Court File No. CV CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARCIA BROWN Moving Party/Plaintiff. - and -

Transcription

1 0 Court File No. CV CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARCIA BROWN Moving Party/Plaintiff - and - THE ATTORNEY GENERAL OF CANADA Responding Party/Defendant CROSS-EXAMINATION OF JANET ARMSTRONG (via videoconference) on her Affidavit sworn March 0,, held at the offices of ASAP Reporting Services Inc., Bay Street, Suite 00, Toronto, Ontario on Thursday, November, at 0:0 a.m. APPEARANCES: Jessica Braude on behalf of the Plaintiff Owen Young on behalf of the Defendant Michael Bader, Q.C. Alexander Hinds, Student-at-law (via videoconference) A.S.A.P. Reporting Services Inc. 0-0 Elgin Street 00- Bay Street Ottawa, Ontario KP L Toronto, Ontario MH R () - () -

2 INDEX PAGE SWORN: JANET ARMSTRONG CROSS-EXAMINATION BY MR. YOUNG RE-EXAMINATION BY MS. BRAUDE 0

3 0 Toronto, Ontario --- Upon commencing on Thursday, November, at 0:0 a.m. (Janet Armstrong appearing via videoconference) SWORN: JANET ARMSTRONG CROSS-EXAMINATION BY MR. YOUNG: Q. Thank you for coming, Dr. Armstrong, first of all. I thought that when we had the arrangement set up for Kelsey's it was a much better idea, but here we are. You are an expert for the Plaintiffs in this case; is that true? Q. All right. And as an expert, you swore an affidavit in the action on March 0th,? A. Yes, I swore an affidavit on March 0th. My copy is a little blurry, but I think it's March 0th,. Q. Yes. We confirm that at our end. Our copies are a little blurry too, but. A. Thank you. Q. And your affidavit contains an Exhibit A which is your curriculum vitae?

4 0 Q. It also contains an Exhibit B which is a report under the letterhead of Armstrong Historical Research? Q. And in addition to Exhibits A and B, the B is the report, there is an acknowledgement of an expert's duty that's at the very end of it. Q. Could you please pull that out in front of you? A. I don't have it here. Q. Well, I will ask you a couple of questions, Dr. Armstrong, and if you feel you need to see the document then please say so. All right? Q. But my questions are very general. You understand that as an expert in a proceeding like this, your duty is actually to the Court, not to either of the parties?

5 0 0 Q. And that your responsibility is to be as impartial as you reasonably can be, knowing that you are here for the benefit of the Court? Q. All right. Could I ask you to turn to your CV, it's Exhibit A to your affidavit. Q. Could I just look at the first page which deals with your education. You have a master of arts in political science; correct? Q. And you also did your PhD in political science? Q. Your master's thesis involved regional economic development, the Atlantic Canada opportunities agency? Q. And your doctoral thesis also had an economic bent, it appears, Canadian politics and public administration, the -- I am sorry. The dissertation was entitled "The

6 0 Political Economy of Native Marginalization: A Study of the Appropriation of Aboriginal Water Rights, the Case of the Mishkeegogamang First Nation"? Q. All right. But both seemed to have not only a political science direction but an economic aspect as well? A. Well I would call it political economy, which is slightly different. But, yes, I -- yes, I can agree it had an economic element. Q. Well I don't want to leave you hanging with that. How is the political economy slightly different? A. Well it's a study of how the two interact, how economics and politics interact with one another. It would be more -- the focus would be a little broader than say an economist who would study purely economic factors. Q. Okay, thank you. Your undergraduate degree was in a bachelor of education, but I understand that your focus was history and English? A. Let me just clarify. I

7 0 have a bachelor of arts and a bachelor of education. Q. Okay, yes -- A. So my bachelor of arts was in history and political science. Q. So the bachelor of arts was history and political science. The bachelor -- Q. -- the bachelor of education, history and English? Q. But both had an aspect of history? Q. Did that include instruction and training in historical research methodologies and in historiography? Q. So is it because you have that background that you have put yourself forward as an ethnohistorian? A. I am not calling myself an ethnohistorian. I consider myself a political scientist and historian.

8 0 Q. And historian? Q. And do the two blend in some way, your political science expertise and your historical training? The type of political science I practice relies upon historical information, umm, to inform it. Q. Okay. A. As opposed to statistics or numbers. Q. I see. And so is your training and the teaching that you have received in history essentially at the undergraduate level? A. I don't know, I guess formally, but, umm, in the doctorate, at the doctorate level I continued educating myself about historical method in order to properly conduct my thesis. Q. Was it that historical methodology that, training and that experience that you were bringing to bear in writing the report for this case? A. Combined with some years of experience, yes.

9 0 0 Q. Fair enough. Thank you. For purposes of the case, as I said, you prepared a report which is actually appended to your affidavit as Exhibit B. If you could have a look at Exhibit B, please? Q. Now I know, Dr. Armstrong, that the affidavit is dated March 0th,, but are you able to tell us when you were retained to prepare this report? A. I can't recall off the top of my head. Q. Even approximately, I am not nailing it down to a specific date. Let me put it this way, the season and the year. A. It was, umm, I'd say, I am just guessing, possibly six months prior to that, to writing the report, maybe five. Q. Okay. So that would take us back approximately into the fall or winter of? A. Yes, I believe so. Q. Okay, thank you. A. Actually, no, no, no.

