terms you used, 4 and so when Macdonald -- Prime Minister Macdonald -- 5 says, 6 "assimilate the Indian people in all 7 respects with the inhabitants of the 8 Dominion," 9 is it fair to say that he and -- and 10 people like him had the view that Indians would disappear 11 within the greater population? 12 A: As a distinct body, yes. 13 Q: Would you agree with me that the 14 statement of the Prime Minister is different from what 15 you mentioned in an earlier period where there seemed to 16 be a sense that aboriginal people would literally die 17 off. 18 In that, the statement of the Prime 19 Minister isn't so much saying that it's inevitable, but 20 is also saying that such assimilation or disappearance of 21 Indians is desirable and is something to be actively 22 pursued. 23 A: That was their attitude, yes. 24 Q: And does it also follow logically that 25 if the views of Prime Minister Macdonald and similar

1 authorities was that aboriginal people should assimilate 2 and merge to the point of disappearance, that there 3 wouldn't be any Indian lands as such at some point in the 4 future because all such Indian lands would be absorbed 5 into the general economy of Canada as well? Is that a 6 fair part of the -- of the way of thinking? 7 A: Generally, it was a little bit more 8 complicated than that. The aim, and here again I'm -- 9 I'm speaking very generally of the trend at -- in that 10 late 19th century period, that the -- the attitude of the 11 Crown was that it was desirable that the Indian people be 12 assimilated into the population. 13 That's why they introduced the concept of 14 enfranchisement where individuals would give up -- 15 voluntarily give up their Indian status and with them, if 16 an -- if an Indian gave up their -- their Indian status 17 they would be entitled to take a piece of reserve land 18 which would, in effect, continue to shrink the size of 19 the reserve as -- as people became enfranchised. 20 The -- the Crown was very anxious to 21 pursue that policy. However, at the same time, what 22 you'll see is that they recognize that one (1), they had 23 a legal obligation to protect lands that were not given 24 up and that the Crown soon became aware of the fact that 25 all of their efforts to encourage people to enfranchise -

1 - to give up their Indian status -- were not successful 2 and -- from their point of view, not successful -- that - 3 - that people were not enfranchising, they were not 4 giving up their Indian status. 5 And, as a result of that, they -- they 6 realized that they still retained that obligation to 7 protect reserve land, to -- their legal obligation to 8 protect reserve land. And also they -- they continued 9 their efforts to encourage people to enfranchise or to 10 assimilate with such programs as education and that -- 11 that type of thing. 12 Q: And you mentioned that at least in 13 some circumstances, when an Indian would enfranchise, 14 they could take a piece of the reserve land with them? 15 A: That's correct, that's part of the 16 legislation related to that. 17 Q: So the -- there was an explicit 18 linkage or recognition that the -- as the number of 19 Indians shrank, the amount of Indian land would shrink as 20 well? 21 A: That was the expectation, yes. 22 Q: And that would have been part of the 23 -- what they saw as desirable? 24 A: I would say in general, yes. 25 Q: I'd like to try and see a little bit

1 later in time, whether there's still some of that idea in 2 the -- in the context, and if I could ask you to turn to 3 the end of the RCAP excerpt, which is Exhibit P-10. 4 And again, I'll read the entire paragraph, 5 although I'm interested in for now, what Duncan Campbell 6 Scott said, quote: 7 "For the authors of this colonial 8 system, the separate paths were to run 9 to a single destination. Their 10 national vision was the same for all 11 Aboriginal people, whether men, women 12 or children, status or non-status, 13 Indian and Metis or Inuit. As their 14 home lands were engulfed by the ever 15 expanding Canadian Nation, all 16 Aboriginal persons would be expected to 17 abandon their cherished life ways to 18 become civilized, and thus, to lose 19 themselves and their culture among the 20 mass of Canadians. This was an 21 unchanging Federal determination. The 22 long serving Deputy Superintendent 23 General of Indian Affairs, Duncan 24 Campbell Scott, assured Parliament in 25 1920, that our object is to continue

1 until there is not a single Indian in 2 Canada that has not been absorbed into 3 the body politic, and there is no 4 Indian question." 5 Now first, can you accept, based on this 6 reference in RCAP, that Duncan Campbell Scott made that 7 statement? 8 A: This -- the quotation is from the 9 quotation of -- Duncan Campbell Scott's statement is from 10 a publication by John Leslie and John Maguire, The 11 Historical Development of the Indian Act. And I am 12 familiar with that publication. 13 I -- I believe that it's -- that it's a 14 correct quotation, but of course, you know, I can't say 15 that absolutely. It certainly sounds familiar, and it 16 would be -- it would be in keeping with the general 17 attitude that Scott exhibited through his time period as 18 the Superintendent General. 19 Q: I have -- I would imagine from your 20 historical -- research, that you have some familiarity 21 with Duncan Campbell Scott? 22 A: Yes, I do. 23 Q: Is it fair to say that for more than 24 twenty (20) years, he was the dominant Federal official 25 overseeing and implementing Indian policy in Canada, is

