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

2
  1                        Appearances
  2  
  3  Derry Millar      )             Commission Counsel
  4  Susan Vella        )
  5  Katherine Hensel  )
  6  Don Worme          )
  7  
  8  Murray Klippenstein )            The Estate of Dudley 
  9  Vilko Zbogar       )            George and George Andrew
 10  Andrew Okin        )  (Np)      Family Group
 11  
 12  Peter Rosenthal  )              Aazhoodena and George
 13  Jackie Esmonde   )   (Np)       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  Kim Twohig       )              Government of Ontario
 23  Walter Myrka     )
 24  Sue Freeborn     )   (Np)
 25

3
  1                   APPEARANCES (cont'd)
  2  
  3  Janet Clermont   )              Municipality of 
  4  David Nash       )   (Np)       Lambton Shores
  5  
  6  Peter Downard    )              The Honourable Michael
  7  Bill Hourigan    )   (Np)       Harris
  8  Jennifer McAleer )
  9  
 10  Nancy Spies      )   (Np)       Robert Runciman
 11  Alice Mrozek     )   (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       ) (Np)       Ontario Provincial 
 20  Andrea Tuck-Jackson )            Police
 21  
 22  Ian Roland       )              Ontario Provincial 
 23  Karen Jones      )   (Np)       Police Association &
 24                                   K. Deane
 25

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

1 TABLE OF CONTENTS 2 PAGE NO. 3 DARLENE JOHNSTON, Resumed 4 5 Continued Cross-Examination 6 by Mr. Murray Klippenstein 8 7 8 Cross-Examination by Mr. Peter Rosenthal 13 9 Cross-Examination by Mr. Brian Eyolfson 113 10 Cross-Examination by Mr. William Horton 129 11 Cross-Examination by Mr. William Henderson 132 12 Cross-Examination by Mr. Anthony Ross 146 13 14 15 Certificate of Transcript 152 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 now 4 in session. The Honourable Mr. Justice Linden presiding. 5 Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good morning 7 to everybody again. 8 MR. DERRY MILLAR: Good morning, 9 Commissioner, I think we've hit a technical glitch that 10 no one down here has power. 11 And -- we're all fixed. It's all fixed 12 up. Anyway, Mr. Klippenstein is going to continue his 13 examination, sir. 14 COMMISSIONER SIDNEY LINDEN: Thank you 15 very much. Mr. Klippenstein, carry on. 16 MR. MURRAY KLIPPENSTEIN: Good morning, 17 Commissioner. 18 COMMISSIONER SIDNEY LINDEN: Good morning. 19 20 DARLENE JOHNSTON, Resumed: 21 22 MR. MURRAY KLIPPENSTEIN: Good morning, 23 Professor Johnston. 24 THE WITNESS: Good morning. 25 MR. MURRAY KLIPPENSTEIN: Commissioner, I

1 commenced my questioning yesterday with -- leading into 2 some questions about the 1867 Constitutions and division 3 of powers. 4 And on reflection and consultation, it 5 occurred to me that -- that those areas appear to be 6 probably unnecessarily confusing at this point because I 7 think it became clear that it wasn't within the scope of 8 reference of the Professor Johnson's work and, no doubt, 9 my questions were very confused. 10 So, I think I will probably not pursue 11 those at this time, although the reason we raised them is 12 we thought it was important for an understanding of the -- 13 the situation of the death of, Dudley George, to 14 understand the Federal and provincial situation on the 15 land there. 16 But, hopefully that can be clarified for 17 everybody in due course. But, we -- I won't pursue those 18 questions now. 19 COMMISSIONER SIDNEY LINDEN: Thank you very 20 much. 21 MR. MURRAY KLIPPENSTEIN: Lawyers' time 22 estimates are generally wrong and mine, in particular. 23 And I estimated three-quarters of an hour to an hour and 24 if I drop that line of questioning, perhaps any minutes I 25 save can be tacked onto my next examination.

1 2 CONTINUED CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 3 Q: Professor Johnston, when you completed 4 your presentation you were about the middle of the 1800's, 5 which is approximately as far as your -- your study had 6 taken you in this particular situation; is that right? 7 A: Yes. 8 Q: And as I understand it, at the end of 9 that period, in other words, in the 1840's and 1850's, you 10 showed some slides that showed the various treaties that 11 had been entered into or purchases as they sometimes were 12 called, for most of southwestern Ontario; is that right? 13 A: Yes. 14 Q: And I think you mentioned for the -- 15 for the treaty in question here, the 1829 treaty -- 16 A: Treaty 29 from 1827? 17 Q: Yes, thank you. That the amount of 18 land that had been retained or reserved for the native 19 people as compared to the land that that the entire treaty 20 covered, was in the order in the 1 percent? 21 A: Yes. 22 Q: Or less than 1 percent? 23 A: Less than 1 percent. 24 Q: Do you have a sense for the other slide 25 that you showed for southwestern Ontario, whether it's

1 sort of in the same percentage, or less or more, or is 2 that not something you had a chance to estimate? 3 A: Not for all of southern Ontario, but, 4 in my own territory, our people are left with less than 1 5 percent of our territory that was purchased or 6 surrendered. 7 Q: And perhaps you could speak from 8 experience, either in your own treaty territory or your 9 studies of the treaty for this area or others in 10 southwestern Ontario; is it fair to say that, in a general 11 way, after the period that you studied and after the 12 purchases and treaties and after those treaties had 13 guaranteed that 1 percent or less, for native people, that 14 in fact, the Crown came back for more and began requesting 15 surrenders of part of those reserved lands? 16 A: Yes. 17 Q: And is that something that happened, 18 from your general knowledge, repeatedly? 19 A: In my own territory, the first 20 surrender we were requested to sign -- my ancestors were 21 requested to sign, was for the entire Saugeen territory 22 which was 2 million acres and they wanted our people to 23 move to Manitoulin Island and the chiefs refused and 24 reserved half a million acres on the peninsula and the 25 King's representatives said they would protect that

1 forever. 2 And then within twenty (20) years we were 3 repeatedly requested to make surrenders and threatened and 4 we surrendered the peninsula in 1854 of almost half a 5 million acres leaving five (5) small reserves. 6 There was a ten thousand (10,000) acre 7 reserve at Owen Sound which we were then prevailed upon to 8 surrender in 1857. There was another reserve at Copos 9 (phonetic) Bay, which the people were prevailed upon to 10 surrender in the early 1860's and so our community is left 11 with one (1) small reserve. 12 For a while there was a suggestion that 13 they would try to amalgamate the reserve at Saugeen with 14 the reserve at Cape Croker but the people at Saugeen 15 refused to move. 16 But the pressure continued. We -- we ended 17 up signing treaties for the islands that we had reserved 18 for our fisheries and those were negotiated from -- at the 19 turn of the -- turn of the century. 20 Q: I mentioned yesterday and this morning 21 the major change in the Canadian or British legal 22 background in what is now Ontario in 1867 and I won't get 23 into any questions about what that actually means, but is 24 it fair to say that the non-native government in 1867 made 25 major changes to the way it was organized by creating a

1 Provincial and Federal Government for this area at the 2 confederation process? 3 A: The colony of Canada west became the 4 province of Ontario and the powers that the colony of 5 Canada west had had were then divided as between the 6 province of Ontario and the Federal Government and so 7 there -- there were substantial changes in terms of which 8 government body was responsible for which areas of 9 jurisdiction. 10 Q: And did the -- the native peoples of 11 what is now Ontario have any say in that change in 1867? 12 A: No. 13 Q: And would you agree with me that there 14 was another major change in the way the non-native 15 governments in what is now Ontario dealt with native 16 peoples when the Federal Government passed the first 17 comprehensive Indian Act in 1876? 18 A: There's a continuity between the first 19 comprehensive Indian Act in the pre-confederation Indian 20 legislation and the colony of Upper Canada and then Canada 21 west. 22 Their provisions for surrender, for 23 instance, were already in the 1860 Act for Canada west. 24 They made -- it was much more thorough going though. The 25 enfranchisement policy, the civilization policy, their

1 position and status; those had all been dealt with in pre- 2 confederation legislation. 3 Q: And did that 1870 Act -- 1876 Act add 4 -- add other significant changes to what had been done 5 before? 6 A: I don't have the Act in front of me -- 7 Q: No, it's okay. Did -- 8 A: The surrender provisions remained 9 pretty much as they had been in 1860; I can speak to that. 10 Q: Did the First Nations of what is now 11 Ontario have any input into the 1878 Act or any of the 12 other previous ones, that you're aware of? 13 A: Not that I'm aware of. 14 Q: And I think you mentioned that, 15 throughout this period, the First Nations people did not 16 have any political control or clout in Canada by way of 17 voting because they were not voting -- they did not have 18 voting rights. 19 A: They didn't vote prior to 20 confederation. There was a short period in the late 21 1870's when the MacDonald government extended the 22 franchise to the tribes living in eastern Canada; that was 23 recalled very after -- repealed very shortly after. 24 MR. MURRAY KLIPPENSTEIN: Thank you, 25 Professor Johnston. I have no further questions. Thank

1 you, Commissioner. 2 COMMISSIONER SIDNEY LINDEN: Thank you 3 very much. Yes, Mr. Rosenthal...? 4 MR. PETER ROSENTHAL: Thank you, Mr. 5 Commissioner, good morning. 6 Good morning, Professor Johnston. 7 MS. DARLENE JOHNSTON: Good morning. 8 9 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 10 Q: I'm examining you on behalf of a group 11 of people from the Stony Point First Nation, who include 12 one of the brothers of Dudley George, Pierre George, and a 13 number of his close cousins. 14 And we're under then name as it says on my 15 score card over there, Aazhoodena and the George Family 16 Group. 17 I -- I'd like to begin by increasing my 18 understanding at least, of some of the terms that you've 19 used. 20 Now, you've talked primarily about totemic 21 identity and totem, is that the same as the clan? That 22 means exactly the same as the word, clan, does it? 23 A: Totem is derived from the Ojibwe word 24 and clan approximates it, I would say, but, clan is not an 25 aboriginal term.