10 0 0 Sorry, I am having trouble recalling but it was definitely the summer. It was definitely the summertime. Q. So the summer of? A. I believe so. Q. Okay. This is an approximation, you are not -- this isn't carved in stone. A. Right. Q. Okay. And the report itself, although the affidavit's dated March 0th, was the report also completed and signed March 0th,? Q. Thank you. A. Although it's very hard to see the date. Q. Understood. It seems to be clear at least it's March. A. Okay. 0 Q. We can all read "March" well. Again, but I guess my point is this, Doctor, it's the affidavit and the report are really prepared at the same time?

11 0 Q. Okay. It's not an old report attached to a new affidavit -- A. No. Q. It's a new report. Thank you. The topic of the report, which is Exhibit B, appears to be Treaty. Q. Treaty was made in 0? A. 0 and 0. And the adhesions were, Reporter Appeals BY MR. YOUNG: Q. Doctor, we are having a little technical problem. The adhesions were and 0, you said? Q. Okay. Could you tell us in general terms what the geographic scope of Treaty is? I am not asking you for a lawyer's description, but just generally the tract that it covers. A. It covers generally just

12 0 south of the Albany River in Northern Ontario. If you are including the adhesions, it goes all the way up to the shores of Hudson's Bay, and intercepts on the west with the boundary of Manitoba, and on the east with the shores of James Bay Hudson's Bay. Q. And on the south? A. On the south it's, it's hard to describe because the line goes jagged, like it's roughly on the -- it's just north of the Robinson -- Superior-Robinson Treaty area. So it's south of the Albany River, but not by much, and it's a jagged line. Q. Does it abut the Robinson-Huron and the Robinson-Superior Treaties? Q. Thank you. I take it from that description, that means that the entire Treaty tract for lies within the Province of Ontario, or at least the current Province of Ontario? Q. Are you able to tell us what indigenous groups were included within it? I see in the description it includes the Cree, for

13 0 example in the Treaty, the Cree and also the Ojibway. Would the Ojibway but what we would say Anishinaabe, now? 0 Q. So it's Anishinaabe and the Cree; is that correct? And as well Oji-Cree. People that self-identify as Oji-Cree, a mixture of the two. --- Reporter Appeals. BY MR. YOUNG: Q. Sorry a mix? A. A mixture of Cree and Ojibway. Q. Okay. Where are they located geographically, approximately? A. Well they would be south of the -- south of Hudson's Bay, sort of in the middle area. Q. Thank you. I take it from what little geography I can figure out, I am geographically challenged, Doctor, but that Treaty does not extend far enough south to include present day Temagami? A. No, Treaty does not

14 0 include Temagami. Q. Does it include Beaver House First Nation? Do you know where that's located? A. Yes, I do. And it does include Beaver House. Q. Thank you. A. That's the Kirkland Lake area. Q. Yes. Now turning from Treaty, have you done, carried out research, written reports or publications of any kind in respect of the other numbered treaties? A. I have written several reports on proportion of Treaty line within Ontario. Q. Yes. A. I have also done a report for Grand Council Treaty Number. And as you know, I have done a report for the Williams Treaties. --- Reporter Appeals. BY MR. YOUNG: Q. You were saying Grand

15 0 Council Treaty Number? Q. Yes. Again, sometimes if I stop you, Doctor, it's because we are having a technical problem, it's not because of your answer. We are having trouble hearing some of these clearly. The Williams Treaties are not part of the numbered Treaty series, though; is that correct? A. Correct. 0 Q. I was really just asking a numbered treaties for the moment. So we have Treaty and Treaty? Q. In respect of those, in respect of those treaties, have you prepared or examined any issues that were similar to what you were examining for purposes of preparing this report or were they on different subjects? A. They were on different subjects. I am not sure I understand your question. Q. Well this report appears

16 0 to be about hunting, trapping, fishing and gathering and the relationship with the land and culture; is that a fair overview? Q. And so -- Q. And so it has a particular focus. Were the reports on Treaties and different or were they on the same -- did they have the same focus? A. The report I wrote, one of the reports I wrote on Treaty discussed these topics although the primary focus may have been different, but I guess in all of the reports I deal with these topics. Q. The topics of hunting, trapping, fishing, gathering and the relationship with the land? A. And traditional lifestyle, yes. Q. Were those reports ever used in a court proceeding? A. Not to my knowledge. Q. Okay. Now I'd asked you about the numbered treaties and then I wanted to

17 0 turn to ask a similar question about pre-confederation treaties, at least in the th century. I know from what you said that you made -- you did do a report on the Williams Treaties. Q. Right. That's obviously post-confederation. So let's look at pre-confederation treaties, th century. Have you done reports or -- or done research and prepared reports on pre-confederation treaties lying within Ontario? A. I have done one report about the Robinson-Huron Treaty. Q. And did that have a similar focus, similar subject; that is, hunting, trapping, fishing, gathering relationship with the land? A. That would be part of it, yes. 0 Q. So this has been a subject of some interest of yours that extends beyond the boundaries of Treaty? Q. In this case, you were

18 0 asked a very specific question to prepare your report and the question is reproduced on the first page of your report. Now before I ask you about that particular question, I just wanted to give you an opportunity to refresh your memory and read it. Q. This is about cultural identity of First Nations children, and there is other aspects to the question; correct? Q. So when you were dealing with the other Treaties,,, and the Robinson-Huron Treaty, were you -- did your mandate or did your terms of reference for your research include anything remotely near this question? A. I am sorry, I didn't hear the last part of the question. Q. Did your terms of reference for those other Treaties, and and Robinson-Huron, include any question that was anywhere near what this question is about, protecting cultural identity of First Nations children?