1 that fair? 2 A: Yes, he was. And actually I could 3 tell you the dates if I looked at one (1) of my little 4 aids here. 5 Duncan Campbell Scott, before he became 6 the Superintendent General, is the -- the highest ranking 7 officer in Indian Affairs. And the -- the highest 8 ranking non-politician, right. So, he would be like the 9 equivalent of a -- a Deputy Minister, so he's not a 10 Minister, he's not a member of Cabinet. 11 But Scott was the Deputy Superintendent 12 General of Indian Affairs from October 1913 to March 13 1932. So, yes, I think that's about twenty (20) years. 14 And he was -- prior to that, he was the accountant with 15 the Department, he was the head accountant. So, he had 16 service prior to being the -- the Deputy Superintendent. 17 Q: And so he was, is it fair to say, 18 extremely influential in the Indian policy over several 19 decades? 20 A: Yes, he was. 21 Q: And he, as you seem to suggest, also 22 shared the attitude that we were looking at, that it was 23 both desirable and something to be actively pursued for 24 Aboriginal peoples to assimilate and merge into the 25 Canadian population, and disappear, is that fair?

1 A: Yes, that -- that, and just to -- to 2 be clear about his quotation here, when he says not a 3 single Indian in Canada, he doesn't mean that they should 4 be deceased. He means Indian in the meaning of the 5 Indian Act, the person with that particular status. Yes, 6 that was certainly the -- one (1) of the main objectives 7 of the Indian Department at that time. 8 Q: And again, it follows, I'm -- I'm 9 thinking, that if there were to be no Indians in the 10 future, as such, there also wouldn't be any Indian lands, 11 as such, anymore. And that would have been part of his 12 attitude and part of something he thought of as 13 desirable, is that fair? 14 A: Yeah, well if you look at Indian Act 15 legislation in place at that time. If an Indian Band, in 16 the meaning of the Indian Act, ceased to exist, then 17 their -- the reserve land that was held for them, would 18 revert to the Crown. That's my general understanding of 19 that legislation. 20 Q: And Duncan Campbell Scott was the 21 Superintendent General of Indian Affairs in the '20s, and 22 indeed at the time when the Ipperwash Park lands were 23 surrendered in 1928, is that fair? 24 A: Yeah, it's the Deputy Superintendent 25 General --

1 Q: Sorry. 2 A: -- the Superintendent General was the 3 Minister, okay. 4 Q: Right, the Superintendent was a 5 political position? 6 A: That's correct. 7 Q: Yes. But Duncan Campbell Scott was 8 the Deputy Superintendent General, at the time of -- in 9 the 1928 surrender of the lands that became Ipperwash 10 Provincial Park, is that fair? 11 A: That's correct. 12 Q: And I believe I even seen Duncan 13 Campbell Scott's involvement in some of the correspondent 14 in that particular file, do you remember -- 15 A: There -- there is some correspondence 16 from him, yes. 17 Q: So he was -- he had some personal 18 involvement in the 1928 surrender? 19 A: The -- the -- again, I'm speaking 20 generally, the general procedure would be that when there 21 was a surrender of reserve land, the Deputy 22 Superintendent General, would be aware of it. He would 23 be -- he would give authority to seek the -- he would 24 give the authority to the Indian Agent to seek the 25 surrender, and he would be -- it would usually be him

1 that would draft up the Order in Council, that -- for the 2 Minister that would accept a land surrender. 3 So, yes, he would have that -- that degree 4 of involvement. He would not be involved in the field or 5 on the ground. 6 Q: I'd like to then turn back to the 7 RCAP excerpts and turn to the first page on paper, which 8 I believe is the third page on the screen. Rather 9 perhaps, I'll start on the second page on the screen. 10 And I won't read the whole excerpt, but 11 will read the quote from Alexander Morris, who as I 12 understand it, was very involved in a number of Treaties 13 with First Nations people in Western Canada, is that 14 fair? 15 A: Yes, he was. 16 Q: Yeah. He says: 17 "Let us have Christianity and 18 civilization among the Indian tribes, 19 let us have a wise and paternal 20 government, doing its utmost to help 21 and elevate the Indian population, who 22 have been cast upon our care. And 23 Canada will be enabled to feel that in 24 the true patriotic spirit our country 25 has done its duty to the red men."

1 And then continuing: 2 "Parliament was moved to action, though 3 rarely consulting aboriginal 4 communities, it translated that duty 5 into federal legislation, such as the 6 Indian Act and periodic amendments to 7 it. It crafted educational systems, 8 social policies and economic 9 development plans designed to 10 extinguish Aboriginal rights and 11 assimilate Aboriginal people..." 12 And I'd like to pause there. I understand 13 from your CV and past work, Ms. Holmes, you've done a 14 fair bit of work on the history of the Federal Indian 15 Act; is that fair? 16 A: That's correct. 17 Q: If I could just focus on the sentence 18 that says "it", I guess being Federal legislation such as 19 the Indian Act -- sorry, "it" being Parliament: 20 "... crafted educational systems, 21 social policies and economic 22 development plans designed to 23 extinguish Aboriginal rights and 24 assimilate Aboriginal people." 25 Would you accept that statement by the