1 Q: Yes, no I understood that, but, I mean 2 the meaning of it, in the sense of, who are the members of 3 it, is exactly the same as when the word clan is used? 4 A: Well, clans aren't necessarily 5 matrilineal or patrilineal. I wouldn't say it's 6 identical, but, in common parlance they're used 7 interchangeably. 8 Q: Well, many people in this area, say 9 that they are members of a certain clan -- 10 A: Yes that would be -- 11 Q: -- is that -- that's the same as totem, 12 correct? 13 A: Yes. 14 Q: So in that sense, it has the same 15 meaning. 16 A: Yes. 17 Q: And sometimes it's said to be dodaim, 18 is that correct? 19 A: Yes -- 20 Q: It's -- it's translated with a 'd'? 21 A: Yes. 22 Q: And all those three (3) mean members of 23 a group that are descended patrilineally -- 24 A: Yes -- 25 Q: -- through fathers --

1 A: -- yes -- 2 Q: -- from the creation. 3 A: From an apical ancestor, that is the 4 ancestor at the peak or the apex; in the creation story 5 that I find most persuasive, it's the ancestors are in 6 fact, the first great animals, yes. 7 Q: And in accordance with that creation 8 story then, these people -- people who are members of 9 say, the Beaver clan -- 10 A: Yes -- 11 Q: -- are people who, if you go back with 12 fathers, all the way back -- 13 A: Yes -- 14 Q: -- they emanate from the beaver in the 15 creation story? 16 A: Yes, that's my understanding. 17 Q: I'm sorry? 18 A: That is my understanding. That's how 19 I -- 20 Q: Thank you. That's now mine too. 21 Now, other words that are used, are band and tribe. 22 A: Yes. 23 Q: And what is your understanding, let's 24 say, first of the word band, as you use it? 25 A: Band has a meaning under the Indian

1 Act. 2 Q: Yes. 3 A: The French people -- the French 4 recordmakers did not use the word, band. They used the 5 word nation, nation in English. And sometimes they would 6 use the word, petit-nation; small nation. 7 So band is a term that started being used 8 more in the British period. When the French used the 9 term, band, it referred to a band of warriors, a war 10 party. It didn't refer to a particular village or a 11 particular community. 12 In the modern parlance though, it's under 13 the Indian Act and the way the Indian Department has 14 organized communities, band is synonymous now with First 15 Nation. 16 Q: Yes, we have the formal definition 17 under the Indian Act -- 18 A: Yes -- yes -- 19 Q: -- which was obviously imposed by the 20 British. But, then the word is also used to mean a group 21 that lived together, correct? 22 A: Yes, sometimes they would refer to them 23 as hunting -- in the English record as a hunting band; 24 could be a hunting family or a group. 25 I understand you could have many, many

1 people who belong to Beaver people, and they might go off 2 with different heads of families into different 3 territories, so they -- you could speak of a small 4 aggregation of a totemic group on sort of a family basis, 5 as being a band. 6 I would refer to the whole totemic group as 7 a tribe, and then in the early record and -- and then you 8 could the -- there's some treaties for instance, in Lake 9 Simcoe, Lake Huron area, where they say the Reindeer 10 Tribe, the Catfish Tribe, the Snake Tribe, of the Chippewa 11 Nation. 12 So, I see the Chippewa, Ottawa Potawatomi 13 being a national designation. The totemic groups 14 corresponding to a tribal, and then the bands possibly 15 being smaller aggregations. 16 Q: Now, you have done research in this 17 specific area right; about totemic identity? 18 A: Yes. 19 Q: And you have your own theories about 20 that which are somewhat in the process of being created 21 and expanded by you, correct? 22 A: Yes. 23 Q: But, they're not necessarily accepted 24 by everyone who studies these matters, right? 25 A: There have been very little

1 comprehensive study of totemic identity. The material 2 that's out there now is very, very small literature. But 3 my thesis has not yet been published so it -- it would be 4 fair to say that there are other academics who take a 5 different view of totemic identity. 6 Q: Yes. And particularly, you seem to 7 more strongly than other people advocate the view that 8 people lived in groups determined by totemic identity, 9 right? 10 A: Only in the very early contact period, 11 and that's a view shared by Hickerson, Harold -- I think 12 it's Harold Hickerson who published in this area in the 13 1960's. 14 His view was that the early organization of 15 the communities along the shore were continued -- 16 contiguous but discrete uni-clan territories and we see 17 them move to multi-clan villages with the disruption 18 introduced by disease and warfare with -- during the 19 French period after about 1640, 1650. 20 Q: I see. So the inter-mixing of clans, 21 in your -- you view -- 22 A: They don't inter-mix in the sense of - 23 - people still maintain their totemic identity, but it's 24 clear by the 1840's, sorry the 1640's, for instance at 25 Sault St. Marie the Jesuits report that there are the

1 Sauteurs there and that's their native country, but 2 they've been joined by four (4) other groups, the 3 Nolquetim (phonetic) and the Merrimeg (phonetic); I forget 4 the fourth one now. 5 So, it's clear even as early as the 1640's 6 that other people were moving into villages, you were 7 getting multi clan villages but the evidence is that 8 within a multi- clan village there were separate quadrants 9 and all the Beavers would live together, all the Eagles 10 would live together. 11 At Jay (phonetic) there's a -- a son of a 12 Sidinac (phonetic) who was educated at Upper Canada 13 College; he published two (2) articles in the 1860's and 14 he -- he says that these villages, when you went into a 15 village that had more than one (1) totem represented, 16 there were markers that would indicate when you were among 17 the Beaver people, among the Otter people, among the Snake 18 people. 19 Q: Do you have your report in front of 20 you? 21 A: Yes. 22 Q: Could -- thank you. Could you turn to 23 page 18, please. 24 A: Yes. 25 Q: If you look more or less right in the

1 middle of the page towards the end of the large paragraph, 2 you wrote: 3 "Later document --" 4 I presume it should have been documents, 5 "-- bear out the intermixing of totemic 6 groups within localized bands." 7 Didn't you write that? 8 A: Yes, and that's at a later period 9 again, so the -- in the very first period there appear to 10 be discrete uni-clan territories, then you get a mixing, 11 that is you get more than one (1) clan represented in a 12 village but they live separately. 13 But by the 1800's and I didn't -- I hadn't 14 seen this before, or at least written about it until I did 15 this research which is then we start to see the -- a 16 multitude of clans in one (1) band which is -- and it 17 actually wasn't what I had been expecting to see. 18 But when we -- I'll -- I'll go to one (1) 19 of the documents that influenced my opinion on this. This 20 is the 1845 census and you'll see the Aux Sable Indians 21 appear to be divided into two (2) bands, Wapagus' band and 22 Quakegwun's band. 23 And as I said when I first saw this 24 document, I knew that Wapagus was Caribou and I knew that 25 Quakegwun was Beaver and I would have anticipated that the

1 men listed under Wapagus' band would all be Beaver -- or 2 would all be Baribou and the men under Quakegwun's band 3 would be Beaver. 4 But when I compared this document with the 5 variety of signed signatures, it's clear that there were 6 Caribous following the Beaver chief and Beavers following 7 the Caribou chief. 8 So that -- that -- is as a result of, in 9 this period of time the -- the early 1800's that I see 10 this mixing. 11 Q: Sorry, I didn't understand before. I 12 -- I used the word "inter-mixing" and you objected that I 13 was quoting from your document, I thought. 14 A: Yes, it depends at what period of 15 time, that's all. 16 Q: Yes. 17 A: They are very time sensitive so in the 18 1600's you see one thing and in the 1700's you see another 19 and when I'm talking here about the 1790's -- I'm sorry, 20 the 1830's and 40's then we see this -- this third phase. 21 Q: But by then, there certainly is some 22 intermixing? 23 A: Yes. But -- 24 Q: But -- 25 A: -- we started talking about the

1 discrete contiguous territories. I don't want to make 2 that jump immediately, because I think it's important to 3 understand how these things evolve. 4 Q: Now, on the other hand, I understand 5 that, and correct me if I'm wrong, please, that there was 6 a prohibition, I believe you testified, against marrying 7 within the clan or within the totemic identity, right? 8 A: That's right, but it did not persist 9 in my experience in southern Ontario, into the twentieth 10 century. 11 Q: So, there had to be some intermixing 12 of clans, or else the people would have died out, right? 13 A: No -- no, there are still Chippewa 14 people in the United States who are very aware of their 15 clan identity. And not all families in my community know 16 their clan. I mean, there's been a -- the influence of 17 missionization, and so, among Chippewas in -- that I'm -- 18 that I know in Wisconsin and -- and Michigan, they still 19 practise exogamy. 20 But I don't see evidence that exogamy is 21 being practised in the twentieth century in the 22 communities that I'm familiar with the southern Ontario. 23 Q: Yes, but let's go back then, say to 24 1800 -- 25 A: Yes.

1 Q: -- when it was practised, -- 2 A: Yes. 3 Q: -- right? And so then there's members 4 of a Caribou Clan, -- 5 A: Yes. 6 Q: -- and members of a Beaver Clan. 7 A: Yes. 8 Q: They can't marry within their clans, 9 so they have to intermix, at least in the sense of taking 10 spouses from the other clans, right? 11 A: Right, but they -- but they -- that 12 doesn't change the clan. If a Caribou woman marries a 13 Beaver man -- 14 Q: Yes. 15 A: -- the children are Beaver, but she's 16 Caribou; that's not an intermixing. 17 Q: Yes. So, there would -- but there 18 would always be at least a number of men and women who 19 identified themselves as from different clans in any 20 group, right? 21 A: By definition, -- 22 Q: By definition? 23 A: Yes, yes. There was intermarriage -- 24 Q: Yes. 25 A: -- and then marriage had to be outside

1 of your clan. 2 Q: Yes. 3 A: Yes. But that's not an intermixing 4 of -- 5 Q: Well, whatever term you want to use. 6 A: Right. 7 Q: There would be a number of people -- 8 there certainly had to be at least two (2) clans 9 represented in any group if you count the women. 10 A: If you count the women, that's right. 11 But the terms that were used for the tribes in the 12 beginning referred to the men. So they -- you would say 13 the Beaver people went with the term that meant the 14 Beaver men, and in Beaver country there were Beaver men, 15 and all the women were not Beavers. 16 Q: Yes. Sorry, in a Beaver country, you 17 say? 18 A: Yes. 19 Q: In a -- in a whole area? How did the 20 men meet -- meet more women then? 21 A: They travelled to fishing camps in the 22 summer and had feasts and married the people they met 23 there. 24 Q: And you're saying that invariably, the 25 woman went back to the man's clan, rather than conversely?