19 A. Not in a direct fashion, 0 no. Q. The reason I ask, Doctor, is when you were asked this question, if you look at the question, it does not relate to Treaty specifically. Is that fair? A. Correct. Q. But yet you drew on your Treaty experience in order to answer it? A. Correct. Q. But you did not draw on your experience with Treaties, and Robinson-Huron in order to answer it? A. Correct. Q. What's the reason for that? A. Well there are two reasons basically. Number, with respect to Treaty, I have conducted many elder interviews over the past -some years and because of my -- because of that knowledge of the oral history, I felt that that would be most appropriate treaty to use as an example. Another reason was just

20 0 basically time issues. I had scheduling issues et cetera, and I was able to focus on Treaty in the hopes of illustrating my point. Q. So is part of the reason that you had a considerably greater familiarity with Treaty and its making and the body of archival and oral records relating to it? A. Yes, well the oral history in particular. 0 Q. Now if I could just take you to your report. I think you have the question now out in front of you. A. Um-hmm. Q. We will just look at the question for a moment because I want to make sure that we are using all of the terms in the same way. So, Doctor, I am not asking you to define these terms for my benefit, I am trying to make sure if I ask you how you used the term or how it informed your research that it's relating to how you used it. This isn't a test. This is a -- I just want to make sure I understand how you used it. Okay?

21 0 Q. So the part we will start with right at the beginning, here is the question. It says: "The duty of care claimed is that of the federal Crown protecting the cultural identity of First Nations children wherever placed as adopted or long-term foster children in order to preserve the 'core of their Indianness'."[as read] For purposes of that beginning, it includes the term "cultural identity". Was there a manner in which you defined that for your own purposes in order to inform and shape your research? A. Let me think about my answer. Q. Certainly. A. Yes, for purposes of my report and in order to address the question, cultural identity, in my mind involves Aboriginal world view and the values that go along with it

22 0 and I tried to, I tried to illustrate how the Aboriginal world view was inexorably linked to the land. So that's how I defined cultural identity. Q. So the Aboriginal world view necessarily suggests to me that it's a view held by the particular culture, its collective view, it's not something that each individual holds uniquely to themselves? A. Well I believe it's both. I mean, each individual holds it and then therefore the collective holds it. But it is a collective world view. Q. Or is it the other way around, Doctor, that the collective holds it and therefore each individual holds it? A. Yes, I believe it's that way. The collective holds it, therefore the individual holds it. Because it's taught. Q. Then as the first sentence of this question continues, it has this phrase in it, "in order to preserve the core of their Indianness". Did you have -- how did you interpret or understand the term "core of their Indianness" for purposes of informing your

23 research? 0 A. I interpreted that to mean the adherence, knowledge, and ability to practice the world view that I discuss. The cultural norms et cetera, the spiritual practices, et cetera. The way of living. Q. So is there a distinction -- and I am not trying to split hairs here, Doctor, I am trying to get your help. Is there a distinction between cultural identity which appears to be the view itself, and the core of Indianness which is the way of expressing, practicing the world view? A. I don't think I can answer that. Q. Is it just badly asked or is -- let's tease this out. Is there a better way to ask the question? A. A part of it is I am having trouble hearing, but. Q. That's fair. I was really trying to understand, Doctor, whether there is actually a difference in your mind between the concept cultural identity and core of Indianness. It's

24 0 clear from what you said that they are related, but I am trying to figure out the relationship between the two or if they really are alternative ways of saying the same thing. So that's the thrust of my question. A. I can only tell you that they are related, but I can't answer definitively. 0 Q. They are not the same thing, I take it? They are not just synonyms for one another? A. I can only tell you they are related. Q. Okay. And for purposes of your research, you considered them to be related? Q. All right. Let's turn to the rest of the question, if I could get you to put it in front of you. Q. It says: "Canada denies any such duty exists or ever existed under law. Are you aware of whether or

25 0 not there is any historical evidence of the Crown assuming control over the protection of the Indian/First Nations cultural identity? If there is such historical evidence, can you describe what is that evidence and what does it reasonably demonstrate?"[as read] So if we look at this, the rest of this part of the question, there is an expression "Crown assuming control over the protection". Can you tell us how this particular part of the question you were asked informed your research for the report? How did you, how did you treat that in terms of guiding your research? A. Yes, I approached that question, because my historical evidence couldn't exactly fit that wording, particularly the part about assuming control over, I was able to answer how the Crown assumed the role of protection because it would have been understood that, the treaty relationship would have been understood in

