One of the main user groups of this database is lawyers and legal teams. This is because
many colonial administrative decisions regarding the “land question” and “aboriginal
title” can be found in this correspondence. While a few selected documents from this
large collection were used in the Snuneymuxw hunting case of 1964, Regina v. White and Bob, a later case, Claxton v. Saanichton Marina, 1987, is the first Canadian trial that relied on a comprehensive collection of these
documents, our Despatches.
Below are transcripts of the discussion between one of the Province’s lawyers and
Justice Meredith as they discuss the provenance of the Colonial Despatches collection and Jim Hendrickson’s novel use of “word processors” which allowed the
court to search for strings such as “Indian” and “aboriginal title.” This moment marks
the first legal use of this collection thanks to a nascent form of the Despatches project.
Supreme Court of British Columbia, Claxton v. Saanichton Marina. Proceedings at trial (K), 11 September 1987, 25-27.
THE COURT: All right. Mr. Edwards, just before we recess, then, are these documents
by Mr. Hendrickson, and I suppose that he has had transcribed, are they quite — of
quite recent discovery or have they been —— I mean have they been unearthed recently
by Mr. Hendrickson?
MR. EDWARDS: Perhaps I could have my colleague, Mr. Prelypchan, describe that. He
is more familiar with this than I am.
THE COURT: I would be pleased to know.
MR. PRELYPCHAN: The documents themselves were known to historians. As it happened.
the
practice of the Colonial Office was to organize them correctly and carefully and have
letter books and that kind of management of material. Similarly, the Colonial Organization
on this side of the water, Governor Douglas kept letter book copies, so it was able
to
be put together in the past from original correspondence, but by reason of its voluminous
attributes on both sides of the water, they were never able to be put together until
microfilm came about and the Public Records Office copied this material in the interest
of all.
THE COURT: Public Records Office?
MR. PRELYPCHAN: In London, yes. The Public Records Office in London then made these
microfilms available to museums and archives.
THE COURT: And these are microfilms of the handwritten documents?
MR. PRELYPCHAN: That’s correct, and originally they went to Canada, Public Archives
in Canada had them for a number of years and then Public Archives Canada felt that
regions such as British Columbia were directly affected and might be interested in
access to this information so they made copies available to British Columbia and it
was only within the perhaps last five years, I understand, that Professor Hendrickson,
himself being a Canadian historian, felt that even better access should be made to
these materials, so he had these microfilms made available to him at the university
and with the source of a variety of funding and some of it, I understand, even being
the Law Foundation, had them read by people whose eyes were accustomed to proclivities
of colonial officials with these minutes which you heard about and script and that
kind of thing, and he was able to reduce them in this way. He doesn’t pretend to apologize
where there are mistakes but I hesitate to say that they are as close to perfect a
translation of them as you are going to get, but if Your Lordship is concerned about
the veracity in any way –
THE COURT: No, I wasn’t concerned about that at all. I was just concerned about the
timing of the documents were there, but nobody had really put them all together and
–
MR. PRELYPCHAN: Well, maybe I can describe why this has become possible in today’s
world, if I can, because Professor Hendrickson in reading them had them reduced through
electronic means into word processors and eventually this can become a computer product.
THE COURT: What does that mean, electronic means?
MR. PRELYPCHAN: A disk, we say. if you were, for example, doing your reasons for judgment
in this case, it is likely support staff would have a microprocessor in the back room
grinding it out and you say, well, change this one and change that one.
THE COURT: Right.
MR. PRELYPCHAN: But if you decided in the course of your judgment to change one word
to change one word consistently throughout your judgment, they could access that one
- word very quickly.
THE COURT: Right.
MR. PRELYPCHAN: And that is what has enabled the court now to have the ready access
which it did not before to the collection in this organized way. It would have taken
manpower
to read each of the documents which you have heard about today and say, "Now, I remember
reading something somewhere else that could link it up,” but a computer, by typing
in the words, for example, "Indian", "aboriginal title", these kinds of things, has
been able to draw out from Professor Hendrickson the relevant documentation which
has been put before you. So, it was only that kind of technology that has resulted
in a better description of the available material.
THE COURT: Well, that is identification of documents, but he -- somebody would have
to read from those microfilms.
MR. PRELYPCHAN: Yes.
THE COURT: And that would be dictation and the transcription?
MR. PRELYPCHAN: Yes, and that process was the microfilm was before a trained operator
and this- person as they read the microfilm, would type it into a word processor in
the same way as
we hear the spoken word today by the court reporter. Eventually Professor Hendrickson
would peruse them. If there were any questions of interpretation or spellings or other
kinds of things, they were faithfully reproduced, but Professor Hendrickson would
have been consulted, I understand, as to what the wording was and eventually he stands
behind the product as a historian to say that the microfilm was read and it was faithfully
reproduced. I will offer this in the -- in interest of comfort to the court: Professor
Hendrickson would be available to describe this process to you viva voce if of interest.
THE COURT: It would be of great interest, but I don’t think it is really too relevant
unless there is a challenge to the documents.
MR. PRELYPCHAN: I don’t believe there is, and I don’t –
THE COURT: I am just interested in knowing what, if anything, of these documents were
available to the court, for instance in the White and Bob and in subsequent cases
having to do with the application of provincial game laws and so on. I guess this
is the first time they have all been put together.
MR. PRELYPCHAN: Yes, some documents were available, for example you heard Mr. Edwards
talk of the application by Douglas to the colonial government for additional funding.
THE COURT: Yes.
MR. PRELYPCHAN: And the reply. That was before the court involving Bob and White,
I
understand.
THE COURT: That was the £3,000?
MR. PRELYPCHAN: Yes, but I’m not aware whether the colonial office notes, for example.
Were carefully scrutinized in an attempt to link the internal communication between
one colonial office and the Treasury Board or the Immigration Board and the colonial
office was before the court then.
THE COURT: Mr. Justice Morrison, who did the most extensive judgment in that case
wouldn’t seem to have had a great deal of this information.
MR. PRELYPCHAN: That is my understanding. I have made an attempt to find what the
record before the Supreme Court of Canada in Bob and White was and from my perusal
of it.
I know, for example, that the communication between the Governor here and Newcastle
was
before the court but I -- I have not been able to satisfy myself that the colonial
office notes
were there or the internal communication, so it gives a better understanding of what
the reaction of the administration was.
THE COURT: Fascinating. Then the challenge which is raised in the pleadings here about
which I have ruled really, I think that that would really require me to reverse White
and Bob but that would be made on the basis of new information which emerges from
these documents.
MR. PRELYPCHAN: Yes, that -- that was the difficulty we faced as counsel, recognizing
that Bob and White was there and it was a judgment that would be facing you, but we
nevertheless having this, what we felt were some additional documents, an obligation
to place them before the court and as we have to representing our client in the office
of
the court, bring our own interpretation to them, which was perhaps they weren’t treaties,
and, therefore, our pleading.
THE COURT: Thank you very much.
MR. PRELYPCHAN: Thank you, My Lord.
THE COURT: That is very interesting and so we are at an end now, are we?
MR. EDWARDS: As far as I’m concerned, My Lord. Those are the only references I intend
to make until we get to argument on the documents.
THE COURT: Thank you. We will recess to ten o’clock Monday.
THE REGISTRAR: Order in court.
(PROCEEDINGS ADJOURNED TO 10:00 a.m., SEPTEMBER 14, 1987)