1 A: Not invariably. The practise was 2 patrilocal, which is that the women followed them, went to 3 their husband's community. That practice does not persist 4 through the late eighteenth and early nineteenth century. 5 Q: And so, if that practice was not 6 followed, that would lead to a true intermixing of clans 7 then, right? 8 A: You -- you could have -- 9 Q: If the -- if the husband went to the 10 woman's clan -- 11 A: Yes. 12 Q: -- is that not right? 13 A: I -- we're having difficulty, I guess, 14 with the word intermixing. But people don't change their 15 clan, that's a very important point -- 16 Q: Yes. 17 A: -- and that's why I use it as a stable 18 ethnic identifier. So, a person who is Caribou would be 19 descended from Caribous all the way back. 20 Q: Yes. 21 A: He -- he would have -- a Caribou man 22 could -- would have an Otter mother, perhaps, he could 23 have had a Beaver grandmother. They would recognize all 24 these relatives, but they would be Caribou, and Caribous 25 date Caribou --

1 Q: Yes. 2 A: -- in the patriline. 3 Q: But some may, at least by the middle 4 1800's, the groups that people lived in, whether we call 5 them bands or tribes, included generally a variety of clan 6 members -- 7 A: Yes. 8 Q: -- that... 9 A: Yes. That's right, but that's not 10 intermixing of the clan. What you have there is a band 11 with many clans represented. 12 Q: Yes. Okay, yes. I'm sorry, I'm not 13 familiar with the nuances, obviously, of the technical 14 language that you use. But I just did want to make that 15 point -- 16 A: Yes. 17 Q: -- that we would -- the groups of 18 people living together would invariably be -- 19 A: Yes. 20 Q: -- people from several clans, at 21 least. 22 A: Yes, these -- these -- on the slide 23 here, sorry, -- 24 Q: Sorry? 25 A: I'm sorry. On the slide we have up

1 here, for instance, these are all Sable Indians, and we 2 see Caribou, Beaver, Pike, Bear and Eagle. So, there are 3 several totemic groups represented in this localized 4 group. 5 Q: Yes. 6 A: Yes. So, we're probably not 7 disagreeing. I just want to keep the totemic lines clear, 8 because, for me that's very important for continuity 9 purposes. 10 Q: Yes, but it's important to my purpose 11 to clarify that, as far as groups living together, 12 included people of several clans. It wasn't just by 13 clans, certainly at least by the mid 1800's. 14 A: That's right. 15 Q: Now, do you know the clans of the 16 currents residence of Kettle and Stony Point? 17 A: No, sir. I've had a few people speak 18 to me since I've been here and suggest -- or identify 19 themselves by their dodaim. But, before that, I -- I 20 don't think I'd met anyone before that at this point in 21 time to tell me. 22 Q: And did you -- a number of Potawatomi 23 came to this area around -- in the 1800's? 24 A: Yes. 25 Q: Did you investigate their clan

1 structure? 2 A: No. The -- there were Potawatomi at 3 Detroit and their totemic identity shows up on the 1764 4 treat and on the 1790 treaty so, I can speak to those. 5 But, I haven't seen any documents bearing totemic 6 signatures of the people who arrived in the 1830's or 7 40's. 8 Q: So, your conclusion is based on totemic 9 identity, to use the word that you prefer, did not include 10 considering the Potawatomi who came in 18 -- whatever? 11 A: I'm not aware that any of the totemic 12 signatures I've seen on the documents before 1845, that 13 any of those people were Potawatomi that arrived after 14 1830. So, the documents that I looked at were in RG-10, I 15 was not -- it's not that I wasn't looking, or that I was 16 disregarding documents that might have been signed by 17 Potawatomi, but, they weren't -- they didn't appear in the 18 correspondence that I considered. 19 My -- my grandfather is Potawatomi from 20 Wisconsin and his clan is Marten. So, I know something of 21 Potawatomi clan; I'm a Marten. 22 Q: Yes. 23 A: But, none of the records I looked at 24 specifically said, these people are Potawatomi, they refer 25 to people as Aux Sable Indians. So, perhaps there's

1 someone on this list that may be Potawatomi, but, it's not 2 indicated in the record. 3 Q: Now, how -- how did you distinguish 4 between people who were Aux Sable Indians or --as they 5 were called in the documents -- 6 A: Yes -- 7 Q: -- or Kettle Point -- or Aux Sable 8 Indians truly in the sense of living at the River Aux 9 Sable, or Kettle Point Indians? 10 A: There's no reference to Kettle Point 11 Indians, in the period I looked at. The only reference to 12 Kettle Point appears on the map and the treaty. 13 Q: Yes. So, you didn't -- you didn't know 14 where they were located then, the people that you studied? 15 A: The people that I studied were located 16 north of Sarnia, and they identified as the River Aux 17 Sable Indians. And they're identified consistently in the 18 record as the River Aux Sable Indians. 19 Q: Now, in your testimony yesterday, you 20 said, in part, that it's been known for awhile that there 21 were two chiefs at Aux Sable -- 22 A: Yes -- 23 Q: -- I believe you were referring to the 24 time of the slide that you had just on the board earlier. 25 A: This --

1 Q: The chiefs are divided into two bands, 2 Wapagus' band and Quak -- I'm sorry I can't pronounce 3 that -- 4 A: Quakegwan's -- Quakegwan's Band. 5 Q: Then you said, when you first found 6 this return, it was before I had the other documents that 7 show the totemic identity, and so my first intuition was 8 that Wapagus' Band would be Caribou because Wapagus is 9 Caribou, and the other band would be Beaver because he's 10 Beaver. 11 And it was then easier to jump, 12 potentially, to the conclusion that while these bands are 13 different totemic identity and maybe they also live -- 14 have different totemic identity and maybe they also live 15 in different places -- 16 A: Yes. 17 Q: -- then you went on to explain that on 18 the basis of your further study of totemic identity, you 19 concluded that the community doesn't divide up on totemic 20 lines? 21 A: It wasn't my study of totemic identity, 22 it was my study of the documents that were identified as 23 Aux Sable documents. 24 I found this return first, in my first week 25 of research --

1 Q: Yes. 2 A: -- and I knew from the treaty documents 3 that Wapagus was caribou and Quakegwan was Beaver. 4 Q: Right -- 5 A: And so because I know today and as a 6 result of the treaty that there were two separate reserves 7 it occurred -- my first impression was, well maybe Wapagus 8 lives in one area with his people and Quakegwan is in 9 another area with is people. 10 But, then I went on to find a number of 11 documents that had the totemic signatures and compared 12 them. And as I say, Wapagus had Beavers in his people 13 identified in Wapagus' band some of them were Beavers, 14 they weren't all Caribou and people identified in 15 Quakegwan's band were not all Beavers, some of them were 16 Caribou. 17 So, that broke down that assumption for me. 18 Not on my theoretical understanding of a totemic identity, 19 but, based on the actual records I was finding of the 20 marks of these people. 21 Q: So, you found that the two groups had 22 similar totemic identifies dispersed between them -- 23 distributed between then, so in that sense -- 24 A: Not all the Caribou followed Wapagus or 25 were identified as part of his band and not all the

1 Beavers were identified as part of Quakegwan's band. 2 Q: You might say there was an intermixing 3 of the clans. 4 A: Yes, you might. 5 Q: But, I won't go there again. 6 A: You're a multi-clan, not an 7 intermixing. 8 Q: Yes. In talking -- that was given to 9 us as one of the overheads that Ms. Holmes is going to 10 show, but, I couldn't find it in the documents anywhere, I 11 don't know. 12 But, it's entitled, 'Chippewas in 1845', 13 and it's a -- I don't know if it's a - it's not the same 14 looking document as you had, it's a typed document. And 15 in that document -- 16 A: Could I see that document, sir, I 17 don't -- 18 MR. PETER ROSENTHAL: Yes. Sorry, I wasn't 19 -- with your permission may I approach the witness. I 20 wasn't able to find this in any of the materials -- I 21 don't know if I -- other than the handouts that we were 22 given. 23 MR. DERRY MILLAR: Yes, this is Joan from 24 Joan Holmes' report and it's the work that Joan Holmes 25 will be testifying.

1 MR. PETER ROSENTHAL: Right. But it -- 2 it -- 3 MS. DARLENE JOHNSTON: I haven't seen any 4 of Joan's documents with the exception of one. 5 MR. PETER ROSENTHAL: Is it available in -- 6 in our CD? 7 MR. DERRY MILLAR: You'll have to ask Joan 8 Holmes. We can give this witness a copy of this document. 9 This isn't this witnesses document. You'll have to ask 10 Joan Holmes about the source of this document. But, we 11 can show this document to the witness. 12 MR. PETER ROSENTHAL: Thank you, very much, 13 Mr. Millar. 14 15 (BRIEF PAUSE) 16 17 MR. PETER ROSENTHAL: This document is -- 18 I will ask Ms. Holmes, unless Mr. Millar does it for me 19 where she got this document from. But, it's entitled, the 20 subtitle is 'Chippewas in 1845'. 21 And you'll note that it -- 22 COMMISSIONER SIDNEY LINDEN: There is no -- 23 we don't have this document yet. So none of us have seen 24 it, I haven't seen it either. But it's in Joan Holmes' 25 material.

1 MR. PETER ROSENTHAL: No, but, we've all 2 seen it in this -- 3 MS. DARLENE JOHNSTON: It's over document - 4 - my guess, this is the 1845 census that you'll see, the 5 numbers -- if the numbers add up, can somebody do the 6 math? 7 We have Wapagus' band, Quakegwan's band, 8 it's 1845 census -- 9 MR. DERRY MILLAR: Commissioner, this is a 10 PowerPoint presentation that was created by Ms. Holmes for 11 -- to assist in her presentation. 12 COMMISSIONER SIDNEY LINDEN: Right. 13 MR. DERRY MILLAR: These are not -- there 14 may be documents in the PowerPoint presentation that came 15 from somewhere else. This document, just from its face 16 looks to me that it was created by Ms. Holmes, for part 17 of her -- 18 COMMISSIONER SIDNEY LINDEN: Presentation- 19 MR. DERRY MILLAR: -- presentation that 20 will have source documents behind it. 21 COMMISSIONER SIDNEY LINDEN: So, it's 22 important for her to explain how it was created? 23 MR. DERRY MILLAR: She'll have to explain 24 how she created it. But -- but, My Friend, is asking this 25 witness is there a document like this or asking us. This

1 was created by Ms. Holmes for her presentation. 2 COMMISSIONER SIDNEY LINDEN: All right, 3 understood. 4 MR. PETER ROSENTHAL: I just want to ask 5 one question that flows from this document, if I may, and 6 we will have it properly identified by Ms. Holmes, as to 7 the source of it when she comes. 8 MR. PETER ROSENTHAL: But, you'll note that 9 the sub-title and all My Friends do have a copy, but, it's 10 not easily available because it's not numbered, the 11 overheads. But, if you flip through to the document that 12 says, 'early administration' parenthesis 'continued' on 13 the top, looking like this -- if you wish to find it. 14 It's in Joan Holmes' overheads, rather than 15 Professor Johnston's overheads. Sorry for that 16 interruption, but, -- 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: Probably, Professor Johnston, you have 21 glanced at the document and you know what I'm about to ask 22 you, right? 23 A: No. 24 Q: Well -- 25 MR. DERRY MILLAR: She's probably not