26 0 a different way than this question is worded. Q. Okay. And how would it have been understood in a different way than the question is worded? A. I believe the First Nations themselves would, would assert that they, their ability to control their cultural identity with the assistance in guardianship of the government, or the Crown, sorry. Q. And, I am sorry, their ability -- A. So -- Q. I apologize, I didn't mean to interrupt you. A. The First Nations themselves and the Crown would be playing a role in protecting cultural identity. Q. And your report clearly addresses the First Nations' perspective on this in terms of what they felt was the role of treaty and what they were seeking from treaty as a means of protecting their relationship with the land? Q. And by protecting their relationship with the land, they also protected

27 0 their access and use of resources, hunting, trapping, fishing, gathering and other resources that they extract from the land? A. As well as the way of life on the land. Q. Okay. And I think on one occasion you said "with the land", they live with the land? 00 Q. So then that takes us as a direct tie, as I understand your report, to cultural. That is, if you protect the land and the way of life on the land, then you have protected the culture? 0 Q. And that was what the First Nations were seeking to do? In Treaty? A. Among other things, yes. 0 Q. Yes. So we will look at that part of it, but are you table to take me to the parts of your report that demonstrate for us what the Crown was intending to do on the flip side of this agreement in terms of protecting the relationship with the land, access to the resources on the land and its use and, therefore,

28 0 Doctor, therefore, protect culture? A. I didn't hear those last words. 0 Q. I said, the last part because -- let me just start over so that you have got the whole question. As I understand your thesis, if they sought to protect or maintain their relationship with the land and its use including access to its resources and living with the land, therefore, since they were so inextricably tied together, they were protecting their culture; is that a fair statement of the thesis? A. With the assistance of the Crown, yes. 0 Q. All right. But they were seeking the assistance of the Crown. So now I am flipping to the -- there are two sides to this bargain in Treaty. Can you direct us to the parts of your report that deal with how the Crown saw this as a means of, and I am going back to your thesis, of protecting culture? A. Yes, I can. 0 Q. Thank you. A. For example, on page,

29 0 page, I am citing the Treaty Commissioners' report written after they have concluded the Treaty where they summarize what they had told the people they were agreeing to by signing the Treaty. The first point was that they were not to interfere with white men who might come into the country surveying, prospecting, hunting or in other occupations. Number, that they must respect the laws of the land in every particular. And, Number, that the Reserves were set apart for them in order that they might have a tract in which they could not be molested and where no white man have any claims. 0 Q. Before we leave that page, maybe this is the easy way to do it since we are on page, I believe it is. At least that's how I have it numbered here. The part that you were reading, Items,, appear on my page? 0 Q. Okay. Then you continue on: "It appears that the

30 0 0 Commissioners did not discuss what the term 'surrender' meant at any great length."[as read] And then I would ask you to pay particular attention to this, Doctor. "Or how the treaty might impact traditional Aboriginal culture in the future."[as read] What lead you to make that statement from your research? A. Because after reading the Commissioners' diaries in particular over again and reading the report, it struck me that there did not seem to be any lengthy discussion about the future, about how -- beyond the points I make in my report, about the assurances of the people to continue hunt, trap and fish and live as they and their forefathers had done and promises of protection and assistance -- 0 Q. Sorry, "the promises of protection and assistance". I don't want to interrupt your train of thought, Doctor, but can we flag that for coming back to where those are?

31 0 A. Yeah. For example, umm, I am looking at MacMartin's diary. 0 Q. Yes. Is that referenced in your report? 0 Q. Where, can you take us? A. For example on page 0, I am quoting what the Commissioners are saying at Marten's Falls. The Commissioners explain to them that: "They could hunt and fish as of old and they were not restricted as to territory, the Reserve being merely a home for them where no white man could interfere and trespass upon -- "[as read] Sorry, there is a missing word, an important word. " -- that the land was theirs forever, they gladly accepted the situation."[as read]

32 That's a quote from 0 MacMartin's diary. Q. That's certainly relating to the land and the use of -- maintaining the use of the land for hunting, trapping, fishing and gathering. But can I also ask you to help us with your comment that the Commissioners were dealing with protection and assistance for the First Nations? I don't see that in the paragraph that you read to us, but maybe you can help us tease it out. A. Well, if you look at pages and. Q. Okay. A. I am discussing what happened when the Commissioners arrived at Moose Factory, and I cite what Commissioner MacMartin recorded, the statement that they could follow their custom of hunting where they pleased, the area of land simply being set aside as their own on which no white man could trespass or enter upon without their permission. And then the reply of Fred Mark where he says they would be better cared for and

33 0 protected by the King, that they would obey his laws and be good and amenable subjects, that under the laws the children would be protected and properly educated. Q. Sorry, this is Fred Mark speaking in a quote that you have on page? Q. Fred Mark was one of the representatives of the signatory First Nations? Q. It's not a statement of the Commissioners? A. Well it's a reply after the Commissioners have spoken. So it would be an understanding of what was said. Q. Right, well that's kind of what I am driving at. I am trying to make sure we know that there are two sides to this. Fair enough? Is that fair? Q. And there is an Aboriginal perspective, which you have assisted us in understanding. And the Aboriginal perspective that you have assisted us in understanding, I would suggest, Doctor, is that their way of life