1 Royal Commission, by and large, as a reasonable, general 2 summary of Federal Indian legislation over the period 3 from approximately Confederation to approximately 1951? 4 Which date I choose just because that was a major 5 amendment to the Indian Act. 6 A: Right. I think that this statement 7 that appeared in the RCAP report, and I'm not sure who 8 the author of this is, I think this statement it -- it 9 reflects one (1) aspect of Indian Act legislation and 10 amendments. 11 But, in fairness, it doesn't reflect other 12 aspects of the legislation which, at the same time, 13 included provisions such as the kinds of safeguards or 14 requirements in order to take surrenders of Indian land 15 and -- and the types of provisions that were in the 16 Indian Act that protected lands against trespass and 17 things like that. 18 So I think that the author here is giving 19 their interpretation or their opinion on the impact of 20 the Federal legislation or the purpose I think, because 21 it says it's -- 22 Q: "Designed". 23 A: Designed; yeah, which makes it -- 24 "Translated that duty into Federal 25 legislation that crafted these things."

1 That -- so I think that while -- while 2 it's fair to say that some of these agendas underlay some 3 aspects of Indian legislation; at the same time the Crown 4 did recognize it's legal obligations and those were also 5 written into the Act. So, -- 6 Q: Is it fair to say that there was -- 7 A: You know this is -- this is what this 8 author has chosen to -- to write about which, of course, 9 is an interpretation so -- 10 Q: It's -- it's my understanding that 11 the Royal Commission Report was signed by the 12 Commissioners, all of the Commissioners, do you happen to 13 know one (1) way or the other on that? 14 A: Well, the reports were accepted by 15 the Commission, tabled by the Commission, yes, that's 16 true. 17 Q: Right, right. 18 A: I -- I don't -- I don't think that, 19 you know, if you're -- if you're -- if you're writing 20 history and giving interpretations of many, many things 21 that happened in the past, not everything is covered. 22 And my, as I said at the beginning, my 23 comment on the -- the Royal Commission Report is that -- 24 and although I haven't read the entire thing back to 25 front, but I've read many parts of it several times, and

1 I find that it's, you know, there -- there are many parts 2 of it where -- where different authors or scholars are -- 3 are presenting particular views and I don't think that I 4 would agree with every interpretation. 5 And I'm sure that the Commissioners never 6 -- well, I can't speak for them, but I'm just saying that 7 -- that this is -- this is one (1) particular statement, 8 and I think that it has truth and validity in it. 9 However, I don't think that it says everything about the 10 legislation -- 11 Q: Right. 12 A: -- at that period. 13 Q: As I understand your answer, you seem 14 to be hinting at something of a duality in the 15 legislation. Part of it is what is referred to here, 16 namely systems and policies and plans, designed to 17 extinguish Aboriginal rights and assimilate Aboriginal 18 people. 19 But at the same time, as I understand your 20 suggestion, there are other parts of the Act designed to 21 protect? 22 A: Yes, and I think, you know, again 23 speaking very generally, and very generally of the 24 conduct of Indian Affairs which -- which includes 25 legislation related to Indians and Indian lands, is that

1 historically there was always this kind of duality, where 2 there was a legal responsibility and obligation on the 3 part of the Crown, which is reflected in its legislation, 4 and is reflected in some of its actions. 5 And at the same time, there is also an 6 agenda, a long term agenda, which is to -- at different 7 historical periods it switches. But it's a -- it's an 8 agenda that has to do with what the legislators and 9 socially -- social policy gurus of the time, believe is 10 the best for the Indian people and for Canada. So there 11 is always that other kind of underlying agenda. 12 Q: And that agenda, to put it bluntly 13 but accurately, is the disappearance of Indians? 14 A: At this time period that we're 15 talking about right here, the -- that late 19th Century 16 period, yes, I think that they were quite -- and up into 17 the 1920s, when we -- you read the quotation from Scott, 18 the authorities were very vocal and unapologetic about 19 what they thought was best for the Indian people, and 20 that was for them to be assimilated into the larger 21 Canadian society. 22 Q: And so again at the time of the '20s, 23 the decade when the -- and then the decades previous to 24 the surrender of 1928, the senior levels of government 25 were very vocal and unapologetic that the assimilation

1 and disappearance of Indians was desirable and something 2 to be facilitated, while at the same time, having certain 3 protective measures in place -- 4 A: Yes. 5 Q: -- is that fair? 6 A: And -- and again, I would like to 7 stress that when we're talking about disappearance, 8 they're talking about the disappearance of that 9 particular legal status. 10 Q: Right. 11 A: That's -- that's the way that they 12 used the term Indian. 13 Q: Right. 14 A: That's how it's -- 15 Q: But with that qualifier, my summary 16 is not -- not inaccurate, is that fair? 17 A: I'd say that it's very fair. 18 Q: Yeah. If I can continue with the 19 next page on the screen. 20 Actually I think it's still the previous 21 screen. Sorry, yes, I'll just read the next paragraph, 22 it begins, "The process". And on paper it's on page 2, 23 the first full paragraph, quote: 24 "The pro