1 clairvoyant. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: Well, okay, it says Chippewas in 1845, 5 and then it says Sarnia and it has a bar graph next to it, 6 Sable, Quaykigioun and I really apologize to all My 7 Friends, I'm terrible, I can't even say my own name 8 properly. 9 And then one band forty-nine (49), Wapagus' 10 band thirty-five (35), Kettle Point twenty-seven (27), 11 Walpole Island, others, right? 12 A: This is a census that I have from 1845 13 which was prepared by William Jones who was a 14 superintendent at Sarnia. He was responsible for the Aux 15 Sable Indians and the Sarnia Indians and he indicates at 16 Wapagus' band and Quakegwun's band that I -- I saw no 17 reference to Kettle Point. 18 And this document must be from another 19 source. 20 Q: Yes, okay, well I -- I'll reserve 21 further questions for Ms. Holmes, obviously. 22 But you wrote in your report that there's 23 no suggestion that any particular group or family had 24 other than a collective claim to both reserves and my 25 clients --

37
  1                 A:   In the documents, sir, that I
  2  considered I -- I considered a limited set of documents,
  3  relying primarily on ones that were -- gave indicators of
  4  totemic identity or at least names which -- to which I
  5  could match totemic identity.
  6                 Q:   Yes.  Well, I -- I'm going to ask you
  7  to consider your findings in light of some other --
  8                 A:   All right.
  9                 Q:   -- matters, and maybe re-consider --
 10                 A:   Yes. 
 11                 Q:   -- the suggestion and maybe --
 12                 A:   If you can provide me with the
 13  documents.
 14                 Q:   -- consider that your initial
 15  impression, before you noticed that the totemic identities
 16  were the same in the two (2) groups, that they might be
 17  separate, you're initial feeling that they might be
 18  separate, might indeed have been accurate.
 19                 And let -- let me suggest some things that
 20  you might consider in that respect.  Now --
 21                 A:   If you can provide me with the
 22  documents.
 23                 Q:   I'm sorry?
 24                 A:   If you can provide me with the
 25  documents --

1 Q: Of course, no, yeah, no -- these -- 2 these I -- these are document numbers that I can reflect. 3 But first maybe, before I look at some other documents, 4 certainly in the Treaty of 1827 there were two (2) 5 separate reserves created -- 6 A: Yes. 7 Q: -- Reserve Number 43 at Stoney Point-- 8 A: Yeah. 9 Q: And Reserve Number 44 at Kettle Point, 10 right? 11 A: Those names -- the numbers do not -- 12 those numbers post-date the Treaty. 13 Q: I see. But they -- 14 A: Those numbers were not used to 15 identify the -- 16 Q: Right. 17 A: -- the reserves and the name Kettle 18 Point does appear, the name Stoney Point does not appear. 19 It -- it's simply known as a reserve at the mouth of the 20 River Aux Sable. 21 Q: In any event, there were two (2) 22 separate reserves, surely? 23 A: Yes. 24 Q: And they ultimately were called 25 Reserve Number 43 and Reserve Number 44?

1 A: I can't testify to that. 2 Q: Okay. 3 A: I know the Government has a system of 4 numbering reserves, so our reserve is Number 27, so it's 5 possible those are the numbers, but I can't confirm 6 because I haven't seen any documentation. 7 Q: Right, okay. I should like to turn to 8 a document that I do have a document number for, and that 9 -- you have the CD available to you, do you? Professor 10 Johnston; it's Document 4000086. 11 I appreciate that you didn't review this 12 document because it's from a period after your period but, 13 in my view, it might shed light on what happened during 14 your period as well. 15 A: I'm afraid I don't have Supertext 16 loaded. This will take a minute. 17 Q: I -- I do have a -- I can give you a 18 hard copy. I prefer hard copies myself. I'll give you a 19 hard copy if I may, but other counsel -- 20 MR. DERRY MILLAR: Can I just see it? 21 MR. PETER ROSENTHAL: Yeah, sorry. 22 MR. DERRY MILLAR: I take it this is from 23 Ms. Holmes' group of documents? 24 MR. PETER ROSENTHAL: Right. Well, the 25 important -- important thing is the printed version, I

1 guess. 2 THE WITNESS: I prefer to see the 3 manuscript. 4 MR. DERRY MILLAR: Perhaps, your Honour -- 5 Commissioner, it might be a good point to -- to simply ask 6 a question and reiterate a problem, to try to solve a 7 problem. 8 What we ask in our rules, that if people 9 are going to use documents for a witness that they provide 10 us with either the documents or the document numbers so 11 that we can deal with them. 12 And -- and it doesn't matter if it's an 13 expert or an aboriginal -- a person from the aboriginal 14 community or a police officer or a civil servant or a 15 former politician, the same rules apply to every one, that 16 when people are going to cross-examine, and have documents 17 that they give Commission copies of those documents before 18 the witness goes into the box so that they -- we have them 19 and we can organize. 20 But -- and I'd like to make sure that 21 everybody does that. And our rules provide for that. 22 MR. PETER ROSENTHAL: Well excuse me, Mr. 23 Millar. The rules say that I should provide you with any 24 documents that I'm going to use. These documents were 25 provided to me by you. I didn't think I had to provide

1 them to you again. And I didn't realize that I had to 2 more -- more specifically specify which documents I'm 3 going to use in any particular one. But -- but I shall do 4 that in the future. 5 MR. DERRY MILLAR: Well. The parties 6 shall, at the earliest opportunity, provide Comm -- 7 Commission Counsel with any documents they intend to file 8 as exhibits or otherwise refer to during the Hearings, in 9 any event, shall provide such documents no later than 10 twenty-four (24) hours. 11 The intent is to give notice and if it's 12 not clear, we'll make it clear. But it, that is the 13 intent. 14 COMMISSIONER SIDNEY LINDEN: The idea is 15 so everybody will have access to it while Counsel is 16 questioning the witness about that topic. 17 MR. PETER ROSENTHAL: Absolutely, and 18 everybody does because they were all given it the same 19 time I was by Commission. 20 THE WITNESS: Excuse me -- 21 MR. PETER ROSENTHAL: In any event, I 22 won't belabour the point. And if, I'm going to give you a 23 hard copy if you would prefer to look at that, I 24 understand that preference because I have that similar 25 one.

1 THE WITNESS: And a preference for the 2 manuscript -- 3 MR. DERRY MILLAR: She doesn't have -- she 4 doesn't have the documents. She does not have Ms. Holmes' 5 documents. 6 THE WITNESS: I do not. I haven't seen 7 them, so -- 8 MR. PETER ROSENTHAL: So, I certainly have 9 to provide you with a hard copy. 10 MR. DERRY MILLAR: But I would like you to 11 -- do you have the original document from which this 12 transcription is made? 13 MR. PETER ROSENTHAL: Yes. 14 COMMISSIONER SIDNEY LINDEN: All the 15 parties have all the documents, Mr. Rosenthal -- 16 MR. PETER ROSENTHAL: Yes. 17 COMMISSIONER SIDNEY LINDEN: -- but the 18 witnesses don't. 19 MR. PETER ROSENTHAL: I'm sorry, that -- 20 that's why I asked her if she had the same CD as we did, 21 and I misunderstood her answer. In any event -- 22 THE WITNESS: I do have the CD but I 23 haven't used it and I haven't seen Mr. Holmes' documents. 24 MR. PETER ROSENTHAL: Yeah, anyway the 25 document is there for you, and for Counsel, again, it's

1 4000086. And if you look at that portion of the record, 2 you'll see there are two (2) copies; there's a typed 3 version, which is a transcript of the written version, and 4 I was glad that it was typed, but as far as I could tell, 5 it's pretty accurate typing, but perhaps, maybe not. 6 So, I'll give the witness a moment, if I 7 may, to review the document. 8 COMMISSIONER SIDNEY LINDEN: Do you have 9 an extra hard copy of that document or just the one? 10 MR. PETER ROSENTHAL: Would -- would you 11 like a hard copy, sir? 12 COMMISSIONER SIDNEY LINDEN: I'm not using 13 my Supertext. 14 15 (BRIEF PAUSE) 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: Have you had time to -- sufficient 19 time to examine it, or -- or shall I wait. I'm happy to 20 wait if you wish. 21 A: Few more minutes. 22 Q: Certainly. 23 COMMISSIONER SIDNEY LINDEN: Sorry, I 24 can't hear you, Mr. Falconer. 25 MR. PETER ROSENTHAL: I've done it several

1 times; it's 4000086. 2 MR. JULIAN FALCONER: I was trying -- 3 THE WITNESS: This transcript reads 4 4000411. 5 MR. DERRY MILLAR: Commissioner, perhaps we 6 could have a break. The power is gone, I think more 7 than -- 8 COMMISSIONER SIDNEY LINDEN: In the back 9 part of the room? 10 MR. DERRY MILLAR: Well this part of the 11 room too. So -- so, perhaps we could take a few minutes 12 break. 13 COMMISSIONER SIDNEY LINDEN: Let's -- 14 let's take a short break and see if we can fix up the 15 technical glitch. 16 THE REGISTRAR: This Inquiry will recess 17 for a few minutes. 18 19 --- Upon recessing at 9:21 a.m. 20 --- Upon resuming at 10:40 a.m. 21 22 THE REGISTRAR: This Inquiry is now 23 resumed. 24 COMMISSIONER SIDNEY LINDEN: We'll just 25 wait a minute for everybody to get in. The glitch has

1 been fixed now, has it? Is everybody wired up, more or 2 less? 3 MR. DERRY MILLAR: For the time being. 4 COMMISSIONER SIDNEY LINDEN: Okay, let's 5 keep or fingers crossed. I don't see Mr. Falconer. Is 6 he -- 7 MR. DERRY MILLAR: There he is. 8 COMMISSIONER SIDNEY LINDEN: There he is, 9 there. Okay. 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: So, Mr. Commissioner, I was about to, 13 with a little difficulty, I'm glad we've solved all the 14 difficulties, ask Professor Johnston some questions about 15 Document 4000086. And that's the typed version, there is 16 also a -- 17 A: Yes. 18 Q: -- a handwritten version. Now, and I 19 appreciate that you haven't reviewed this document, but, 20 of course as a historian you know that subsequent things 21 can shed light on earlier things, sometimes, right? 22 A: Sometimes. 23 Q: Sorry? 24 A: Yes, sometimes. 25 Q: Now, this is a document dated November

1 18, 1894? 2 A: Yes. 3 Q: And it's a -- a letter from a 4 barrister and solicitor to Superintendent General, 5 Department of Indian Affairs. 6 A: Where do you see barrister and 7 solicitor -- oh, I see, at the top. Okay, thank you. 8 Q: Now, it's obviously in the middle of 9 some conversation, it says: 10 "There seems to be some misunderstanding 11 in this. The Indians at these points do 12 not wish the reserves surveyed." 13 A: Do you know which reserve they're 14 referring to? 15 Q: Yes. At -- well -- do you know? 16 A: No, sir. 17 Q: Okay, well -- 18 A: This is partly -- 19 Q: But I'm not -- I'm not interested in 20 the survey at this point, so -- 21 A: Well the document has to be taken in 22 context. It's part of File 151900. There could be 23 hundreds of pages in relation -- 24 Q: Yes. 25 A: -- to this document.