34 0 would continue after the treaty as they were seeking to do? Q. And because, if I understand your thesis, their way of life would be continuing, that meant, to them, their culture, their relationship with the land would be continuing? A. Right. Q. Now I am trying to look at the Commissioners, what the Commissioners said. So before we look at what the Commissioners said, Fred Mark, as you have quoted him on page, I would suggest certainly assists us in understanding the Aboriginal perspective, the perspective of the treaty signatories; is that fair? Q. But he is not speaking for the Commissioners. So can you help us understand where the Commissioners dealt with way of life as it relates to culture? Do you understand my question, Doctor? Part of my answer

35 0 is contained on page of my report. Where, again, I am quoting Commissioner MacMartin. And you will see in bold MacMartin reports through an interpreter, Sinclair Ritch, stated to them that the King had sent the Commission to see how his people were and to enter into a treaty with them and that the King wished to help his subjects and see that they were happy and comfortable et cetera, et cetera. There are many statements throughout the Commissioners' diaries referencing this promise or referencing the statement that the King wishes his people to be happy and prosperous. So although not directly mentioning the word "culture", in my mind that is related to culture. Q. So the "happy and prosperous" component is what you are relating to a promise to protect culture? Yes. Q. Now just before we leave that point, in the quote that you have here, the King wished to help his subjects. You see that? And it is certainly clear, is it not, from the treaty-making process for Treaty, that the Commissioners and the Crown considered the First

36 0 Nations signatories to be subjects of His Majesty? A. Upon their signing, yes. Q. All right. So upon their signing they became subjects of His Majesty; is that what you are telling us? Q. And upon their signing, they also agreed to abide by the laws of the land? A. Laws of? Q. The land. I think, let me just go back to the expression in your points here. You say "laws of the land", on page, "in every particular". A. Oh, yes. Q. Now I don't think there is any doubt, is there, that that means the laws of Canada? A. I am sorry, I didn't hear that one. Q. It means the laws of Canada? It means -- Q. -- it means the laws of the country, Canada, or of Ontario?

37 0 Q. So other than the references that they want -- the King wanted to see his subjects happy and prosperous, is there something you can point us to where the Commissioners were turning their minds or expressing to the signatories not just that they could continue to hunt, trap and fish as before, but that their culture would be protected? Did they identify "culture" itself? A. Well they don't use the word "culture" in their diaries. Although we don't know how it would have been interpreted. But, in my opinion, the symbolic gesture of the giving of the Union Jack during the feast, the peace pipe, all of these things would mean goodwill in general. 0 Q. I am sorry, they would mean, what did you say? A. It's... Message that, messages of goodwill, messages of well-meaning. So they didn't specifically say anything, they did not use the word "culture". I am looking at it in a more general sense. Q. Okay, so if --

38 0 A. Looking at their relationship at large. Q. Well if we could just have a look at this from a slightly different perspective, and we look at the state of awareness or knowledge of the First Nations in 0, and at the time of the adhesions later. Could I take you to a page that you have already referred to, page, in your report. Q. So the first step is that would you agree with the proposition that the First Nations signatories understood that on signing they were being regarded by the Crown as the King's subjects? A. They would not necessarily have understood what that word "subject" entailed in a non-native world view. Q. All right. A. It was more of an understanding of a partnership, of kinship. Q. So subject in your conclusion in Treaty, the use of the term meant that there was a kinship. What can you direct us to as your source for that proposition?

39 0 A. Oh boy, umm, many sources. When I mention that -- well I will give you an example, there is an excellent book written by JR Miller on the treaties in Canada in general, and he discuss how the protocol of gift giving and medal giving and acknowledgement of trade captains was followed by Treaty Commissioners. He also discusses kinship relations and how the traditional Aboriginal way of forming partnerships through kinship, which is essentially like taking someone in as your brother. Q. Yes, I don't actually see any of that in the excerpts that you have quoted for us in terms of the First Nations speeches. So are there other speeches I should be looking to to find references to the kinship relationship and the other things that you have described for us? A. It will take me a minute to look for that. I have to go through the diaries again. Without going through every single diary right now in an attempt to find an example, I will say generally that the kinship would have been expressed through statements of friendship.

40 0 0 For example, if you look at MacMartin's diary, the discussion that took place at Mishkeegogamang, the Chief said, gave a speech saying that the white men were their friends, were good and had assisted them giving them money and land for their benefit. Q. Is this in your report, Dr. Armstrong? A. I don't think I cited that exact passage, no. Q. It's not in it, okay. But it's a speech by the Chief at Mishkeegogamang? Q. There is a reference to Mishkeegogamang at page of your report. 0 Q. And this is a report by the Treaty Commissioner Samuel Stewart who says: "On being informed that they could continue to live as they and their forefathers had done and that they could make use of any lands not disposed of by the government they

41 0 appeared to be satisfied."[as read] Q. That's one of the speeches. But you are referring to another speech? A. I am sorry, you are really breaking up, I didn't hear that at all. Q. Yes. That's one of the speeches. This is really -- this is not a speech, this is a comment in the diary by the Commissioner; correct -- Q. -- what we see at page. But you are referring to a speech by one of the chiefs -- Q. -- that referred to the friendship between the white man and the Aboriginal people? Q. All right. Now what we have been talking about in this line of questions in this discussion, Dr. Armstrong, is the view that they were subjects on signing; right?