1 Q: Right, but I'm -- 2 A: So I -- 3 Q: -- just interested -- I'm just 4 interested in the file and if -- if you could bear with 5 me. 6 MR. DERRY MILLAR: Well, perhaps -- 7 perhaps the re-line does say "re-survey of reserves at 8 Kettle and Stoney Point" and that's the only reference on 9 it, Commissioner. 10 MR. PETER ROSENTHAL: Yes. I'm not 11 concerned with the survey aspect though, so, if I could 12 turn to what I am concerned with. 13 THE WITNESS: All right. It just says 14 "reserve" in the singular, that's all, that I was 15 concerned about. 16 MR. PETER ROSENTHAL: Yes. 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: It says, on the third line: 20 "To the Council" 21 Presumably it should be to of the Council, 22 but -- 23 A: Yes. 24 Q: But, 25 "To the Council, Chief Johnston of

1 Stoney Point and Louis Cloud chief at 2 Kettle Point both say that they never 3 draw up any such resolution and they are 4 two (2) of the Council." 5 Now what I'm interested in is not the 6 resolution or the survey, but the indication of Chief 7 Johnston of Stoney Point, and Lewis Cloud, Chief at Kettle 8 Point -- 9 A: Yes. 10 Q: Would you agree that that suggests 11 that there were separate chiefs at the two (2) locations? 12 A: In 1890, yes. 13 Q: In 1894. 14 A: 1894. 15 Q: Yes. As to the past, we don't know 16 for sure. 17 A: Well as to the past, all evidence was 18 that they were called River Aux Sable Indians and that 19 they were living -- the latest document shows they were 20 living on the western reserve -- 21 Q: Yes. 22 A: -- which is now known as Kettle Point. 23 Q: What document is that, that shows they 24 were living on the western reserve? 25 A: It's the document from William Jones

1 where there's a suggestion they'll sell the eastern 2 reserve if they can get money -- 3 Q: I'm sorry, my hearing is very bad, 4 sorry? 5 A: It'll take me a moment to find it in 6 my document list, but it's a document I -- I produced 7 yesterday and discussed. 8 Q: Okay, perhaps we could wait until the 9 break on that. But may -- may I draw your attention to 10 some other aspects of this document -- 11 A: Yes. 12 Q: -- and see if it assists you in 13 looking back at the meaning of some earlier events. So, 14 there are -- there's a -- a -- you agree there are 15 separate chiefs at the two (2) locations as of 1894? As 16 to how early that started, we don't know from this 17 document, obviously, right? 18 A: Well, it says there's a chief but what 19 -- what -- a chief in what context? I mean these chiefs 20 are both council members of the Sarnia council -- 21 Q: Yes. 22 A: It's not clear to me that the one (1) 23 chief only has authority for one (1) area and the other 24 for the other because at this point they're still one (1) 25 band under the Indian administration at Sarnia.

1 Q: Well it says Lewis Cloud, chief at 2 Kettle Point, right? 3 A: He's a chief, he's at Kettle Point. 4 MR. DERRY MILLAR: It say's -- no, it says 5 Chief of Stoney Point. 6 MR. PETER ROSENTHAL: It says chief of 7 Stoney Point and Lewis Cloud, Chief at Kettle Point. 8 THE WITNESS: Yes. 9 MR. PETER ROSENTHAL: And I wonder why My 10 Friend rose? 11 MR. DERRY MILLAR: Because if you're going 12 to read it, read it correctly. 13 MR. PETER ROSENTHAL: I did read it 14 correctly, Mr. Millar. I read Chief at Kettle Point. 15 16 CONTINUED BY MR. PETER ROSENTHAL: 17 Q: Now, I would also draw your attention 18 to some other aspects of this. Going down in the document 19 towards the end: 20 "I enclose you a document signed by 21 twenty-three (23) of the members of 22 these bands" 23 In plural, right? Do you see that part? 24 A: I'm trying to find it in the 25 manuscript, to be sure that's --

1 Q: Yes. 2 A: -- what -- twenty-three (23) members 3 ...No, it's not clear to me in the manuscript that that's 4 what it says? 5 Q: It's not clear to you that it's 6 plural? 7 A: No. Do you have the manuscript in 8 front of you? 9 Q: I -- I gave my copy to the 10 Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Sorry, I'm 12 reading it. 13 MR. PETER ROSENTHAL: I had anticipated 14 working from this -- 15 COMMISSIONER SIDNEY LINDEN: Isn't as 16 clear in the original as it is in the typed copy? 17 THE WITNESS: I don't even see the word 18 'band'. I see capital 'B' and I see capital 'B' followed 19 by a vowel followed by a consonant but ... 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: Okay, well in the version that Mr. 23 Louis accessing it could be expanded and we can examine 24 this. Perhaps I'll leave that for Ms. -- Holmes, too, to 25 see if the word -- if the 'S' is there, okay?

1 COMMISSIONER SIDNEY LINDEN: Who prepared 2 the typed copy? Who prepared the typed copy? Do we know 3 that? 4 MR. PETER ROSENTHAL: Presumably Ms. Jones 5 -- Ms. Holmes. 6 COMMISSIONER SIDNEY LINDEN: I don't know. 7 I don't know. 8 MS. SUSAN VELLA: The transcripts from 9 that selection of documents came from Ms. Holmes' office. 10 COMMISSIONER SIDNEY LINDEN: Okay, that's 11 fine. 12 MR. PETER ROSENTHAL: So, again, I'll 13 reserve that for Ms. Holmes, if I may. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: Sorry, Professor Johnston, I -- 17 A: Yes, I'm still looking at the word. 18 Sorry. 19 Q: Okay. But -- and this -- is it okay 20 with you, I'll reserve that to Ms. Jones -- 21 A: Yes. 22 Q: I'm sorry, Ms. Holmes. Excuse me. 23 Now, also I'd asked you to note, it says: 24 "The members of these bands; these 25 Stoney Point and Kettle Point..."

1 Now, "Stoney" is spelt there with an E-Y; 2 is that correct? 3 COMMISSIONER SIDNEY LINDEN: It also says 4 "illegible". 5 THE WITNESS: Yes. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: After -- yeah. I'm sorry? 9 A: Yes. I did -- 10 Q: And there's something illegible 11 afterward as well? 12 A: It's spelt with an 'E' at the top too 13 in the reference line. 14 Q: With an 'E' at the top too. Have you 15 become aware of the fact that there are two (2) different 16 spellings of Stoney as in Stoney Point? 17 A: No, sir, Stoney Point didn't occur in 18 the records that I looked at. 19 Q: I see. Okay. So you're not aware of 20 that until I just pointed it out to you right now? 21 A: Right but it doesn't surprise me. 22 I've seen six (6) different spellings of Aux Sable. 23 Q: Well, we'll save that for argument. 24 Now, this document though would suggest that -- would 25 reinforce the notion, it's not proof positive, that

1 certainly by 1894 there were two (2) separate bands, 2 right? 3 A: No. There's a -- there's a chief 4 living at each reserve -- at each point. I can't -- 5 there's one (1) band. This document refers to one (1) 6 band, "Councils of the band that is at Sarnia". 7 And under the Indian Act, my understanding 8 is they were one (1) band for administrative purposes with 9 Sarnia and subsequently separated. 10 Q: As far as the Department of Indian 11 Affairs was concerned, at this point they were one (1) 12 band with Sarnia? 13 A: Yes, and it says "the band". There's 14 -- there's references that are singular here. 15 Q: Yes. Now, as far -- this suggests 16 that as far as they were concerned, they were two (2) 17 separate groups living at two (2) different locations with 18 two (2) different chiefs? 19 A: No. They're members of a council and 20 there's a chief of Stoney and a chief at Kettle, that's 21 all that it says. 22 Q: Okay. 23 A: I'm not saying that that's not the 24 case. But on the basis of this document I can't form an 25 opinion about that. And on the basis of my research there

1 -- there was no reference to Stoney Point Band or Kettle 2 Point Band in any of the documentation I saw. There was 3 reference to Kettle Point as a place. 4 COMMISSIONER SIDNEY LINDEN: You're going 5 to move on now, Mr. Rosenthal? 6 MR. PETER ROSENTHAL: I have -- 7 COMMISSIONER SIDNEY LINDEN: Fine. 8 MR. DERRY MILLAR: I don't know if Mr. 9 Rosenthal asked about the document that Ms. Holmes said 10 that she would find. It's 4000473; I believe, is the 11 document that she was referring to. 12 MS. SUSAN VELLA: It's a letter dated May 13 13, 1839 and it's Inquiry Document Number 4000473. 14 MR. PETER ROSENTHAL: I'm sorry. I -- I'm 15 not aware of what this document discussion is about. I 16 wasn't informed of it during my cross-examination. 17 MS. SUSAN VELLA: No, this -- 18 MR. DERRY MILLAR: Mr. Rosenthal just 19 asked her to identify the document that she's used to -- 20 for the Western Reserve. 21 COMMISSIONER SIDNEY LINDEN: Right. 22 Right. 23 MR. DERRY MILLAR: He asked her the 24 questions and she said she would have to find it. We 25 found the answer --

1 COMMISSIONER SIDNEY LINDEN: That's the 2 question. Okay. 3 MR. DERRY MILLAR: -- for Mr. Rosenthal to 4 ask the witness. 5 COMMISSIONER SIDNEY LINDEN: Okay. Mr. 6 Rosenthal's going to move on now to another point. 7 MR. PETER ROSENTHAL: Yes, thank you. I'm 8 concerned about the atmosphere from Commission Counsel, I 9 must say. In any event, I am going to move on. 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: So, to another document that I just 13 appraised Commission Counsel about - because I wasn't 14 aware that we had to appraise specific documents when we 15 had been given them by Commission Counsel - but there is a 16 document that is 4000504 and in for Counsel in -- in our 17 records that's a twelve (12) page document and this page 18 that I'm going to be referring to is page 11 of 12, I 19 believe, as the records go but it's printed on the right, 20 page 9. And I -- I gave Commission Counsel copies, thank 21 you, to give to the witness, thank you. 22 MR. DERRY MILLAR: And now, again, this is 23 from Ms. Holmes' group of documents. 24 COMMISSIONER SIDNEY LINDEN: I understand. 25

1 MR. PETER ROSENTHAL: Do I -- do you have 2 a copy, Commissioner? 3 COMMISSIONER SIDNEY LINDEN: No, I don't 4 have it in front of me. 5 6 (BRIEF PAUSE) 7 8 COMMISSIONER SIDNEY LINDEN: Thank you. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: Now, this document purports to list 12 the former chiefs of the band, 1826 to 1995, and it's from 13 a document as you can see on the bottom, by a Victor 14 Gulewitsch - I apologize to him as well, pronouncing his 15 name incorrectly - called the Chippewas of Kettle and 16 Stony Point, a brief history. 17 I believe, there's another document in our 18 brief that has the same list of traditional chiefs and 19 chief councillors and so on. 20 Now, I just wanted to point out to you and 21 suggest to you that this might again, go towards the 22 suggestion that they were living separately, the two 23 groups, Kettle and Stony Point, under whatever name. 24 If you look at the left-hand column, it 25 says, traditional chiefs and it says, Oshawnoo in 1826.