42 0 Q. I just wanted to take you back to that point. Would you agree with me the Crown's perspective, the Commissioners' perspective was that they would be subjects, as they understood it, on signing? Q. Right. Can we go back to page. We are also having trouble with sound, Dr. Armstrong, so if you do have difficulty please flag it for us. It's quite broken up at this end. A. Yeah, you go in and out, I only hear a bit. Q. That's why I say, if there is something you don't hear clearly please say so and I will try and ask it again. Can I take you back to page. Q. There is this reference here to the Treaty Commissioners report to the superintendent general? 0 Q. Right. And we talked about the reference to the idea of subjects, but

43 0 now we have point one. In terms of the First Nations' understanding, point one says not to interfere with white men who might come into the country surveying, prospecting, hunting or on other occupations. So is it fair to say that part of the First Nations -- is it fair to say that part of the First Nations' understanding was that there would be white men coming into the country to do these things and to -- in advance of settlement and development? Can't hear that? A. I am sorry, I am really having trouble hearing. I heard the beginning and that was it. Q. I will try again, I will try again. The part that I am looking to, Dr. Armstrong, is the Item Number. Q. That may help you decipher the question here. When you look at Item, which refers to they were not the interfere with white men who might come into the country, is it fair to

44 0 say that part of the First Nations' understanding was that there would indeed be white men coming into the country to do these things in advance of settlement and development? Q. If we took Item, respecting the laws of the land, I think we have already discussed that means the King's laws? Q. And the question about protection here under Reserves, the Reserves were set aside for their use so they would -- no white people could trespass on them and they would be protected? Q. And that specifically related to the Reserves being set aside? Q. Now I did touch on this point, it's also on page, Dr. Armstrong, it says that the Treaty Commissioners did not appear to discuss, I think you are saying, discuss at great length how Treaty might impact traditional Aboriginal culture in the future.

45 0 Q. After Treaty was made did it, in fact, its implementation, in fact, impact Aboriginal culture; that is, the way of life, access to resources on the land and so forth? Did it have an impact? I would suggest, Doctor, that it did. A. Well I am thinking particularly about the provision for schools. Shortly after -- well actually even prior to Treaty, there were some mission schools, but... The promise of education for their children was very important to the First Nations signatories. And after the Treaty, more and more day schools were opened up on Reserves, so that would have had an impact. As well, the general assistance of the annuity money would have benefited people. Q. Okay so if we just deal with education, there was a clause in the Treaty dealing with schools and providing paying for teachers? Q. And paying for teachers? A. I am sorry, I didn't hear

46 0 that. 0 Q. There was a clause in the Treaty -- or there is a clause about schools and paying for teachers? A. I am just going to look. Q. That's totally fair, let me see if I can help you find it. On my reprint, which I think is the Queen's Printer' version, it's at page. "Further, His Majesty agrees to pay such salaries of teachers to instruct the children of said Indians and also to provide such school buildings and educational equipment as may seem advisable to His Majesty as Government of Canada."[as read] Q. Is there any doubt, Dr. Armstrong, that's what contemplated there is teaching in English? A. That may have been what

47 0 the Treaty Commissioners intended. The First Nations would have, would have... Expected -- actually I won't go any further, I am not sure about that. That would have been the Commissioners' understanding. Q. Yes. And, in fact, one of the things the First Nations wanted is not only to maintain -- they wanted to maintain their culture, but they also wanted to make sure that their children could adapt to the other culture that they were dealing with; isn't that fair? Q. It's one of the reasons that they wanted education for their children, they were contemplating that it was non-aboriginal education? A. They would like -- they wanted the children to learn the -- some of the skills that the non-native person possess that they thought would help, would benefit the children. For example, you know, that non-native person was bringing manufactured goods. So anything that might help their children learn some of the skills of the non-natives. Q. And also to learn the

48 0 language of the non-natives? A. That, I don't know. I don't know. Q. If I could take you back to a quote that we looked through earlier. It's on page of your report. It's a reference to Fred Mark, who is a representative of the First Nations signatories. Q. You see it there? He says: "They would be better cared for and protected by the King, that they would obey his laws."[as read] That means the King's laws; correct? Q. And I think it's probably missing the word "be": "Be good and dutiful subjects. That under the laws their children would be protected and properly educated."[as read]

49 0 To your understanding, is that a reference really to the schools clause that we have just looked at in the treaty? A. It's more than just the schools laws. I believe it's reference to the relationship they understood was established by treaty at large, as well as schools. Q. I am sorry, so when it says "their children would be properly educated", that is what I was looking at. That component of it. Is that part "properly educated", does that refer to the schools clause or is there some other promise or commitment that you are directing our attention to? A. No, the "properly educated" would be a reference to the schools clause, yes. 0 Q. Thank you. We have been talking about the perspective of the First Nations signatories with occasional reference to the perspective of the Commissioners. So I would like to take you further down that path in considering the perspective of the Commissioners, and to do that, I wonder if I could take you to Treaty itself at