1 And also Wapagus in 1826, correct; two chiefs 2 simultaneously? 3 A: Yes. 4 Q: And then it says -- 5 A: But there's no indication of where he 6 gets the documents, the chieftainship of Oshanaman 7 (phonetic) in 1826. I have a record of Oshanaman was a 8 chief in 1841 -- 9 Q: Yes. 10 A: -- and I've seen in Burwell's field 11 notes, he draws a picture of a Oshanaman's house and 12 Walpole in 1826, perhaps that's what he's referring to. 13 In the documentation that accompanies that sketch, I'm 14 going from memory, but, I think Counsel can provide it, it 15 says that he claimed to be a Chief by intermarriage. 16 But, Wawanosh says that he's a chief 17 because Ironside made him a chief, but, he doesn't -- that 18 can be introduced. We -- so, we know because his -- his 19 residence was on the reserve, the western reserve as 20 surveyed by Burwell. 21 We know he was living on the western 22 reserve and we don't know where Wapagus was living. 23 Q: Yes. Now, you said you have no 24 indication in documents you saw and you've explained to 25 us, I believe and you make it clearer in your report, that

1 you're relying exclusively on documents produced by non- 2 First Nations people, right? 3 A: No. 4 Q: Well, First Nations documents are you 5 relying on? 6 A: Anything signed with a dodaim by a 7 First Nations person, I consider a document. 8 Q: But, you -- you explained that you're 9 not fluent enough to consider oral history with respect to 10 these matters, right? 11 A: I consider all history that I've seen 12 transcribed, that's right. 13 Q: And you -- you've been relying for your 14 indication as to who was chief and who was where and 15 there, and so on, on documents prepared by either Jesuits 16 or people representing the Department of Indian Affairs, 17 right? 18 A: No, the documents were written; that is 19 put down -- transcribed, by people who could speak and 20 write English. But, the speeches I consider to be, the 21 speeches of the Chiefs and the signatures, when a Chief 22 signs a treaty or a document then I consider that they've 23 made that record. 24 Q: Yes. 25 A: You might have the secretary type the

1 record for you, but, if you sign it, sir, it's your 2 record. 3 Q: In any event, this -- this document 4 suggests and maybe oral history might help to conform, 5 that there were two (2) chiefs in 1826, right? 6 A: Yes. 7 Q: Two (2) chiefs in 1860, right? 8 A: They have six (6) chiefs here, in this 9 document. 10 Q: Yes? But this is talking about Kettle 11 and Stony Point? 12 A: No, it's not. 13 Q: Well, you have to look at the entire 14 document to -- 15 A: Well, this document comes from 1995; 16 the records that I've seen there's no chief specified as 17 the chief of Kettle Point. Oshanaman was living on Kettle 18 Point, we don't know where Wapagus was living. 19 Q: Yes. Okay. You don't have a strong 20 position on this matter, do you? 21 A: Well, I -- I formed the opinion on the 22 basis of the records I saw, sir. And you're asking me now 23 whether I'm changing that opinion. And at the moment, I'm 24 not. I will not -- I can't speak to who was chief in '94, 25 there may have been two (2) chiefs.

1 COMMISSIONER SIDNEY LINDEN: It seems 2 that's an unfair comment, Mr. Rosenthal. A witness is 3 testifying on the basis of the documents. It seems to me 4 you have a strong point. 5 MR. PETER ROSENTHAL: We do, sir. 6 COMMISSIONER SIDNEY LINDEN: Which is 7 fair -- 8 MR. PETER ROSENTHAL: Yes -- 9 COMMISSIONER SIDNEY LINDEN: -- but, I 10 don't see that the witness is testifying on the basis of 11 the documents and her expertise. She isn't having the 12 leap of faith perhaps that you would like her to have, 13 but, she's testifying on the basis of her experience and 14 her expertise. 15 MR. PETER ROSENTHAL: Thank you. I shall 16 move on. I do -- I am representing a strong point of view 17 of my clients. 18 COMMISSIONER SIDNEY LINDEN: I understand 19 that. That's why you're entitled to cross-examine. 20 THE WITNESS: Actually, sir, I'm related to 21 a Oshanaman and I'm aware of the oral tradition that 22 relates into D'Kumsee (phonetic). All I'm saying is that 23 in the documents that I considered, he does not show up as 24 a chief, until this document from 1840. He gets referred 25 to as a chief by Burwell in 1826.

1 2 CONTINUED BY MR. PETER ROSENTHAL: 3 Q: Thank you. Now, I just want to 4 quickly just point out that this document also lists a 5 number of chief councillors, right? 6 A: Yes. 7 Q: And it has two (2) of them in 1872 and 8 -- and then some single years and then two (2) in 1899, 9 two (2) in 1907 and so on. And then there's another 10 column on the right hand side, elected chiefs since 11 independence. 12 I would put it to you that it means since 13 independence from the Sarnia band and -- 14 A: We can't speak to that, sir. 15 Q: I'm sorry? 16 A: I can't speak to that. 17 Q: You can't speak to that, okay. Well - 18 - no, I'll go on if I may. 19 MR. DERRY MILLAR: She can't -- in 20 fairness to the witness, My Friend puts a document and 21 says, elected chiefs -- chiefs since independence. Who 22 knows what the author of this document refers to as 23 independence? 24 It -- and that's the objection that -- that 25 -- that's the unfairness in the question. No-one knows

1 what the author of this document referred to as 2 independence and -- 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 MR. PETER ROSENTHAL: I --I -- Mr. 5 Commissioner, I don't think it's proper for your Counsel 6 to rise at that point. I -- I demurred. I thought she 7 might be able to tell from the context as I was 8 suggesting. When she said, no, I pass -- I was to move on 9 and -- 10 COMMISSIONER SIDNEY LINDEN: Fine. 11 MR. PETER ROSENTHAL: -- it was an unfair 12 rising, in my submission, sir. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 Carry on, Mr. Rosenthal. 15 MR. PETER ROSENTHAL: Thank you. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: There is another document that I, over 19 the break, appraised Commission Counsel I would be 20 referring to and I believe she gave a copy to the witness. 21 MR. DERRY MILLAR: No, no. 22 MR. PETER ROSENTHAL: This is a -- this 23 one unfortunately I didn't make enough copies of for you, 24 sir. 25 COMMISSIONER SIDNEY LINDEN: That's fine.

1 MR. PETER ROSENTHAL: I -- I didn't 2 realise that I'd have this document problem, obviously. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 MR. PETER ROSENTHAL: But for My Friends 5 who do have the CD available, it's at 4000069. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: And this -- I appreciate, Professor 9 Johnston, this is very difficult to read in -- in this 10 form and if you blow it up on the -- 11 A: I can read it, it's fine, don't worry. 12 Q: You can read it okay? Oh, good. 13 You're much better than I. 14 Q: This is at -- this is a document of 16 15 May, 1891, evidently, in the upper right hand corner from 16 Department of Indian Affairs, correct? 17 A: 1691 -- May 16 -- no, 1891, yes. 18 Q: Yes. And so a couple of years before 19 the -- the other document of 1894 that I referred you to. 20 MR. DERRY MILLAR: I just -- My Friend -- 21 I apologize for interrupting My Friend, but My Friend gave 22 the number 400060 -- 23 MR. PETER ROSENTHAL: 069. 24 MR. DERRY MILLAR: 069. 25 MR. PETER ROSENTHAL: I believe that's

1 where I found it. 2 MR. DERRY MILLAR: And -- 3 MR. PETER ROSENTHAL: It may be just part 4 of -- some of these things are only part of the record, 5 but -- 6 MR. DERRY MILLAR: It's part of the 7 seventeen (17) page document, sir. 8 MR. PETER ROSENTHAL: Yes. That's the 9 difficulty, I'm sorry. 10 MR. DERRY MILLAR: Do you know which page, 11 Mr. Rosenthal? 12 MR. PETER ROSENTHAL: I -- I'm sorry, I 13 don't. I apologise for my clumsiness then, sir. I didn't 14 realize exactly the situation I'd be in with respect to 15 these documents. In future, I'll -- I understand much 16 better the situation -- 17 COMMISSIONER SIDNEY LINDEN: I don't 18 think -- 19 THE WITNESS: Excuse me. This is not a 20 complete document, though. They have the first page but 21 I'm afraid that it might continue onto another page. 22 COMMISSIONER SIDNEY LINDEN: Counsel, just 23 explained -- 24 MR. PETER ROSENTHAL: I maybe -- I -- 25 COMMISSIONER SIDNEY LINDEN: -- a

1 seventeen (17) page document. 2 THE WITNESS: Okay. 3 COMMISSIONER SIDNEY LINDEN: I understand 4 it's a seventeen (17) page document. 5 THE WITNESS: Okay. 6 MR. PETER ROSENTHAL: Yes, but it's -- 7 COMMISSIONER SIDNEY LINDEN: You just have 8 one (1) page of it. 9 THE WITNESS: Okay, thank you. 10 MR. PETER ROSENTHAL: But the seventeen 11 (17) pages means a number of sub-documents. This is a 12 letter that's -- 13 THE WITNESS: It's not a complete letter, 14 sir. It continues onto the next page. 15 MR. PETER ROSENTHAL: I'm sorry? 16 THE WITNESS: I think it continues onto 17 the second page at least. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: That -- that may be -- 21 A: The -- 22 Q: That -- that may be, but maybe -- in 23 any event, I'm just interested in the first phrase in that 24 letter, okay, so. 25 MR. DERRY MILLAR: You can't take -- if

1 you're going to ask a question about the letter, it's fair 2 to ask a question about the letter, but you've got to give 3 her the whole letter. 4 And we can make arrangements to try to copy 5 it or -- or let her look at it, but in fairness to the 6 witness, if it's one (1) page of a letter, My Friend can 7 ask the questions he wants but the witness is entitled to 8 look at the whole letter. 9 COMMISSIONER SIDNEY LINDEN: I presume 10 you're going to ask all these questions of Ms. Holmes when 11 she testifies, but you also want to ask them of Ms. 12 Johnston? 13 MR. PETER ROSENTHAL: Yes. May I explain, 14 Mr. Commissioner, and again I -- with respect, I think 15 your Counsel rose much too quickly. Because the question 16 I'm going to ask doesn't depend, and I don't think Ms. 17 Johnston sorry -- Professor Johnston would feel it depends 18 on the context. 19 If she does, of course -- 20 THE WITNESS: Sir, I wouldn't give an 21 opinion without reading the full document, I'm sorry. 22 MR. PETER ROSENTHAL: I'm sorry? 23 THE WITNESS: I wouldn't give an opinion 24 without reading the full document. 25 MR. PETER ROSENTHAL: Well, you don't even

1 know the question, yet -- 2 THE WITNESS: Just as a practice, as a 3 historian, I never make a conclusion before I've read the 4 whole document. 5 MR. PETER ROSENTHAL: Okay. Well, then I 6 would request that Commission Counsel prepare it in 7 whatever appropriate form is required over the break and 8 I'll move on. 9 10 (BRIEF PAUSE) 11 12 COMMISSIONER SIDNEY LINDEN: Okay, Mr. 13 Rosenthal. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: Now, Professor Johnston? 17 A: Yes, I was trying to find it in 18 Supertext, but, I -- I haven't used this -- 19 Q: I'm sorry, I'm going to move on and 20 Commission Counsel is going to prepare it in a way that he 21 considers adequate, so that I can't be criticized. 22 COMMISSIONER SIDNEY LINDEN: Okay. Carry 23 on, Mr. Rosenthal. 24 25 CONTINUED BY MR. PETER ROSENTHAL:

1 Q: Now, you have written right, that in 2 general, First Nations people have strong attachments to 3 their reserves? 4 A: Yes. 5 Q: And there's no question that there were 6 two (2) separate reserves, one at Kettle Point and one at 7 Stony Point, right? 8 A: Yes. But, in the period I was looking 9 at, I only had one record indicating where people were 10 living when they moved onto the reserve. 11 Q: Yes. Now, I understand then -- I know 12 you'll correct me if I'm wrong, that traditionally, say 13 before contact and maybe the early times of contact, at 14 least until it became regulated by the Department of 15 Indian Affairs, that groups of First Nations people, 16 sometimes are separated into other groups and so on, 17 informally, formally; they formed separate bands or 18 whatever the appropriate word is from time to time, right? 19 And it wasn't necessarily a big matter. 20 They would -- some people would just go and live in a 21 separate location, right? 22 A: You see that with Quakegwan, he had 23 been living at Sarnia and he moved to Aux Sable, yes. 24 Q: But, in general, the -- the lifestyle 25 was such, that it included groups of people living

1 together and then separating into sub-groups that went off 2 from time to time? 3 A: Yes. 4 5 (BRIEF PAUSE) 6 7 Q: Now, on page 21, of your report -- 8 9 (BRIEF PAUSE) 10 A: Yes? 11 Q: -- you write as follows, beginning in 12 the middle of the page: 13 "Although the archival record provides 14 considerable detail concerning the names 15 and totems of the Aux Sable Indians, 16 there is no indication that they 17 distinguished among themselves with 18 regard to the ownership of the two 19 reserves. One document makes the joint 20 ownership of the two reserves clear. In 21 1840 in an effort to obtain government 22 assistance for building houses and 23 barns, the Aux Sable Chiefs considered 24 selling the reserve re-suited to 25 agricultural. William Jones reported

1 that the Indians of the River Aux Sable, 2 wished the Government to purchase the 3 eastern reserve at that place and to 4 appropriate the money to making 5 improvements for them on the western 6 reservation where they are settled. It 7 appears the soil of the eastern reserve 8 is not good. But there is some valuable 9 pine timber on it." 10 Right? 11 A: Yes. 12 Q: So, this is the one document that you 13 found that makes the joint ownership of the two reserves 14 clear? 15 A: Yes. Plus the treaty. 16 Q: Sorry? 17 A: The treaty. 18 Q: Apart from the treaty? 19 A: No, the treaty and then this document. 20 All the treaty documentation made for reserves, it didn't 21 say the reserve -- the reserves for a little or for any 22 particular group. 23 Q: I see. Well, would you agree that the 24 group at Sarnia, constituted a different band or tribe, 25 than from the groups at Kettle and Stoney Point?

1 A: Not initially, they signed the same 2 treaty. 3 Q: They signed the same treaty, but, did 4 they live at a separate location and regard themselves as 5 a separate group? 6 A: The people moved from Sarnia to Aux 7 Sable and it didn't create any problem. The numbers 8 doubled; there were thirty -six (36) people at Aux Sable 9 in 1833, by the 40's there were seventy-six (76) and they 10 all called themselves Aux Sable Indians but, some of them 11 had lived at Sarnia. So at that time people felt free to 12 move between the reserves. 13 Q: Yes, well, in general, you explained 14 before people moved quite a lot in those times, right? 15 A: Hmm hmm. 16 Q: But, there's no question is there, that 17 the people at Sarnia considered themselves part of a 18 separate group from those at River Aux Sable; isn't that 19 clear? 20 A: No, Quakegwan was at Sarnia and he 21 moved to River Aux Sable and he was called a River Aux 22 Sable Indian when he was living at River Aux Sable. 23 Q: I see. So, what you say about, no 24 distinction between Kettle and Stoney Point, you would 25 say, applies to Kettle, Stoney, Sarnia?

1 A: With respect to ownership of the 2 reserves, sir, the reserves -- all four (4) reserves were 3 signed by people who signed the Treaty. The Treaty itself 4 does not distinguish between the bands-- 5 Q: Yes -- 6 A: -- and the people moved -- there's 7 evidence of people moving from Sarnia to Sable, without 8 creating any disruption. 9 Q: Yes? 10 A: I think if there was -- if there was a 11 suggestion that only the Sarnia Indians could live at 12 Sarnia, then that doubling of the Aux Sable population in 13 the 1840 --early 1840's might have been of some problem. 14 Q: Was there any indication, in your view, 15 that the people at Sarnia distinguished themselves with 16 respect to ownership of the reserve, from the people at 17 River Aux Sable? 18 A: No. 19 Q: No. I see. So it's all one (1) big 20 group? 21 A: Sarnia -- people at Sarnia, some people 22 at Sarnia did not want to move, it's very clear. They 23 wanted Wawanosh to move to River Aux Sable. There was no 24 suggestion that he couldn't because he didn't own the 25 land.

1 What he said was, I don't want to go there 2 because my relatives are buried here and we won't be able 3 to farm up there. 4 So, I don't see a distinction in terms of 5 the ownership of the reserves. People had preferences for 6 where they lived. 7 Q: Well, did they have a concept of 8 ownership that coincides or even approximates the way we 9 use that word? 10 A: Well, they took money for the purchase. 11 They signed the -- 12 Q: Sorry? 13 A: Yes, I think so. 14 Q: Ownership of land in the same way that 15 we think of it? 16 A: Well, they sold it, sir. There was a 17 purchase agreement. They believed it was their land. 18 They supervised it. They complained about trespass and 19 they ultimately sold it. 20 Now, not individual ownership, if that' 21 what you mean. But, they had a proprietary interest which 22 they protected and ultimately alienated. 23 Q: And didn't they -- after the reserves 24 were established have that interest in their own reserve? 25 A: There's no indication of that in the

1 record that I looked at. 2 Q: I see. And in general, there isn't 3 that indication for First Nations people living in this 4 part of the world, that they -- 5 A: Sir, you would have to be careful about 6 the time-frames. When the treaty was signed the four (4) 7 reserves are reserved to those Chippewa Indians. Today at 8 Cape Croker people at Cape Croker think Cape Croker 9 belongs to the Cape Croker Indians and not to the Saugeen 10 Indians. 11 But, if you look to the words of the 12 Treaty, those reserves are reserved to the group that 13 signed the Treaty. 14 Q: Now you, I started to and in fact, I 15 did read from your report at page 21, about this one (1) 16 document -- 17 A: Yes -- 18 Q: -- this document is by a William Jones? 19 A: Yes. 20 Q: Who is from the Department of Indian 21 Affairs at the time? 22 A: He was an Indian Agent, yes. 23 Q: Indian Agent. And you told us 24 yesterday, no the first day of your testimony, when using 25 these European authored documents, there's always concerns

1 around buyers, concerns around perspective, you have to 2 understand whose making the record, why they're making the 3 record, what language they speak and so on. 4 There should be concerns about relying on 5 one (1) document like this, shouldn't there? 6 A: I haven't seen any indication that 7 Jones was not a reliable source. There are some people I 8 would consider not reliable. But, he's -- he says that 9 he's referring a request from the Indians and I see no 10 indication not to trust that. 11 Q: Now, this was in 1840, at the time that 12 they were -- they were still with Sarnia, right? 13 A: No. 14 Q: They weren't still with Sarnia? 15 A: Who are we speaking of, sir? 16 Q: The River Aux Sable was part of the 17 larger group still, right? 18 A: There were people living at the River 19 Aux Sable who were called the River Aux Sable Indians. 20 Q: Yes. But they were part of the band 21 that included -- included Sarnia at this time? 22 A: They were part -- William Jones was 23 responsible for the people living at Sarnia and the River 24 Aux Sable. So, they were part of his superintendency. 25 They were in a territory that was covered by one (1)

1 treaty. 2 But, in his correspondence he distinguishes 3 between requests coming from Sarnia, correspondence coming 4 from Sarnia, petitions coming from Sarnia and the requests 5 correspondence and petitions coming from the River Aux 6 Sable. 7 Q: And you take it as probably an accurate 8 report when he writes: 9 "The Indians of the River Aux Sable 10 wished the Government to purchase the 11 eastern reserve at that place." 12 You would take that as an accurate report 13 that all the people living at Stoney Point, the eastern 14 reserve is what became known as Stoney Point, right? 15 A: The eastern reserve became known as 16 Stoney Point, yes. 17 Q: And that the people of the combined 18 group, at that point, wanted that reserve purchased? 19 A: Well, he -- he was told that if they 20 actually wanted it purchased, they would have to had a 21 surrender and then they all would have signed on. And 22 then we would have known, in fact, if there was a 23 consensus. 24 Q: Yes. 25 A: What I take it to be evidence of, is

1 that the people are settling for their farming purposes on 2 the western reserve. There are a number of documents 3 which deal with the request for more land. And it's clear 4 that they're trying to find money and land to improve 5 their life as farmers. 6 And so there's a suggestion, one suggestion 7 is possibly selling the eastern reserve. Another 8 suggestion is buying a hundred (100) acres in the Canada 9 Company tract, which a document I also referred to 10 yesterday. 11 MR. PETER ROSENTHAL: Mr. Commissioner, I 12 just looked at my watch and I believe it's about the time 13 that you -- 14 COMMISSIONER SIDNEY LINDEN: How much 15 longer are you going to be? 16 MR. PETER ROSENTHAL: About twenty (20) 17 minutes, twenty-five (25) minutes, I think. 18 COMMISSIONER SIDNEY LINDEN: I think we 19 should continue until you -- 20 MR. PETER ROSENTHAL: But, I do need the 21 document that My Friend was going to prepare as well. 22 COMMISSIONER SIDNEY LINDEN: I'm anxious to 23 keep -- keep moving. But, I -- 24 MR. PETER ROSENTHAL: Yeah, I will keep 25 moving.