50 0 0 the beginning. You have a copy, I think, in front of you because you were looking at the schools clause? Q. All right. Now this Treaty is actually made with participation of both Ontario and Canada? A. Could you repeat the question? Q. This Treaty is actually made with the participation of both Ontario and Canada? A. That's a complicated question. The Treaty Commissioners were federal Treaty Commissioners, although one of the Treaty Commissioners was appointed by the Ontario government, or nominated, excuse me, by the Ontario government to represent Ontario. Q. Okay. A. There is incorporated in the Treaty an inter-governmental agreement dated July rd, 0, which includes Ontario. Q. And under its terms Ontario concurs in the treaty? A. Particularly in the

51 0 Reserve selection. Q. Yes, okay. If we could take, on the Queen's Printer version I have, it's page, where the Articles of Treaty start. Do you have that? Q. Now, again, looking at the question of the Commissioners' perspective or the Crown's perspective, we have recitals at the beginning. Can I take you to the third one? A. Um-hmm. Q. It says: "And whereas the said Indians have been notified."[as read] I am going to stop there. The "Indians" means the Ojibway, Cree and other Indians inhabiting this Treaty tract; doesn't it? Q. Okay. "The said Indians have been notified and informed by His Majesty's said

52 0 Commission that it is his desire to open for settlement, immigration, trade, travel, mining, lumbering, and such other purposes as to His Majesty may seem meet attractive country bounded and described as hereinafter mentioned and to obtain the consent thereto of his Indian subjects inhabiting the said tract and to make a treaty and arrange with them so that there may be peace and goodwill between them and His Majesty's other subjects and that his Indian people may know and be assured of what allowances they are to count upon and receive from His Majesty's bounty and benevolence."[as read] Have I read that fairly?

53 0 Q. Okay. So would it be fair to say that that accurately represents the Crown's perspective as to why Treaty was being made? 0 Q. Thank you. Now if the treaty were being made from the Crown's perspective with this in mind, can I take you to page and look at another provision of treaty that appears to relate to this. It's the third or fourth paragraph down it begins "and His Majesty the King hereby agrees"; do you see that? Q. This is the: "His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing, throughout the tract surrendered as heretofore

54 0 described, subject to such regulations as may from time to time be made by the government of the country acting under the authority of His Majesty and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes."[as read] Do you see that? Q. That's commonly known as the taking-up clause, at least the second portion of it? Q. And the taking-up clause is consistent with the purpose, at least as the Crown saw it, for making treaty? Q. And the way the taking-up clause has operated, at least I expect here, in

55 0 the work you have done you are familiar with the idea that it operates in a way that it would remove some lands from hunting, trapping and fishing use? A. According to the Crown, yes. Q. Yes. So to take this a little bit further, if I just revisit your thesis for a moment, it's that the First Nations way of life and the relationship to the land which is an integral part of that, really equals their culture; is that fair? A. That's certainly part of their culture. Q. So would you call it a major part of it, the relationship with the land and the way of life with the land? A. Yes, yes. Q. But I would suggest to you that from the Crown's perspective or the Commissioners's perspective at the time, the ability to continue to support themselves, to have the signatories support themselves through hunting, trapping, fishing and gathering was really largely an economic consideration? That

56 0 is, they didn't want to have the signatories dependent on the public purse for support, they wanted to ensure that they could continue to support themselves from the land through their traditional means? A. I believe there is more to it. I believe the Treaty Commissioners understood the significance of that assurance to the Aboriginal people. They knew that that was critical for the Aboriginal people. Q. Yes. But in terms -- A. It wasn't just economic consideration. Q. But in terms of their own purposes, we are talking a different perspective here. Their own purposes were largely economic, isn't that fair? That's, in fact, the treaty is an economic treaty from the Crown's perspective? A. I'd have to really think about that. I can't say yes or no at the moment. I think there is a lot more to it. It's not an economic agreement. It's an agreement of reliance, of peace and friendship, it's part of a long tradition of treaty making stemming from -- 0 Q. Well let's talk about the

57 0 long tradition of treaty making. It follows, certainly, on numbered treaties, doesn't it? The other numbered Treaties to were made before this? Right? Q. And for each of those treaties, the tract that -- the timing of the treaties, for each of those numbered treaties, including Treaty, the timing of the treaties was really determined by government need, need to be able to access the lands and see them developed or build a railroad or do things like that? A. Well that was certainly true of Treaty, because the government needed to open up the Dawson route. I am not sure I would say the same thing for the adhesions to Treaty. In some respects Treaty would have been a response to Aboriginal petitions, as well as Treaty. And I can't speak to the numbered treaties otherwise. Q. Okay, I was talking about the timing, not -- A. Okay. Q. -- the timing was determined by the Crown; isn't that fair?

58 0 A. I can only speak to Treaties and and, not the ones out west. Q. All right, in the timing was determined by the Crown; was it not? A. In response to petitions from several First Nations, the Crown came to realize that settlement was encroaching on Aboriginal lands. Q. Right. So the Crown had to meet a problem arising from settlement and development, including the existence of a railway, in Treaty. A. Well and -- a part of a railway and part of Treaty, yes, and the railway was planned, though, to be extended. Q. Yes. And the dimensions of the tract for Treaty, was that determined by the Crown as well? A. "Dimensions of the tract", you mean the territory covered by the treaty? Q. The territory and the boundaries covered by the treaty were determined by the Crown; were they not? A. The geographic boundaries

59 0 as described in the treaty were determined by the Crown, yes. Q. In the course of your examining Treaty, have you looked at its performance and implementation by the two sides post, 0? A. With respect to certain matters, yes. Q. Does one of the matters include the schools? A. I looked at how -- yes, it -- in one study I did, I was looking at how the schools changed from being largely day schools to residential schools. 0 Q. And in both those kinds of schools, whether they were day schools or residential schools, whatever else may be said about them, was the language of instruction English? Q. Were there -- A. Although I need to qualify that. I believe in some of the day schools, some of the instructors were Aboriginal speakers.

60 0 0 Q. Okay. So by the time there is a shift to residential schools within the Treaty tract, when did that take place? A. Oh it varied across the territory, but I believe it started in the '0s but I am not positive. Q. And for sure the instruction in the residential schools was English? A. You know, I actually don't feel like answering that. I don't know if that would be fair to the Court because I have never really studied. Q. Okay, no, that's why I asked you. That's certainly valid, Dr. Armstrong, if you haven't examined it. A. I am not an expert on residential schools. Q. All right. But you must have examined at least the manner in which the communities, the Reserve communities were governed at least in general terms post-treaty? A. Who was governed? Sorry, I didn't hear that. Q. The Reserve communities.

61 A. The manner in which they 0 were governed? Q. Yes. You must have examined that, at least in general terms? A. I don't really know what you mean. Do you mean by their Chief and council or by the government? Q. Well let me ask it this way, I meant their Chief and council. But after treaty, and some even before, really became governed under the provisions of the Indian Act; isn't that fair? A. I guess officially the Indian Act was applicable, yes. They did hold elections and elect chief and councillors according to the Indian Act. Q. And so the governing process was also directed by the Indian Act, the manner in which, the procedures and so forth were also governed by the Indian Act, or are you not sufficiently familiar with it to know that? A. Yeah, to the best of my knowledge, the procedures may have been introduced by the Indian agent shortly after the treaty. But in some areas, Indian agents didn't appear until

62 0 the 0s. So I don't think I can answer that with any degree of expertise. Q. But did the introduction of the Indian Act, to your knowledge, have an impact on the traditional cultures either of the Cree communities, the Anishinaabe communities, or the Ojibway-Cree amalgam communities? I just wouldn't be able to identify the exact time periods across Treaty area. I think -- Q. Would it be fair to say it had a negative effect in that it had a negative impact on the continuation of traditional culture in those communities? A. It's not something I have studied. Q. But do you feel capable of making that general observation from your work in Treaty communities? A. Well mostly from what I have heard from elders interviews, yes. Aspects of the Indian Act did have negative impact on the culture. Q. Come back to the question that I had asked you earlier where you make the

63 0 comment in your report, I just have to make sure I have got to the right place, Doctor. We have touched on this before. This was at page, where we were looking at the different ways in which the Treaty was looked at by the First Nations signatories as opposed to the Commissioners. So could I take you to page? Q. And it appears the Commissioners did not discuss the term "surrender" meant at any great length. So that's certainly a quite different view on the two sides of the Treaty as to what its effect was; is that fair? Q. And the "surrender" from the Crown's perspective meant that the interest in the land was now removed but there was an ability to continue to use it to hunt, trap and fish subject to the taking-up clause? A. I would agree with that. Q. And then it goes on, they didn't address how the treaty might impact traditional Aboriginal culture in the future. And picking up from our question -- my question about

64 0 the Indian Act, would you agree with my proposition that the post-treaty era, whether it's because of the schools, day schools, the Indian residential schools, the manner of governance imposed by the Indian Act and so forth, generally did have a detrimental effect on the Aboriginal culture of the treaty signatories? A. With respect to the residential schools, I can say with certainty that that is true. Q. And we have already talked about the band councils governance structure. A. I need you to give me specifics. Q. Well, no, we have had already had that bit of a discussion, so, Doctor, I wasn't going to bother you with going back to it. But the reason I am asking the question relates to the statement that at the time of treaty there was not a discussion by the Commissioners about the anticipated impact on culture; is that fair? A. I could state with

65 0 certainty that at the time of treaty the Commissioners did not mention the existence of the Indian Act or its provisions. Q. But they also, as according to your report, they did not discuss with the First Nations in any great length, I think you say, how the treaty might impact traditional Aboriginal culture in the future, you say that in your report? I believe their assurances that the people could continue to hunt, trap and fish and live as of yore or as their forefathers had done was meant to imply that First Nations themselves would be able to continue, their culture could continue. 0 Q. And yet they knew, the Commissioners knew that the purpose of the treaty, from their perspective, was to open up the land for development, as the treaty says; is that fair? A. Yes, to remove Aboriginal title. As well to, I believe, as well to provide assistance. They knew the people in many areas were very hungry -- Q. Yes. A. -- they knew that the