1 COMMISSIONER SIDNEY LINDEN: Okay. That's 2 fine. We'll take a break then. It's twenty-five (25) 3 after, we'll take a break until twenty (20) to. 4 MR. DERRY MILLAR: Commissioner, what I -- 5 the only thing that I'll be able to do is, I'll get a copy 6 of the document so that I can show it to the witness, if 7 that's okay with Mr. Rosenthal, during the break. 8 MR. PETER ROSENTHAL: I think that's what - 9 - I think that's what he has in mind -- 10 MR. DERRY MILLAR: I won't be able to 11 produce physical copies because I don't have those 12 facilities here. But I can show the witness the whole 13 copy. 14 MR. PETER ROSENTHAL: I don't have anything 15 in mind. I thought -- I was doing as best as I could, I 16 just want the Commission to be satisfied. And if he's 17 satisfied, I'm satisfied -- the Commission Counsel. 18 MR. DERRY MILLAR: Thank you, Mr. 19 Rosenthal. 20 COMMISSIONER SIDNEY LINDEN: Thank you, Mr. 21 Rosenthal 22 THE REGISTRAR: All rise please. This 23 Inquiry will recess for fifteen (15) minutes. 24 25 --- Upon recessing at 11:24 a.m.

1 --- Upon resuming at 12:25 p.m. 2 3 THE REGISTRAR: This Inquiry is now 4 resumed. 5 MR. DERRY MILLAR: Commissioner, if I 6 might, Professor Johnston is still working on this 7 document. It's very difficult to read. And so what I'm 8 going to propose is that we break now for lunch. 9 But, before doing so, I wanted to apologize 10 to Mr. Rosenthal if, with respect to the issue about the 11 documents. We're all feeling our way along here. And I 12 was a little critical -- I was critical of Mr. Rosenthal 13 and the rules aren't as clear as -- as they might be. 14 And as we go along we'll get better and I 15 did wish to apologize to Mr. Rosenthal for the comments 16 that I made. 17 MR. PETER ROSENTHAL: Thank you, Mr. 18 Millar. 19 COMMISSIONER SIDNEY LINDEN: Thank you very 20 much. I'm sure we'll all get smoother as we go forward. 21 We were hoping -- we're all anxious to keep -- to keep 22 going too, all of us. Nobody wants to slow it down. But, 23 I do think we need to give Professor Johnston the time she 24 needs. 25 So, this is an appropriate time to break

1 for lunch. What do you say we go to two o'clock. 2 MR. DERRY MILLAR: Sure -- 3 COMMISSIONER SIDNEY LINDEN: Well, I'm just 4 thinking about Counsel, because they have to go out and 5 get something to eat. It's not -- 6 MR. DERRY MILLAR: Two o'clock -- 7 COMMISSIONER SIDNEY LINDEN: -- I think two 8 o'clock is about as much -- we'll now adjourn until two 9 o'clock, hopefully we will complete Professor Johnston 10 today. 11 Thank you. 12 THE REGISTRAR: All rise. This Inquiry 13 stands adjourned until two o'clock. 14 15 --- Upon recessing at 12:26 p.m. 16 --- Upon Resuming at 2:00 p.m. 17 18 THE REGISTRAR: This Inquiry is now 19 resumed. 20 MR. DERRY MILLAR: Commissioner, we're all 21 ready to go. What we've done, and I've provided to My 22 Friend, is created a text script of the document which is 23 4000069 and we provided you a copy and the witness has a 24 copy. 25 COMMISSIONER SIDNEY LINDEN: Okay, do you

1 want to carry on, Mr. Rosenthal? 2 MR. PETER ROSENTHAL: Thank you. Yes, 3 sir, I do. It's going to be anti-climactic what I do with 4 this document after all that effort and I apologize, if I 5 in any way suggested that effort to be undertaken. I'm 6 just going to ask about the very beginning. 7 But I want to put it back in context if I 8 could. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: Good afternoon, Professor Johnston. 12 A: Good afternoon. 13 Q: I want to put it back in the context 14 of, you recall that I had asked you about Document 15 4000086, which was a 1994 letter from a George Moncrieff, 16 that, then the point -- the part that I was interested in 17 was, it says: 18 "Two (2) -- two (2) of the council, 19 Chief Johnson -- Johnston of Stoney 20 Point and Louis Cloud, Chief at Kettle 21 Point both say," 22 And so on; do you recall that document? 23 A: Yes. 24 Q: And you had properly pointed out that 25 all that establishes is that in 1894, at the time of the

1 document, there seemed to be separate Chiefs at those two 2 locations; right? 3 A: Yes. 4 Q: Now, the only reason that I wanted to 5 look at the other Document, 4000069, which we now have 6 typed out at great length, is, just for the first phrase 7 there, which says: 8 "With reference to the Petition from 9 Chiefs John Johnston and Louis Cloud and 10 other Indians of the Kettle Point and 11 River Aux Sable or Stoney Point 12 Reserves." 13 Now, this document is dated in 1891, so 14 would you agree that this pushes it back at least three 15 (3) years then, as to when they had two (2) separate 16 Chiefs, although, in this document it's not clear exactly 17 who's where, but it's the same named Chiefs; right? 18 A: It -- it's -- I agree that two (2) 19 Chiefs are named in this document from 1891, but I 20 understood that your question was directed to the issue, 21 in my report, at page twenty-one (21), where I provide the 22 opinion that the -- the joint ownership of the two (2) 23 reserves is clear. 24 And I'd like to read, actually, the balance 25 of this report because I think it does confirm my opinion,

1 that even as late as 1891, when there were two (2) named 2 Chiefs, the ownership of the Reserves is a matter of joint 3 ownership. 4 Q: So, you want to read the entire 5 report? 6 A: Yes, please. That's why we 7 transcribed it, because I think it speaks directly to the 8 issue, although I did not see this report in preparation 9 of my report. 10 And so, it's in Supertext, if Counsel -- 11 other Counsel have it in front of them; it's a seventeen 12 (17) page hand-written memorandum from a Mr. Vankoughnet, 13 who's the Deputy Superintendent of Indian Affairs, to the 14 Minister of Indian Affairs, dated the 16th of May, 1891. 15 It's styled as a memorandum, and at the first page it 16 reads: 17 "With reference to the petition from 18 Chiefs John Johnston and Louis Cloud and 19 other Indians of the Kettle Point and 20 River Aux Sable or Stoney Point 21 Reserves, to be separated from their 22 confreres [term for brothers; french 23 term] who occupy the reserve near Sarnia 24 and to have their reserve at Kettle 25 Point and River Aux Sable allotted

1 [their reserves, I'm sorry] at Kettle 2 Point and River Aux Sable allotted to 3 themselves, as well as to have their 4 shares of the monies at the credit of 5 the tribe which is formerly known as the 6 Chippewas of Chenail Ecarte and St. 7 Clair and which, [I turn to page 2 of 8 the document now] comprise the three (3) 9 bands above referred to placed at their 10 credit in an independent account or 11 accounts. The undersigned, [that's Mr. 12 Vankoughnet] has the honour to report 13 that the three (3) bands of Indians 14 comprehended in the tribe above 15 mentioned were parties to a treaty made 16 with the Crown in the year 1827 by which 17 they surrendered two million one hundred 18 and eighty-two thousand and forty-nine 19 (2,182,049) acres of land in what was 20 then known as the London and Western 21 Districts for an annuity of four 22 thousand four hundred dollars ($4,400) 23 and that under the provisions of the 24 said treaty to which the three (3) bands 25 were conjointly one (1) of the parties,

1 as before intimated, four (4) reserves 2 were set apart for their benefit, namely 3 at Sarnia, ten thousand two hundred and 4 eighty (10,280) acres, Kettle Point, two 5 thousand four hundred and forty-six 6 (2,446) acres, River Aux Sable two 7 thousand six hundred and fifty (2,650) 8 acres, Moore [That is Moore Township] 9 Two thousand five hundred and seventy- 10 five (2,575) acres. [Turn to page 3] The 11 last named reserve, [That is the Moore 12 reserve; another reserve in Moore 13 township] was subsequently surrendered 14 and the land sold for the benefit of a 15 portion of the community by mutual 16 consent. They having settled upon 17 Walpole Island in the River St. Clair. 18 A good deal of the land embraced in the 19 Sarnia reserve as at first allotted, has 20 also been surrendered and sold and the 21 money accruing therefrom has been placed 22 at the credit of the bands on the 23 Sarnia, Kettle Point and River Aux Sable 24 reserves in their joint account. 25 The total amount standing at their

1 credit being two hundred and nine 2 thousand, two hundred and twenty-two 3 dollars ($209,222) and the interest upon 4 this amount is nine thousand six hundred 5 and seventy dollars ($9,670) or about 6 twenty-one dollars and twenty cents 7 ($21.20) per capita of the three (3) 8 bands. 9 At a general council in the year 1836, 10 one (1) of the Indians interested in the 11 reserves and [we move to page 4] annuity 12 secured to them by the Treaty of 1827 13 above referred to, said Council being 14 held for the purpose of considering the 15 affairs of the community. They were -- 16 there were representatives from that 17 section thereof which as before stated, 18 had settled upon the Walpole Island 19 reserve, which was specially 20 appropriated as a future home for the 21 Indians after the conclusion of the War 22 of 1812 with the United States. 23 At this Council, a division of the 24 annuity and lands between the Walpole 25 Islanders and the three (3) other bands

1 settled on the Sarnia, Kettle Point and 2 River Aux Sable reserves was made. 3 The Walpole band agreeing to take one 4 thousand four hundred dollars ($1,400) 5 as their share of the annuity of the 6 four thousand four hundred dollars 7 ($4,400) as fixed by the treaty of 1827 8 and the small reserve in Moore Town 9 [sorry] in Moore. [turn to page 5] in 10 addition to Walpole Island. The Indians 11 composing the three (3) bands retained 12 the balance of the annuity, namely three 13 thousand dollars ($3,000) and their 14 reserves at Kettle Point, Rive Aux Sable 15 and Sarnia. 16 And these three (3) last bands have 17 since been treated by the department as 18 one (1) community, both as respects 19 their land and their monies. 20 It will be seen [sorry] It will thus be 21 seen that the lands as well as the funds 22 are the property in common of the three 23 (3) sections of the community and the 24 wish expressed by the Kettle Point and 25 River Aux Sable for s